text:
    GEORGE W. PLATT, Jr., Individually and as Assignee, &c., Appellant, v. GILBERT V. HUNTER and WILLIAM H. DOUGLAS, Respondents.
   Judgment affirmed, with costs.

Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    DAVID ILCH, Appellant, v. MARY ANN KARKER, Respondent.
   Appeal dismissed, with $10 costs.

Opinion by

Barnard, P. J.


author: Dykman, J.;

text:
    LOUISA BELTER, Executrix, &c., Appellant, v. JOHN WOOD, JANE WOOD, his wife, and DON A. HULETT, Respondents.
   Order affirmed, with costs and disbursements.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


author: Dykman, J.

text:
    JACOB POLHEMUS, Respondent, v. WILLIAM VOORHIS, Appellant.
   Judgment affirmed, with costs.

Opinion by

Dykman, J.


author: Gilbert, J.

text:
    DAVID S. DUNCOMB and others, Trustees, &c., Plaintiffs, v. THE NEW YORK, HOUSATONIC & NORTHERN RAILROAD COMPANY, Defendants.
   Order of June 12, 1880, modified by striking out the last clause thereof, and as modified affirmed.

Barnard, P. J., not sitting.

Order of July 10, 1880, affirmed; no costs to either party upon either appeal.

Dykman, J., not sitting.

Opinion by

Gilbert, J.


text:
    DANIEL C. OTIS, Appellant, v. ALBERT G. GRAHAM, Respondent.
   Order changing place of trial affirmed, with costs and disbursements.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    WILLIAM DONALDSON, Respondent, v. WILLIAM FAXON and others, Appellants.
   Order referring action reversed, with costs and disbursements.

Opinion by

Barnard, P. J.


author: Gilbert, J.;

text:
    In the Matter of the Application of the PROSPECT PARK & CONEY ISLAND RAILROAD COMPANY, to acquire title to lands, &c.
   Order affirmed, with costs and disbursements.

Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


text:
    WILLIAM P. ROOME and others, Appellants, v. THOMAS M. RILEY, Sheriff, &c., Respondent, Impleaded with HAMILTON FLETCHER.
   Judgment reversed, and new trial granted; costs to abide event.

Opinion by

Barnard, P. J.


text:
    ELLEN L. WALLACE, Plaintiff and Respondent, v. JOHN HANNA and another, as Executors, &c., Defendants. WILHELMINA SCHENCK, Purchaser, Appellant.
   Order affirmed, with $10 costs and disbursements.

Opinion by

Gilbert, J.


text:
    BARCLAY C. MONROE, Respondent, v. WILLIAM H. CONKLIN and others, Commissioners of Highways, &c., Appellants.
   Judgment reversed, and new trial granted at Circuit; costs to abide event. Order of reference vacated.

Opinion by

Barnard, P. J.


text:
    JOHN LIDDLE, Appellant, v. ELIZABETH HASTINGS, as Administratrix of JANE LLOYD, Deceased, Respondent.
   Judgment affirmed, with costs.

Opinion by

Dykman, J.


text:
    EDWARD NEWLIN and MARCUS MEAD, Executors, &c., Appellants, v. CORINNE GAYLOR and others, Respondents.
   Decree of surrogate reversed, and issues to be found and tried by jury at Circuit.

Opinion by

Dykman, J.


text:
    ALEXANDER H. ARNOLD, Appellant, v. THOMAS J. ARNOLD and THOMAS ARNOLD, as Executors, &c. Respondents.
   Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


text:
    THE NEW YORK MUTUAL LIFE INSURANCE COMPANY, Respondent, v. EDMOND MAGUIRE and others, Appellants.
   Order affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.


text:
    EDWARD WALKER and CATHARINE WALKER, Appellants, v. MARY E. WALKER and JOSEPH H. WALKER, Individually and as Executors, &c., and others, Respondents.
   Decree of surrogate affirmed, with costs to respondent out of the estate.

Opinion by

Barnard, P. J.


text:
    WILLIAM HEINZMANN, Appellant, v. FREDERICK SCHWEICKERT and BARBARA FRIES, Respondents.
   Exceptions sustained, and order dismissing complaint reversed and new trial granted; costs to abide event.

Opinion by

Gilbert, J.


author: Barnard, P. J.;

text:
    JAMES KENNEDY, Appellant, v. THOMAS L. HARRIS, Respondent.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.;

Dteman, J., not sitting.


text:
    THOMAS TEN EYCK, Appellant, v. JESSE RYDER, FRANK RYDER and MALCOLM RYDER, Respondents.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    GABRIEL TERRY, Appellant, v. JAMES DUDLEY, Respondent.
   Judgment and order, denying new trial affirmed, with costs.

Opinion by

Dykman, J.


text:
    EMILY M. CHAPMAN, Appellant, v. HENRY C. MORRELL, Respondent.
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    ASA MOREHOUSE, Respondent, v. THE AGRICULTURAL INSURANCE COMPANY, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


text:
    STEPHEN W. McKEEVER, Respondent, v. JOHN WEYER, Appellant.
   Order granting new trial affirmed, with costs.

Opinion by

Gilbert, J.


text:
    LEOPOLD MICHEL, Respondent, v. ALEXANDER LAIRD, Appellant.
   Judgment and order denying new trial, and order setting aside verdict of jury, affirmed with costs.

Opinion by

Barnard, P. J.


text:
    ELEANOR TERRETT, Respondent, v. THE BROOKLYN IMPROVEMENT COMPANY and others, Appellants.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Dykman, J.;

Gilbert, J., dissenting, and opinion by him.


text:
    FRANCIS TIMONEY, Respondent, v. CORNELIUS CALLAHAN, Appellant.
   Judgment affirmed, with costs.

Opinion by

Dykman, J.;

Barnard, P. J., dissenting.


author: Gilbert, J. ;

text:
    JOSEPH W. WOODS, Respondent, v. ZEBINA K. PANGBORN and JOSEPH A. DEAR, Appellants.
   Order affirmed, without costs and disbursements.

Opinion by

Gilbert, J. ;

Barnard, P. J,, not sitting.


text:
    PHILIP H. REID and HERMAN H. SCHWIETERING, Appellants, v. THE LANCASTER FIRE INSURANCE COMPANY, of Lancaster, Pa., Respondent.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    In the Matter of the General Assignment of ANGELINA COOPER to WALTER L. THOMPSON, for the Benefit of Creditors.
   Order affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.


text:
    In the Matter of MAX C. HUBNER.
   Report of referee confirmed, and charges dismissed.

Opinion by

Dykman, J.


text:
    MARGARET LOOFF and others, Respondents, v. CYRUS LAWTON, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Dykman, J.;

Gilbert, J., not sitting.


text:
    In the Matter of the Final Accounting of the Executors of WILLIAM KELLY, Deceased.
   Order affirmed, with costs and disbursements.

Opinion by

Gilbert, J.


text:
    ISAAC BERNHEIMER, Respondent, v. EZRA F. TUTHILL, Appellant, Impleaded, &c.
   Part of judgment appealed from affirmed, witb costs.

Opinion by

Barnard, P. J.;

Gilbert, J., not sitting.


text:
    JOHN S. LEESE, Respondent, v. HENRY HEINS, Appellant.
   Judgment affirmed, witb costs.

Opinion by

Barnard, P. J.


text:
    WILLIAM A. COIT, Appellant, v. EMILY L. GRAY, Respondent.
   Judgment affirmed, witb costs.

Opinion by

Dykman, J.;

Gilbert, J., not sitting.


text:
    JACOB RANDOLPH, Respondent, v. CORNELIUS BERGEN and ANNA MARIA BERGEN, Appellants.
   Judgment affirmed, witb costs.

Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    JAMES R. SMITH, Appellant, v. ANNIE F. TRUSLOW and others, as Executors, &c., Respondents.
   Judgment affirmed, witb costs.

Opinion by

Dykman, J.;

Gilbert, J., not sitting.


text:
    CORNELIA L. BENNETT, Respondent, v. JOHN DALY, Appellant.
   Judgment and order denying new trial affirmed, witb costs.

Opinion by

Gilbert, J.


text:
    JULIA CASSIDY, Respondent, v. JOHN DALY, Appellant.
   Judgment and order denying new trial affirmed, witb costs.

Opinion by

Dykman, J.;

Gilbert, J., dissenting, and opinion by him.


text:
    WILLIAM H. HOWARD, Respondent, v. THE NEW YORK & MANHATTAN BEACH RAILWAY COMPANY, Appellant.
   Judgment affirmed, with costs.

Opinion by

Dykman, J.


text:
    HENRY SUMMERSGILL, Respondent, v. JOHN COUP, THOMAS COUP and JAMES COUP, Appellants.
   Appeal dismissed, with costs.

Opinion by

Gilbert, J.


text:
    OSBORNE HOWES and others, Appellants, v. LOUIS CALLIESS, Respondent.
   Judgment reversed and new'trial granted, costs to abide event.

Opinion by

Barnard, P. J.


text:
    SIDNEY DE KAY, Respondent, v. JOSEPH D. LAWRENCE, Appellant.
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    MICHAEL M. COSTELLO, Respondent, v. WILLIAM B. CURTIS, Appellant.
   Judgment reversed, and new trial granted; costs to abide event.

Opinion by

Dykman, J.


text:
    JOHN E. PEARSALL v. GEORGE PRICE and JOHN E. ARNOLD.
   Order of County Court affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.


text:
    STEPHEN SARLES v. GEORGE FRASCHELL.
   Motion granted, without costs, with leave to appellant to withdraw his appeal if he desires so to do, without costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ELIZA VOGLER v. ANDREW WALSH, Police Justice.
   Order granted.


text:
    CHARLES E. EVANS v. PHILANDER C. LANGEM.
   There is no appeal perfected. Motion denied, without costs.


text:
    BENJAMIN ANDREWS v. TIMOTHY LANG.
   Motion denied, without costs.


author: Davis, P. J.: Barrett, J.:

text:
    CHRISTOPHER R. ROBERT, Executor, &c. of CHRISTOPHER R. ROBERT, Deceased, Respondent, v. JANE R. CORNING and FREDERICK ROBERT, Appellants, and THE TRUSTEES OF ROBERT COLLEGE and others, Respondents.

      Will — when afeéis not vested in the executors T>y implication — validity of a provision as to the deduction of advancements.

    A testator by bis will directed bis executor to sell aud dispose of all the rest, residue and remainder of his estate, real and personal, “ such portion of the said real estate as may be in the State of New York to be sold at public ■sale in the city of New York, notice thereof having first been given of the time and place of sale for three successive weeks in four of the daily newspapers of the said city,” and to dispose of the proceeds as therein directed. He also provided that “in view of the present depreciation in real estate, It is my will that my executors, or such of them as shall qualify, exercise their discretion as to the time to sell the same, not longer than throe years after my decease. . . . All rents, income or profits from my estate, until it is finally distributed, I direct my said executors to divide semi-annually among those to whom the bequests are made, in the proportion the amount of the said bequests bears to the said net income or profit.”

      Held, that the direction to divide the rents, income and profits of the estate did not vest a fee in tlie executors by implication, and that the direction, as to the time and mode of sale created no unlawful suspension of the-power of alienation.
    The testator directed that all moneys or indebtedness which should appear upon any inventory or ledger or books of account, kept by him or under his direction, charged as due to him from auy or either of his children, or from Robert College (a corporation), and as outstanding and unsettled accounts at the time of his decease, should be considered as forming part of his estate, and that a discharge from such indebtedness by his executors should be deemed and taken as an equivalent to an equal amount paid to-such child or college on account of his or its share.

      Held, that this was a lawful and valid direction.
    Appeal from a judgment entered upon the trial of this action, at Special Term. The action was brought to procure a judicial construction of the will of Christopher R. Robert, deceased.
    The will contained, among others, the following provisions :
    “ Fov/rtKl/y. — All the rest, residue and remainder of my estate,, real and personal, whatsoever or wheresoever, as well that I now have as that which I may hereafter acquire and die possessed of or entitled to (except such as is herein otherwise disposed of), I order and direct my executors hereinafter named, or such of them as shall qualify and act, the survivors and survivor of them, to sell and dispose of as follows, namely: such portion of the said real estate as may be in the State of New York to be sold at public sale in the city of New York, notice thereof having first been given of the time and place of sale for three successive weeks in four of the daily newspapers of the said city, giving a full, proper description of the said real estate; and the real estate in other places to be sold at such places and in such manner as my said executors deem best; and after disposing of my said real and personal property, and deducting from the proceeds thereof all necessary expenses and charges, also the thirty thousand dollars bequeathed my wife, as before-mentioned, to divide the remainder into fifty equal parts.....
    “ And upon such division to pay over to ‘ The Trustees of Robert College of Constantinople’ ten of such equal shares, which, with the other bequests herein made to the said trustees of said college, are for the endowment fund of the said college; and the money derived from the said bequests is to be invested in bond and mortgage on improved productive real property in fee simple, in the city of New York or Brooklyn, worth double the amount loaned, at a low valuation, — the income only to be used for the general uses and purposes of the said college.
    “ In case the said college shall be discontinued, then I will that the said bequest, as well as any other bequests herein made to the said college, shall be applied by the said trustees of said college in •such manner as they may deem best for the general purposes of Evangelical and Protestant education among any of the nationalities of the Turkish Empire.....
    “ Sixthl/y. — All moneys or indebtedness, which shall appear upon .any inventory or ledger or books of account, kept by me, or under my direction, charged as dne to me from any or either of my said children, or Robert College of Constantinople, during my life-time, and as an outstanding or unsettled account at the time of my decease, whether with or without security, shall be considered as forming part of my estate mentioned or referred to in the fourth .article of this my will, and a discharge from such indebtedness by my executors shall be deemed and taken as an equivalent to an •equal amount paid such college, child or children, on account of its, his, her, or their share and portion under this my will.

      “ And my executors are hereby directed to deduct the amount of .such indebtedness from such respective share or portion, but no interest is to be charged upon or added to any such indebtedness, except in ease a bond, note, or other obligation securing such indebt•edness be found among my assets, upon which said bond, note or obligation interest has been paid or charged, in which case the said indebtedness shall continue to be charged with interest. . . .

      “ Eighthly. — In view of the present great depression in real estate, it is my will that my executors, or such of them as shall -qualify, exercise their discretion as to the time to sell the same,— not longer than three years after my decease, hereby empowering ■them to give full and ample titles to the purchasers thereof. . .
    “ All rents, income or profits from any estate, until it is finally •distributed, I direct my said executors to divide semi-annually .among those to whom the bequests are made, in the proportion that the amount of the said bequest bears to the said net income or profit.”

      Porter, Lowery, Boren da Stone, for the appellant Coming.

      Gra/y do Dweryport, for the appellant Robert.

      James W. Gerard, for the plaintiff, respondent.

      Thomas G. Shearman, for the Robert College, defendant and respondent.

      J. _ZY. Platt, for the defendants Howell W. Robert and Anna Maria Robert.
   Davis, P. J.:

Some of the questions involved in this case are by no means free-from doubt; but as they will doubtless be finally determined by the court of last resort, we think it sufficient to do little more than state the conclusions at which we have arrived.

The principal question arises upon the provisions of the will disposing of the residuary estate of the testator. It is claimed by the appellants that those provisions not only confer upon the executors a power of sale of the real estate of the testator not otherwise disposed of by his will, but that by necessary implication of law, they devise to the executors the fee of the land until the power shall be executed in the manner prescribed by the will.

The will very clearly creates a power of sale, and, in respect of the real estate in the State of New York, it imposes some restrictions upon the mode of executing the power. It also confers upon the trustees a discretion as to the time of making such sale, which extends through a period of three years after the death of the testator. The restriction as to the mode is found in the clause requiring the lands “to be sold at public sale in the city of New York, notice having first been given of the time and place of sale for three successive weeks, in four of the daily newspapers of the said city.”

The will very clearly gives authority to the executors, in view of the then present depression in real estate, to postpone the sale in their discretion for a period of time not exceeding three years beyond the date of the testator’s death. Such postponement was not imperative, but was left altogether to the discretion of the executors ; and the power of sale, if valid, would be well executed, if a sale had been made immediately after the executors had qualified, upon giving the prescribed notice, or at any other time within, the limit of three years. It is insisted that if the executors took a fee under the will, the conferring of authority to postpone the sale for three years in their discretion, created a state of things by which the power of alienation might be suspended for a period not limited to two lives in being, and that therefore the provisions of the will are void within the rule laid down in Hawley v. James (16 Wend., 134, 171, 172). But, to give weight to this objection, it is necessary first to establish that the executors were by the will vested with the fee of the real estate. This is claimed to be done by the following provision of the will: “ All rents, income or profits from my estate until it is finally distributed I direct my said executors to divide semi-annually among those to whom the bequests are made in the proportion that the amount of such bequest bears to the said net income or profit.”

This provision, although in terms broad enough to embrace all the estate of the testator, was we think, intended to apply only to so much of the estate as is embraced within the provisions of the residuary clause.

It is argued that under the authorities, this direction to distribute rents income and profits includes the power to exercise such rights of dominion over the real estate as necessarily requires that the fee shall be vested in the executors. Wherever that is the case the fee does so vest, as was settled in Brewster v. Striker (2 Comst., 19), Tobias v. Ketchum (32 N. Y., 319), Smith v. Scholtz (68 Id., 41), Garvey v. McDevitt (72 Id., 563), and cases there cited. But in each of these cases the will, in express terms, conferred authority and directed the performance of duties greater than those embraced in the will before us; and they were authorities and duties which could not be effectively exercised without the fee. In this case no authority or direction to rent or lease the property, to insure or keep in repair, or to pay rates and taxes, is expressly given. It is a mere naked direction to divide rents, income or profits; and it was doubtless given to express tbe intention of the testator, that the beneficiaries under the residuary clause should be entitled to the rents, income and profits accruing prior to the time of making the sale. A power given to executors to collect and divide rents of real estate, does not, in our judgment, necessarily imply a devise of the fee to them even where it is ■accompanied with a power of sale. The title of land may be vested by law iu one party, and the authority to collect rents for •some limited period be given to another, without at all affecting the fee, or necessarily preventing the exercise of the power of alienation.

As this provision does not impose upon the executors the duty to rent the lands and to collect rents it may perhaps be susceptible of the construction that they are to distribute only such rents as may, before the sale, happen to come into their hands.

In Post v. Hover (33 N. Y., 593), the court, speaking of that case, say : " Ample powers of management and a right to receive the rents and profits are indeed given; but these duties could be very well executed under a trust power .... To devise an estate by implication, there must be such a strong probability of an intention to give one, that the contrary cannot be supposed.” (Jarman on Wills, 465.) Devises by implication are sustainable only upon the principle of carrying into effect the intention of the testator; and unless it appears, upon an examination of the whole will, that such must have been the intention, there is no devise by implication. (Rathbone v. Dyckman, 3 Paige, 9.)

In that case it was held that the will conferred a trust power of management, the estate vesting, in the meantime in the grandchildren under an express devise to them; and the rule for the construction of such wills is given by Denio, Ch. J., in these words: “ If the language of a deed or will is susceptible of two constructions, and by adopting one of them it would be unlawful, while if the other were followed it would be valid, the latter interpretation should be given to it, ut res magis valeat qua/rn p&reat.”

It was upon the authority of this case that the court below held that the will before us did not devise the fee to the executors, of the lands in this State, embraced in the residuary clause. With much hesitation we have reached the same conclusion.

The sixth provision of the will was, we think, only intended by the testator to determine what kinds of indebtedness of his children, and of the Robert College, should be treated as advances. In •substance, it directs that none which does not appear upon the inventory or ledger, or books of account kept by him, or under his direction, charged as due to him, shall be considered as an indebtedness forming part of his estate. Or, in other words, he meant to say that only advances or actual indebtedness which had taken the forms prescribed, should be treated as advances to be deducted from the share or portion of his several legatees under the will. The indebtedness must be actual, and such as would form by rea•son of its character, a portion of the personal estate which could be collected by the executors ; an ] where it is of that character and appears in the manner prescribed, he directs that it be deducted ■from the share given by the residuary clause as a mode of producing equality among the objects of his bounty. We are unable to ■perceive that any serious question affecting the validity of the will ■can arise upon this provision.

It was held by the court below, that the question whether the bequest to Robert College is valid or not, is fully disposed of by -the decision of the Court of Appeals in the case of Wetmore v. Parker (56 N. Y., 450). Our impression is that this position is sustainable upon that authority.

It was of course error for the court below to find, as a legal conclusion, that the residuary real estate of the testator descended to the “ devisees ” named in his will upon his death, subject to the power’s therein conferred upon his executors. The devisees could take nothing by descent. The real estate descended to the heirs-at-law -of the testator, subject to such powers; and in this case the words “devisees” and “heirs-at-law” are not interchangeable terms. This conclusion, we think, was an accidental mistake in phraseology, which would at once have been corrected by the court below, on suggestion or motion. We shall direct this correction, in order that there may be no embarrassment hereafter on a merely technical error.

No appeal seems to have been taken from the allowances made, although they exceeded the statutory limitation, and so far as the excess is concerned, were given without authority.

■ The judgment should be affirmed, with costs of the appeal to all parties out of the fund.

Barrett, J.:

I also agree to the affirmance of this judgment with much hesitation. If the language used by Andrews, J., in Vernon v. Vernon (53 N. Y., 351), be applicable to the terms of the present will, it is difficult to see why the executors did not take the legal title to-the realty. I am inclined to think, however, that that case is distinguishable from the present.

The effect there given to the provision for the payment of the annuity by the executors out of the rents was not to invalidate the will; it may be that the court deemed the will susceptible of two constructions, and adopted that which, without invalidatingv the will, seemed most in harmony with the testator’s intention.

There were, also', in the earlier part of the will, words expressive of a purpose to vest the legal title in the executors.

If we are in error in this view of the case, the court above can correct us. The other questions presented, too, are by no means free from difficulty; but upon the whole, I am inclined to concur in the conclusions arrived at by the presiding justice.

Brady, J., concurred.

Judgment affirmed, with costs of the appeal to all parties out of the fund.


author: Davis, F. J.:

text:
    ELIAS J. PATTISON as Receiver, Respondent, v. DENNIS J. O’CONNOR, Appellant, Impleaded, &c.

      Stipulation extending time to answer — construction of — An order denying a motion to compel the acceptance of a pleading is appealable.

    On April 6 the defendant’s attorney, whose time to answer expired April 11, applied for an extension of time to the plaintiff’s attorney, who thereupon signed the following written stipulation: “The time for the defendant, Dennis J. O’Connor, to answer the within complaint, is hereby extended twenty days. Dated N. Y., April 6, 1880.” The plaintiff’s attorney having refused to receive a demurrer served by the defendant’s attorney on April 30, on the ground that the time to demur had expired, the defendant moved for an order requiring the plaintiff to receive the demurrer, which was denied.
    Held, that the stipulation extended the time twenty days fron'v April 11, and that the demurrer was served in time.
    That the defendant was entitled to move for an order requiring the plaintiff to receive the demurrer, and that the order denying the motion was appealable.
    Appeal from order made at Special Term denying a motion, on the part of the appellant, to compel the respondent to receive a demurrer, served upon him by the appellant.

      Stearns <& Ames, for the appellant.

      8. E. Browne, for the respondent.
   Davis, F. J.:

The complaint in this case was served on March 22, 1880. The twenty days to answer would havé expired on April 11; but on April 6, the respondent’s attorney signed a written stipulation, at the request of the appellant’s attorney, which is in these words: “ The time for the defendant, Dennis J. O’Connor to answer the within complaint, is hereby extended twenty days. Dated N. Y., April 6,1880. S. E. Brown, attorney for plaintiff.” On April 30, following, the appellant’s attorney served on the respondent’s attorney a demurrer to the complaint, which was returned on the same day, with notice that it was returned because the time for tbe appellant to demur had expired before April 30, 1880.

Tbe sole question is whether tbe stipulation by wbicb tbe time to answer was extended twenty days, bad tbe effect to give twenty days’ additional time, or only fifteen days. Tbe respondent’s counsel contends that it only operated to give twenty days from April 6, 1880, at wbicb time it was dated. This construction, we think, is clearly wrong. Tbe language of tbe stipulation is: “ The time to answer tbe within complaint is hereby extended twenty days.” This gave twenty days in addition to the time already existing; otherwise tbe time for answering would not be extended for that period. It is a very common thing for attorneys to apply to each other for a stipulation of this kind prior to tbe day on which thé' time to answer expires ; probably more common than to wait "until that-day actually arrives; and a question has never arisen, where an extension was given in tbe broad language of this stipulation, because no one probably has doubted that an extension of twenty days, given for instance tbe day before tbe time to answer expired, would enlarge tbe then existing time by tbe full twenty days, and not by nineteen days only. If tbe respondent’s attorney intended to limit tbe time of tbe extension from tbe date of tbe stipulation, be should have specified twenty days from this date, or have specified tbe shorter number of days; and that would have left no doubt of the effect of the stipulation.

We think the court below erred in bolding that tbe demurrer was not served in time. It was entirely proper to make tbe motion requiring the demurrer to be received, instead of 'delaying until after judgment was entered, and then moving to open the judgment. The latter course might have been taken undoubtedly ; but that fact did not preclude tbe appellant’s attorney from making tbe motion be did ; be was not bound, to wait till bis client’s rights were put in greater jeopardy by an actual judgment against him. And as bis right to serve bis demurrer within the twenty days extended time is clear- and a substantial one, there seems to be no reason to doubt that tbe order denying its exercise is appealable.

Ve think the order below should be reversed, with $10 costs, and disbursements, and an order entered directing that the demurrer be received, or regarded as well served, on April 30.

Bradt and Barrett, JJ., concurred.

Order reversed, with $10 costs, and disbursements, and order entered as directed in opinion.


author: Davis, P. J.:

text:
    THE FIRST NATIONAL BANK OF SOUTH NORWALK Respondent, v. DAVID W. FENTON, Appellant.

      Liability of the ti'ustees of a corporation for a failure to file a report — for what debts they are liable — 1848, eh. 40, § 12.
    November 8, 1877, a corporation, of which the defendant was the president and a trustee, drew its draft on a firm in New York, payable to its own order, four months after date, which draft was accepted by the drawee and thereafter sold to the plaintiff, by whom the same was at maturity presented for payment, and notice of its non-payment duly given to the company, against which the plaintiff thereafter recovered a judgment, upon which an execution was issued and returned wholly unsatisfied. The company having failed to file the report required by section 12 of chapter 40 of 1848, between the first and twentieth days of January, 1878, or at any time thereafter, the plaintiff brought this action against the defendant to recover the amount due upon the draft.

      Held, that even if the contingent liability of the company upon the draft, prior to its maturity, was not such an indebtedness as would, under the said statute, be recoverable from the trajfcees, yet, as that liability became an absolute indebtedness upon due notice to the company of the non-payment of the draft by the acceptors, and as the report was then still unified, the statute imposed upon the defendant a liability therefor, which the plaintiff could enforce by an action.
    Appeal from an order and a judgment entered tbereon, overruling a demurrer interposed to the complaint, on tbe ground tbat it did not state facts sufficient to constitute a cause of action.
    The action was brought against tbe defendant as a trustee of the New York Oil Company because of the failure of said company to file its annual report.

      W. H. Morgan, for the appellant.
    The statute is highly j>enal in character, and is to be strictly construed in favor of the trustee. (Garrison v. Howe, 17 N. Y., 458 ; Miller v. White, 50 Id., 137; Jones v. JBa/rlow, 62 Id., 203 ; Whitney Arms Go. v. JBa/rlow, 63 Id., 62; Wiles v. 8uydam, 64 Id., 173; Whitney Arms Go. v. Barlow, 68 Id., 34.) Three circumstances must concur in point of time to render a trustee liable, viz.: the existence of the debt, the existence of the default in making the report, and the trusteeship. (8haler c& Hall Qua/rry Go. v. BUss, 27 N. Y., 279; Garrison v. Howe, 17 Id., 458 ; Boughton v. Otis, 21 Id., 261.)

      O. Fine and A. B. Milla/rd, for the respondent.
   Davis, P. J.:

This action is brought upon section 12 of chapter 40 of the Laws of 1848, which requires that every company organized under that act shall annually, within twenty days from January 1, make a report which shall state “ the amount of capital, and of the proportion actually paid in, and the amount of its existing debts, which report shall be signed by the president and a majority of the trustees, and shall be verified by the oath of the president or secretary of said company, and filed in the office of the clerk of the county where the business of the company shall be carried on; and if any of said companies shall fail so to do, all the trustees of the company shall be jointly and severally liable for all the debts of the company then existing, and for all that shall be contracted before such report shall be made.”

The defendant was president and trustee of the New York Oil Company, a corporation organized under the said act. That company failed to file any report between the first and twentieth days of January, 1878, or at any time afterwards. On November 3, 1877, the said company drew its draft upon Messrs. Waterhouse Bros., of New York, in the following form:

“ Dolls. 761.52. New York, November 3, 1877.
“Pour months after date pay to the order of Ourselves, seven hundred and sixty-one and fifty-two one-hundredth dollars, with ■current rate of exchange on New York, value received, and charge 10 account of
“ N. Y. OIL 00.,
D. W. Fenton, Pres.
To Mess. Waterhouse Bros.,
New York.”

This draft was duly indorsed by the New York Oil Company, nnd was accepted by Messrs. Waterhouse Bros., payable at the Fourth National Bank, and was sold and delivered by the said 'Company to the plaintiff. It was duly presented for payment at maturity in March following. The acceptors failing to pay the .same, due notice was given to the said company of such demand and refusal. An action was afterwards brought upon the draft, by rthe plaintiff herein, in the Marine Court of the city of New York, •and judgment in due form recovered against the Oil Company, and an execution issued upon the said judgment and returned •wholly unsatisfied.

To the complaint alleging these facts, the defendants demur on the ground that the complaint does not state facts sufficient to constitute a cause of action. The question presented by the demurrer is whether the complaint shows an existing indebtedness of the Oil Company, at the time of the failure in January 1818 to file the neport required by section 12 of the act of 1818 ; or an indebtedness contracted thereafter, and before the filing of such report. At the time of the failure to file the report within twenty days after ■January 1, the liability of the Oil Company was a contingent one, dependent upon the failure of the acceptors of the draft to pay the same at maturity and upon proper demand and notice sufficient to .charge the Oil Company. It is not necessary we think, to pass upon the question whether or not that liability was such an indebtedness as would, under the section of the statute above cited, make the trustees jointly and severally liable for it, by reason of the failure to file the report. In March following, at the time the 011 Company was duly charged by the presentation and demand ■of the draft and due notice to the Oil Company, the draft became ;an absolute indebtedness of the company to the plaintiff, and thus their contract to pay the same ripened into a perfect obligation. It may with entire legal propriety be said that an absolute and unqualified indebtedness was at that time contracted, for the contingency had occurred, and been fully satisfied by the action of the-plaintiff, upon which the company had agreed to pay the amount of the draft themselves. "We see no reason whatever, why the-liability imposed upon the defendant as one of the trustees of the-corporation did not at once attach to him under such a state of facts, upon its being proved that no report had been filed in January, and none afterwards, prior to the time of the accruing of such indebtedness.

"We have examined the authorities cited by the counsel for the-appellant, and while some of them seem to go far enough to hold, that the contingent liability upon the draft might not be strictly within the provisions of the statute, in consequence of its jienal character, yet we think none of them can be construed to relieve-him from the liability which attached in March, after the company became absolutely responsible for the payment of the indebtedness-represented by the draft.

For these reasons, we think that the demurrer was properly-overruled, and that the order and judgment should be affirmed.

Barrett, J., concurred.

Brady, J., dissented.

Judgment and order affirmed.


text:
    SARAH H. PECK, Executrix, &c., Appellant, v. ALPHEUS PECK and others, Respondents.

      ■Probate of will — allowance of costs to unsuccessful contestants — 2 B. 8., 223, § 10 — wlio a/re proper panties to an appeal from an order arma/rding costs.

    Upon an application made by the appellant, for the admission to probate of the will of her husband, by which he had given all Ms estate to her, and appointed her sole executrix, his brothers and sisters appeared and filed objections. The proctors for the contestants, after having cross-examined the witnesses, by whom the due execution and publication of the will was. proved, withdrew their objections, and the wilt was thereupon admitted to probate. Subsequently, the counsel for the contestants made an affidavit setting forth various matters, consisting chiefly of statements made to them by their clients, many of which were scandalous in their character, and alleged that, after an examination of the witnesses, they had induced their clients to withdraw from the contest, in the interest of equity and of the public morals. Upon this affidavit they applied for an allowance in lieu of costs, which was granted by the surrogate.

      Held, that the surrogate had no power to award either costs or allowances in lieu thereof, as the case was not one ‘‘ of a contest” within the meaning of section 10 of 3 R. S., 333, authorizing costs to be awarded iu such cases.
    That, even if the surrogate did have power to make an allowance, it was not a proper exercise of his discretion to grant one in this case.
    That, as the allowance was directed to be paid to the proctors, they were properly made parties to the-appeal taken by the executrix.
    Appeal from an order of tbe surrogate of New York directing allowances, in lieu of costs, to be paid to tbe respondent, Luke A. Lockwood, Esq., and to tbe respondents Dugro and Eaegner, proctors.

      Charles M. Da Costa, for tbe appellant.

      Dugro (& Raegner, for tbe respondents, Israel Peck, P. Henry Dugro and Louis O. Eaegner.

      Luke A. LoeJcwoocl, for Alpbeus Peck and tbe remaining respondents.
   Davis, P. J.:

Tbe last will and testament of Zacbary Peck, late of tbe city of New York, was presented to tbe surrogate for probate. Tbe will devised and bequeathed all bis estate to bis wife, and nominated her sole executrix. Tbe brothers and sisters of tbe testator appeared to contest tbe will, and filed objections to tbe probate thereof. Proof of tbe due execution and publication of tbe will was then made by tbe attesting witnesses, who were cross-examined by the proctors for the contestants; and, at the close of tlieir testimony tbe counsel for tbe contestants withdrew tlieir objections to tbe probate of tbe will, and tbe surrogate thereupon admitted tbe same to probate. Afterwards, tbe counsel, Messrs. Lockwood, Dugro and Raegner made respectively, motions for an allowance to them in lieu of costs, based upon their own affidavits setting forth various matters consisting chiefly however, of the statements made to them by their respective clients, much of which was scandalous in its character, and alleging substantially, that, upon the examination of the witnesses on behalf of their clients they had come to the conclusion that sufficient legal evidence could not be offered to establish their alleged objections to the will and that, as Mr. Lockwood states, in view of such lack of certainty and of the inevitable filthiness and scandal which a continuance of the contest must have developed, the counsel advised and the contestants consented to a withdrawal from the contest in the interest of equity and of the public morals, of the character of the living and the memory of the dead and, as Mr. Dugro states, that if would be unjust,.both to our clients and the court to proceed in this matter, after having fully compared the probable evidence on both sides in this matter.”

In this regard the. proponent of the will presented her own affidavit, very emphatically denying the alleged scandalous matters; and the affidavit of another person, tending to show that the objections to the probate of the will were not founded in good faith on the part of the brothers and sisters of the decedent. There is, probably, no reason to doubt that the counsel in the case, at the time the objections were filed, acted in good faith supposing that testimony which would justify the contest of the will could be produced; but after the execution and publication of the will had been duly proved by the proponent, they came, doubtless with equal good faith, to the conclusion that there existed no substantial grounds of contest. Thereupon they withdrew the objections to the probate of the will, which had been filed. Upon such a state of facts there was, in our opinion, no contest of the will which brought the case within the provisions of the statutes authorizing the surrogate to award costs or allowances in all cases of a contest before surrogates’ courts. (2 R. S., 223, § 10.)

It has been decided, both by this court and the Court of Appeals, that allowances to counsel, under section 9 of chapter 359 of the Laws of 1870, can only be made where costs could have been awarded under the Revised Statutes. (Noyes v. Children's Aid Society, 10 Hun, 289 ; S. C., 70 N. Y., 481.)

The words of the statute, in all eases of a contest,” mean something more than a mere formal appearance and filing of objections to the will. They mean an actual contest in the form of a trial upon the merits before the surrogate, and the production of evidence to sustain the objections, which puts the surrogate upon the duty of determining disputed and contested rights. Nothing of that kind existed here. Mere formal proofs were given to sustain the will, and then the contestants withdrew all objections and consented to the probate. If the surrogate had power, upon such a •state of facts, to make an allowance under the statute, it was nevertheless, not a proper exercise of his discretion, in our judgment, to do so. “ The power to make discretionary allowances .is liable to .abuse, and ought not to be extended by construction.” (Per Andrews, J., First National Bank v. Tamajo, 77 N. Y., 476.) In McLeam v. Freemam, (70 N. Y., 80, 89), it is said, “ Courts have no right to be liberal ijo suitors at the expense of the estates Of •decedents, or trust funds over which they have control. . . . It serves greatly to encourage contests of this character, to have it understood that they are attended with no pecuniary hazards; but that let the judgment go as it may, all parties will be indemnified and counsel liberally paid from a common fund.” To which the court might, with great propriety, have added, that the injustice is still more apparent where the fund or property is not a common fund, but concededly belongs wholly to the successful party.

In this case, if there can be said to have been any contest within the meaning of the statute, it was not one which should have been paid for to any extent by the executrix of the will, who was herself the devisee and legatee of all the property of the decedent. The parties came into court, in this case having no valid objection whatever to the will, and interposed a mere show of a defense in the form of various objections, which they immediately abandoned after causing much delay as soon as proof of the due execution of the will was made.

To encourage allowances to parties thus going through the mere shadow of a contest would open the door to wide abuse of the discretion of the surrogate. "We are able to see nothing whatever in. the scandalous matter set forth in the affidavits of the respective counsel to justify the surrogate in compensating them for refraining to contest the will. They should, also, in our judgment, have refrained from spreading it upon the records of the court in the-form of their own affidavits; and we think if the surrogate had properly exercised his discretion, he would have stricken the affidavits from the records, and denied the motion.

We agree altogether with the suggestion of the surrogate, made-in his opinion, that this motion “ very aptly illustrates the embarrassment growing out of the inquiry respecting the alleged good faith of a contest under the law as it now stands, and the wisdom of the law as it will stand after the 1st of September next, denying all allowances to unsuccessful contestants.” But we are quite-unable to concur with him that there was any such good faith in the pretense of a contest in this case, as justified taking a portion of the estate of the decedent to reward the counsel for refraining-from prosecuting it. The power to make allowances in such cases to contestants having been wholly taken away by statute, further comment upon its liability to great abuse need not be made.

It is objected that the respondents, Lockwood, Dugro and Baegner, are improperly made parties to this appeal. They were counsel for the supposed contestants of the will, and the order of the surrogate directs the sum specified as allowances to be paid directly to them. This was in accordance with the form of the statute, which allows the surrogate to “ make allowances to counsel in lieu of costs.” The allowances being made in that form, these respondents were proper parties to the appeal. Their interests in the allowances were personal, and could not be discharged by a payment to their clients the other respondents. Hence they were proper parties on this appeal, and their objection on that ground is not well taken.

"We think the order of the surrogate should be reversed, with costs.

Brady and Barrett, JJ., concurred.

Order reversed, with costs.


author: Davis, P. J.: Beach, J.: Brádt, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN H. EMERICK, Appellants, v. THE BOARD OF FIRE COMMISSIONERS OF THE CITY OF NEW YORK, Respondents.

      •Ohai'ter of New York city — 1873, oh. 335, § 28 — who is not the head of a Tywreani or a regular clerk within — power to areate new bureaus therein.

    The “ Superintendent of Telegraph ” is not the head of a bureau or a regular clerk within the meaning of section 28 of chapter 335 of 1873, providing that “no regular clerk, or head of a bureau shall be removed until he has been informed of the cause of the proposed removal, and has been allowed an opportunity of making an explanation.”
    The charter of 1873, ch. 335, took away the power conferred by chapter 446 of 1857, and chapter 137 of 1870, upon the common council and heads of departments in New York city to create new bureaus, and thereafter no new bureaus could be created except by an act of the legislature.
    Appeal from order made at Special Term, quashing a writ of -certiorari.

      Ohmies P. Miller, for the appellants.

      P. J. Deem, for the respondents.
   Davis, P. J.:

This case has been argued with great ability by the counsel for "the respective parties, and we have examined it with the care due to a question of so much importance to the public and to the parties. The relator, who held the office of superintendent of telegraphs, by appointment made on July 8, 1874, was summai'ily, and without notice or opportunity to be heard, removed from his position by the board of fire commissioners, and his successor was .appointed on January 31,1880.

The question presented by the case is whether the board had power to make such removal until the relator had, in the language •of the statute, “ been informed of the cause of the proposed removal, and allowed an opportunity of making an explanation and that question depends altogether upon whether he was “the head of a bureau” or “a regular clerk,” within the meaning of section 28 of the charter of 1873. (L. 1873, ch. 335.)

In dismissing the writ, the learned judge at Special Term delivered the following opinion:

Beach, J.:

The relator was appointed by the defendants superintendent of telegraph, in the fire department, July 10, 1874. In January, 1880, he was removed by resolution of the board. The writ of certiorari was granted, to review this action, and with the return, contains the facts governing the disposition of the case. So far as allegations of fact are concerned, the return must be here taken as true, other remedies being supplied by the law, for false or insufficent averment. Conclusions therein stated are neither controlling or effective, it being the province of this court to establish those by its adjudication. On behalf of the relator it is urged that he is either the head of a bureau of telegraphy or a regular clerk, and, consequently, liable to removal only for cause shown, and after hearing. This course, it is conceded, was not pursued.

The position taken by the board is, that he occupied neither of those positions, as shown by the provisions of the present charter, regarding the first claim, and his duties, as to the second.

The disposal of the first point necessitates the consideration of section 28 of the act of 1873, with a reference to prior legislative enactments.

By the charter of 1857 (L. 1857, ch. 446), power was given to the common council, to establish such other bureaus (additional to those specified) as they might deem required by the public interest, and to assign to them, and the various departments and bureaus created by the act, such duties as they might direct, not inconsistent with the charter.

In the charter of 1870 (L. 1870, ch. 137), like power to increase the number of bureaus is conceded to have been given to the common council, in connection with the heads of departments, and upon application by them.

Section 28 of the charter of 1873, so far as material, reads as follows (L. 1873, ch. 335): “ The heads of all departments .....shall have power 'to appoint and remove all chiefs of bureaus......as also all clerks, officers, employees and subordinates, in their respective departments, . . . . but no regular clerk, or head of a .bureau shall be removed until he has been informed of the cause of the proposed removal, and has been allowed an opportunity of making an explanation ; and in every case of removal the true grounds thereof shall be forthwith entered upon the records of the department or board.” Section 76 of article 10, referring to the fire department, provides: “ There shall be in this department three bureaus,” and the jurisdiction of each is specified.

This enactment, like those of 1857 and 1870, particularizes the bureau divisions, in all the departments, where any now exist. The plain question for decision, is whether or not the relator, being superintendent of telegraph, was the head of a bureau, or a regular clerk. The authority to create bureaus rests primarily with the legislature, and may be delegated to the department or officials of the municipal government. In addition to its exercise by the legislature, in the acts of 1857 and 1870, it was also delegated, and in that of 1873, was exercised, but all delegation, in any form, was omitted. This admission is fatal to the relator’s first contention. The clear design of the legislature was to prevent the establishment of additional bureaus in any of the departments.

The court is asked to nullify this design, through adjudicating a power conferred by intention. Intent is primarily to be sought for in the wording of the statute, and will be followed in cases of doubt, even if not in accord with the literal meaning of the words used. But where there is no ambiguity, and the terms employed are precise, they must be held to evidence the intent and control. (Johnson v. Hudson R. R. Co., 49 N. Y., 455 ; Smith v. People, 47 Id., 330 ; Benton v. Wickwire, 54 Id., 226.)

The charter on this subject seems clear and easily understood. No question arises from inconsistent sections, doubtful phrases, or inexact expression.

An authority given by the two prior enactments was omitted in this, and by such significant action the application of the rule ex-pressio unius est exebusio alterius, is needful and proper, rather than harsh, and must be made. The designation and -approval of the number and duties of all officers, and clerks, employees and subordinates in every department, given to the heads thereof, is an authority to regulate the numerical force, and the allotment of duty among them, and not to call into being general divisions, only less important than the departments themselves.

In People ex rel. Munday v. Board of Fire Commissioners (72 N. Y., 445), there is nothing adjudicating an intent in the Legislature to extend the limitation of the absolute power of removal beyond the officials specified, and to include therein other subordinates whose duties may be equally important and diversified. This is apparent from the text of the opinion. Justice Allen says, referring to this section: “ It was intended as a substantial limitation of the general power of removal, conferred by the same section upon the several depax tments of the city government, and to secure the continuance in office of the persons named, until a l’easonable cause, other than the pleasure of the heads of the departments, or a change in the political character of the majority, should exist for their removal.” This should be read in connection with the succeeding paragraph, l’elied upon by the learned counsel for the relator, else the specification of the class of officers to whom the restriction applies, is nullified, and no “general power” of removal would exist as to subordinates “ who had proved themselves faithful and trustworthy, as well as competent to discharge the duties of their stations.”

This is made still more clear by the opinion of the same learned judge, in People ex rel. Sims v. Board of Fire Commissioners, (73 N. Y., 437). He says: “But the statute, by distinguishing between these two classes of officials, and other clerks, officers, employees and subordinates, necessarily leaves those not thus named, and expressly excepted from the operation of the general powers,. subject to removal at the pleasure of the board.”

This case also decides adversely the claim on relator’s behalf, of being a “ regular clerk.” A clerk is there held to be “ a person employed in an office, public or private, for keeping records or .accounts, whose business is to write or register in proper form the transactions of the tribunal or body to which he belongs.” This in no respect describes the duties of the superintendent of telegraph. His functions were much more extended’ and important, •as shown by the return. While they included some service which might have been performed by a clerk, as aptly said in the case, mpra, of the relator’s there, “ that does not give character to their •office, or change the general nature of their employment.”

This opinion fully and clearly discusses the questions involved, .and reaches conclusions in which we feel ourselves constrained to •concur. The Legislature, by the charter of 1873, intended, as we "think, to create certain specified bureaus in the fire department, and •to prevent the creation of any other bureaus. Unlimited power to create such bureaus had before existed, and that power was thought "to be one which had been, or might be, abused, to the prejudice of the people. The creation of a bureau involved the organization, and appointment of a clerical force to duties in that bureau, and an increase of a number of employees in the department, and,' of ■course, of its expenses. It was a mode which might be resorted to for the purpose of making places for aspirants to office, where no necessity for their services existed; and it was against the possibility ■of such an evil, that the Legislature intended to provide by itself ■creating certain specified bureaus and by necessary construction, ■excluding the creation of all others. But we do not intend to discuss the question at length, inasmuch as we are satisfied with the views expressed by the learned court below in dismissing the writ.

We accept his opinion as the opinion of this court, and affirm the •order, with costs.

Barrett, J., concurred.

Brádt, J.:

I concur, but not without some doubt.

Order affirmed, with costs.


author: Per Curiam :

text:
    WILLIAM R. GOULD and WILLIAM S. GOULD, Respondents, v. THE FARMERS’ LOAN & TRUST COMPANY, Appellant, Impleaded with others.

      Wonderful conversion of securities by pledgee — a purchaser can only hold them to the extent of his actual advances —when a pledgee may sue for their recovery.

    On December 29, 1877, the plaintiffs, with whom certain stocks and bonds had been deposited to secure loans, pledged the same to Bonner & Co., to secure-a loan made by them to the plaintiffs. On the same day Bonner & Co. pledged the same, with other securities, to a trust company, to secure a loan of $35,000 made by the company to them. Other loans were then due from Bonner & Co. to the trust company, which were secured by the deposit of collateral securities, which were held under a general agreement that any surplus upon one loan might be applied to any deficiency arising on another. Bonner & Co. having failed, the plaintiffs, upon applying for their securities, were compelled, by duress, to pay to the trust company their full market value Upon a sale of the other securities, held as collateral to the $35,000, there was a surplus of $1,00, although the value of all the securities held by the trust company was not equal to the amount of the loans.
    In an action by the plaintiffs to recover the said surplus. B~eld, that as against the plaintiffs the trust company was bound to apply all other securities held by it as collateral to the $35,000 loan, to the payment thereof, before resorting to those of the plaintiffs; and that only so much of the latter could be sold as should be necessary to fully pay that loan.
    That the fact that the securities in question did not belong to the plaintiffs did not prevent them from maintaining the action, as they had discharged their whole duty to the owners and pledgors of the securities by recovering possession thereof, thus putting themselves in a position to re-deliver them on demand.
    That the plaintiffs were entitled to recover.
    Appeal from a judgment in favor of tbe plaintiffs, entered upon tbe trial of this action at Special Term.
    On December 29, 1877, tlie plaintiffs borrowed from John Bonner & Oo. $15,000, on tbe pledge of one hundred shares of Chicago & Alton Railroad stock, and $10,000 in Government bonds, the property of other persons, customers of the plaintiffs. On the same day John Bonner & Oo. borrowed from the Farmers’Loan & Trust Company $35,000, on the pledge of the plaintiffs’ stock and bonds, and also of other securities belonging to other.defendants in this action, who do not appeal. On January 4, 1878, the-plaintiffs, finding that these securities were hypothecated to the Farmers’ Loan & Trust Company, who would not surrender them without receiving the market value thereof, which was $18,411.25, paid that amount to the company under duress, that sum being $3,400 more than was due from the plaintiffs to John Bonner & Co. The Farmers’ Loan & Trust Company obtained at the same time, from the sale of the other securities, about $18,000, leaving in its hands a surplus upon this particular loan of $1,655. By consent of all parties interested in this surplus it is to be paid to the plaintiffs, if the Farmers’ Loan & Trust Company is not entitled to it. That company, however, claims the right to retain this surplus, on the ground of an alleged agreement between itself and John Bonner & Co., that all loans made by the company to Bonner & Co., and all securities pledged by Bonner & Co. to the 'company, were to be aggregated, and 'the surplus upon one loan applied to any deficiency which might arise upon another. Before making the loan of $35,000, the company had loaned to Bonner & Co. a separate sum of $20,000, upon the pledge of certain securities, which, being sold, left a deficiency of $3,300, which sum is still due from Bonner & Co. to the company upon that particular loan.
    It appeared that the stock and bonds which were pledged by the plaintiffs to John Bonner & Co. were the property of other persons, customers of the plaintiffs, who had pledged them to the plaintiffs as security for advances. The Farmers’ Loan & Trust Company thereupon insisted that the plaintiffs were not the real parties in interest, and also that, even if they were, the company was entitled to aggregate all the loans and the securities of Bonner & Co., and set off against the surplus of $1,600 on the loan for which the plaintiffs’ securities were pledged, a deficiency of $3,300 upon the other loan.
    The court below overruled both of these claims, and gave judgment in favor of the plaintiffs for the surplus upon the single loan for which the plaintiffs’ securities were pledged; and it is from this judgment that the Farmers’ Loan & Trust Company appeals.
    Turner, Lee Med/ure, for the appellant.

      Shearman <& Sterling, for the r-espondents.
   Per Curiam :

The plaintiffs had sufficient authority to pledge both the Chicago & Alton Railroad stock and the $10,000 in Government bonds as security for the loan of $15,000 made to them by John Bonner & Co. The subsequent pledging of the same stock and bonds by John Bonner & Co. to the appellants, having been made without notice of any title, right or interest of the plaintiffs in said bonds and securities, entitled the appellants to hold the same, as against the plaintiffs, to the extent of their actual advances ujion them. The court below has found, as matter of fact, that said stock and bonds were pledged by Bonner & Co. to the appellants as collateral to a loan of $35,000, and not to one of $55,000; or, in other words, that the two loans made on the same day by the appellants to Bonner & Co., of $20,000 and of $35,000, were separate and independent transactions, each complete in itself, although they occurred within a brief space of time, and although it was understood when the thirty-five-thousand-dollar loan was made that the securities then pledged might also be held for any deficiency in the securities pledged for the twenty-thousand-dollar loan.

It is well settled, upon abundant authority, that Bonner & Co., being only pledgees of the stocks and • bonds of the plaintiffs, could transfer no greater interest than they themselves possessed to any other person, except for value paid in good faith; and that a transfer of them, as security for a prior indebtedness of Bonner & Co., is not one for value within the meaning of the law. (Weaver v. Barden, 49 N. Y., 286; McNeil v. Tenth National Bank, 46 Id., 325 ; Huff v. Wagner, 63 Barb., 215 ; Cardwell v. Hicks, 37 Id., 458; Coddington v. Bay, 20 Johns., 637; Stalker v. McDonald, 6 Hill, 93 ; Lawrence v. Clark, 36 N. Y., 128; Muller v. Pondir, 55 Id., 325 ; Chrysler v. Renois, 43 Id., 209 ; American Exchange Bank v. Corliss, 46 Barb., 19.)

The interest of Bonner & Co. in the bonds and stocks was the amount of the fifteen-thousand-dollar loan, and such interest as might accrue thereon. To that extent they could transfer the pledge to the appellants without any question of right or power. But when the appellants came to claim a greater interest than that, it was necessary that they should be. able to show actual advances of a valuable consideration, made in good faith. For the loan of $35,000, the appellants held, in addition to the stocks and bonds in question, other securities of John Bonner & Co., which it appears produced enough, with the $18,411.25, received from the plaintiffs as the market value of tbeir stocks and bonds, to repay the full' amount of the thirty-fix o-thousand-dollar loan, and interest, and leave a surplus in their hands of $1,615.11, in excess of all that was due to the 3f pellants on the thirty-five-thousand-dollar loan. The question in the case is, to whom that surplus belongs. The appellants claim that it belongs to them, by reason of an agreement, exjwessed or implied, between themselves and Bonner & Co., which authorizes them to apply such excess upon any deficiency in the collaterals of the former loans made by them. But this claim cannot be maintained, because, as we have already seen, however clear the agreement may have been, as between the appellants and Bonner & Co., and however plain their rights as against that firm, may be they are subordinate to the superior right of the plaintiffs. The appellants were bound to apply first upon the thirty-five-thous- and-dollar loan the proceeds of the other collaterals deposited with them by Bonner & Co. for this particular loan, and then so much of the value received for the stocks and bonds of the plaintiffs as would fully pay that loan. This would be the case had the plaintiffs’ securities remained in the hands of the appellants and been sold for the purpose of applying the proceeds to the payment of the loan. But they were not so sold. The plaintiffs paid their full market value in money to obtain possession of them from the appellants; and it is claimed that such payment was a voluntary one, operating as an acknowledgment -of the right of the appellants to receive and apply upon the loan the full value of those stocks and bonds. The court has found, however, that the payment of such value by plaintiffs was involuntary and made by duress, under such circumstances as entitles them to recover the excess beyond what the appellants could legally have held. the evidence upon which the court has found this fact, though not very clear or decisive, brings the case, we think, within the authorities. (Harmony v. Bingham, 12 N. Y., 99 ; Stinton v. Jerome, 54 Id., 480.) The plaintiffs did not acknowledge thq appellants’ right to be the full value of the property, because the appellants refused to surrender the securities upon any smaller payment; and this was held sufficient, in the cases above cited, to establish a compulsory payment, entitling the party to recover back the excess demanded.

It is insisted, however, by the appellants, that the plaintiffs do not show any title to recover this money, because the bonds and stocks pledged by them to Bonner & Co. were, in fact, the property of other parties, who were plaintiffs’ customers, and who had left the same in the plaintiffs’ hand as collateral to their obligations. But this question ceases' to be of any importance in the case, when we consider that the action is not brought to recover the bonds and stocks, but only an excess in money which the plaintiffs were obliged to pay to the appellants, in order to get possession of them. The relations of the owners of the stocks and bonds, who had pledged them to the plaintiffs, were fully satisfied when the plaintiffs recovered possession of them, as they did by paying their full value to the appellants ; and such owners had no interest whatever in the question of how much or how little the plaintiffs were obliged to pay to regain such possession. The plaintiffs discharged their whole duty in relation to the stocks and bonds to such owners, when they put themselves again in position to re-deliver them on demand, and on payment of any indebtedness for which they were entitled to hold them. It was the plaintiffs’ own money that was paid in order to redeem the securities from the appellants; and, if they were obliged to pay any greater sum to accomplish that purpose than the appellants were lawfully entitled to claim, the right to recover the same was altogether the property of the defendants themselves.

We think there is no question, therefore, that if any action will lie for the excess realized by the appellant out of the collaterals for the thirty-five-thousand-dollar bond, it belongs altogether, both in law and equity, to the plaintiffs alone.

¥e are satisfied that the case was rightly disposed of, upon the facts found by the court below, and the judgment must be affirmed, with costs.

Present — Davis, P. J., and Brady, J.

Judgment affirmed, with costs.


author: Barrett, J.: Davis, P. J.,

text:
    In the Matter of the Petition of THE METROPOLITAN GAS LIGHT COMPANY OF THE CITY OF NEW YORK, to Vacate an Assessment.

      Assessments — effect of section 5 of chapter 574 of 1871 upon irregula/r assessments.

    Section 77 of chapter 187 of 1870, as amended by section 5 of chapter 574 of 1871, provides, among other things, that “ The board of assessors of the city of New York are hereby authorized and directed to assess or re-assess upon the property intended to be benefited, in manner provided by law for making assessments for local improvements in said city, all expenses which have been already paid or incurred and shall hereafter be actually incurred by the mayor, aldermen and commonalty of the city of New York, for either regulating, or grading, or paving, or repaving, or sewering, or curbing, or guttering, or otherwise improving any of the streets, avenues or public places in said city of New York; and all the provisions of law in relation to advertising, entering and collecting assessments for local improvements in said city, shall apply to all such assessments or re-assessments. It shall be the duty of the commissioner of public works in said city to certify to the board of assessors the sum or sums expended as aforesaid, and such certificate shall be conclusive evidence of the amount of such expenditure.”

      Held, that the Legislature did not thereby intend, by the exercise of its taxing power, to authorize the imposition of assessments for the collection of unauthorized and illegal expenditures theretofore, or which might be thereafter incurred, but only to authorize assessments to be imposed for the collection of such expenses as had been or might be lawfully paid or incurred, and to make the certificate of the commissioner of public works final and conclusive as to the amount, but not as to the legality, of the expenditures. (Davis, P. J., dissenting.)
    A ppeal from an order vacating an assessment for laying a sewer in Sixtieth street.
    The application was made upon the grounds that there was included in the assessment the cost of work for which no contract had been made, and that a large amount of the work had been done without letting any contract therefor.

      W. G. Whitney, corporation counsel, for tbe city of New York,, appellant.

      P. A. Hcurgous, for the petitioner, respondent.
   Barrett, J.:

A new point is made by the learned counsel to the corporation, to sustain this assessment. He claims that the amount of expenditure for the sewer in question, whether originally incurred in violation of law or not, has, by direct legislative mandate, been duly assessed upon the property intended to be benefited. What is supposed to be such mandate will be found in section 5 of chapter 57é of the Laws of 1871. The provision is in these words : “ The board of asssessors of the city of New York are hereby authorized and directed to assess or re-assess upon the property intended to be benefited, in manner provided by law for making assessments for local improvements in said city, all expenses which have been already paid or incurred, and shall hereafter be actually irfeurred by the mayor, alderman and commonalty of the city of New York, for either regulating or grading, or paving or re-paving or sewering, or curbing or guttering, or otherwise improving any of the streets, avenues or public places in said city of New York; and all the provisions of law in relation to advertising, entering and collecting assessments for local impiovements in said city shall apply to all such assessments or re-assessments. It shall be the duty of the commissioner of public works in said city to certify to the board of assessors the sum or sums expended as aforesaid, and such certificate shall be conclusive evidence of the amount of such expenditure.”

We do not look upon this statute as covering the ground contended for. It is a general enactment with respect to public improvements. The object was not specially to raise money by tax. The real purpose seems to have been the extension of the existing powers of the board of assessors. There certainly is nothing to warrant the construction that every unauthorized and illegal expenditure, — whether in the past, the present or the future — is to be assessed upon the property intended to be benefited. We have no doubt the Legislature meant to limit the imposition of the-assessment to expenses lawfully paid or incurred, and to make the certificate of the commissioners of public works final and conclusive as to the amount, but not as to the legality of the expenditure. It could never have intended, by this somewhat obscure amendment to a section treating mainly of the powers of the commissioners of public works, practically to abrogate all existing checks upon unnecessary or extravagant expenditure. Otherwise, what would become of the provisions of the charter with respect to the doing of work by contract, and to the giving of contracts to the lowest bidder ? If the construction claimed for this amendment be correct, the disregard of these provisions of the charter would be of no moment. To justify the assessment it should suffice that the work was actually done and the expense actually incurred. Nor would there be any limit to the amount which might thus in defiance of the law be imposed upon one’s property. The street, avenues or public places might be “ otherwise improved ad injmitmn. We cannot think, therefore, that the case comes, within the principle as to the taxing power of the Legislature. In all the cases to which we have been referred (Guilford v. Supervisors of Chenango, 3 Kern., 143 ; Brewster v. Syracuse, 19 N. Y., 116; Howell v. Buffalo, 37 Id., 267), there was a special direction with regard to some particular claim or matter. In the two latter cases the amount to be assessed was designated, while in the former the special subject-matter was referred to, and a means provided for ascertaining the amount to be assessed. If the Legislature shall ever specially direct a re-assessment for the expenditure now in question, either specifying the amount in the bill or providing a means whereby it can be definitely fixed, the cases cited may be applicable. But they are inapplicable to the statute under consideration because, as we have seen, there is therein no special exercise of the sovereign power of taxation, and the general exercise of such power has reference to actual expenses, lawfully and properly incurred. As the case is otherwise within that of In re Mahan (20 Hun, 301), the order vacating the assessment must be affirmed.

Brady, J., concurred.

Davis, P. J.,

dissenting:

I dissent from the conclusion of my learned brothers. In cases to which the statute referred to is applicable, I think it operates to prevent proceedings to vacate the assessment.

The remedy of the party aggrieved, in such a case, is by an apjiropriate proceeding to review and correct the action of the commissioner and assessors, and not by one which completely annuls their action.

The view adopted by the majority of the court renders the statute ■of little or no practical value. It enactment was useless if its •effect can be wholly overthrown by a single suggestion of error such as is alleged in this case.

I am, therefore, constrained to dissent.

Order affirmed.


author: Brady, J.:

text:
    ALLEN F. HAND and others, Appellants, v. LOUISA C. BURROWS and others, Respondents.

      Evidence — when a commission may issue to tdtce the testimony of one committed to a lunatic asylum.

    A commission may be issued to take the testimony of one committed to a lunatic asylum in another State, on the ground of insanity, but, upon the trial of the action the return thereto must be first submitted to the presiding justice, who shall determine, on an examination of the answers therein contained, and of such witnesses having knowledge of the subject, as may be produced before him, whether or not the mental condition of the witness is such as to render his testimony admissible in evidence.
    Appeal from an order, made at Special Term, denying a motion for a commission to take the testimony of Frank L. Taintor, an inmate of a lunatic asylum at Concord, New Hampshire.

      8. P. Nash, for the appellants.

      O. E. Tracy, for the respondents.
   Brady, J.:

It appears that upon the original application for the commission It was shown in answer, that Taintor had been regularly committed for insanity, and thereupon a preliminary inquiry was ordered as to his fitness to be examined as a witness on commission. Upon the •evidence taken upon such inquiry the plaintiff’s motion was renewed and denied.

The rule to be observed, in reference to taking the testimony of •a witness alleged to he insane, requires the examination by the judge presiding at the trial of the lunatic himself, and of any competent witness who can speak of the nature and extent of his insanity, in order to ascertain his mental condition. This rule contemplates the presence of the witness in court at the trial. In this case the personal attendance of the witness cannot be enforced by any process which this court can call into requisition, and the question presented im, Umine is whether the contemplated presence of the witness can be dispensed with, and his mental condition investigated, by. a perusal of his examination and cross-examination obtained by the commission, and of such witnesses as may be produced having knowledge of the subject. It is undoubtedly necessary that the judge presiding at the trial shall, in the first instance, declare whether the witness is competent to testify. All the authorities seem, as already stated, to make this a preliminary requisite.

In considering the rule, an embai’rassment at once presents itself, because, if the presence of the witness be held to be indispensable, then the party seeking his testimony must lose the supposed benefit of it from the inability to compel his attendance, which does not seem to be a just result; and his can only be avoided by issuing the commission, and upon its return, and at the time of its presentation to the justice presiding at the trial, then initiating the investigation already suggested as to the mental condition of the witness. This may be done, as already suggested, by an examination of his answers, and hy the testimony of other witnesses who have information on the subject.

The general rule already stated is sustained by the following authorities: Regina v. Hill, 5 Cox C. C., 259; People v. New York Hospital, 3 Abb. New Cas., 229, note; Spittle v. Walton, L. R., 11 Eq., 420; Brush's Case, 3 Abb. New Cas., 225; Holcomb v. Holcomb, 28 Conn., 177; Mutual Life Ins. Co. v. Hunt, 14 Hun, 169.

Tbe rule not amounting to an absolute denial of tbe right to examine a lunatic, it would seem to be impossible to deprive a party of the machinery of a commission. His adversary, in such a case,, must rely upon the alleged insanity, and receive all the advantages-to be derived from it, so far as it affects the credibility of the witness and the reliance that should be placed upon his testimony. We see no other course than to allow the commission, subject to-the inquiry which must be made when the return is offered in evidence.

Eor these reasons we think the order must be reversed and the commission granted, without costs.

Davis, P. J., and Barrett, J., concurred.

Order reversed and commission granted, without costs.


author: .Brady, J.:

text:
    LOUIS DEJONGE and another, as Executors, &c., Respondents, v. CHARLES BRENNEMAN and others, HEIMAN STEINART and ISADOR ABRAHAMS, Appellants, Impleaded, &c.

      Violation of an injunction — power of the court to impose a fine th&refor — ■how the amount of the fine is to he determined.

    In proceedings to punish a defendant for contempt, for violating an injunction restraining him from collecting the rents of certain premises during the pendency of an action, brought to foreclose a mortgage thereon, the court can only impose such a fine as shall be sufficient to indemnify the party aggrieved for his actual loss and injury, and to satisfy his costs and expenses in the proceedings.
    The amount of the loss and injury must be established by the same proof as would be required in an action at law, to recover the damages sustained.
    Appeal from an order, made by Justice Lawrence, to punish the defendants Steinart and Isador Abrahams, as for a contempt in disobeying an order of injunction granted herein, restraining them from collecting the rents of certain premises during the pend-ency of this action, which was brought to foreclose. a mortgage thereon, and appoint a receiver thereof.

      Smrmel J. Crooks, for the appellants.

      George J. Greenfield, for the respondents.
   .Brady, J.:

The misconduct constituting the contempt was the collection of -.rents of the mortgaged premises, mentioned in the complaint. It ..appeal’s satisfactorily from the'evidence presented at the hearing of the motion for an order to punish the persons named, that the sum •collected by them improperly was about $326 ; and the court directed. the payment of $50, for the costs and expenses of the proceedings to punish for the contempt committed.

The learned justice imposed upon the persons named a fine of $110 for their misconduct, and as an indemnity to the plaintiffs for their actual loss and injury, by reason of the misconduct complained •of. It does not appear, from the papers submitted on the appeal, in what way the fine above mentioned was made up, and there does mot seem to be any evidence to warrant its imposition. This is a • civil contempt, and the proceedings in reference to its commission and punishment are under the provisions of the Revised Statutes -(3 R. S., 6 ed., p. 841, § 21), and by which it is provided that, if an actual loss or injury shall have been produced to any party by the misconduct alleged, a fine shall be imposed sufficient to indemnify such party, and to satisfy his costs and expenses, and that the .sum be paid over to him on the order of the court. And, further, that in such case the payment and acceptance of the fine .shall be an absolute bar to any action by such aggrieved party to recpver damages for such injury or loss. The object of this statute ■was, as its language plainly imports, to secure absolute indemnity not only for loss and injury occasioned by the misconduct complained of, but, also, for the costs and expenses relating to, or occa.sioned by it; and this seems to embrace the extent of the power of fhe court.

The amount of the fine, to indemnify the person aggrieved for the loss and injury, must he fixed upon proof of the damages sustained, according to.the rules of law which would apply in an action for such damages. (Sudlow v. Knox, 7 Abb. Pr., N. S., 411.) A flue of $710 was, therefore, excessive, and should be reduced to $376, and the order appealed from modified accordingly.

The defendant Steinart, assuming that he is an attorney and counselor of this court, has, by his misconduct, received, by the imposition of the fine and the proceedings consequent upon it, condemnation justly merited, and it may he that his misconduct will be the subject of further investigation affecting his professional standing.

Davis, P. J., and Barrett, J., concurred.

Order modified, as directed in opinion.


text:
    SAMUEL HALL, as Executor, &c., Respondent, v. ROBERT THOMPSON and others, Appellants.

      Will — when the court will supply a. word omitted therefrom — when legacies are a chmge upon the real estate.

    A testator, by his will directed his executor “to sellaud dispose of ” sufficient real estate to pay off a specified mortgage, and then provided that, “atthe . death of my said beloved wife my executor shall and dispose of all my estate, and the accumulations and profits thereof, either by public or private sale,” and divide the avails thereof as therein provided.
    Held, that the word “sell ” might be supplied before the word “ and,” or the word “and ” be omitted in order to carry out the evident intention of the testator.
    The second item of the testator’s will was as follows: “ As to my worldly estate and all the property, real, personal and mixed, of which I shall die seized and possessed, and to which I shall and may be entitled to at the time of my decease, I devise, bequeath and dispose of in the following manner, viz.” He then gave directions as to the payment of certain sums,- and provided that, upon the death of his wife, the executor should sell his estate and dispose of the avails among certain persons therein named.

      Held, thattheintenrion of the testator was to blend all his property, real, personal and mixed, into one estate, and appropriate it to the objects expressed in the will, and to the discharge of all the burdens created by the terms thereof; and that the legacies were, therefore, a charge upon the real estate.
    Appear from a judgment, entered upon the trial of this action at Special Term.
    The action was brought to procure a judicial construction of the will of Robert Thompson. The question in dispute related to the construction to be given to the eighth item of the will, and to whether or not the pecuniary legacies bequeathed by the will were charged upon the real estate. The will provided:
    “ Fvrst. — -I commend my immortal being to him who gave it, and my body to the earth, to be buried respectably, with the least expense.
    “ Item . — As to my worldly estate and all the property, real, personal and mixed, of which I shall die seized and possessed, and to which I shall and may be entitled to at the time of my decease, I devise, bequeath and dispose of in the following manner, viz. :
    “ Item . — My will is that all my. just debts and funeral expenses shall be by my executor hereinafter named first paid out of my estate, as soon after my decease as shall by my executor be found convenient.

      “ Item . — I empower my executor hereinafter named, as soon as possible after my death, to sell, dispose and convey sufficient of my real estate to pay off the mortgage and interest thereon then existing upon my house and lot, number 196 Prince street, in the city of New York, aforesaid. . . .
    “ Item . — At the death of my said beloved wife my executor shall and dispose of all my estate, and the accumulations and profits thereof, either by public or .private sale, and divide the avails thereof, share and share alike, to and' among my children, Mary Ann Baird, Isaac Thompson and Robert Thompson, or such of them as may be living at the time of my death; and if any such die married, leáving lawful issue, then and in that case such lawful issue shall have, share and share alike, the amount that would be due to their deceased parent were he or she or they still living at that time.”

      ILewry Parsons, for the defendant,
    Lawson and others, appel lants. Although the will aud codicil do not, in express terms, make the legacies a charge upon the real estate, there is sufficient in the will itself and all the facts to raise the reasonable and obvious implication that such was the intention of the testator. (B&oa/n v. Oooper, 72 N. Y., 317 ; Taylor v. Dodd, 58 Id., 335 ; I/upton v. Lupton, 2 Johns. Ch., 614; Harris v. Fly, 7 Paige, 421.) "When the entire estate, real and personal, is blended in one devise, •or where a power of sale is given to the executors to convert real and personal estate into cash, it becomes chargeable as personalty for both debts and legacies. (Tracy v. Traoy, 15 Barb., 503 ; Taylor v. Dodd, 58 N. Y., 335.)

      Edwa/rd S. Glmch, for the infant defendants, appellants.
    A charge of a legacy upon real estate is not to be brought about by •doubtful words or implications. Legacies are always presumptively payable out of the personalty, and if there prove to be a deficiency for the payment of legacies, they must abate, unless expressly •charged on the real estate. (2 Bedf. Law of "Wills, 208; Beynolds v. Beynolds, 16 N. Y., 257; Lupton v. Lupton, 2 Johns. Ch., 614; Myers v. Eddy, 47 Barb., 263; Spillcme v. Duryea, 51 How. Pr., 360; BaboooJc v. Stoddard, 3 Sup’m. Ct., 207.)

      Charles E. Crowell, for the respondent.
    The personal estate is the primary fund for the payment of legacies, and the real estate is not charged with the payment, unless there is clear evidence of intention, or it may be inferred from the language and disposition of the will. (Beynolds v. Beynolds, 16 N. Y., 259, and cases cited; Lupton v. Lupton, 2 Johns. Ch., 623; 1 Boper on Legacies, 671, Am. ed., 1848; Taylor v. Dodd, 58 N. Y., 348; 2 Bedf. on Wills, 207.)
   Brady, J.:

This action was brought to obtain a construction of the will and codicil of Bobert Thompson, late of the city of New York, deceased, who died in 1866.

Two questions were presented for consideration to the court below ; the first arising from what is properly designated the palpable omission of a word in a provision of the will, to which reference will be made; and tbe second whether the legacies were chargeable upon the real estate, the personal estate having been insufficient to pay them.

The provision under which the first question arises is as follows : At the death of my said beloved wife my executors shall and dispose of all my estate, and the accumulations and profits thereof, -either by public or private sale, and divide the avails thereof, share -and share alilre, to and among my children, Mary Ann Baird, Isaac 'Thompson and Robert Thompson.” It was properly said below, with reference to this question, that the use of the words “ sell and dispose,” in a prior part of the will, indicated the omission to be of the word “ sell ” in the clause recited, and that it might be supplied; or the word “and” might be rejected as surplusage, and thus the evident intention of the testator made plain. ’ This view is regarded as a correct disposition of the question discussed.

The learned justice, however, upon the second question, came to the conclusion, and after a very careful examination, that the legacies were not chargeable upon the real estate or .its proceeds. In this, however, it is thought he erred.

A reference to the will itself discloses the first item of it to 'be as follows: “ As to my worldly estate and all the property, real, per«onal and mixed, of which T shall die seized and possessed, and to which • I shall and may be entitled' at the time of my decease, I devise, bequeath and dispose of in the following manner.” And then follows the gift of several legacies of money; and on reference. to the codicil it is found that, in the last item, the testator provided as follows:

“ In every other respect than the foregoing codicil I declare my said last will and testament of the Tijfh Sept., 1865, to be unchanged.” And in no respect whatever did the codicil interfere with the item quoted from the will itself.

Upon a question of construction the most important element is the intention of the testator; and it seems to be quite evident, from the language of the item recited, that the testator, for the purpose of carrying out the provisions of his will, appropriated the whole of his property ; an intention manifested after marshalling it all together by the use of the words, 1 devise, bequeath and dispose of in the following manner,” and that manner involved the payment of the legacies which he gave. The item blended all his worldly estate, real, personal and mixed, thus uniting his whole estate for the general purposes of his will, and, in the disposition of it, destroying all distinctions as to its legal character in its application, although, as is suggested by Judge Folger, in Bevan v. Cooper (72 N. Y., 317), the primary fund for the payment of legacies is the personal estate; and although this is undoubtedly the general rule, nevertheless, if an intention to the contrary can be gathered from the terms of the will, the intention must prevail.

It does not appear from anything in this will, expressly or impliedly, that the testator meant that the legacies should bo paid out of his personal estate alone. It does appear, however, to have been his intention, from the blending of his estate in the manner stated, to appropriate it to the objects expressed in his will, and therefore to the discharge of all the burdens which he created by the terms of that instrument. .

Having arrived at this conclusion, it may be unnecessary to-devote any more attention to the question stated. But, nevertheless, the result arrived at can be strengthened by the application of the rule, well settled, that when the entire estate, real and personal, is blended in one devise, or where a power of sale is given to the executors to convert real and personal estate into cash, it becomes chargeable as personalty for both debts and legacies (Tracy v. Tracy, 15 Barb., 503, and cases cited; Taylor v. Dodd, 58 N. Y., 335.) Such a blending was made as already suggested, and a power of sale given to the executor, thus bringing the provisions of the will within the principle stated.

We do not regard the case of Lupton v. Lupton (2 Johns. Ch., 614) as in conflict with any of the views expressed. So far as it applies to this case, it is in harmony with them.

For these reasons, we think the judgment should be reversed,' wherein it decrees that the legacies were not chargeable upon the real estate, and judgment given for the appellants, making the legacies a charge upon the - real estate, or payable out of the proceeds thereof, with costs to the appellants.

Davis, P. J., and Barrett, J., concurred.

Judgment reversed, and judgment ordered as directed in opinion.