author: Patterson, J.

text:
    Louis C. King, Resp’t, v. John Townshend, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    1. Estoppel—Judgment.
    Where a prior judgment may have been based upon either of two facts, or states of facts, a party seeking to avail himself of it as an estoppel must show affirmatively that it went upon the particular facts claimed to create that estoppel.
    3. Same—Cloud on title.
    In an action to cancel a tax lease as a cloud on title, there was introduced in evidence a judgment in a prior action of ejectment brought by plaintiff’s grantor against the defendant which directed a dismissal on the merits. It appeared, however, that the court certified that the facts did not establish any title to, or right of possession of the locus in, quo in the plaintiff therein, and that he had not shown possession thereof in himself or those through whom he claimed. Held, that as it did not clearly appear that the court intended to find title in either of the parties, but may have decided the case on the question of possession only, the judgment did not estop the plaintiff in this action from proving title in his grantor.
    Appeal from judgment in favor of plaintiff.

      John Townshend, for app’lt; L. A. Gould, for resp’t.
   Patterson, J.

The decree from which the appeal is taken in this cause declared that a certain tax lease of premises described in the complaint, made and executed by the proper authorities of the city of New York to the defendant,' was void, and directed it to be canceled of record as a cloud on the plaintiffs title, for the reason that excessive interest had been added to the amount of an assessment for non-payment of which the property was sold. It has been held' by this court that a tax sale made under such circumstances is void, Matter of Willis, 30 Hun, 13, and by the court of appeals that where the facts constituting the illegality .of the sale do not appear of record, but must be proven by extrinsic evidence,, a suit will lie to remove as a cloud upon title á lease or deed based

upon such void sale. Stewart v. Crysler, 100 N. Y., 378. The burthen of proving the facts constituting illegality in this case was upon the plaintiff, for the statute makes the lease prima facie evidence of the regularity of all proceedings resulting in its execution and delivery. Chap. 381, Laws 1871; § 941, Consol. Act. Sufficient was shown on the trial to authorize the finding that the sale was void, but it is claimed that for other reasons the learned judge at special term erred in holding that the plaintiff was entitled to a decree. ‘ “

It is alleged in the complaint that the plaintiff is the owner and in possession of the premises described therein. The answer puts that allegation in issue. It was, therefore, necessary for the plaintiff to establish title in himself by competent evidence. That lie did by grants or conveyances sufficient to vest a paper title in him, and, although there was some dispute as to possession, he showed that he had it when this suit was begun. On the trial the defendant, as evidence against the plaintiff’s asserted title, introduced (and as would appear) without objection, a judgment record entered in the superior court of the city of Kew York in an action of ejectment brought by one Moores, the present plaintiff’s immediate grantor, against this defendant and .his tenant in possession for the recovery of the same premises. That action was tried October 4, 1886, and a verdict was directed for the defendant, subject to the opinion of the court at-general term: Judgment on the verdict and directing the dismissal of the complaint was ordered by the general term and was entered March 10, 1887. The judgment is expressly stated to be on the merits.

An appeal was taken to the court of appeals and the judgment was affirmed. In obedience to the requirements of § 1339 of the " Code of Civil Procedure, the superior court certified to the court of appeals (and it went" up as part'of the record) a statement of the facts, the questions of law arising thereon, and the determination made of the same ; in which .statement it was, among other things, certified that the facts disclosed on the trial did not establish any title to or right of possession of the locus in quo in Moores, and that he had not shown possession thereof in himself,, nor in the persons through whom he claimed.

It will be observed that “this judgment of the superior court,, which is now invoked as an estoppel against the plaintiff, was-rendered in March, 1887, was upon the merits, and if it was binding upon Moores on this question of title it would also estop the present plaintiff, as his grantee, the grant being subsequent to the judgment. Campbell v. Hall, 16 N. Y., 579. The present suit was begun May, 1891, more than four -years after the entry of the judgment in the" superior court. The question for consideration therefore is, what is the effect of the judgment referred to on the title derived by the plaintiff from Moores? It may be stated as a general rule, that a judgment between parties, binding on them and their privies, and rendered on the merits, is conclusive upon the same matters in any subsequent action, whether brought for the same or for any other object or purpose, or in the same or any other form of action, Castle v. Noyes, 14 N.Y., 329 ; Smith v. Smith, 79 id., 634; Jordan v. Van Epps, 85 id., 427 ; Leavitt v. Wolcott, 95 id., 212 ; Pray v. Hegeman, 98 id., 357 ; Bell v. Merrifield, 109 id., 211; 14 St. Rep., 796, and it is immaterial whether the judgment is pleaded in bar as a defense or is put in evidence without being pleaded, as an estoppel. Embury v. Conner, 3 N. Y., 522 Krekeler v. Ritter, 62 id., 372. But engrafted upon the general rule is the condition' that" the precise question involved in the second action must have been (or- within the pleadings might have been) finally determined in the first action, Bell v. Merrifield, supra, and that where the prior judgment may have been based upon either of two facts, or states of fact, . the •party seeking to avail himself of the estoppel must show affirmatively that it went upon the particular facts claimed to create that estoppel, otherwise it is open to a new contest. Lewis v. Pier Co., 125 N. Y., 341; 34 St. Rep., 073. The learned judge at special term found and based his decision on the finding that the record-in'the superior court did not disclose that the judgment was rendered upon the question of title, but that it may have been on that of possession only. All that appears from the judgment roll, properly so called, is that the judgment was on the merits, but what was determined by the superior court, as certified by it to the court of appeals, is that it was adjudicated that the facts proven. did not establish any title to the premises in Moores. This certificate of the general term was •required by law, is to be regarded as part of the proceedings in the action similar to findings of fact and conclusions of law on a trial at special term, and was necessary to enable the court of last resort to know upon what grounds the determination below was based.

We agree with the special term that the superior cortrt judgment is not conclusive in this action on the question of title, because it -is not clear that that court intended to make a final •and binding adjudication on that subject, and it is at least very ¿doubtful under the statute if it had the power to do so finder the facts certified by it to the court of appeals. The conclusiveness of a judgment in ejectment on the question of title is a matter of ■express statutory provision in the state of New York. Before the Revised Statutes, as is well known, a judgment’in ejectment was not a bar or an estoppel to new actions on .new .demises, but as many subsequent actions might be brought as there were new leases made, and the only, way to prevent further litigation was by a decree in equity enjoining other actions being brought .at law. The revisers remodelled and regulated the action of ejectment, intending to assimilate it as a real action as nearly as might be to replevin as a personal action, but in doing so they -carefully provided for the effect of a judgment both after a trial and upon default of a defendantLin pleading; as. to the former case it bding enacted, 2 Rev. St at., 309, § 36, that “ every judgment in the action of. ejectment rendered.upon a verdict of a jury •or a report of a referee upon the facts, or upon a decision of a single judge upon the facts, shall be conclusive as to the title estab lished in such action upon the party against whom the same is rendered, and against all persons claiming from, through or under such party, by title accruing after the commencement of such action subject, etc.” This provision of the R. S., is now contained in substance in § 1524 of the Code of Civil Procedure. Now it is to be observed that .the superior court certifies that on the question of title there was merely a failure of proof. If title were only involved a dismissal as in the case of an ordinary nonsuit would have been the proper judgment. But possession and title being both involved in actions of ejectment since the Revised Statutes, Cagger v. Lansing, 64 N. Y., 417, it is probable that on the finding that the plaintiff Moores was not entitled to possession the superior court held the complaint should be dismissed on the-merits; for it is not to be assumed that that learned court intended to ignore the plain provision of the statute, that to make the judgment conclusive as to title there must be a title established in the action, and it would be an absurdity to say that the failure of a plaintiff to prove title in himself establishes one in 'his adversary or in any one else. In the defendant’s answer in the superior court action no title was set up. The whole defense was simply on the general denial, and respecting a judgment in such a case-the language of Mr. JusticeS wayne, Barrows v. Kindred, 4 Wall., 399, in commenting upon the Illinois statute, which is similar to-ours respecting judgment in ejectment, is pertinent. The learned judge says: “ Where a judgment is rendered for the plaintiff the title upon which he recovered is thereby established, and the construction and effect of the statute are obvious. He must recover in all cases, if at all, on the strength of his own title, and not upon the weakness of his adversary’s. It is not incumbent on the defendant to show any title. , Where a plaintiff shows no title, and is therefore defeated, it is not easy to perceive how any title can be said to have been established in the action, or how, under the-statute, the result cap affect his right to bring a new action.” And in our own courts the same view of the statute has been taken. Briggs v. Wells, 12 Barb., 569; Ryerss v. Rippey, 25 Wend, 432, the latter case being cited to the same point by Rapallo, J., in Dawley v. Brown, 79 N. Y., 398.

There was no title whatever established in. anyone by the superior court judgment, and as it does not clearly appear, either by the record in that action or otherwise, that the court intended to find title in either of the parties, we think the special term was right in holding that the judgment referred to did not conclusively estop the plaintiff from showing here that title in Moores, his grantor, which was not shown on the trial of the ejectment action, but which was proven on the trial of the case at bar.

The judgment must he affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Mary Davies, Adm’rx, Resp’t, v. The Pelham Hod Elevating Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    Negligence—Unsafe apparatus—Change at request of injured party.
    Defendant contracted to furnish to the employer of plaintiff’s intestate a derrick with proper appurtenances for hoisting granite, and furnished one with a steel wire cable. After a time the intestate, who had full charge of the work and represented his employer, found fault with the cable and asked to have it changed for a manilla rope, and defendant furnished a new rope larger than intestate asked for. Thereafter the rope broke and intestate was injured so that he died. Held, that there was a substitution of intestate’s judgment for that of defendant in respect to the kind of rope to be used, which was a complete answer to a charge of negligence against defendant for having furnished such rope.
    . Appeal from j udgment entered on verdict in favor of plaintiff, and from order denying motion for new trial.

      George S. Coleman, for app’lt; William H. Arnoux, for resp’t.
   O’Brien, J.

This action was brought to recover sum of $5,000 for the loss of the life of plaintiff’s intestate, which was alleged to have been due to the negligence of the defendant in fulfilling its contract with one Hopper & Co., and in furnishing an insufficient derrick and appurtenances. Defendant’s contract was to furnish a derrick, with ropes, blocks, engine and engineer to operate it, on the premises on the northeast corner of Fifty-ninth street and Fifth avenue, to’ be used in hoisting and placing in position blocks of granite that were to be used as foundation stones and piers of the hotel now known as the Astor Hotel. Some question upon the pleadings is presented as to whether or not the defendant knew the purposes for which the derrick was to be used, but we think that the construction given by the learned trial judge to the pleadings was correct.

The evidence shows that the contract was made with reference to a derrick that Mr. Hopper had previously seen in operation upon a building directly opposite to the one in question. This same derrick? rigged with a steel wire cable, was delivered and thereafter safely operated for some weeks. About three weeks before the accident the plaintiff’s intestate took charge of the work" .and control of the derrick as Mr. Hopper’s representative. He .found fault with the cable wire rope and desired to have it ■changed for manilla rope. Mr. Hopper authorized him to make any changes he might deem proper, ás hé'was in entire control of the derrick. At the request of the intestate, the change was made in his presence and with his assistance, défendant furnishing a new manilla rope four and one-quarter inches in circumference, and being one-quarter inch larger than, according to the testimony of one of the witnesses, was asked for by Davies. On or about the 10th of June, 1891, the derrick had lifted a granite block, weighing five and a half tons, on one of the piers; it had a mate stone. It was found not to have a level bed. Davies gave orders io raise it off its bed. It was raised two or three inches, when-the manilla rope (the topping lift) broke, precipitated the granite block ancl the boom, which the rope held in position, to the ground. The boom, in its descent, struck plaintiff’s intestate on his’ head, causing injuries from which he soon after died. Evidence was offered by plaintiff tending to show that the rope was unfit; of insufficient strength.to lift these massive pier stones. On the other hand, some of plaintiff’s witnesses and others produced by defendant testified that this rope was used in raising large stones for about two weeks; fifty-five stones were raised and set in place with it; about a dozen of these were as large as the stone in raising which tne rope broke, and one was much larger.

Were there no other question in the case but that presented by the conflicting evidence as to the sufficiency of the rope, the jury having found in favor of the plaintiff, the verdict could not be disturbed. The appellant insists that the complaint should have been dismissed, as it alleged no cause of action against defendant in favor of the plaintiff, the charge being negligence in fulfilling a contract with Hopper & Co., by reason of which alleged negligence plaintiff’s intestate was injured and subsequently died. It is contended that, because there was no privity of contract, or privity of any kind between plaintiff’s intestate and the defendant, no recovery ■Could be had. In support of this view we are referred to the case of Burke v. De Castro, etc., Sugar Refining Co., 11 Hun, 354, where it was held that the plaintiff could not maintain an action against the defendant based upon the negligence of the defendant in furnishing an unsafe apparatus for hoisting sugar which the defendant, under a contract, had -allowed the plaintiff’s employer to use, and had hired to him for the purpose of unloading a cargo of sugar from a vessel.

We think, however, that the case of Devlin v. Smith, 89 N. Y., 477, extending the principle of the case of Thomas v. Winchester, 6 N. Y., 397, must be regarded as having overruled the case of Burke v. De Castro, etc., Sugar Refining Co. In this latter case, Devlin v. Smith, it was said, in speaking of the liability of one who undertook to build a scaffold ninety feet high, for the purpose of enabling the workmen of one Smith to stand upon it and paint the interior of the dome of a court house, that the builder of the scaffold was liable for any neglect or negligence in its construction which would cause it to give way and réáult in injury to an employee or servant of Smith’s. As was said in that case, commenting upon Coughtry v. The Globe Woolen Co., 56 N. Y., 124: “ The deceased was not a party to that contract, and the same argument was made as is urged here on the part - of the defendant, that the latter owed no duty to the deceased. But this court held that, in view of the facts that the scaffold was upwards of fifty feet from the ground, and unless properly constructed was a most dangerous trap, imperiling the life of any person who might go upon it, and that it was erected for the very purpose of accommodating the workmen, of whom the person killed was one, there was a duty towards them resting upon the defendant, independent of the contract under which the structure was built, to use proper diligence in its construction.” In view of the uses to which admittedly the defendant knew the derrick was to be put, we think that the case of. Devlin v. Smith is controlling!

Assuming, therefore, that proof of knowledge by defendant .pf the uses to which the derrick and ropes connected therewith were-to be put, coupled with the fact that they were insufficient and improper, thus making them eminently dangerous to life, was-sufficient, within the principle of the case cited, to render the defendant responsible for injury to plaintiff’s intestate, in the absence of any privity between them, there still remains in the case another feature which we think fatal to plaintiff’s recovery.. The defgndant’s contract was to furnish a particular derrick, properly rigged. In'fulfilment of this obligation the very derrick contracted for was erected, supplied with a steel wire rope, which, as shown by the evidence, answered all-purposes until, at the request of plaintiff’s intestate, it was discarded, and the manillarope substituted. Whether the wire rope had a Haw in it or not, as testified to by one of the witnesses, there is yo proof to negative the view that a perfect, wire rope would have answered the purposes and uses to which the derrick was to be. put. It was proved that the deceased had control of the derrick, and authority to change and to select or reject any or all ropes. The kind of ropes he used was entirely under his control. Had he placed the obligation upon the defendant of selecting a rope suitable for the purpose, a failure to discharge this obligation might have rendered the defendant liable. But where, as in this case, .the plaintiff’s intestate insisted upon a change from the steel wire to the manilla rope, and when the rope, as furnished by the defendant, in all respects, was such as ordered, and was one-quarter inch larger than the intestate - thought sufficient, it is difficult to understand in what respect defendant was negligent" after supplying to plaintiff’s intestate the very kind of' rope'that he ordered. While, therefore, the defendant’s original contract may have been to furnish a rope sufficient todo the work required,- this obligation was discharged by supplying the steel wire cable with which the derrick was operated for several weeks and up to the time that, by reason of some flaw he .discovered therein, or acting upon his own judgment as to the best kind of rope to be used, the plaintiff’s intestate directed the steel wire-cable to be removed and a manilla rope substituted. It thus appears that, in accordance with-the requirements of plaintiff’s intestate, to whom authority was given, and who had a right to change the rope, the defendant, in compliance with the request and order so given, delivered the manilla rope, which the evidence in the case was directed to show was insufficient for the uses to which, on that particular building, the derrick was to be put.

We are of the opinion that the substitution by plaintiff’s intestate of his own judgment for that of the defendant, in respect to the kind of rope that should be used, is a complete answer to the claim made of negligence as against defendant in having supplied him with the very thing that he ordered, and from the use of which his injuries were received.

' ' No motion was made to dismiss the complaint upon this ground, but in various forms it was presented to the court in the shape of requests to charge the jury, which were refused by the learned trial judge, and an exception to such refusal taken. We are of opinion that had a motion been made to dismiss the complaint at the dose of the evidence, it should have been granted; and that the error in the refusal to charge propositions of law to which the defendant was entitled was such error as to require a reversal of the judgment and a new trial, with costs to appellant to abide the ■event.

" Patterson, J., concurs; Van Brunt, P. J., concurs in result.


text:
    James B. White et al., App’lts, v. Alexander Ross, Impl’d, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    1. Will—Testamentary capacity.
    There is but one standard of testamentary capacity known to the law of this state, and that is embraced in the inquiry, was the decedent compos mentis or non compos mentis, as those terms are settled in the law, at the time of the execution of the instrument.
    2. Same—Undue influence.
    Facts insufficient to show undue influence in inducing the making of a will in favor of a decedent’s husband.
    Appeal from decree of surrogate, admitting to probate will of Annie Cora Ross.
    Daly, Hoyt & Mason, for app’lts; Thomas Nelson, for resp’t.
   Patterson, J.

This appeal is from a decree of the surrogate of the county of New York, made November 4, 1891, admitting to probate the last will and testament of Annie Cora Eoss. The will was executed bn the 20th day of March, 1889, and by it the testatrix devised ando bequeathed all her real and personal property to her husband, Alexander Eoss. The brothers and sisters of the testatrix, viz: James B. White, Alexander White, Jr., Elsie White and Mary S. White, filed objections to probate, and set up as the grounds of contest that the alleged will was not the free, unrestrained and voluntary act of Mrs. Eoss; that she was not of sound mind, memory or understanding, or capable of making a will when the paper offered for probate was executed; that it was not subscribed, published or attested as required by law; that execution of the instrument was procured by fraud, circumvention, and undue influence practiced upon the decedent by Alexander Eoss, the executor, sole legatee and beneficiary under said will, or some other person unknown to contestants. After hearing the ■proofs, the surrogate found against the contestants on all the grounds of opposition urged by them, and the decree establishes that the will was the free and voluntary act of the testatrix; that she was at the time of its execution of sound mind and memory, and competent to make it, and fully comprehended its provisions, and that it was not obtained through restraint, coercion, fraud, or undue influence by the said Alexander Eoss, her husband, or of. any other person whomsoever. =

The objection to the execution of the will as not being in due-form and as prescribed by statute is not insisted upon, and the-evidence utterly fails to establish a want of testamentary capacity in the testatrix. There is but one standard of such capacity known to the law of this state, and that is embraced in the inquiry, was. the decedent compos mentis or non compos mentis, as those terms are-settled in the law, at the time of the execution of the instrument?' Parish will case, 25 N. Y., 9. It was not proven that Mrs. Ross-o was incapable of making a will had she been left to the uncontrolled exercise of her own judgment and volition. She ha°d previously and at various times conveyed interests i'n her fathers estate to members of her family and others, and the testimony fails to disclose any change in her mental condition intermediate the first of those conveyances and the execution of the will. The real contest made before the surrogate was on the question of undue influence and coercion in the procurement of the execution of the will. There is no serious controversy respecting the rule of law controlling in cases of this character, but we are required to-analyze the evidence and review it carefully to ascertain whether fraud, coercion or undue influence was resorted to by the proponent or others to induce the testatrix to dispose of her property in favor of her husband, to the exclusion of her brothers and sisters.

The proposition of the appellants stated substantially in their own words is : That the weight of evidence establishes or raises a presumption, so strong that only the most positive proof will rebut it-, that the execution of the will was procured as the result of a carefully planned, pre-arranged conspiracy on the part of Ross and his confederates, acting on a person whose body and mind, originally weak and feeble, had been further debilitated by long continued ill health and serious sickness. Of this alleged conspiracy we find no evidence whatever. .It ds a mere gratuitous assumption, and could only be sustained by arbitrarily putting an evil construction upon acts of parties; ascribing to them motives not justified by testimony; distorting that which they did and said; and weaving an imaginary fabric of fraud out of circumstances altogether consistent with honest and upright conduct.

It must be borne in mind that- this will was made in favor of a husband, was prepared in contemplation of marriage, and executed immediately after the marriage ceremony was performed; that the testatrix lived with her husband for two years after the marriage in apparent contentment and happiness, and died then of an acute disease. Looking at the testimony to ascertain the physical and mental, condition of the testatrix at the time of her marriage and the execution of the will, we find the accounts given by the contestant’s witnesses to be either exaggerated or of trivial circumstances.

It is claimed that she was feeble minded ; that she was eccentric and whimsical. Boarding house keepers, dressmakers, and servants have testified to her childish ways and tastes; she dressed in a manner unsuitable to her age; she was fond of playing with little children; she kejit herself isolated in her darkened room, .and stayed there week after week ; she was not given to reading; she would not associate with other boarders in the houses in which she lived, but took her' meals in her room, and often, and as is claimed unreasonably, objected to the food prepared for her. But all these circumstances do not show any especial weakness of mind when they are considered in connection with other facts. The testatrix lived secluded. It was her fancy. ' Her knowledge of the world and society was limited. She had force of character enough to know what she, wanted and to have her own way and to get what she required Her seclusion and repugnance to general society are fully explained. She suffered from facial paralysis and took nothing but liquid food for a long time, and it was but natural that she should dread being a spectacle for the gossip or entertainment of a boarding house table. But she was undoubtedly unfamiliar with general society, and her mind was not developed ; there was no such feebleness, however, as^ would indicate a lack of judgment in those matters which affected her property or her condition.

The learned surrogate evidently was impressed with what is one of the most striking considerations in the whole case, and that is, why did the mother and brothers and sisters of this testatrix allow her to live alone, in rooms at a boarding house, in a strange city, where she might become the easy prey of an adventurer if she were mentally incapable of taking care of herself ? Hot only did they allow that, but it appears that her mother or sister refused to permit her to know their address ■in Chicago, and at the time she became engaged to Ross she was virtually abandoned by those of her relatives who should have been prompt to protect her. But, further than this, the attorney who prepared the will did so on the instructions of the testatrix herself, and Rjss had nothing to do with them. The attack upon this attorney and on the proponent’s witnesses is not justified by the evidence as we find it in the record. The dishonorable and fraudulent conduct imputed to them is not proven. They are not shown to have aided Ross in an attempt to impose upon and ■overreach the testatrix. The worst that can be said of Ross is that he made a mercenary marriage, but even that is ‘not at all ■clear. He was no stranger to the testatrix nor to her family. He had known them [or several years. He had entertained the idea ■of marrying the testatrix for some time, but his means were lin> ited, and it was not until he learned from Reynolds that the testatrix had interests in her father’s estate (of which and the extent •of which she also was in ignorance, as would appear) that he proposed marriage. Here, again, the attack on this witness (Reynolds) is unfounded. We can find nothing, impeaching his testimony in the printed record, and had his appearance on the stand been unfavorable, the learned surrogate would not have failed to observe it ■

Throughout the whole testimony, in considering the relation of Ross to the testatrix, the manner of her life, the loneliness of her .situation, the conduct towards her of her relatives, their acts respecting her share of her father’s estate, the fact that Ross, in marrying her, furnished her with a home and the affection and: protection of a husband, that he made his own will in favor of his wife, that she fully - understood and comprehended what she was doing, we can see no reason for setting aside the decree of the surrogate. In reaching this conclusion we have not overlooked any of the testimony. That of Mr. Wellman is relied upon by the contestants as showing that the proponent knew that the testatrix was of feeble mind.

Giving that testimony full weight, it appears that Ross consulted Wellman as to what he should do respecting a proposed marriage. He told Wellman that the lady was single, of not very sound mind, easily influenced, that s¡he had no protector, and her relatives were endeavoring to obtain her property; and Well-man advised him “ that if he could afford her better protection by-becoming her husband, I thought he had better do so.” On that advice Ross acted. What he stated to Wellman as being the situation of Miss White was true. Her relatives had left her unprotected ; it certainly appears that they were trying to get her property, and it may be that she was not of very sound mind and needed protection. She made her contract of marriage and her will to secure protection and she received it. Not one word is-contained in the evidence to show that Ross was other than a faithful and devoted husband, and her letters, written after the-marriage, fully establish that fact. Concerning those letters it is-objected that they were improperly admitted in evidence, but, under the peculiar circumstances of this case, we think they were-properly allowed to come in as showing that there was no change in the condition of mind of the testatrix; that she exhibited the same traits and characteristics in her peculiar forms of expression and references to persons after as before her marriage, and they bear internal evidence of being the spontaneous productions of her. own pen, without any interference or coercion of a third party. On the whole case, the decree of the surrogate, admitting the will-to probate, should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


author: O'Brien, J.

text:
    Juan Luis Dammert et al., Ancillary Ex’rs, Resp’ts, v. William Henry Osborn et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    Will—Foreign—Invalid bequests.
    A resident of Peru, who died in that country, provided hy his will that, a portion of his estate should he devoted to founding in this state a home for children. No direct bequest of the fund was made to any person or corporation, hut it was provided that it should he managed hy a hoard of managers to he appointed from a list of persons named. The will also-provided that the founding of the institution should not take place until, two years after the hoard received the fund, so that the purchase of land- and erection of buildings.should he done with the income accumulated during that time. The will also provided that a certain society in Lima, Peru, should receive all legacies of public interest. The executors having collected the personal assets in this state and set apart sufficient for saúí fund, asked for a construction of the will.- Held, that the bequest for said home was invalid under our statute against perpetuities as well as because at the time of testator’s death the persons upon whom the trust was to devolve were unascertained, and the court properly exercised its discretion in refusing to deterihine the title to the fund and in remitting it to the courts of the testator’s domicil.
    Appeal from judgment entered at special term, construing will.
    The following is the opinion at special term:
    Lawrence, J.—This action is brought by the plaintiffs as ancillary executors of the last will and testament of Jose Sevilla," •deceased, late of Lima, Peru, to obtain a construction of the clauses in said will providing for the founding and maintaining of an establishment in the city of New York devoted to the education of poor female children, which institution the will directs shall be called the Sevilla- Home for Children, and shall, be managed and administered by the board of executors and philanthropic managers jointly, with the persons to be designated in clause thirty-six of the will. °In clause third of the will the testator declares that in the year 1884 he executed, in the city of New York, a will by which he left the larger part of his fortune to fopnd an institution under the name of the Sevilla Home for Children, and in regard to which; “ I formulated in a detailed manner the principal- bases. Persisting in my philanthropic idea I desire that said institution be established in the manner hereinafter set forth; but in view of the unfortunate situation of my relatives and various persons dear to me, I deem it indispensable to reconcile my special predilection for the United States of North America with my duties to my family and other persons and those which bind me to Peru.”
    In subdivision (A) of the fotirth clause of his will the testator states that: “ It is my desire that a prudent economy be observed in all matters relating to the institution. The land is to be bought and the building erected at moderate prices. The building shall be adequate to the end to which the establishment is devoted, and it shall be constituted to receive from fifty to one hundred, female scholars with accommodations for the female teachers and the employees that may be required.”
    By subdivision (B) of the fourth clause o°f his will it is provided : “ That the board of executors and philanthropic managers and the other members shall make rules for the establishment in the best manner without forgetting the following conditions.” 'Then follow various conditions which the testator desires the board to observe.
    By subdivision (E) of the fourth clause of the will it is provided that the board of philanthropic managers shall be •composed of seven prominent citizens of New York, and shall be formed from the list of names .therein particularly set forth.
    This subdivision of "the will, goes on to provide that: “ Having been summoned by the surrogate of the city of New York, the appointment of said seven philanthropic managers shall be proceeded with, beginning with the first on the list, that is to say, from top to bottom; it being my will that at no time shall any person having business or other connection with each other, or related to each other to the third degree, act at the same time. If any person or persons of the first seven named shall not accept the trust, the board shall elect another on others from those following in the order in the list. The number of the seven philanthropic managers having been completed,' the other gentlemen in said list are hereby appointed substitutes ; which substitutes shall not number more than fourteen, nor less. than six. In case of the unforeseen or occasional ab-sence of any manager from a meeting, the substitute next in order shall be summoned; but five of the seven managers may decide on all matters. At any time when they cannot come together, or when there are not at least six registered substitutes,, the substitutes then existing shall be summoned, so that they jointly with the aforesaid managers may appoint the respective-substitutes; such" appointment of substitutes or managers may be made from persons outside of the board, provided they be honorable and philanthropic. It is proper here° to state that the diplomatic officer accredited by Peru to the United States-of North America, under whatever title or denomination, or the Peruvian consul genera] in New York, if there be one, or any other functionary who, by any title, financial or otherwise, may represent the Peruvian Nation in the United States of North America, shall be consulted .whenever the board is called upon to-deliberate with regard to the Peruvian scholars admitted or applying for admission to the institution.”
    By the fifth clause of the will it is provided that: “For the-purpose of establishing and carrying on the institution to which the previous clause refers, and the management of which is to be in- charge of the board already mentioned, I devote a principal of five hundred thousand dollars in shares of that nominal value out of the securities or shares which make up my fortune ; the same to be delivered to said board by my testamentary executors and heirs to the satisfaction of the last named, that is to say, the-persons ‘whom I name as such in the last clause of this will: upon such delivery all action of the board at New "York in relation to-my will shall cease.”-
    By subdivision A-of the fifth clause of the will it is provided :.
    “ That the board shall do all in its power to preserve the said capital of five hundred thousand dollars, limiting itself to the collection of the dividends or interest of the same, to be applied to the objects for which they are designated. And in order that said income shall not be insufficient, the founding of the institution shall not talce place until two years after the hoard has received said capital, so that the purchase of the land and the erection of buildings-on the same, or the purchase of the building, shall not be cárried out until it can be done with the' interest accumulated during-said period of two years. To be more clear, the income accumulated in said period shall serve for the purchase of the locality and the school plant of the institution, without applying the principal for that purpose.”
    By the sixth clause of the will, the testator prays and charges “The honorable municipality» of New York to watch over and care for the exact fulfillment of the foregoing dispositions as far •as regards the erection of the building and all relating to the institution ; in order that for no reason shall such institution fail to-be organized and carried on foivthe benefit of poor female children, in order that the municipality may be able to exercise the-vigilance which I recommend to its" philanthropy and patriotism; the testamentary executors and heirs, to whom I entrust the execution of all of this will, shall take care to remit to the said municipality of New York a copy of the clauses of this my°said Will relating to the institution, ‘ The Sevilla Home for Children.’ ”
    The thirty-sixth clause of the will, referred to in the fourth clause, appoints the executors of the will, who, by the provisions-of the fourth clause, are to constitute a part of the board of executors and philanthropic managers.
    By additional clauses to the will, Nos. 1, 2 and 3, the testator directed that the Sociedad de Beneficencia of the city of Lima, a, benevolent and eleemosynary corporation of said city, should receive from his executors and appointed heirs various sufns of money set apart for legacies of public interest under certain, clauses of his will, including the legacy for the establishment of the Sevilla Home for Children, provided for in the fourth clause-of his will; in order that the Sociedad de Beneficencia shall be the only agent with which my executors shall have to treat for the entire delivery of all those legacies of public interest. The-testator by said additional clauses further directed that the said Sociedad de Beneficencia 'should make deliveries of .the various legacies of public interest to the respective institutions in the will named, or to the persons designated by the testator to represent-Such institutions; and further directed that if any of the institutions should decline to accept the legacies for them, that the same should pass to the Sociedad de Beneficencia, to be employed as it may deem proper for the good of the poor, or if the sums provided by the will for specific objects should, in the judgment of the persons charged with the execution of such specific object, be inadequate to carry out the same, then that the sum so allotted should also pass to the said Sociedad de Beneficencia.
    The complaint alleges that the plaintiffs have assets in the city of New York consisting of certain certificates of capital stock of railroad and other corporations of" the nominal par value of five hundred thousand' dollars, which stocks are worth in the market-the sum of three hundred and seventy-five thousand dollars, more or less—the saíne corresponding to the average market value of the securities left by the testator in the. state of New York; and that the plaintiffs have retained said capital within the jurisdiction of this court, and desire to pay and transfer the same pursuant to-the directions of this court to the person or persons who may be entitled thereto under the will of the deceased. It is alleged also-that the plaintiffs have been advised that serious doubts exist as-to who are entitled to claim the said fund, and that the plaintiffs have also been advised that it is doubtful whether the board of philanthropic managers provided by said will can ever be legally constituted, or whether any corporation or association of any kind, or person or persons, can be appointed to whom the plaintiffs can properly and safely pay and deliver the -fund by them mentioned. It is also alleged that the plaintiffs have been advised .that the intention of the testator as set forth in said will is uncertain and vague, and that it is doubtful ••whether the purpose of the testator- has been stated in such form that it is capable of being carried out under and in ¿accordance with the laws of the state of New York; and plaintiffs «desire to be advised and directed by this court what they shall do in the premises. Jose Sevilla died on the 9th of December, 1886, ■at the city of Lima, Peru. His will was executed according to the laws of the Republic of Peru, and was duly recognized and established as such in the courts of Peru. Subsequently the surrogate of the county of New York, upon the 'application of the .plaintiffs issued, „to them letters testamentary upon the estate as ancillary executors, and the plaintiffs thereupon entered upon the ■«dischaige of their duties. The seven persons designated by the «testator to secure the establishment of the home obtained an act «of the legislature, creating them and such persons as they should associate with themselves in accordance with the provisions of the Taw a body corporate and politic under the name and title of The Sevilla Home for Children. Laws of 1889, chap. 17, p. 14.
    As is known to counsel, the disposition of this case has been ¿delayed because some of the questions arising under the will are similar to those which were discussed in the case of -Tilden v.» Green and others, and I have waited until the final decision -of that case by the court of appeals before announcing mine , herein. . °
    It is contended that the bequest to the Sevilla Home for Children is invalid, because at the time of the death of the testator the persons upon whom the trust was to devolve were unascertained. This objection, 1 think, is well founded. The seven philanthropic managers referred to in subdivision E. of the fourth clause of the •will could only be determined after the persons named in that subdivision had been summoned by the surrogate and the appointment proceeded with as therein provided. There was, therefore, ¿at the death of the testator, no one qualified to take the bequest. Owens v. The Missionary Society of the M. E. Church, 14 N. Y., 880; Levy v. Levy, 33 id., 97; Prichard v. Thompson, 95 id., 76; Read v. Williams, 125 id., 560; 35 St. Rep., 909.
    The subsequent act of incorporation does not' cure this fatal ¿defect. White v. Howard, 46 N. Y., 144; Tilden v. Green, 40 St. Rep., 512.
    This objection would alone be fatal to the will; but there are ■«others which are equally°so. The trust created by the will is, obnoxious to the statutes of this state against perpetuities ; inasmuch as it is not limited upon two lives in being, nor made directly to an inporporated society. 2 R. S., 6th ed., 1167.
    By subdivision A of the fifth clause of the will, it is provided: ■^‘The board shall do all in its power to preserve the said capital of .five hundred thousand dollars, limiting itself to the collection of the «dividends or interest of the same, to be applied to the objects for which they are designated. And in order that said income shall not be insufficient, the founding of the institution shall not take place until two years ‘after the board has received said capital, so-that the purchase of the land and the erection of buildings on the-same, or the purchase of the building shall not be carried out until it can be done with the interest accumulated during said period of two years.” It is apparent from this provision that the-testator did not intend that the founding of the institution should take place until two years after the receipt of the $500,000, and. for that period of time the absolute ownership of the fund is suspended. This is in conflict with the Revised Statutes, and renders the bequest void. Schettler v. Smith, 41 N. Y., 328 ; Hone's Ex'rs v. Van Schaick, 20 Wend., 564; Converse v. Kellogg, 7 Barb., 590.
    It is, however, urged by the counsel for the philanthropic trustees of the Sevilla Home that as the testator was a resident of: Peru, and as the evidence in the case shows that the will was valid according to the laws of that country, that this court is bound to construe the will according to the.Peruvian la¡w. All the authorities hold that the last domicil of the testator is to be resorted to as giving the law by which the interpretation of a will, so far as concerns personalty, is to be determined See Wharton on the Conflict of Laws, § 592, p. 577.
    To this rule, however, there is an exception, which is thus stated by Dr. Wharton: “ From the rule that as to personalty the law of the testator’s last domicile binds, those cases are to be excepted where aid is asked from a court to enforce a provision which by the law binding on such court is forbidden by rules based on distinctive public policy. Thus provisions for disinheritance will be? restricted in those countries where only a restricted disinheritance-is permitted, and the saíne limitation applies to provisions creating trusts and entails, and endowing ecclesiastical corporations in mortmain. A court in giving effect to such provisions will be governed by the law of the land Thus laws prohibiting perpetual entail, and. perpetual accumulations, remainders of personalty and substitutions will be enforced by the state in which they exist, although no such laws obtain in the place of the testator’s domicil.”
    As already stated, the provisions of the will in question, by the laws of this state, would be invalid because at the death of the testator there" was no one qualified to take the bequest, and also-because those provisions are obnoxious to the statutes of this state as not limited upon two lives in being, nor made to an incorporated society. This case, therefore, falls within the exception stated by the learned author above referred to, inasmuch as the rules of law forbidding in this state such a bequest as the testator has at* tempted to make are based on distinctive public policy.
    Having arrived at the conclusion that the provisions of the will in relation to the Sevilla Home for Children are void under the laws of this state, even although valid under the laws of Pern, I am of the opinion that this court should not aid in enforcing the trust It appears, however, that the fund is in this state, and the next question which arises is, whether the court should make any determination as to its disposition. The executors and all the parties have submitted themselves to the jurisdiction of this court, and have asked for its instruction and judgment, and under those sircumstances I think it is within the power and duty of this spurt to direct the executors as to the disposition to be made of ■the fund.
    In the case of Despard v. Churchill, 53 N. Y., 192, the question •was discussed as to whether the courts of this state will decree distribution of the assets collected in it, under auxiliary letters tes tain entary _ granted by them, or remit the disposition thereof to -the courts of the testator’s domicil; and it was held that the question was not one of jurisdiction, but of. judicial discretion under the circumstances of the particular case. It was further •held that while it is no part of the policy of this state to interdict •perpetuities or accumulations in any other state, and while courts will not declare void a bequest valid by the laws of the state gov•erning the disposition of the property, they will not give direct aid to sustain or enforce an administration here of a deeise or bequest made by a citizen of another state which is in contravention of our statute in relation to such perpetuities and accumulations.

    In that case -a resident of California died seized of certain leasehold estates for years in lands situated in this state, leaving a last will and testament void in its „ material provisions under the ■statute of this state,„but valid by the laws of California. A portion of the executors named in the will were residents of this ■state, and were charged with the care and administration of the. ■property in this state. It was held that the leasehold estates were to be treated as personalty and to be governed by the law of the testator’s domicil, but that the courts of this state would not aid in carrying out here bequests contrary to its statute law ; and it was ■ordered that the assets here, after paying therefrom certain legacies valid under the laws of this state and directed to be paid by the executors here, be remitted to California, to be there distributed.

    The principles enunciated in that case seem to me to be controlling here.
    The case of Cross v. The United States Trust Company, recently •decided by the general term of this court, is not in conflict with these views. 16 N. Y. Supp., 137; 40 St. Rep., 744. In that •case a resident of Rhode Island left a will by which certain property was bequeathed in trust; such trust being void under the law's of New York as contravening the statute of perpetuities. The estate was wound up and the executors duly discharged by the courts in Rhode Island, the trust fund having been delivered to the United States Trust Company in this state. Several years •afterwards an action was brought by the executors and certain individual plaintiffs who were children of the testatrix ; the children ■claiming that the trust' was void, and that they were entitled to take under the residuary clause of the will. The judgment of the court below was affirmed by the general term, upon the. distinct ground that it could not by an affirmative decree nullify^ a trust Request which is valid by the law of the testatrix’ domicil. The court distinguished that case from Despard v. Churchill, stating ■“ that if the subject of the present trust had never been reduced to possession by the executors or administered, the disposition made in Despard v. Churchill might have served as a guide. The assets which in that case were remitted to the California executor were so remitted expressly for administration.” In the case at bar, although the assets have been reduced to possession, they have not been administered, and if the views above expressed are correct they cannot without contravening-the laws of this stale be administered here. The ancillary executors representing the executors resident in Peru having applied to the court for its aid and the court having decided that the trust cannot be executed in this state, it seems to me, instead of determining that the Sociedad de Beneficencia as the ultimate residuary legatee under the will is entitled to the fund, the decree of this court should direct the ancillary executors to remit the fund to Peru, in order that the courts of that republic may determine in what manner and to whom it shall be distributed.

      C. C. Marshall ( William G. Choate, of counsel), for app’lts Osborn et al., and The Sevilla Home; David Milliken, Jr., for Sociedad de Beneficencia ; Frederic R. Coudert, for resp’ts.
   O'Brien, J.

Jose Sevilla, a resident of Peru, died at Lima, in that country, in December, 1886, leaving a will, whereby, among -other things, he gave $500,000, or securities of that value at par, to found a home in the city of New York for orphan girls, to be known as the Sevilla Home for Children. The testator left an estate consisting largely of personal property, much of which, at the time of his death, was in the city of New York. The will of the testator was "duly proved at Lima, Peru, and was subsequently recorded in the office of the surrogate of New York county under the order of said surrogate, and under the same order the executors were appointed ancillary executors of said will. They retained out of the personal estate, collected by them in New York, securities sufficient to cover the bequest in favor of the home, and then brought this action for a construction of the will and for the decree of the court as to who was entitled to said fund or securities, and to whom they should make payment of the same.

The learned judge below correctly held that the provisions of the will relating to the establishment of the Sevilla Home contravene our statute against perpetuities, and was invalid for the further reason that, at the time of the death of the testator, the persons upon whom the trust was to devolve were ■unascertained. He also correctly held that the provisions of the will relating to the Home were valid under the laws of Peru. The question, therefore, presented was as to whether or not the courts of this state would determine the title to the fund primarily intended by the testator to be devoted to the establishment of the Home. His conclusion was that this court should not aid in enforcing the trust, but decreed that the ancillary executors remit the fund to Peru, in order that the courts of that republic may 'determine in what manner and to whom it shall be distributed.

In this determination he was controlled by the case of Despard v. Churchill, 53 N. Y., 198, to which he referred and from which he quoted, which to him, and to us, seems to be a binding and controlling authority. A reference to the facts in that case will show how nearly it approaches to the question here presented. There, a resident of California died seized of certain leasehold estates for years in lands situate in this state, and leaving a last will and testament, void in its material provisions under the statutes of this state, but valid by the laws of California. A portion of the executors named in the will were residents of this state, and these were charged with the care and administration of the property in this state.

The learned judge writing the opinion in that case said: “The testator had his domicil in the state of California. He made his will there. Ro question is made but that it is, in all of its provisons, valid by the law of that state. It, however, by its terms, disposes of certain property in this state, and by provisions which are invalid here, inasmuch as they run counter to our statute law. 1 R. S., 723, § 15; id., 773, § 1. The statute law here referred to embodies the policy of this state in relation to perpetuites and accumulations. As this sovereignty will not uphold a devise or a bequest by one of its citizens in contravention of that policy, it will not give its direct aid to sustain, enforce or administer here such a devise or bequest made by a citizen of another sovereignty. See Chamberlain v. Chamberlain, 43 N. Y., 424. Yet it is no part of the policy of this state to interdict perpetuities or accumulations in another state, id., 434. * * *

“Personal property is subject to the law which governs the person of its owner as to its transmission by last will and testament; and this principle, though arising in the exercise of international comity, has become obligatory as a rule of decision by the courts. Parsons v. Lyman, 20 N. Y., 103. And, as a general rule, the distribution of personal property, wherever made, must be according to the law of the place of the testator’s domicil. Harvey v. Richards, 1 Mason, 381-407.

“ The cases are not uncommon in which a testamentary disposition made in a foreign jurisdiction has (Controlled the transmis. sion of personal property in this. Usually the administration of the estate has been committed by the will to citizens of that jurisdiction. They have occupied the possession and control of the property through voluntary payment or surrender, or, by making probate of the will here, have obtained auxiliary letters testamentary, and under these have enforced collection or surrender. In such case, those charged with the administration are liable to account here for the assets collected by the authority granted here. It seems to have been generally held that where there are domestic creditors of the estate, payment of the debts may be decreed out of the assets. Dawes v. Boylston, 9 Mass., 337; Richards v. Dutch, 8 id., 506; Harvey v. Richards, supra. For other purposes, such as the payment of legacies and the distribution of the surplus to the next of kin, the courts in Massachusetts have held that the assets must be remitted to the place of the domicil. See cases above cited. But this has been questioned, with great force and reason. See Harvey v. Richards, supra. And the better rule is, that whether the .courts of one state are to decree distribution of the assets collected in it under auxiliary letters granted by them, or to remit the disposition thereof to the courts of the testator’s domicil, is not a question of jurisdiction, but of judicial discretion under the circumstances of the particular case. Harvey v. Richards, supra; Parsons v. Lyman, supra. Nor does the fact that, by the will in this case, the testator appointed citizens of this state as executors, as well as citizens of the state of his domicil, and charged those here with the care and administration of the property here, alter the rule. In Harvey v. Richards, above cited, the defendant was appointed, in this country, administrator with the will annexed of a testator domiciled in the Bast Indies, where the executors resided.

“ The question then arises, under the particular circumstances of this case, whether the assets in this state should not be remitted to the executors in the state of California to be administered, as they may be, in accordance with the directions of the will, under the laws of that state. As has been stated, the courts of this state may not directly aid in carrying out here a bequest which is in violation of its statute law and contrary to a policy of which it is tenacious. And yet they may not hold the bequest void, when it is valid by the laws of the state by which the disposition of the property is to be governed. The one would be to transgress the written law of this state; the other would be to disregard an unwritten rule of law, well settled and of extensive and frequent application.”

It being, therefore, not a question of jurisdiction, but of judicial discretion,” as to whether, under the circumstances of a particular case, the courts of one state will decree distribution of the assets or remit the disposition thereof to the court of the testator’s domicil, it remains to be determined whether such discretion was wisely exercised in the present case.

We think, taking the various provisions of the will, that it was within the contemplation of the testator that his property, outside of Peru, should be remitted to that place for the purpose of administration. Thus, it was provided that the Sociedad de Beneficencia de Lima should receive all the legacies of public interest, including the legacy for the establishment of the Sevilla Home, in order that the executors, in making payment of such public legacies, should not be called to deal with any other person or corporation than the said Sociedad. This latter society, however, is located in Peru; and whether we regard this provision as being inserted merely for the convenience of Peruvian executors, or as a direction as to the course to be pursued only in event of all the assets being found in Peru at the time of the testator’s death, it shows that he himself contemplated the scheme or plan of having the property administered in Peru through this association. In another part provision is made for the payment of the expenses and a commission to such person as it should be necessary to send to the United States to make delivery of the gift to the Sevilla Home. This provision, to say the least, furnishes an argument in support of the view that it was the intention of the testator that his property should be administered upon and the validity of the provisions of the will determined by the law and courts of Peru.

The reluctance, moreover, of the courts to administer upon the assets of a testator who, at his death, was a resident of a foreign domicil, particularly in a case where the carrying out of the intention of the testator would be to administer' a trust invalid by the laws of our state, furnishes another reason why, in cases of doubt, the property should be transmitted to the foreign state. Ordinarily it is no part of the duty of the courts of this state to construe wills of foreign states except as to provisions to be carried out in this state.' And it will avoid confusion and conflict of jurisdiction under such circumstances to remit the property to the jurisdiction of the courts located in the domicile of the testator. This furnishes a reason why this court should not, as urged upon their attention by one of the appellants, proceed to determine the title to the fund intended for the Home, and is a sufficient answer to the suggestion, even though we assumed another appellant’s position to be right, that the effect of so transmitting the fund will be to have the same sent back again and delivered to the corporation which it is claimed now has the legal right to receive the fund under the laws of this state.

It is urged that the case of Cross v. U. S. Trust Co., 181 N. Y., 880; 43 St. Rep., 254, favors the contrary view, and appelants claim that that went to the extent of holding that, as to foreign wills creating trusts of personalty, there is no public policy of this state which -forbids the administration of such properly here, though the trusts would be invalid by statute in a New York will as violating the rule against perpetuities. In that case, however, Despartí v. Churchill, supra, was analyzed and referred to with approval. Apart from this, the distinction between Cross v. U. S. Trust Co. and this case is a marked one. In that case it was sought to have a trust relating to personal property in this state, which was valid by the laws of the testator’s domicil, declared void because a like trust, if created here by a citizen of our own state, would have been invalid This action seeks tq have our courts decree that a trust, because valid under the laws bf the testator’s domicil, is equally valid here and should be carried out. though contravening our statutes.

The reason for remitting the subject to the testator’s domicil is thus stated by the learned judge writing the opinion in Cross v. U. S. Trust Co.: “ This course was adopted, not on the ground of policy, but because it was always the law in such cases to re init personal estate to the domicil of the owner in the exercise of a sound judicial discretion.”

We do not think that more need be added to what has been said in the opinion of the learned judge at special term ; nor have we attempted to do more than to examine the record, and, in effect, adopt the reasons given by him to justify his conclusion, and. which we think should result in the affirmance of his decree by this court

Judgment affirmed accordingly, with costs.

Van Brunt, P. J., and Patterson, J., concur.


author: Russell, J.

text:
    In the Matter of the Registration of Lyman C. Ward et al.

      (Supreme Court, Special Term, St. Lawrence County,

      Filed November, 1892.)

    1. Elections—Registration—Power of court to correct.
    The power of a county judge or justice of the supreme court under Laws 1892, chap. 680, § 37, to correct alleged errors in the matter of registration, is limited to cases where the board of inspectors refuse to strike from the list the name of a person not qualified to vote, or neglect or refuse to place thereon the name of a person entitled to register, and does not authorize such officer to strike from the list on a summary application the names of persons who have complied with all the statutory requirements to entitle them to registration.
    2. Same—Students.
    Students at a college or seminary, who have left and abandoned their former residences, and who have no other residence for the time than the college or seminary town, are not precluded by art. 3, § 3 of the constitution from registering and voting in such town.
    Application for continuance of stay of proceedings pending appeal from order striking names from the registry of voters.

      Everett Caldwell, for voters; Ledyard P. Hale, for board of registry ; Nelson L. Robinson, applicant in person.
   Russell, J.

On the last registration day the above named persons appeared personally for registry in the first election district of the town of Canton, and objection was made to their registry, by Nelson L. Robinson, a voter of said election district. The applicants took the preliminary oath and answered questions touching their residence, that being the only objection made against their qualification as voters. It was conceded that they were all voters somewhere, but the objection was to their being registered in that particular election district. The applicants insisted on being registered at Canton as they had lost their previous residences before coming to Canton, having abandoned their former homes, and if they are not entitled to vote in Canton, they occupy the singular position of qualified voters whose right of suffrage is indefinitely suspended.

They took the general oath and were registered. The objector, Mr. Robinson, obtained an order to show cause why their names should not be stricken from the registry from a justice of the supreme court in a distant part of the state on twenty-four hours notice, thus giving them a very short time in which to employ counsel, draft papers in opposition, secure witnesses from their former homes as to their departure from those places with the intent to leave permanently, and appear by counsel at the place of hearing in time to prevent a default

Hasty preparation was made to oppose the motion and counsel appeared in opposition, contesting the allegation of non-residence made by Robinson, upon the merits, but the • opposition was unavailing, as the justice before whom the motion was held granted the order at the conclusion of the hearing, no opinion being presented here as having been given by the justice deciding the motion.

An application was at once made to the special term of this court to grant a stay of proceedings, in order that the persons claiming the right to vote might enjoy their privilege of appeal, which would be worthless without, a stay. Such a stay was granted and an order to show cause made why the stay should not be continued, returnable on this 7th of November at two ■o’clock in the afternoon. This application for a continuance of the stay is the occasion for the consideration of the legal questions embraced in this opinion.

The remedy Heretofore for illegal registry, or refusal to register by inspectors, has been an application for mandamus, on which application the rights of the parties might be fairly and judicially determined. If upon the facts presented the applicant was or was not a voter, the question could be easily determined as a question of law and the writ of mandamus awarded according to the conclusion. If, however, a serious question of fact arose upon the hearing, the courts would never assume to pass summarily upon the sacred right of suffrage, but compelled the issue to be tried by common law proceedings before a jury, in which way alone the franchise, more valuable to the citizen than a property right, could be properly awarded or denied.

But it is claimed that the new election law, chapter 680, Laws of 1892, gives by the 87th section a more summary and arbitrary method of awarding or denying the elective franchise to a citizen. That section in its literal reading provides that application may be made to a county judge of the county, a justice of the supreme court of the judicial district, or a justice of the supreme court residing in a county adjoining the judicial district, to have a name erased from or added to the registry, and the justice or judge may upon sufficient evidence, and a notice of not less than twenty-four hours to the board of inspectors and the persons interested, strike from or add to the registry as the case might be.

If this section may be properly construed to give any single judge the right to prevent any single person, or any number of persons, from voting by striking their names from the registry, as under the existing law all names of voters must be registered-ten days prior to election, without the right of a common law trial of the issue of qualification or residence, without the right of review before the court, either on motion to modify or vacate or by appeal, then the provision is of a sweeping and revolutionary character, and dangerous in the extreme. Under such power the presidential election of 1884 could have been determined otherwise than as it was determined,- by any one judge exercising the power of striking 600 names from the registry list in the state of New York. Under such an exercise of power the judges of the state, acting as judicial officers, and not as courts, will hold the elections of the state at their mercy. Such a power so construed would be unconstitutional as to its exercise, would deny the right of suffrage granted by the constitution of the state, and would leave the election of those electors who choose the president and vice-president of the United States, and of members of the house of representatives of the United States, entirely within the power of state judicial officers.

I cannot believe that the legislature of this state intended to confer any such arbitrary power, which might be exercised up to within twenty-four hours of election. 1 think the plain meaning of this section, in view of the sacred rights with which it undertakes to deal, the errors which it undertakes to point out the way to correct, and the necessary consequence of the exercise of the power sought to be given, is intended for far more limited exer‘eise of judicial discretion and privilege than the one so broadly claimed.

If the inspectors register persons refusing to take the oath required by law, or refusing to present themselves in person on the days required for personal registration, or who fail to comply with other steps which the law requires and which the inspectors as ministerial officers plainly see have not been taken; or if they refuse to register persons complying with the laws, or in any way undertake to exercise a judicial power which is not conferred upon inspectors of election; then the privilege conferred upon judicial officers to correct these errors by a special proceeding of a summary character may be wisely conferred.

For the power given to the judicial officers to correct the registration is in the nature of a revision of the ministerial action of •the inspectors, and not of any judicial action. The inspectors of elections have no judicial power to determine contested questions of fact as to residence or any other matter which involves judicial discretion. People ex rel Stapleton v. Bell, 119 N. Y., 175 ; 28 St. Rep., 960.

A judicial officer, who has power to revise a ministerial action of a board of inspectors, does not by the statute in question gain a power to do a thing which the board of inspectors might not do, for their power is statutory and is limited to the correction of an error which would not have taken place but for the invalid action of the board of inspectors. The statute did not seek to give other power, but expressly provides that the power of the judicial officer may be exercised only if the board refuse to strike from the list the name of the person not so qualified to vote, or neglect or refuse to place upon the list the name of a person entitled to register. The logical conclusion therefore inevitably follows that a judge may not by such a statutory power strike a name from the list which the inspectors of election could not strike from the registry.

In the case last cited the court of appeals unanimously determine not only that inspectors of election are ministerial officers simply and purely, but that a board of inspectors have no discretional power to reject the vote of a person who, when challenged, takes the preliminary and general oaths, no matter what the private opinion of the inspectors may be as to his being really a voter Upon the facts stated by him in answer to the various questions. And the opinion of the court, which seems to have been received without dissent, states that an elector’s right cannot be annulled without a trial, and a trial certainly means a trial in a common law proceeding' and not a summary hearing upon affidavits.

This view is confirmed by the act of 1892, which seems to have followed and approved the decision of the court of appeals. By § 35 the applicant for registry may be required to take the oath which is to be administered to challenged persons offering to vote at a general election, and the only power of the inspectors to deny the right of registry is expressly laid down to be “ if he shall refuse to make either such oath or statement his name shall not be placed on the said list.”

By § 3 of the act, the power of the board of inspectors to reject where the preliminary and general oaths are required, is limited to the express provision “ if any person shall refuse to take either oath so tendered, his vote shall be rejected” •

It will not be claimed, probably, that inspectors may reject on the application for registry a person whose vote they would be required to take at the election if registered. The registry law provides for ascertaining the names of persons entitled to vote at the election, and is a proceeding previously had to determine the status of an applicant on election day. The whole object of the provision to secure the right of a person to vote who takes the preliminary and general oath, and to deprive the inspectors of the power to exclude his vote, would be frustrated if the inspectors had a power, judicial in its character, at the registry, which they would not have at the election, for under it, as all applicants are, required to register, the inspectors could exclude whom they chose from voting by denying the right of registry.

The object of giving to the person taking the preliminary and general oaths the right to vote, is plain. Judicial power is too serious to be intrusted to inspectors of election, and mistakes in the exercise of the right of voting may be corrected by the courts, where the vote is taken, but can never be when it is refused. If the four persons applying at Canton to be registered as voters, or any number of persons there or-elsewhere, secure illegal registration and vote, and such illegal votes determine the election of any person to office, the error can be promptly corrected by proper proceedings diminishing the number of votes counted for the person for whom they voted in the ordinary and proper judicial course. But if the persons are erroneously denied the right of registration or of voting, the injury is irreparable.

I, therefore, conclude that the power of the judge to correct the alleged error in the matter of registration was limited, and that he had not the right to deprive the four persons named of the elective franchise by a summary proceeding in a case where they had complied with all the statutory requirements to entitle them to registration, so that, independently of the merits of the question of their residences, no power under the statute in question was given to any judicial officer to strike their names from the list.

Secondly—I am also of the opinion that the decision arrived at was incorrect upon the merits of the question as to whether the. persons named were qualified to vote in the first election district of the town of Canton. As before stated, it seems to be conceded that these persons are qualified voters somewhere. They state that they had abandoned their previous homes, and there does not appear tó be any serious conflict of evidence upon this question. Whatever might be their purpose in leaving their former homes, when they had done so with the intention of never returning, their residences there ended. Their right to vote in the town of Canton is challenged under the provision of the constitution of the state of New York which provides: “ for the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence * * * while a student at any seminary of learning.” Sec. 3, art. 3,' New York Constitution.

One of the persons named is a married man, keeping house in Canton; one of them has an insurance business aside from his studying at-the St. Lawrence University, and one of them occupies such times as he can in the avocation of a printer. A strict reading of the constitutional provision would allow these young men, who each came to Canton at a time when the sessions of the collegiate and theological departments had not begun, to claim it as a beneficial provision instead of a prohibition. And if it be true that coming to Canton in the summer, when the schools were not in session, their residence at Canton began while they were not actually in or present at a seminary of learning, then the provision also gives to them the right to claim that their presence at that seminary of learning afterwards does not interrupt the resident period. No person shall be deemed to have lost a residence while at a seminary of learning.

The applicant, Robinson, gives a still more strict construction to the constitutional provision. He argues as though the provivision read: “ Every person who is a student at a seminary of learning is forbidden to vote at the place where the seminary of learning is located.”

The counsel for the four persons named give a broader construction. They say that the design of the section was to prevent a mass of students from claiming a residence for the purpose of voting and thus be enabled to carry local elections by their numbers in some localities, and that there was no design to inflict a punishment upon a person who chose to make any place his home, if at the same time he desired to avail himself of the unusual or special privileges of learning by the presence of a seminary of learning in the same town. If young men come from their father’s or mother’s home, or from the homes of their relatives or friends, and so have other places to which they return in vacation or at the end of the collegiate term, they do not gain a residence. This class embraces the large majority of students and this fact is illustrated by the numbers applying in Canton, out of the many attending St. Lawrence University who would otherwise be qualified to vote. Only five make application for registry. They are special cases. These gentlemen have no other homes. It is not essential to their right to vote that at the time they came to Canton they had determined to make that place their homes for the remainder of their lives. It is sufficient if, leaving and abandoning their former residence, they come to Canton to make that town their residence, leaving to the future to determine whether they shall, as many others have done similarly situated, enter the profession of the law or ministry or medicine, or some other business avocation in that town at the end of their college careers.

The constitutions of 1777 and 1821 contained no such inhibition. The constitution of 1846 was the first to embrace it within its provisions. A practical construction was given to that provision of the constitution of 1846, during the twenty-one years which elapsed before another constitutional convention was held in the state of New York. At the constitutional convention of 1867 the meaning of this phrase was carefully considered and great light is thrown upon its intent by non-partisan and well measured utterances of gentlemen of different political parties in that convention. The committee on suffrage eliminated the clause in question in its report of the suffrage article, Mr. Chesebro, democratic delegate at large, moved its insertion when the report of' the committee came into the convention. Judge Andrews, now of the court of appeals and the present nominee for chief judge, in the remarks he made stated: “If a student had no other residence than where he is attending college, and if the intention was with him to remain in that place, although he might be a student there, he would have a right, notwithstanding the insertion of this clause, to vote there.”

“ Mr. Merrill—Does the gentleman understand that by the provision of the present constitution a man may gain a residence by being a student in college ?

“ Mr. Andrews—Oh, unquestionably.” Debates of Constitutional Convention, page 569.

The matter came up at a later date on a motion to strike out the clause from the constitution. Mr. Chesebro, who had it inserted, spoke as follows: “ The gentleman is mistaken. A student can lose his residence while a student in a seminary of learning if he desires to and can acquire a residence at the place where he is studying.”

The late Justice Enmsey, of the supreme court, also said: “He may, if he actually has the intention to change his residence, become a resident of the place where he is studying as fully as if he went to any other place, and in that case he acquires the right to vote.”

The convention accepted the views of these gentlemen and retained that provision in the constitution with the construction stated by them. It would seem that this is the sensible and proper way to regard this constitutional provision, and any other interpretation would give to a person who has no desire to learn how to read and write, and who moves from place to place, the right to acquire a residence for voting, and debar the student, ambitious to perfect his knowledge upon all subjects within the mental grasp, from the right to vote on questions of political importance which he appreciates keenly, and which he is training his mind to understand more fully.

I have given the subjects embraced in this opinion careful thought and consideration, and have expressed them at such length, for the reason that I would hesitate naturally to differ with so able and learned a lawyer and judge as the gentleman who decided that these names should be stricken from the registry, unless fully convinced that his conclusion was erroneous.

The power to appeal from the order made by Justice Herrick is undoubted. It is a proceeding before a judge invoking the exercise of judicial power and judgment, and affects the highest form of substantial right. Code Civ. Pro., §§ 3334, 1356.

I am advised that Justice Herrick suggested the propriety of an appeal.

The power of the court to stay proceedings is equally clear. By the filing of the application the applicant commenced a judicial proceeding, the record of, and the proceedings in, which are under the jurisdiction, power and control of the supreme court. It is the first duty of that court upon proper application made to it to see that injustice and the deprivation of legal rights are not consummated under the form of judicial proceedings in that court. The supreme court has general power to stay proceedings where the rights of justice require. Jeffries v. Sheppard, 3 B. & Ald., 696; Mallory v. East River Insurance Company, 7 Hill, 192; President, etc. v. Spencer, 15 How. Pr., 14, General Term, 7th Dist.; Steam Navigation Co. v. Weed, 8 How. Pr., 49, Harris, J.

If power to stay exists, it should certainly be exercised in order that the voters may have the right to present their cases on appeal. The right to appeal or to the stay cannot be prevented bv a failure of the person who applies to have their names stricken from the registry to file his papers or enter an order. Such a limit upon the power to stay would deprive one in many cases of the right of appeal until after the party desiring to appeal had been irreparably injured.

Therefore, in the view taken by myself, the four persons desiring to vote are entitled to a stay of the proceedings to give them the right to obtain a reversal of an order which destroys the right of suffrage to them. I have not considered as affecting the merits of this question the allegations of Bobinson and Atwood as to the pecuniary assistance afforded by the university out of its own funds or as agent for another body. I do not regard those allegations as pertinent or as properly finding any place whatever in the affidavits presented for the purpose of striking their names from the list. They could not be pertinent to the question of their being students at the university, for there was no conflict whatever upon that branch ; they could not be pertinent on the question of their actual residence, for it was irrelevant whether they resided in Canton or not as to the question of their pecuniary aid. The only other purpose of their-insertion into the affidavits which were voluntarily made by Bobinson and Atwood, and which of course become public prOjfkti^MÉfwjj^he persons under the charge of thus requiring pecuniary aid to live and pursue their avocations-I fail to see how they can be characterized in any manner as paupers. They are not kept at any public asylum. One or two of them deny, in explicit terms, that they have applied for any aid. The aid sought is simply in the nature of a loan, and their borrowing money of the university is no more derogatory to their condition or status than if they borrowed of any other person, and the fact of their application for aid by way of a loan is, by the rules of the university, a matter which should not be disclosed, so that in no sense are they public applicants for aid.

The order to stay pending the appeal taken from the order of Justice Herrick, will be continued.