author: CALDER, S.

text:
    In the Matter of an Application for the Probate of the Will of James A. Carey, Deceased.

      (Surrogate’s Court, Oneida County,

      Filed November, 1895.)

    1. Wills —Execution.
    A will is executed in accordance with the regulations of the statute, where the testator, in presence of the attesting witnesses, acknowledges his signature and declares the instrument his will.

      2. Same.
    It is not necessary that each requirement of the statute he followed separately, or that its exact words be employed, or that its construction be interpreted in a literal sense.
    3. Same—Probate—Subscribing witnesses.
    Testimony of the subscribing witnesses is generally given great weight, but it is not conclusive.
    4. Same.
    A will may be admitted to probate against the evidence of the subscribing witnesses, or where, by reason of want of recollection, they are unable to make the proofs as prescribed by law.
    -5. Same—Attestation clause.
    Where the attestation clause is full and complete, reciting all the formalities required by statute, it must have some bearing upon the question of execution.
    6. Same.
    It was held, in the present case, taking into consideration the entire evidence, the manifest intention of the testator to execute a will, and all the circumstances surrounding the transaction that no requirement was disregarded and a valid and complete execution of the instrument was performed.
    Application for the probate of the will of James A. Carey, deceased. Decedent’s daughters filed objections to its probate on the ground that it was not properly executed.
    Smith M. Lindsley, for petitioner;
    Charles H. Searle, for contestant.
   CALDER, S.

James A. Carey died on the 18th day of April, 1890, leaving the instrument here offered for probate, dated the 8th day of March, 1889. The petitioner and contestant herein are his daughters. No allegations of mental incapacity or undue influence are alleged in the objections, but some evidénce was given tending to cast some reflection upon the executive ability of the decedent in certain transactions; but a careful examination of the evidence given by persons who had known him for many years shows that he was a man of much ability, and seemed well versed in the requirements of the statute in reference to the execution of deeds, mortgages, and instruments of a similar character. There was some impairment of his hearing, but not so as to seriously affect him at the time of the execution of the will. It must therefore be conceded that he was capable, mentally, to comprehend the act he did, understood the nature and extent of his property, knew the persons' who were the subjects of his bounty, and was unrestrained in the testamentary disposition of his estate.

The objections strenuously urged on behalf of the contestant are that there were fatal defects in the execution of this instrument, and that certain statutory requirements were disregarded. It is insisted that the instrument was not subscribed by the testator in the presence of- each of the witnesses; that it was not acknowledged to each of them, and that the signature was not exhibited to them; that the testator did not request them to sign the will; that they did not sign the same at his request; and that the same was not executed, published, acknowledged, and declared by said testator to be his last will and testament. The statuts provides that every last will and testament of real and personal property shall be executed and attested as follows: (1) It shall be subscribed by the testator at the end of the will; (2) such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be 'acknowledged by him to have been so made to each of the attesting witnesses; (3) the testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament; (4) there shall be at least two attesting witnesses, each of whom shall sign his name -as a witness at the end of the will at the request of the testator. The omission to observe any of these requirements is fatal to the execution of an instrument testamentary in character. It is not necessary that each requirement of the statute be followed separately, or that its exact words be employed, or that its construction be interpreted in a literal sense; for such an interpretation would in many instances defeat a testator’s express direction, and deprive one of participating in another’s intended benefaction. Few witnesses can recall perfectly or describe minutely the exact transaction at the execution of a will; and a long line of cases, unnecessary here to discuss, hold that a will is properly executed if there be a substantial compliance with the requirements of the statute.

The will is holographic, and written upon a half sheet of foolscap paper, the signature being about two inches from the bottom of the page. The attestation clause begins upon the line immediately below the signature, und is continued upon the reverse side of the sheet, thé names of the witnesses appearing immediately at the end of said clause. The witnesses, W. Byron Topping and George B. Northup, were friends of the deceased, and had known him for upwards of twenty years. It appears that, upon the day the will bears date, testator went to the store of Northrup, in the village of Deansboro, having with him a book, which he opened upon the table before him, sat down, and began to write in Topping’s presence. When he had finished he asked Topping were Northrup was; said he was going west, and was making a will, as he did not know what might happen before he got back. Northrup was not present. Carey sighed the will in the presence of Topping, acknowledged the signature to be his; said it was his will, and requested him to sign as a witness, which he did in the presence of the testator. Northrop then appeared, and, according to Topping’s evidence, testator spoke about going west, and said he had made his will, and asked Northrup to sign as a witness. Topping then said to Northrup: “ It is his will, I have witnessed it, and he wants you to witness it.” Northrop sat down to write, took the paper in his hands saying, “We ought to know how many sheets there are,” and then made the remark, “ There is one,” and signed it at the end of the attestation clause. The following question was asked Topping by counsel for the proponent:

“ Q. You said to Mr. Northrop, in Carey’s presence, that the instrument there was the will of Mr.-Carey, and that Mr. Carey had so declaree it, and had requested you and Northrop to sign the same as witnesses. You said that, didn’t you? A. Yes, sir.”

Topping further testified that he does not think Northrup saw the signature of Carey, although he would not be positive. According to Northrup’s evidence, he signed the paper that Carey handed him in the presence of Carey and Topping; that Carey did not say it was his will, but.that he asked him to witness a paper; that Topping told him when he was signing that it was the will of Carey; that the testator did not sign the same in his presence, or exhibit his signature. The subscribing witnesses were examined at length by the respective counsel, and in deciding this controversy, I have endeavored to give it the careful consideration which its importance demands. When Topping said to Northrup, “It is his will. I have witnessed it, and he wants you to witness it,”—it must be presumed from the evidence that Topping acted in behalf of the testator; and when so acting, it is of the same legal effect as though Carey had spoken the words himself. Gilbert v. Knox, 52 N. Y. 125; Peck v. Cary, 27 N. Y. 9. There can be no contention but that Topping and Carey, as far as their transaction was concerned, fully complied with the requirements of the statute; and Northrup’s evidence, taken in connection with that of Topping, impresses me strongly that there was a proper execution of the instrument by Carey in Northrup’s presence, and Northrup so attested. Topping is in doubt whether Northrup saw the testator’s signature, and Northup testifies that he did not see the same but taking the evidence in its entirety, and taking into consideration all the circumstances surrounding the execution of this instrument, I believe the testator exhibited this instrument, and acknowledged his signature to Northrop, making known to him that it was his will and testament, which was signed by said witness, all of which was done in such a manner as to be a proper observance of the requisite legal formalities, and in conformity with numerous decisions of our courts. The attestation clause is full and complete, being in the handwriting of the decedent, and it would be almost preposterous that a man who seemed to understand the statutory requirements would fail to observe them after he had carefully written them. Northrup testifies that the attestation clause was not read to him, and that he did not read it; yet he knew the nature of the instrument he was attesting. It cannot be possible that a man possessing the executive ability and business experience that he apparently hadshould attach his name as a witness to the will of another, wdien lie did not know the will had actually been signed by the testator. The recollection of the witnesses must be faulty. This I believe to "be the case, without intending to cast any reflection whatever upon the credibility of said witnesses.

The testimony of the subscribing witnesses is generally given great weight, but it is not conclusive. Otherwise the validity of instruments involving the disposition of large estates would often rest upon a treacherous memory, or volition of witnesses to testify. To guard against such a condition, the statute has prescribed and the court have decided that a will may be admitted to probate against the evidence of the snbscribing witnesses, or where, by reason of want of recollection, they are unable to make the proofs as prescribed by-law. Code, § 2620; Orser v. Orser, 24 N. Y. 52; In re Merriam, 42 St. Rep. 619 ; In re Cottrell, 94 N. Y. 329; In re Hunt, 110 id. 281; 18 St. Rep. 118; In re Nelson, 141 N. Y. 152; 56 St. Rep. 678. The fact that the two subscribing witnesses were not together when they attested this iustrume.nt is immaterial. Hoysradt v. Kingman, 22 N. Y, 372; Willis v. Mott, 36 id. 497. The attestation clause is full and complete, reciting all the formalities required by statute, and it must have some bearing upon the question in controversy. In re Cottrell, 95 N. Y. 335; In re Hunt, 110 id. 282; 18 St. Rep. 118; In re Nelson, 141 N. Y. 152; 56 St. Rep. 678. Careful attention has been given to the numerous cases cited by the learned counsel for the contestant, and this decision is not in conflict with them. In those cases some act which the statute required was omitted, so as to cause a fatal defect in the execution. The law is applicable to the facts found, in each case. In the present case, taking into consideration the entire evidence, the manifest intention of the testator to execute a will, and all the circumstances surrounding this transaction, no requirement was disregarded, and a valid and complete execution of this instrument must have been performed. A decree may therefore be entered admitting said will to probate.

Decreed accordingly.


source: Caselaw Access Project

author: SILKMAN, S.

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Accounts of James Smith, as Administrator, etc.

      (Surrogates Court, Westchester County,

      Filed July, 1895.)

      1. Husband and wife—Separation agreement.
    Any attempt of a wife to release her dower to her husband is void, and a separation agreement, which attempts to deprive a wife of all right, present and future, in a husband’s personal estate, and all right of dower and thirds, is ineffectual for that purpose.
    2. Same—Rescission.
    A separation agreement' is annulled hy any subsequent cohabitation be- ■ tween husband and wife, even though such cohabitation be for ever so short a time, provided, when it takes place, it was their intention to resume permanently the marital relation.
    Judicial settlement of the accounts of James Smith as administrator of Peter Smith,- deceased.
    Francis Larkin, for administrator, John Gibney, for contestant.
   SILKMAN, S.

The principal question to be determined in this case is as to the validity of the agreement made between Mary Smitli and Peter Smith on February 1, 1885. The agreement recites :

Whereas, the parties are husband and. wife, and that they cannot get along together in that relation, therefore they mutually agree to separate and live apart forever, and release each other from all marital rights."

The agreement then provides:

“ That the said party of the first part, for and in consideration of the sum of six hundred dollars to her in hand paid by the said party of the second part, her husband, the receipt whereof is hereby acknowledged, does hereby release and discharge the said party of the second part, her husband, from all claim she now has or she may hereafter have in any property he now owns or shall hereafter acquire in any way; also right of dower that she now has or may hereafter have in the real estate recently conveyed by the said Peter Smith to his five children, in which he reserved an estate for life; and for the consideration aforesaid the said party of the first part releases said party of the second part and his heirs and assigns from all support, maintenance, board, lodging, clothing, and everything else during her natural life ; and said party of the first part covenants and agrees to and with the said party of the second part to maintain and support herself from this day as long as she lives, just the same as if she had never been married to the said party of the second part, and had always been a single woman."

Agreements for separation between husband and wife have never been favored by the courts, and it was early doubted whether they were not against public policy. St. John v. St. John, 11 Yes. 526. And it has been held that such agreements can only be supported where the separation has actually taken place. Carson v. Murray, 3 Paige, 483. It was said by the chancellor in Rogers v. Rogers, 4 Paige, 516 :

“ It is impossible for a feme covert to make any valid agreement with her husband to live separate from him, in violation of the marriage contract and of the duties which she owes to society, except under the sanction of the court, and in a case where the conduct of her husband has been such as to entitle her to a decree for a separation. The law of the land does not authorize or sanction a voluntary agreement between husband and wife; it merely tolerates such agreements when made in such a manner that they can be enforced by or against a third person acting in behalf of the wife.”

See, also, Florentine v. Wilson, Hill & D. 303; Cropsey v. McKinney; 30 Barb. 47; Morgan v. Potter, 17 Hun, 403; Beach v. Beach, 2 Hill, 260; Van Order v. Van Order, 8 Hun, 315; Dupre v. Rein, 7 Abb. N. C. 256; Gilbert v. Gilbert, 5 Misc. Rep. 555.

It is unnecessary to consider whether the disability which existed at common law which prevented a wife contracting with her husband has been abrogated by statute, for the reason that the agreement was executed prior to the passage of any such statute'except the statute of 1849 (chapter 375), which has been expressly held not to apply to contracts between husband and wife. White v. Wager, 25 N. Y. 328. It has been repeatedly held that any attempt of a wife to release her dower to her husband is void, and it has been held in England that a separation agreement which attempted to deprive a wife of all right, present and future, in a husband’s personal estate, and all right of dower and thirds, was ineffectual for that purpose. Slatter v. Slatter, 1 Younge & C. Exch. 28. The principle of this case seems to be sound, although it has been held in Pennsylvania that a similar deed cut off a wife’s dower and distributive share. Dillinger’s Appeal, 35 Pa. St. 357.

Conceding the validity of the agreement, I am bound to find that it was subsequently rescinded and revoked by the cohabitation of the parties. The evidence clearly shows that after the execution of this agreement they came together, and lived as man and wife. The rule of law is well settled that separation agreements are annulled by any subsequent cohabitation between husband and wife, even though such cohabitation be for ever so short a time, provided, when such cohabitation takes place, it was their intention to resume permanently the marital relation. Carson v. Murray, 3 Paige, 483. There is nothing in the evidence to show that the subsequent cohabitation was intended to be anything else than a permanent resumption of the marital relation. It being clear that the marital relation was resumed, the presumption is that permanency was intended. The separation agreement whs. executed in view of the separation, and was dependent upon its continuance; and when the wife resumed her plaee as wife the cause which led to the contract ceased, and the consideration upon which it rested disappeared. Zimmer v. Settle, 124 N. Y. 37; 35 St. Rep. 218. It must be assumed that when the parties rescinded the agreement of separation, and resumed their marital relations, all rights of one against the other, either in law or equity, were adjusted and settled. It follows, therefore, that Mary Smith, now O’Brien, widow of Peter Smith, is entitled to her distributive share of his estate to which she would be entitled if no agreement had "ever been entered into.

The objections to the account taken by the widow to the payments on account of the cemetery plot do not seeni to be well taken. They were debts incurred by the decendent in his lifetime, and no evidence has been offered sufficient to challenge the good faith of the administrator in their payment. The burden was on the contestant to show that the debts did not exist, and that they were not paid in good faith, and, the contestant having failed in this, the objections are overruled.

Decreed accordingly.


author: FOLLETT, J.

text:
    Herbert L. Harding et al., App’lts, v. John M. Elliott, Impleaded, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    1. Fraudulent conveyance—Nonresident.
    A transfer of property by an insolvent debtor, for the purpose of preventing an attachment in this state, is fraudulent though the debtor is solvent,
    2. Same—Action by sheriff.
    Property held by fraudulent transferees may be attached by the creditors of a fraudulent transferer, and the conveyance set aside by an action brought by the sheriff in aid of the attachment.
    . 3. Appeal—Judgment."
    Under section 1022 of the Code, when a judgment is entered on a de cisión which does not state separately the facts found, the appellate court is required to review all questions of fact and law, and is authorized, instead of granting a new trial, to grant to either party the judgment which the facts warrant.
    Appeal from a judgment dismissing the complaint on the merits.
    John S. Melcher, for app’lts;

    David Murray, for resp’t.
   FOLLETT, J.

This action was begun October 5, 1893, to set aside an assignment of Annie 0. Severance to John M. Elliott of $15,000, on deposit with Kountze Bros., on the ground that it was made with intent to hinder, delay, and" defraud the plaintiff Harding. The action was brought by leave of the court, in aid of an attachment, pursuant to article 2, tit. 3, ch. 7, of the Code of Civil Procedure. June 27, .1893, Herbert L. Harding began action in the supreme court against Annie- C. Severance to recover a judgment for $10,100. alleged to be due him from her for professional services and disbursements rendered in the state of Massachusetts, of which state the plaintiff is a resident. Mrs, Severance is resident of the state of California, and the summons was served on her by publication June 29, 1893, but she has not appeared in the action, and no judgment has been entered therein. June 27, 1893, an attachment was granted in the action, which, J une 29, 1893, was served on Kountze Bros., bankers, in the city of Hew York, who then held on deposit $148,125 belonging to Annie 0. Severance. This deposit was held under the following receipt:

. “KOUHTZE BROTHERS, Brokers.
“$148,125. Hew York, June 27, 1893.
“Received from. Merchants’ Hath Bk., H. Y., one hundred & forty-eight thousand one hundred & twenty-five dollars, which, at their request, we credit to account of Bank of America, Los Angeles, Cal., for the use of Annie C. Severance, as per our letter of advice Ho. 9,525, issued this dav.
“Per pro KOUHTZE BROTHERS. .
“H. R. Phillips."

July 3d Mrs. Severance appeared specially in the action, and served a notice of motion for July 11, 1893, for an order vacating the attachment, which motion was granted July 20, 1893, and the next day an order vacating the attachment was entered. After the service of the first attachment, and before July 15, 1893, Kountze Bros, paid out all of the money held under the foregoing receipt upon the checks of the Bank of America, except $15,000. July 20,1893, a second attachment was issued in the action, which on the same day was served bn Kountze Bros., who, on the day following, gave the sheriff this certificate:

“Hon. John J. Gorman, Sheriff, City and County of Hew York—-Dear Sir: As a return to the writ of attachment served upon us July,20th, 1893, in the above-entitled suit, we have to state that the balance of the moneys, to wit, fifteen thousand dollars ($15,000), remaining out of the moneys theretofore deposited with us June 27th, 1893, by the Merchants’ Hational Bank of Hew York, for the credit of the Bank of America of Los Angeles, California, for the use of Annie C. Severance with them, was, on or before July 12th, 1893, assigned by the said Annie C. Severance to J. M. Elliott, who, we understand, is a resident of the state of 'California. The said $15,000 (fifteen thousand dollars) is still in our possession.
“Yours, respectfully, KOUHTZE BROS.”

Upon the levy of the first attachment, Kountze Bros, telegraphed the fact to the Bank of America at Los Angeles, which, July 12, 1893, telegraphed Kountze Bros, as follows:

“Referring to letter, Yan Slyck 6th, accept his instructions in disposing of special $15,000, so that second attachment cannot lie. When delivered, deposit, less counsel fees and just charges, with First Hational Bank for personal credit J. M. Elliott. Advise by telegram such deposit.”

Kountze Bros, did not make the deposit pursuant to this telegram, but held the fund until July 13, 1895, when they paid it over to the Farmers’ Loan & Trust Company, pursuant to an order of the special term entered July 8,1895. Kountze Bros, had previously answered in the action, but, on making this deposit, they were discharged from further liability, and have no further interest in the result of this litigation, which has become simply a contest between the plaintiff and John M. Elliott as to which has the better right to the fund. The learned justice who. rendered the judgment appealed from did not “ state separately the facts found," but filed “a decision stating concisely the ground” on which the issues were decided, as permitted by section 1022 of the Code of Civil Procedure, as amended in 1894; and so the issue whether the transfer by Annie C. Severance to John M. Elliott of the fund held by Kountze Bros, was made with intent to hinder and delay Herbert L. Harding has not been specifically determined. However, the learned justice in his opinion states that the evidence would fairly justify a finding that the transfer was made to prevent Harding from collecting his debt. The testimony of Annie C. Severance and of John M. Elliott, read in connection with the documents in evidence, shows beyond-doubt that the transfer by her to him of the $15,000 standing to her credit with Kountze Bros, was made by her, and received by him, for the sole purpose of hindering, delaying, and preventing the plaintiff from collecting a just debt, the amount of which only was in dispute, by means of an action brought in this state. It is asserted that a conveyance made for this purpose by a person having ample property in another state to pay all her debts is not fraudulent, and that it is necessary to show the insolvency .of the debtor. We think that the insolvency of Mrs. Severance does not render the transaction valid, for it is shown beyond dispute that she has no other property within this state, and that by this transfer she sought to prevent Harding from from enforcing his demands by an action. It is enough, under the statute, if the creditor is hindered or delayed in the collection of his debt by a transfer executed for that purpose. In Chamley v. Dunsany, 2 Schoales & L. 690, 714, it was held by the house of lords that a conveyance by a debtor, made with intent to hinder or delay his creditor, may be set aside, though the creditor has sufficient property remaining undisposed of out of which the debt could have been collected. This rule was declared by Lord Elden in the ease cited, and so far as we know, has never been questioned. It was distinctly recognized in Fox v. Moyer, 54 N. Y. 124, where it was held: “ It is only when one makes a voluntary conveyance in good faith, with no intent to defraud his creditors, that it will be upheld by proof showing that,when he made it, he retained an ample estate to pay all his debts.” In Kimball v. Thompson, 4 Cush. 441, it was held that a conveyance by a debtor of his property to prevent it from being attached was void, although the debtor believe that it would be better for his creditors to make the conveyance, and intended in the end to pay all his creditors. The same rule was declared by Mr. Justice Story in Bean v. Smith, 2 Mason, 252, 284; Fed. Cas. No. 1,174, in whicn he said: “It is far from being necessary in all cases that it should appear that a creditor would sustain a loss unless a fraudulent conveyance be set aside.” In Hager v. Shindler, 29 Cal. 48, it was held that, if the conveyance were made with intent to hinder or delay creditors, it should be set aside, without regard to the financial condition of the fraudulent transferer. It was tersely said in that case: “A rich man may made a fraudulent deed, as well as one who is insolvent.” The same principle was recognized in Billings v. Russell, 101 N. Y. 226, where it was held that a mortgage given to secure a just debt might be set aside by a creditor if it were shown that the parties to the instrument executed it for the purpose of preventing the property mortgaged from being reached by a creditor. We have no doubt that the transfer attempted to be made by Mrs. Severance to the defendant Elliott was fraudulent and void as against Harding, and that Elliott held the $15,000 as trustee ex-maleficio for Harding. The only remaining question is, can the interest of Mrs. Severance and Elliott be reached by an attachment, and an action brought in aid thereof ? In 1888 it was held that right of a creditor to set aside a fraudulent transfer by a debtor could not be enforced an attachment, and an action brought in aid thereof unless the creditor had recovered a judgment for his debt. Throop Grain Cleaner Co. v. Smith, 110 N. Y. 83; 16 St. Rep. 831; id. 34 Hun, 91; 3 How. Prac. (N. S.) 290.

In 1889 (Laws 1889, ch. 504) subdivision 4 was added to section 849, subdivision 2 to section 655, of the Code of Civil Procedure.

“Sec. 649. * * * Subd. 4. Upon property discovered in any action brought as prescribed in subdivision two of section six hundred and fifty-five of this act, by entering in the proper cleric’s office, the judgment rendered in said action, and thereafter levying on said property in the manner prescribed in subdivisions one one, two and three of this section.”
“Sec. 655. * * * Subd. 2. Where the summons was served without the state, or by publication, pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this áct; and where the defendant has not appeared in the action (otherwise than specially) but has made default and before entering final judgment, the sheriff may, in aid of such attachment, maintain an action against the attachment debtor, and any other person or persons, or against any other person or persons, to compel the discovery of any thing in action, or other property belonging to the attachment debtor; and of any money, thing in action or other property due to him, or held in trust for him, or to prevent the transfer thereof, or the payment or delivery thereof, to him or any other person, and the sheriff may, in aid of said attachment, also maintain any other action against the attachment debtor and any other person or persons, or against any other person or persons which may now be maintained by a judgment creditor in a court of equity, either before the return of an execution in aid thereof, or after the return of an execution unsatisfied. The judgment in any of the above-mentioned actions must provide and direct that the said property shall be applied by the sheriff, to the satisfaction of any judgment which the plaintiff may obtain in the attachment action.”

It is apparent, we think, that these provisions were added to the Code to change the rule declared in the case last cited, and to enable creditors to collect their debts out of the property of nonresident debtors which should be conveyed for the purpose of defrauding creditors, and that, under the Code as amended, property held by fraudulent transferees may be attached by the creditors of a fraudulent transferer, and the conveyance set aside by an action brought by the sheriff in aid of the attachment. That such was the purpose of the section is held in Backus v. Kimball, 62 Hun, 122; 41 St. Rep. 446, and in Whitney v. Davis, 88 Hun, 168; 70 St. Rep. 143. The case provided for by section 655 is precisely the one at bar. The fraudulent transferer is a non-resident of the state. The summons in the action in "which the attachment was issued has been served by publication. The defendant has not appeared, but has made default, and no judgment has been recovered. These facts are alleged in the complaint, and were proved on the trial, and we are of the opinion that the plaintiffs established the right to have the transfer set aside as fraudulent. Under section 1022 of the Code of Civil Procedure, when a judgment is entered on a decision which does not state separately the facts found, this court is required to review all questions of fact and law, and is authorized, instead of granting a new trial, to grant to either party the judgment which the facts warrant. The fraudulent character of the transfer being established by the testimony of the defendant Elliott and by Mrs. Severance, the fraudulent transferer, there is no reason for a new trial of the issue, and a judgment should be ordered reversing the judgment of the court below, with costs, and declaring that the transfer from Mrs. Severance to the defendant Elliott was fraudulent and void as against the plaintiff Harding, that it should be set aside, and the money paid over by Kountze Bros, to the Farmers’ Loan & Trust Company should be held to be subject to the attachment, and paid over in satisfaction of the debt of Harding, when the amount thereof shall be judicially established. The plaintiffs are entitled to costs in this court and in the court below, to be taxed, and the judgment to be entered thereupon will be a lien on the fund, and payable therefrom.

All concur.


author: Van Brunt, P. J.

text:
    Frank W. Sanger, Resp’t, v. Thomas H. French, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1895.)

    Contract—Evidence.
    The evidence, in this case, was held not to sustain a finding of a contract between plaintiff and defendant, who were partners in the management of a theater, giving to plaintiff the option for twenty years to buy for said partnership any plays owned by either of them, or by another firm of which defendant was a partner, but which it does not appear he had power to bind by such a contract.
    Appeal from a judgment in favor of plaintiff.
    A. J. Dittenhoefer, for app’lt;
    Almon Goodwin, for resp’t.
   Van Brunt, P. J.

The examination of the voluminous record in this case having taken so much time, there is left, before a decision must be announced, but sufficient time to state in the briefest terms the grounds upon which it seems to us the referee’s conclusion is erroneous. The magnitude of the record prevents any attempt to refer, except in the most concise manner, to the salient points which seems to us necessarily to lead to the conclusion -that neither of the parties to this action have stated the exact facts in relation to the transactions which have culminated in this large judgment. The plaintiff has indulged in amplification, and the defendant has been guilty of suppression. But at the outset it strikes one as an exceedingly curious circumstance ihat whereas, in all the other dealings of these parties with each other or with persons who were associated with them in the.enterprises in which they were engaged, memoranda of the arrangements were made in writing, in respect to this remarkable contract there is not the scratch of a pen to evidence its existence. The first thing which challenges attention is the nature of the contract itself, as claimed by the plaintiff. It is certainly peculiar, and gives the plaintiff remarkable powers, running, as it does, for a period of twenty years, which circumstance alone would naturally suggest that it. should only be established by evidence which was reasonably clear and conclusive. In our judgment, the plaintiff has failed by any preponderance of evidence to sustain any contract such as is claimed by him; and, indeed, his own oath is to the contrary. The plaintiff claim that on the 25th of April, 1887, he and the defendant agreed that they should have the first option to purchase any and all plays owned or controlled by either member of the firm of Sanger & French, including the plays owned or controlled by Samuel French ■& Son, of which the defendant was a member, which should be suitable for the new theater (namely, the Broadway Theater), for the purpose of producing such plays at said theater, and of exploiting them through the United States and Canada for the benefit of said firm of Sanger & French ; that this option was alone to be exercised by the plaintiff, and in respect to which the defendant should have no voice; and that the plaiptiff had the right to take, not only any plays which he chose, belonging to either Sanger or French, but also any that belonged to the firm of Samuel French & Son, for the purpose of production or exploitation in the United States and Canada; and that the plaintiff was to have half of the profits arising from such production or exploitation. Thus, if the firm of Samuel French & Son owned a play, Samuel French being entitled to one-half and the defendant Thomas H. French being entitled to another, Sanger had the right to take that play for the purpose of exploitation in the United States and Canada, and receive one-half of the profits arising therefrom, and the defendant French would thereby be deprived of every dollar of profit arising from the ownership of the play; the other half of the profits necessarily belonging to Samuel French. This seems to be a monstrous contract, and, as has already been suggested, it depends entirely upon the oath of Sanger; whereas the evidence shows that in every other transaction had in reference to the production of plays, or the management of the business, or the entering into new enterprises, it was always carefully reduced to writing. And this extraordinary contract was made in the office of the lawyer who was drawing the contracts in reference to the erection of the Broadway Theater, without a word being said to any one in regard to its having been" entered into; under which it is claimed upon the part of Sanger that he has the right to deprive Thomas H. French of his interest in the firm of Samuel French & Son in respect to such plays as he shall choose during the period of twenty years. It is to be observed that this is a remarkable amplification by a breath of an agreement which had been proposed to be entered into at the time it was supposed that the arrangement in regard to the erection of the Broadway Theater would be entered into with Bailey. That agreement provided that the firm of Bailey, French & Sanger, or a corporation to be formed as stated in the agreement, should have the first option to purchase for the United States any and all plays that might be controlled by either of the parties thereto, and be suitable for production in the Broadway Theater. This did not include those owned by Samuel French & Son. Samuel French & Son were not mentioned. But Sanger swears it into his own contract. And it was because of the fact, that the person who was going to occupy Bailey’s position did not wish to have anything to do.with the dealings in or exploiting of plays that Sanger claims that this new contract was entered into. If tie had said that the new contract was on the lines of the old proposed contract, there might have been some reason to believe that such a contract had been entered into. But when he inserts therein the selling of the rights of French & Son, which Thomas H. French had no power to do, so far as this record shows, it seems to us that it requires a little more evidence than simply Sanger’s word of mouth to establish such an extraordinary proposition. And what do we have ? What do we find from the evidence ? We find from the evidence that, notwithstanding the fact of the existence of this contract giving him this right, as far as the receipts at the Broadway theater and at the Boston theater upon the first production of the play of Little Lord Fauntleroy” were concerned, Sanger accounted weekly to French for the whole of them. And what does he say when this fact is brought to his attention? Why, that he waived those ; that he had a conversation with French in which he waived them. These were supposed to be the most fruitful fields for the production of revenue under this contract, and he waived them. He did not think he had waived them when he swore to his complaint. His complaint was almost wholly devoted to reaching the proceeds of this play at the Broadway theater. He swears that he was entitled to them; that French fraudulently retained them. He asks for a receiver to take possession of them. There were none other expressly alleged, except those at Boston, that could be the subject of litigation at the time this action was commenced. It is what this action was brought for,—to recover these receipts which he had “waived.” The only reason for his “waiving” these receipts was that he knew his conduct was absolutely inconsistent with the claim that he advanced before the referee. Ho one can examine that complaint and the claim that is made there, and then learn that Sanger did not' pretend to have any claim to the receipts at the Broadway theater, or those received at Boston, without coming to the conclusion that there was beyond preadventure falsehood at the bottom of his claim somewhere. That some arrangement was made between French and Sanger at the interview at the lawyer’s office in which it is claimed that this extraordinary contract was entered into seems to me beyond doubt; and when the defendant denies that any such arrangement was made it seems to us that there has been upon his part a suppression of what actually occurred. The subsequent conduct of the parties indicates that there was some sort of an arrangement between them, but it also shows that it was not of the character claimed upon the part of the plaintiff. If he had this extraordinary contract, why, wlien the Frenches were negotiating for this play, “ Little Lord Fauntleroy,” should he write to Thomas H. French : “ Do I get" a chance for a bit of it? If this is an impertinent question, you need not answer it.” Is this the language of the autocrat of the partnership who had the absolute right to say what should be taken and what should be left? And yet he says, when questioned as to this, that it was a jest

But it is urged that these parties entered into contracts under the name of Sanger & French in reference to the conduct of this business, etc. It is undoubtedly true that the name of Sanger & French was used in connection with this businsss, but it was used before as well as after. They were jointly interested in this Broadway theater enterprise. They believed that their interests were identical; and, in connection with the business of this theater they acted jointly, and used the name of Sanger and French. In .the management of the theater they were jointly interested, outside of the question of the profits derived from the plays besides-those which were received by the theater, and the most of the contracts which were entered into in the name of Sanger & French related to the business in respect to which Sanger1 had “ waived” all his claims under the alleged copartnership agreement. As an excuse for the conduct of Sanger in reference to some features of the business, it is claimed that he did not know, until just prior to the commencement of this suit; “ Little Lord Fauntleroy" belonged to the firm of French & Son ; that he supposed it was the individual property of Samuel French. That this claim was without foundation is evinced by the fact that on the 22nd of September, 1888, he made an agreement with French & Son relating to the production of “ Little Lord Fauntleroy,” and he must thereby have known that they controlled the play. And it is another significant fact that, as far as the exploiting of this play was concerned, Sanger had nothing whatever to do with it. French attended to the whole of this business, although it came within Sanger’s particular field, if he was interested in the enterprise.

We might revert to many facts tending to throw doubt upon the claim made upon the part of the plaintiff; and there are others, equally potent, which tend to show that the defendant’s claim that there was no arrangement of any kind between himself and Sanger in regard to the exploiting of plays is without foundation. It seems to us that the evidence shows that there was some arrangement, but there is no satisfactory proof in regard to its terms; the extraordinary claim made by Sanger being unsupported by anything except his own word, and that is contradicted by his oath and his acts. We cannot see how any judgment can be supported upon such evidence; certainly not one of. the extraordinary character found in the case at bar, affecting the rights of parties for almost a generation.

The judgment should be reversed, and a new trial ordered, with costs to thé appellant to abide the event. ,

PARKER, J., concurs; FOLLETT, J., dissents.


author: FOLLETT, J. VAN BRUNT, P. J.

text:
    Trustees of Amherst College et al., Resp’ts, v. Thomas G. Ritch et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    1. Wills—Residuary estate—Interest oe trustee.
    Where a testator devises his residuary estate to his executors absolutely, but with the understanding that they shall distribute the same among certain beneficiaries named in the will, the residuary legatees acquire no personal interest in the residuary estate, but takes it as trustees.
    3. Same—Bequest—Charity—Validity.
    Where a person, entitled to contest a will or some one or more of its provisions, voluntarily and for a'valuable consideration received after the testator’s death with full knowledge of the invalidity of the will, divests himself of all interest in the property disposed of by it, he cannot impeach its invalidity.
    Appeal from a judgment, directing that the residuary estate devised and.bequeathed to the executors was received and held by them in trust for certain beneficiaries, and enjoining the executors from distributing the residuary estate and requiring them to account for moneys received by them under the will before a referee appointed to take and state their accounts.
    This action was begun in June, 1893, by five of the twenty legatees (all educational corporations) mentioned in the ninth clause of the testator’s will, to recover a judgment declaring that Thomas Gr. Ritch, Justus L. Bulkley, and Henry B. Vaughan took the property devised and bequeathed to them (the residuary estate) in trust under the tenth clause, as modified by memorandums signed by the testator .for said twenty educational corporations. The .executors of the testator’s widow, his heirs, next of kin, his executorsdevisees, legatees, and the beneficiaries in the deed of gift executed by Ritch, Bulkley, and Vaughan, February 21, 1891, are defendants. In addition to the appellants, the following defendants filed.and served answbrs herein:
    Lincoln University, Lafayette College, Northwestern University Park College,Wesleyan University, Marietta College, St.Vincent’s Píos pi tal, the president and trustees of Bowdoin College, the rector and visitors of the University of Virginia, Cornell University, Maryville College, Wabash College, and the Union Theological Seminary.
    It was held at special term that the residuary estate devised and bequeathed to Ritch, Bulkley, and Vaughan was held in trust .by them, under the tenth clause of the will and memorandum of March 22, 1889, for the following purposes: (1) To pay to the Northwestern University $100,000, with a proportionate share of the income of the residuum (none of the litigants contesting); and (2) to divide the remainder equally among the twenty educational corporations mentioned in the ninth clause. None of the parties except those designated as appellants in the title of this opinion, have appealed, and they are devisible into four classes: (1) The executors of Lucy Fayerweather (the testator’s widow) and two of the testatar’s heirs and next of kin, who assert that by the will and codicils the testator devised and bequeathed to Ritch, Bulkley, and Vaughan the residuary estate in trust to be divided equally among said twenty educational institutions, and that, under chapter 360 of the Laws of 1860, only one-half of the testator’s estate could be legally devised and bequeathed to such institutions. (2) Thomas Gf. Bitch, Justus L. Bulklej'", and Henry B. Vaughan, the residuary devisees and legatees, who assert that under the will and codicils they took the residuary estate, with power to dispose of it, and that the beneficiaries mentioned in their deed of gift are severally entitled to hold the sums assigned to them. (3) The donees under the deed of gift. (4) The trustees of Columbia College, one of the twenty corporations mentioned in the ninth clause, wherein it is bequeathed $200,000, and one of the six residuary beneficiaries mentioned in the deed of gift, which appealed, but filed no brief in this court.
    October 6, 1884, Daniel B. Fayerweather, a resident of this city executed his last will and testament, by which he made various specific devises and bequests to individuals, the validity of which is not questioned, and none of its require consideration, except the eighth, ninth, and tenth which are as follows:
    “Eighth. After the payment of the legacies and bequests hereinbefore made, I give and bequeath to the Presbyterian Hospital, located in the city of New York, the sum of $25,000; to St. Luke’s Hospital, in said city, $25,000; to the* Manhattan Eye and Ear Infirmary, in said city $25,000; to the Woman’s Hospital, said city, $10,000; to Mount Sinai Hospital, in said city, $10,000.
    “Ninth. Subject to the conditions and limitations in this paragraph hereinafter contained, I give and bequeath to Bowdoin College, at Brunswick, Maine, the sum of one hundred thousand dollars; to Dartmouth College, at Hanover, New Hampshire, the sum of one hundred thousand dollars; to Williams College, at Williamstown, Massachusetts, the sum of one hundred thousand dollars; to Amherst College, Amherst, Massachusetts, the sum of one hundred thousand dollars; to Wesleyan University, at Middletown, Connecticut, one hundred thousand dollars; to Yale College, at New Haven, Connecticut, three hundred thousand dollars, of which one hundred thousand dollars shall be used for the purposes of the Sheffield Scientific School, connected with said college; to Columbia College, in the city of New York, two hundred thousand dollars; to Union Theological Seminary, in the city of New York, the sum of fifty thousand dollars, as a special fund to be used as an endowment of what are known as ‘ cadetships,’ — such use, however, being subject to the direction of the board of directors of such institution. I also give and bequeath unto Hamilton College, at Clinton, New York, one hundred thousand dollars; to the University of Bochester, at Bochester, New York, one hundred thousand dollars; to Cornell University, at Ithaca, New York, two hundred thousand dollars; to LaFayette College, at Easton, Pennsylvania, fifty thousand dollars; to Lincoln University, at Lower Oxford, Pennsylvania, one hundred thousands dollars; to the University of Virginia, at Charlottesville, Virginia, one hundred thousand dollars; to Hampton University, at Hampton, Virginia, one hundred thousand dollars; to Maryville College, Mary-ville, Tennessee, one hundred thousand dollars; to Marietta College at Marietta, Ohio, fifty thousand dollars; to Adelbert College, at Cleveland, Ohio, fifty thousand dollars; to Wabash College, at Crawfordsville, Indiana, fifty thousand dollars; to Park College, at Parksville, Missouri, fifty thousand dollars. In case the condition and circumstances of any of the institutions named in this paragraph of my will shall be so changed that, in my judgment of my executors, it is not expedient to pay over all or any of said moneys to such institution, I authorize and empower my executors in the exercise of their discetion, to withhold or reduce the amounts herein directed to be given. If my estate shall not be sufficient to pay in full all the legacies and bequests in this my will contained, the legacies and.bequests provided for prior to this paragraph of my will shall be first paid in full, and the bequests contained in this paragraph shall be paid pro rata.
    “Tenth. All the rest, residue, and remainder of my estate, real and personal, of which I shall die possessed, I give, devise, and bequeath unto my executors to have and to hold the same, in trust, nevertheless, to sell and to convert into cash, and to divide the same equally among the several corporations mentioned in the ninth paragraph of my will, share and share alike.
    By the eleventh clause, Justus L. Bulldey and Thomas Gr. Bitch were nominated as executors of the will, and as trustees of the estate, with power to sell and convey all of the real estate not specifically devised.
    Upon the execution of said will the testator delivered it and the following certificate to Thomas Gr. Bitch, for safe-keeping:
    “ Hew York, Oct. 6,1884.
    “ This certifies that I have executed my will of this date, having been advised by my counsel of the provisions and restrictions of the law of this state relative to benevolent corporations. I trust my heirs will permit the provisions of this my will to be carried into effect.
    D. B. EAYEBWEATHEB.”
    December 13, 1884, the testator executed a codicil by which he confirmed his will, except as therein modified. He revoked the tenth clause, and provided by the third clause in the codicil as follows:
    “ III. All the rest and residue of my estate, of whatsoever character and wheresoever situated the same may be, of which I shall die possessed, and remaining after the provisions of the first nine paragraphs of my will have been fully complied with and carried into effect, I give, devise and bequeath to Justus L. Bulldey and Thomas Gf. Bitch, named in the eleventh paragraph of my said will, to them and their heirs forever.”
    Upon the execution of said codicil the testator delivered it and the following memorandum to Thomas G. Bitch, for safekeeping :

      “New York, Dec. 11th, 1884.
    “ Private Memorandum.
    “ I have made Messrs. Bulkley and Bitch my residuary legatees, in the confidence that thereby my intentions, as expressed in my will, shall be carried into effect, and without litigations on the part of any person or persons interested. In case of my death, I trust they will take such steps, by will or otherwise, as will protect my estate against the contingency of the death of either before my estate is settled and distributed.
    D. B. FAYEBWEATHEB.’’
    . January 7, 1888, the testator executed a second codicil, by which he gave three legacies, aggregating $15,000, and nominated Henry B. Vaughan as executor of his will- and trustee of his estate in addition to Justus L. Bulkley and Thomas Gr. Bitch, and conferred the same powers on the three as were conferred by the will on Bulkley and Bitch.
    March 19, 1889, the testator executed a third codicil, by wbich he ratified his will and codicils, except as therein modified. He directed that $5,000 be expended in the purchase of- a lot in Woodlawn cemetery, and in the erection of a suitable monument. He increased an annuity to Anna Amelia Joyce from $1,000 toll,000. He increased legacies to Charles M. Baker and Henry M. Baker from $2,500 each to $5,000 each, and legacies to Mary W. Achter and Emma S. Fayerweather (now Drury) from $10,000 each to $20,000 each, and also bequeathed to nine individuals legacies aggregating $11,600. Upon the execution of this codicil the testator delivered it and the following memorandum to Thomas Gr. Bitch for safe-keeping :
    “Private Memorandum.
    “ Having made inquiries with regard to Hampton and Lincoln Universities, it is my judgment that the bequests to them should be withheld. I think the bequest to Cornell University should not exceed $100,000. If the Northwestern University at Evans-ton, Illinois is in a prosperous condition, I would recommend that $100,000 be given to it If the following persons are in my employ at the time of my death, I suggest that they receive the following sums : Rogers and Blake, $500"each; Gould, Campbell and Stone, $300 each; and Carpenter, $250; also James, who now opens and closes the store, $100 ; John Dixon, $200. I also wish that $1,000 be given to Miss Joyce immediately after my decease, by addition to the provision made for her in my will.
    “ Mch. 22,1889. D. S. FAYEBWEATHEB.”
    On the 18th of November, 1890, Mr. Bitch, upon the testator’s order, delivered his will, and the first, second, and third codicils, to Henry B. Vaughan, who on the same day delivered them to the testator. On the next day the following letter was delivered to Mr. Bitch:
    11 East Fifty-Seventh Street, N. Y. City,
    “ Novembre 13, 1890.
    Mr. Thomas Gr. Bitch—Dear Sir: I have examined my original will, and the first, second, and third codicils thereto, handed by yon to Mr. Vaughon at my request. By the tenth article of my will, I left my residuary estate to my executors, in trust, to be equally divided among certain corporations and institutions. By the first codicil, it seems that I revoked this tenth article of my will, and then made the following disposition of my residuary estate : ‘ III. All the rest and residue of my estate, of whatsoever character and wheresoever situated the same may be, of which I shall die possessed and remaining after the provisions of the first nine.paragraphs of my will have been fully complied with and carried into effect, I give, devise, and bequeath to J ustus L. Bulkley and, Thomas GL Bitch, named in the eleventh paragraph of my said will, to them and their heirs forever.’ Please advise me at once in writing, what is the legal effect of this clause, and to whom and how would my residuary estate go in case of my death, supposing this first codicil to remain in force.
    “Yours, truly, D. B. FAYEBWEATHEB.”
    To this letter Mr. Bitch replied as follows :
    “18 Wall Street, New York, November 14th, 1890.
    “D. B; Fayerweather, Esq.—Dear Sir: The intention of the change in question was to enable Messrs. Bulkley and myself to carry out the intentions of the will as modified by the various private memoranda in my possession. Neither Mr. Bulkley nor myself would have any moral right to treat any portion of your estate otherwise than as we know would conform to your wishes. I suggest that I call on you with these, and if still approved by you, that they be left in a sealed package with Miss Joyce, or any one named by you. The legal effect of the clause in question is to vest the title to the residuary estate in Messrs. Bulkley and myself, but, as I have said, neither Mr. Bulkley nor I would wish to derive any personal benefit under this codicil.
    “ Yours, truly, THOS. G. BITCH.”
    November 15,1890, the téstator executed a fourth codicil, by which he ratified and confirmed his said will and codicils, and especially confirmed the revocation of the tenth clause in his will, and changed the third clause of the first codicil of December 13, 1884, so as to read as follows:
    “ Third. I hereby amend and change the third paragraph of the codicil dated and made December thirteen, 1884, so as to read as follows . All the rest, and residue of my estate, of whatsoever character and wheresoever situated the same may be, of which I shall die possessed, and remaining after all the specific legacies in my said will and the several codicils thereto have been paid, and all the provisions of said will and codicils have been fully complied with and carried into effect, I give, devise, and bequeath to Justus L. Bulkley, Thomas G-. Bitch, and Henry B. Vaughn, to them and their heirs forever.”
    November 15,1890, the testator died, leaving said last will and testament and four codicils unrevoked. The testator left surviving Lucy Fayerweather, his widow, and two nieces, Mary W. Acliter and Emma S. Drury, his heirs and next' of kin. The testator’s estate amounted at his death to upwards of $6,000,000, and, after providing for all the annuities and the specific devises and bequests, the residuary estate amounted to upwards of $3,000,-000. December 5, 1890, the will and codicils were filed for probate, and thereupon the widow and next of kin filed various objections, and a contest ensued ; but before its conclusion a settle-' ment was agreed upon, and thereupon the widow and next of kin executed the following instrument: t
    “ In consideration of the instrument of even date herewith, executed by Justus L. Bulkley, Thomas Gr. Bitch, and Henry B. Vaughan, residuary devisees and legatees under the will,—meaning thereby the original will and the subsequent codicils of Daniel B. Fayerweather, late of the city of Hew York, deceased, —and of its delivery to Henry Stoddard and Stephen P. Hash, we, the undersigned, being the widow and all of the next of kin of the said Daniel B. Fayerweather, do hereby severally agree, for ourselves, our and each of our heirs, executors, and administrators, as follows: (1) All objections to the probate of the will and four codicils of the late Daniel B. Fayerweather, offered for probate to the surrogate of the county of Hew York, are hereby withdrawn, and we consent to the probate of the same. (2) Ho suit shall hereafter be brought for the construction of the said will and codicils, or either of them, or to set aside the will and codicils, or either of them; and we further agree not to make any claim upon the said Justus L. Bulkley, Thomas Gr. Bitch, and Henry B. Vaughan, or either of them, or against their heirs or personal representatives, or either against them, the said.Bulkley, Bitch and Vaughan, as executors, or as residuary legatees, other than for the amounts left to us' by the will and codicils aforesaid, and the deed of gift executed by the said Bulkley, Bitch, and Vaughan on the 24th day of February,,1891, and the instrument dated on the 5th day of March, 1891. (3) Hpon the payment to the undersigned, respectively, of the several amounts mentioned in said deed of gift and said instrument, we will severally execute a general release of all claims, except those arising under the will and codicils, both to the executors and to the donees mentioned in the deed of gift dated on the 24th day of February, 1891, and to the said Bulkley, Bitch, and Vaughan, individually. In witness whereof, we have hereunto set our hands and seals this 5th day of March, 1891. Executed in triplicate.”
    The following is a copy of the instrument referred to in the foregoing contract:
    “ Whereas, we, the undersigned, Justus L. Bulkley, Thomas Gr. Bitch, and Henry B. Vaughan, residuary devisees and legatees under the will, meaning thereby the original will and the subsequent codicils of Daniel B: Fayerweather, late of the city of Hew York, deceased, did, under our hands and _seals, on the 24th day of February, 1891, execute a deed of gift disposing of the residuary estate left to us by the said will, and in and by said deed reserved the power to make and retain the right to assent to any enlargement of the $15,000 given by the will to Mrs. Fayerweather, which she might desire, and also reserved the power to make and retain the right to assent to any enlargement of the provision made by the will for Mrs. Mary W. Aehter and Mrs. Emma S. Drury, in case we should be satisfied that such enlargement would not be against the wishes of Mr. Fayerweather; and whereas, a desire has been expressed to ns by Mrs. Fayerweather for the enlargement hereinafter made of the amount left to her by the will, as aforesaid; and whereas, we have become satisfied that it would, be the wish of Mr. Fayerweather to make the enlargement hereinafter provided of the provision by the said will for Mrs. Aehter and Mrs. Drury, aforesaid: Now, know all men by these presents, that .under the power, authority, and i-ights reserved and retained by the deed of gift aforesaid: First. We hereby give (1) to the wife of the said Daniel B. Fayerweathér, deceased, the capital sum of two hundred and twenty-five thousand dollars, bearing interest form April 4, 1891, upon any part thereof then unpaid, to be at her absolute disposal, and also to increase her annuity of §15,000 a year, so long as she shall live, to the sum of $25,000, for the period of her life, and we also agree to execute to her a deed of the lot in Woodlawn Cemetery intended for the remains of Mr. Fayerweather. (2) To Mrs. Mary W. Aehter the sum of $42,500, and Mrs. Emma S. Drury the sum of $42,500, bearing interest from April 4, 1881, upon any part thereof then unpaid, Second. And inasmuch as the reservation and retaining of the powers and rights to make the foregoing gifts were in the said deed of gift executed on the 24th day of February, 1891, herein-before mentioned, made the first and second paragraphs thereof, we hereby declare that the payments hereinbefore provided for shall have precedence over the gifts mentioned in the third, fourth, fifth, sixth, seventh, eighth, and ninth paragraphs of said deed of gifts. Third. The foregoing gifts are made subject to the provisions of the tenth paragraph of the deed of gifts executed on the 24th day of February, 1891, hereinbefore mentioned. In witness whereof, we have hereunto set our hand and seals, and delivered this instrument to Henry Stoddard and Stephen P. Nash, mentioned in the deed of gift aforesaid, this 5th day of March, 1891. Executed in triplicate.
    JUSTUS L. BULKLEY. [Seal.] “THOMAS G. BITCH. [Seal.] “H. B. VAUGHAN. [Seal]
    “We accept the foregoing instrument under the provision of the first and second paragraphs of the deed of gift therein mentioned, heretofore accepted by us.
    “Dated New York, March 5, 1891.
    HENBY STODDABD.
    “S. P. NASH.”
    Stephen P. Nash and Henry Stoddard are the persons named in the deed of gift executed by the residuary legatees and devisees February 24, 1891, who are to hold that instrument as trustees for the donees therein.
    Prior to the date of these instruments, and on the 25th of February, 1891, the will was duly admitted to probate, and after the date of these instruments, and on the 20th of March, 1891, the four codicils were admitted to probate; and on the following day letters testamentary were duly issued on said last will, testament, and codicils to Thomas Gf. Bitch, Justus L. Bulkley, and Henry B. Vaughan, as executors, who immediately qualified and entered upon the discharge of their duties. Subsequently, and during the year 1891, the twenty institutions mentioned in the ninth clause, except the University of Bochester, duly executed the following instrument:
    “Whereas, a contest has been proceeding in the court, of the surrogate of the county of Hew York against the probate of the last will and testament and four codicils thereto propounded by the executors of Daniel 13. Fayerweather, deceased, and certain other proceedings have been threatened concerning the construction and validity of the will; and whereas, the undersigned are legatees named in said will, and it is to their interest to have the pending controversy settled, and the threatened controversy abandoned ; and whereas, a settlement of all the controversies has been agreed to, whereby the widow and next of kin have agreed to accept the sum of three hundred and ten thousand dollars, and, in consideration^thereof, have consented to the probate of the will and codicils as propounded, and agreed to release the estate of said Fayerweather from all claims, excepting those to which the said widow and next of kin are respectively entitled by the provisions of the will and codicils aforesaid: How, in consideration of the foregoing, and to enable the provisions of the said settlement to be carried out, it is agreed by the undersigned that the sum of three hundred and ten thousand dollars be paid by the executors of the last will and testament of Daniel B. Fayerweather, deceased, prior to and in preference to the payments to the undersigned, respectively, of the amounts of the legacies in the will contained, and we each, for ourselves, agree that our respective legacies shall be postponed to the payment of the amount above mentioned. In witness whereof, the undersigned has caused its corporate seal to be affixed to these presents, and the same to be signed by its president and attested by its secretary this 22d day of March, A. D. 1891.”
    The University of Bochester, through its attorney, consented to the terms of settlement. Afterwards the sums which the widow and next of kin severally agreed to accept were paid to them, and they executed and delivered a release, of ^hich the following is a copy:
    “To All to Whom These Presents shall Come or may Concern, Greeting: ' Know ye, that I, Mary W. Achtér, of Muscatine, Iowa, by Morris B. Beardsley, attorney in fact, duly authorized thereto, for and in consideration of the sum of forty-two thousand five hundred dollars, lawful money of the United States, to ine in hand paid by Justus L. Bulkley, Thomas G. Bitch, and Henry B- Vaughan, as executors and trustees under the last will and testament of Daniel B. Fayerweather, deceased, and individually, and as the representatives of the persons or corporations hereinafter named, forming a class known as donees under, the deed of gift executed by the said Bulkley, Bitch, and Vaughan on February 24th, 1891, which sum is in compromise and full settlement of any and all contest on my part of the will of said Daniel B. Fayerweather, deceased, or concerning his estate, have remised, released, and forever discharged, and by these presents do for myself and for my heirs, administrators, and executors, remise, release, and forever discharge, the said Justus L. Bulkley, Thomas Gr. Bitch, and Henry B. Vaughan, as. executors and trustees aforesaid, as individuals, and as representatives of the said donees, constituting a class, and also the said donees, to wit, the persons and corporations mentioned in a certain deed of a gift duly delivered, made by Justus L. Bulkley, Thomas Gr. Bitch, and Henry B. Vaughan on the 24th day of February, one thousand eight hundred and ninety-one, which deed of gift was introduced in evidence in the probate proceedings of the last will and testament of Daniel B. Fayerweather, deceased, and marked ‘ Exhibit Ho. Contestants,' and which said deed of gift is hereby made a part of this release, in order that the persons constituting said class of donees, and to whom this release runs, may be fully known, and also the legal successors, assigns, heirs, executors, and administrators of all the aforesaid persons and corporations, of and from all and all manner - of action and actions, cause and causes of action, suits, debts, dues, sums of money, claims, and demands whatsoever, in law or in equity, which against the said persons or corporations, or any of them, I ever had or now have, or which I or my heirs, executors, or administratots hereinafter shall, can, or may have, for upon, or by reason of any matter, cause, or thing whatsoever, except my claim for the legacy given me by the will and codicils thereto of said Daniel B. Fayerweather, deceased. In witness whereof, I have hereunto set my hand and seal this 12th day of June, in the year one thousand eight hundred and ninety-one.
    MABY W. ACHTEB [Seal],
    “By Morris B. Beardsely, Her Attorney.
    “Sealed and delivered in the presence of Edward Marshall Grout.”
    The releases executed by Lucy Fayerweather and Emma S. Drury were in substance the same as the foregoing instrument.
    On February 24,1891, Thomas G. Bitch, Justus L. Bulkley, and Henry B. Vaughan executed and delivered to Stephen P. Hash and Henry Stoddard an instrument known in this litigation as the “Deed of Gift,” of which the following is a copy:
    “Know All Men by These Presents, that we, Justus L. Bulkley, Thomas G. Bitch, and Henry B. Vaughan, residuary devisees and legatees under the will, meaning thereby the original will and the. subsequent codicils of Daniel B. Fayerweather, late of the city of Hew York, deceased, prompted by our determination that we will not retain for our own use any part of the residuary estate left to us by his will, and by the desire to make such disposition of his said residuary estate as in our judgment will best honor his memory, do dispose of so much of the same-as shall remain after the payment of all lawful fees, expenses, and charges, as follows:
    Such of the same as shall remain after the payment of all lawful fees, expenses, and charges, as follows:
    “First. We reserve the power to make, and we retain the right to assent to, any enlargement of the $15,000 a year by the will left to Mrs. Fayerweather which she may desire.
    “Second. We reserve the power to make, and we retain the right to assent to, any enlargement of the provision made by the will for Mrs. Mary W. Achter and Mrs. Emma S. Drury, in case we shall be-satisfied that such enlargement would not be against, the wishes of Mr. Fayerweather.
    “Third. We give to Mrs. Lucy J. Beardsley, wife of Morris B. Beardsley, $100,000. We do this because of Mr. Fayerwea-ther’s letter of November 15, 1890, to Mr. Vaughan and Mr. F. B. My-rick. If accepted, this gift is in discharge of any claim under that letter.
    “Fourth. We give to Miss Anna Amelia Joyce $1,000; to Miss. Anna Amelia Joyce, the annuity of $1,000 provided by the will for the period of her life, instead of. for the period mentioned in the will; to E. M. Upham, as annuity of $1,000 for the period of.his life. To provide for such annuities, we may either retain an amount for investment, the income of which will, in our judgment, provide for. the annuities; or we shall be at liberty by the-use of a sum in gross to purchase an annuity from a responsible life insurance company, to be selected by us.
    “Fifth. We give to George H. Blake $1,000; E. Gould, $500 James Campbell, $500; H. J. Stone, $500; John E. Carpenter, $250; John Dixon, $500; John C. Bayler, $200; Kate Quinn, $100, being the legacy to her of that amount left by the will, and which has elapsed; Albertina 0. Hertzman, widow of E. H. Hertz-man, $500, being the same amount as was left to him by the will; Frank H. Spellman, $2,000 in addition to the $3,000 given by the-will; Clara Miller, wife of George L. Miller, $3,000 in addition to the $2,000 given by the will; Patrick Keefe, $200 in addition to the $300 given by the will; Thomas Donahue, $200 in addition to the $300 given by the will; Owen Keefe, $200 in addition to the $100 given by the will; the Northwestern University, at Evanston, 111., $100,000; Joseph Rogers, $500.
    “Sixth. The said annuities shall begin from Mr. Fayerweather’s death. All the other amounts heretofore mentioned shall draw interest from the expiration of one year from Mr. Fayerweather’s. death. In the event that the said residuary estate shall be insufficient to pay the above amounts in full, they shall abate ratably.
    “Seventh, After payment in full as aforesaid, wé give to Mount Sinai Hospital $15,000 in addition to' the amount given by the will; the Presbyterian' Hospital, in the city of New York, $25,-000, in addition to the amount given by the will; the Woman’s. Hospital, in the state of New York, $200,000 in additon to the amount given by the will; the Manhattan Eye and Ear Hospital, $25,000 in addition to the amount given bv the will; .the New .York Eye and Ear Infirmary,. $25,000; the Manhattan Dispensary, at Tenth avenue and One Hundred and Thirty-First street,, New York City, $25,000; the Montefiore Home for Chronic Invalids, $25,000; the Methodist Hospital of Brooklyn, $25,000; St. Luke’s Hospital, in the city of New York, $25,000 in addition to-the amount given by the will; the New York Cancer Hospital, $25,000; the Society of St. Vincent de Paul, in the city of New York, $50,000,—all without interest. In the event that the said residue of the residuary estate shall be insufficient to pay the above amounts in full, they shall abate ratably. Bach of the gift mentioned in this article is to be used for the endowment of beds, or or some other use which in the judgment of the officers of the institution is best fitted both to be of the greatest service, and at the same time best to perpetuate Mr. Fayerweather’s memory.
    “Eighth. After payment in full as above, we give to Union College, at Schenectady, $100,000; Harverford College, at Haverford College Post Office, Montgomery county, Pann., $50,000; the University of the City of New York, $100,000; the University of Pennsylvania, $50,000; Brown University, at Providence, R.I., $50,000; Harvard College, at Cambridge, Mass., $100,000; Wesleyan University, at Middletown, Conn., <¡¡¡50,000 in addition to the amount given by the will; Princeton College, $100,000; Rutgers College, at New Brunswick, N. J., $100,000; Wells College, at Aurora, $50,000; Elmira Female College, $50,000; Vassal- Col-at Poughkeepsie, $50,000; Barnard School for Women, in the city of New York, $100,000; the Cooper Union for the Advancement of Science and Art, as a permanent fund, the income to be used as far as necessary for the support of the Women’s Art School, $200,000; Shattuck School, at Fairbault, Minn., $25,000; Lafayette College, at Easton, Penn., $50,000 in addition to the amount given by the will; Maryville College, $50,000 in addition to the amount given by the will; Trinity College, at Hartford, Conn., $50,000; Wabash College, $50,000 in addition to the amount given by the will; Marietta College, $50,000 in addition to the amount given by the will, — all without interest. The amount in each case to be used as Fayerweather fund, in some distinctive manner, either for erection of buildings, the establishment of scholarships or other use which in the judgment of the authorities, will be of the greatest practical benefit; the mode of use to be subject to our approval. A separate account of the fund to be kept by each institution, and in the reports of said institution the account to be separately stated. To Yale College,, at New Haven, Conn., $15,000, without interest, in addition to the amount given by the will, to be used in the erection of a Fayerweather building, the purpose of the building and its plans-to be subject to our approval; but if, in the opinion of the authorities of the college, such building be impracticable, the fund to be used for the general purposes of the college. In the event that the residue or the residuary estate shall be insufficient to pay the above amounts in full, they shall abate ratably.
    “ Ninth. All the rest, residue, and remainder of such residuary estate, after payment in full as above, we give in equal parts as follows: To Yale College, at Hew Haven, Conn., ne part; to Columbia College, in the city of Hew York, one part; to Harvard College, at Cambridge, Mass., one part; to Princeton College, one part; to the Woman’s Hospital, in the state of Hew York, five parts; to the Presebyterian Hospital, in the city of Hew York, one part. The gifts in this instruments made to the Woman’s Hospital being for the purpose of erecting or aiding in the erection of a building to be called the ‘Fayerweather Pavilion of the Woman’s Hospital,’ and until used for that purpose to be kept as an invested fund, the income to be used in providing the- benefits of the hospital to women who, in whole or in part, are unable themselves to meet the expense. '
    “ Tenth. The foregoing gifts are subject to our powers as executors ; to our rights, as executors, devisees, and legatees, to turn the-general estate into money ; to the payment out of the general ■estate of 'the collateral inheritance tax, or any other tax provided by law; and are subject further to our right, in the event of any ■question of identification or designation of either of the foregoing -donees, to determine the same.
    “We execute this instrument recognizing that there is pending a contest in proceedings for the probate of Mr. Eayerweather’s will, and recognizing further that, if such contest shall not prevail, a question may be made about our legal rights as devisees and legatees. We assume no responsibility for the result of such contest, or of any such question, or for the acts or omission of each other, or for the amount of or title to any of said residuary estate. Our object is, each for himself, to give away whatever may-come to us as residuary devisees and legatees under Mr. Fayerweather’s will. This instrument is to have only that effect. To make the same as effectual as we can, we deliver this instrument to Stephen P. Hash, Esq., of the city of Hew York, and Hon. Henry Stoddard, of Hew Haven, Conn., to hold for the said donees.
    “In witness whereof, we have hereunto set our hands and seals, and we, the said Henry Stoddard and Stephen P. Hash, in evidence of our acceptance of delivery of said instrument, have subscribed our names the 24th day of February, 1891.
    JUSTUS L. BULKELY. [Seal.] “THOMAS Gf. RITOH. [Seal.] “H. B. YAUGHAH. [Seal.]

      “ In the presence of “John E. Parsons,
    “ Haley Fiske.”
    July 16, 1892, Lucy Fayerweather died, leaving a last will and testament, which was duly admitted to probate September 9,1892; and letters testamentary thereon were then duly issued to John B. Reynolds' and Morris B. Beardsley, the executors nominated therein, who immediately entered upon the discharge of their duties.
    William Blaikie, for app’lts executors of widow, and for next of kin of Daniel B. Fayerweather;
    John E. Parsons, for app’lts Bulkley and Vaughan, two of the executors of Daniel B. Fayer-weather;
    Stewart L. Woodford, for app’lts Thomas G. Ritch, one of the executors of Daniel B. Fayerweather, and individually, Cornell University, Marietta College, and Elmira Female College;
    William G. Choate, for app’lts donees under the deed of gift of Justus L. Bulkley, Thomas G. Ritch, and Henry B. Vaughan, residuary devisees and legatees;
    Charles M. Earle, for app’lt Manhattan Dispensary;
    Henry Stoddard and Haley Fiske, for app’lts president and fellows of Yale College;
    James L. Bishop, Horace Russell, Elihu Root, Martin W. Cook, and William B. Putney, for resp’ts pl’ffs;
    Alfred W. Kiddle, for resp’t Northwestern University;
    William B. Hornblower, Howard A. Taylor, and Austin Abbott, for resp’ts Lincoln University and the Hampton Normal & Agricultural Institute.
   FOLLETT, J.

The testator, by his will and codicils, disposed of his estate as follows: By the first clause, he revoked all former wills. By . the second, he directed the payment of his debts, funeral expenses, and the expense of settling the estate. By the third, fourth, and fifth clauses, he devised and bequeated to Lucy Fayerweather, his wife, $10,000; his residence No. 11 East Fifty-Seventh street, with all the household furniture and effects therein, together with the horses and carriages and personal effects in the stable connected with the house; and a net annual income of $15,000 during her life, payable quarterly,—which provisions were in lieu of dower. By the seventh clause of the will and the fifth clause of third codicil, he bequeathed $100,000 to Lucy J. Beardsley, $20,000 to Mary W. Achter, and $20,000 to Emma S. Drury, three, neices, who were his only heirs and next of kin. By the sixth clause of the will and the third clause of the third codicil, he bequeathed to Anna Amelia Joyce (now Eeynolds) a life annuity of $4,000, provided she remained unmarried. By the seventh clause of his will and by the second and third codicils thereto, he bequeathed $32,600 to various employes and servants. By the eighth clause of his will, he gave to five hospitals in the city of New York $95,000, as appears by this clause quoted in the statement of facts. By the ninth clause of his will, he bequeathed $2,100,000 to twenty educational corporations. By the third clause of the fourth and last codicil, the remainder of his estate was disposed of as follows:

“All the rest and residue of my estate, of whatsoever character and wheresoever situated the same may be, of which I shall die possessed, and remaining after all the specific legacies in my said will and the several codicils thereto have .been paid, and all the provisions of said will and codocils have been fully complied with and carried into effect, I give, devise, and bequeath to Justus L. Bulkley, Thomas Gf. Bitch, and Henry B. Vaughan, to them and their heirs forever,”

(The testator’s estate amounted at his death to upwards of $6,000,000, and, after providing for all of the annuities and the specific devises and bequests, the residuary estate passing under the clause last quoted amounted to upwards of $3,000,000.

The special term found the following facts:

That the defendants Thomas Gr. Bitch and Henry B. Vaughan, for themselves and on the part of Justus L. Bulkley, promised Daniel B. Fayerweather, now deceased, and induce him to believe, that if he would make them and the defendant Justus L. Bulkley residuary legatees of his estate, as provided in the codicils of his will dated December 13, 1884, and November 15, 1890, the said residuary legatees would sell and convert said residuary estate into cash, and divide the same equally, share and share alike, among the twenty corporations mentioned in the ninth paragraph of the said Daniel B. Fayerweather’s will, dated October 6, 1884, including the plaintiffs, after paying $100,000 to the Northwestern University, and that the said Daniel B. Fayerweather made the said Bitch, Bulkley, and Vaughan his residuary legatees, in and by the said codicils, in reliance upon the said promise and inducements, and died leaving the said Bitch, Bulkley, and Vaughan his residuary legatees in the belief so induced by them that they would sell, convert and distribute the residuary estate-as aforesaid, and that the said Bitch, Bulkley, and Vaughan have attempted to dispose df the said residuary estate in violation and disregard of the said promises. These facts are amply supported supported by the evidence. The testimony of Bitch and Vaughan and the correspondence conclusively show that they definitely promised the testator to dispose of the residuary estate bequeathed to them in accordance with the provisions of the tenth clause of the will. No other conclusion is possible, and we are of the opinion that the evidence warrants the conclusion that there was an understanding between Justus L. Bulkley and the testator that the estate should so be disposed of. Bulkley had for many years been an intimate friend of the testator, and was nominated as one of the executors in the will of 1880, and he joined with the other residuary legatees in divesting themselves of all personal interest under the residuary clause of the will, which seems to us to show that there was an understanding between the testator and all of the residuary legatees that the residuum should be disposed of in accordance with the testator’s wish expressed in his will and the memorandums. This brings the case within the rule laid down in O’Hara v. Dudley, 95 N. Y. 403. The residuary legatees acquired no personal interest in the residuum, but took it as trustees.

The executors of the testator’s widow and two of his heirs at law and next of kin seek to have the residuary clause declared invalid under chapter 360 of the Laws of 1850, which provides : Section 1. No person, having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts (and such devise or bequest shall be valid to the extent of one-half and no more).”

The difficulty with their contention is that the widow and heirs released all of their interest in the estate, for valuable considerations paid to' them. This statute was designed for the protection of husbands, wives, next of kin, and heirs at law; but it does not in any wise prevent them from releasing to educational corporations the benefits which they might have secured by resisting wills in contravention of the statute. It is urged that these releases were procured by fraud and undue influence. There is no evidence m.the record justifying this contention. The terms of settlement were agreed on during the controversy in the surrogate’s court over the probate of the will and codicils; and the widow and heirs were represented in that controversy and in the settlement by distinguished counsel, and acted under their advice. The residuary legatees not having any personal interest in the residuary estate, and the widow and heirs having released all their interest therein, there is no person who is entitled to raise the question that the residuary clause is void under the act of 1860. No person or corporation, except the state, in certain cases, can impeach the validity of the disposition of property by will, unless the contestant, if successful, will acquire some interest under the statutes of descent or of distribution, or as devisee or legatee, in the property attempted to be disposed of by the will; and if the person entitled to contest a will or some one or more of its provisions, voluntarily and for a valuable consideration received after the testator’s death -with full knowledge of the invalidity of the will, divests himself of all interest in' the property disposed of by it, he cannot impeach its validity.

The judgment should be affirmed, with separate bills of costs in favor of tlje respondents, payable out of the estate.

PARKER, J., concurs.

VAN BRUNT, P. J.

(concurring.)—The facts upon which the controversies in this case arise are not disputed, and, as I understand them, are briefly these: On the 6th of October, 1884, Fayerweather made a will, by which, in the ninth clause thereof, he bequeathed certain sums of money to twenty educational institutions ; and then, by the tenth clauso, he devised all the rest, residue, and remainder of his estate to executors, in trust, to sell and convert into cash, and to divide the same equally among the several corporations mentioned in said ninth paragraph, share and share alike. Fayerweather was advised by his counsel that the provisions of his will contravened the restrictions of the law of this state relative to benevolent corporations. Upon the execution of the will he delivered it to one of its executors, with a certificate stating that he had been so advised, .and expressing the trust that his “ lieirs” would permit the provisions of his will to be carried into effect. The statute which was contravened by the provisions of the will was that which prohibited a person having a husband, wife, child, or parent from devising or bequeathing to any benevolent, charitable, etc., society, in trust or otherwise, more than half of his or her estate after the payment of his or her debts. On the 13th of December, 1884, Fayerweather, having become suspicious as to the - forbearance of his widow and next of kin in the assertion of his rights conferred upon them by the statute above mentioned, executed a codicil to his will, by which he revoked the tenth clause, and bequeathed all the rest, residue, and remainder of his estate to the persons named in the eleventh paragraph of his will as his executors. Upon the' execution of said codicil the testator delivered it, with a memorandum, to Mr. Ritch, one of his executors, in -which he stated that he had made three executors his residuary legatees in the confidence that thereby his intentions as expressed in his will would be carried into effect, and without litigation on the part of any person or persons interested. On the 7th of January, 1888, the testator executed a second codicil, by which he gave certain additional legacies, named a third person as executor of his will and trustee of his estate, and conferred the same powers on the three executors as had been conferred by the will on the two. On the 19 th of March,- 1889, the testator executed a third codicil, by which he ratified his will and codicils, except as therein modified. lie made some changes, and gave some additional legacies. Upon the execution of this codicil he delivered it, with a memorandum, to one of his executors for safe-keeping. The memorandum related to sums to be given to certain charitable institutions, and also some small gifts to divers persons. On the 18th of November, 1890, this executor, upon the testator’s order, delivered his will and the first, second, and third codicils to the executor whom the testator had last named, who delivered them to the testator. On the next day the testator sent a letter to one of his executors, calling his attention to the revocation of the tenth clause of the will by the first codicil, and the devise of all the rest, etc., of his estate to the executors named in "the eleventh clause, and asked:

“ Please advise me at once, in writing, what is the legal effect of this clause, and to whom and how would my residuary estate go in case of my death, supposing this first codicil to remain, in force.”

To this letter the executor Mr. Ritch replied :

“ The intention of the change in question was to enable Messrs. Bulkley and myself to carry out the intentions of the will as modified by the various private memoranda in my possession. Neither Mr. Bulkley nor myself would have any moral right to" treat any portion of your estate otherwise than as we know would conform to your wishes. I suggest that I call on you with these, and, if still approved-by you, that they be left in a sealed package with Miss Joyce, or any one named by you. The legal effect of the clause in question is to vest the title to the residuary estate in Messrs. Bulkley and myself; but, as I have said, neither Mr. Bulkley nor I would wish to derive any personal benefit under the codicil.”

On the 15th of November, 1890, the testator executed a fourth codicil, by which he ratified and confirmed his will and codicils, and especially confirmed the revocation of the tenth clause, and changed the’ third clause of the first codicil so as to devise the residue, etc.", of his estate to his three executors, instead of two. On the- same day the testator died, leaving said will and four codicils unrevoked. This will and codicils have been admitted to probate. By these instruments it is clear that the executors and devisees took the rest, residue, and remainder of the estate as trustees, the corporations named in the ninth clause of the will being the cestuis que trnstent, which trust can be enforced by the cestuis que trusteut, unless the rights of some parties secured to them by law will be .thereby contravened. It is clear that these executors could not put this residuary estate into their own pockets, and apply it to their own uses, the testator having made this disposition of his estate upon their promise to apply it in the manner provided for by his will. The tenth clause of the will, although revoked by the codicils, still existed, for the purpose of defining the trust. The testator left him surviving a widow, who was the only person who could call into operation for her protection the statute which we have quoted. The widow, however, has released to the executors all claims to the estate, which release cannot be successfully attacked or set aside. There is consequently no person for whose benefit the statute can operate. No rights of heirs and next of kin have been infringed upon, because the trust does not contravene any statute for their benefit, and is not the subject of attack by them. If it were, they have also executed a release of their interest in the estate, in the same manner as the widow. We have, therefore, the case of a trust established, which would be valid as against all the world, but for the statute in favor of the widow; and, the widow having released all her rights in the estate, how can she claim the invalidity of a trust as to property in which she has no interest? The widow is not aggrieved, and under such circumstances the trust must be executed.


author: PRATT, J.

text:
    Gustav Heinz, as Administrator, etc., Resp’t, v. Brooklyn Heights Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Damages—Question por jury.
    The amount of damages to be allowed for the death of a bright and healthy boy, seven years old. in an action for death by wrongful act, is a. question for the jury.
    Appeal from a judgment on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    Morris & Whitehouse, for app’lt;
    M. L. Towns, for resp’t.
   PRATT, J.

Several witnesses testify that the car was going fourteen or fifteen miles an hour. There were also two persons, besides the motorman, standing upon the front platform. There was enough evidence to go to the jury upon the question of defendant’s negligence. The deceased boy was seven years of age, and the question whether he exercised such care as can he reasonably required from a lad of that age was peculiarly a question for the jury. The motion for nonsuit was properly denied. The charge of the court could not be objected to by defendant. The only question that remains is whether a verdict of $3,500, for the life of a bright and healthy boy, is excessive. That is peculiarly a question for the jury. We cannot say the verdict shows passion or prejudice.

Judgment affirmed, with costs.

All concur.