author: Folleto, J.:

text:
    GAZENA C. JONES, Respondent, v. IDA V. FLEMING and Others, Appellants.

      Inchoate right to dower — not alienable to a stranger, by a mw'ried woman during ilia life of h&)' husband— wTien a widow is not barred from claiming dower by a prior conveyance of her inchoate right thereto, with covenants of further assurance.

    -January 28,1880, the plaintiff executed a quit-claim deed, by which, in consideration of money received from her husband or his estate, she released, transferred and set over to the committee of the husband and to his three daughters, his “ only prospective heirs,” all her right, including her inchoate right of dower, to the personal and real property of the husband. The deed also contained ■covenants by which the plaintiff agreed to execute and deliver such further •or other deeds or releases as might he necessary to perfect the agreement. October 28, 1880, the husband died leaving the three daughters named in the deed his sole heirs-at-law.

      JXeld, the plaintiff’s claim for dower was.not barred by the execution of the deed.
    That the fact that the instrument recited that the children named therein were the prospective heirs of the husband, did not establish such an interest in them as to render it operative as a release.
    'That as the statutes, in force at the time of the execution of the deed, did not authorize a married woman to contract in respect to her inchoate right of dower, she was not barred or estopped by the covenant for further assurance therein contained.
    Appeal from an interlocutory judgment in favor of tbe plaintiff, ■entered upon tbe report of a referee.
    Tbe action was brought to recoves dower in about 2,000 acres of wild land, tbe property of James Jones, by tbe plaintiff, wbo is bis widow. Tbis is tbe third time that this case has been brought on .appeal before tbe General Term. Tbe opinion on tbe first appeal is reported in 29 Hun, 551, and on the second in 32 Hun, 280.
    Tbe plaintiff married John Firth in 1855 at tbe village of Deer River, and they lived together as husband and wife at Famelia Four Corners, Troy and Syracuse until 1861, when she left biin because be failed to support her and went to her friends in Jeffer.son and Lewis counties. In 1875 tbe plaintiff, believing her first husband to be dead, married one James Jones, wbo died in 1880.
    Tbe additional facts now presented to tbis court for tbe first time, and upon which the principal questions upon tbis appeal arise, are as follows: On June 15, 1877, James Jones became of unsound mind and was subsequently declared to be a lunatic. One "William1 H. Miller was appointed tbe committee of bis person and estate, and be, in his capacity as such committee, together with Ida P; Fleming, Ellen A. Tan Ness and Julia E. Zuller, entered into a settlement and agreement with the plaintiff about January 28, 1880,, whereby the said committee and prospective heirs released and confirmed to the plaintiff the title to $3,400 of personal property which had been previously transferred to the plaintiff as a gift from James Jones on the surrender by her to the said committee of certain other-personal property which she also claimed to hold by virtue of the gift from Jones. Four actions had been commenced by the committee against the plaintiff and parties holding property in her-behalf to recover such property, and also one action to have the-marriage between the plaintiff and James Jones declared of no effect, because John Firth, the first husband of the plaintiff, was living at the time it was entered into. These actions were all settled by the same agreement, and the plaintiff released to the-committee and to the heirs all her title to the personal and real property of James Jones, including her inchoate right of dower and covenanted to execute, and deliver in the future such other deeds, releases and transfers as might be necessary to carry out the said agreement. This release was offered on the part of the defendants, but was excluded by the referee as incompetent and immaterial, and the defendants excepted to the exclusion. The same evidence-was offered on both of the forjner trials, in which the defendants succeeded, but was excluded by the court.

      E. 0. Emerson, for the appellants.

      Elon E. Brown, for the respondent.
   Folleto, J.:

This is an appeal by part of the heirs of James Jones from an-interlocutory judgment awarding the plaintiff dower in lands of which Jones died seized.

But two defenses were interposed in this action: (1.) That the legal relation of husband and wife never existed between the plaintiff and James Jones, because at the time of their marriage the-plaintiff’s first husband was living. (2.) That, January 28, 1880^ Mrs. Jones was paid $3,400 by the committee of her husband’s •estate, in consideration of which she released and conveyed to the ■committee and to the children of her husband by a former wife all cf her interest in the estate of Jones, including her inchoate right of dower and covenanted to thereafter execute such further conveyances as might be necessary to bar her dower. James Jones died •October 28, 1880, leaving as his sole heirs-at-law three daughters, who are named in the agreement, and in the quit-claim deed.

The referee finds that when the plaintiff and Jones, in ter married, the plaintiff’s first husband had absented himself for five successive years without being known to the plaintiff to be living, and that she believed him to be dead. The evidence is sufficient to sustain this finding of fact and it cannot be set aside. The marriage between the parties was never adjudged invalid. Whether a woman is entitled to dower in the lands of her deceased husband under a marriage so contracted is not an open question in this court. (Jones v. Zoller, 29 Hun, 551; S. C., 32 id., 280; Price v. Price, 33 id., 76; Scrib. Dow. [2d ed.], chap. 7, pp. 1-15.)

The only remaining question is whether a quit-claim deed of a married woman, executed in consideration of money received from the husband or his estate and running to the committee and the children of the husband, by which her inchoate right of dower is assumed to be released and conveyed, and in which deed she covenants to thereafter execute such further conveyances as may be necessary to bar her dower, is a bar to her right to recover dower in case she survives her husband. A release by a wife to her husband of her inchoate right of dower does not bar her claim. (Crain v. Cavana, 36 Barb., 410; S. C., 62 id., 109; Townsend v. Townsend, 2 Sandf., 711.) This is so notwithstanding the release is contained in a valid deed of separation made with a trustee in behalf of the wife and upon a pecuniary consideration, (Carson v. Murray, 3 Paige, 483, 502, 503; Guidet v. Brown, 54 How., 409; S. C., 3 Abb. N. C., 205; 1 Wash. R. P. [4th ed.], 252, p. 18.) Such an instrument does not operate as an effectual release, conveyance or as an estoppel. (Graham v. Van Wyck, 14 Barb., 531; 2 Scrib. Dow. [2d ed.], 309.)

A release, conveyance or covenant with the committee of the husband is not valid, unless it would have been valid if executed to and with the husband. The fact, that the instrument runs to the-children of the husband, does not effect a conveyance. or release of her right to dower. An inchoate right to dower is not an estate,, nor is it an interest in real estate, and it is not the subject of grant or assignment. (Moore v. The Mayor, 8 N. Y., 110; Marvin v. Smith, 46 N. Y., 571, 574; 1 Wash. R. P. [4th ed.], 301, p. 1.). During coverture, the wife’s inchoate right of dower is incapable-of being transferred or released, except to one who has already had, or by the same instrument acquires an independent interest in the-estate.” (Elmendorf v. Lockwood, 57 N. Y., 322, 325; Marvin v. Smith, supra) An inchoate right to dower not being the subject of a grant, the granting words in the conveyance do not carry the-inchoate right to the persons described as grantees. A release is-the only mode by which a wife can bar her inchoate right to dower. A naked release to one not in possession of or having a vested interest in the premises is void. (3 Wash. R. P. [4th ed.], 380, p. 21; 4 Greenl. Cruise, 110, 115, pp. 21 to 40; Elmendorf v. Lockwood, supra.) It is recited in the instrument that the childr-en are the-prospective heirs of the husband, and it is urged that their interest as apparent heirs was sufficient to make the instrument to them oper-ative as a release. An heir apparent is one whose right of inheritance is indefeasible, provided he outlives the ancestor, as the eldest son, who must, by the common law in England, become the-heir of his father on his death. An heir presumptive is one who, if the ancestor should die immediately, would succeed to the estate,, but .whose right of inheritance may be defeated by the birth of a nearer heir. (2 Black. Com., 208; 3 Pres. Abs., title 5.) Neither definition describes the interest of persons whose right to inherit, may be defeated by conveyance or devise. Neither heirs apparent nor heirs presumptive have a legal estate or interest, though they •may, in equity, bind this possibility by way of estoppel as against themselves. (3 Pres. Abs., title 6.) The children of the husband had no vested interest or estate in or possession of the land, and the instruments did not operate as a release of the plaintiff’s right to dower. Neither do the instruments, and the transactions out of which they arose and of which they form a part, create an estoppel in favor of the children and against the plaintiff. The consideration was paid by the committee of the estate of the husband. The children paid nothing, nor did they surrender anything, nor were their legal rights in anywise affected. At the date of this deed a married woman was authorized to sell and transfer her real a.nd personal estate and enter into contracts and covenants in respect thereto; but an inchoate right to dower is not a part of her separate estate. It cannot be sold or taken by creditors. It is a mere right arising out of the marital relation which may or may not ripen into an estate.' Chapter 381, Laws 1884, was passed after the execution of the deed. The statutes existing at the date of this deed were not broad enough to authorize a married woman to contract in respect to this right, except in the manner pointed out by the Revised Statutes. (Bertles v. Nunan, 92 N. Y., 152, 160.) Before the statute of 1848 and subsequent statutes enlarging the rights and powers of married women, they could not estop themselves by covenants. (Jackson v. Vanderheyden, 17 Johns., 167; Big. Est., 276.) But since these statutes, they may by such covenants as they are authorized to enter into. This not being a subject which the statutes authorize them to contract in respect to, the plaintiff is not estopped by the deed and contract from recovering her dower. To bring the ease within section 12 of title 3, chapter 1 of the second part of the Revised Statutes (1 R. S., 741), the provision in lieu of dower, must take effect on the death of the husband. (McCartee v. Teller, 2 Paige, 511; affirmed, 8 Wend., 267; Crain v. Cavana, supra; Guidet v. Brown, supra.)

The judgment is affirmed, with costs.

HaediN, P. J., and YaNN, J., concurred.

Judgment is affirmed, with costs.


source: Caselaw Access Project

author: Follett, J.:

license: Public Domain

text:
    ISRAEL ADAMS, Appellant, v. THOMAS T. CAVANAUGH and Others, Respondents.

      Mxammation of a pa/rty before trial— only allowed to enable the applicant to establish his own ease— Gode of Civil Procedure, see. 870, ete.

    A plaintiff cannot, under the provisions of article 1, title 8, chapter 9 of the Code of Civil Procedure, compel his adversary to appear and be examined before the trial, when the object of the examination is to compel him to disclose the evidence by which he intends to establish his defense; such an examination must be confined to facts which tend to establish the applicant’s cause of action or defense.
    ■Where, in an action brought to foreclose a mortgage for non-payment of interest, • the execution of the mortgage is admitted and the action is defended on the grounds of payment of the interest and of usury, the plaintiff cannot compel the defendant to appear and he examined before trial, when it is apparent that the purpose of the examination is to ascertain the evidence by which the defendant intends to support his defenses.
    Appeal from an order made at a Special Term, vacating an order requiring the defendant to appear and be examined before trial.
    This action is brought by a mortgagee against a mortgagor and his wife, to foreclose a mortgage for the non-payment of annual interest. But two defenses are interposed: (1.) That the interest has been paid. (2.) That the mortgage is usurious. After the issue of fact was joined, the plaintiff obtained upon an affidavit and the pleadings, an ex pivrte order from a justice of this court, for the examination of one of the defendants (the mortgagor) before a referee pursuant to article 1, title 3, chapter 9 of the Code of Civil Procedure. The order does not designate and limit the particular matters as to which the defendant is to be examined. The plaintiff states in his affidavit, on which the order was granted, that he desires to prove by the defendant that the interest has not been paid, and that the mortgage is not usurious. It also contains a statement that the evidence of the defendant is material and necessary to the plain, tiff in the prosecution of the action, and to enable him to safely proceed to trial. The defendants moved at a Special Term held by the justice who granted the order, to vacate it upon an affidavit stating that the affiant believed the order was obtained for the purpose of ascertaining what the defendant would testify to, so as to be prepared to meet it on tbe trial; and that the examination was not necessary and material for the prosecution of the action. The court at Special Term vacated the order. The plaintiff appeals.

      Hannibal Smith, for the appellant.

      E. O. Emerson, for the respondents.
   Follett, J.:

In chancery the right of a party to a discovery did not extend to all facts material to the issue, but was limited to such material facts as were necessary to establish his cause of action or defense. (Story’s Eq. Pl., § 572; 1 Pom. Eq. Juris., § 201; Hare on Dis., 198; 2 Barb. Ch. Pr., 101; 1 Dan. Ch. Pr., 606; Deas v. Harvie, 2 Barb. Ch., 448.)

By section 389 of the old Code, bills of discovery were abolished, and by section 390 the examination of adverse parties was authorized. The subjects upon which parties might be examined were not prescribed, nor was the extent to which they might be examined limited by the old Code. Whether the examined party could be compelled to disclose evidence which related exclusively to his cause of action or defense, was much debated, and finally resulted in the adoption, in December, 1870, of the twenty-first rule, which took effect February 1, 1871, and provided: “ The application for an examination under section 391 of the Code shall be upon an affidavit disclosing the nature of the discovery sought to enable the party to frame his complaint or answer, or to prove his case or defense upon the trial, and how the same is material in aid of the prosecution or defense.” In November, 1874, the rule was amended by omitting the words to frame his complaint or answer or,” and as thus amended, remained in force until January 1, 1878, when the rules adopted in October, 1877, under the Code of Civil Procedure, went into effect. The weight of authority before as well as subsequent to the rule referred to, was in favor of limiting examinations to such facts as were material to establish the cause of action or defense of the party who sought the examination; and not to permit the evidence which related exclusively to the cause of action or defense of the examined party to be inquired into. (Wiggin v. Gans, 4 Sandf., 646, 647; Carr v. The Great Western Ins. Co., 3 Daly, 160; Schepmoes v. Bousson, 1 Abb. N. C., 481; S. C., 52 How., 401; Phoenix v. Dupuy, 7 Daly, 238; S. C., 53 How., 158; 2 Abb. N. C., 146; Elmore v. Hyde, 2 Abb. N. C., 129. The examination of parties under the old Code was a substitute for a bill of discovery. Glenney v. Stedwell, 64 N. Y., 120.)

Article 1, title 3, chapter 9 of the Code of Civil Procedure provides for the examination of adverse parties to actions arid for the-examination of witnesses.' The procedure for the examination of both is provided for in the same sections, and the distinction between the examination of an adverse party and of a witness is-not, in all instances, clearly preserved; and it is difficult in some instances to determine whether the language employed is applicable-to the one case or the other.

“ The deposition of a party to an action pending in a court of record * * * may be taken * * , * at the instance of an adverse party * * * at any time before the trial, as prescribed in this article.” (Sec. 870.) The person desiring to take a deposition * * * may present * * * an affidavit setting forth,” among other things, “that the testimony of such person is material and necessary for the party making such application, or the prosecution or defense of such action.” (Sec. 872 and subdiv. 4 of § 872.)-The word “ person ” evidently embraces both a party to an action and a witness.

Under the old Code, as now, facts material to the issue in support of the case of the examining party, and in rebuttal of the case of the opposite party, might be proved by a witness examined upon an order. Whether the term “is material and necessary for the-party making such application,” refers to the testimony of a witness,, and the term, “ the prosecution or defense of such action,” refers to the examination of an adverse party, is difficult to determine.' If such a distinction was not intended, the term “ or the prosecution or defense of such action ” is simply an unnecessary repetition of the idea expressed in the preceding clause of the subdivision.. Having in mind the fact that this distinction existed at the time this section was enacted, and the rule that statutes shall be so construed as to give meaning to all of the language employed, if possible, we are of the opinion that the writer had in mind the distinction then existing between the examination of parties and of witnesses and intended to preserve it. “ The examination of a party, or an expected party, is subject to the same rules as if he was examined upon the trial.” (Sec. 880.)

On the trial a plaintiff may call his adversary to prove his cause of action, but not to ascertain what the defendant will swear to in support of his defense, and so may the defendant, to prove his defense, call the plaintiff, but not for the purpose of finding out what will be sworn to in reply. The provision last quoted, does not support the position that a party may compel his adversary to-disclose under an order, the evidence which relates exclusively to-his cause of action or defense.

The Court of Chancery never exercised or assumed to possess the power to compel a party to disclose evidence exclusively relating to-his own cause of action or defense. The weight of authority under the old Code is adverse to the exercise of this power by the Supreme Court or its judges. The Court of Appeals has- held that the right to examine an adverse part under the Code of Civil Procedure, is purely a statutory right (Heishon v. Knickerbocker Life Ins. Co., 77 N. Y., 278), and we find no provision in this Code which enlarges the power exercised by the Court of Chancery, or the power conferred by the old Code.

The decisions under the present Code are not harmonious.

In Hynes v. McDermott (7 Daly 513; S. C., 55 How., 259), it is said that the decisions applicable fo bills of discovery, and to the old Code are not applicable to the Code of Civil Procedure, which, it is said, is more than a substitute for the bill of discovery. In Goldberg v. Roberts (5 Civil Pro. Pep. 96), the same court doubted the applicability of the former rules. In Wayne County Savings Bank v. Brackett (31 Hun, 434), it was held that when an adverse party is sought to be examined, ‘‘the applicant must state by affidavit facts and circumstances showing that the testimony sought is material and necessary to his case.” In Kinney v. Roberts (26 Hun, 166), it was held that the remedy now under consideration is a substitute for a bill of discovery, and that the present remedy is governed by the rules formerly prevailing, except as otherwise provided by the Code. (To the same effect is De Leon v. De Lima, 66 How., 287; see, also, Greer v. Allen, 15 Hun, 432.)

In Beach v. The Mayor (14 Hun, 79; S. C., 4 Abb. N. C., 236) the defendant sought to examine the plaintiff as to the circumstances under which he was injured, their nature and extent, but an examination was refused, upon the ground that it did not appear that the ■evidence sought for was material and necessary to establish the defendant’s defense. Fourth National Bank v. Boynton (29 Hun, 441) was brought to recover the amount due upon promissory notes.

The sole defense interposed was usury. The plaintiff sought to examine the defendant for the purpose of ascertaining whether the notes were usurious, or not. An examination was denied upon the ground that the evidence sought was not material to establish the plaintiff’s cause of action. (Chapin v. Thompson (16 Hun, 53) was brought to foreclose a mortgage. The sole defense was usury. The plaintiff sought to examine the defendant as to the circumstances of the loan. An examination was ordered, which the Special Term refused to vacate; but on an appeal to the General Term, it was vacated upon the ground that evidence was not sought in support of the plaintiff’s case, but for the purpose of discovering the evidence by which the defendant expected to sustain his defense. To the same effect is Gilbert v. The Third Avenue Railroad Company (17 J. & S., 129); and Fitzpatrick v. Van Schaick (59 How., 472). In Dart v. Laimbeer (15 J. & S., 490), and in Batterson v. Sanford (8 N. Y. W. Dig., 121), it was held that the applicant must assert the intention to use the evidence on the trial.

In England, the equity and cémmon-law courts have been superseded by the High Court of Justice, which is authorized to compel, by order, a party to an action to make discovery in legal and equitable actions, thus rendering bills of discovery unnecessary. The power is conferred by section 51, chapter 128, 17 and 18 Victoria (C. L. P. Act of 1854), which provides that after issue, by leave of the court, or a judge, a party may “ deliver to the opposite party or his attorney, * * * interrogatoi’ies in writing upon any matter as to which discovery may be sought, and require such party * * * to answer the questions in writing by affidavit.” The fifty-first section provides that the order shall be made upon an affidavit, stating that the deponent believes that the party proposing to interrogate will derive material benefit in the cause from the discovery which he seeks, and that there is a good cause of action or defense on the merits.” The practice under these sections is regulated by tbe thirty-first order, which neither enlarges, nor restricts the scope of the sections. Under this statute it has been uniformly held, in legal and equitable actions, that interrogatories are not to be allowed where they relate wholly to matter which tends to support the case of the opposite party. (Stewart v. Smith, L. R., 2 C. P., 293; Hodsoll v. Taylor, L. R., 9 Q. B., 79; Lyell v. Kennedy, 8 App. Cases, 217, 227.)

The weight of authority in the Supreme and Superior Courts is against allowing a party to compel an adversary to disclose the evidence which relates exclusively to his defense; bat the examination is to be confined to such facts as tend to establish the applicant’s cause of action or defense. In the ease at bar the plaintiff’s mortgage stands admitted. Two affirmative defenses are interposed — payment and usury. It is apparent that the plaintiff does not seek the examination of the defendant for the purpose of establishing the cause of action alleged in the complaint, but for the purpose of ascertaining the evidence by which the defendant intends to support his defenses. For this reason, the order vacating the order directing the defendant to submit to an examination, must be affirmed, with ten dollars costs and. printing disbursements.

Hardin, P. J., and YaNN, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    HIRAM W. KILBURN, Respondent, v. FRANK S. LOWE, as Sheriff of Oswego County, Appellant.

      Costs in an action of replevin — when the defendant is not entitled to easts although he recovers back a part of the articles replevied by the plaintiff — Code of Civil Procedure, sec. 3284.
    The plaintiff brought this action to recover certain articles of personal property, or their value, which the defendant, a sheriff, had levied upon under an execution against one Palmer. The complaint contained but a single count. The referee decided that the plaintiff was entitled to recover certain of the articles, of the value of $293, which had been transferred to him by the debtor's wife; that the other articles transferred to him by the debtor, of the value of $393, were the property of the debtor, and that the defendant had acquired a special property therein to the amount of the execution ($108), the plaintiff being the general owner thereof subject to defendant’s lieD thereon.

      Held, that the case was not one in which each partv was entitled, under section 3234 of the Code of Civil Procedure, to costs against the adverse party, and that the plaintiff only was entitled to recover them.
    Appeal from, an order, made at a Special Term, granting a motion for a retaxation of costs and striking from the judgment those awarded to the defendant.
    The defendant, as sheriff, held an execution against one Samuel aimer, and December 5, 1878, levied upon several articles of personal property, to recover which the plaintiff brought this action of replevin, claiming title to all of the articles. The complaint contains but a single count or cause of action. The value of the articles are not separately stated in the complaint, but it is alleged that all of the articles were, at the date of the seizure, worth $400. Judgment is demanded in the complaint for the return of the property, or for its value in case a return cannot be had, and for fifty dollars damages for the detention thereof. The property remained in possession of the plaintiff during the pendency of the action. The defendant alleged that the articles seized were the property of the judgment debtor and justified his seizure under the execution and demanded a judgment for the -return of the property. The action was tried before a referee, who decided that the plaintiff was the legal owner of some of the articles described in the complaint, and that the aggregate value of such articles at the time of the seizure was $293 and that plaintiff was entitled to six cents damages for their detention, but that some of the articles, of the aggregate value of $393 at the time of their seizure, were the property of the judgment debtor; that the defendant acquired a special property in them to the extent of the amount due upon his execution ($108), and that the plaintiff was the general owner of those articles subject to the defendant’s lien. The clerk taxed the plaintiff’s costs at $437.55, and the defendant’s costs at $408.16, inserted both amounts in the judgment, which directed that defendant’s costs be set off against the plaintiff’s. The plaintiff moved at Special Term for a retaxation of the defendant’s costs, and for an order striking them from the judgment, which was granted, from which order the defendant appeals.

      George W. Bra&ner, for the appellant.

      John lapsing, for the respondent.
   Follett, J.:

The defendant claims that he is entitled to costs under section 3234 of the Code of Civil Procedure, which provides: In an action specified in section 3228 of this act, wherein the complaint sets forth separately two or more causes of action upon which issues of fact are joined, if the plaintiff recovers upon one or more of the issues, and the defendant upon the other or others, each party is entitled to costs against the adverse 'party, unless it is certified that the substantial cause of action was the same upon each issue, in which case the plaintiff only is entitled to costs.”

This is one of the actions specified in section 3228, and it has not been certified that the substantial cause of action was the same in each issue. ’ Only one cause of action is set forth in the complaint, and but one issue of fact is joined by the pleadings. The property was all taken on one occasion, by a single act, and the plaintiff had but one cause of action and consequently could not set forth two or more causes of action in his complaint.

On the trial two issues of fact were developed by the evidence, and determined by the referee: (1.) Whether the transfer of the property by the wife of the judgment debtor to the plaintiff, was an honest transfer of her own property, or a colorable transfer of property actually owned by the judgment debtor. (2.) Whether the transfer of property by the judgment debtor to the plaintiff was an honest or a fraudulent transfer. The plaintiff claimed to have acquired part of the property by one transfer, and part of it by the other. The first issue was determined in favor of the plaintiff, and the property embraced in the transfer therein mentioned was adjudged to be of the value of $293, and that plaintiff was entitled to recover it. The second issue was determined in favor of the defendant, and the value of the property described in the transfer therein mentioned was adjudged to exceed in value $108 (the amount due on the execution), and that defendant was entitled to recover it for the purpose of enforcing his execution.

The section quoted, states in plain terms that the defendant is not entitled to costs in such a case unless “ the complaint sets forth separately, two or more causes of action upon which issues of fact are joined.” The apparent design was to give both parties costs in a case in which the complaint sets forth more than one cause of action, provided both parties recover upon one or more of the causes of action. In legal actions, neither party is entitled to costs unless they are given by a statute, and the courts are without power to give or withhold costs on the merits of the controversy. (Stoddard v. Clarke, 9 Abb. [N. S.], 310, 312.) The defendant in support of his position refers to Wright v. Williams (2 Wend., 632); Seymour v. Billings (12 id., 286); Johnson v. Fellows (6 Hill, 353). These cases arose under section 26 chapter 10 of part third of the Revised Statutes (2R. S., 617), which provided : “Section 26. When there shall be several issues joined in any cause, and a verdict shall be rendered for the plaintiff on one or more of them, and for the defendant on another, if the plaintiff obtain judgment upon the whole record, costs shall be awarded as follows : 1. When the substantial cause of action was - the same in each issue, the plaintiff shall recover the costs on those issues which were found for him, and shall not be liable to the defendant for the costs of the issue which shall have been found for such defendant. 2. When there are. two or more distinct causes of action, in separate counts, the plaintiff shall recover costs on those issues which are found for him, and the defendant on those which are found in his favor.”

At common law, and under the Revised Statutes, rules of pleading and practice peculiar to the action of replevin, prevailed. When both parties claimed the goods, both were deemed actors or plaintiffs. (Coan v. Bowles, 1 Show., 165, 169; S. C., Carth., 122; Anonymous, 2 Mod., 199; Small v. Bixley, 18 Wend., 514; Persse v. Watrous, 30 Conn., 139, 146; Wells’ Replevin, § 21). When the defendant admitted and justified the taking, he was said to avow (3 Black. Com., 149; Whart. L. Dict. and Abb. L. Dic., Avowry) an avowry was in the nature of a declaration (7 Bac. Abr. [7th ed.] 103, title “ Replevin and Avowry”; Whart. L. Dic, Avowry), which required a reply from the plaintiff, and in default of one, the defendant was entitled to a judgment. (People ex rel. Lownds v. N. Y. Com. Pleas, 2 Wend., 644.)

The section of the Revised Statutes above quoted did not, like the Code, require the several causes of action to be separately set forth in the declaration, but it was sufficient if the several causes of action were contained in separate counts. An avowry, was held to be in effect, a declaration, a separate count, a cause of action (Coan v. Bowles, supra; Butt's Case, 7 Coke, 24 b; 6 Robt. Pr., 539; 1 Saund. [5th ed.], 347 b, note 3 ; 2 Sel. N. P. [13th ed], 1153); and if upon such issues (both parties presenting affirmative ones) both recovered, both are entitled to costs. The cases under the Revised Statutes are not applicable to the Code, or to the rules of pleading and practice established by it. The section of the Revised Statutes above quoted was superseded by the old Code (Stoddard v. Clark, 9 Abb. [N. S.], 310; Watson v. Gardiner, 50 N. Y., 671), and was expressly repealed by chapter 245, Laws of 1880.

Ackerman v. De Lude (20 N. Y. W. Dig., 544) is not fully reported, but it seems from the meager report that goods were replevied which were alleged to have been purchased at different times with a preconceived design not to pay for them. The complaint contained but a single count. Some of the purchases were held fraudulent, and others not; and each party recovering goods valued at more than fifty dollars, both were held to be entitled to costs.

When two or more independent causes of action are improperly united in a single count, and the defendant is unnecessarily put to the expense of defending a cause of action upon which he recovers, it may be that the Code is broad enough to give him costs, upon the theory that the record, at the conclusion of the trial, necessarily separates the causes of action, and that the defendant shall not be deprived of costs by the fault of the plaintiff. But this is not such a case. This plaintiff had but a single cause of action, and consequently could not set forth more. It may be that in a case like the one at bar, each party should be given costs, but the statute has not so provided, and the court is without power to go beyond the statute.

(See Cooper v. Jolly, 30 Hun, 224; Williard v. Strachan, 3 Brown Civ. Pro. R., 452.)

The order is affirmed, with ten dollars costs and disbursements.

HaRdiN, P. J., and BoardMAN, J., concurred.

Order affirmed, with ten dollars costs and disbursements.

       36 Hun, 44. — [Rep.


text:
    EDWIN F. FOSTER, Respondent, v. ALFRED WILKINSON, J. FORMAN WILKINSON, CHARLES P. CROSBY and JOHN WILKINSON, Appellants.

      Supplementary proceedings — a witness may he compelled to attend in a counvy other than that of Ms residence — Oode of Oiml Procedure, sec. 2459 — when an attorney cannot refuse to testify as to a transaction had with his client on' the ground that it was privileged — Oode of Oivil Procedure, see. 835.
    The prohibition contained in section 2459 of the Code of Civil Procedure against compelling a judgment debtor, or other person required to appear and be examined in proceedings supplementary to execution, to attend at a place without the county wherein his residence or place of business is situated, does not apply to witnesses subpoenaed to appear and testify in such proceedings. Such a witness may be compelled to appear and be examined in a county other than that of his residence.
    In proceedings supplementary to execution a person, to whom a mortgage had been given by one to whom the judgment debtors had conveyed the real estate described in the mortgage, was subpoenaed as a witness and interrogated as to the circumstances attending the execution of the mortgage and the consideration thereof. He refused to answer on the ground that he was an attorney and counselor-at-law, and was, at the time the mortgage was given, acting as the counsel of the mortgagor.

      Held, that the witness by becoming a party to the mortgage lost his privilege and was bound to testify in respect to its execution and consideration the same as any other witness.
    Appeal from art order of the county judge of Onondaga county adjudging the appellant Crosby guilty of contempt in refusing to answer certain questions put to him in proceedings supplementary to execution.

      Chamberlai/n db Ayers, for Charles P. Crosby, appellant.

      Louis Marshall,■ for John Wilkinson, appellant.

      Hiseoek, Gifford da Doheny, for the respondent.
   Follett, J.:

December 9, 1884, a deed executed by Alfred Wilkinson and J. Forman Wilkinson to John Wilkinson, purporting to convey the Globe Hotel property, and a mortgage executed by John Wilkinson to Charles P. Crosby, upon the same property to secure the pay-iment of $125,000 were recorded in the office of the clerk of Onondaga county. On the same day Alfred and J. Forman Wilkinson made a general assignment for the benefit of creditors, which was recorded the next day. The deed bears date May 5, 1884, and the mortgage November 24, 1884. January 8, 1885, a judgment was entered and docketed in the County Court in favor of the plaintiff and against Alfred arid J. Forman Wilkinson, upon which proceedings supplementary to execution were duly instituted before the county judge of Onondaga county. Charles F. Crosby, the mortgagee, a resident of the city of New York, was subpoenaed to .attend the examination as a witness for the plaintiff, pursuant ■to section 2444 of the Code, of Civil Procedure. The witness appeared and was sworn, and thereupon his counsel objected to his examination on the ground that he could not be compelled to testify outside of the county of his residence. This objection was overruled by the county judge and the witness required to answer, which is alleged to be error. Judgment debtors and third persons proceeded against_ under section 2441, if residents of this State, cannot be compelled to submit to an examination without the county of ■their residence. (Sec. .2459.) This limitation is not applicable to witnesses. The design of the Code is to require such proceedings to be conducted in the county in which the parties proceeded against reside, for their convenience and for the protection of their rights, which would be wholly defeated if the proceedings are required to be held in the county in which a witness for either party happens to reside. A witness may be compelled to be examined in supplementary proceedings in a county other than the one of his residence. (Code of Civil Pro., §§ 854 to 858 and 2444.)

The witness, on being interrogated about the circumstances attending the execution of the mortgage to him and about its consideration, refused to answer on the ground that he was an attorney .and counselor-at-law, and was at the time acting as the counsel of the mortgagor, whereupon the county judge adjudged him guilty of contempt, imposed a fine of $125, and ordered him to stand committed until paid. The witness, by becoming a party to this mortgage, lost his privilege, and was bound to testify in respect to its execution and the consideration upon which it was executed, the same as any witness. A client is privileged from testifying to such transactions and communications with, his counsel as his counsel is-privileged in respect to, and it would be a strange rule which should permit attorney and client to enter into mutual contracts and be exempt from testifying as to their consideration and integrity, when-attached by creditors. Such a rule would enable persons to perpetrate the grossest frauds without the possibility of detection. When an attorney witnesses a contract executed by or to his client, he is-bound to testify in respect to it. (Doe v. Andrews, 2 Cowper, 845; Robson v. Kemp, 5 Esp., 52; Lord Walsingham v. Goodricke, 3 Hare, 122, and notes to the Am. ed.; 1 Greenl. Ev., § 244; Taylor’s Ev., §§ 852, 853; Whart. Ev., § 592; Story’s Eq. Pl., § 601.) The solicitor, acting as particeps crimmis, and not in the true-relationship of solicitor and client, is bound to produce the documents concocted between him and his client.” (Reynell v. Sprye, 11 Beav., 618.) Section 835 of the Code of Civil Procedure is but an affirmation of the common-law rule, and has not extended the privilege to a case like the one at bar. It was not urged before the-referee nor upon this appeal that the subpoena was not issued by the referee, as provided by section 854 of the Code of Civil Procedure. (People v. Ball, decided at this term.) The witness was-not punished for refusing to attend in obedience to the subpoena,, but for refusing to answer after having been sworn.

The order is affirmed, with ten dollars costs and disbursements..

Hardin, P. J., and Yann, J., concurred.

Order affirmed, with ten dollars costs and disbursements.

       Reported; see next case.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HENRY JACOBS, Respondent, v. ELIZA BALL, Appellant.

      ■Supplementary proceedings — subpoenas to witnesses should be under the hand of the referee before whom they are to testify — Code of Civil Procedure, sec. 854.
    Where supplementary proceedings, instituted upon a County Court judgment, have been referred by the recorder of a city to a referee to take and report the evidence, subpcnnas to witnesses should be issued under the band of the referee before whom they are to testify, and not be tested in the name of the county judge and county clerk as though issued in an action pending in a County Court.
    Appeal from, an order, made by tbe recorder of the city of 'Oswego, adjudging the appellant in contempt for willfully disobeying a subpoena directing her to appear and be examined as a witness in proceedings supplementary to execution.

      D. P. Lester, for the appellant.

      O. B. Allison, for the respondent.
   Follett, J.:

Supplementary proceedings were instituted on a County Court judgment before the recorder of the city of Oswego, who referred the matter to a referee to take and report the evidence. The .attorney for the plaintiff in-the proceedings signed a subpoena which was tested in the name of the judge of the County Court and purported to bear the signature of the county clerk. The original ■subpoena was exhibited to the appellant and a ticket containing the substance of the original subpoena was delivered to her and her fees as a witness paid. The papers in form and the proceedings under them were sufficient to legally subpoena a witness to testify in an action pending in a County Court. The witness failed to attend, for which she was adjudged in contempt and fined thirty dollars by the recorder.

Supplementary proceedings are special proceedings. (Code Civil Pro., § 2433.) The subpoena should have issued under the hand of the referee before whom the witness was required to testify. (Code Civil Pro., § 854, and Throop’s note to § 2444.) A person cannot be punished for disobeying a process issued without authority.

The order is reversed, with ten dollars costs and disbursements.

Hardin, P. J., and Yann, J., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Eollett, J.:

text:
    RICHARD M. CLARK and GEORGE H. BALDWIN, as Executors, etc., of SARAH GIBSON, Deceased, Respondents, v. HENRY L. KINGSLEY, Appellant, ROBERT BROOKSBANK, Respondent, and Others.

      Advancements — when a payment made subsequent to the execution of a first will and prior to that of a second and last will, each will giving the same legacy, should not be treated as an advancement upon such legacy.

    In November or December, 1879, Sarah Gibson executed a will by which she-bequeathed $1,000 to Henry L. Kingsley. April 1, 1880, she loaned $400 to one Shapley and took from him his promissory note, payable to Henry L. Kingsley or bearer, which note she handed to Kingsley, to whom it was with her assent paid in April, 1881. May 20, 1881, she executed a second and last will by which she bequeathed $1,000 to'the said Kingsley.

      B.eld, that the $400 should not be treated as an advancement and payment upon the legacy as the last will was executed after it had been paid.

    Appeal from a judgment, entered upon the trial of this action by the court without a jury.
    In November or December, 1819, Sarah Gibson executed a will by which she bequeathed $1,000 to Henry L. Kingsley. April 1, 1880, Mrs. Gibson loaned Thomas W. Shapley $400, for which he gave his note, payable to Henry L. Kingsley or bearer. The note was handed to Mrs. Gibson, who immediately handed it to Kingsley, to whom it was paid April 1, 1881, with the assent of Mrs. Gibson. May 20,1881, Mrs. Gibson executed a second and last will, by which she bequeathed $1,000 to said Kingsley.
    February 27,1882, Mrs. Gibson died, and March 13,1882, her last will (dated May 20, 1881) was duly proven and admitted to probate. The executors brought this action for a construction of the will and for authority to sell the real estate to pay the legacies. All of the legatees- and the heir at law are parties defendant. The heir at law answered, alleging that the sum received by Kingsley was .paid and received as an advancement upon the legacy of $1,000 bequeathed him. King3iey answered, denying this allegation, and served his answer on the plaintiffs and his co-defendants. The issue joined hy these answers was tried at Special Term, which held that the $400 was paid and received as an advancement, and but $600 was due Kings-ley on his legacy. A judgment was entered, from which Henry L. Kingsley appeals.

      William, H, Hyde, for the appellant.

      George W. Hay, for the plaintiffs, respondents.

      Solomon Brmd/y, for defendant Brooksbank, respondent.

       See ante, page 216.

   Eollett, J.:

Advancements cannot be equalized upon the final distribution of estates, except in cases of total or partial intestacy. (Thompson v. Carmichael, 3 Sandf. Ch., 120; 4 Kent’s Com., 418, 419; Will. Ex., 401; Day. Sur. [3d ed.], 563; 2 Will. Ex. [6th Am. ed], 1608; and Hays v. Hibbard, 3 Redf., 28; Redfield on Sur. [2d ed.], 569.) When a testator, after the execution of a will, advances money toa legatee, it may be shown by oral evidence that it was intended as a satisfactian, in whole or in part, of the legacy. But if the will is silent on the subject of advancements, it cannot be shown by oral evidence that an advance made prior to the execution of the will was intended as a satisfaction in whole or in part of a legacy. (Camp v. Camp, 18 Hun, 217; Zeiter v. Zeiter, 4 Watts, 212; Kreider v. Boyer, 10 id., 54; Jones v. Richardson, 5 Met., 247; In re Peacock’s Estate, L. R,, 14 Eq. Ca., 236; Van Houten v. Post, 32 N. J. Eq., 709.)

In Camp v. Camp, supra (see 2 Redf., 141, for the facts), the testator advanced to his children previous to the execution of his will, various sums of money, taking a receipt in the following form: Received of Sylvester Camp $500, as a part of my apportionment of his estate.” Some of his children were advanced more than others. After all of the advancements had been made, he executed his will, dividing his estate equally among his ten children. It was held that the advancements could not be equalized, and that the sums received by the children could not be applied in part satisfaction of their shares.

In Upton v. Prince (cases in Eq. Temp. Talbot, by Forrester, 71) the testament was executed prior to the statute of wills, and the advancement was evidenced by a paper, testamentary in its character. A legally executed will is the highest and most solemn evidence of the testator’s intention as to the disposition of his' property, superseding all prior dispositive declarations, oral or written, and canno.t be overthrown by oral evidence. Evidence of subsequent advancements does not dispute the will or contradict the declared intention of the testator, but establishes that the will has been carried into effect in whole or in part by the testator in his lifetime. The case shows that the testator’s last declaration upon this subject was the will, and it is conclusive.

The judgment is sought to be supported upon the theory that the last will was, in effect, but a republieation of a will made before the advance, which, it is argued, was in all respects like the last will, except that different persons were nominated as executors. A sufficient answer to this is that there is no such evidence. The witness who testified to the contents of the prior will, said that she bequeathed $1,000 to Kingsley by it, and nominated different executors. He did not testify that the wills were alike in all other respects, and the finding “ that said will, so far as it appears, did not differ from her last will and testament, except that it named a different executor,” is not equivalent to a finding that the two wills were in all respects alike, except in the executors nominated. The evidence was confined to showing that the wills were alike as to this particular legacy, but whether they were alike or unlike in other respects was not inquired into.

It has been many times held that a republication of a will-by the execution of a codicil does not revive a legacy paid in whole or in part between the date of the will and the date of the codicil. The effect of a new will is quite different from the effect of a codicil. A codicil reaffirms the prior will so far as they are not inconsistent, while a new will revokes the whole of the prior will. (Simmons v. Simmons, 26 Barb., 68, 75.) No case has been cited holding that an advance is to be applied in reduction, or in satisfaction of a legacy subsequently given, unless the will, or some testamentary paper wbicb is deemed a part of the will, so provides. If, subsequent to the execution of a will, an advance is made to a legatee under circumstances from which the court would presume a satisfaction of the legacy, and afterwards a codicil is executed referring to the legacy as existing, the advancement will not be presumed to have been a satisfaction. (Hopwood v. Hopwood, 22 Beav., 488, 493; Pom. Eq. Juris., § 561.) If a testator, after bequeathing a legacy, makes an advancement to the legatee under circumstances from which the court would presume a .satisfaction of the legacy, ■and subsequently revokes the will and executes a new one giving a like sum to the same legatee, the court will not presume it to be ■satisfied by the prior advancement.

The cases determining the rights of legatees and devisees who are also entitled to sums or property, under prior agreements for future settlements, are not germane to the question under consideration. (Chichester v. Coventry, L. R., 2 Eng. and I. App. Cases, 71.) It should be borne in mind that the legacy under consideration is a general instead of a specific legacy, and that circumstances sufficient to warrant the court in presuming a satisfaction of a specific legacy are insufficient to warrant the presumption in the case of a .general legacy.

The portion of the judgment appealed from by Henry L. Kingsley is reversed, and a judgment absolute is ordered in his favor adjudging that the legacy bequeathed to him be paid in full, with the costs in the court below and of this appeal, payable out of the estate.

HaediN, P. J., and YaNN, J., concurred.

So ordered.


author: YaNn, J.:

text:
    In the Matter of the Judicial Settlement of the Account of JOHN HOHMAN and LOUIS FAASS, Executors, etc., of JOHN B. WASMER, Deceased.

      Legacy — construction of a condition to which it is subject — when the condition will be held void as repugnant to the gift.

    One Wasmer died on August 7, 1875, leaving a will dated December 12, 1874, by the seventeenth clause of which he gave to his executors the sum of $3,000 in trust, to invest the same and apply the income thereof to the support and education of his nephew John B. Wasmer during his minority and during his-father’s life, and after his father’s death to pay over the principal to the son. In case the nephew should die before his father the principal was to go to the nephew’s children, if any; and if none, then to one Agnes Hohman. This clause further provided as follows: “This gift, bequest or benefit to said nephew John B. Wasmer, is made upon condition that his right to said sum, and to the income or interest thereof, is made dependent upon the condition that none thereof, or of the other property or moneys received by him under this will, shall be given, paid or loaned to his said father; and my executors, as such trustees, are authorized, and I order and direct, that before paying any of said income or interest thereof, or said sum itself, or any part thereof, or of either thereof, to my said nephew, they ascertain whether or not he has before then given, paid or loaned anything thereof, or of the other property or moneys received by him under this will, to his said father;” and in case he had so-done, then he was to receive no more of such income, and none of the money, and the same was to be given to his children, if any, and if not to Agnes Hohman.
    The clause then further read: “It is my will and intention that the father of my said nephew receive none of my estate. I give none to him by this will, and intend that none of my estate be given to him after its receipt by my said nephew John B. Wasmer, and therefore-make the above condition, * * * but do intend to provide, and it is my will, that my said nephew’s said father shall receive none of my estate, and for that reason make such condition.” By the nineteenth clause he gave one-half of his residuary estate to his said nephew, “to have and to hold forever on the condition stated in the seven-teeth item or division, of this will as to giving, paying or loaning the same, or any property received under this will, to his said father.”
    The nephew died, unmarried and intestate, on January 26, 1877, aged sixteen-years, leaving his father his only heir-at-law and next of kin.

      Held, that the administrator of the nephew was entitled to receive the half interest in the residuary estate given to the nephew by the nineteenth clause.
    That the condition that none of the money or property should be given, paid or loaned to the father referred to a voluntary and intentional gift, payment or loan, and was not intended to limit the disposition to be made thereof under the statute of distribution.

      That if the condition should be held to be such as to defeat the legacy in case the father should be in a situation to take it under the statute, or in case any portion of it should be given to him by his son after the latter had received it, then the condition was void as repugnant to the gift.
    That the same rule applied as to the devise of the residuary real estate.

      It seems, that the condition providing- that before paying over the different legacies to the nephew the executors should ascertain whether he had before then given, paid or loaned any part thereof to his father, and, if he had, prohibiting them from paying anything more to him, was valid.
    Appeal from a decree of the surrogate of Oneida county adjudging that a residuary devise and bequest to an infant vested in him, and that upon his death unmarried and intestate it passed to his heirs-at-law and next of kin.
    On the 7th of August, 1875, John B. Wasmer, of Utica, died,, leaving a last will and testament, dated December 12, 1874, which was admitted to probate bj^ the surrogate of Oneida county on the 28th of September, 1875. By the second clause of said will the testator gave to his wife Mary his homestead and household property during her natural life, with an annuity of $600. By the sixteenth clause he gave the homestead and contents, subject to said life estate, to his nephew John B. Wasmer in case he should live to be thirty-five years of age and to his children if he should die before reaching that age and to Agnes Hohman if he should die childless before reaching that age. Said clause also provided that after the decease of testator’s wife, if she should survive him, otherwise from his own decease, the- said nephew should have, use and enjoy the homestead, furniture, etc., during his natural life if he died before the age of thirty-five or until he became thirty-five, if he should live so long. By the seventeenth clause he gave to his executors the sum of $3,000 in trust to invest the same and apply the income to the support and education of said nephew during his minority and upon his becoming of age, if his father should then be living, said nephew was to receive the income of said sum during the life of his father, and upon his father’s death, the principal. If the nephew should die before his father, leaving children, then the principal was to be paid to them. If the nephew should die childless, before his father, the principal was to go to said Agnes Holl-inan. The remainder of said clause is in these words: “ This gift, bequest or benefit to said nephew John B. Wasmer is made upon condition that, and bis right to said sum, and to the income or interest thereof, is made dependent upon the condition, that none thereof or of the other property or moneys received by him under this will shall be given, paid or loaned to his said father; and my executors, as such trustees, are authorized and I order and direct that before paying any of said income or interest thereof, or said sum itself, or any thereof, or of either thereof, to my said nephew, they ascertain whether or not he has before then given, paid or loaned anything thereof, or of the other property or moneys received by him under this will to his said father, and if he. shall have so paid, given or loaned any thereof to his said father, it is my will, and I order and direct that he receive and be entitled to receive no more of such income or interest, and none of such sum of money; but that same go and it is my will if said nephew leave child or children him surviving, it go to, and I order and direct my said executors to pay same to such children, equally share and share alike ; and if my said nephew John B. "Wasmer in such case leave no children him surviving, that same and all thereof belong to and be paid to my said adopted daughter Agnes Hohman as her sole and separate property. It is my will and intention that the father of my said nephew receive none of my estate. I give none to him by this will, and intend that none of my estate be given to him after its receipt by my said nephew John B. Wasmer, and therefore make the above condition. But I do not object nor make any condition concerning my said nephew’s giving, paying or loaning any moneys, he by his own labor shall earn or accumulate, to his said father, nor in the 'least wish to prejudice my said nephew against his said father; but do intend to provide, and it is my will that my said nephew’s said father receive none of my estate, and for that reason make such condition.”
    By the nineteenth clause said testator gave one-half of all the rest and residue of his estate, real and personal, to his said nephew, “ to have and to hold forever on the condition stated in the seventeenth item or division of this will, as to giving, paying or loaning same, or any property received under this will, to his said father.” By the twentieth clause he gave u all the rest and residue ” to his adopted daughter Agnes Hohman.
    John Hohman and Louis Faass were named as executors and, upon probate of tbe will, duly qualified. The testator’s wife died November 29,1879, and bis nepbew, wbo never married, died January 26,1877, aged sixteen years. Jacob Wasmer, testator’s brother, and the father of his said nephew, is still living, as is also his adopted daughter Agnes Hohman. No letters of administration have been issued upon the estate of the said nephew.
    On the 1st of March, 1883, the executors filed their accounts, and a decree was made by the surrogate, which, among other things, directed payment to Agnes Hohman of the legacy named in the seventeenth clause of said will, and also the sum of $4,451.41, and that a like sum should be paid to the surrogate to abide his decision in regard thereto. The executors were, on making such payments, to be discharged from all further liability, except as to a trust fund of $1,500 not material on this appeal. On the 18th of December, 1883, a supplementary decree was made adjudging that said sum so deposited with the surrogate should be retained by him until tne appointment of a personal representative of said John B. Wasmer, deceased, nephew of said testator, and that upon such appointment being made the surrogate pay over to him said sum, with all accumulations of interest.
    From the decree last named the executors and Agnes Hohman appealed to this court.

      H. W Mclncrow, for Agnes Hohman and John Hohman, and Louis Faass, executors, appellants.

      F. G. Finche, for Jacob Wasmer, respondent.
   YaNn, J.:

The only question presented by the learned counsel for the appellants in his brief or argument is whether Agnes Hohman, or the personal representative of John B. Wasmer, the deceased nephew of the testator, is entitled to the sum of $4,451.41, deposited with the surrogate of Oneida county. That sum represents one-half of the residuum of the estate bequeathed by the nineteenth clause of the will to said John B. Wasmer, the other half having already been paid over to Agnes Hohman under the twentieth clause. As said John B. Wasmer left no child, descendant or widow, and had not reached the age required by statute to bequeath per■sonal estate, bis father would be entitled to the surplus remaining after payment of debts. (3 B.. S. [7th ed.], 2285, § 21; 2304, §75, sub. 7.) The real estate would also be inherited by his father. (Id,, 2210, §§ 1-5.)

The appellants contend that the seventeenth and nineteenth clauses of the will, when construed together, show a clear and determined intention on the part of the testator to allow no portion of his estate, under any circumstances, to be given to his brother Jacob Wasmer, father of said John B. Wasmer.

The respondents contend that Jacob Wasmer takes nothing directly from the estate of the testator, but that he takes the estate of his deceased son by the paramount force of the statutes of descents and distributions, and that thus he is entitled to any vested interest of his son under the will in question.

By the nineteenth clause of the will there is first a gift, absolute in form, followed by a condition subsequent, the effect of which is not to prevent the immediate vesting of the legacy, but, upon the happening of an uncertain event, to divest and determine the title of the legatee. The gift in terms describes a present vested interest. No words of futurity are used. No time of payment or performance is annexed to the substance of the legacy. There is no intimation of any desire to suspend or postpone its operation. If it did not vest upon the death of the testator when could it vest ? If the nephew were living now can there be any doubt that it would be payable to him ? But why, unless it had vested at the testator’s death? What event has since happened to cause it to vest ? The law favors the vesting of estates, and the general rule is that property which is the subject of any disposition, whether testamentary or otherwise, will belong to the object of the gift from the instant that the instrument takes effect. (2 Jarman on Wills [5th ed.], 799 ; Wms. on Exrs. [7th ed.], 1223.)

The language used imports a devise in fee of one-half of the residue of the real estate, and a bequest of one-half of the residue of the personal estate, as an immediate gift. While the amount could not be ascertained, and hence not paid over or delivered until after the debts were discharged and other provisions of the will executed, yet the title to the residuary estate vested the moment that the testator died. “ Although the residuary legatee dies before tbe payment of debts, and before the amount of the surplus is ascertained, yet it shall devolve on his personal representative.” (Wins. on Exrs., 1454; Brown v. Farndell, Carth., 52; Bayley v. Bishop, 9 Ves., 6; Tucker v. Ball, 1 Barb., 94; Sweet v. Chase, 2 N. Y., 73; Bell County v. Alexander, 22 Texas, 350.) The legacy, therefore, upon the testator’s death became the property of the legatee, with all the ordinary incidents and attributes of property, and he could have given good title to the same upon transfer had he been of age. (Patterson v. Ellis, 11 Wend., 259; Arcularius v. Geisenhainer, 3 Bradf., 64; Pinney v. Fancher, Id., 198; Ennis v. Penty, Id., 382; 2 Redf. on Wills, 249.) It vested, however, subject to a condition. The condition contained in the nineteenth clause of the will when read in connection with that contained in the seventeenth, to which it refers, is that none of the money or property received by said John B. Wasmer under said will should be “given, paid or loaned ” by him to his father. No •other condition is specified in either clause. No other limitation is placed upon the disposition to be made by the legatee of the legacy or its proceeds. No attempt is made to limit its disposition by the statutes of descents or distributions, or of its transfer by sale on legal process, even if in favor of the father of the legatee. The condition implies some act on the part of tne nephew, a voluntary and intentional gift,.payment or loan. There is an important and essential distinction between compulsory and voluntary alienation. (Rochford v. Hackman, 9 Hare, 475.)

The nineteenth clause is in express terms made subject to the condition contained in the seventeenth as to giving, paying or loaning, and if in fact the latter clause contained any other condition the former would not be subject to it. There is an express limitation to the condition specified. No effect is therefore to be given to the language of the seventeenth clause, preceding the condition, and which forms no part of it. That language relates to the creation of a trust and the disposition of a trust fund in certain contingencies, whether the condition was kept or not.

The condition itself, as set forth in the seventeenth clause, prescribes no contingency upon which the nephew shall cease to enjoy, except his giving, paying or lending to his father.

The subsequent general declaration of the testator’s intention “ that the father of my said nephew receive none of my estate ; I give none to him by this will, and intend that none of my estate be given to him after its receipt by my said nephew,” does not add to or change the condition. It merely adds emphasis to the direction that the nephew should not give, pay or loan any part of his inheritance to his father. If it means more than this, why does it not make every legacy in the will conditional ? It cannot be contended that Mrs. ITohman and other legatees are prohibited from giving their part to Jacob 'Wasmer, although the general terms used would indicate such an intention, unless they are limited by the specific definition of the condition which precedes such use. Recent cases are emphatic in holding that where an estate is given in one part of a will in clear and decisive terms, it cannot be taken away or cut down by' any subsequent words, even when a part of the same clause, if they are not as clear and decisive, both in meaning and application, as the words giving the estate. (Roseboom v. Roseboom, 81 N. Y., 356-359; Clarke v. Leupp, 88 N. Y., 228 ; Campbell v. Beaumont, 91 N. Y., 464; Thornhill v. Hall, 2 Clark & Fin., 22.) But assume that the testator intended to provide, as a part of the condition, that the property given to the nephew by the will should not, upon the nephew’s death, be inherited by his father, and it will not aid the appellants. It would, in effect, provide that the heir-at-law and next of kin of the nephew could not inherit from him property that he owned. Such a condition would be void. It would be an attempt not only to subvert the statutes of descents and of distributions, but to deprive property of an essential attribute, such as the right of transfer. There is a point beyond which a testator cannot go in disposing of his estate. He cannot give a sum of money to another for his own use and benefit and yet control the use to be made of it. Such a condition would be inconsistent with the nature of the gift and void for repugnancy.

Legacies upon the following conditions, with a gift over in case of violation, have been held void : if the legatee should die without making any disposition of the legacy (Green v. Harvey, 1 Hare, 428; Watkins v. Williams, 3 Mac. & G., 622; Hughes v. Ellis, 20 Beav., 193; Sevier v. Brown, 2 Swan [Tenn.], 112); if he should omit to make a will (Weale v. Ollive, 32 Beav., 421); if he should not alienate within a given time (Shaw v. Ford, 7 Ch. D., 669); if he should sell to any but a certain person named (Muschamp v. Bluet, J. Bridgm., 132, 137; Schermerhorn v. Negus, 1 Den., 448; Attwater v. Attwater, 18 Beav., 330); if he should not spend both principal and interest during' his lifetime [Henderson v. Cross, 29 Beav., 216); if he should anticipate the dividends of a fund (Rishton v. Cobb, 5 Myl. & Cr., 132); if he should attempt to dispose of the principal (Bradley v. Peixoto, 3 Vesey, Jr., 324; Graham v. Lee, 23 Beav., 388; In re Payne, 25 id., 556); if the land should not be forever leased, or cultivated in a particular mode (Attorney General v. Catherine Hall, Jacob, 380, 395; 2 Redfield on Wills, 287); if the devisee should offer to mortgage the estate (Ware v. Cann, 10 B. & Cr., 433); if the devisee should continue to inhabit a certain town. (Newkerk v. Newkerk, 2 Caines, 345.)

So where there was a devise in fee with a condition that the wife of the devisee should not be endowed or the husband become tenant by the courtesy, or that no annuity should be charged upon the . estate. (Portington's Case, 10 Co. Rep., 35 a.; Mildmay’s Case, 6 Co. Rep., 40 a.; Willis v. Hiscox, 4 Myl. & Cr., 197, 201.) A condition that the land shall not he subject to conveyance or attachment is void. (Blackstone Bank v. Davis, 21 Pick., 42.)

In Williams v. Jones (2 Swan [Tenn.], 620) the testator’s will contained the following provisions : I loan to my beloved wife Martha Williams the following property, to wit” (sundry slaves), during her natural life,” and all his other property after paying his debts. “ The condition of the above loan is such, that if the said Martha Williams should think proper to marry or dispose of this property in any manner whatever so that Thomas Jones, Margaret Jones, Rebecca Andrews, Elizabeth Jones, nor either of them, nor their heirs, shall never enjoy any of the above named property, nor money, nor have anything to do with it in any manner whatever, then the above loan to be void, or else stand in full force and virtue. It is my desire that no misconstruction be laid on this my last will and testament so as to deprive my wife Martha Williams of a bona fide title to the above named property and the increase thereof forever ; provided that she should manage it in such manner that neither of the above mentioned ” (persons), “ nor neither of their heirs shall never inherit any part of my estate. But if she should not dispose of this property so as to deprive ” (said persons) nor their heirs, then this loan to talce effect.” The widow sold some ot the slaves to the prohibited persons and bequeathed the rest, with the increase, to the same persons or their children. Charles Williams, sole heir-at-law and next of kin of the testator, filed a bill to recover the slaves ; held, that under the will the widow took an absolute estate which she might dispose of by will or deed to the excluded persons or others at her pleasure.

The same rule governs both real and personal estate, as will be seen by examining the authorities cited. (See, also, 2 Redfield on Wills, 288; In re Yalden, 1 De G. M. & G., 53; In re Mortlook's Trust, 3 Kay. & J., 456; Martin v. Martin, 12 Jur. [N. S.], 889.)

Conditions are not sustained when they infringe upon the essential enjoyment and independent right of property and tend manifestly to public inconvenience, such as the difficulty of ascertaining how much was left when the condition was broken and the danger of dealing with property that lacks some of the essential qualities of property. (Bradley v. Peixoto, 3 Vesey, Jr. [Sumners’ ed.], 324, note a.) The principle upon which these cases, rest is that the condition is repugnant to the gift and therefore void.

If, then, the, nineteenth clause of the will is subject to the condition that the estate, real or personal, given thereby is to be defeated, provided the father of the legatee should otherwise be in a situation to inherit it from him, or provided, after it was paid over to the legatee, he should give any part of it to his father, the condition is void. The gift would stand, but the condition would be rejected.

So far as the condition provides that before paying over the different legacies to the nephew the executors should ascertain whether he had “before then given, paid or loaned anything thereof or of the other property or moneys received by him under this will to his said father,” and if he had, prohibiting them from paying any more to him and directing that it be paid to some one else, it is doubtless valid. This, we think, is what the testator meant, or what the language used by him means. The condition, when thus construed, was never violated by the nephew. He could not legally have violated it owing to his age at the time of his death. He died owning one-half of the residue of the estate, both real and personal, and the statute transferred his title to his heir-at-law and next of kin. It was, however, the estate of the nephew, not of the testator, when thus transferred. The father takes, in ’egal effect, not from the estate of the testator, but from the estate of his own son, and not •by the act of his son, but by operation of law.

The decree of the surrogate’s court should be affirmed, with costs.

IÍARDiN, P. J\, and Follett, J., concurred.

The decree of the surrogate of Oneida county affirmed, with costs against the appellants.


author: YaNN, J:

text:
    MYRON PARDEE and Others, Respondents, v. D. JACKSON STEWARD, Appellant.

      Foreclosure of a mortgage on a leasehold estate — effect of a sale upon a subsequent lease when the lessor is not made a party — an assignee of a lease is liable for rent unless he has parted, with his whole term.

    By a lease in fee, executed in 1848, the plaintiffs’ predecessors conveyed a lot on the Yarick canal, in Oswego, to the lessees therein named, with the right to draw from the canal one run of first-class water, to be used only upon the lot, for any purpose except for a flouring, grist or saw-mill. By a second lease they conveyed to one Randall, who was grantee of a part of said lot, one run of first-class and two runs of second-class water. The first lease reserved an annual rent of $100, and the second of $500, and each contained covenants by which the lessees bound themselves, their heirs and assigns, to pay the said sums and all taxes that might be assessed upon the premises. After these leases had been duly recorded, and on July 1,1871, one Wilson, who had acquired the rights of the lessees, executed a mortgage for $15,000 upon the lot and water rights, which was recorded August 20, 1872. August 6, 1872, a third lease was given to Wilson extending the purposes for which the water might be used under the two leases above mentioned, and reserving an additional rent of $4U0, making $1,000 in all, which the lessee, for himself, his heirs and assigns, covenanted to pay. In 1873, after the third lease had been recorded, an action was brought to foreclose the mortgage, to which the lessors were not made parties. Under a judgment entered therein and in July, 1874, the lot and rights were sold to the defendant, who took possession of the premises, and has since continued to occupy them. The defendant having paid the $1,000 rent from the time of his purchase until November, 1880, and then refused to make further payments, this action was brought to recover the rents subsequently falling due.

      Held, that as the lessors were not made parties to the foreclosure suit their rights were not affected by the judgment therein, and that as the defendant had entered into possession of the premises'and enjoyed the rights conferred by the leases, he was liable for the rent accruing thereunder.

      That the defendant was subject to the obligation of the third lease, given, subsequent to the mortgage and prior to its foreclosure, as well as to that of the two prior leases,
    December 8,1880, the lot was sold to the eity of Oswego for non-payment of taxes for a term of fifty years. Subsequently the city’s rights therein were transferred to one Buckout, who received a declaration of sale, but never took possession of the premises nor attempted to exercise any control over them.

      Held, that this sale did not relieve the defendants from liability, as the leases were perpetual, while the tax deed was for fifty years only.
    An assignee of a lease, or a grantee of premises subject to a rent charge running with the land, can terminate his liability only by parting with his entire term or estate.
    Appeal from a judgment, entered upon the decision of a justice-of tbis court, at a Special Term held at the city of Oswego, in February, 1884.
    This action was brought to recover the rent reserved in three-perpetual leases, executed by the plaintiffs and their predecessors to different persons,.under each of which it is alleged the defendant became liable as grantee of the demised premises.
    The first lease, dated November 1, 1848, ran to Randall and Clark, as lessees, covered lot 52 on the Varick canal in the city of Oswego, with a right to draw from said canal one run of first class-water, to be used only on said lot, but for any purpose except a flouring, grist or saw mill, and reserved a rent of $100 a year, which, with all taxes to be assessed upon the premises, the lessees, for themselves, their heirs and assigns, covenanted to pay.
    The second lease, dated October 1, 1858, ran to Margaret J. Randall, to whom, in the meantime, part of said lot had been conveyed, covered one run of first-class and two runs of second-class-water, to be used only upon her part of the lot, but for any purpose except a saw mill, reserved an annual rent of $500, and contained the same covenants for the payment of rent and taxes by the lessees, their heirs and assigns.
    The third lease, dated August 6,1872, ran to James Wilson, who-had acquired the rights of the previous lessees, covered the water rights embraced in the two preceding leases, but permitted the water provided for by lease number one to be used for any purpose except a saw mill, and that provided for by lease number two to be-used on any part of said lot, and in consideration of these privileges the lessee agreed to pay an increased annual rent of $400, making '$1,000 in all, which for himself, his heirs and assigns, he covenanted to pay, and charged the payment thereof upon the land and •appurtenances. The preceding leases, and all covenants therein, ■except as expressly modified, were continued in force. After leases numbers one and two had been duly recorded, and on the 1st ■of July, 1871, said James Wilson executed a mortgage for $15,000 on said lot and water rights to the International Trust Company, which was recorded August 20, 1872. The third lease was also recorded on that day.
    On the 26th of May, 1873, and after the third lease had been recorded, said trust company commenced an action to foreclose said mortgage, making said Wilson and wife parties thereto, but not including the plaintiffs or their predecessors therein. The action proceeded to judgment in the usual way, and on the 3d of July, 1874, the premises and rights covered by the mortgage were sold and conveyed by the sheriff to the defendant, who took possession and has ■occupied them ever since, except that he conveyed them to Oakley and Place, by deed dated June 5, 1878, and recorded October 28, 1878, but received a reconveyance dated November 13, 1878, and recorded November 23, 1878, and during the interval between the •dates of these deeds, or between the dates of the record thereof, it •does not appear who was in possession. The defendant paid the water rent at the rate of $1,000 a year, from the time of his purchase until November, 1880. On the 8th of December, 1880, said lot 52 was sold to the city of Oswego, under the unpaid city tax of 1878, for the period of fifty years. Subsequently the city transferred its rights to one Buckout, who received a deed or declaration ■of sale June 5, 1882, but has never taken possession of the premises, nor attempted to exercise any control over them. The tax •deed mentions simply lot 52, but is silent as to any water right.
    The building on said lot was, without defendant’s fault, wholly ■destroyed by fire, on the 8th of April, 1881, since which time he has done nothing with or to the premises, except on one occasion through his agent, to repair the canal wall in front thereof.
    The Special Term decided that the third lease was not invalidated toy the foreclosure, “but passed, with its benefit and its burden, to the defendant, as purchaser at the foreclosure sale,” and held the defendant liable for the unpaid rent.

      Judgment having been entered accordingly, the defendant appealed therefrom.

      Porter M. French, for the appellant.

      Fckom Allen, for the respondents.
   YaNN, J:

The leases that were executed and recorded before the mortgage' was given, were not affected by the foreclosure. The covenants contained therein' ran with the land, and bound the grantees thereof. Post v. Kearney, 2 N. Y., 394; Dolph v. White, 12 id., 296, 301; Van Rensselaer v. Hays, 19 id., 68; Van Rensselaer v. Read, 26 id., 558.)

The third lease was executed and recorded after the mortgage, through which the defendant derived title, but before the commencement of the action to foreclose the same. As the lessors' were not made parties to the foreclosure suit, their rights were not cut off by the judgment or the sale thereunder. (Brainard v. Cooper, 10 N. Y., 356.) The lessee, who was also the mortgagor, was a party, and his equity of redemption was foreclosed, but the question arises, did the purchaser at the foreclosure sale take the water rights which the mortgagor acquired by the third lease given after the execution of the mortgage % If he obtained the right te use the water freed from the restrictions in the old leases, or, in other words, the benefits of the third lease, he must bear its burdens also. It is now settled that the effect of a deed in foreclosure is to vest in the purchaser the entire interest and estate of the mortgagor and mortgagee as of the date of the mortgage, and unaffected by subsequent incumbrances and conveyances by the mortgagor. (Rector, etc., Christ's Church v. Mack, 93 N. Y., 488; 2 R. S., 192, § 158; Code Civil Pro., § 1632.)

In the ease last cited, however, the plaintiffs, who sought to retain the benefit of an easement reserved by them upon conveying a lot which was subject to a mortgage, were made parties to the foreclosure of such mortgage. The court held that the purchaser at the foreclosure sale took the absolute title unincumbered by the easement, and that the plaintiffs to save their rights should have appeared in the action, and by offering to bid the full amount of the mortgage and costs, subject to the easement, sought to have the judgment modified so as to direct such a sale. But where, as in this case, the persons holding the subsequent lien or interest were not parties to the foreclosure action, and who could not appear and protect their rights in the manner suggested by the Court of Appeals, it is still unsettled whether they, as against the purchaser, can enforce covenants running with the land made by the mortgagor after he gave the mortgage. This question, in substance, was thoroughly discussed on both sides, but not decided in Packer v. The Rochester and Syracuse Railroad Company (17 N. Y., 283). Judge DisNio maintained that the purchaser holds by title paramount the estate as held by the mortgagor before the mortgage, while Judge Peatt insisted that as to persons not parties to the foreclosure he holds as grantee from the iportgagor as óf the date of the foreclosure.

With great deference we think that the latter is the correct position as applied to the circumstances of this case. As the rights of the lessee under the third lease were cut oif, while the rights of the lessors were not affected by the foreclosure, the latter can still collect the rent from some one while the former cannot enjoy the benefits for which rent is paid. As the lessors can still collect rent it follows that they must perform on their part, and therefore some one can have the benefit of such performance, or the right to use the water, freed from the restrictions in the old leases. No one but the owner of lot 52 can enjoy this right, because the water, according to all the leases, can be used nowhere else. Hence the defendant, who through the sheriff’s. deed became the owner of lot 52, can enjoy the benefits of the third lease and he must, therefore, bear its burden. He cannot enjoy the right free from the conditions upon- which it was granted.

The water rent of $1,000 still remains a charge upon the premises notwithstanding the foreclosure, and the defendant took the land subject to that charge. As the lease was recorded he had constructive notice of the lien and the covenants and accepted title subject to them. (Phoenix Ins. Co. v. Con. Ins. Co., 87 N. Y., 400, 408). This lien might have been, but was not extinguished by the foreclosure. It might have been extinguished by opening the foreclosure suit and bringing in the lessors as parties, but as long as the defendant continues to own the premises subject to that lease, with tbe covenants therein in full force as to the lessors, they are binding upon him as owner of the land with which such covenants run. As the water could be used only on lot 52 and the rent was a charge on lot 52, and the covenant to pay rent ran with lot 52; that lot could not be conveyed either voluntarily or by operation of law without making the purchaser liable for the rent, unless the rights of the lessors were in some way extinguished. Title, simply, to lot 52, with the third lease in force as to the lessors, requires performance of the covenant to pay rent. By force of the contract embraced in the lease, any grantee of the premises by merely accepting title becomes obligated to keep that covenant. If, instead of the mortgage in question, a mortgage upon the Yariek canal, prior to the third lease, had been foreclosed and the .plaintiffs, but not the owner of lot 52, had been made parties, would not the purchaser be entitled to recover the rent from such owner ? His right to use the water and hence his obligation to pay for it would not be affected by the foreclosure. That obligation would not, in the case supposed, be discharged by payment to the plaintiffs because their rights would have been extinguished by the foreclosure. Therefore, unless he had the water free from rent, he would have to pay to the purchaser. So, in the case under consideration, unless the defendant can use the water rent free he must pay the rent reserved to the plaintiffs. (Thomas on Mortgages, 366; Hart v. Wandle, 50 N. Y., 381; Vanderkemp v. Shelton, 11 Paige, 28.)

The sale of the premises for taxes did not relieve the defendant from liability. The leases from the plaintiffs and their predecessors were perpetual, while the tax deed was for fifty years only. An assignee of a lease or a grantee of demised premises subject to a rent charge running with the land can terminate his liability only by parting with his entire term or estate. (Taylor’s Landlord and Tenant, § 452; Davis v. Morris, 36 N. Y., 569; Van Rensselaer v. Gallup, 5 Den., 454, 460.)

The judgment should be affirmed, with costs.

HaediN, P. J., and Foilett, J"., concurred.

Judgment affirmed, with costs.