author: Maynard, J.

text:
    In the Matter of the Petition of Theodore A. Myers, Adm’r, for an Allowance, etc. In the Matter of the Petition of Louisa Myers for an Allowance, etc.1

      (Court of Appeals,

      Filed March 1, 1892.)

    1. Executors and administrators—Interest.
    The day following testator’s death, a new firm of stock brokers was formed by his surviving partner, to which all the assets of the firm were transferred, and the securities belonging to the estate remained in the business of such firm, except a portion thereof which was deposited by it with a trust company which paid a low rate of interest. The surviving partner was an executor of and trustee under testator’s will. Held, that the loan to the firm was unauthorized and the executors became personally responsible for the fund and interest at the full legal rate was chargeable against them.

      % Same.
    Interest at legal rate should also be charged upon the amount deposited with the trust company, as it was made in the name of the old firm and dealt with by the executor as if they were his own funds.
    3. Same.
    The interest should have been computed on the entire trust estate coming into the possession of the new firm at the actual and not the inventoried value.

      4. Same—Costs.
    The surrogate directed the executors to pay one-half of the referee’s and stenographer's fees for these proceedings out of the principal of the trust estate. Held, error; as one-half of the trust estate goes to the executor, whose action rendered the proceedings necessary, and as a beneficiary wliowas entitled to half the income of the estate had died since these proceedings were begun, and her part of the income which was accumulating for the benefit of the executor and his brother afforded sufficient funds front which the expenses could be more properly paid.
    Appeal from orders of the supreme court, general term, first, department, modifying decree of surrogate confirming report of referee and detecting certain payments to be made to the petitioner.

      Edgar M. Johnson, for app’lts ; George M. Thomson, for resp’t.

       Reversing in part 33 St. Rep., 977; 38 id., 889.

   Maynard, J.

With the exception of some unimportant legacies, the testator gave his entire estate to the four executors of his will, in trust, with the direction to collect, invest and reinvest: the same, and pay the income thereof in equal shares to his two-sisters, and after their. death to divide the principal equally be tween his surviving partners in the business of stock brokers in. Mew York city;' one of whom was an executor and the other a. brother of such executor. Upon the day after his death this executor and his brother formed a new copartnership, taking in another member, and continuing the business under the same firm, name in which it had been carried on in the life time of the-testator.

It appears that substantially all the property which he left was invested in this business, and that he and the executor referred to-contributed all its working capital, and that the firm owed him on various accounts over $60,000, and owed him and the executor jointly, upon an account known as the “L E.” account, the sum of $241,750, of which one-half, or $120,875, belonged to him ; thus making the total amount due him from the firm over $180,000. These accounts mainly represented loans on margins-to customers, for which the firm held ample security, and it has-been shown that they were all good and that there has been no-loss on any of them. The new firm, upon its formation, immediately appropriated all the assets and business of the old firm, and the property of the testator was used by it in its business, evidently in the same manner in which it had been employed in his life time by the firm of which he was a member.

The testator died March 8, 1887, and his will was proved and letters testamentary issued to the four executors, who all qualified on April 14th. Since that time the executors have paid to-the sisters, each the sum of $1,336, on account of the income of the trust funds in their hands and have insisted that such amount,, with the further sum of $4,055, constituted the entire income from-such funds accruing from the death of the testator to October 24,. 1888. This amount scarcely exceeds two per cent upon the estimated, value of the property which came into their hands.

Within the time limited by law a brother of the testator commenced proceedings, under the Code, for the revocation of the-probate of his will, which are still pending. This brother and the two sisters are the only heirs at law of the decedent; and in case his will should be declared invalid would be entitled to all his property, including the income thereof which has accrued since his death, and the brother has executed a written consent that the whole of such income may be paid to his sisters pending the contest over the will. In 1888 separate applications to the surrogate were made for an order requiring the executors to account and pay to the beneficiaries such additional income as they may have received from the trust property „or be lawfully chargeable with. The proceedings thereon were consolidated and a reference ordered..

The referee found, upon competent proofs, that the entire available estate of the testator was in the possession of the new firm; was actually employed by it in its business; that after rejecting all doubtful securities it was of the net value of $180,000; that it had, during all the time since the formation of the firm, earned six per cent interest annually; and that, after deducting all payments and expenses, there was still due from the income of the trust fund to each petitioner the sum of $6,146. The surrogate confirmed the report and directed payment accordingly. The executors appealed to the general term, where the order of the surrogate was modified by reducing this amount to $4,983 ; and from the decision of the supreme court both parties have appealed to this court

The principal question to be determined involves the rate of interest upon the trust estate for which the executors should be held accountable. The executors claim that these moneys have been used in the stock brokerage business of the firm, of which one of their number is a member, and that it is to be regarded in the nature of a call loan to that firm; and as such loans can usually be effected in Wall street at two per cent, and sometimes for less, they should n'ot be required to account for any greater sum.

Independently of the relation which one of the executors sustained to the firm, it is apparent that this claim is untenable. Under the rules of law, as they have been judicially construed, which control trustees in the management of estates committed to their care, and which fix the measure of their responsibility, the loan of the trust property by the executors to a firm of stock brokers without any security other than the personal obligation of the borrowers, or the employment of such property in a business of that character with the permission or acquiescence of the executors, was unauthorized, and the executors became personally responsible for the fund, and in such cases interest at the full legal rate is chargeable against them so long as the prohibited use of the funds continues, and without regard to the productiveness of the investment.

The rule upon this subject is well stated by Chief Judge Huger in Deobold v. Oppermann, 111 N. Y., 538; 20 St. Rep., 81, where, speaking of the proper uses to which trust funds may be put, he says : “ Their employment by the trustees in trade, or as loans to persons engaged in such business, or in the prosecution of mercantile, commercial and manufacturing enterprises, or speculative adventures, has been uniformly condemned as illegal and as constituting a devastavit of the estate ”

In this view it is immaterial whether the trustees are themselves directly interested in the business undertaking in which trust moneys have been improperly invested. They become the debtors of the estate to the extent of the misappropriation, and the law prescribes the rate of interest upon every indebtedness where it is not fixed by the agreement of the parties. The reason of 'the rule is, that as the primary object of the creation of a trust is ordinarily the preservation and perpetuity of the-fund until the purposes of the trust have been accomplished, this object is necessarily endangered and may be entirely defeated by exposing the estate to the perils of commercial pursuits, which are always, to some extent, speculative and subject to the hazards of great loss.

In King v. Talbot, 40 N. Y., 86, it was declared that the degree of diligence and prudence which trustees are required to-exercise in the care and management of trust estates “ necessarily excludes all speculation, all investments for an uncertain and doubtful rise in the market, and of course everything that does-not take into view the nature and object of the trust, and the consequences of a mistake in the selection of the investment to be-made.” The executors seek to avoid the application of this rule-by the claim that this employment of the trust property was-necessary in order to prevent a substantial shrinkage in its value, which would probably have resulted from its immediate withdrawal from the business in which it was invested at the time of testator’s death. But this claim is not sustained by the proofs. The testator’s firm was not insolvent when he died, and it is not shown that there would have been any failure to have realized the full amount of its indebtedness to him if its affairs had been wound up by the surviving partners in the usual way. It may be that a forced sale of the stocks and bonds, which were held as-collateral security for the loans of the firm, would have resulted in a loss; but they could have been held for a reasonable period by the surviving partners, and the loans taken up and converted into money, if necessary, and without involving them in the general risks of the business conducted by their successors. There was, in fact, no delay in the settlement of the business of the old firm. All of its assets were immediately transferred to the new firm, and all of its liabilities assumed by the latter. The transaction must be regarded as a sale, the consideration of which was the payment of the debts of the old firm. Even if the proper inference from the evidence is that credit was to be given upon the transfer for a sufficient length of time to enable the new firm to close the accounts of the old firm in the ordinary course of business in Wall street, there is no proof of any agreement that-less than the full legal rate of interest was to be paid meanwhile. The executor, who was a member of both firms, testified that he-regarded the indebtedness of the new firm to the estate as a call loan, and that he allowed on this loan the prevailing rate of interest for call loans, which was two per cent It is scarcely conceivable that circumstances could exist in any case which would, render lawful a call loan of trust funds to stock brokers.

It is sufficient, however, to say that the executor, who was a, member of the new firm, could not make an agreement with himself as executor of the estate, or with himself as a surviving member of the old firm, stipulating for the use by the new firm, of the trust funds, or of the funds of the old firm, as a call loan, at two per cent, interest Call loans are generally negotiated at a. low rate, because of the undoubted character of the security required, and because they can be promptly called in at the first, indication of the danger of loss. A trustee undertaking to make-a call loan to a firm of which he is a member, would be likely to look with indulgence upon any security which it might offer and be slow to discover any sign of peril to the investment, or to act upon the discovery when made.

We have thus far considered the liability of the executors for interest upon the broad ground of the want of authority on their part to permit the trust estate to be used by the new firm in the business in which they were engaged. The same result would be-reached in view of the undisputed fact that these funds were-actually loaned by the new firm to their customers at six per cent, interest, which was in all cases realized without loss. One of the-executors was a member of the firm and was permitted by his; co-executors to have the active management of the estate. The same rule will apply as if he had employed the funds in his own individual business, in which case it cannot be doubted that he must account for their use at the highest rate imposed by law, or for the actual profits resulting from the investment of the trust property in such business, if the beneficiaries elect to compel him to do so. Perry on Trusts, 3d ed., § 464.

The necessity for a strict application of these rules regulating the accountability and responsibility of trustees for the income of the trust estate is the more urgent in the present case, because of the interest which the active executor and his brother have in the property after the termination of the trust. Under the will the corpus of the estate then goes to them in its entirety. Whatever income may be withheld increases the amount which they will ultimately receive, and thus the loss of the beneficiaries in this respect would be their gain. The liability of the trustees is not-affected by the pendency of the application for the revocation of the probate of the will Section 2650 of the Code does not stay the proceedings of the executors for the recovery and preservation of the estate, or for the collection and payment of debts, nor sanction any investment or appropriation of the property in their custody not otherwise lawful or proper.

Uor are the executors relieved from liability for the interest which accrued intermediate the death of the testator and the probate of the will. So far as it concerned the trust property the letters testamentary, when issued, related back to the time of the testator’s demise, and invested the executors with the title thereto as of that date, and, as the property had been immediately taken possession of by the firm of which one of the executors was a member and actually employed in a lucrative business earning at least six per cent interest, it was the duty of the executors, when they qualified, to collect such interest from the firm and pay it •over to the petitioners in these proceedings.

It is not necessary to consider the effect of the deposit with the Trust company of various sums, made in the name of the old firm. They were dealt with by the executor, who was a member •of both firms, as if they were his own funds. The certificates were not assigned, even in form, to the executors until the commencement of these proceedings. The assignment was so drawn •that the individual executor could make use of them, and the ¡amounts deposited do not seem to be in excess of the sums which .a firm engaged in such business would ordinarily keep on deposit in some banking institution for the purpose of maintaining -their credit Under such circumstances the deposit may properly be •deemed' to be that of the firm and to have been made for its benefit. Perry on Trusts, 3d ed., § 464. Interest upon the trust fund was therefore properly charged at the rate of six per cent, and the appeal of the petitioners presents the further question as to the amount of the principal of the estate upon which it should be -computed. The surrogate directed that the computation should be made upon $180,000. The supreme court reduced this sum to .$157,017.

We cannot avoid the conclusion that the decision of the surrogate in this respect was right While there is some confusion in the figures, yet the evidence of one of the executors seems to leave but little doubt that property of the value of over $180,000 belonging to the trust estate came into the possession of the new firm immediately after the testator’s death, upon which they derived an income down to the hearing before the referee. The actual and not the inventoried value is to be taken. The executor testifies that upon the various accounts which the testator had with his firm, there had been received $186,317, and after deducting certain debits, to the amount of $5,396, he declares that “ the net personal estate is $180,921.” These sums do not include the so-called unavailable securities, upon which nothing has yet been realized. At another place the executor says there will be no loss •on any of these accounts. The general term finally put its decision upon the ground that the only securities which seem to have been available in the different accounts belonging to the testator were those in what was known as the I. R. account and the bond account, which aggregated $157,000. But the Suspense account represented an indebtedness of over $23,000, besides the securities to its credit,, which were taken possession of by the new firm, and, under the rule we have adopted, interest at six per cent is chargeable upon this indebtedness. There was also the profit and loss account, upon which over $4,000 was realized. It is, therefore, apparent that the amount of the principal of the trust estate upon which interest is chargeable was correctly computed by the referee and the surrogate, and that no deduction should be made therefrom.

All of the executors were properly charged with liability to-account for and pay over the income of the trust estate, under the-proofs in this case. They all qualified; they all united in causing the inventory to be made; they must all have known of the condition of the estate as disclosed by the inventory; two of them, certainly, had actual knowledge of the use which was made of the property; if the others did not know, they could have known by the exercise of ordinary care and vigilance that the funds had been diverted from the usual course of trust investments and were employed in the business of the new firm.

TJpon the most favorable view of the facts they are brought within the operation of the rule laid down by this court in Wilmerding v. McKesson, 103 N. Y., 329; 3 St. Rep., 108.

The surrogate directed the executors to pay each petitioner out of the principal of the trust estate the sum of $183, being one-half of the referee’s and stenographer’s fees incurred in the proceedings. The general term modified the order by striking out this provision, which we think was error. One-half of the trust, estate, upon the termination of the trust,* goes to the executor,, through whose active participation in the unauthorized use of it. the institution of these proceedings was rendered necessary. It, also appears that one of the beneficiaries who was entitled to one-half of the income of the estate has died since these proceedings; were begun, and that such part of the income must accumulate for the joint benefit of this executor and his brother during the-lifetime of the surviving beneficiary, and there is, therefore, sufficient funds out of which these expenses can be paid without, impairing the income to which the surviving beneficiary is em titled.

That part of the orders appealed from, reducing the amount of income to be paid to each petitioner from $6,176.31 to $4,983.72. and striking out the provision in the order of the surrogate directing the payment of referee’s and stenographer’s fees, should, be reversed, and the orders of the surrogate modified by directing-that such fees be paid out of the income of that part of the trust estate to which Matilda Myers was entitled in her lifetime, accruing since her death, and as so modified • the orders of the surro- ' gate should be affirmed, with costs to the petitioners in this court and the supreme court to be paid out of such income accruing since the death of Matilda Myers.

All concur.


source: Caselaw Access Project

author: Andrews, J.

license: Public Domain

text:
    In the Matter of the Judicial Settlement of Accounts of J. Moreau Smith et al., Ex’rs.

      (Court of Appeals,

      Filed March 1, 1892.)

    1. Will—Cohstbuction—Trust.
    . Testator directed one-third of his estate to be held in trust to pay his son Richard a certain sum. for his support and. for the support and education of his daughter during minority, and directed that if said granddaughter survived her father, she should have one-half of said trust estate,, the remainder to be divided among the heirs at law; but that in no event should Richard have any estate in, or control over, the principal of said one-third. Held, that a trust was created to continue during the lifetime of Richard and not one which would be terminated by the death of his daughter.
    '2. Same—Legacy to gkaudchildben.
    Testator bequeathed the sum of $10,000 to each of his grandchildren, to be paid to them when twenty-five years of age, and provided: “In event of the decease of either of said grandchildren prior to attaining the age of twenty-five years, then I direct the share of such deceased shall be equally divided between the surviving grandchildren share and share alike. All the grandchildren as a class shall take, irrespective of relationship as a brother or sister of a deceased child." Held, that the two children of Richard, born after the testator’s death, were not entitled to any share of the legacy given to their half sister born prior thereto.
    Appeal from judgment of the supreme court, general term, fifth department, affirming decree of surrogata
    In September, 1877, Lewis E. Herrick died, leaving surviving him his widow and two daughters and one son, and also six grandchildren. His son Eichard P. Herrick had one daughter, Emma Dude Herrick, then under eight years of age, and who died in 1884. The widow and the three children of Lewis E. Herrick, and all the grandchildren, with the exception of Emma Dude .Herrick, are still living.
    Lewis E. Herrick left a will dated July 20, 1877, and a codicil dated August 8, 1877. Richard P. Herrick was a widower at the time of his father’s death, but thereafter married a second wife, and by her had two children, born before the death of their half-sister Emma. The son Richard P. Herrick and his two infant ■children are appellants.
    The surrogate, on the accounting, construed the fourth and .fifth clauses of the will. One of the questions raised was as to the duration of the trust created by the fifth clause, and the other velated to the claim of the infant appellants that they were entitled to share in the distribution of the legacy of $10,000 given by the will to their half sister Emma. The surrogate decided that the trust in the fifth clause is to continue during the life of Eichard P. Herrick. He also decided that the two infant appellants are not entitled to share in the legacy of $10,000.
    Some other questions arise on exceptions to the accounts of the ■executor as settled by the surrogate.
    The general term affirmed the decree of the surrogata The fourth and fifth clauses of the will construed by the surrogate are as follows:
    “ Fourth. I give and bequeath to each of my grandchildren the sum of ten thousand dollars, to be paid to them on their severally attaining the age of twenty-five (25) years. I direct that during the minority of any of such grandchildren, and until they shall respectively attain the age of twenty-five years, the said sum shall be invested by my executors in bonds and mortgages or other safe securities, and the interest and proceeds arising therefrom shall be paid semi-annually to. the respective mothers of said children, and in the event of the decease of any mother the said interest shall be added to the principal fund, which, with all accumulations, shall be paid to each of said grandchildren as above mentioned.
    “ In the event of the decease of either of said grandchildren prior to attaining the age of twenty-five years, then I direct that the •share of such deceased shall be equally divided between the surviving grandchildren, share and share alike. All the grandchildren, as a class, shall take irrespective of relationship as a brother or sister of a deceased child. With respect to my granddaughter, Emma Dude, daughter of my son Richard P. Herrick, I direct that the interest arising from the investment of her $10,000, instead of being paid to her mother, shall be added to the one-third part of my estate hereinafter devised and bequeathed to her said father.”
    “ Fifth. After satisfying the foregoing provisions, I direct that all the rest, residue and remainder of my estate, both real and personal, be divided into three (.3) equal portions, and I give, devise .and bequeath one such third part to Helen E. Smith, wife of J. Moreau Smith, one other third part to Emma 0. Morse, wife of Rollin E. Morse, and the remaining one-third part I direct shall be held in trust by my executors upon trust to invest the same ■upon such securities as hereinbefore mentioned, and out of the proceeds arising therefrom to pay to my said son Richard P. Herrick the sum of $100 per month for his support and maintenance, •and for the support, maintenance and education of his daughter Emma Dude Herrick, during her minority, provided and upon the sole condition that after she attains the age of eight years she •shall return to the residence at that time of my wife or her relatives, residing within the state of Hew York, it being anticipated that her father may return and reside with her, but this clause .shall be operative only in the event that iny said grandchild shall be able to, and shall actually reside with her said relatives, either alone, - or with her father, as the case may be, and shall be gov•erned by their tuition, advice and directions, or by the advice and counsel of my executors, or a majority of them, until she attain the age of twenty-five (25) years. In case my said granddaughter shall neglect or refuse to reside with her said relatives during said period intermediate eight and twenty-five years of age, then all the provisions in this will contained relating to my said grandchild shall, during such period of refusal, be •deemed wholly inoperative and void, and shall be construed as if no clause of recognition were had of my said grandchild. In the •event of my said granddaughter surviving her father, Richard P. Herrick, then she shall receive one-half of his one-third part •of the residue of my estate hereinbefore given and devised to him on her arriving at twenty-one years of age, and the remaining moiety of his said one-third part shall be equally divided between my heirs at law, that is, to my said daughters or their several children as a class, in the event of the decease of either my daughters then surviving, share and share alike.
    “In no event shall my said son Richard P. be vested with, receive •or control of the of the said but the same shall be held as a trust estate only, and the income only paid to him. If from sickness or any other unavoidable necessity the: above mentioned provision shall not be sufficient for the support, and maintenance of my said son Richard P. and his daughter-Emma Dude, theh I direct my executors, or a majority of themr to apply such part of the accumulated interest or of the principal fund constituting such one-third part of the residue of my estate as shall, in the judgment of my executors, or a majority of them,, be necessary to supply the deficiency. In the event of the decease of my said son Richard P. leaving no issue surviving him, then I direct that the said one-third part hereinbefore given and devised,, in trust for him, shall revert to my heirs at law, then surviving, and be equally divided between them, share and share alilce.This provision shall not be construed as vesting any estate in my said son Richard P. Herrick, and the words heirs at law shall include my grandchildren then surviving as a class."

      Arthur M & W. A. Sutherland, for app’lts; David Hays, for-resp’ts.

       Affirming 35 St. Rep., 999; see 33 St. Rep., 1033.

   Andrews, J.

We find no basis for the claim that the trust, created by the fifth clause of the will terminated at the death of Emma Dude Herrick, the daughter of the testator’s son Richard. It is true that the duration of the trust is not expressly declared. But it was created primarily for the benefit of the testator’s son Richard, and the inference that it was to continue during his life is plain. The benefit of the daughter was incidental and subordinate to the main purpose of the testator. The income from the trust estate was to be paid to Richard in monthly payments, and it was left to him to apply it to the support of himself and his-daughter during her minority, and the condition annexed to her right to support and maintenance was apparently inserted as a means of securing a compliance by the granddaughter with the testator’s wish that she should reside with the relatives designated.

The death of the father is the event upon which the trust by necessary implication is limited, and the gift over is upon that event alone. The gift over on the contingency of the death of. Richard, leaving no issue surviving, is preceded by the clause, “in no event shall my son Richard P. be vested with, receive or control any part of the principal of the said one-third, but the same-shall be held as a trust estate only and the income only paid to-him.”

These two provisions seem to be conclusive that the trust waste continue during Richard’s life.

The rule that the gift of the income of property is a gift of the property itself, only applies when there is no limitation of time-attached to the gift. A gift of income followed by a gift over of the corpus on the happening of a contingency, or on the death of the beneficiary, by necessary construction - and without express-words, is a gift of the income for the intermediate period only.

The other question of construction relates to the claim of the two children of Richard P. Herrick by his second wife to share-in the legacy of $10,000 given to their half sister, Emma Dude-Herrick, by the fourth clause of the will. The claim of the appellants on this branch of the case is based on the general rule which has been declared in many cases that where a legacy is .given to a class of persons, distributable at a time subsequent to .the death of the testator, all persons in being at the time appointed for the distribution, who answer the description, whether bora before or after the death of the testator, are deemed to be objects •of the gift, and are entitled to share. Teed v. Morton, 60 N. Y., 506, and cases cited. This construction is placed on the presumed intention of the testator. In the case which most frequently occurs, of a legacy to A. for life, and, after his death, to the children of A., this presumption is founded upon strong probability, .since in such a case the immediate object of the testator’s beneficence is A., and it is natural to-suppose that the children of A. were made ultimate beneficiaries by reason of their relationship to A., and all bearing that relation when the fund is distributable would be within the motive. The rule applies whether the legacy (if future) is vested or contingent

In the one case those of the class existing at the death of the itestator take a vested interest subject to open- and let in persons of the class subsequently born and living at the time appointed for the division; in the other the happening of the event determines both the vesting and the persons entitled to take. See Tucker v. Bishop, 16 N. Y., 402.

But it is obvious that a testator may devote his gift to a whole ■class, or restrict it to certain individuals of a class; to persons of a class living at his death, or to such persons and all others who may belong to the class at the period of distribution. It is a ■question of intention, and where the question arises judicially it is to be determined by the intention declared by the will and the res ■gesto,. We think the intention in the will in question to include grandchildren not born at the testator’s death in the benefit of the legacies which fail by the death of any grandchild before the age of twenty-five, is negatived on the face of the will.

The testator made no direct provision for unborn grandchildren. He gave to each of his living grandchildren a legacy of $10,000. He says'to “each of my grandchildren.’’ and admittedly only living grandchildren take a primary legacy. The construction of these words is the same as if the testator had named each of the six grandchildren, in place of using the words “ each of my grandchildren.’’ The contention 'is that the meaning of the word "“grandchildren” used in the direct bequest is enlarged when the testator in the same clause provides for the devolution of the share of any grandchild dying before attaining the age of twenty-five years. The language of the provision is “in the event of the decease of either of said grandchildren prior to attaining the age ■of twenty-five years, I direct the share of such deceased shall be equally divided between the surviving grandchildren share and share alike.” The natural meaning and reading refers the words ■“surviving grandchildren" in this sentence to the survivors of ’the grandchildren"previously designated. It would wrench the manifest sense of the clause to give it any other interpretation. There is no doubt that the word “ survivors ” refers to a survivor-ship at the death of the grandchild, and not at the death of the-testator. But what survivors, is the question to be determined. The answer plainly is, survivors of the six legatees, all of whom were of the same degree of relationship with the testator and constituted a class, although not all the individuals who at sometime were grandchildren of the testator.

Reference to a paragraph in the fifth clause of the will shows with great distinctness that the testator, in framing his will, either' did not have grandchildren who might be born after his death in mind, or that be did not intend to provide for them. ' In the gift, over of the trust fund in the event of the death of Richard before-the death of his daughter Emma, he gives one moiety to Emma, and the other moiety to the testator’s daughters, making no provision whatever for any children Richard might have who should be born after the testator's death". Richard was then a young man and his remarriage was probable and did in fact occur. This-omission is qqite significant that the testator did not intend in the-gift over of Emma’s legacy on her death before twenty-five that." brothers or sisters who might be born after his death should share-in the distribution.

"We think the judgments below on this point follow the natural and reasonable interpretation of the will, and that the two children of Richard, born after the testator’s death, are not entitled to-any share of the legacy given to their half-sister Emma.

There are some other questions which arose on the accounting. They are fully considered in the opinion of the surrogate, and we-think were correctly decided.

We discover no error in the judgment, and it should, therefore, be affirmed.

All concur, except Earl, Oh. J., and Peckham, J.; not voting,, and Maynard, J., absent


author: Finch, J.

text:
    Maria Moeller, Adm’rx, Resp't, v. H. Austin Brewster et al., App’lts.

      (Court of Appeals,

      Filed March 1, 1892.)

    3. Negligence—Contbibttob,y—Evidence.
    Pounding with a hammer upon steam radiators while under high pressure for testing purposes is a dangerous and perilous act, and where an employe has been repeatedly warned oí the risk of doing so, and that one of the bases had exploded the day before, and continues to do so, he is guilty of contributory negligence.
    3. Same.
    Evidence that the presence and pressure of steam was essential to discover minute defects in the iron, but which also showed that the locality could be marked and then, the steam being turned off, the opening could! be closed with a hammer, does not show that pounding under pressure was-necessary.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment in favor of plaintiff.

      Walter S. Hubbell, for app’lts"; Eugene Van Voorhis, for resp’t.

       Reversing 40 St. Rep., 988. See also 33 St. Rep., 743.

   Finch, J.

There is in this ease not only an absence of any proof indicating that the intestate was free from negligence which contributed to the injury, but conclusive and uncontradicted evidence to the contrary.

Assuming, although it is hardly possible to say it, that there was some evidence, extremely weak and inconclusive, that the new bases of the circular radiators were not as strong to resist the usual steam pressure as they should have been, and that this was a negligent omission instead of an error of judgment consistent with reasonable care, it is yet certain that pounding with a hammer upon the radiators when under the steam pressure was a dangerous and perilous act, that the intestate was repeatedly warned of the risk and requested to desist, that one of the same bases had exploded under the jar of turning it over the day before, and that in spite of that experience, and the repeated warnings he continued to hammer the iron till the moment of the explosion. The proof is wholly without contradiction that such treatment of iron under steam pressure tends to weaken it and increase the peril of an explosion, and the risk of that hammering the intestate took after one explosion had already occurred, when he knew by observation and had been repeatedly told that the bases were different from those which he had been in the habit of testing, and that there was need of care.

Two answers are made to this proof. It is said that Widdowson, the foreman, who testified to the warnings, was impeached by showing that his evidence differed from that given on a former trial; but he was corroborated by Lewis, who told deceased to point the gun the other way; by G-lasser, who warned him that-if he hammered on the base in that way it would be liable to explode; by Mr. Lyon> the foreman, who told him explicitly that he “ should not hammer the bases with- the steam on or he would get blown up, and he must not do it,” and to some extent by James Blackwood. There was no evidence to the contrary, and not the least reason to doubt the fact of these orders and warnings. The jury had no right upon some imaginary theory to totally disregard the proof.

But it is said the evidence showed that pounding under pressure was necessary. It failed entirely to go to that extent. It did show that the presence and pressure of the steam was essential to discover minute defects in the iron, but it showed also that no pounding was necessary to the discovery, that the locality could be marked with chalk or with a tool, and then, with the steam turned off, the “peening ” could be done and the minute opening closed with the hammer or the punch. It was, perhaps, not quite so convenient a way and took more time, but was entirely possible and avoided the very act which contributed tp the explosion. The principal witnesses for the plaintiff - admitted that, and there was no dispute about it. The learned counsel for the plaintiff, claiming that there was proof- of such necessity, makes three references to the testimony. The first is to the evidence of Mr. Light, where he said: “In most of the castings it was the custom during the time that I was there to peen these small holes while the steam, was on.” But the custom was one thing and the necessity another, and the same witness had previously said: “ It can also be done by removing the steam or water and peening, and then let it on again.” The next reference is to the remark of the same witness: “ Most of the peening was on light casting, and it was done with the pressure on and sometimes shut off.” The third reference is to the cross-examination of Widdowson, where he said: “ If the leaks were very small you could tap them with the hammer and stop them in that way with the steam on; you can’t tell exactly where they are if there is no steam in there to tell.” That is true, of course. It is the steam which shows the leak, and that being marked the steam can be shut off and the peening done. The same witness had just before said: “It was the constant practice with him to peen the small holes with the steam on; that was what called my attention to stop his doing it.” Those' are the respondent’s references, and they raise no issue of a supposed necessity, and the direct proof is to the contrary. It is absurd to suppose that four skilled workmen would have told him not to peen with the steam on if it could be done in no other way, and that he should have assented to the direction, saying it was all right, instead of protesting against an order which made his work impossible.

So that neither answer to the evidence of contributory negligence has any foundation in the facts of the case, and it stands in the proof established and undisputed. Unless we abandon the rule wholly, and allow the sympathy of a jury to override the evidence and the law, we must say in this case that the plaintiff failed to show a right of recovery.

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

All concur.


author: Gray, J.

text:
    In the Matter of the Application of The City of Buffalo, for the Appointment of Commissioners, etc.

      (Court of Appeals,

      Filed March 1, 1892.)

    1. _ Eminent domain—Abuttinb owner.
    Where an abutting owner has the fee of the land in the street, he is vested with aright to defend against and to enjoin a use of or an encroachment upon the street, under legal or municipal authority, for purposes inconsistent with those uses to which streets should be or have been ordinarily subjected, unless just compensation is provided to be made; nominal damages will not suffice.
    (New York city cases distinguished).
    2. Same.
    If the abutting owner does not own the fee in the street he has no right to compensation and is remediless against a taking of the street under legislative or municipal sanction, for the other purposes, unless such other uses be unreasonable, and in their nature so improper as to obstruct a free passage upon the street: or to amount to a nuisance; or to deprive him of the enjoyment of easement of light, air and access, when he would be entitled to equitable relief.
    Appeal from judgment of the superior court of Buffalo, general term, affirming order of the special term, appointing commissioners to ascertain and report the just compensation to be paid to owners and" persons interested in lands proposed to be taken,

      Wm. F. Mackey, for app’lt; John Gr. Milburn and Frank 0. Ferguson, for resp't.

       Affirming 39 St. Rep., 417.

   Gray, J.

In this proceeding the city of Buffalo sought to acquire the fee a public place, or street, authority conferred in a section of the city charter, which reads as follows, viz: “ The city may take in fee for public streets, alleys and squares the lands situate within the boundaries of any of the public streets, alleys and squares, in said city, which have been, or shall have been used as public streets, alleys or squares for more than ten years.” The public street affected by this proceeding was know as “ The Terrace ” and had been concededly in use as a street for a great number of years, and prior to the purchase by the respondents of their properties. Concededly, also, the respondents own the fee of the portion of the street in front of their premises.

The object of the city in seeking to acquire the fee in this street is not disclosed and it is not very material. A first report by the commissioners awarded nominal damages to the owners of the fee. of the land in the street; but upon its coming before the court for confirmation, tad being then objected to, it was ordered to-be set aside, on the ground that the commissioners had adopted an improper rule of appraisement in awarding only nominal damages and the report was sent back to them for further consideration. By their new report substantial damages were-awarded, and, being confirmed by the court below, the sole-question presented upon the appeal here is whether the respondents: are entitled to other than nominal damages. The point made by counsel for the city'is that the respondents, having acquired the fee of the street in front of their property subject to a perpetual public easement therein, acquired only the naked title to the fee, and, therefore, should be entitled to nominal damages only. This position the counsel for the city seeks to fortify by a reference to many authorities in this state and elsewhere; the most; weighty of which seem to be cases arising in street opening proceedings in New York city. 1 Wend., 262; 2 id., 472; 8 id., 85; 18 id., 411; 19 id., 128; 1 Hill, 189. It may be well to> consider the nature of these New York city'cases. They were.decisions by the old supreme court and the court of errors, and were made in proceedings taken on .behalf of the city of New-York for the opening up of streets, and upon applications to set. aside or to confirm the commissioners’ reports as to damages.. The question was whether the city should pay the full value of the lands taken for the street, and it was held that only nominal damages should be awarded." The decisions proceeded, however,, upon the theory that the right to claim damages, upon the opening of the streets by the city, was in the original grantor, or former proprietor of the lands, who had made sales of parcels, or-lots, bounded upon streets as projected upon the city surveys; and upon maps. It was held that their grantees had acquired no, title to the land occupied by the street, but had only acquired by a conveyance on, or bounded by, streets an easement or right of way in the street As to the former proprietor of the land, he was considered to be entitled only to nominal damages ; because he must be deemed to have engaged to give the ground for the street whenever the city required it, or to nave adopted the street as it had been previously laid out by public authority.

It should be observed, .in considering these cases, that Manhattan Island had been surveyed under acts passed very early by the legislature of the state of- New York. This legislation provided for and regulated the future opening by the city of streets and avenues as surveyed and laid out in anticipation of the-growth of that municipality, and it was also provided that, as the result of street opening proceedings, the fee should at 'once vest in the city. The compensation for the land' the court decided to be due to the former proprietor who had granted,, the lots upon the streets, and not to the purchasers from him; but this compensation should only be nominal, and as for the naked fee; because an easement or right of way was vested in the purchasers, under a dedication of the land in the street, and because there was an implied agreement on the part of the former owner to give the land for the street when the city, by instituting proceedings to open it, thereby adopted it as proposed. He was deemed to have granted with reference to existing legislation, and in anticipation of the future opening of the streets by the city. He was deemed to have received an enhanced value from his grantee by reason thereof, and from his having dedicated the land to street purposes. The pur.chasers were held to have taken no interest in the street other than that of an easement or right of way. Apparently the principle which the decisions undertook to work out was that of protecting the abutting owners against being charged for the value of the fee taken by the city, and the court was con-cerned with the relative situations of the original grantors and these abutters. In Bissell v. The New York Central R. R. Co., 23 N. Y., 61, the question upon the case was whether certain conveyances between the years 1828 and 1845, conveying lots in the city of Rochester, on either side of Brie street, carried lands to the center of that street It was held that where a conveyance was' bounded upon, or by a street, it carried the fee to the center of the street as part of the grant, notwithstanding the authority of the New York city street cases, which were there, and are- here, referred to. It .is a question how far the Bissell -case impairs the force of the authority of the decisions in the New York city street cases; for they went upon the theory that the grantee acquired no title to the land in the street at all. But however that may be, and independently of. such considerations, I think that the New York city cases were influenced by an existing state of facts which are not paralleled here. . .

The proceedings here have no reference to any original dedica- - tian which contemplated the future adoption of the street by the-city authorities and the vesting of the fee in the city as a consequence of the institution by them of legal proceedings. If or do they rest upon any legislation existing at the time of the grants by the former proprietors, or in view of and subject to which sales might be deemed to have been máde. The record is barren of evidence as to the authority by which the street in the present case came as such into the public use, or as to whether and how it was ever dedicated by the owner of the land. What we do know is that these respondents acquired the fee of the land in the street opposite their premises, and that the right of the city to take it was conferred by subsequent and recent legislation with respect to the municipal charter. I do not think that it is needed, or that it would be profitable to review the many cases in which the rights of owners of property in and abutting upon the street have been considered. The result has been to generally define and assign their particular interests and rights. The mere abutter, with no ownership in the bed of the street, is entitled to protection against an interference with certain easements in the street. They constitute property, of which neither legislature nor municipality can deprive him without compensation. Kane v. N. Y. El. R. R. Co., 125 N. Y., 164; 34 St. Rep., 876.

It is unquestionable, however, that the ownership of the fee of the land in a street has a substantial value to the abutting property holder in the degree of control it gives to him over the uses to which the street may be put. It vests him with the right to defend against and to enjoin a use of, or an encroachment upon the street, under legislative or municipal authority, for purposes inconsistent with those uses to which streets should be or have been ordinarily subjected, unless just compensation is provided to be made. His ownership of the land in the street was subject only to the public easement therein as a highway.

In the absence of such a provision for compensation, the taking of the street for some new, or additional and inconsistent use would be illegal. But, if the abutting property owner does not own the fee in the land of his street, he has no sucli right to compensation and is remediless against a taking of the street under legislative, or municipal, sanction for other uses; except such other uses be unreasonable and, in their nature,. so improper as to obstruct a free passage upon the street, or to amount to a nuisance, or to deprive him of the enjoyment of easements of light, air and access. As to any such improper or unreasonable use of a street the abutting property owner would undoubtedly have the right to come into a court of equity and to claim its intervention to protect his general rights. In this case no reason appears, or suggests itself, to show that the public good and advantage will be better promoted by a change of title from the present owner to the municipal government For all governmental purposes the existing easement and public right of passage in the street are sufficient and will be in the future; unless there shall be some purpose to impose an additional burden upon the street; in which case the substantial nature of the respondents’ interest in opposing the award of merely nominal damages becomes very clear indeed. The fee of the land has a value to him; it seems valuable to the municipality. He has possible interests at stake to protect; the municipality may have other interests to advance.

It is authorized by law to take from him his title and he cannot defeat the proceedings, but the law requires just compensation to be made to him. What is there in the law, or in reason, which disentitles him to the receipt of substantial damage? I see nothing and I am adverse to holding that the exclusive rights in the land occupied by the street, which he possesses subject only to the public easement, can be taken from him by governmental authority without just compensation, to be measured by the value of these rights to him. I think that, within the circumstances of the case, the respondents were entitled to be awarded, as the compensation provided to be made in the act, upon the taking by the city of the fee of the land in the street in front of their premises, such substantial damages as would be ascertained by measuring the effect upon the value of their property of such a deprivation.

The order appealed from should be affirmed, with costs.

All concur.


text:
    In the Matter of Proving the Last Will of Virginia S. Kaufman, Deceased.

      (Court of Appeals,

      Filed March 1, 1892.)

    Will—Married woman—Revoked by marriage.
    The will of a widow is revoked by her subsequent marriage. She is an. “unmarried woman” within the meaning of the statute.
    Appeal from judgment of the supreme court, general term, first department, reversing decree of surrogate refusing probate to an alleged will.

      Henry J. Meinhard, for app’lt; Morris S. Wise, for resp’t.

       Affirming 40 St. Rep., 550.

   Gray, J.

This will was made by the deceased while she. was the widow of one Dillon. She subsequently intermarried with Kaufman and died, leaving him surviving. The executor appointed in this will offered the instrument for probate: but was opposed in his proceedings by Kaufman, who claimed that the will had been revoked .by testatrix’ marriage with him, and who has been sustained in that claim by the surrogate and the general term. In their decisions those courts were clearly right, and we should say nothing here, in disposing of this appeal, were it not for the statement that there is no authoritative decision by this court upon the particular question. We should suppose that the case of Brown v. Clark, 77 N. Y., 369, was a sufficient authority in point; although the testatrix in that case was- a woman who had never been married at all. For any discussion as to the operation of the acts passed by the legislature of this state in re-lotion to married women and their effect in conferring upon them testamentary capacity, reference may be had to that case.

The appellant attempts an argument upon the meaning to be given to the words “ unmarried woman ” in the statute, and seeks to give substance to it by reference to some cases arising upon the construction of wills and where the discussion bore upon the presumed intention of the testator in his gifts or limitations of property. But such cases can have no influence upon the question of what is accomplished by the Revised Statutes in the provision that “ a will executed by an unmarried woman shall be deemed revoked by her subsequent marriage.” Pt. 2, chap. 6, tit. 1, art. 3.

It was a recognition of the common-law rule which, in the operation of the statute upon the civil status of the married woman, is unaffected .by the enlargement of her legal capacities. At common law the feme sole, in- marrying, merged her legal identity in that of her husband. In the unity of person, caused by the marriage relation, the wife lost the control of her property, and hence of her will. Under our statutes that identity of person is only affected, and separate legal capacity is only conferred upon the wife to the precise extent mentioned in the enabling acts. As we have repeatedly held, the common law has been no further abrogated than is read in the statute. Nothing has been enacted which alters the provision that her will is revoked by a subsequent marriage. There is sufficient reason for the continuance of the rule in the changed relations of the woman. Her new status as wife induces the presumption of a new testamentary intention, and demands a new testamentary act. The unmarried woman referred to by the statute must be defined according to that rule of statutory construction which requires that the words used in legal enactments shall be understood and taken in their ordinary and familiar significance. So read, the unmarried woman of the statute is the woman who is not in a state of marriage. That the legislature could have had any other idea is both inconceivable and unreasonable.

The judgment below should be affirmed, with costs to the respondent as against the appellant.

All concur.


text:
    Michael Kavanagh, Resp’t, v. A. L. Barber, App’lt.

      (Court of Appeals,

      Filed March 1, 1892.)

    1. Nuisance.
    Plaintiff and his family had, for fourteen.years, occupied a house owned by his wife. Defendant erected a building opposite for the manufacture of paving and roofing materials, the fumes arising from the asphalt penetrating the house and subjecting plaintiff and his family to great annoyance and discomfort." The husband supported the family.' Held, that a private action could not be 'maintained by the husband for the discomfort caused by the offensive vapors.
    2. Same—Parties.
    No private action can be maintained for corruption of the air by offensive odors, except by a plaintiff who is the owner of, or has some legal interest as lessee or otherwise in land, the enjoyment of which is affected by the nuisance.

      Appeal from judgment of the supreme court, general term, fifth department, affirming judgment for plaintiff entered on verdict of jury.

      Sheldon T. Vide, for app’lt; S. 0. Day, for resp’t.

       Reversing 35 St. Rep., 430.

   Andrews, J.

The trial judge instructed the jury that if they found that vapors arising from the manufactory of the defendant constituted a nuisance, the plaintiff was entitled to recover to the extent of the damages sustained. by him in the diminished enjoyment of the premises he occupied. The evidence justified a finding that the fumes arising from the asphalt penetrated the house and subjected the plaintiff and his family to great annoyance and discomfort. The' air of the neighborhood was- tainted with the odor, and there is some evidence that the plaintiff’s wife and daughter became ill in consequence. The main damage, however,. sustained by the plaintiff, according to the proof, was in the personal discomfort to which he was subjected in the occupation of the house. The case in its legal aspects is novel.

The house was owned by - the plaintiff’s wife and had been occupied for fourteen years b/*the plaintiff and his family, and was so occupied when the manufactory of the defendant was built. The plaintiff, so far as appears, had no lease or other interest in the realty. The family, as is to be inferred, - lived in the house by sufferance of. the wife. The possession of the house followed the legal title, both the occupation and the possession, in a legal sense, was that of the wife and riot of the husband. Martin v. Rector, 101 N. Y., 77.

. The husband supported the family. The question presented is whether under these circumstances a private action can be maintairied by the husband for the discomfort caused by the offensive vapors. We find no precedent for such an action by a person so situated.

Mr. Justice Blackstone defines a private nuisance to be “ anything done to the hurt and annoyance of the lands, -tenements or hereditaments of another,” which definition as said by Judge Cooley, Cooley on Torts, 565, embraces not a mere physical injury to the realty, but any injury to the owner or possessor as respects his dealing with, possessing or enjoying it

Interferences with public and common rights, creating a public nuisance, when accompanied with special damage to the owner of lands, also gives a right of private action. The public nuisance as to the person who is specially injured' thereby in the: enjoyment or value of his lands becomes a private nuisance also. Upon the evidence in this case on the part of the. plaintiff the defendant maintained a public fariisance. The air of the neighborhood was for a long distance infected with the disagreeable odor of the asphalt and rendered residence within the area uncomfortable and life therein less enjoyable. Upon these facts the plaintiff's wife, who owned and lived in the premises, sustained an actionable injury. Mills v. Richards, 9 Wend., 315; Francis v. Schoellkopf, 53 N. Y., 152.

The trial judge charged the jury that the plaintiff could not re•cover for any injury to the premises, or for diminished rental value, for the reason that the title was in the wife. But the wife, who both owned and occupied the realty, had her action for damages for the special injury, in being deprived of the reasonable enjoyment of her property as her dwelling by reason of the nuisance.

The judgment in this case adjudges that the husband also can maintain an action fpr the interference with his enjoyment of the premises. The principle upon which the judgment proceeds, if •sustained, will greatly extend the class of actionable nuisances. We have found no case where a private action has been maintained for corruption of the air by offensive odors, except by a plaintiff who was the owner of or had some legal interest, as les.-see or otherwise, in land, the enjoyment of which was affected by the nuisance. The cases ate numerous of actions on the case for nuisance created by a noxious trade, producing offensive and noisome odors, smoke or noises, but from the case of Morley v. Pragnell, Cro. Car., 510, down, they have been brought and maintained (so ■far as we can discover) by the owner or lessee of the realty affected ■by them. See Wood on Nuisances, 577.

We perceive no legal distinction betwen the plaintiff’s situation and that of a lodger or guest in the house, or why, if the plaintiff can maintain an action, each member of the household cannot maintain one likewise for her or his separate injury of the samé kind. The plaintiff’s situation appeals more strongly per.haps than the others for an extension of the rule as heretofore understood. But there was a public remedy open to him by public prosecution, and we think the public interests would not be subserved by opening the door to actions of this character, where the claimant has no property right to be protected from Infringement

The language of Chief Justice Shaw in Quincy Canal Co. v. Jiewcomb, 7 Met, 276, is appropriate here. “He cannot have an .•action because it would lead to such a multiplicity of suits' ais to be itself an intolerable evil.”

We think the judgment is erroneous.

Judgment reversed, and new trial granted, costs to abide •event

All concur, except Maynard, J., absent.


author: Peckham, J.

text:
    In the Matter of the Settlement of Accounts of Catharine Blauvelt et al., Ex’rs.

      (Court of Appeals,

      Filed March 1, 1892.)

    1. Will—Construction.
    Testator, by Ms will, gave to his wife during her widowhood the use of all his estate, with full power of sale “ as to her shall seem just," and after her death gave one-half of the estate in trust for each of his daughters. Held, that the widow took a life estate with power to sell and the interest of a life tenant in the proceeds of such sale.
    3. Executor and administrator—Liability of.
    The widow, a co-executrix with her daughter, sold a portion of the real estate and invested part of the proceeds so as to he lost. Reid, that thadaughter was not liable, as she. never received the proceeds, and the estate was sold by the mother not as executrix, but as the donee of a power of sale.
    3. Same—Accounting—Rights of remaindermen.
    'Neither of the executrices would be liable for such loss upon an accounting, as the widow was entitled to the use of all the property during life;-, although the remaindermen could take such proceedings as were just to-compel the life tenant to give security for the safety of the proceeds of the; realty.
    Appeal from order of the supreme court, general term,, second department, affirming decree of surrogate made on an accounting.

      Thaddeus D. Xenneson, for app’lts;. Abram A. Demarest, for resp’ts.

       Reversing 39 St. Rep., 774.

   Peckham, J.

We have no doubt that the widow took but a; life estate in the property of her husband under his will. The-permission and authority given to her in-such will to sell and'dispose of the real estate of the testator “as to her shall seem just,”when taken in connection with other provisions of the will, plainly restrict her power in the proceeds arising from the sale of such real estate to that of a life tenant only. The proceeds take the-

5lace of the realty and are held by the same tenure. The will isposed of the entire estate of the testator after the death of the widow.

The surrogate and the general term have held the executrices (one of whom was the widow and the other was the daughter of the testator) liable for losses sustained by investments made by the widow of moneys which weré the proceeds of the sale of a portion of the real estate by the widow under the power of sale given to her by the will.

The surrogate found that the widow had sold a portion of such real estate and’ had herself received the proceeds of such sales,, amounting to about $24,000.

A portion of this sum was so invested by her as to be lost, and the surrogate has held that it was lost under such circumstances; as to hold both executrices liable as for a negligent and improper ■disposition of the funds of the estate.

In any event so far as the daughter, executrix, is concerned we-think this decree erroneous. The daughter never received the-proceeds from the sale of the real estate. Such estate was sold by the mother, not as executrix, but as the donee of a power of sale-contained in the will. The proceeds were received by the mother and not by the daughter. The- mother was entitled to receive them as representing the real estate which she had sold, and she had a life estate in them by virtue of such will. As the daughter never received these proceeds either in fact or in law, and as' she was guilty of no negligence in permitting her mother to receive the proceeds of the sale of the real estate which the mother sold, by virtue of the power given her by the will, there is no principle upon which the liability of the daughter as executrix can be-maintained. Croft v. Williams, 88 N. Y., 384; Paulding v. Sharkey, id., 432; Bruen v. Gillet, 115 id., 10; 23 St. Rep., 780.

In this proceeding, however, which is one for an accounting of -executors before the surrogate, we do not think either of the executrices is liable for these losses', and the decree must be reversed •as to both for that reason. The widow was by the terms of the will solely entitled during her life to the use of all the property «of the testator. When she sold the real estate under the power ■of sale given to her by the will, she received the proceeds, not as -executrix, but as life tenant, and as such entitled to such proceeds as representing the realty. If she had continued to hold the realty, she would have had the right to collect and retain the rents -and profits as owner of the life estate, and not as executrix, and she would have been liable to account to no one. Having sold ;the realty, the proceeds thereof represent and take the place of such realty, and she is entitled to the interest upon such proceeds ■during her life, as life tenant and not as executrix. In this view she occupies as to the proceeds of the sale of the realty much the ■same position as a tenant by the curtesy does in regard to the proceeds of land which has been sold, and in such case it has been held that the moneys represent the land. In re Camp, 126 N. Y., 377; 37 St. Rep., 767.

It might be that if the real estate were to be sold by the executors, as they should deem just, and if the proceeds of the sale were to come into their hands first and then be paid over to the tenant for life, it would be the duty of such executors before paying -over such funds to the life tenant to see to it that he gave security, if there were any doubt as to his solvency. If in such case the ■executor neglected to ask or exact security, it possibly might be that he would be liable for a subsequent loss caused by the insolvency of the life tenant. This is no such case. The life tenant (the widow of the testator) had by the terms of the will the right, as to her seemed just, to sell this real estate and to give deeds therefor “ in the same manner as I could have done if living.” She thus had a power to sell without even notifying the executors, and she must therefore have had the power to receive the proceeds of such sale without giving any notice to them. The ■executors as such never had any power over, or right to demand the possession of such funds or to compel an accounting in regard to them. I have no doubt that those who were entitled in remainder to the principal arising from the sale of the real estate would, if aware of the sale, have had the right before the money was paid over to ask a court of equity to make some -condition in the way of securing the safety of the fund before the tenant for life should be permitted to enjoy its actual possession. This, however, would rest upon the jurisdiction which such court has in relation to the custody of funds by those who have but a beneficial interest therein and not an absolute title and where such title devolves upon persons in remainder. In re Camp, supra, 385.

What power such court now has under the facts herein is not the question before us. The executors as such, it seems clear, have no interest in the matter. There is but one contingency in which they would have anything to do with the real estate or its proceeds. That contingency would arise in case it were found necessary to sell the realty in order to pay the debts of the testator. In such case they would, under the provisions of the statute, apply for leave to sell the real estate in order to pay such debts.. There were no debts and hence they had no power to-apply to sell or to sell the realty. As executrices it was in noway their duty to discover whether the widow had sold the real estate under the power of sale confided to her, or whether she-had received the proceeds thereof without giving security.

The remaindermen have the right to take such proceedings as-they may be advised in relation to compelling security to be given by the life tenant for the safety of the proceeds of the sale of the realty in the hands of such life tenant, and for its forthcoming at the proper time. What those proceedings should be,, and what powers a court of equity has under the circumstances developed here, are questions not now before us, and upon which it would be inappropriate for us to express in advance any opinion.

For the reason that the executrices are not responsible as such in this proceeding before the surrogate, in regard to the proceeds-arising from the sale of the real estate by the widow, the order of the general term affirming the decree of the surrogate as to those funds is erroneous, and such order and decree must both be reversed and the record remitted to the surrogate for further proceedings in conformity with this opinion, with costs to the appellants against, the respondents in the supreme court and in this court.

All concur, except Maynard, J., absent.


author: Per Curiam.

text:
    Henry W. Thomas, Adm’r, Resp’t, v. Gerd. H. Henjes, App’lt.

      (Court of Appeals,

      Filed March 1, 1892.)

    Negligence-Pier owners.
    W. and defendant owned adjoining docks, and upon W.’s dock was a. derrick which was used in unloading boats at defendant’s dock. Defendant let the dock to M. for unloading stone, and charged so much a’boatload. There was no evidence that when he let it only his part was to be-used, or that any arrangement was made with. W. Held, that the jury-might find that those who came to the dock to deliver stone to M. came-by defendant’s invitation, and as to them the derrick was in defendant’s possession, and if it-was- unsafe, and caused injury to a person having aright to be on the dock, defendant was liable if he knew, or ought to have known, of its condition. 0
    Appeal from judgment of the supreme court, general term,, second department, affirming judgment in favor of plaintiff,, entered upon verdict of jury.

      H. B. Hubbard, for app’lt; James C. Church, for resp’t

       Affirming 42 St. Rep., 28.

   Per Curiam.

The line between the property of West and the-defendant passed through the dock longitudinally. Boats which came to the dock seem to have been moored along the outer side of the dock towards the bay, alongside the defendant’s part of the.dock. The defendant let the use of the dock to Morrissey for unloading stone and charged so much for each boat load. There was no suggestion when he made the bargain with Morrissey that any one else had any interest in the dock, or that only the part actually owned by the defendant was to be used. The relation between West and the defendant in respect to the occupation of the dock is left wholly unexplained by the evidence. It does not appear that West ever used his share of the dock for unloading, or received anything for its use, or that any arrangement whatever existed in respect to its use between him and the defendant. Morrissey had a right, under the circumstances, to assume that his privilege extended to the use of the whole dock, in the customary way. The jury might properly find upon the-evidence that those who came to the dock to deliver stone to Morrissey came by the defendant’s invitation, and as to such persons-the dock at the point where the boat was moored, including the-part occupied by the derrick, was in the possession of the defendant This imposed the duty upon the defendant to keep the-part of the dock where the boat was moored in a reasonably safe-condition, and if the derrick, although on the part of the dock owned by West, was an unsafe structure and liable to cause injury to persons having a right to be on the dock, and did, in fact, occasion injury to a person so situated, the defendant was legally responsible if he knew, or ought to have known, of its unsafe-condition. The derrick that injured the intestate was, as the evidence tends to show, unsafe and dangerous. The defendant did not erect it, nor did he receive any profit from its use. In fact it-appears that it never had been used except on one occasion about, a year prior to the accident in question. The son of the defendant, erected it at his own expense and for his own purposes.

The question of the defendant’s liability does not, we think, turn upon the question whether the derrick was on West’s side of the dock, or whether the defendant erected it or used it

Morrissey and those who came to the dock to deliver stone by the permission of the defendant under the license'to Morrissey had a right to assume, in the absence of explanation, that the whole-dock was in the possession and under the control of the defendant, and if they were injured by the unsafe condition of the dock without negligence on their part, it would not constitute a defense to show that the legal title to the part of the dock where the unsafe condition existed was in a third person, or that in fact the-defendant had no legal right to go upon or repair it

The defendant assumed a responsibility in thus using the dock commensurate with the relation which they were justified in assuming he had to it

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Earl, Ob. J., not voting.


author: Maynard, J. Earl, Ch. J.

text:
    Henry S. Akersloot, Resp’t, v. The Second Avenue R. R. Co., App’lt.

      (Court of Appeals,

      Filed March 1, 1892.)

    -Negligence—Street railroad.
    It is the duty of a conductor of a street car to see that a passenger lawfully entering the car is in a place of safety before giving the signal to the driver to proceeed, and it is negligence for him to start an open car while a five year old child - and an attendant are passing from the step at ' the side and about to enter and take seats.
    (Earl, Oh. J., Finch and Gray, JJ., dissent.)
    Appeal from judgment' of the supreme court,-general term, first department, affirming judgment for plaintiff on verdict of -a jury.

      Payson Merrill, for app’lt; Clifford A. H. Bartlett, for resp’t

       Affirming 30 St. Rep., 146.

   Maynard, J.

There was sufficient evidence to go to the jury upon the issue of defendant’s negligence. The jury could properly .give credence to the testimony of the witness Kerkow, who was in a better position to know just how the accident occurred than ..any other person examined upon the trial. If she was to be believed, the conductor signalled to the drived to go ahead before :she had reached a place of safety upon the car with the plaintiff's five year old child, and the car immediately started with a jerk, which threw her upon the seat and the child into the street and under the car where his right leg was so crushed that amputation of a portion thereof became necessary.

The starting of the car was under the control of the conductor. "It was his duty to see that a passenger, lawfully entering the car, was in a place of safety before giving the signal to the driver to proceed. The car was an open summer one with seats running -cross-wise and a place between the seats at the sides for the passengers to enter by means of steps running the entire length. If the car started as the plaintiff’s child and its attendant reached the topmost step, which was on the level.with and a part of the floor v-of the car, there would be danger that the sudden motion imparted to it, while they were .in that position, would throw one ■or both of them to the ground, or otherwise 'cause them injury, .and the defendant owed .them a duty, in this respect, which the jury may have found was disregarded by their agents and servants who then had charge and control of the car and its movements.

• The judgment should, therefore,, be affirmed, with costs. ■ ■

Earl, Ch. J.

(dissenting)—In May, 1887, the plaintiff’s son ■George, then about five years of age, went with Miss Kerkow, a woman of mature age, to the corner of Second avenue and' Thirtieth street in the city of New York to take passage on one ■of the defendant’s cars. “ She signalled to the car and it stopped. It was an open, summer car with seats running crosswise, and' it ■could be entered by steps on the sides. She stepped- into the ■car with George, holding him by the hand, and after they were in the car and before they were seated it started, as claimed by her, with a jerk, and she fell in a seat and George fell out of the-car and was seriously injured. ' Subsequently the plaintiff brought this action to recover for the pecuniary loss caused to him by the-injury to his son.

Miss Kerkow was the sole witness on the part of the plaintiff to prove the circumstances and occasion of the accident. Her testimony is clear that she was in the car with George before it was started.. She does not say what occasioned the jerk or how violent it was. She simply states that the jerk was such that she fell into the seat of the car and George fell out of the car, or was thrown out. There is no evidence that the horses were mismanaged, or that- the driver was careless in starting them,- or that he started them with more energy .than was necessary at the time and place. It is difficult to believe that the horses, could start a heavy car standing still with a very severe jerk. It. is true- that she ¡fell down in her seat and that George fell out of the car; but we do not think that that circumstance furnishes-evidence of itself of culpable want of care on the part of the-driver of the car. When a car is stopped -long enough to permit a person desirous of becoming a passenger to safely enter it he is then in a safe place and must take some care of liimself so-that he will not be thrown down by any ordinary management of the car. Hpon this evidence as it now appears we are unable to say that there was any negligence which can cast the pecuniary consequences of this most unfortunate accident upon the defendant.

The judgment should be reversed, and a new trial granted, costeto abide the event.

Judgment affirmed, with costs.

Andrews, Peckham and O’Brien, JJ., concur; Earl, Ch. J.r reads dissenting opinion, with whom Finch and Gray, JJ.,-. concur.


text:
    Malvina Edwards, Resp’t, v. John Woods, App’lt.

      (Court of Appeals,

      Filed March 1, 1892.)

    1. Execution—Exemption from—Married women—Laws 1860, chap. 90..
    Where a store keeper sells goods, clothing and supplies to a family, each member thereof making purchases, and all charged to the husband’ by his authority, he cannot, after obtaining a judgment against the husband, on execution against the latter, seize the property of the wife on the-ground that the judgment included the value of the articles purchased by the wife “ for the support of herself and her children,” and so made her liable under Laws 1860, chap. 90.
    2. Same.
    _ In order to render a wife’s property liable for goods so purchased the-liability must first "be adjudged in an action to which she is a party, and in. which she has an opportunity-to be heard.
    Appeal from judgment of the supreme court, general term, fifth department, denying motion for new trial, and ordering judgment, for plaintiff on verdict. »

      James Harmon, for app’lt; J. N. Hammond, for resp’t,

       Affirming 37 St. Rep., 968.

   Andrews, J.

The act of 1848, for the more effectual protection of married women, declared that the property of a married .woman “shall not be'subject to*the disposal of her husband, nor be liable for his debts.”

By the act of 1860, chap. 90, this exemption was qualified as follows: “Except such debts as may have been contracted for the .support of herself or her children by her as his agent.”

The execution under which the defendant levied upon and sold the horse was issued upon a judgment obtained in' an action against the husband of the plaintiff, upon an account for merchandise consisting of goods, clothing and supplies purchased for the use of the family of the judgment debtor, consisting of him■self, his wife (the present plaintiff) and his daughter. The ac■count was an ordinary store account opened at a store in the place where the family resided, and each member of the family participated in making purchases, and by whomsoever made- the articles.purchased' were charged to the husband by his authority.

It was shown on the trial of the present action that two-thirds •or more of the account was for articles' purchased for the wife ■(the plaintiff) for her personal use or the use of her daughter, and that the husband personally purchased not more than one-third in value of the' articles charged.' It is claimed that as the judgment against the husband included the value of the articles purchased by the wife “ for the support of herself and her children,” as the agent of her husband, her property was liable to be taken on the execution. This contention cannot be supported.

The debt upon which the judgment was recovered was the ■debt of the husband. The wife was never liable as debtor for any part of it. The statute of 1860 charges the property of the married woman for the debts of the husband in the case specified. But the 'remedy is in equity, or at least the liability must first be adjudged in an action to which she is a party and in which ;she has an opportunity to be heard before her property can be taken to satisfy her husband’s debt

Neither the judgment nor the- process on which the horse was taken was against the plaintiff. The horse was not taken or •sold as the husband’s property, but as the property of the wife. The defendant in the execution and -the officer holding the process undertook to determine for themselves whether the conditions existed under which the wife’s property was made liable ior the husband’s debt, and having determined that it .did, they proceeded to- enforce the charge by selling the property. This they could not do. The analogies of the- law require that the liability of the wife’s property should be first adjudicated before it shall be taken for her husband’s debt. Here not only.was this not done, but the property was seized and sold on a judgment which made no distinction between the part of the account which was contracted by the husband and the part contracted' by "the wife as his agent

It is» unnecessary in this case to define the scope of the exemption in the act of 1860. Does it apply to a case where the wife living with and being supported by her husband purchases on his account and with his consent articles for the common use of the members of the household, or is it the true construction of the •statute that the agency referred to is that which the law implies to enable a wife to supply herself and her children with necessaries when the husband has abandoned her and refuses to furnish them? In view of the custom of families, when the husband leaves the management of the household to his wife and commits to her the discretion to make purchases for the house and to supply her wants and those of her children, the broad construction ■claimed for this section of the act of 1860 opens a wide door of •departure from the policy of the acts for protecting the property •of married women.

It is sufficient to uphold the judgment in this case, that the -charge imposed by the act of 1860 is not self-executing, but must be enforced, if it exists, in proceedings instituted for that purpose preliminary to the taking of the property, and that an officer cannot, upon an execution against the husband, lawfully seize the ■property of the wife in the absence of any adjudication that the ¡property is liable for the debt ,

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


text:
    The People, Resp’ts, v. Joseph Wood, App'lt.

      (Court of Appeals,

      Filed March 1, 1892.)

    •Criminal law—Indictment—Evidence.
    Where an indictment names the town and county in which the crime is charged to have been committed, but the proof fails to show that such town is in the county named, the court .will take judicial notice of that fact.
    Appeal from judgment of the Warren county oyer and terminer, convicting defendant of the crime of murder in the first ■degree,

      James M. Whitman, for app’lt; Charles R. Patterson, for resp’ts.
   Finch, J.

Four unfounded objections, admitting of brief and •easy answers, and in no respect justifying the delay of this appeal, •disclose themselves from a printed case of 1,400 pages, prepared .at the expense of the county of the trial. The prisoner’s counsel raises no question of fact He concedes explicitly that upon the proof the verdict is not to be assailed either as against the evidence or as unsupported by it, and rests his argument upon what he claims to have been errors of law.

Three of these are exceptions to the decision of the court upon a challenge of individual jurors in cases, where the challenge was ■sustained and the jurors rejected. We have looked at the rulings to see whether any injustice has been done to the prisoner of.which we ought to take notice.

The juror, Balcom, was rejected because he had an opinion as to the guilt or innocence of the prisoner which he described as ■fixed and of longstanding and which would influence his conduct an the jury box. Complaint is made that the juror was rejected without opportunity for cross-examination by the prisoners-counsel. It does not at all appear that the right was either asserted or denied or in any manner sought to be exercised.

The jurors Dickenson and Stewart were rejected because they had conscientious scruples against rendering a verdict of guilty in a capital case. They brought themselves fully within the provisions of § 377 of the Code of Criminal Procedure.

The juror Cooke was rejected on account of a present opinion upon the question of guilt or innocence. Taking his statement as-a whole his rejection appears to have been proper.

The fourth objection is that while the indictment charges the commission of the crime in the town of Stony Creek, in the county of Warren, and while the proof shows the offense in the town alleged, it does not show that such town was in the county of Warren. No such objection was raised at the trial when the-omission could have been obviated. It made its first appearance-after the verdict and on a motion for a new trial on the minutes. But if made when it should have been, it is a conclusive-answer that the court will take judicial notice of the fact that the-town of Stony Creek is in the county of Warren. People v. Breese, 7 Cow., 429; Vanderwerker v. People, 5 Wend., 530; Chapman v. Wilber, 6 Hill, 475.

We have examined the testimony sufficiently to be satisfied, that the verdict was just The prisoner admitted the fact of the killing, and his counsel approved and stood upon the admission. The defense of insanity was fairly submitted to the jury, and it. was hardly possible that the verdict should have been different»

The judgment must be affirmed.

All concur.