author: Peckham, J.

text:
    Alonzo C. Monson, as Executor, etc., Resp’t, v. The New York Security and Trust Co., etc., et al., App’lts, Impl’d, etc., et al., Resp’ts.

      (Court of Appeals,

      Filed January 16, 1894.)

    1. Will—Increase of principal and income.
    Where, by the term of the will, the executor can pay certain life legacies in money or by alloting securities, the very fact that he did not pay in money but did keep the estate invested without any formal allotment of particular securities in satisfaction of such legacies, gave to each life legatee a proportional interest in each security, and enabled them to claim and take the proportion belonging to them of the income arising from, and of the increase in, the value of the security.

      2. Same.
    In such case, the life legatees, not the remaindermen, are entitled to the increase in the income and principal.
    8. Same—Effect of a surrogate’s decree.
    Where the decree of the surrogate, upon an accounting by the executor, in effect only provides that the executor should pay over the trust fund to himself as trustee, “ as in the ninth clause or section of said will is directed,” it does not change the power of the executor, or preclude the life legatees, under the will.
    4. Same—Receipt.
    The receipt of interest by the life legatees, where none of them knew that_ the securities earned more than enough to pay them the amount received, is not an acquiescence in the correctness of the assumption that such an amount is all to which they were ever entitled.

      Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made July 6, 1893, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at special term, construing the last will and testament of Reuben Withers, deceased.
    This action was brought to have the accounts of David Dun-ham Withers, as executor of the will of Reuben Withers, deceased, ■ ,settled, and the rights and interests of the parties under said will determined, and for a distribution of the estate, etc.
    Reuben Withers died in the city of New York prior to the 7th day of February, 1867, on which day his will was duly admitted to probate by the surrogate of the county of New York. In that will he appointed three executors, one of whom declined to act. The second, George R. I. Bowdoin, qualified and acted as such until his death on the 14th of March, 1870. The third, David Dunham Withers, was the son of the testator, and after the death of Mr. Bowdoin qualified and acted as executor, and letters testamentary were issued to him on the 21st of May, 1870. The testa"tor left a widow, three sons and four daughters. One son, David Dunham Withers, the executor, was not provided for by the will for the reason, as stated by the testator, that the son was already wealthy in his own right. After providing in the third clause of his will for the payment of the interest on $13,000 to his son Alfred D. Withers for life, with remainder to his descendants, the testator gave the rest of his estate to his exechtors in trust, with power to sell the real estate and to get in all his personal estate and to keep his estate and its proceeds safely and securely invested, and then added language as follows: “ My own preference being that investments made by me in my lifetime should be continued so long as the same, in the judgment of my executors, can be done without loss or detriment of my estate.”
    Out of the estate thus given to the executors they were directed by the sixth clause to set apart an amount sufficient to produce a yearly income of $900, which the executors were to apply to the use of the testator’s son Reuben B. Withers for life, and remainder to his descendants as provided for in, the seventh clause. • The executors were then, by the eighth clause, directed to apply the net rents, issues, income and profits of all the rest of testator’s estate to the use of his wife for her life. Then follow the ninth and tenth clauses of the will as follows:
    “ Ninth. Upon the death of my said wife to allot and set apart out of the said rest, residue and remainder of my estate and of the proceeds and investments thereof (exclusive of what is disposed of in the third, sixth and seventh articles of this my will), into as many shares, each of the value and amount of twenty thousand dollars, as there shall then be survivors of my three daughters, Elizabeth Mary Center, EuphemeD. Olason and Virginia Paine, and of the descendants of either of my said three daughters who may have previously died leaving descendants or a descendant, and also of the descendants of my daughter Cora, whether she be then living or not; all the descendants of either deceased daughter counting but as one, however, for the purpose of such allotmeut, and to apply the net rents, issues, income and profits of one of such shares or portions, to be set apart for that purpose, to the use of each of my said three daughters, Elizabeth Mary Center, Eupheme D. Clason and Virginia Paine, who may then be living, during the natural life of such daughter respectively, free from the debts, contracts, control or engagements of any other ■ person, and like manner during the life of my daughter Cora to apply the net rents, issues, income and profits of one of such shares or portions to be set apart for that purpose to the use of the descendants of my daughter Cora who may be living, from time to time during her lifetime, in equal shares per stirpes and not per ■capita, my said executors, in their discretion, being at liberty to make such application by paying the same over to my said daughter Cora for the use and benefit of her said descendants, but being under no obligation so to do, and if either of my said three daughters or my said daughter Cora shall not then be living, to divide and distribute one of such shares to the descendants or descedents of each.such deceased daughter, share and share alike, per stirpes and not per capita. To have and to hold to them respectively, their respective heirs, executors and administrators forever.
    “ Tenth. Upon the death of each of my said three daughters who shall have been -living at the time of the allotment directed by the ninth article of this my will, and also upon the death of my daughter Cora, to divide and distribute the share or portion of my estate and of the proceeds and investment thereof, of which the income is in pursuance of the said ninth article of this will, to be applied to the use of such daughter during her life or to the use of the descendants of my daughter Cora during her life, - to and among the descendants of such daughter, if she shall leave any her surviving, share and share alike, per stirpes and not per capita, and if such daughter shall leave no descendant surviving her to and among the then survivors of my said three daughters, other than my daughter Cora, and the descendants of either of my daughters who may have died leaving descendants or a descendant, share and share alike, per stirpes and not per capita, to have and to hold to them respectively, their respective heirs, executors and administrators forever.”
    The eleventh and twelfth clauses provide in substance for the payment of the remainder of the estate to or for his two sons, Eeuben B. and Alfred D. Withers, upon some details and with some conditions not here material.
    The widow of the testator survived him until March, 1878, when she died. Alfred D. Withers is dead, leaving three children. One of the daughters is dead, leaving two sons.
    David Dunham Withers, the executor, on or about the 24th of January, 1878, commenced a proceeding in the surrogate’s court of Mew York for his accounting as executor’ which was pending at the time of the death of the widow. The proceeding continued, and the account was made up as of July, 1878, and the final decree was entered on the 17th of April, 1879. By that decree it was stated that the sum of $139,530.30 remained in the hands of the executor and trustee for distribution according to the directions of the will, and the decree then provided that the executor, after making certain payments therein mentioned, should, out of the balance of the principal then in his hands, pay over to himself as trustee, under the third clause of the will, the sum of $13,000, being the amount collected on the mortgages in the third clause mentioned, and he was directed to hold and invest the same as in said third clause or section of said will directed. The decree in giving further directions to the executor proceeds as follows, “And that he then pay over out of said principal to himself as trustee under the ninth clause or section of the will of said testater four separate sums of twenty thousand dollars ($20,000) each, and invest the same as trustee as in said ninth clause or section, and the tenth clause of section of said will is directed. And that the said executor and trustee then divided the balance of said principal remaining in his hands into two equal half parts or portions, and pay over one of said equal half parts or portions to Alfred D. Withers, as in the twelfth clause or section of said will provided, and that he pay over to himself, as trustee under the eleventh clause or section of said will, the other of said equal half parts or portions, and hold and invest the same as trustee as in said eleventh clause or section provided.”
    It is found by the learned trial court that the sum stated in the above decree of $139,530.30 did not represent the actual value of the estate included therein either at the death of the widow or at the date of the decree. The court further found that the executor, David Dunham Withers, never in fact paid over to himself as trustee under the third clause of the will, or under the ninth and tenth clauses of said will, any of the sums mentioned in those clauses, nor was either or any of said legacies invested by the executor, but interest on each sum was paid by him to the party entitled to it as provided in the third and ninth clauses of the will, and these payments were continued up to" the death of the executor. As to the legacies mentioned in the ninth clause, interest at the rate of seven per cent, per annum was paid on each of them down to the year 1887, and thereafter at the rate of six per cent
    It was further, found that the value of the estate, as a whole, and the value of some items of property of which it consisted, had increased between the death of the testator, Reuben Withers, and the death of the widow, Matilda Ann Withers, and also between her death and the present time. The executor, David Dunham Withers, in fact made no allotment or separation of the estate while it was in his hands, but the same remained in sólido, whether for convenience of administration or for what purpose is not found.
    The conclusions of law by the trial court were: First That by the provisions of the ninth article of the will of Reuben Withers the four several allotments, each of the value and amount of $20,000, which were to be set apart on the death of the testator’s wife out of his general estate, in trust for the use or benefit of his daughters, were, in substance and effect, pecuniary legacies in trust, amounting in the aggregate to $80,000. Second. That by the decree of the surrogate above mentioned the executor was required to pay over to himself as the trustee, under the ninth article of the will, these four sums of $20,000, and invest the same upon the several trusts applicable thereto. Third. That until the actual making of the separation so authorized and required to be made by the will and by the decree, the residue or general estate of the testator remained primarily liable and chargeable for and in respect of said four sums of $20,000 each, so that all losses or hazards should first fall upon the general estate, and the failure of David Dunham Withers to separate the several trust legacies from the general estate, and his omission to separately invest the same, did not alter the relative rights and interests of the parties as between each other. Fourth. That the regular payment of interest on these trust funds was at the least full and adequate satisfaction of all claims to income by the parties receiving it, and the acceptance of that interest estops them from any other claim in regard to such income.
    Other facts appear in the opinion.

      L. Laflin Kellogg, for app’lt, New York Security & Trust Go.; Delos McCurdy, for app’lts, De Wilhorst and De B. Rancourt; Frederic B. Coudert, for app’lt, Bischoffsbeim; Bichard L. Hand, for Withers and other respondents; Fdward W Sheldon, for resp’t, United States Trust Company; William G. Choate, for Monson, as executor, resp’t.

       Modifying 54 St. Rep., 276.

   Peckham, J.

father’s will, died on the 18th day of February, 1892, leaving a will which was admitted to probate by the surrogate of New York county, and letters testamentary were issued thereon by him to the plaintiff herein on the 16th day of March, 1892. This action is brought for the purpose of having the accounts of David Dun-ham Withers, as executor of the will of his father, Reuben Withers, settled and allowed, and the rights and interest of all the parties interested in the estate of the father finally settled and determined and a distribution made in accordance with such determination. From the time that David Dunham Withers qualified as executor in 1870 the estate remained in his hands up to his death, and at that time the estate was invested in various securities, some of them standing in the name of the executor individually, some in the name of the estate of Beuben Withers, deceased, and some in the name of Beuben Withers. Since the death of the widow of Beuben Withers in March, 1878, the estate has largely increased in value by the appreciation of certain of the securities in which it was invested. The investments made by Beuben Withers in his lifetime were kept substantially unchanged during the life of the widow, and from her death down to the death of the executor, David Dun-ham Withers, the investments remained also about the same, with some named exceptions which appear in the accounts of the executor. The failure of the executor, upon the death of the widow, either to pay the sum of $20,000 in money for each of the four trust funds, or to actually and formally allot and set apart the various trust shares from the balance of the estate, together with the large appreciation in the value of some of the securities belonging to the estate, have given occasion for this controversy.

The question has arisen substantially between the interests of the sisters on the one side and those of the brothers on the other.

On the part of the sisters it is claimed that they should share pro rata in whatever rise in value there was in the securities in which the estate was invested, because, as alleged, those securities represented the trust estates belonging to them under the will of their father.

On the part of the brothers, on the contrary, it is claimed that they should be paid the whole residue of the estate after deducting the amount of the various trust estates provided for by the terms of the will.. In other words, the representatives of the brothers’ interests claim that they alone are entitled to the whole of the estate, be it great or small, after the sisters have had their four shares of exactly $20,000-each.

Up to the death of the executor in 1892, the brothers, since the death of the mother in 1878, were paid all the income arising from the investment of the estate, after deducting a sum amounting to the legal interest on each of the four sums of $20,000. The interest actually paid to the sisters during all this time amounted to a little over $71,000. Taking the total value of the estate at the death of the widow to have been in round numbers $140,000, there remained after deducting therefrom a trust fund of $13,000 under the third clause, and one of like amount under the sixth clause of the will, for the two brothers respectively, and the $80,000 trust fund for the sisters, a balance to be divided between the brothers of $34,000 ; but as the above sums of $13,000 each were also given in trust for the sons it is just to say that taking them together, the $34,000 and the $26,-000, would leave $60,000 to be divided between the sisters.

Ho division was, however, made, and by reason of the appreciation in the value of the securities in which the estate remained invested, the brothers were from time to time paid as income upon their interest in such estate a total sum of a little over $95,000, and there is now a large fund, after providing' for the trust estate, awaiting distribution under the direction of the court, the whole of which is also claimed on the part of the brothers or those representing their interests. If the securities had been sold and a formal division of the moneys made upon the death of the widow the brothers, upon the assumption that the whole estate was of the above mentioned value, would have taken in the proportion above set forth.

If an actual setting apart and allotment of certain special securities had" been made, such allotment would of course have been made according to the judgment of the executor, and no one can now say what that judgment would have dictated. But the division, segregation and allotment once being made, the sisters would then have received all the benefits resulting to them from an appreciation of the stock which had been allotted and set apart for them. As there was no formal division of such securities, the result is' claimed to be that all these benefits accrue solely to the interests owned by the brothers.

Notwithstanding the omission of the executor (who was also trustee) to formally make this separation and division, the sisters claim the right to share proportionately to their interests in the estate as it existed at the death of the widow, in the increase in the value of the securities in which the estate has all along been invested. This claim, in our judgment, should be allowed. We think that by the language used in the ninth clause of the will the testator authorized his executor either to pay the legacies for his daughter in money to the amount of $20,000 each, which should be thereafter invested, or to allot and set apart to them out of the estate of the testator in his hands securities of such estate of the value of $20,000 for each fund. If the latter were done, the rents, issues, income and profits would* belong to the persons owning the trust estate. And we agree that if he chose to set apart and allot securities from the estate, he could have taken any security he deemed best (up to the value stated) without being restricted to a proportionate share of all the securities. What securities he should take for the purpose of forming these trust funds, if he decided to set apart any particular ones, was matter for the judgment of the trustee alone.

The use of the words “ value and amount,” as contained in ninth clause, indicates only that if the executor were to pay the legacies in money, it should amount to the sum of $20,000 for each of the funds, while if he chose to set apart securities of the estate, they should be of that value for each of such trust funds. As the executor omitted to pay the legacies in money, and as he never formally set apart or allotted any of the securities of the estate for the purpose of forming the four trust funds for the sisters, the question is whether that formal omission is to result as a benefit to the brothers’ interests exclusively.

The sisters’ shares, by reason of the course pursued by the executor, were in truth all contained in, and were at all times represented by these securities. The testator’s estate consisted of such securities, and out of the testator’s estate the several trust estates were to he formed. In substance, the sisters owned, as life legatees, a certain proportionate share of each security. Although the executor had the right, upon the death of the widow, to pay these trust legacies in money or to set apart such of the securities in which the estate was invested, as in his judgment he should think best (up to the stated value), yet we think that when he omitted to do either, he must be deemed to have made such allotment proportionately in all of the securities in which the estate was invested under the provision in the will for continuing the investments of the testator if in the judgment of the executor consistent with the safety of the estate. We think the power to thus continue such investments remained until the trusts created by the testator had been accomplished, and, therefore, it did not terminate upon the death of the widow. As the executor kept the estate in large part invested in those securities, even after her death, we think such action on his part can be regarded in no other light than as an investment in those securities of the different interests of those who in reality owned the estate. At any rate the whole estate was owned by these different parties and this whole estate was thus invested in these securities. It was not necessary, in order that such party should enjoy and have the benefit of his or her proportion of such estate, to have a formal allotment or segregation made of the shares of the estate belonging to such person. As long as the whole estate was thus kept, each party in fact owned his or her proportionate share of the income from and the principal of each security. It was only necessary to determine the value of the estate at the time of the death of the widow, and the sisters’ interests would be in the same proportion in each security, and in the income arising therefrom, as the total of the trust funds ($80,000) bore to the total value of the estate at the widow’s death, and the balance would belong to the brothers. Convenience of administration might dictate the keeping of the estate in sólido. It is not fatal to this view of the action of the executor to admit that he did not regard the sisters as entitled to any portion of the income beyond the simple interest which he paid, nor any part of the increase in value of the securities, and that he, therefore, paid over to the brothers all the income arising from the securities above a sum amounting to the legal interest on the nominal amount of the trust funds.

His view of the legal rights of the sisters is not important. His action in making payments as stated is to be considered only in its bearing upon the meaning or legal effect of his keeping the estate unseparated. It is said that he never intended to make any such allotment of a proportionate interest in the securities as we now assume he did in fact make, because if he had he would then have paid their proportionate share of the whole income arising from such securities. This by no means follows. He might have supposed it was proper under the circumstances that the whole estate should be kept invested as it was, because in his judgment the investments were good, and that in his opinion all that each sister would be entitled to, even if a formal allotment were made of a proportionate share in each security, would be the legal interest on $20,000, the extent of the trust fund. We think that by the retention of these securities he did come to a conclusion that in his judgment they were proper investments for the whole estate. He would not have retained them had he decided otherwise. In determining to keep the whole estate so invested, he in fact determined that the securities were proper investments for the trust estate of the sisters. In this way and to this extent he may be said to have invested their estates, and so permitted them tb claim that he had alloted to them a proportionate share of each security in which the whole estate was invested. He failed to pay the legacies in money and he also failed to satisfy them by an actual allotment of specific securities to the value stated by the testator, and as he still kept the estate in one gross mass, he necessarily gave to the sisters an interest in each security to an extent proportioned to their interest in the estate which such securities represented.

There is no question in regard to the possible liability of the executor for an improper investment. It cannot arise here, although it may be said that so far as appears, the executor discharged his duty in entire good faith, with strict integrity and in such a way that the contest in this ease arises out of the increase in the value of the estate while in his hands. That kind of violation of duty by trustees is not very frequent in the records which we review.

It is also urged that in pursuing this system of keeping the whole estate undivided the trustee was doubtless actuated by the highest solicitude for the safety and productiveness of the trust funds, and that the effect of his action was to constitute the owners of the residuum of the estate securities during all these years for the maintainance of the trust fund at the full sum of @80,000 up to the entire absorption of such residuum, while at the same time the sisters were in the receipt of an income measured by the legal rate of interest upon the full sum of $20,000 for each sister. It is said that such rate of interest is much more than could have otherwise have secured from any investment which was at the same time so well secured. Whether the balance of the estate was in effect such surety is a question which does not here arise and need not be discussed. Counsel for the brothers allege that if there had been losses suffered by the depreciation in value of these securities the sisters would undoubtedly have claimed that such losses should fall wholly on the remainder of the estate over and beyond that which was necessary to constitute the trust funds, and that these sisters would have claimed such to be their rights, because there had never been any formal allotment and setting apart of any securities, and that they would be, therefore, entitled to the payment of $20,000 each before the brothers were to have anything. In the case supposed there would, of course, be a very different state of facts from those now existing. There would have been losses instead of gains, and whether the one or the other interest should suffer the loss or any portion of it, would have to he decided in the light of the facts as they should then appear. What might have been the result of a contention upon facts which never occurred, and under circumstances which probably would have differed radically from those now under our observation, it is plainly useless to speculate concerning. What we now say is that in the face of these acknowledged gains to the estate, taking the language of the will under which the executor could pay the legacies in money or bv allotting securities, the very fact that he did not pay in money and did keep the estate invested and without any formal allotment of particular securities in satisfaction of such, legacies, gave to each sister a proportional interest in each security, and enabled them to claim and a to take the proportion belonging to them of the income arising from and of the increase in the value of the security. By keeping the whole estate thus invested the sisters’ shares in the estate of their father were necessarily represented in these securities, and, of course, they should be entitled to the increase accruing therefrom. The judgment of the executor was thus exercised in favor of all the securities instead of in favor of any particular ones and instead of paying the legacies in money.

But it is argued that the decree of the surrogate, upon the accounting made by the executor, is conclusive against this view of the case, and it is claimed that such decree is binding upon all these parties. It may be observed that the children of the daughters, Mrs. Ludlow, Mrs. Clason, and Mrs. Paine, who are entitled in remainder to these legacies, were not made parties to the accounting, and that as to them, and for the purpose of a division of the principal of the fund, there can be not the slightest foundation for the application of the principle of estoppel. We are of opinion, however, that the decree does not stand in the way of asserting the views above expressed. It was given upon an accounting by an executor, and after making several other provisions the decree in effect only provided that the executor should pay over the trust fund to himself as trustee, and invest the same as trustee, '• as in said ninth clause or section of said will is directed.” We do not think that this language changes or was intended to change tbe power of the executor under the will to pay the legacies in money or to satisfy them by setting apart securities of their value, as allowed in the will. The language of the decree would not prevent the executor from exercising all the powers given by the will, and it was not the object of the accounting to obtain a construction of the will as to the power of the executor to invest or continue investments. The direction in question was nothing more than a formal direction to the executor to go on and pay these four sums of $20,000 each in the manner directed by the will.

It is a fact, however, that the moneys were not paid, even though directed by the decree, and in'the absence of such payment we think the effect of the action of the executor in keeping the whole estate, together, and invested as already stated was not altered by the entering of the decree.

Nor do we think the receipt of interest by the sisters is an acquiescence in the correctness of the assumption that such an amount is all that they were ever entitled to. There is no finding and no evidence that they or any of them knew that the securities in which the estate was invested earned more than enough to pay them that amount as their proportionate share. Because for a number of years the brothers have received more and the sisters less than they were legally entitled to from these securities, is no reason why such injustice should be continued . and perpetuated for the future.

No one else has been harmed by such payments as have been made to the sisters, and no one but themselves has been harmed by the excessive payments made to the brothers. The facts make out no defense of acquiescence. In our view the fundamental fact to be found is as to the value of the estate, and of the various securities in wkich it was invested at the time of the death of the widow, and we agree in this respect with the views expressed by counsel for the plaintiff, that the surrogate’s decree does not conclusively fix that value at that time, either at $139,530.30, or any other sum. The appraised value in the inventory as we think related to the appraisal as made -in the inventory of the first executor, Mr. Bowdoin, in 1867, and did not relate to the value of the various securities at the time of the widow’s death. That fact must be first stated, and then there should be deducted from that sum the amount of the trust created for the benefit of the testator’s son, Alfred D. Withers, being $13,000, and an equal sum should then be deducted for the benefit of the testator’s other son, Reuben, and the proportion which the sum of $20,000 bears to the total value of the estate, as thus found, and after such deductions, is the proportion which each sister would be entitled to of the securities of the estate upon an accounting. The same proportion would be coming to them from the income, and upon the inquiry which is .now to be made it must be determined what amount may be now due in order to equalize the income upon the basis herein stated.

The question which has been raised as to which of the parties, the life legatees or those entitled in remainder, should have the benefit of the increase in the income and principal, should be answered in favor of the life legatees. It came to them, as it seems to us, by force of the circumstances adverted to, and by reason of the language of the will and the clear intent of the testator.

As there is no question regarding the accounts of the executor in any other matter, we think the judgment appealed from should be affirmed in all things except as to the interests of the brothers and sisters in the distribution of what remains of the estate. The counsel for the appellants stated on the argument that there was a sum in the hands of the plaintiff which, if distributed upon the basis we have above indicated, would be large enough to give to them the amounts which would be due them as principal and income, without calling upon any one else for a payment. The inquiry will, therefore, be confined to the distribution of the fund actually in the hands of the plaintiff. It should be distributed in accordance with the views which we have stated, and the judgment is, therefore, modified accordingly, and the proceedings remitted to the supreme court for its further action. The plaintiff and the appellants should recover costs in this and the supreme court, to be paid out of the general estate. No costs to the respondents other than the plaintiff.

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

Judgment accordingly.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Frankie G. Locke, as Administratrix of, etc., App’t, v. The State of New York, Resp’t.

      (Court of Appeals,

      Filed January 16, 1894.)

      1. State—Liability.
    The state cannot be impleaded or made liable in damages in courts of justice only in such cases as it has itself consented to be" made liable
    2. Same.
    The consent, given by chap. 205 of 1883, applies only to a limited class of claims arising from the use and management of the canals.
    3. Same.
    Under chap. 321 of 1870, the state is not liable for, and the board of claims has no jurisdiction over, a claim for damages resulting from the navigation of the canals.
    4. Same.
    An injury, which occurs while passing under a bridge over one of the state canals, through the negligence of the agents or servants of the state whose duty it is to operate the bridge, results in a just sense from the navigation of the canals, and a claim therefor is properly dismissed by the board.
    Appeal from an award of the'board of claims, dismissing the claim of the claimant.

      L. R Rorthup, for app’lt; S. W. Rosendale, att’y-gen’l, for resp’t.
   O’Brien, J.

In this case the board of claims dismissed the claim on the hearing upon the ground that a cause of action was not stated. It was alleged that the claimant’s intestate received certain injuries on the 16th of July, 1891, upon a canal boat, of which he subsequently died, through the neglect of agents or employes of, the state, and that, as the widow and personal representative of the deceased, she was entitled to recover from the state the damages resulting from his death. The claimant’s case, as stated, discloses the'foil owing facts : That while her intestate on the day mentioned was engaged in going south through the Champlain canal with his canal boat, the agents or servants of the state in charge of the lift bridge at Mechanicville, whose duty it was to raise the bridge to a sufficient height to allow boats navigating the canal to pass under in safety, carelessly operated the bridge and neglected to raise it to a sufficient height to permit the boat to pass through safely; that the agents or servants of the state carelessly lowered.the bridge so that it scraped along the top of the cabin, came down and caught on the tiller and caught the deceased between the bridge and cabin of the boat and injured him in such a way that he died about two years afterwards. The basis of the claim is the negligence of the agents or servants of the state in operating the lift bridge under which the boat was passing. The liability of the state for this or any other claim must be founded in its own consent expressed through some act of the legislature. The sovereign cannot be impleaded nor made liable in damages for any cause whatever in the courts of justice, save in such cases as it has itself consented to be made liable. Lewis v. State, 96 N. Y., 71-74; Sipple v. State, 99 id., 284 ; Bowen v. State, 108 id., 166; 13 St. Rep., 134; Splittorf v. State, 108 N. Y., 205 ; 13 St. Rep., 472 ; Hyatt v. State, 121 N. Y., 665 ; 30 St. Rep., 1014; Murdock Grate Co. v. Commonwealth, 152 Mass., 28.

This state, through its legislature, has created a tribunal for the determination of certain claims that its citizens may have against it, and has consented to be bound by its judgments so far as they proceed upon legal principles. Laws of 1883, chap. 205. But this assent applies only to a limited class of claims arising from the use or management of the canals. Laws of 1870, chap. 321. As to every claim or class of claims not expressly, or by fair implication, included within the language of the statute, the state, as the sovereign, is still exempt from liability in any judicial tribunal. Rexfordv. State, 105 N. Y., 229; 7 St. Rep., 10. The jurisdiction of the board of claims under the act of 1883 is the same as that of the canal appraisers under the act of 1870, and unless the state in that act consented to be sued, impleaded or held liable in such a case as this, then the board of claims properly dismissed the case. The jurisdiction which the board of claims may exercise has been conferred by the legislature in the following language:

“ To hear and determine all claims against the state, of any and all persons and corporations, for damages alleged to have been sustained by them from the canals, or from their use and management, or resulting or arising from the negligence or conduct of any officer of the state having charge thereof, or resulting or arising from any accident or other matter or thing connected with the canals; but no award shall be made unless the facts proved shall make out a case which would create a legal liability against the state, were the same established in a court of justice against an individual or corporation, * * * provided, that the provisions of this act shall not extend to claims arising from damages resulting from the navigation of the canals.”

It will be seen, therefore, that the state has not yet consented to become liable for any claim for damages resulting from the navigation of the canals. Jurisdiction over such claims has been expressly excluded from the grant of power. But the learned counsel for the claimant contends that the damages sought to be recovered in this case did not result from the navigation of the canals within the meaning of the statute. It is certain that the injury was sustained when the deceased was on his boat passing under the bridge through the canal, and that he was at the time navigating the canal. Had the injury occurred from an obstruction to the safe passage of boats placed in the water below by the negligence of the agents or servants of the state, instead of above, there can be no reasonable doubt that the cas would then be within the exception. It has been said that the proviso applies to a case in which the act of navigating is one of the concurring causes of the inj ury, so that the latter can be deemed a result. Rexford v. State, supra.

But the act of navigating fairly includes the passage of boats through locks or under draw or lift bridges, and if an injury should occur while passing through a lock, through the neglect of the agent or servant of the state, whose duty it was to open and close it, such injury would in a just sense result from the navigation of the canals. The man who manages the locks and bridges in order to permit the passage of boats upon the canal, is engaged in navigating the canal, within the meaning of the statute, in the same sense as the man who directs or manages the power by means of which the boats are propelled upon the water. The movement of the boat upon the waters of the canal and the contact of the bridge above with the boat, as it was passing under it, were the two concurring causes that produced the injury in this case.

Both were acts of navigation, because both were necessary in order to effectuate the passage of boats upon the waters of the canal. The boat in which the deceased was at the time of the accident was obstructed in its passage through the canal by the negligent management of a lift brige, and under such circumstances the injury was the result of navigating the canals just as it would be if the boat had eucounted an obstruction in the bed of the canal or while passing through one of the locks. It may be that this case, when all the facts appear, contains elements that appeal to the justice of the legislature, but we think it cannot be held to be cognizable in the courts without substantially repealing, by judicial construction, the barrier which the statute has erected against claims for damages resulting from the navigation of the canals.

For these reasons the determination of the board of claims should be affirmed.

All concur, except Andrews, Gh. J., not voting, and Bartlett, J., not sitting.

Award affirmed.


author: PeckAam, J.

text:
    The People, Resp’t, v. William B. Hayes, App’lt.

      (Court of Appeals,

      Filed January 16, 1894.)

      1. Criminal law—Pendency of civil action.
    The rule as to the postponement of the trial of a criminal action till the-determination of a pending civil suit involving the same subject is one of convenience and propriety, addressed to the sound discretion of the court, and the attention of the court should he called to the matter before entering upon the trial and an application made to postpone on that ground.
    2. Statute—Ex post facto law.
    A statute, which permits the infliction of a less degree of the same kind of punishment than was permissible when the offense was committed, is. not an ex post facto law.
    3. Evidence—Confidential communications.
    When a husband or wife, to whom a confidential communication is ad- • dressed, makes it public by giving it to another, it may be put in evidence, if otherwise admissible.
    4. Appeal—Charge.
    A charge that there is no presumption to be taken against the defendant because he does not go on the witness stand; that he has the right to say to the prosecution, “ It is my judgment that the situation is such that I am not bound to take the witness stand, and the law gives me that right,” is no error.
    5. Evidence—Stipulation.
    Where, under a stipulation that all the testimony of a witness upon a former trial should be read as evidence, subject to all legal objections, the defendant’s counsel refused to read a portion of the direct examination, the opposing attorney may require it to be read.
    6. Trial—Arrest op witness.
    The trial court has power, and it is within its discretion, to commit one of defendant’s witnesses to jail, in the presence of the jury, by reason of the character of his testimony.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made June 30, 1893, which affirmed a judgment of the court of general sessions of the peace in and for the city and county of New York entered upon a verdict convicting the defendant of the crime of perjury.
    The facts, so far as material, are stated in the opinion.

      David B. Hill, for app’lt; Henry B. B. Stapler, for resp’t.

       Affirming 54 St. Rep., 184.

   PeckAam, J.

In January, 1891, there was pending in the supreme court of this state an action brought by one Annie M. Keating against the above defendant. The action was brought to recover on a promissory note alleged to have been made by defendant, dated New York, October 27, 1887, and payable to the order of Annie M. Keating two years after the date thereof, for some two thousand dollars, with interest at six per cent. Judgment by default was entered January 31, 1891, against the defendant in Monroe county for the full amount of the note. A motion was subsequently, and in April, 1891, made on the part of the defendant to open that default, and for the purpose of that motion the defendant in New York county swore to an affidavit that he never owed Annie M. Keating a dollar in his life; that he had never given to her a promissory note, and that he had never seen the note- upon which the action was brought, and knew nothing whatever about it; that at the time the note bore date the defendant was in Florida and remained there the whole winter, and that he went there the first of September, 1887, and did not return until May, 1888. The default was opened, and an answer was thereupon interposed setting up substantially the facts as contained in the affidavit. The action is still pending, never having been brought to trial.

In January, 1892, the defendant was indicted by the grand jury of the county of New York for perjury in swearing to the affidavit, the indictment averring that the allegations of fact set forth in the affidavit and above mentioned were false to the knowledge of the defendant, and that in swearing to them the defendant had committed willful and corrupt perjury.

In February, 1893, the defendant was placed on trial for the offense in the court of general sessions of New York. He had previously been tried at the same term upon the same indictment, and the jury had disagreed.

Upon the second trial the defendant was convicted and sentenced to imprisonment in the state prison for eight years, and he is now undergoing such imprisonment, a stay of proceedings after the conviction having been refused. From an affirmance of the judgment by the general term the defendant has appealed here.

The counsel for the defendant has argued several grounds for a new trial, some of which will be now referred to :

(1) It is claimed on behalf of the defendant that when it appeared, as it did in the course of the trial, that the civil suit brought by Annie M. Keating against him had not yet been tried and determined upon its merits, the court should have deferred the trial upon its own motion until the determination of that action. It is conceded that no motion was made to postpone the trial of the indictment until after the determination of the civil action. The record does show that the counsel for the defendant, in the course of the trial of the indictment, and after a large amount of evidence had been given, made the objection that no indictment for perjury could stand while the action in which it is alleged it was committed is still undetermined, and that the court had no jurisdiction to proceed with the trial of the indictment. The objection was overruled. Again, the counsel asked the court to charge the jury that the court had no jurisdiction to try the indictment until the determination of the civil action. This was refused and an exception taken.

The court committed no error in refusing to hold as requested by the counsel.

It is not a question of jurisdiction at all. The court had jurisdiction over the offense.and over the person of the defendant, and whether the civil suit had or had not been determined was a matter of not the slightest importance upon that question. The English authorities cited in the brief of counsel only show what is said to have been the practice in' the English courts, which was to postpone the trial of the indictment until after the disposition of the civil action, not because the court had no jurisdiction to try the indictment before that event, but because, as matter of judgment, it was thought better to take such a course. Rex v. Simmons, 8 Car. & P. 50; Id. 34 Eng. Com. Law, 603, note a. The rule in Pennsylvania does not show that the court has held that there was alack of jurisdiction. Com. v. Dickinson, 5 Penn. L. J., 164. The rule is one of convenience and propriety, addressed to the sound discretion of the court, and the attention of the court should be called to the matter before entering upon the trial, and an application made to postpone on that ground. Upon this subject we cannot add to what has already been said at the general term.

(2.) It is also urged that the court had no power to sentence the defendant, because the law which was in- force at the time of the sentence was, as to the defendant, an ex post facto law.

The perjury is alleged in the indictment to have been committed in 1891, at which time the statute provided that any one convicted of perjury, in any case other than upon the trial of an indictment for a felony, should be punished for not less than two, nor more than ten years. Before the trial the statute was amended chap. 662, laws of 1892, by leaving out the minimum limitation of the term of imprisonment, so that the punishment might be imprisonment for a less, but could not be for a greater term than under the statute thus amended.

A statute which permits the infliction of a lesser degree of the same kind of punishment then was permissible when the offense was committed, cannot be termed or regarded as an ex post facto law. The leading object in prohibiting the enactment of such a law in this country was to create another barrier between the citizen and the exercise of arbitrary power by a legislative assembly. It is well understood by the framers of our federal constitution that the executive was not the only power in a government such as they were about to establish, which would require constitutional limitations. The possible tyranny by a majority of a representative assemblage was well understood and appreciated, and there were for that reason many provisions inserted in the constitutional limiting the exercise of power by the federal and also by state legislatures.

Bills of attainder and ex post facto laws had at that time a quite well-understood meaning. The former was a legislative judgment of conviction, an exercise of judicial power by parliament without a hearing and in disregard of the first principles of natural justice. Such bills had been passed in ■ England and the parties thereby condemned had been put to death. The ex post facto law was regarded as a law which provided for the infliction of punishment upon a person for an act done, which when it was committed was innocent 1 Black. Com. m. p., 46. Enlarging upon this definition as being of the same species and coming within the same principle, a law which aggravated a crime or made it greater than it was when committed, or one which changed the punishment or inflicted a greater punishment than the law annexed to the crime when committed, or a law which changed the rules of evidence and received less or different testimony than was required at the time of the commission of the crime, in order to convict the offender, was included in the definition of an ex post facto law. Calder v. Bull, 3 Dall., U. S. R, 386, per Chase,. J., at 390. In the case just cited Mr. Justice Chase said that the restriction not to pass any expost facto law, was to secure the person of the subject from injury or punishment in consequence of such law; that it was an additional bulwark in favor of the personal security of the subject, to protect his person from punishment by legislative acts having a retrospective operation. No act that mollified the rigor of the criminal law was regarded as an ex post facto law, but only a law that created or aggravated the crime, increased the punishment or changed the rules of evidence in order to secure conviction, The same view of the subject was taken by Denlo, J., in Hartung v. People, 22 N. Y., 95, at 105. See also, Shepherd People, 25 id., 406. Nowhere is it suggested that legislative interference by way of mitigating the punishment of an offense could be regarded as an ex post facto law, if applicable to offenses committed before its passage. There is no reason for any such holding. It was never supposed that constitutional obstacles would be necessary in oz-der to prevent the improper exercise of legislative clemency. There was little to fear from that quarter upon such a subject. Those who framed the constitution were not engaged in creating obstacles to be placed in the path of those legislators who desired by legislative enactment to exercise clemency towards offenders, nor were they anxious lest those who were intrusted with power should be disinclined to exercise it with sufficient sternness.

Human experience had furnished them with no examples of danger from that direction, and their anxiety on that account cannot be discerned from a perusal of the federal constitution. In many if not in most cases the reasons for mitigating the severity of the punishment for any particular kind of crime would apply with equal force to those cases in which the crime had been commifted before, as well as to those in which the crime might be committed subsequent to the enactment of the law, and we are aware of no policy which prevents such a construction of the constitutional provision as would permit that kijid of a retrospective act. That it mateiially affects the punishznent prescribed for a crime is not the -true test of an ex post facto law. In ^regard to punishment it must affect the offender unfavorably before it can be thus determined. It seems to -us plain that there can be no reason for any other view.

Ido not think that the mere fact of an alteration in the manner of punishment, without reference to the question of mitigation, necessarily renders an act obnoxious to the constitutional provision. I know it is alluded to in the two cases in this . state above cited, that of Hartung and of Shepherd. In those cases the alteration was not merely in the manner. It was an alteration from capital punishment, to be inflicted in a certain manner and within a certain time after sentence was pronounced, to a punishment of a year’s hard labor in state prison and then a possibility of capital punishment thereafter, at any time during the life of the criminal, at the pleasure of the governor for the time being, with imprisonment in the meantime at hard labor. As Judge Denio said: “The sword is indefinitely suspended over his head, ready to fall at any time.’’ It was said also by the same learned judge that it was not enough to say that most persons would probably prefer such a fate to the former capital sentence, because there were no means of knowing whether the one or the other punishment would be the most severe in a given case, as tha,t would depend upon the disposition and temperament of the convict. . I think that whei'e a change is made in the manner of the punishment, if the change be of that- nature which no’ sane man could by any possibility regard in any other light than that of a mitigation of punishment, the act would not be ex post facto where made applicable to offenses committed before its passage.

The present case does not involve the question and it is only mentioned for the purpose of calling attention to it as one which has not yet been squarely decided in this court.

We have been referred to the case of State v. Daley, 29 Conn., 272, as holding the principal urged upon us by counsel for the defendant. A reference to the case shows that the court held that on account of the repeal of the statute before his trial, which was in existence when the crime was committed, the offender could not be punished because the statute which was passed to take its place applied only to cases which occurred subsequent to its passage. The decision was made with reference to the language used in the amending act, which the court held was clearly prospective, while the absolute repeal, in so many words, of the former act took away all right to use it for any purpose whatever. No fault can be found with the principle decided in the Connecticut court, but it has no application to this case. Precisely the same principle was decided in Commonwealth v. Marshall, 11 Pick., 350.

In Commonwealth v. Wyman, 12 Cush., 237, the Massachusetts court held that the alteration of the punishment from that of death to imprisonment for life was not ex post facto when applied to offenses committed prior to the passage of the act. We have seen that in our own state such an alteration, under the peculiarities of the statute then under discussion, was held to be an ex post facto law. I have seen no case where such an alteration as is disclosed by the act under discussion has been held to be an ex post facto law. In the Hartung case the power of the legislature to remit any separable portion of the prescribed penalty was declared, and the very case of the reduction in the term of imprisonment was cited as an instance of legislative power. We are clear there is no constitutional objection to the statute.

(3) There were certain letters written to the defendant by his wife. These letters were offered by the People, and received in evidence under the objection of the defendant, and it is now urged that their admission was error for which a new trial should be granted. The counsel for the defendant upon this trial had called the wife of defendant as a witness, and she had broken down in health before the examination was concluded, and became so ill that it was impossible to take her examination at the house. In order to obtain the benefit of her evidence in the case, the defendant had to come to some understanding with the district attorney, or the testimony already given would have to go out, and nothing further could be admitted. Hence, the stipulation as to the reading of all the evidence of the witness taken upon the former trial, subject to all legal objections. That meant the legal objections of the party against whom the testimony was given. When the defendant read the direct examination it was subject to the legal objections which the district attorney might make, and when the latter read the cross-examintion it was subject to the legal objections thereto made by the counsel for the defendant; but each side was, by the very terms of the stipulation, to read the whole of the direct or cross-examination, as the case might be. The objection on this occasion was first made by the defendant’s counsel, -who refused to read the particular portion of the direct examination, which, as the district attorney claimed, rendered some portions of the subsequent cross-examination (these particular letters included) admissible in evidence. The court, because of the stipulation, committéd no error in compelling the reading of the evidence, and defendant’s exception to that ruling is not good. Subsequently, when the district attorney offered the letters in evidence, the defendant’s counsel objected to their introduction upon the ground that they were confidential communications from a wife to her husband, and hence, were inadmissible. Some expressions in one or two of the letters were undoubtedly contradictory of a portion of the testimony given by the witness upon the first trial. That particular portion of the wife’s evidence the defendant had been compelled by the court to read. The People were entitled to the benefit of whatever contradiction there was. If some of the letters contained nothing by way of contradiction, and hence might have been claimed to be inadmissible for that reason, it is seen that there was no separate and distinct objection made to a particular letter that it contained no contradictory matter.

The objection of immateriality made by defendant was upon the ground that the letters only contradicted the witness upon an immaterial matter, viz., her belief as to the paternity of the child of the prosecutrix, Miss Keating, whether it was the child of the witness’ husband or his brother’s. We think the letters which contradicted the witness upon that question were properly received in evidence, and there was no separate objection taken to the others. Those which contradicted the witness might as evidence have some weight upon the question of her credibility, and the contradiction cannot be said to have been so plainly upon an immaterial matter as to have rendered the admission of the letters error on that ground. The further ground of objection to their admission was that they were confidential communications from a wife to her husband. The answer to this objection is that the letters, after they had been received by the defendant, were given by him to his mistress, the prosecutrix, Annie M. Keating, and she subsequently delivered them to the district attorney, by whom they were offered in evidence. Comment upon the baseness of this act of the defendant is unnecessary. It speaks for itself. The result, however, is to release the letters from the operation of the rule as to confidential communications between husband and wife, and to leave them open to use as evidence to the same extent as if no such rule had ever guarded them. The rule which protects confidential communications of this nature was founded upon a wise public policy, adopted and pursued for the purpose of encouraging to the utmost that mutual confidence between husband and wife which is the strongsst guaranty of a happy marriage. To this end the common law provided that all communications between husband and wife which were of a confidential nature should be kept inviolate, and should not be drawn from either party by any process of law. 1 Stark, on Ev., m. p. 39; Grreenl. on Ev., 14th ed., § 254. The law appreciated the fact that even truth itself might be pursued too keenly, and might cost too much. The general evil of infusing reserve and dissimulation between parties occupying such relations to each other, would be too great a price to pay for the chance of obtaining and establishing the truth in regard to some matter under legal investigation. 1 Gfreenl. on Ev,, § 240, note a, citing Minet v. Morgan, L. R., 8 Ch. App., 361. The case just cited related to confidential communications between attorney and client, but the principles are also applicable, and with added force, to communication's between husband and wife. If, however, the privilege have been once waived by the parties, it cannot be again invoked. It is personal, so that if one overhear such a communication he may testify to it, if it be otherwise admissible in evidence. Comm. v. Griffen, 110 Mass., 181; State v. Center, 85 Vt., 378, 386; Rex v. Simons, 6 Car. &. P., 540; S. C., 25 Eng. Com. L., 565.

And when the husband or wife, to whom a written confidential communication is addressed, makes it public by giving it to another, the confidential character of the communication has departed, and it may be treated like any other communication, and put in evidence, if otherwise admissible. State v. Hoyt, 47 Conn., 518, 540; State v. Buffington, 20 Kan., 599, 613.

In this case every reason upon which the rule rejecting a confidential communication was originally founded is absent. The letters were addressed by the wife to her husband, and he, deliberately violating every principle of honor and decency, gives the letters to his mistress, by whom they were delivered to the district attorney. A rule which would still preserve the confidential character of these letters as against this husband would be founded upon more sentiment than sense.

(4) The charge of the learned judge in regard to the defendant not going on the stand as a witness was not subject to legal objection. The court told the jury that the defendant was not bound to go on the stand, and that he could say to the prosecution, “prove your case against me; it is my judgment that the situation is such that I am not bound to take the witness stand, and the law gives me that right, and the law gives me that privilege. I charge you that the law says there is no presumption to be taken against a defendant by reason of the fact that he does not take the witness stand.” The charge is criticised on the ground, as alleged, that the language which the judge put in .the mouth of the defendant amounted to a covert insinuation that the situation was such that it would be disastrous to the defendant if he took the stand. I think the criticism ill-founded. The jury were plainly instructed as to the law and the rights of the defendant. The insinuation suggested would be unwarranted from the language used. On the contrary, the natural interpretation would be that the defendant regarded the situation as one wholly lacking in proof of guilt, and he was under no obligation to go on the stand and explain what as yet required no explanation. The case of Ruloff v. People, 45 N. Y., 213, 222, is authority for the correctness of the course pursued by the learned judge.

(5.) The defendant’s counsel complains also that one of the witnesses for defendant was committed to jail by the court in the presence of the jury, because of the character of his evidence given while on the stand as a witness.

This is not a question of legal error. The action of the court was within its power, and to be exercised within the sound discretion of the judge.

That it might have a bad effect upon the jury and thereby prejudice the defendant’s case was one of the matters to be considered by the judge before making the order, but we do not think it was legal error to make the order under the circumstances.

We have carefully looked at and considered each and all the other grounds for a new trial which are set forth and discussed in the brief of the counsel for defendant, and we are quite clear that they do not show any errors committed to the prejudice of the defendant.

The judgment should be affirmed.

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

Judgment affirmed.