text:
    John R. Young et al., Resp’ts, v. Winfield S. Stone, as Sheriff, etc., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 18, 1894.)

    1. New tbial—Weight of evidence.
    A new trial, granted on the condition that the moving party should pay the costs, will be presumed to have been made upon the ground that the verdict was against the evidence.
    8. Same.
    Ei such cases, the action of the trial court will not be interfered with in the absence of any abuse of discretion.
    Appeal from an order setting aside a verdict in favor of defendant, and granting a new trial on payment of costs of the action after notice of trial.

      George F. Lyon, for app’lt; T. B. & I. M. Merchant, for resp’ts.
   Martin, J.

An examination of the order appealed from renders it quite manifest that the verdict was set aside and a new trial granted upon the ground that the verdict of the jury was against the weight of evidence, as it was granted upon the condition that the respondents should pay the costs of the trial. On a motion for a new trial upon exceptions and' the insufficiency of the evidence, an order graqting it upon condition of payment of costs will he presumed to have been made on the latter ground. Henderson v. Henderson, 2 Abb. N. C. 102. We think the same presumption exists in this case. ,

In McKeever v. Weyer, 11 Wk. Dig. 258, it was said: The granting' or refusing a new trial on the minutes is largely a matter resting in the discretion of the judge who presides at the trial. Such an order is appealable. Code Civ. Pro., § 1342. But on review the appellate court would not be justified in reversing the action of an inferior court, unless it appeared that the discretion vested in. the latter court had been abused.”

In Oberlie v. Bushwick Av. Railroad Co., 6 St. Rep. 771, it was held that the question whether a verdict ought to be set aside as against the weight of evidence is one not governed by any well-defined rules, but depends in a great degree upon the peculiar circumstances of each case.

In Bannon v. McGrane, 45 N. Y. Supr. Ct. 517, Judge Freedman said: “It is at all times a grave question for an appellate court to reverse, on the ground of error, an order made by the trial judge setting aside the verdict as against the weight of evidence. Motions to set aside verdicts as against the weight of evidence are not governed by any well-defined rules, but depend in a great degree upon the peculiar circumstances of each case. They are addressed to the, sound discretion of the court; and whether they should be granted or refused involves the inquiry, in each particular case, whether substantial justice has been done, the court having in view the attainment of that end.”

In Macy v. Wheeler, 30 N. Y. 231, it was held that the supreme court has the undoubted power and right to examine the evidence at large, and upon the whole case, including the law and the facts, to set aside a verdict, and grant a new trial; that that court can, from the evidence, reach different conclusions of fact from those found by the jury; and that in reviewing trials it has power to pass upon questions of fact as well as law.

In Barrett v. Third Av. Railroad Co., 45 N.Y. 628, 632, Allen, J., said: “Motions to set aside verdicts as contrary to evidence, as well as motions for a trial upon the ground of newly-discovered evidence, are not governed by any well-defined rules, but depend in- a great degree upon the peculiar circumstances of each case. They are addressed to the sound discretion of the court; and whether they should be granted or refused involves the inquiry whether substantial justice has been done, the court having in view solely the attainment of that end. The exercise of this discretion is not r’eviewable on error.”

In Standard Oil Co. v. Amazon Ins. Co., 79 N. Y., 506, it was held that, where the verdict was perverse, or contrary to the law and the evidence, the supreme court had ample power to grant new trials in the exercise of its discretion.

In Houghkirk v. D. & H. Canal Co., 92 N. Y. 219, where the general term had declined to set aside a verdict as excessive, assigning as a reason that the doctrine of the opinions of the court of appeals left it impossible in any instance to say that damages were excessive, the court held that the supreme court possessed the power to grant a new trial for excessive damages, even in an action for injuries resulting in the death of a person occasioned by the defendant’s negligence.

Assuming, as we think we should, that the motion in this case was granted upon the ground that the verdict was against the weight of the evidence, and applying the doctrine of the cases cited, we are unable to say that there has been any abuse of that sound discretion within which the trial court has a right to grant or refuse a new trial in such a case, but, on-the contrary, are of the opinion that the trial court was justified in granting the order appealed from. We think a trial judge is invested with power to set aside a verdict, and grant a new trial, on the ground that the verdict is against the weight of evidence, or because the damages are excessive or insufficient, or when, for any other reason, substantial justice would be.promoted thereby. This power we think an important one, and one that ought perhaps to be more often exercised by trial courts for the proper protection of the rights and interests of litigants.

The appellant contends that, even if a new trial was properly granted, the order should be modified so as to provide for the payment by the respondents of all costs of the action after notice of trial, to be paid within a fixed time after the service of a copy of such order with notice of entry. The order is: “ That the verdict herein be set aside, and a new trial in this action be, and the same hereby is, granted on payment by plaintiffs of all costs of the action, after notice of trial, to be taxed within thirty days from the service of a copy hereof, and notice of the granting and entry hereof.”

It is manifest from a reading of this order that the trial court intended to set aside the verdict, and grant a new trial, only upon the condition that the plaintiffs should pay the costs referred to in the order. The order, however, failed to provide that, in the event of the plaintiffs not paying such costs, the motion to set-aside the verdict and for a new trial should be denied. Perhaps this was unnecessary, and yet we think the order should contain such a provision, as, in the absence of it, the plaintiffs may be led to suppose that they need not pay the costs, and omit to do so, thereby suspending the action, or compelling the defendant to take proceedings to collect them. Therefore we think it would be better that the order should be amended so as to provide that the verdict be set aside, and a new trial granted, upon the condition that the plaintiffs pay the defendant all the costs of the action after notice of trial, within 20 days after the same shall have been adjusted and notice thereof served upon them, and with the further provision that, if such costs are not so paid, the motion should be denied, with costs.

Order modified so as to read as follows: “ Ordered, that the verdict herein be set aside, and a new trial granted, on condition,that the plaintiffs pay to the defendant all costs of the action after notice of trial, within twenty days after the costs shall have been adjusted by the clerk of Broome county, and notice thereof served upon the plaintiffs. If such costs shall not be paid by the plain- ' tiffs as herein provided, the motion to set aside the verdict and for a new trial is denied, with costs,”-—and, as modified, the order appealed from is affirmed, with costs to the respondent. «

All concur.


source: Caselaw Access Project

author: Yan Brunt,, P. J.

license: Public Domain

text:
    George G. Williams et al., as Executors, etc., Resp’ts, v. Katherine Van Wyck Haddock, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed May, 1894.)

    1. Contract—Stipulation—Personal representatives,
    A provision in a contract that the stipulations were to apply to and bind the heirs, executors, administrators and assigns of the respective parties, does not impose upon the executors of one of the parties, since deceased, any restrictions as to their right of action which would not have otherwise existed. '
    2. Vendor and purchaser—Contract to convey—Extension of time by executors.
    Where the owner entered into a contract to convey and died before the day fixed for its completion, the executors may allow the purchasers an extension of time in which to complete the contract, if advantageous to the estate, so long as they act honestly and -without negligence.
    3. Same.
    They have power to waive a forfeiture, and* by subsequently completing the contract according to its terms, convey a valid title, though the effect thereof will be to transmute the subject of the contract from real into personal property, and cut off from any share thereof certain persons who might have taken as heirs at law, but could not "take under the statute of distributions because of the remoteness of their relationship to the vendor.
    Appeal from judgment entered after trial at special term.

      J. E. Swanslrom, for app’lt; G. A. Jackson, for def’ts-resp’ts, and Manley A. Raymond, for pl’ffs-resp’ts.
   Yan Brunt,, P. J.

This action was brought to compel a conveyance by the heirs at law of one Catherine M. Me Coslcry of certain real estate contracted to be sold by the deceased in her lifetime ; and for the purpose of determining whether, under the will of said decedent and other instruments referred to, the infant defendant-appellant and others as heirs at law have any beneficial interest in or right to any part of the real estate in question. The trial court adjudged, amongst other things, that no "deed of conveyance by the said heirs at law is necessary; and that they have no interest in the said property and premises in question; and that, consequently, neither said infant nor the defendant, her mother, is entitled to any interest in said property^ or in the proceeds of a sale thereof as heirs at law or otherwise. From this judgment this appeal is taken.

Catherine M. Me Coslcry died in the city of New York on the 22d of April, 1886. Her will was admitted to probate by the surrogate of the.county of New York in February, 1887, and consists of a will executed in December, 1884, and two codicils bearing date respectively September 3d, 1884, and April 12, 1886, The appellant was the daughter of a nephew of the deceased, and, therefore, could not take under the Statute of Distributions, being too far removed in relationship. And the question presented is whether the proceeds of the real estate in question are to be considered as real estate or personal property. As has been already stated, at the time of the death of the testatrix she had contracted to sell the property in question ; the contract providing that the same should be closed on the 18th of March, 1887, and that the purchaser should have the right and privilege of occupying and using said premises as a tenant until said daté, or until the closing and consummation of Said sale if sooner completed. At the end of the contract was a clause which provided that, in case of the failure of the purchaser to complete said contract on or before the 18th of March, 1887, all interest in the said premises and all right and claims to a conveyance thereof should, ipso fació, cease and determine absolutely and the premises should be delivered over to the party of the first part. The contract contained the further provision that the stipulations were to apply to and bind the heirs,- executors, administrators and assigns of the respective parties. Before the time for the completion of this contract the vendor died. Upon the day fixed for its completion the vendees were not ready to, and did not complete the contract. The executors were ready and willing on their part to perform the contract in accordance with its terms and conditions. Upon the last day, within which by its terms the contract was required to be completed, the executors waived the said stipulation by executing an agreement extending the time for the performance of the contract by the vendees. This extension and waiver were given without obtaining the consent of the heirs at law of the deceased vendor. And it is now claimed by the appellant that such extension was without authority and beyond the powers of the executors, and that, by virtue of the clause referred to in the contract, the same ceased to exist and the property became real estate in the hands of the executors, to the proceeds arising from a sale of wrhich the heirs at law of the testatrix were entitled. The argument in support of this proposition seems to be based upon the clause in the contract making the stipulations therein binding upon the heirs, executors, administrators and assigns of the respective parties. It is difficult to see how any additional rights were conferred or limitations imposed upon the personal representatives of the deceased by this clause, which would not have existed by operation of law. It is a familiar principle in reference to the interpretation of contract that, although there are no express words making the same binding upon the personal representatives of the deceased party, yet they may be enforced by and against such representatives ; and the contract is justas binding upon such representatives as though made so by express terms. Therefore the introduction of the clause in question does not seem to have conferred any rights upon the executors of the deceased which they would not otherwise have enjoyed, or to have imposed any restrictions upon their right of action which would not otherwise have existed.

It will not be disputed that even if time was of the essence of the contract, the testatrix in her lifetime would have had the power to have extended such time of completion. And as the rights of the testatrix under this contract descended to her personal representatives, as long as such representatives acted in good faith, it is difficult to see why they did not possess the same powers, they representing the testatrix fully in respect to the obligations and rights under the contract. It is not claimed, had there not been this provision for forfeiture, that the executors would not have had the right to extend the time for the completion of this-contract. If under any circumstances they have the right to-extend the time, how can the insertion of this clause have abridged such right, if any force whatever is to'be given to the clause making the stipulation binding upon the representatives ? It is evident that it was the intention that the stipulations to be performed by the testatrix were to be binding upon her representatives ; not the privileges which were conferred upon such personal representatives. And the question as to whether the enforcement of this contract upon its due date should be insisted upon was a privilege which they might possibly have had the right to enforce, but which was not absolutely certain, because even where time is of the essence of the contract a party may, under some circumstances, be excused from .performance and be allowed to fulfill his obligation subsequently.

We cannot see, upon a consideration of the rights of these parties how it is possible to hold that the executors in respect to this contract did not fully represent the testatrix, and have the right to use their best judgment, as long as they acted honestly and without negligence, upon the question as toi whether these purchasers should be allowed an extension of time to complete a contract-which seems to1 have been advantageous to the estate.

We do not think that there is an}*- question of equitable conversion arising in this case. It is the ordinary case of a contract to purchase, the title to be completed at a certain time ; the vendor dies before the time arrives for its completion, and the executors extend the time in order that the purchaser may complete, and the contract is finally fulfilled. Unfortunate as it may be for this appellant that the result of the contract by the vendor has deprived her of a portion" of the estate of the testatrix, because portions of her will had been declared void, we do not think that the ordinary rules of representation of executors in respect to the contract of their testatrix can be set aside in order that this apparent hardship-may be obviated.'

We are of opinion, therefore, that the claim made by the-appellant that the executors were without authority to extend this time, and that, by force of the provisions of the contract, the property therein described reverted to the estate of the testatrix as real estate, is not well taken.

The judgment appealed from should be affirmed, with costs.

Follett and Parker, JJ., concurs.


author: Truax, J.

text:
    Margaret Ann Frear, Pl'ff, v. Frederick W. Pugsley, as Executors, etc., et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed June, 1894.)

    1. Pleading—Relief.
    A party, though he has demanded too much in his pleading, must never- ■ theless receive the relief to which his proofs show him entitled.

      % Will—Appointment—Delegation.
    An. appointee can delegate the power of appointment given by will.
    3. Same—Suspension.
    Where an appointee who, in addition to her interest for life, has absolute control over the fund, directs that part of the fund be further held for the period of two lives, the. power of alienation is not illegally suspended.
    Action to impress certain funds with a trust in favor of plaintiff and defendant Tompkins.

      Louis V. Booraem, for pl’ff; Frank Hasbrouck, for def’ts. •
   Truax, J.

Alexander Frear died in 1882, leaving his widow, the plaintiff, surviving him. By his will he appointed the plaintiff and the defendants Bartley and Tompkins trustees of certain trusts created in the will. The plaintiff never acted as such trustee. The testator gave to the trustees named in the will $20,000 to be placed on bond and mortgage, and he directed the trustees to apply the income and interest thereof to the use and benefit of his sister, Helen M. Dean, during her life, and gave to his said sister “power and authority to. dispose of said principal sum of $20,000 by last will and testament. ” He made his wife and the defendant Tompkins residuary legatees.

Under the provisions of the will, $16,050 was set aside for the benefit of Helen M. Dean, and during her life she was paid the income of that sum. She died, leaving a last will and testament, by which she appointed her daughter, Sarah A. Watson, executrix and Alfred B. Smith and Frederick W. Pugsley executors of her last will and testament. The material portions of her will, as far as this action is concerned, are the following:

“First. After all my lawful debts are paid and discharged, I give, devise and bequeath to my executors, hereinafter appointed, to hold in trust and to invest and reinvest on first bond and mortgage on real estate, the sum of four thousand, dollars out of the money now held in trust for me by the executors of the estate of Alexander Frear (with the right and power given me to devise by will), and to pay over the income thereof to my daughter, Sarah A. Watson, for the support of her daughter, Adelaide 0. Watson. In case of the death or marriage of the said Adelaide C. Watson, I will and bequeath the said income to' my daughter, Sarah A. Watson, for life, and give to her, said Sarah A. Watson, the right and power to bequeath the said four thousand dollars by her last-will and testament.

“Second. I give, devise and bequeath to my executors hereinafter appointed, to hold in trust' and to invest and reinvest on first bond and mortgage on real estate, one-half of. the money (after deducting the four thousand dollars above bequeathed) which is nov? held by the executors of my brother, Alexander Frear, deceased, in trust for me, and to pay over the income arising therefrom to my daughter, Sarah A. Watson, when so received, during the term of her natural life. I also give to her the right to bequeath the above-mentioned property by her last will and testament.

Third. I give devise and bequeath to my executors, hereinafter appointed, to take and to hold in trust to invest and to reinvest on first bond and mortgage on real estate in Dutchess county, N. Y., the remaining one-half of the money which is held by the executors of my brother, Alexander Frear, deceased (after first deducting from the whole the amount of $4,000 bequeathed in section one of this my will, in trust for me, and to pay over the income arising therefrom to my daughter, Jane F. Phelps, at least once a year during the term of her natural life, and after her death I give it to my daughter, Sarah A. Watson, and, to her heirs in fee.”

All the rest of her estate she gave to her daughter, Sarah A. Watson, “in fee.” Letters testamentary on the above will were issued to Sarah A. Watson, on the 20th of December, 1890.

On the 13th of January, 1891, the defendant Bartley, as executor and trustee under the will of Alexander Frear, delivered to the said Sarah A. Watson, who was at the time sole executrix of the will of Helen M. Dean, deceased, certain securities, amounting to $16,050, which securities formed the trust fund created by and under the will of Alexander Frear for the benefit of Helen M. Dean. Some of these securities Sarah A. Watson collected and applied in various.ways to her own use, principally in the purchase of a house and lot, and some of them remained in her possession at her death. She died/ in August, 1892, leaving her daughter, Adelaide C. Watson, her only heir and next of kin, and also leaving a last will and testament, by which she gave, devised and bequeathed all her property to her said daughter, and by which she appointed her said daughter executrix and Robert E. Taylor executor, bo.th of whom duly qualified.

Adelaide C. Watson died in November, 1893, leaving a last will and testament, by which she appointéd the defendant, Frank Hasbrouck executor, and gave him authority and directed him to sell all the real property of which she died seized and to convert the same into money for the purposes of distribution. She gave all her property, both real and personal, to the defendants Gilbert and Lawsen. The defendant Hasbrouck has duly qualified as such executor.

The plaintiff and the defendant Tompkins seek to have a "trust in their favor impressed'upon the securities turned over as aforesaid by the defendant Bartley, and upon the proceeds of the sale of such of said securities as far as they can be traced, and that the executor of said Helen M. Dean, the executor of said Sarah A. Watson, and the executor of said Adelaide 0. Watson account for such securities and proceeds, and pay over the same, share and share alike, to said plaintiff and sáid Tompkins.

It is contended onvthe part of the defendants, who claim under Helen M. Dean, that, as legatees under the will of Alexander Frear, the plaintiff and the defendant Tompkins have no standing in court to ask for a construction of said will. It is true that said plaintiff and Tompkins do ask for a construction of said will, but a construction of it is not necessary in order to maintain this action, and the plaintiff and the defendant Tompkins should receive that relief that the pleadings and proofs show that they are entitled to receive, although they may have demanded too much. Wetmore v. Porter, 92 N. Y. 80.

FTor strictly speaking, is a construction of the will of Helen M. Dean necessary. All that is necessary as far as that will is concerned, is to determine whether she has or has not availed herself of the power of disposition given to her by the will of Alexander Frear. If she has, judgment should be against the plaintiff ; if she has not, judgment should be in favor of plaintiff and the defendant Tompkins.

It was said by- the court of appeals in Wetmore v. Porter, 92 N. Y. 76, that whoever receives property, knowing that it is the subject of a trust, and has been transferred by the trustee in violation of his duty and power, takes it subject to the right of the cestui que trust to reclaim possession or to recover for its conversion.

It now remains to be seen what power of disposition was given to Helen M. Dean by the will of Alexander Frear. That will gave in trust to his “ executors ” a certain sum of money, the income of which they were to pay to said Helen M. Dean during life, and to said Helen M. Dean was given power and authority to dispose of said sum by last will and testament. She attempted to dispose of it by giving a portion of it to her executors in trust to pay the income of such portion to her daughter, Sarah A. Watson, for the support of her daughter, Adelaide G. Watson, and on the death or marriage of said Adelaide to pay the income of such portion to Sarah for life, with power to said Sarah to “ bequeath such portion by her last will and testament; ” another portion she gave to her executors in trust to collect the income thereof and to pay the same to said Sarah daring her life, with power to said Sarah to “ bequeath such portion by her last will and testament; ” while the remaining portion she gave to her executors in trust to collect the income thereof and to pay the same to the defendant, Jane F. Phelps, during her life, and on her death she gave it to said “ Sarah A. Watson and to her heirs in fee.”

It'is claimed on the part of the plaintiff that the power given by the will of Alexander Frear has not been executed, and that the fund held in trust for Helen M. Dean has become a part of the residuary estate of said Alexander Frear and is to be distributed as such according to the terms of his will.

The plaintiff cites two cases as authorities for the proposition that the above mentioned disposition by Helen M. Dean was not a valid disposition under the will of Alexander Frear, and by a curious coincidence the defendants cite the same two cases as authorities to sustain such dispositions. The cases cited are Crooks v. County of Kings, 97 N. Y. 421, and Maitland v. Baldwin, 70 Hun, 267; 58 St. Rep. 894.

I am of the opinion that the ease "first cited supports the contention of the defendants. The facts in it are as follows: Mrs. Gatin devised certain property to her executor and trustee in trust, to collect the income thereof and to pay the Same to her daughter during her life, with power and authority to her said daughter to dispose of, all and of every part thereof by grant or devise, and in case said daughter should not dispose of the same by grant during life, or by devise at her death, then said estate was to vest in the children of said daughter. The daughter disposed of said property by devising it in trust to her husband to collect the income thereof and to apply the,same to the support of her children during the life of her husband, and on his death to -her children,; with power to said husband to sell and convey all or any portion of said estate. This was held to be a valid execution of the power of disposition contained in the will of Mrs. Gatin. Judge Earl, in his opinioh in the Crooke case, said: “ I see no reason, no principle of law, no rule of public policy which requires us to hold that sucli a disposition as Mrs. Crooke made of the real estate which came from her mother was not a valid execution of the power conferred upon her; and this is so, although we suppose that during her life there was a valid outstanding trust-, and that she took no estate in the land, having simply the absolute power of disposition by will." Judge Earl also referred to the case of Cutting v. Cutting, 86 N. Y. 522, in which case' it appeared that Gertrude Cutting gave a share of her estate to. her executors in trust to receive the rents and prefits thereof for the life of Fulton Cutting, and apply them to his use, with remainder to such person or persons as said Fulton Cutting should appoint by his last will, and in default of such appointment to his children. Fulton Cutting, by his will, appointed that the estate should be conveyed to Walter L. Cutting, to be held by him upon trust for his two sons, and after their death to their lawful issue. Judge Earl said that the question actually determined in the Cutting case could arise only upon the assumption that there had been a valid execution of the testamentary power given to Fulton Cutting. ■

Judge Earl, in conclusion, said: “There is abundant authority for holding that the execution of the absolute testamentary power of disposition given to Mrs Crooke couid be delegated to her husband, and I am confident that there is not a dictum, or even a hint, to be found in any text-book or judicial opinion to the contrary, and to me it is - inconceivable how there could be any." Maitland v. Baldwin has no bearing upon the point now under discussion.

The plaintiff also contends that the provisions of the will of Helen M. Dean are to be read, and have the same legal effect as if they were in the will of Alexander Frear, and that so read, as to part of the fund, there would be illegal suspension of the power of alienation, and that, therefore, the clause relating to the fund, of which she had the power of disposition, being bad in part, would become invalid. I do not think that this contention is valid. Mrs. Dean had absolute control over the fund by will; she could dispose of it as though it were her own. She did dispose of it as though it were her own, and the form that disposition should take is hot at all indicated by the will of Mr. Frear, and does not relate back to that will for any purpose except the power of disposition.

Judgment is ordered for the defendants, except the defendants Bartley and Tompkins, with costs and an extra allowance of §500 to be divided among the defendants.


author: Andrews, J. Andrews, J. Andrews, J.

text:
    Alexander McK. Jones et al., Pl’ffs, v. Caroline Ogden Jones et al., as Trustees, etc., Def’ts.

      (Supreme Court, New York Special Term,

      Filed June, 1894.)

    1. Jurisdiction—Trustees.
    Where the parties in interest are before the Supreme Court, it has jurisdiction to compel the resident trustees to account and pay over any income which shall come into their hands, and convey the real estate and personalty, though both are situated in another state.

      % Will—Construction.
    In such case, the validity of the will and codicil, and the interpretation thereof, must he determined according to the laws of that state.
    3: Same.
    When a legacy is given directly to, or in trust for, several persons, the beneficiaries, being of the same class, take in equal shares.

      4. Trustees—Discretion.
    Where the trustees have a discretion as to how much of the principal ■ and income shall be used from time to time, but whatever amount is used must be equally divided between the beneficiaries, the exercise of such discretion can be interfered with and controlled by the courts.
    8. Same.
    Where their proposal to pay the whole income of the property held in trust to one of the beneficiaries is arbitrary, malicious and unlawful, such act is not a fair and reasonable exercise of the discretion vested in them.
    6. Same.
    Under such a trust clause, the court has no power to compel the trustees to convey the entire trust property to the beneficiaries.
    7. Same—Accounting.
    Power of court to order reference for the purpose of an accounting, and to remove the trustees and appoint others in their stead.
    6. Same—Power of removal.
    The courts of this state can remove trustees appointed by a will, which has been proved in another state, where they reside in this state.
    The trust in question is contained in the codicil of the will of •Caroline Ogden Me Oagg, and is as follows :

      Upon the death of my said sons, William Ogden Jones, Mahlon Ogden Jones or Louis Butler Me Oagg, I direct my said trustees or trustee to give the part or share or parts or shares set apart for the use and benefit of the said deceased son or sons during his or their lives, to my said daughters, Caroline Ogden Jones and Frances Ogden Jones, or the survivor of them then living, to be used by them or the survivor of them, either wholly or in such parts or shares as they or the survivor of them in their or her discretion shall deem desirable for the benefit of the children, if there should be any living, of said deceased son or sons.”

      Johnston & Johnston (.Edward W. S. Johnston, of counsel), for pl’ffs ; Willard Parker Butler, for def’t trustées.
   Andrews, J.

After, a careful examination of the pleadings, evidence and elaborate briefs of counsel, I have reached the following conclusions:

First The court has jurisdiction of the action. The plaintiffs, and the defendant trustees, are residents of this state, Mr. E. W. S. Johnston has been duly appointed guardian ad litem of the infant, William E. Jones. The complaint states that Mrs. Macfie has refused to become a plaintiff, and is therefore made a defendant.

All the parties' in interest are before the court, and the court has jurisdiction if it should see fit to exercise it, to the extent even of compelling the defendant trustees to convey the real estate and personalty, although both are situated in the state of Illinois. It certainly has jurisdiction to compel the resident trustees to account, and to pay over any income which shall come into their hands. That the law is as above stated has been decided in many cases.

Secondly. The court will not decline to entertain jurisdiction of this action, because to do so would be a gross injustice to the plaintiffs.

Several years since the defendant trustees brought an action in the circuit court of Cook county, Illinois, to" obtain a construction of Mrs. Me Cagg’s will, and to obtain partition. The case is reported under the title of Jones v. Jones, in 124 Illinois Reports, 254.

In that action the defendant trustees claimed that the will and codicil did not establish a trust for the benefit of the children of 'Vfilliam Ogden Jones, deceased, but that the one-fifth part of the estate of Mrs. Me Cagg, which had been held' in trust for said William Ogden Jones, was given to said trustees absolutely, and free from any trust in favor of the plaintiffs and Mrs. Macfie. , This claim on the part of the defendant trustees was not sustained by said circuit court, which held, on the contrary, that the will and codicil did establish a trust in favor of the plaintiffs and Mrs. Macfie, and that said one-fifth part of the estate of Mrs. Me Cagg was held in trust by said trustees upon the trusts set forth in the codicil to said will.

Counsel for the defendant trustees now claims that, as the real estate so held in trust is located in the state of Illinois, and the personal property is also held in that state, the validity of the will and codicil, and the interpretation thereof, must be determined according to the laws of that state.

It must be conceded, for the purposes of this case, that this claim is well founded. The property, both real and personal, is undoubtedly situated in the state of Illinois, and although Mrs. Me Cagg had been separated from her husband for many years before her death, and had resided in New York and Newport, and although her will recites that she is a resident of the state of New York, still, as she had never been divorced from Mr. MeCagg, and as he resided in the city of Chicago, it must be conceded that she had no domicile separate from her husband, and that, not only so far as the real estate, but also so far as the personal property is concerned, the validity and interpretation of her will must depend upon the laws of the state of Illinois.

Counsel for the defendant trustees further claims that the court should not entertain jurisdiction of the action, because it will be necessary to pass upon the validity of a trust created under the laws of the state of Illinois. The answer to the contention, is, the court has no occasion to pass upon the validity of the trust. This question, as to the validity of the trust under the laws of Illinois, has been disposed of by the highest court in that state, which has held that the will and codicil do establish a valid trust in favor of the plaintiff and Mrs. Macfie.

Counsel for the defendant trustees, also claims that the court ought not, even if it has the power, to compel the trustees to convey- the real estate and personal property in question, as prayed for in the complaint, because the supreme court of Illinois has decided that they hold such real estate and personal property in trust, and that, although such trust is void under the statutes of New York a decision in this action compelling them to make such conveyance would conflict with the decision of the courts of Illinois in Jones v. Jones, supra. The answer to this contention is that this court is well aware that the judgment in Jones v. Jones, supra, is binding on all the parties to this action, and will not disregard the judgment in Jones v. Jones, supra, and compel the defendant trustees to make such a .conveyance. I see no reason, however, why, if a proper case has been made out, this court should not compel the defendant trustees to account, and to pay over to the plaintiffs, a portion of the income of the property held in trust by them. It is not necessary in disposing of the question of an accounting, and of the payment of income, for this court to determine what the common or statute law of the state of Illinois is, in regard to the creation and validity of trust. The only questions which the court will determine is, whether the defendant trustees have performed their duties in accordance with the judgment rendered in Jones v. Jones, supra ; and whether, if they have not, it will compel them to do so. There was a long litigation in the courts of Illinois, and, as above stated, the defendant trustees contended that no trust existed in favor of the plaintiffs and Mrs. Macfie, but such contention was not sustained, the court holding that the trustees held one-fifth of Mrs. McCagg’s estate in trust for the plaintiffs, and Mrs. Macfie, Since that decision the trustees have for several years refused to pay the plaintiffs any income whatever, and for the court, now, to decline to take jurisdiction of the action, and send these unfortnnate plaintiffs out to the state of Illinois, to obtain their rights through another tedious and expensive litigation, would in my opinion be an act of the grossest injustice to them.

Thirdly. The defendant trustees admit that the decision of the courts of Illinois was as above stated, but their views and intentions as to the execution of the trust devolved upon them by the will and codicil, are set forth at page 65 of the brief of their counsel, in the following language: “We intend to execute it in the following manner, namely, by retaining all of the corpus in our hands and investing and reinvesting it as we think it best not to give any part of the corpus to the children of William Ogden Jones. We intend to pay' all or part of the income as to us ceems wisest to any one of the children to the exclusion of the other two and to accumulate the balance, or as to us seems wisest to pay all or part of it to any two in equal or unequal shares to the exclusion of the other, and accumulate the balance, or we intend ac to us seems wisest to pay all of it, or part of it, to all three in equal or unequal shares and accumulate the balance. For the present however, we propose to pay all of it to Mrs. MacFie, if it seems wisest.”

In my opinion this claim as to the manner in which the defendant trustees are entitled to execute the trust reposed in them finds no support whatever, either in the language of the will or codicil or in the judgments of the court of Illinois or in the opinion rendered by Mr. Justice Shops, of the supreme court of that state, or in the general rules which obtain in the courts of Illinois, and id this and other states, for the construction of wills, or in the circumstances surrounding the execution of the will and codicil of Mrs. McOagg.

It seems to me that the meaning of the codicil as to the manner, 'in which the trustees are to use the principal and income of the trust must be plain enough to any person who really desires to ascertain its meaning; and the courts of Illinois found no difficulty in interpreting it. It plainly declares.that the property held in trust, both principal or income, is to be used for the■ benefit of the three children of William Ogden Jones. The trustees are given a discretion as to the amount of principal and income which shall be used, from time to time, but whatever, either of principal or income is used, must be used for the benefit of the three children, .equally. This is the plain meaning of the codicil, and in my ■opinion it cannot be construed in the manner contended for by the counsel for the defendant trustees.

It is not necessary, however, lo rely upon my own views as to the meaning of the codicil in question, for, as above stated, the question as to the meaning of the codicil has been passed upon by the circuit court of Cook county and the supreme court of the state of Illinois, and the judgment of the former court, which was affirmed by the higher court, is, as I read it, entirely in accordance with the views above expressed. The decree of said circuit court which is to be found on page 258, of 124 Illinois reports, contains the following: “ On the hearing in the circuit court, the court in fixing the rights of the children of William Ogden Jones, deceased, decreed as follows: and that under the .terms and, conditions of said will and the codicil thereto, one equal fifth part of the said estate of Caroline Ogden ¡McCagg, including the real estate owned by her at her decease and hereafter described, is.to be given to the said Caroline Ogden Jones .and Frances Ogden Jones jointly as trustees for them and the survivor of them, to use for the benefit of the said defendants, Alexander M. Jones, Julia H. Jones, and William E. Jones, the children of William Ogden Jones, deceased, with power as such trustees and such survivor to use the said fifth part or share either wholly for the benefit of said children, in equal parts or ■shares, or to use the same in such parts or shares for the benefit of said children respectively as they, the said trustees, or the survivor of them, shall in their, or her discretion, deem desirable.” It seems to me impossible to construe the language above quoted as meaning that the trustees have any such discretion, as, according to the above statement of their counsel, is claimed by them. The opinion of Mr. Justice Shops, of the supreme court of Illinois, shows that he did not consider that the trustees have any such discretion as they claim to have. In the course of his opinion, after quoting the language of the codicil, he said: “This language precludes the idea of an intention to make an absolute gift of such share to the daughters. The share was to be used by them for the benefit of the children. The purpose for which the ■daughters are to take is definitely fixed by the language employed. It is for the use of the children of the deceased son * * * it is apparent, we think, that this fifth share was by the will and ■codicil placed in the hands of the daughters in trust to be used by them for the benefit of the children of the deceased son. * * * Much stress is laid upon the words “ wholly or in such parts as they (the trustees) or the survivor of them in their or her discretion shall deem desirable, etc.” It is- evident, we think, that testatrix had in contemplation, one son already having, died, that there might be the death of others before her decease, and intended making a provision that would apply in that event to the shares of each of such sons. As to the children of William, they being minors, the daughters, as their trustees, might apply this share wholly at oifce for their benefit, or in such parts as they might deem most beneficial to them. The trustees were made the judges of what use of the estate was most for their benefit. Undoubtedly if they deem it most desirable they had discretion to invest the fund in their hands for the use and benefit of the cestui que trusts or to provide for their support and education, expending such sums therefor as to them might seem desirable.”

The question which the circuit court and the supreme court has before them was whether the codicil established a valid trust, and, if so, what was the nature of that trust, but neither in the decree of the circuit court, which was affirmed by the supreme court, nor in the opinion of the supreme court, is there one solitary expression which tends to support the claim of the defendant trustees, as to the manner in which they are empowered to execute the trust in question. On the contrary the decree of the circuit court which was affirmed and the opinion of Mr. Justice Shope plainly show that both courts considered that the property was held in trust for the equal benefit of the three children, and it seems to me that the claim of defendant’s counsel, /that if the trustees had seen fit to pay over the whole corpus of the estate at once to the three children they must have given to each an equal one-third, but as they saw fit to retain the corpus, and pay over the income only, they can pay the whole of such income to one child, without paying anything whatever to the other two, is to say the least, a most extraordinary and illogical one.

It has been decided over and over again, in this and other states, that when a legacy is given directly to, or in trust for, several persons, the beneficiaries, being of the same class, take in equal shares ; and I see no reason why the rule so universally laid down is not applicable to the present case. Moreover, the-circumstances surrounding the making of the codicil, if they are to be taken into account, indicate that the true construction of the codicil is as above stated. William Ogden Jones, the father of the plaintiffs and the defendant Mrs. Macfie, had died, and according to the terms of the original will of Mrs. McCagg, his children would have received nothing. Thereupon, the testatrix executed the codicil, for the express purpose, among other things,, of making provision for the three children of her said deceased son. With regard to this point Mr. Justice Shope in his opinion states as follows : “ If the testatrix had intended no provision for the benefit of the children of her deceased son, there was no necessity for revoking the sixth clause of the will, or of changing the fourth. The precise result contended for by appellants could have occurred if the codicil had not been made, so far as the effect upon the children of the deceased son is concerned. The will and the codicil are to be construed together, in the light of the circumstances surrounding the estate and the testatrix, at the time they were severally made. As before stated it is to be presumed that in making the change in her will in respect to her grandchildren, she designed and intended to change the disposition of her estate as to'them and understood and intended that the language employed by her should have the legitimate and recognized effect in producing that result.”

It is incredible to me that the testatrix,’while making this codicil, for the express purpose of providing for ’the three children of her deceased son, should have intended to so discriminate between them, as to put it in the power of the trustees to use the one fifth of her estate, given to them in trust, principal and interest, for the sole benefit of one of said three grandchildren, to the entire exclusion of the other two; and I do not believe that the lánguage of the codicil ought to be, or can be, so construed. The trustees, as above stated, undoubtedly have a discretion as to how much of the principal and income shall be used from time to time, but whatever amount is used, whether of principal or income, must be divided equally between the three children.

Fourthly. The counsel of the defendant trustees claim that the exercise of the discretion, vested in them by the codicil, cannot be interfered with, or controlled, by the courts, but I regard this position as wholly untenable.

The defendant trustees profess great anxiety that their rights in all respects shall be determined according to the laws of the state of Illinois, and not according to those of the state of New York. It is well, therefore, to refer to what Mr. Justice Shops, of the supreme court, said upon this subject. At page 264, his opinion reads as follows: “ The share thus set apart was not to be paid over to the daughters absolutely, or for their own benefit, but for the use designated by the doner in the creation of the trust. The daughters, as trustees of this share, are not invested with discretion to withhold the trust fund absolutely from the cestui qui irustent. The fund is not theirs' in equity, and they cannot make it so by a refusal or neglect to exercise the discretion vested in them. Their discretion as trustees of this fund is subject to the control of the courts of equity, and cannot be arbitrarily exercised so as to deprive the beneficiaries of all benefit of the fund. * * * But it is unnecessary to discuss this branch of the subject, as the decree of the court does not seek to interfere with the discretion vested in the appellants or direct the manner of its exercise. When that discretion is abused, if it ever is, will be time for a court of equity to interfere.”

Many pages of the brief of the learned counsel for the defendant trustees are occupied with quotations from decisions in cases where it has been held that courts of equity would not interfere with the exercise of the discretion vesfed in trustees. These cases, although cited on behalf of the defendant trustees are the very best authorities that could be cited on behalf of the plaintiffs, for, in every case it is expressly stated, or it is to be fairly implied from the language used that the rule invoked on behalf of the defendant trustees has no application in cases where trustees either abuse the discretion vested in them or act in bad faith.

Fifthly. I have carefully examined the evidence in this case, and I feel constrained to say that in my opinion it is abundantly proven that the defendant trustees have not only abused the discretion vested in them by the testatrix, but that they have also acted in bad faith, in withholding all income from the plaintiffs.

With regard to the plaintiff Alexander McK Jones, it appears that all income has been withheld from him for a number of years, because he married contrary to the wishes of the trustees. His account of the matter is somewhat different from that given by Miss Caroline Ogden Jones in her deposition. He testified in open court that he consulted his aunt in reference to his proposed marriage, and that she consented to it, and said that she would do whatever she could for him; but that afterwards, and when he had become engaged to the lady, whom he afterwards married, the aunt forbade the marriage. That, under the circumstances, feeling himself in honor bound to carry out his contract of marriage, he accordingly was married to the lady of his choice. Miss Jones testified in her deposition that she never consented to the marriage, but that she forbade it at the outset, because of his youth and certain mental and physical infirmities, and told Alexander that if he did marry she would withhold all income from him; and that, the marriage having taken place, she did after-wards withhold all income from him, and for the reason that he had married contrary to her wishes. She does not testify that the lady in question was not an entirely proper person for said Alexander to marry, if he married at all, and the appearance of said lady upon the witness stand satisfied me that no just exception to her person or character could be taken. The appearance of saiil Alexander, aláo, upon the witness stand, taken in connection with his testimony, and that of the physician, convinced, me that he should "have been allowed to decide the marriage question without the interference of the trustees, and that the fact that he did marry against their wishes furnished no reasonable ground for withholding all income from him.

With regard to the plaintiff, William E. Jones, there are some slight variances between the testimony given by bis mother in court and that given by Miss Caroline Ogden Jones in her deposition. They both testify, however, in substance, that Miss Jones and the mother of William E. disagreed in regard to the schooling and residence. The mother desired that he should reside with her, and should go to schools of her selection. The aunt desired that he should be sent away to school with a tutor, and the aunt testiried that, because her wishes in this regard were not respected, she withheld all income from the said William E. Jones.

Leaving out entirely the testimony given by Alexander McK. Jones and his mother and William'E. Jones, and assuming that the evidence given by Miss Caroline Ogden Jones in her deposition is strictly true, I regret that I am obliged to say that her evidence conclusively shows that her refusal to pay any income to the plaintiffs, and her proposal to pay the whole income of the property held in trust by her and her sister to Mrs. Macfie, was an arbitrary, malicious and unlawful act. Such act wag not a reasonable and fair exercise of the discretion vested in the trustees as to the amount of the principal and income of the trust fund which should be divided between the three children, but an unwarranted and vindictive punishment of one of the plaintiffs because he had married contrary to the wishes of the trustees, and of the other plaintiff (a young boy) because his mother desired to have, and did have, something to say in regard to his schooling, and also desired to keep, and did keep, him -with her, instead of sending him off with a tutor, among strangers.

In my opinion this conduct on the part of the trustees would have justified the court, upon a proper application, in summarily removing them and in appointing others in their places, and it now makes it the duty of this court to exercise all the powers it possesses to redress this great wrong on the part of -the trustees.

Sixthly. The next question is as to what power the court possesses in this regard, and upon this point I am compelled to differ with the learned counsel for the plaintiffs, whose contention that the court has the power to compel the trustees to convey the entire trust property to the plaintiffs and Mrs. Macfie, seems to me to be wholly untenable.

As above stated, the property consists, in part, of real estate situated in the state of Illinois, and, in part, of personal property, which is also held in that state.

Counsel for the plaintiffs claims that the fee of said real estate, and the title to such personalty, is vested in the three children of William Ogden Jones. This view, however, is contrary to the plain meaning of the codicil, and the decisions of the courts of Illinois. The codicil provides, among other things, that, upon the death of William Ogden Jones, the father of the plaintiffs, and Mrs. Macfie, the trustees named in the will, shall give the part or share set apart for the use and benefit of the said deceased son, to the defendant trustees to be used for the benefit of his children. Moreover, the said three children were parties to the above mentioned suit, brought in the circuit court of, Cook county, Illinois, and they are bound by the judgment rendered in that action; and the decree entered therein declared that all said one-fifth of the estate of Mrs. McCagg, is held in trust by the defendant trustees for the benefit of said three children, with certain discretionary powers. Mr. Justice Shops, of the supreme court, in his opinion, at page 265. says: “ Both the daughters taking this share in trust for the children of the deceased son William are living, and it is unnecessary to discuss or decide whether they hold as joint tenants or not. It is enough that they took no beneficial interest therein, but simply held the same' in trust for the defendants, children of the deceased brother, William. It may, however, be added that, as the survivor is required to use this share for the use and the benefit of the children indicated, it is manifest that it was to be kept intact for such use, for if each of the trustees took an equal part, the survivor would be unable, or might be, to use the whole for the benefit of the cesiuis qui Iruslent.

It is true that the codicil does not in terms state what disposition is to be made after the death of the surviving trustee, nor does it, in terms, provide what shall become of the property in case of the death of one or more of the children. The failure of the codicil to expressly declare what shall become of the property in these two events does not affect the fact that, at the present time, the title of the real and personal property is vested in the defendant trustees, upon certain trusts, and with certain powers, and that the plaintiffs and Mrs. Macfie have no present right to have the property conveyed to them. The question as to the final disposition of the property upon the death of the surviving trustee, and as to what shall become of it in case of the death of one or more of the children, will not, I imagine, prove to be questions of difficulty, when they shall arise, but they are not involved in the present inquiry and I express no opinion in regard to them, but leave them for future determination when they shall arise.

Seventhly. It does not follow, however, that the court is powerless to redress what I regard as a wrong done to the plaintiffs. It undoubtedly has the power to order a reference for the purpose, first, of taking an accounting of the acts of the trustees in relation of the trust property, and of ascertaining how much income they have received and how much they have paid out, and how much they have on hand, and secondly, of ascertaining how much of the income or principal or of both is necessary for the suitable support of the plaintiffs.

Upon the coming in of the report of the referee the court will also have the power, if it sees fit, under the prayer of the complaint for further relief, to remove the trustees, and appoint others in their stead, and to direct payment of such amount as shall be neeessary for the support of the plaintiffs: or it may leave the present trustees in office, and compel them to make payment of such amount. Moreover, as the trustees admit that they have on hand many thousand dollars of unapplied income, and as it does not require any further testimony to satisfy me that it is absolutely necessary that the plaintiffs should receive something at once for their support, I see no reason why the interlocutory judgment to be entered should not direct the immediate payment of some amount.

Eighthly. As plaintiff’s findings are not all drawn in accordance with this opinion, their counsel may submit further findings if they see fit, or, if they do not desire to do so, they canso notify me, and I will then so dispose of the case upon the findings already submittted.

¡Ninthly. Some of the testimony given by Charles H. Holt, under the commission which was put in evidence, seems to me to be immaterial; and' some of it seems to me to be incompetent, but in view of the disposition, which, as indicated in the foregoing opinion, I think should be made of the case, I have concluded to overrule the objections of plaintiff’s counsel to the 8th, 9th, 10th, 11th, 12th, 14th, 15,th and 16th interrogatories which were administered to said Holt, and to deny the motion to strike out the several answers thereto. The record will indicate that plaintiffs’ counsel has an exception to each of such rulings.

After the rendition of the foregoing opinion judgment was entered removing the trustees and then such trustees and the defendant Macfie made separate motions to vacate such judgment, and the following opinions were handed down :

Andrews, J.

This is a motion made by the defendant trustees to vacate the judgment heretofore entered.

First: It is claimed that this motion should be granted because said trustees were removed entirely on ex parte proceedings, without being given a day in court, and without being permitted to offer any evidence in justification of their acts.

1 am wholly unable to understand upon what ground this claim is made by the counsel for the defendant trustees.

The complaint in this case did not charge that the defendant trustees had appropriated any of the trust funds to their own use, but it did charge gross misconduct on their part, in refusing, for frivolous reasons, to pay over to the plaintiffs any portion of the principal of the trust funds in their bands, or the interest received by them thereon. The prayer of the complaint was that the said trustees should be compelled to pay over to the plaintiffs and the deféndant McFie, the whole of such trust fund. This was not in terms a prayer for the removal of defendant trustees, but it was equivalent to such a prayer; for if the defendant trustees had been compelled by the court to turn over the whole fund to the plaintiffs and the deféndant Mrs. McFie, they would have been, in effect, removed from their position as trustees, for they would have no further functions for them to perform, as such trustees.

The case was brought on for hearing at the regular special term, and testimony was taken upon both sides. The deposition of the defendant, Miss Caroline Ogden Jones was read in evidence, in which she went into an elaborate statement of her conduct as such trustee, and sought to justify all that had been done, and not done, by her and her sister, in the execution, and non-execution, of the trust. Very elaborate briefs were submitted on both sides. The brief of the counsel for such trustees, ac.cording to my recollection covered between sixty and seventy pages of printed matter and in that brief he not only claimed that the court had no jurisdiction of the action, but that, if it had jurisdiction it should decline to entertain it, and he also made an elaborate argument, in which he sought to show that the defendant trustees were entirely justified in doing what-they had done, and in refusing to do what they had not done. The case was most carefully considered by me, not only with reference to the question of jurisdiction, but with reference to the merits. The result of my consideration was embodied in a somewhat lengthy opinion, in which I stated that I thought the conduct of the trustees would have justified the court in summarily removing them, I also further stated that, while I did not agree with counsel for the plaintiffs in their claim that the trustees could be compelled to convey the trust fund to plaintiff and Mrs. McFie, I was of the opinion that the court could order an accounting and compel the trustees to pay over to the plaintiffs some portion of the income received from the trust property and could, under the prayer for general relief contained in the complaint, remove the trustees, if it saw7 fit to do so. Subsequently judgment was entered herein, and if there ever was a case in which the defendants had a full and fair trial, upon the merits, and received a most careful consideration of their case, this is such a one; and I see no reason whatever, why the judgment entered herein should be vacated, upon the ground above suggested.

Second: It is claimed that the judgment should be vacated because the action was not to bring about the removal of the trustees, but simply one to compel them to perform a trust.

This claim has been fully answered in what 1ms been herein-before stated. Although the complaint did not in terms pray for the removal of the trustees, it did allege misconduct on their part, in refusing to pay to the plaintiffs any portion of the principal, or income, and did pray that the court should compel them to turn over the whole fund, principal and interest, to the plaintiffs and the defendant, Mrs. McFie. This was certainly equivalent to a prayer for their removal, because if such relief had been granted, they would have no further functions to discharge as trustees; and under the prayer for further relief, while the court held that the plaintiffs could not have the property turned over to themselves and Mrs. McFie it also held that it could remove the trustees, and appoint others in their places, who would honestly and fairly execute the trust, created by the will of the testatrix.

Thirdly: It is also objected that this court has no power to remove a trustee created by the will of a citizen of a foreign state, never proved in this state.

It is true, as claimed by counsel, that the courts of this state cannot remove, or exercise disciplinary control over a foreign executor. The rule, however, is otherwise as to trustees appointed by a will, which has been proved in another state, who reside in this state. This the doctrine is laid down in Perry on Trusts, and is fully supported by the cases there cited.

Fourthly: It is objected that the New York supreme court has no power to remove the defendants, because such power is given by statute, and is expressly limited to the" cases covered by the statute and that the case at bar is not one of them.

The answer to this proposition is, that the defendant trustees were not removed under and pursuant to the power given by statute, but under the general inherent power which courts of equity have over Trusts and trustees.

Fifthly: The judgment herein was duly and regularly entered, after a trial at the special term., and the remedy of the defendant, trustees, if they feel aggrieved thereby, is not by a motion of this character but by an appeal from the judgment.

Sixthly: The motion should in all respects, be denied without' costs. The order will be settled on notice.

Andrews, J.

This is a motion made by the defendant Mrs. McFie to vacate the judgment heretofore entered herein.

The general objections to such judgment made by the counsel for McFie have been answered in a memorandum filed herewith, upon the motion made on behalf of the defendant trustees to vacate such judgment, and it is unnecessary to repeat what is stated in that memorandum.

The counsel of the defendant Mrs. McFie makes a further objection to the persons who have been appointed trustees in place-of the original trustees. No suggestion whatever is made against the personal character or ability to discharge the trust of either of such new trustees, nor is any suggestion made that the bond of $250,000, which they have been required to give, is not amply sufficient to protect the interests of all the cestui qui trustent. It is objected, however, that such new trustees are not friendly to" Mrs. McFie, but after examining all the papers which have been submitted on this motion I am satisfied that this objection has no foundation, and is not made in good faith. It appears that Dr. L. White since the commencement of this action has acted as the physician of Mrs. McFie, and has been and is now on friendly terms with her. I am also satisfied that Mr. Johnston has no personal ill-will against Mrs. Me Fie, and has heretofore been upon friendly terms with her, and that he can and will act with entire impartiality as between her and the plaintiffs.

It is moreover impossible for me to see how .the new trustees-if they were so disposed could do any injustice to Mrs. Me Fie.

The judgment entered herein adjudicates that each of the plaintiffs and. Mrs. McFie, have equal rights to the trust fund,. both principal and interest and that while the trustees have a certain discretion as to the amount which they will pay over to the cestue qui irustent from time to time, whatever sum either of principal or interest is paid over, must be divided equally between the plaintiffs and Mrs. Me Fie. The new trustees therefore cannot, if they were so'disposed, under the terms of the judgment, discriminate in any way against Mrs. Me Fie and I see no reason why either of them should be removed.

The motion will be denied without costs and the order will be settled on notice.


author: Bradley, J.

text:
    M. Wallace Clarke, Pl’ff, v. Eliza W. Clarke, Individually and as Administratrix, etc., Def’t.

      (Supreme Court, Monroe Equity Term,

      Filed January, 1894.)

    1, Parties—Common interest.
    Where the heirs of a testator are quite numerous and their places of residence are somewhat remote from each other, and the question is one of common interest, the case falls within the rule which permits one of them to sue for the benefit of all.
    S. Executors—Taxes—Lies tenant.
    The life tenant must keep "down the taxes, and the rents and profits of the life estate may be deemed charged with that burden, unless it appears by the will that the testator, in creating the estate, manifested a purpose to the contrary.
    Action for judicial direction that the payment of taxes upon certain premises be paid from the rents, issues and profits, and that a receiver be appointed for such purpose.

      Dunmore & Sholes, for pl’ff; Fanning & Williams and Theodore Bacon, for def’t.
   Bradley, J.

The plaintiff is one of the heirs at law of David Clarke, who died in 1874, leaving a will, which was admitted to probate, and letters testamentary were issued to Ezra Jones, who was nominated as executor by the will. He continued to act as such until in December, 1878, when he was removed from such relation, and letters of administration with the will annexed were granted to Eliza W. Clarke, the defendant, -who xvas the widow of the testator.

By his will he gave his wife (the defendant) $700 and the household furniture and personal property in the homestead premises, except certain specified portions thereof bequeathed to others. He also devised to her for her use during her life such homestead premises, which consisted of a house and lot situated in the city of Rochester, N. Y., or so long as she should remain his widow. He also directed the executor to pay her an annuity of $400 in quarterly payments during her life. The bequests and devise to her were in lieu of dower.

He made some further bequests to several persons, to be paid after the decease of his wife. He devised and bequeathed all the rest and residue of his estate, real and personal, to the executor as trustee, with power to sell and make distribution among his heirs, they to take as if he had died intestate.

It appears by the complaint that the plaintiff brought this action “as well in his own behalf as in behalf of the other heirs at law and next of kin of David Clarke, deceased, having a common and general interest with this plaintiff in the real estate,” described in the complaint as the house and lot before mentioned.

The first question that arises is whether the plaintiff can, without the presence of other heirs as parties, maintain this action for the purpose of the relief sought by it. ,

The heirs of the testator are quite numerous, and their places of residence are somewhat remote from that of the plaintiff, and from those of each other. ,The statute provides that where the question is one of common or general interest of many persons, or where thp persons who might be made parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. Code. § 448. Those are exceptions to the general rule that those who are united in interest must be joined as plaintiffs or defendants, or that those of them who otherwise should be plaintiffs and refuse to become such may be made defendants. Id. And there is a further provision of the statute that “where a complete determination of the controversy cannot be had without the presence of other -parties, the court must direct them to be brought in.” Id. § 452. In the present case the only question legitimately and necessarily for determination is whether or not the taxes and assessments upon the premises, during the continuance of the life estate in them of the widow of the testator, are, as between her and his heirs, chargeable upon the rents and profits of the real estate. If they are not, the burden falls upon the estate in remainder, or those who are interested in it. In that respect the question is one of common interest of the heirs, and in view of the fact that there are many, the case would seem to come within the rule which permits one of them to sue for the benefit of all. Farnam v. Barnum, 2 How. Pr. (N. S.) 396; McKenzie v. L'Amoureaux, 11 Barb. 516; Kerr v. Blodgett, 48 N. Y. 62 ; Prouty v. Michigan S. & N. I. R. R. Co., 4 T. & C. 230; Brown v. Ricketts, 3 Johns. Ch. 553.

No diverse interests of the heirs in the controversy can arise upon the question before mentioned as between them and the defendant, and in that respect there is and can be no controversy about the construction of the will. They take the residue, and their interest in the question of the payment of the taxes is that •of all of them in commón.

In that respect the present case differs from that of Bear v. Am. Rap. T. Co., 36 Hun, 400. There the persons not made parties plaintiff, and who had joined in the agreement of transfer to the trustees, may not have deemed the relief sought to be for their interest, but, as said by the court, they might elect to continue the trustees in their offices. The question was not one of common or general interest of all of them, and, therefore, a complete determination of the controversy could not be had without the presence of all the parties to the agreement. The Other cases cited on this question on the part of the defendant do not require any special consideration.

The view taken is that the action was properly brought for the purposes of the relief sought.

The more important question is whether the life estate in the premises is chargeable with the taxes assessed upon them during its continuance. The general rule is that it is the duty of the life tenant to keep down the taxes, and the rents and profits of the life estate may be deemed charged with that burden. Cairns v, Chabert, 3 Edw. Ch. 312.

And that the doctrine is applicable to this case, unless it appears by the will that the testator, in creating the estate, manifested a purpose to the contrary. If it appears that his intention was that the life tenant and her estate should be relieved from that burden, she is not, nor are the rents and profits, chargeable with it during her life. Gerard Real Est. (3d ed.) 142; Mosely v. Marshall, 22 N. Y. 200; Deraismes v. Deraismes, 72 id. 154. Upon this subject the testator directed that the taxes, repairs, necessary improvements and insurance be paid by the executor from the general estate wdthout burden or charge upon the annuity given to his wife. This was qualified by the further provision of the will that, in case she should “ rent the whole or any part of the said homestead, she shall pay a part of the taxes, insurance and repairs, proportioned to the part so rented,” and that the executor should retain for that purpose such proportionate share from her annuity given to her by the will. These provisions, except in the event last mentioned, clearly indicate the intent and purpose of the testator that his wife should not be burdened with the payment of taxes assessed upon the premises. The testator seems to have contemplated that his estate, other than this homstead lot, would be such as to enable the executor to pay not only such taxes, but the annuity to his wife also. The situation turned out quite differently. The entire estate, other than the premises in question, was exhausted, and nothing remained with which to keep down the taxes, nor any personal property with which to pay such annuity. The defendant elects to occupy and not rent the premises, or any portion of them. It is urged on the part of the plaintiff that, in view of the purpose of the testator (founded upon his expectation that his personal property would be sufficient for the purpose) that the taxes should be paid by the executor, the remaindermen cannot be charged because no intent on his part that they should pay them is manifested by the will; and, therefore, since his personal representative is without funds to pay them, the situation is the same as it would have been if no reference had been made to the subject of taxes by the testator. Such conclusion is not apparent

If the testator intended that his wife and her life estate should not be burdened witli the payment of taxes, the manner he expected such relief would be accomplished, and its failure, are not very important for the purpose of the question here, unless it also appears that he intended that, in any event, the remainder and its beneficiaries should be relieved from the burden of taxes assessed during the life estate. It may be asumed that the testator expected that neither the life tenant or the remaindermen would be charged with their payment during the precedent estate. But the reason for his purpose that she should not be required to pay taxes evidently arose from his desire that his,,widow should, unmolested by such burden, be permitted, during her life, to enjoy the use of the premises as a home. And it is fairly inferable that upon the faith of the provisions of the will in this and other respects beneficial to her she accepted the devise and bequests in lieu of dower.

In Isenhart v. Brown, 1 Edw. Ch. 411, the vice-chancellor said the provision made for her in lieu of her right of dower “ is the price put by the testator himself upon that right, and which she is at liberty to accept. Her relinquishmént of dower forms a valuable consideration for the testamentary gifts. In this point of view she becomes a purchaser of the property left to her by the will.”

In the present case nothing appears to indicate any intent on the part of the testator that the beneficial enjoyment by the life tenant of the premises, if she chose to occupy them, should, in any event, be qualified by the burden of keeping down the taxes in behalf of the remaindermen. But he simply made his heirs the beneficiaries of the residue of his estate remaining after the death of his wife, the life tenant.

The conclusion is that she is not, nor are the rents and profits of the premises, during the continuance of her estate, chargeable with the taxes, as between her and such heirs.

The complaint should, therefore, be dismissed, with costs.


author: Sedgwick, Ch. J.

text:
    George Lewis Prentiss, as General Guardian, etc., Resp’t, v. Ellen Bowden, App’lt.

      (New York Superior Court, General Term,

      Filed May, 1894.)

    Time—Computation.
    Courts take notice of the fractions of a day when there are conflicting rights, for the determination of which it is necessary for them to do so.
    Appeal by defendant from judgment entered upon the decision of a judge at special term.

      Benjamin Pattepson and George Bell, for app’lt; William B. Wilder, for resp’t.
   Sedgwick, Ch. J.

The action was in the nature of a creditor’s bill, designed to reach real property that had been conveyed by the debtor to the defendant. The plaintiff, in order to succeed in the action, had to prove that an execution had been issued against the debtor’s property and had been returned unsatisfied. Adsit v. Butler, 87 N. Y. 585. An execution had been issued and returned, but it was void. It had been levied on the day of the debtor’s death, and about five hours after his death. Section 1879 of the Code of Civil Procedure forbids that being" done. Wallace v. Swinton, 64 N. Y. 188.

The counsel for respondent invokes the principle by which, in certain cases, courts do not take notice of the fractions óf a day. They do, however, take notice of them when therfe are conflicting rights, for the determination of which it is necessary for them to do so. Broom’s Leg. Max. 134. First and last, the fact that the judgment debtor had died would be decisive that an execution could not issue.

For this reason the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

Freedmah and Mo Adam, JJ., concur.


author: Bischoff, J.

text:
    Maria L. Winterson, Pl’ff, v. Hector M. Hitchings et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed June, 1894.)

    1. Appeal — Reversal — Restitution.
    An action to annul a sale under an execution upon a judgment subsequently reversed is maintainable, unless the purchaser is one in good faith and without notice of defects in the judgment under which the sale was made.
    3. Same—Assignee — Attorney.
    An assignee of the judgment and the attorney for the judgment creditor are chargeable with notice of any defect in the proceedings.
    ■3. Same—Second judgment.
    Where a judgment is again recovered on a second trial, such relief will only be extended upon satisfaction of the demand under the second judgment.
    4, Pleading — Complaint — Demurrer—Equity.
    A complaint in an equity action is not demurrable for the reason that it does not contain an express oiler to do equity.
    Issue of law arising upon a demurrer to the complaint for insufficiency. Action to annul, by way of restitution, a sale of plaintiff’s real property under an execution issued upon a judgment which was subsequently reversed by the appellate court;

      H. F. & H. G. Bullard, for pl’ff ; Hector M. Hiichings, for def’ts.
   Bischoff, J.

The purport of this action is to set aside a sale ■of the plaintiff’s real property under an execution issued upon a judgment of the city court of Hew York, which was subsequently reversed on appeal to this court Defendant Hitchings, the purchaser at the sale, was the attorney for the judgment creditor, and to him the judgment is alleged to have been assigned after issuance of the execution by him as attorney, and prior to the sale. The sheriff’s deed to the purchaser remains undelivered," and the judgment debtor continues in possession of the property sold. Therefore, the annulment of the sale is the specific relief which the plaintiff seeks by way of restitution.

The complaint states that upon a new trial, after reversal of the judgment under which the sale was had, recovery was again had by the plaintiff in the city court action, and that it is the intention of the plaintiff in this action to appeal from such second judgment. It is not alleged that the second judgment is secured upon appeal; neither does the plaintiff aver that she tendered the amount of the second judgment" before the institution of this action, or that she is ready and willing to pay said amount if she is accorded the relief sought by her. The defendant Hitchings has demurred to the complaint, upon the ground that the facts alleged are insufficient, in law, to constitute a cause of action.

No doubt exists respecting the plaintiff’s right to seek restitution by action, the provisions 6f the Code of Civil Procedure for the relief upon summary application being cumulative and not exclusive, Haebler v. Myers, 132 N. Y. 363 ; 44 St. Rep. 403 ; Clarke v. Pinney, 6 Cowen, 297; Duncan v. Ware, 24 Am. Dec., 772 ; Maghee v. Kellogg, 24 Wend. 32; and the annulment of the sale under an execution issued upon a judgment which was sub-subsequently reversed is in the nature of restitution. McJillon v. Love, 54 Am. Dec. 449. • Such annulment is authorized, unless the purchaser is one in good faith and without notice of defects in the judgment under which the sale was made. Id. The assignee of the judgment is, by force of the assignment to him, a party to the record, and as such party chargeable with notice of any defect in the proceedings. If he has purchased the property of the judgment debtor at a sale under an execution issued at his instance, he may be divested of the title to the property so acquired upon reversal of the judgment McJillon v. Love, supra; Reynolds v. Harris, 14 Cal. 667; Black on Judgments, vol, 2, § 955. Furthermore, the attorney for the judgment creditor is assumed ,to have notice of the same defects, and if he becomes the purchaser under the judgment upon a sale directed by him, he stands in no better position than does his client. Simonds v. Catlin, 2 Caines’ R. 61; Galpin v. Page, 18 Wallace (U. S.) 350, 373.

The complaint, then, as to the sale under the first judgment, presents a cause of action against the defendant, but consideration must be given to the further allegation that a second judgment, now undisturbed, was rendered in the judgment creditor’s favor in the city court action. Until reversed or set aside this second judgment is to be considered valid. No presumption is allowable that the judgment debtor will be successful upon her appeal. Carman v. Pultz, 21 N. Y. 547 ; Hawes on Jurisdiction of Courts, § 257.

Had the judgment debtor’s property been sold under the first j udgment to a stranger to the record, and the avails applied towards the satisfaction of the judgment, the measure of the restitution to which the plaintiff would have become entitled upon reversal of the judgment, would have been in the excess of the sum received by the judgment creditor over the amount of his second recovery, Marshall v. Macy, 9 Week. Dig. 21; and having voluntarily come into equity to apply for relief, the plaintiff in this ac tion will be deemed to have submitted herself to the invocation of the rule that he who seeks equity must do equity. Pomeroy’s Eq. Jur., § 385, etc.; Beach on Modern Eq. Jur., §§ 13,137; Tuthill v. Morris, 81 N. Y. 94, 100; Thomas et al. v. Evans et al., 105 N. Y. 606, 614; 8 St. Rep. 647. Accordingly the relief which she seeks to obtain will only be extended to the plaintiff upon satisfaction of the defendant’s demand under the second judgment.

The equitable rule alluded to$ however, is not one of pleading and pertains only to the administration of the relief to be awarded. Hence it is not necessary to aver in the complaint that the plaintiff has tendered the sum owing by her, or that she is ready and willing to pay it. In this the rule is to be distinguished from the rule applicable to pleading which requires an allegation of performance of a condition precedent to the right to institute and maintain an action. That in an action for equitable relief the plaintiff is not required to allege that he is prepared to do equity was held in Hay v. Hay, 13 Hun, 315, in which case a demurrer based upon the absence of such an allegation was overruled. In this regard I cannot do better than to refer counsel to the views expressed by the learned annotator in the note to Metropolitan El. Ry Co. v. Manhattan Ry Co., 14 Abb. N. C., 103, 307: “A question closely connected with this subject is whether a bill in which an offer to do equity is not made is open to a demurrer. In Gould v. Cayuga Co. Nat. Bank, 86 N. Y., 83, it was held that in an equitable action such an offer was sufficient, but the question whether an omission made the bill demurrable was not before the court. In the case of Hay v. Hay, 13 Hun, 315, the question was answered in the negative. The court held that, while the condition to return the property received will be imposed, whether there be an offer in the complaint or not, it must be considered as merely a condition for granting relief, not of instituting the suit, This seems to be in harmony with the general rule of equity pleading. See Town of Venice v. Woodruff, 62 N. Y., 462, 471; Quin v. Brittain, 1 Hoffm. Ch., 353; Whelan v. Reilly, 61 Mo., 569; 2 Story Eq., 693, 694.

What has been said leads to the conclusion that the complaint is not assailable for insufficiency. The demurrer must, therefore, be overruled. Defendant may have leave to answer upon payment of the costs of the demurrer.


author: Per Curiam.

text:
    Julia Stanton, Resp’t, v. The Supreme Council of the Catholic Mutual Benefit Association, App’lt.

      (Buffalo Superior Court, General Term,

      Filed May, 1894 )

    Appeal—Certificate.
    Where the appeal hook does not contain a certificate that the notice of ■ appeal and the papers contained therein are copies of the papers presented to the court on the motion, an appeal from the order will not be considered.
    Appeal from an order denying defendant’s motion for a stay of proceedings for nonpayment of costs of a former action.

      John J. Hynes, for app’lt; Thomas Sullivan, for resp’t.
   Per Curiam.

No certifícale is attached to the appeal book showing that the notice of appeal and the papers presented to the court upon the motion contained therein are copies of such papers. This omission prevents a consideration of the order appealed from. Code Civ. Proc. § 1353, Lewisohn v. Niederwiesen, 40 Hun, 545; 1 St. Rep. 72; Guyon v. Rooney, 25 St. Rep. 326.

Case is, therefore, sent back for proper certificate.

Present: Hatch and White, J. J.

Case returned for proper certificate.


author: Abbott, S.

text:
    In the Matter of the Estate of Harriet M. Foster, Deceased.

      (Surrogates Court, Kings County,

      Filed May, 1894.)

    Executors—Judgment—Order of payment.
    Judgments, recovered against a testator during his lifetime, must be paid by his executor in the order of the docketing thereof, without regard to the time when the fund or assets in his hands were acquired.
    Application for payment of a judgment recovered against the testatrix in her lifetime.

      Lucius H. Beers, for petitioners; Putney & Bishop, for William Bingham; Olcott, Mestre & Gonzales, for John Monroe & Co.; H. G. Hull, for executor.
   Abbott, S.

Harriet M. Foster died on September 29, 1892. She left a last will and testament which was admitted to probate February 27, 1893.

On December 29, 1886, the petitioners in this proceeding secured a judgment in the New York supreme court against Harriet M. Foster, impleaded with others, upon which there' 'is now due about $68,000.

Other creditors, who oppose this application, also secured judgments against Harriet M. Foster in her lifetime, but they were all secured and docketed subsequently to the judgment in favor of the petitioners.

Letters testamentary of the last will and testament of Harriet M. Foster were issued out of this court to Chester M. Foster- on February 27, 1893.

The only asset of the estate of Harriet M. Foster which ever came into the hands of the executor is a fund amounting to about $5,300, proceeds of a recovery in a suit in equity brought by said executor after the decease of his testatrix for an accounting •of certain transactions between testatrix in her lifetime and the defendants in that action.

The petitioners claim the entire fund in the hands of the executor under the statute giving priority in the payment of debts of deceased persons to judgment creditors in the order of the docketing of their judgments.

Whether the claim of the testatrix" upon which her executor ultimately recovered his judgment was an asset at the time of her decease, or at the time of the recovery of the respective judgments, is immaterial for the purposes of the disposition of this question.

The authority cited by the learned counsel for the creditors, John Monroe & Co. and William Bingham, Matter of Hazard, 78 Hun, 22; 56 St. Rep. 82, has no application whatever to the particular question submitted for my determination. In that case an application was made for the distribution of surplus moneys arising out of the sale in foreclosure proceedings of real property of the decedent. The real property from the sale of which surplus arose was acquired by the decedent after the recovery and docketing of all the judgments under which claims for the surplus were made. It was very properly decided in that case that no priority of lien existed in favor of any of the judgment creditors on account of priority in the docketing of the judgments in the county in which the land was situated.

The creation of all such liens and rights to the priority of payment of one class of claims over those of others is purly artificial and the creation of legislatures. Each legislative enactment must receive its own peculiar construction according to the language used in the creation of such artificial rights.

The language of the legislature construed in Matter of Hazard, 78 Hun, 22; 56 St. Rep. 82, is: “All judgments hereafter rendered in any court of record shall bind and be a charge upon the lands,” etc.

A definite and specific charge and lien is created upon the specific real property of which the judgment debtor is seized, situated in the county in which the judgment is docketed; when the ownership of the land follows the docket of the judgment the conclusion seems reasonable that such ownership shall relate back to the lien of all the docketed judgments equally, because the event which creates the lien in that case is not the docketing of the judgment, but the acquisition of the land. The authority cited and the statute construed relate exclusively to the subject of liens.

In the statute under which the pending application is made . there is no suggestion of a lien or charge upon any of the property of the deceased person whose estate is to be distributed1.

Every executor and administrator shall proceed with dili.genoe to pay the debts of the deceased and shall pay the same according to the following order of classes:

“ 1. Debts entitled to a preference under the laws of the United States.

“ 2. Taxes assessed upon the estate of the deceased previous to his death.

“8. Judgments docketed and decrees enrolled against the deceased according to the priority thereof respectively.

“ 4. All recognizances, bonds, etc.

No preference shall be given in the payment of any debt over other debts of the same class, except those specified in the third class.” 2 R S. 87, §§ 27, 28.

Here there is no suggestion of a lien or charge upon any part of the assets of the testator.

The statutory rule is laid down for the guidance of executors in the settlement of their estates.

Given a fund for distribution, upon which there are no specific liens, and for which they are accountable as executors, they seek the statute for the purpose of. learning what disposition to make of the fund. They are there directed “ to pay the debts of the deceased according to the following order

There being no debts under either the first or second class, they are next to pay “judgments docketed and decrees enrolled against the deceased according to the priority thereof respectively.” Moreover, this class is made the only exception in which preference is “ given in the payment of any debí over other debts of the same class.”

The statutory provision above quoted may or may not be equitable, but I have no doubt whatever as to the intention of the legislature.

Let a decree be submitted accordingly on two days’ notice.