author: Parker, J.

text:
    William Ottman & Co., App’lt, v. Milton Robbins, Individually and as Trustee, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Fraudulent conveyance.
    Where, at a meeting of the creditors of a lessee of a hotel, it was proposed to advance a sufficient sum to pay the rent to the lessor, who liad begun a foreclosure of a collateral chattel mortgage, and that the creditors should cancel their claims against the lessee, in consideration of a conveyance to them of the furniture in and the lease of the hotel, to which no objection was made, though some of the creditors declined to advance any money, the hill of sale and the transfer of the lease, though they sold the bill of sale and lease for enough to satisfy their claims in full, will not he set aside as fraudulent as to creditors who refuse to join in the prosecutions.
    Appeal from a judgment, dismissing the complain* on the merits.

      Joseph Fettretch, for app’lt; Elihu Root, for resp’t.
   Parker, J.

For some little time prior to August 17, 1891, William M. Conner, who was the proprietor of the St. James hotel, in this city, had been conducting the business, with the result that on that day his situation was substantially as follows: His indebtedness was about $66,000, of which $36,000 was due for rent and water rates. As security for the payment of rents, his lessors held a chattel mortgage covering all the furniture in the hotel. They had already applied to this court, by petition, for leave to foreclose the mortgage, upon which an order to show ■cause had been issued, returnable before the court on the 17th ■of August. The lessors had also commenced proceedings in the Sixth district court to dispossess Conner for nonpayment of rent. The value of the hotel furniture, apart from the lease, was about $16,000. From this statement, it is at once apparent that unless money could be promptly had, with which to pay the rent, so as to stop the proceedings instituted to dispossess Conner and foreclose the chattel mortgage, his interest in the lease would be cut off, and the furniture taken from him, leaving substantially nothing for the unsecured creditors, having claims aggregating $50,000. Conner was powerless to prevent it, for he neither had $36,000 in money nor the means of getting it. In the presence of this situation, his creditors held a meeting, at which this plaintiff was represented. It was suggested by one of the creditors that if the proceedings pending against Conner could be terminated, so as to give the creditors time to find a purchaser for the lease, furniture, and good will, something substantial might be received on account of their claims; and, to that end, it was proposed that $35,700 should be advanced by the creditors, in proportion to their claims, and applied in satisfaction of the rent and Croton water charges, and that the creditors should cancel their claims against Conner, in consideration of a conveyance to them of the. furniture in, and lease of, the hotel premises. Creditors, including the defendant, Bobbins, representing about $35,000 of the $50,000 indebtedness, agreed to enter into such an arrangement, and advance the sum of money needed. No creditor made any objection to the plan, but some of them, including this plaintiff, although requested to enter into it upon equal terms with the ■others, refused to do so. The agreement was "entered into in accordance with the original plan, with one exception. An examination of the lease disclosed that it contained a provision forbidding an assignment of it, so a transfer of the lease was attempted to be made by means of a chattel mortgage, which was intended ' to accomplish the entire divesting of Conner’s interest therein, either through foreclosure, or through a surrender and new lease. Thereafter, the St. James hotel was conducted by the defendaut, Bobbins, and the other purchasing creditor, under the direction of an agent employed by them, until the middle of November, 1891, when the property was sold and conveyed to Gustave Dorval for the sum of $80,000. This was accomplished by giving a bill of sale of the furniture to Dorval, and default being made in the payment of rent, so that the lessee and his mortgagee under the chattel mortgage should be dispossessed, and the purchaser, Dorval, should enter under a new lease, which was made. It will be observed that the result of the entire transaction was to vindicate the business foresight and courage of the creditors, who, -combining together, advanced more money to save the interest which Conner then had in the property than their claims against him aggregated ; the outcome of the transaction being that they received back the money thus advanced, together with the payment of their claims in full, with a sufficient overplus to at least defray the costs and expenses incident to the transaction. By this suit the plaintiff seeks to share in the fruit resulting from the -enterprise and thrift of its co-creditors, notwithstanding its refusal to aid in its production.' The ground of the action, as stated in the fifth article of the complaint, is:

“That, by the execution and delivery of the several instruments and the transfers herein referred to, it was intended to transfer all the property of the said William M. Conner to the defendant, Bobbins, for the benefit of himself and certain other creditors of the said William M. Conner, exclusive of the plaintiff; that all of the foregoing was done with a view to hinder, delay, and defraud a number of the creditors of the said William M. Conner, including this plaintiff, and with a view of giving unlawful preference to the defendant, Bobbins, and certain other of the creditors of the said William M. Conner, exclusive of the plaintiff, and in violation of chapter 466 of the Laws of 1877, as amended by ■chapter 503 of the Laws of 1887."

And the relief demanded is that the transfers be declared null .■and void, as against the plaintiff; that a receiver be appointed, of all the property and effects included in such transfers, and the plaintiff’s judgment paid out of the funds that may come into his hands. Upon this appeal the plaintiff presents still another ground ■upon which it predicates a claim for relief, which will be considered later.

It is apparent from the facts stated that the learned trial court was right in reaching the conclusion that there was no fraud in fact in this transaction, for it was openly and fairly conducted, with a view of securing -such benefits as might result to all creditors who should come in and share the risks of the undertaking on equal terms. The plaintiff, who is the only creditor complaining, was invited to be present at the meeting of creditors, and to come in and share with its co-creditors in the gain or loss which should result from the transaction. It sent a representative to the meeting of April 17th, who listened to the discussion and heard the propositions ; and, while it refused to join its co-creditors in an execution of the plan adopted, it made no objection to the making of the árrangement by the other creditors. It is apparent, therefore, that in the whole transaction, as against the plaintiff, there was no element of concealment, of unfair advantage, or of disregard of its rights. The alleged badges of fraud are :

1. That, by the bill of sale, everything contained in'and belonging to the St. James Hotel, including the good will of the business, was transferred for the expressed consideration of one dollar, and other sufficient consideration, when, as a matter of fact, the dollar was not paid, and the other sufficient consideration therein specified appears to have been made up by a pretended cancellation of the claims of the defendant, Robbins, and the other creditors who-were parties to the transaction. This statement is erroneous, in that it fails to recognize that the entire transaction must be considered together. The bill of sale cannot be separated from the-chattel mortgage, and the subsequent proceedings to divest absolutely the title of Conner in the lease. If the transfer of the lease had been accomplished by means of an assignment, as at first contemplated, instead of the method adopted, of divesting Conner’» interest in the lease, made necessary by the clause in the lease prohibiting an assignment, there would be no excuse for the suggestions which are made on this appeal against the legal integrity of the transaction. It appears, however, that the bill of sale and chattel mortgage constituted parts of the same transaction, and they must be read and considered together. Thus considered, we find that the bill of sale and chattel mortgage, and the submission by Conner to being, divested of all his title in the lease by the proceedings which were contemplated and subsequently took place, constituted the consideration moving from him for that which came from the creditors, while the payment of $35,700, and the cancellation of the purchasing creditors’’ claims, furnished a. consideration moving from them for all that came from Conner. The appellant says that there was no proof of cancellation of the-purchasing creditors’ claims, other than that it was so entered in the books of Conner; that, in addition to that, there should have-been proof of cancellation in the books of the creditors. But this suggestion is without merit, for the purchasing creditors agreed to-satisfy their claims in consideration of Conner’s executing the bill of sale and chattel mortgage, and submitting to a divesting of his title in the lease. And, when Conner did the things which the creditors agreed to accept in satisfaction of the debts, such debts were in fact satisfied and discharged. Entries in their several books were not necessary to accomplish that result. A debt is discharged by payment, not by an entry in the debtors’ books.

2. That fact that the chattel mortgage was taken by the defendant, Robbins, “individually and as trustee,” to secure the payment of an alleged indebtedness of $75,000 on demand, is alleged to-furnish evidence that the scheme was fraudulent. No inferences-of fraud can be drawn from the mortgage, considered in the light of the entire transaction. The giving of the mortgage was intended to be but a step in the direction of the transfer of title. The purchasing creditors were about to pay $35,700 in cash, for which they wore to receive, outside of the mortgage bn the lease, nothing except furniture of the value of $16,000. The most valuable part of the -consideration for which they were to advance this sum of money, and, in addition, satisfy their claims, aggregating about $35,000, against Conner, consisted of this lease. As they were prevented from getting an assignment of the lease, because of the clause prohibiting an assignment, they took a lien upon the lease for the entire amount of the consideration which Conner was getting from them, and by the mortgage the parties intended to effectuate the performance of Conner’s original agreement to transfer the lease. The purchasers acquired nothing more by the giving of the mortgage than they were entitled to under the original agreement with Conner, but it operated to prevent Conner from mortgaging the lease to third parties, in violation of the purchasing creditors’ rights.

3. The appellant claims that the cancellation of a certain agreement by the defendant, Eobbins, and bis fellow committeemen, was fraudulent, as against the plaintiff and the other creditors of Conner. This agreement, called a “trust agreement,” was entered into between Conner and his creditors, other than his lessors, in February, 1891, by the terms of which a committee of three, of whom the defendant, Eobbins, was one, were to represent the creditors in the conduct of the hotel business until the indebtedness due to the several creditors named in the agreement should be paid. It is conceded that under this agreement there was not accomplished the results hoped for. Indeed, from the time of its execution down to its cancellation, in August, the business of every month resulted in a loss, instead of a profit. One of the provisions of this agreement was:

“ And it is also further agreed by and between the said parties that, should the result of any one month’s business show a loss or a profit of less than the sum of $2,500, that then and in that, event, at the option of said parties of the second part, or their said committee, this agreement may be forthwith abrogated, cancelled and annulled.”

At the meeting on the 17th of August, the result of the business was placed before the creditors, and after discussion a vote was taken upon a motion that the agreement be cancelled ; and no creditor voted in the negative, although this plaintiff had a representative at the meeting. The secretary thereupon noted u]jan the agreement that it had been cancelled by a vote of the creditors; and the committee indorsed thereon, in pursuance of the provision which we have quoted, the following, “ The within paper cancelled and abrogated, in pursuance of the provisions therein contained,” and signed their names thereto. It is perfectly clear that the committee had full authority to cancel this agreement, and that which they did operated to put an end to it. There was no concealment about it, whatever. The matter was fully discussed in the presence of the creditors, and all either voted that it be done, or acquiesced in it by their silence. Our assertion that the effect of the action of the committee on the 17th of August was to cancel and pqt at an end the agreement of February, 1891, furnishes sufficient answer to the claim of the appellant that if any title to the furniture and lease was transferred by the bill of sale and chattel mortgage, and the proceedings had thereunder, it was impressed with the agreement of February, 1891, and therefore the plaintiff became entitled to relief in equity against Robbins and his associate committemen, as trustees. But there is another answer: The complaint does not refer to the lease, nor assert any rights under it. On the contrary, the cause of action alleged is wholly inconsistent with any such claim. It proceeds upon the theory that the transaction of August 17th, and the whole of it, was fraudulent and void, as against the plaintiff. Plaintiff is not, therefore, in this suit, in a position to ask that the transaction be regarded as a valid transfer to the defendant, Robbins, and others, as trustees, under the agreement of February, 1891, and the trial court properly so held. The judgment should be affirmed, with costs.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    New York Security and Trust Company, Resp’t, v. Ernest Lipman et al., Deft's. B. W. Blydenstein et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    1. Judgment—Modification.
    A motion to modify a judgment, and for a reference to assess the damages, cannot be made before a judge other than the one whose judgment is sought to be modified.

      2. Injunction—Damages.
    The final outcome of the suit, and not the order vacating the temporary injunction, determines the right to damages under the undertaking.
    Appeal from an order denying a motion for a reference to assess the damages on an injunction bond.

      Antonio Knauth, for app’lts; Howard A. Taylor, for resp’t.
   O’Brien, J.

The defendants B. W. Blydenstein & Co. made a motion to modify a judgment entered in the above-entitled action, and for a reference to assess their damages suffered by an injunction issued against them. The action was one in equity, brought to determine the respective rights and titles of the plaintiff trust company and the various defendants, among them Blydenstein & Co. all claiming an interest in the proceeds of some or all of 200 bales of burlaps in the possession of the trust company, and sold by it. The trust company had agreed that certain of the defendants, including Blydenstein & Co., should be held subject to the same rights as the claimants would have had in the bales themselves. An accounting and marshaling’of these proceeds "among the claimants was a part of the relief demanded in the complaint; also, an injunction restraining all of the. defendants from litigation with the trust company over their respective rights in these bales or their proceeds in any other action. A temporary injunction was granted against the defendants, from which an appeal was taken by Blydenstein & Co., and the order of injunction was reversed, which reversal was subsequently affirmed by the court of appeals. Blydenstein & Co. were therefore at liberty to and did pursue their action at law in the "United States court against the trust company for the conversion of the number of bales of bur-laps claimed by them, but, upon the trial, their complaint was dismissed upon the merits, from which Blydenstein & Go. have taken an appeal. The judgment in the federal court - was offered in evidence in this action, which in effect held that they had no claim against the trust company at common law. They not having appeared, the judgment in this action directed that their share of the proceeds of the burlaps, after paying the trust company, should be paid over to a receiver, with leave to them to recover the same, and permanently enjoining them from pursuing any further remedy as against the trust company.

The motion to modify the j udgment, and for a reference to assess the damages, was made before a judge other than - the one whose judgment was sought to be modified. This ground alone, upon the authority of People v. National Trust Co., 31 Hun, 20, would justify the order appealed from. It was therein .said:

“ It would be a very unwise administration of justice, and lead to much vexatious litigation, if a judge holding one special term could, upon a mere motion, set aside the decision and judgment of another judge at special term, upon allegations that the latter had erred as to any of the questions submitted for his determination.”

As the judgment stood, therefore, finally determining that the plaintiffs were entitled to an injunction, no liability on the undertaking could arise with such judgment standing in force and effect, because the condition of such undertaking is that the damages are not to be payable unless “ the court finally decides that the plaintiff was not entitled ” to the injunction. The rule that the final outcome of the suit, and not the Order vacating the temporary injunction, determines the right to damages under the undertaking, is well settled. Methodist Churches v. Barker, 18 N. Y. 463 ; Musgrave v. Sherwood, 76 N. Y. 194; Palmer v. Foley, 71 N. Y. 106.

We think, therefore," that the order was right, and should be affirmed, with $10 costs and disbursements.

All concur.


author: Van Brunt, P. J.

text:
    Wylie H. Vilas, as Assignee, etc., App’lt, v. Allentown Rolling Mills, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Principal and agent—Counterclaim.
    The sales by plaintiff'were held to have been made by him as agent of the vendor, so as to entitle defendant to set off a claim against the principal.
    Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial.

      R. J. Mahon, for app’lt; J. B. Leavitt, for resp’t.
   Van Brunt, P. J.

This action was brought by Frank L. Froment to recover of the defendant a balance alleged to be due on account of goods, wares, and merchandise claimed to have been sold by him to the defendant. The answer admits the purchase of a small amount of goods from Froment, and alleges payment for the same; and, for a further defense, it alleges an agreement between the said Froment, as the agent of the Blandón Iron & Steel Company, and the defendant, whereby it was agreed that the defendant should sell pig iron to the said Blandón Iron & Steel Company, and that the company should sell bar iron to the defendant, and that such sales should offset each other so far as the amounts thereof should go; and that, by virtue of said agreement, they had an offset against the amount alleged by the plaintiff to be due, in the sum of $950.02. Prior to the trial of the action "the plaintiff, as assignee of Froment, was substituted as plaintiff therein. Upon the trial, evidence was given upon the part of the plaintiff, and of the defendant; and the question of the agreement alleged in the answer was submitted to the juiy, who returned a verdict in favor of the defendant. From the judgment thereupon entered, and from an order denying a motion for new trial, this appeal is taken.

The main ground on which error is alleged upon this appeal is the alleged fact that Froment was the principal in the sales was established beyond intelligent doubt, and that the verdict is against the weight of evidence. Upon a consideration of the evidence in this case, instead of such evidence establishing the fact that Froment was the principal in these sales beyond intelligent doubt, we are of the opinion that the jury could have come to no other conclusion than that Froment and the Blandón Iron & Steel Company, so far as these transactions were concerned, were one and the same thing. . It is to be noticed that Mr. Froment was a stockholder of this company; that the treasurer of the company was a clerk in his office; and that the letters upon the part of Froment and the Blandón Iron & Steel Company were written from New York indiscriminately, sometimes being signed by the company, per Til-ton, and sometimes being signed in the name of Froment by Til-ton. It appears upon an examination of this testimony that Froment sold all the output of the Blandón Iron & Steel Company ; and, throughout his correspondence with the defendant in respect to this matter, he speaks of the Blandón Iron & Steel Company’s Mills as “our mills” and “my mills.” It is true, when asked in respect to the expression “ for my mills,” Froment said that he did not mean the Blandón Mills; and, when asked the question, “ By your mills you meant the Blandón Mills among them?” he answered, “I cannot say now; that is two years ago.” But it is manifest that this witness is entirely disingenuous, and that he knew perfectly well that, at the time of writing the letter in question, he meant the Blandón Mills. The agreement alleged in the answer is stated to have been made on the 30th of April, 1891. It was admitted by Froment that some of the conversation in reference to the bar iron manufactured by the Blandón Mills and the pig iron to be sold by the defendant was had. He was asked:

“ Q. Do you mean to say that in that conversation with Mr. Allison (who represented the defendant) there was nothing said between you and him upon the subject that the bar iron which his company should buy either from you or the Blandón Company should be oEset or paid for by iron which his company should sell to the Blandón Company? A. No, sir; no such conversation. •Q. Do you mean to say you never told Mr. Allison, in any way, that you and the Blandón Company were willing to take, in payment for iron which you or the Blandón Company would sell to. •the Allentown Company, pig iron in return ? A. I cannot. Q. Will you swear you never said to Mr. Allison that you were willing to take, in payment for iron which you or your compare might sell to the defendant, pig iron which they might deliver to the Blandón Company ? A. I could not answer that question. <Q. Was there no such conversation or talk? A. Conversation such as I have stated here. Q. State it over again. A. I told Mr. Allison, if he did' not wish to pay me the money, he might ship iron up to Blandón, and he did, and the Blandón Company paid me for that. Q. Did you tell him he might ship iron up to the Blandón Company for the iron he owed you? A. Yes. Q. Was it not talked of between you that, for any iron he might order from you, he might ship iron to the Blandón Company ? A. No, sir; that depended upon whether we wanted iron. Q. Did not you tell him you would send him iron from the Blandón Company, and accept iron from his company in payment? A. Yes ; to a certain extent, if the price was right. Q. Was it not understood between you, as honorable men, that the iron which one •company would send to the other company would be oEset by the iron the other company would send? A. No, sir.”

In another part of the cross-examination the witness was asked this question:

“Do you mean to say, at the interview April 30, 1891, you did not sa^ to him you would give him best refined iron, and take from him pig iron in return ? A- I said if he filled his orders for bar iron. Q. Will you tell the jury whether you said you would accept in payment the pig iron ? A. Yes. Q. In payment of the bar iron which you sold him ? A. I sold him none then. Q. Do you answer my question ? A. Yes; he did not know whether he wanted any. Q. Did not you tell him, if he would want it, you would accept pig iron inpayment? A. Yes; if he would give it to me. Q. Did not he always give it ? A. No; sent cash several times, and checks sometimes.”

This evidence shows beyond question that the statement which the witness had sworn to at first—that he had had no conversations with Allison with respect to this matter—was absolutely untrue, and known by him to be untrue. And it is not at all remarkable that the jury, in view of the testimony of this witness as to what took place on the 30th of April, 1891, should have placed no confidence in his evidence thereafter. It is manifest from the corre•spondence and from the testimony that Froment and the Blandón Iron & Steel Company considered themselves as one and the same concern. He sold the whole of their output, and received a commission of 2¿ per cent, upon such sales. Orders carne from and through him, and it was he who conducted all the business of the corporation. In view of the nature of all the evidence, it would be difficult to say that Froment was not acting on behalf of the Blandón Iron & Steel Company at this time; and, if he was not so-acting, then the jury have found—and the evidence clearly supports the finding—that there was an understanding between Froment and the defendant that, for all the goods they received of the Blandón Mills manufacture, they might repay the same by the " delivery of pig iron to the Blandón Company.

It appears from the evidence that, for the alleged balance of $950.02 claimed as an offset, the defendant had accepted a note of the Blandón Company, which had not fallen due at the time of the failure of said company; and it is claimed upon the part of the plaintiff that the acceptance of this note and Froment’s ■ payment to the company after such acceptance created an estoppel against the alleged set-off. We are unable to see the force of this position. Froment and the Blandón Company being the same so-far as this defendant is concerned, the receipt of an evidence of indebtedness from either would not operate as an estoppel in favor of the other. The ground of the estoppel is based upon the claim, which at one time in his testimony Froment asserted, that he only assented to the delivery of pig iron to the Blandón Company as long as he was paid therefor by the Blandón -Company. But in his testimony he was compelled to recede from this position, and he had to admit that he told Mr. Allison, the representative of the defendant, that, if he wanted, he would accept pig iron in payment so long as he would give it to him, which pig iron was to be delivered to the Blandón Company,—a feature in the transaction which is entirely inconsistent with any theory of estoppel.

It is perfectly clear from the whole of this evidence that the defendant believed that it was dealing with the Blandón Company ; that Froment was merely its selling agént; and that Froment knew such to be the fact. And such was the fact, Froment representing to the defendant, at the time of the making of this arrangement, that these mutual offsets were to take place, and claiming no individual interest in the transaction. It is true that in some parts of the correspondence he speaks of himself, and, if these letters stood alone,'they might support the claim that Froment was the principal. But, when all are taken together, itis plainly manifest that Froment was only the agent of tbe Blandón Company, selling, perhaps, under a del credere commission. There is no pretence but that he had a right to represent the Blandón Company, and, until it became necessary to separate their interests for the purpose of avoiding the claims of offset, there "seems to have been no method of determining whether Froment was acting for himself or the Blandón Company in any of these transactions. It was of no moment then ; but, when the necessity arose, Froment was equal to the emergency, and swore that he had no arrangement in regard to the payment for Blandón iron by the defendant’s pig iron, and then was compelled to admit that such an arrangement existed.

The only other point which it is necessary to consider is the alleged error in the judge’s charge. The court charged as follows:

“ Even if the plaintiff’s assignor, Froment, did own the goods in question, and was the person who sold them to defendant, yet, if this was done pursuant to any arrangement between said Froment. and defendant’s treasurer, Allison, whereby it was agreed that defendant should sell pig iron to the Blandón Company, and theBlandon Company should sell bar iron to the defendant, and that such sales should offset each other so far as the amount thereof should go, then the defendant would be entitled in all fairness and honorable dealing to offset its claim against the Blandón Iron &> Steel Co. against the claim of Froment for the goods in suit.”

This portion of the charge was excepted to, and it is claimed to have been substantial error, inasmuch as it refers to a defense not pleaded, and not even suggested in the answer; that the only contract alleged was stated as made by the Blandón Company ; and that there was not an intimation in any part of defendant’s case that Froment acted as principal, or made any contract as principal; and that, if any evidence in the case could be construed as tending to prove an individual contract by Froment to give bar iron to the defendant in consideration of defendant's sending pig iron to the Blandón Company, it would not be available under the pleadings; and that no motion was made to amend the answer, or to make it conform to any alleged proof. In answer to this objection, it is sufficient to say that there was ample evidence in this case to show that, if Froment was acting in his own behalf in the sales of Blandón iron, an arrangement had been made that such sales were to be repaid by the furnishing by the defendant of pig iron to the Blandón Company, and that such evidence was submitted to the-jury without objection; and in such submission .the question in regard to the pleadings is nowhere mentioned, and in the exception taken to the charge no statement is made that the issue was-not presented by the pleadings. Mow, as the court would have had the right to have made the pleadings conform to the proof, no. such objection can now be taken. The plaintiff cannot upon appeal first raise a question of this description. The objection, if it had been pointed out upon the trial, could have been remedied, without difficulty ; and, where such is the case, a general objection is not a vailable upon appeal.

But, even under the pleadings, we think the charge was correct. The plaintiff alleged that Froment made the agreement. It is true that the defendant alleged that he made it as agent of the Blandón. Company. But, if this agreement was not made oh behalf of theBlandon Company by Froment as its agent, he made it on his own behalf; and the only question was whether it was made by him individually, or in his representative capacity, and, as far as the purpose of this off-set is concerned, it was entirely immaterial, so-long as the agreement was made. It seems to be clear, therefore, that the objection in respect to the pleading is not well taken, and no error was made in the submission of the case to the jury, nor in the course of the charge.

The judgment and order appealed from should be affirmed, with costs.

All concur.


author: Van Brunt, P. J. O’Brien, J.

text:
    Aaron S. Bright, Resp’t, v. Canadian International Stock-Yard and Abattoir Company, Limited, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895

    1. Contract—Ratification.
    Ratification must be done with full knowledge of the facts.
    & Same.
    A board of directors, where they do not know anything about an agreement, which the president of the company attempted to make on their behalf, cannot ratify it.
    3. Same—Corporation.
    Where a corporation made a contract with a person introduced by plaintiff, who was employed for that purpose- by the president, without authority from, or knowledge of the corporation, the latter is not liable to plaintiff for his services.
    4. Same—Rescission—Return.
    The principle as to the necessity of a party giving up those things which he has received under a contract if he does not desire to be bound by it, has no application to such an agreement.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    The contract sued on, omitting the formal parts, is as follows :
    Whereas, the above-named corporation, through its president, is desirous of securing for the association a connection with a person thoroughly conversant in detail (commercially and otherwise) with the abattoir business, and is further desirous of obtaining a loan to the amount of one hundred thousand dollars ($100,-dOO), or such sum as may be agreed upon, for one year, and which loan the party of the first part is willing to secure by the deposit of a satisfactory amount of the bonds and stock of said company, and also to allow, the parties furnishing said money full representation in the board of directors of said company, during continuance of said loan: Now, therefore, it is agreed, as between the parties hereinbefore named, that, upon the introduction by the party of the second paiS to the party of the first part, or to its president, of a person or persons with whom or from which introduction definite business shall result, or if there should be a merger or consolidation of other property with the properties of the party of the first part, through said parties so introduced or through their influence, directly or indirectly, that then the party of the second part shall be deemed to have performed his portion of the agreement, and in that case the party of the first part hereby agrees to pay, or cause to be paid, to the party of the second ■part, his heirs, executors, administrators, or assigns, immediately on consummation (as per article first), the sum of five thousand dollars ($5,000) in cash, and twenty thousand dollars ($20,000) in full-paid, non-assessable stock of the above first-named company ; and said party of the second part is and shall be at liberty to receive from any other source than the party of the first part any further sum, as commission or brokerage, without prejudice to this agreement. This agreement to be in force and effect until March 1st, 1892. And it is further agreed that the authority and •direction of the board of directors of the above-named company, if desired by the party of the second part, shall officially confirm the action of its president in executing the above contract.

      J. L. Bishop, for app’lt; A. Kling, for resp’t.
   Van Brunt, P. J.

This action was brought to recover a sum alleged to be due from the defendant to the plaintiff upon an alleged contract. It was strictly in its nature an action by a broker to recover commissions alleged to have been agreed upon. The contract sued upon was made by one Dodge, as the president of the defendant, with the plaintiff. It was conceded upon the trial, and the court so charged the jury, that the president of the company had no power to make this contract on behalf of the corporation, and that it was necessary, in order that the same might be binding upon the corporation, that it should be either directly or indirectly confirmed by the board of directors ; and the jury were further instructed that the corporation might, with full knowledge •of the facts, ratify the action of the president, which in its inception was not binding upon them, and that, if the directors of the •company received the fruits of any contract obtained through the instrumentality of the plaintiff, they-were liable, whether those fruits turned out to be of value or not. The defendant raised the point, upon the termination of the plaintiff’s case, and also upon the completion of all the evidence of the case, and before the same was submitted to the jury, that there was no evidence showing this contract to be binding upon the company, and that there was no liability upon the part of the defendant to the plaintiff. As has already been stated, it was conceded that there was no authority upon the part of the president to bind the corporation by such a contract; and the jury must have found their verdict either upon the theory that there was a ratification, or that the corporation could not deny the contract, because they had entered into agreements with other persons who had been introduced to them by the plaintiff. There was no evidence of ratification, because it was not shown that the board of directors, at the time they entered into the contracts which are claimed to have been Drought about by the intervention of the plaintiff, knew of the existence of the alleged contract between the president of the corporation and the plaintiff. One of the principles of ratification is that it must be done with full knowledge of the facts, and, if they did not know anything about this agreement which the president of the company attempted to make on their behalf, it would foe impossible for them to ratify. If the contract is to be supported at all, it must be upon the theory that the defendant has received the fruit of the plaintiff’s labor, and is consequently liable in respect to a contract of which it bad no knowledge. The learned court fell into an error, and made a misapplication of the principle as to the necessity of a party giving up those things which he has received' under a contract if he does not desire to be bound by it. Such rule has no application to the case at bar.- In order that the plaintiff in this action should recover as against this defendant, he was bound to show that he was employed by it to-do the thing which he did do. And it is entirely immaterial that he introduced the parties with whom the defendant negotiated, and that it completed its negotiations with those parties, if the-plaintiff .is unable to show an employment and an agreement to pay. Take the ordinary case of a broker. In order that he should recover, he is bound to show employment, and that he was the procuring cause of a sale, if a sale be the subject which is involved. If the broker introduces one party to the other, and a. sale results, unless he is able to show employment, that fact does not entitle him to compensation. So, in the case at bar, unless-the plaintiff can show that he was employed to do the things he did, certainly the defendant, in ignorance of any liability arising from his intervention, cannot be held bound to an agreement in respect to which it was absolutely ignorant. The plaintiff has failed to show any employment upon the part of the defendant, which was essential to his cause of action ; and. when it is stated that the defendant has not returned that which it received under its contract with the parties with whom it negotiated and contracted, it is clear that the rule has no application to the facts in. the case at bar. How could it return ? In what way could it restore the situation ? That -depended upon the will of other parties, and the defendant could be held to its contract by the other parties. It is not like a case where the sole question is as to a contract between two parties, in which one desires to - rescind the contract, he keeping that which he has got under it. The defendant got nothing under the contract of the plaintiff with Dodge,, and there is nothing that it can return which it has received under that contract. Therefore it seems to us evident that there was a complete failure of proof when the plaintiff failed to show an original employment upon the part of the defendant or a subsequent promise to pay.

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

Follett, J., concurs.

O’Brien, J.

(dissenting.)—The plaintiff and the president of the-defendant company signed a contract, by the terms of which the. plaintiff was to perform certain services, for which he was to receive some stock and money. That plaintiff performed his part, of the agreement the testimony tended to show, and, were it at contract between individuals, there can be no doubt that a verdict upon such evidence would not be disturbed. The defense is that the president of the defendant corporation had no power to make such a contract, such right being reserved to the board of directors. The evidence tends to show that the defendant reaped advantage from plaintiff’s work, but, though admittedly benefited thereby, it claims to have accepted such benefit without knowledge of plaintiff’s employment by its president. Evidence was also-offered to show that, in addition to the president, other officers; knew of the employment. Apart, therefore, from the original authority, the question was submitted to the jury as to whether "there had or had not been a ratification by the defendant, the court ■saying:

“I have also charged you, gentlemen, that a corporation may ■ratify a contract which was invalid in its inception, and it may do that in two ways : First, if, knowing all the facts, it deliberately, by a vote of the directors, ratifies the transaction; and, secondly, by receiving the fruits which have grown out of the carrying out •of the invalid contract.”

I think this was a correct statement of law, and, the jury having found in plaintiff’s favor upon the question of ratification, the verdict seems to me right, and should not be disturbed. Aside, ■however, from this, I think there was a question as to whether or not, the company was not bound, notwithstanding the provisions -of the by-law, by a contract that was made by its chief executive officer in connection with a matter which presumably was within the scope of his authority, concededly made for- the benefit and advantage of the corporation, which the latter reaped, and which it holds; and this I do not think it should be permitted to do without making just compensation to the plaintiff. Having concluded that the judgment is right, I dissent from the conclusion reached by the majority in reversing it and ordering a new trial.


text:
    Ida A. Currier, App’lt, v. Henry W. Poor et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Deceit—Cbedit.
    In an action brought to recover damages for false representations, it is necessary to wait for the maturing of the security or, if a note is given, for the maturing of the note or for the expiration of the term of credit.
    Appeal from a judgment, dismissing the complaint.
    G. E. Waldo, for appellant; Adrian H. Joline, for resp’ts.
   O’Brien, J.

By this action it was sought to recover the purchase money of five second mortgage bonds of the Knickerbocker Brewing Company, upon the ground that the plaintiff was induced to purchase the bonds of the defendants by fraudulent representations. The plaintiff’s brother and agent testified that before purchasing he had an interview with one of the members of the defendants’ firm, in which the latter had falsely represented that the bonds were better than any railroad bonds that could be bought at about par; that they were more valuable than such railroad bonds; were secured by mortgage on real estate of greater value than the whole issue of bonds ; that the bonds were issued for full value ; and that at any time, if the bonds were brought back, defendants would get the plaintiff’s money for her,—and that by such representations the defendants induced the plaintiff to make the purchase. It was shown that the bonds would not mature until 1897; that they are still held by the plaintiff, and that interest has been paid as the same matured, except that the interest due November 1, 1891, was defaulted, and not paid until November 29, 1891; that the bonds were tendered before suit to defendants, and repayment of the purchase money demanded and refused. Upon these facts appearing, the defendants moved to dismiss the complaint, on the ground that, by the testimony offered, it did not appear that the plaintiff had sustained any damage; and, in response to-the inquiry of the court, plaintiff stated that she had no further-testimony as to representations, but that the only evidence she had to offer, in addition to that already offered, was that the representations were false as to the value of the property, as to the fact that the bonds were issued for full value, and also as to the fact whether they were issued for full value or not, and whether they were worth par on the market. Upon this statement the court granted the motion, and dismissed the complaint, on the ground that no damage had been shown ; adding that, according to the testimony of Dr. Currier, most of the statements complained of were mere expressions of opinion.

In determining the correctness of the ruling, let us assume that the representations were made, and at least one of them—that relating to the question of value—was a statement of fact, and was untrue. In this condition of the record, the question is whether the learned trial judge was right in holding that it was an essential part of the plaintiff’s cause of action to prove damages. The plaintiff insists that the complaint was dismissed upon the ground that the action was prematurely brought. This, though not altogether an accurate statement, may be, in one aspect, correct; for, as we shall show, though the complaint was dismissed because no damages were proved, it is true that damages were not proved because the amount thereof could not be ascertained until the bonds matured; and it has been held that where the action was brought to recover damages for false representations, and the plaintiff had the note or securities, which had not matured, the action was not maintainable until the maturity of such securities or note. But that counsel is not entirely correct in the statement that the dismissal was placed upon the ground that the action was prematurely brought, we think, appears from what occurred upon the trial, and from the language of the judge in disposing of the motion; it being necessary only to quote a single sentence, at the end, to show the position taken. He says :

“If the plaintiff had shown any loss, no matter how slight it might be, I certainly should not take the case away from, the jury; but, the interest upon the bonds being regularly paid, it is not for us to say, now, that when the principal matures that will not be paid, also, and therefore the complaint, I think, should be dismissed.”

It will thus be seen that the motion was put upon the ground of a failure to prove any damages, and that it was granted by the court upon this express ground.

Though frequently stated, it seems necessary, for the sake of clearness, in cases of this character, to refer to the remedies which, by law, are given to one who claims to have suffered by reason of the fraud of another. The plaintiff had one of three remedies open, to her, if her allegations were true : (1) To rescind the transaction, offering to restore what she had received, and begin a suit at law to recover the moneys paid; (2) to bring a suit in equity to obtain a rescission of the contract, and to recover what she had parted with, the complaint containing an offer to restore what she had received; and (3) to keep what she had received, and sue for damages for the alleged fraud. Kountze v. Kennedy, 55 St. Rep. 353; Metropolitan El. R. Co. v. Manhattan El. R. Co., 11 Daly,. 373, 449 ; Vail v. Reynolds, 118 N. Y. 297; 28 St. Rep. 707. The complaint, seemingly, would indicate that the plaintiff intended to avail herself of the the first-mentioned remedy, for. there is an allegation in the complaint of tender before suit; but we find no allegation of continued willingness to return the bonds, arid there-was no proferí made of them at the trial. The trial was conducted on the theory that the suit was one for damages for false representations ; and that this was the view taken both by counsel for the plaintiff and the judge is apparent from the remarks of both, as they appear in the record. Plaintiff had the right, as shown, to-rescind the contract, and recover the purchase price, but in that case she was bound, not only to tender, but keep the tender good, and, upon the trial, offer to return the bonds. This was not done, either by suitable allegations in the complaint, or by the proof, or by profert of the bonds upon the trial.

In an action to rescind, it is unnecessary to wait for the maturing of the security, or, if a note be given, for the maturing of the note, or for the expiration of a term of credit; but, where such remedy is elected, the plaintiff must occupy a consistent attitude. Where, however, one defrauded makes no offer to return what has been received, then the action must be regarded as one brought to recover damages for false representations; and, in such a case, what has been received may be kept, and the damages suffered by reason of the fraud recovered, but such recovery must be based upon evidence showing the damage. The distinction between the various remedies thus pointed out has been clearly presented, upon two appeals before this court, in the case of Thomas v. Dickinson, 47 St. Rep. 209 ; Id., 67 Hun, 350; 51 St. Rep. 645. Upon the first appeal, the record showed that, by means of false representations, the plaintiff had been induced to part with goods, and had received in payment therefor a note, which was not due at the commencement of the action, and was not tendered before or after suit brought, nor at the trial. Upon this ground a motion was made to dismiss, which was denied, and an exception taken. And it was therein held that whether the action is for a rescission of the contract, or for damages because of the fraud of the defendant in inducing the plaintiff to enter into the contract, if a note has been given, it must be returned ; an action for .damages, iq such case, cannot be maintained until it is ascertained whether the note will be paid or hot, and it.must be shown that plaintiff is still the holder of the note,—the reasoning of the court being that:

Until it is ascertained whether or not the note in question, which has been given in payment for the goods, will be paid, it cannot be ascertained as to whether the plaintiffs have suffered, or will suffer, any damage by reason of the alleged false representations.”

And upon the second appeal—the record showing that the note had not been paid, and that the plaintiffs at the trial, offered to return the note to the defendants—it was held that, as—

The defendants were guilty of fraud in obtaining the property of the plaintiffs, although they accepted a note therefor, they were ■entitled to maintain the action for the fraud, their right of action having accrued immediately upon the discovery of such fraud; and when upon the trial, they tendered back the note, they were ■entitled to recover, asjamages, the value of the property obtained from them.”

So, here, if the plaintiff, upon the theory of a rescission of the contract for fraud, had tendered back the securities, and kept such tender good, and made profert at the trial, then, although they had not matured, she could recover back the purchase price; but not having offered to return the securities, or made a profert of them at the trial, and having proceeded upon the theory that the action was one to recover damages for false representations, she was obliged to show her damages. We think, therefore, that in the disposition made the court was right; and the judgment should be affirmed, with costs.

All concur.


text:
    Jacob Blumer et al., App’lts, v. National Starch Manufacturing Company, Impleaded, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    1. Contract—Construction.
    Whenever the language of a contract is susceptible of more than one interpretation, the courts will look at the surrounding circumstances existing when the contract was entered into, the situation of the parties, and the subject matter of the instrument.
    3. Same.
    In this case the term of the option was held to have commenced to run when the experiments showed the successful manufacture of yeast from the waste products, and not when the experimental plant was ready for making tests.
    Appeal from a judgment dismissing the complaint.

      Geo. Hoadly, for app’lts ; Elihu Root, for resp’t.
   O’Brien, J.

The appellants are patentees of inventions relating to the production of yeast from the waste products of starch manufacture. . On the 17th of June, 1892, they entered into an agreement with the defendant, the National Starch Manufacturing Company, which provided for the transfer of these patents to the defendant Dyer, with a view to their ultimate acquisition by the starch company, if, after experiment, they were found to work satisfactorily. By such agreement there was conferred on the defendant company the option to take an exclusive license under the patents in the United States, Ganada, and Mexico, and to purchase the same, upon certain considerations, which included, among others, the payment of $2,500, and the furnishing of suitable buildings, with machinery and apparatus, according to working plans to be furnished by plaintiffs, “ for the experimental manufacture of yeast by the processes covered by the patent, in order to determine the availability of said processes for utilizing in the manufacture of yeast the waste product of its [the starch company’s] present processes of manufacturing starch, and the commercial availability of the said inventions and processes for the purposes of its business.” The agreement provided that such option and right to purchase should continue- “ until the expiration of the period of sixty days from the time when the said experimental plant is in successful operation, and producing yeast, by the processes described in the said patents, in sufficient quantity to enable the starch company to put the same upon the market, and test its commercial availability.” The starch company agreed that it would endeavor to “ utilize the entire waste product of starch-bearing materials of its factories in the manufacture of yeast under the patents.” The agreement further provided that the patentees were to devote their time and attention to erecting and operating the buildings, etc., and use their best efforts to “ put such experimental plant into successful operation as soon as practicable.”

The purpose of this action is to procure a judgment adjudging said contract to have been terminated, and no longer binding, and that the patents be returned to the plaintiffs. The question presented is one involving the construction of this agreement of June 17, 1892, and, as correctly stated by the learned trial judge:

“The struggle in this action arises upon the claim of the plaintiffs that the option was not exercised within sixty days, as provided for by the contract, which claim is resisted by the effort of the starch company to show full compliance, either actual or tendered, and strict conformity with the contract; and the main question, therefore, to be solved, is the actual date when the somewhat indefinite period from which the time began to run really occurred. When was the ‘said experimental plant in successful operation’ ?”

The defendant company was among the largest manufacturers of starch in the United States, and, in that connection, was in possession of a number of factories. The plaintiffs are chemists, and, prior to entering into the agreement with the defendant, had been employed in the manufacture of yeast, and had obtained at the date of the contract “two letters patent of the United States for improvements in the manufacture of yeast, the substance of said inventions being that they embraced a method of making yeast out of the steep water or waste water used in the manufacture of starch, and which, before the date of said invention, had been wasted and thrown away.” Their invention was thus characterized in a communication to the starch company in March, 1892:

“Blumer and Schlagenhaufer’s Method of Utilizing Waste Products.

“Our invention has for its purpose to open a new and profitable field to the starch industry, by utilizing certain liquid waste products, which heretofore were of little value.”

The character of the inventions, the purpose to be served, the results to be accomplished, the letters and conduct of the parties, are all important, as bearing upon the question of when the time within which the defendant starch comjjany was to exercise its option commenced to run. The language of the agreement did not fix a definite period, and it is in the light of the situation of the parties, their conduct, and the end to be secured, that wo are to determine the meaning of the language employed, which gave to the starch company the option and right to purchase for 60 days after the experimental plant was “in successful operation.” “It is a cardinal rule in the construction of contracts that the intention of the parties is to be inquired into, and, if not forbidden by law, is to be effectuated; and, whenever the language used is susceptible of more than one interpretation, the courts will look at the surrounding circumstances existing when the contract was entered into, the situation of the parties, and the subject-matter of the instrument.” French v. Carhart, 1 N. Y. 102. See, also, Coleman v. Beach, 97 N. Y. 553, 554 ; Health v. Hewitt, 127 N. Y. 174; 38 St. Rep. 687.

It is insisted by the appellants that the construction given’to the contract by the court below was erroneous, in this: that it, treated the plaintiffs as guarantors for the manufacture of first-class starch by the factory, while, at the same time, the experimental plant was required to prove a success in making yeast. We have examined the argument by which such contention is sought to be supported, and fail to see that it in any way militates against the force of the findings, made on sufficient evidence, and supported by the opinion of the trial judge. We might be well content to rest this appeal upon that opinion, because supplementing it is a mere work of supererogation; every question that could be presented having been disposed of in the numerous findings of fact, and the conclusions of law, and the grounds or reasons therefor, clearly and forcibly stated in the opinion. The importance of the question, the value of the interests involved, and the ability and earnestness with which the appellants have pressed their construction of the contract upon our consideration, necessitated an examination of the voluminous record in the light of the arguments ; but, as already said, the question, in the main, narrows itself down to a very simple issue, determinable upon the solution of the question whether it was the intention of the parties to enter into a contract for the successful manufacture of yeast, as an independent product, or of the successful manufacture of starch, and the successful manufacture of yeast as a by-product thereof. When we recall the scope -of the inventions, which was “to open a new and profitable field to the starch industry, by utilizing certain liquids, waste products,” and that the buildings and machinery were to be furnished by the starch company “for the experimental manufacture of yeast by the processes covered by the patents, in order to determine the availability of said processes for utilizing, in the manufacture of yeast, the waste product of its present processes of manufacturing starch," we have a guide to what the plaintiffs themselves claim as the advantages of their patents, and a key to what the starch company expected to achieve; and these, with the correspondence spread upon the record, and the character of the experiments carried out by the plaintiffs, are an unerring guide as to the intention of the parties. In other words, in order to determine when the experimental plant was in successful operation, it is necessary to ascertain what the experiment was, to try which the plant was erected. Undoubtedly, it was, in effect, to ascertain whether the profitable manufacture of yeast by the plaintiff’s processes could be combined with the profitable manufacture of starch by the defendant's processes. Both regarded yeast solely as a by-product of the starch manufacture, and did not intend or seek to determine anything as to the independent manufacture of yeast. And the conclusion reached by the learned trial judge, that the experimental plant was no't in successful operation until the experiments to try which it was constructed were successful,—that is, when the successful manufacture of yeast was combined with the successful manufacture of starch,—is amply supported. But the question then remains, when, with reference to date, was this ascertained ? It is conceded that the starch company complied with the preliminary conditions, by paying the amount fixed, and, after obtaining the necessary working plans and specifications, furnished a suitable building, and equipped the same with proper machinery and apparatus for the experimental manufacture of yeast by the processes covered by the patents, at the city of Indianapolis, And while it may be true'that on November 3, 1892, the experimental plant was in successful operation and producing yeast by processes introduced by the plaintiffs, we think it equally apparent that the plant was never brought into successful operation, and never produced yeast by the processes described in the patents, but that all the operations were experimental in character, and consisted of modifications and Variations of the processes described in the letters patent, and of the material to which they were applied, and that the yeast produced by the plant was made by processes in some respects different from those described in the patents, and that the evidence shows that:

Thereafter, continuously, and until long after the 3d of November, 1892, a course of extensive and protracted experiments was carried on at said plant at Indianapolis by both parties, working together at that end., until the desired result was finally approximated, and shown to be practicable, and likely to be commercially successful ; but this was not ascertained nor apparent until about the 1st of January, 1893, when it became apparent that the plaintiffs’ said inventions could be made useful and profitable in the prosecution of this defendant’s business.”

If, therefore, the contract contemplated the production solely of yeast, without reference to the production of starch, then the plaintiffs’ position would be right; but if it was contemplated, and intended to apply the processes to the successful manufacture of both products, yeast and starch, then, clearly, the defendant is right. And thus, as already stated, the difference in the contentians urged consists in one affirming and the other denying the interdependent relation between the successful manufacture of starch and yeast. Prior to the making of the contract, the plaintiffs submitted to the defendant company a written statement of what they could do, which commenced with the declaration that 11 our invention has for its purpose to open a new and profitable field to the starch industry, by utilizing certain liquid waste,” etc., and referred to “ corn, the principal raw material for the manufacture of starch,” as containing certain substances, soluble in water, which can be separated; and how they could be separated is thus stated:

u The separation is made in such a way, and at such a low temperature, that the starch does not undergo any changes, but stays intact, and may serve the purpose of starch manufacture in any of the usual methods. What we use is only the soluble part of the corn, which now goes to waste, as wash water; and the operation which is necsssary to obtain these soluble parts in a suitable extract does not change the present course of making starch, in the least, and does not decrease the value of the feed which is a result of the starch industry. * * * The American starch industry is in a position to produce about eighteen million pounds of yeast per annum, and is able to monopolize the entire trade of the United States, as it is absolutely impossible for anybody to compete with it if our process is connected with the manufacture of starch.”

In what is termed their “ Report,” of June 6, 1892, plaintiffs state that the method of making yeast can be connected with—

“ Your present mode of manufacturing starch without any difficulty, and with entire success. The results obtained as per quality and quantity of yeast, are highly favorable. In our opinion, you will have two ways to introduce and carry out our process : (1) In using steep water with sulphurous acid; (2) extracting ground corn.”

The plaintiffs proceeded to say that the first of these methods would bé—

“ The easiest manner to introduce our process without making any changes in your manufacturing.”

And the report concluded with a request that the starch company should—

“ Take into consideration, in near future, our projects which we made with you some time ago, in order to come to a practicable agreement.”

These extracts state what the plaintiffs propose to do, and are in no way suggestive that the proposition was one for the manufacture solely of yeast, or one which should transform the defendant’s business from the making of starch into the manufacture of yeast, but clearly indicated that, in connection with the starch business, they offered a valuable adjunct, in the shape of the processes which would be equally successful in producing good yeast from the steep water used in the manufacture of starch, and which otherwise would have run to waste. That the plaintiffs had experimented in this direction, appears, but that the plan had been brought into successful operation prior to the making of the contract is negatived by the terms thereof, which provided, not only for an examination into the validity of the patents, but for the expending by the defendant of considerable money in furnishing a building properly equipped “ for the experimental manufacture of yeast by the processes covered by the patents." We think, therefore, that the defendant is correct in asserting that, “ when the agreement was executed, neither party imagined that the company would sacrifice or subordinate this business to, or allow it to be injuriously affected by, the manufacture of yeast from its waste water.” The claim that the two processes of making starch and yeast were to be entirely independent, and that the purpose of the erection of the plant, and of the experiments undertaken, was to •determine whether or not the plaintiffs could make good yeast, has not the slightest basis for support. While, therefore, the experimental plant was erected with a view to determining whether yeast could be produced by the patented processes in quantities sufficient to test “ its commercial availability,” it was also for the purpose of testing “ the successful operation of the experimental plant”; and by this, undoubtedly, was intended the harmonizing of the two products in such a way that, without interfering with or subordinating the starch business, the making of yeast could be successfully accomplished. That this is so is further apparent from other language in the agreement, reciting the object and purpose for which the building and machinery were to be furnished,which are stated to be “ in order to determine the availability of the said processes for utilizing in the manufacture of yeast the waste product of its present processes of manufacturing starch, and the commercial availability of the said inventions and processes for the purpose of its business.” To destroy the force of such language, it is insisted that this is but a recital, and not a contractual provision. But it shows what the purpose and object of the parties were, and is properly resorted to where, as here, a dispute has arisen as to the meaning of the contractual language used, in order to ascertain the intent of the parties. In addition, however, to language, oral and written, which we find throughout the record, expressive of such intent, we have the conduct of the parties, which always may be resorted to for the purpose of determining what construction they themselves placed upon the contract. Without repeating specific acts, we think it clearly appears that the effort of plaintiffs and the defendant company was directed towards the successful production, not only of yeast, but also of starch; and while it máy be conceded that, with some modifications, yeast could be produced, and that this fact was established by November 3d, it is equally clear that subsequent to that period the efforts of the plaintiffs were not relaxed, but that they struggled continuously to obtain good starch down to and until January, 1893, when for the first time was established, in the language of the contract, “the availability of the said processes for utilizing, in the manufacture of yeast, the waste product of its present processes of manufacturing starch.” And then, for the first time, were successfully determined the experiments for which the experimental plant had been constructed; and on such, date alone do we think it can be held that there was a “successful operation” of such experimental plant.

The claim that plaintiffs’ remaining at Indianapolis, and assisting in bringing about the manufacture of starch of a suitable quality, between November, 1892, after they had determined that, by their processes, yeast could be produced, and January 1st, when it was ascertained that both products could be successfully obtained, the one as the by-product of the other, was merely to assist the defendant company, is neither frank nor candid. On their representation of what could be accomplished, the defendant company went to considerable expense, and did what was required of it, and what lay in its power, to enable plaintiffs to verity their statements; and plaintiffs were not only in honor and fair dealing bound, but, as we have shown, by the fair construction to be given to the contract they were bound, to make such representations good. And that they understood this is more consistent with what they did than any explanation based upon a statement that they were gratuitously engaged in assisting the company out of its difficulty. It is clear that so far as the starch company was concerned, as there was no intention to give up its business, and enter exclusively upon the manufacture of yeast, the patents would have been of little value to it; and yet, upon the plaintiffs' theory1, we are to assume that it deliberately entered into an agreement by which it subordinated its principal business to enter upon an experiment, to demonstrate the success of which it was, in addition, willing to expend time and money.

There is but one other argument, to which a brief reference should be made. It is claimed that when the learned judge decided that the manufacture of yeast out of waste steep water was not one of the “present processes” of the defendant, contemplated in the making of the contract, and that the experimental plant would not be in successful operation unless the factory could m'alce high-grade starch with the same steep water out of which plaintiffs were to make first-class yeast, and that yeast could not be made out of whole corn steep water, he found that the parties entered into what, at the beginning, would have been an impossible contract. The plaintiffs had notified the defendant company of the two ways in which their patented processes could be introduced ; and while it is true that the process of manufacturing’ starch by the use of acidulated water, or water saturated with sulphurous acid gas, was being tried or considered experimentally, the uncontradicted evidence is that when the contract was made this way of making starch was not one of the starch company’s then “present processes.” The most that, in this respect, can be claimed, is that it was one of the means by which the plaintiffs proposed to make the steep water of starch manufacture available for yeast manufacture, and that experiment could not be successful so long as this method of treating the steep water injured the starch. While, therefore, it is true, strictly speaking, to say that that methodof making starch was not one of the then present processes in use, or intended to be used, it was a process in connection. with which experiments had been made by the defendant, assisted by the plaintiffs, and was in contemplation of 'the parties as a possible solution of what was desired, namely, the successful manufacture of the two products. .It will thus be seen that, in steps more circuitous, we have reached the same conclusion more directly reached by the learned trial judge, that the intention of the parties was to enter into a contract for the manufacture of yeast as a by-product of starch, and to that end the experimental plant was constructed, which never could be regarded as having been successful in its operation until it could produce the yeast without injury to the starch. This conclusion is the result of a fair construction of the language of the agreement itself, which, so far as doubtful, is made plain and clear by the light afforded by the communications, both verbal and written, of the parties, and their own acts, which, we think, place their intent and meaning beyond reasonable doubt.

The judgment should be affirmed, with costs.

All concur.


author: Stern, S.

text:
    In the Matter of the Estate of Laura E. Riegle, Deceased. In the Matter of the Judicial Settlement of the Accounts of Hiram E. Bratt, as Executor, etc.

      (Surrogate’s Court, Erie County,

      Filed December, 1894.)

      1. Wills—Probate .
    Upon the application for the probate of a will, an attorney for any party interested in the estate may, without tiling objections, cross-examine the . witnesses called by the proponent.
    2. Same—Forfeiture.
    Under a provision in the will that any legatee, who “ prevents or opposes the execution ” of the will, shall forfeit his legacy, a legatee who appears, files objections and cross-examines witnesses produced by the proponent, upon the application for the probate of such will, does not prevent or oppose within the meaning of such provision.
    3. Same.
    But he forfeits his legacy under such provision by bringing an action . against the executor, though individually, for the conversion of certain articles of his own property, which the testatrix bequeathed to other legatees.
    4. Same.
    He also forfeits his legacy by failing to comply with the direction of the testatrix in relation to her burial, where such legacy is given upon the condition that she be buried in a certain cemetery.
    Judicial settlement of the accounts of the executor.

      Charles F. Tabor, for the executor; George W. Cothran, for contestant.
   Stern, S.

Hiram E. Bratt having rendered his account as executor under the will of Laura E. Riegle, deceased, this proceeding is on the judicial settlement thereof. Henry S. Riegle, widower and legatee under the will of the testatrix, objects to the allowance of several items for which the executor claims credit, embraced in Schedules A and C of the account, on the ground that the executor is not entitled to such credit. The executor, in reply, contends that Eiegle cannot contest the account for the following reasons: (1) Because Eiegle opposed the probate of the will; -(2) because he prevented the execution of the will in bringing suit against the executor for con verting certain articles of property which the testatrix bequeathed to other legatees; (3) because he did not bury the deceased in the burial ground at Hunt’s Corners, as directed by her in her will. If the claim of the executor is well founded, there is no necessity for entering upon the merits of the objections made by Eiegle. A party can only contest an account with respect to matters affecting his interest in the settlement and distribution of the estate. Code Civ. Proc. § 2728. The property of the testatrix consisted of a note,—the amount collected thereon by the executor being $806.23,—and household furniture, wearing apparel, a gold watch and chain, and other personal effects, inventoried at $225.73. The testatrix made the following disposition of her property; $500 to her husband, $50 to the Baptist, home and foreign missions, $75 for her burial expenses, $50 for a gravestone, and the residue of the money due her from any and all sources to her sister, Nellie M. Cole. Her household furniture, wearing apparel, and other personal effects were distributed among her friends, and the closing dispositional clause reads as follows:

Lastly. To Henry S. • Eiegle, my husband, my gold watch and chain, and the residue of my household goods. I also direct that my body be taken to the burial ground at Hunt's Corners for burial, in charge of Coleman & Jones, of Akron, undertakers. In case Henry S. Eiegle prevents or opposes the execution of my will, I give all my personal property to- Nellie M. Cole.”

1. On the proceeding for the probate of the will Eiegle appeared, and filed objections, alleging that the instrument propounded was not the will of the testatrix. The only witnesses examined were the subscribing witnesses and Cora Cole, called by the proponents to satisfactorily establish what was required to admit the instrument to probate. Eiegle's attorney cross-examined these witnesses. This he would have had a right to do without the filing of objections. On probate proceedings the surrogate must inquire particularly into all the facts and circumstances, and must be satisfied with the genuineness of the will and the validity of its execution. Code Civ. Proc. § 2618. Upon such an inquiry it is the universal practice to permit the attorneys for the interested 'parties to examine and cross-examine witnesses. The inquiry related entirely to the examination the surrogate was obliged to make. It seems to me that a formal appearance and such an examination ought not to work a forfeiture of a legacy. To so hold would be unjust and unreasonable, in view of the above provisions of the Code. It may be that the legatee, by the simple filing of objections, accomplishes the forfeiture, because the legatee is bound to strictly comply with all of the conditions attached to his legacy. Story, Eq. Jur." § 288. Eiegle did not oppose or prevent the execution of the will. He interfered with none of the legal rights of the executor. He simply aided the surrogate in the performance of his bounden duty. I am led to the conclusion, that, before there can be a forfeiture of the legacies given to Eiegle, he must take some action beyond the ordinary cross-examination of witnesses necessary to prove the full execution of the will before the surrogate.

2. I agree with the executor in his contention that Eiegle forfeited his legacies when he brought an action against the executor, although individually, for the conversion of certain articles of property used by the testatrix and her husband in housekeeping, and which the testatrix bequeathed to other legatees. He established his ownership in the action. But a testatrix may dispose of property not her own, and put the owner to an election whether he will give up his property to the legatee, and take the provision made for him, or forfeit the provision made in his favor, and keep what is his own. Havens v. Sackett, 15 N. Y. 365; Caulfield v. Sullivan, 85 N. Y. 153 ; In re Noyes, 5 Dem. Sur. 315; Leonard v. Steele, 4 Barb. 21. The intention of the testatrix is plain and unmistakable. ’ She intended that these articles should be transferred to the legatees she named. Eiegle prevented the consummation of her expressed wishes. He must be held strictly accountable, and suffer the consequences.

3. I must also sustain the executor in his proposition that Eiegle forfeited his legacies when he failed to comply with the direction of the testatrix in relation to her burial. Eiegle was informed of the contents of the will on the afternoon or evening of the day of her death. This information came to him after he had bought a lot in another cemetery, purchased the coffin, and engaged the undertaker. He had, however, ample opportunity to, comply with her wishes had he so desired. He had charge of her funeral, and directed the preparations. The testatrix was not interred in the place where she directed, but in the lot which he purchased. Among the English cases I find a case decided in 1882,— Williams v. Williams, 20 Ch. Div. 659. Justice Kay was' of the opinion that a direction by will as to the disposition of the body could not be enforced. There being no property in a dead body, it was impossible by will or any other instrument to dispose of it. The learned justice, however, was unable to find an authority precisely in point. Among the American cases I find that in 1872, in the case-of Pierce v. Proprietors, 10 R. I. 227, Potter, J., gives an interesting review on matters relating to burials. He states that by the canon law every one was to be buried in the parish churchyard, or in his ancestral sepulchre (if any), or in such place as he might select; and that most people look forward to the proper disposition of their remains, and it is natural that they should feel an anxiety on the subject; and the right of a person to provide by will for the disposition of his body has been generally recognized. Hon. Samuel B. Euggles, in an interesting note on the law of burial (Append. 4 Bradf. Sur. 503), recognizes the right of such testamentary disposition, but no authority is quoted by him on the subject. A quotation to the same effect is found in Snyder v. Snyder, 60 How. Pr. 368. Many cases have come under my observation as surrogate where testamentary disposition has. been made by a testator in relation to his funeral and burial, and it has been the universal custom, so far as my experience extends, .to recognize such a right in the testator. The present state of society demands that courts should compel the performance of all reasonable directions made by a person in his will relating to his funeral and interment. If a person desires to pass from this earthly sphere through the legal process of cremation, he should have his testamentary wish effectuated by the court. I shall hold that the condition the testatrix imposed upon her husband to be buried in a certain cemetery is valid, and must be complied with before Eiegle can take the legacy.

Having agreed with the executor in his second and third contentions, it will be unnecessary for me to enter into the merits of the objections raised by Eiegle, which objections must be dismissed.

Ordered accordingly.


author: Davie, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of George M. Strickland, as Administrator of Samuel B. Strickland, Deceased.

      (Surrogate's Court, Cattaraugus County,

      Filed December, 1894.)

    1. Executors—Assets.
    The intestate’s share of the proceeds of his land worked on. shares is an asset of the estate and does not go to the heirs at law.
    3. Same—Services—Member op family.
    The presumption that services rendered to decedent by a daughter in his last illness are gratuitous is rebutted by the fact that she, having a husband, family and home of her own, went, at the beginning of her father’s sickness, from her home to his residence, and remained with him at his request to care for him, until his death, under a promise of payment.
    JUDICIAL settlement of accounts of an administrator.

      D. E. Powell, for administrator; O. S. Vreeland, for contestant.
   Davie, S.

Samuel B. Strickland, late of the town of Otto, Cattaraugus county, died intestate on the 28th day of March, 1893, leaving, him surviving, a widow, one son, and three daughters. Letters of administration upon the estate of deceased were issued to the son, George M. Strickland, May 27th, 1893. In the administrator’s account filed for judicial settlement he charges himself with “cash from cheese factory, $157.24,” but during the progress of the accounting the administrator sought to withdraw this item from his account, claiming that the facts, as disclosed by the evidence, showed this fund not to be an asset, but to belong to the heirs. The circumstances from which this controversy must be determined are as follows: The intestate, at the time of his death, was seised and possessed of a farm of about 125 acres, and the ■owner of the stock and farming implements thereon. On the 9th day of November, 1892, he entered into an agreement in writing with one Jenlcel relating to operating the farm during the ensuing season. Such contract provided that “the party of the first part agrees to rent his farm in the town of Otto, consisting of about one hundred and twenty-five acres of land, together with from fifteen to eighteen cows that are now on said place,” until the 1st day of December, 1893 ; that Jenkel should do all the work on the place in a good, workmanlike manner, cut all noxious weeds, build the necessary fences, milk the cows with regularity, draw the milk to the cheese factory as soon as it should open, make butter when factory was not in operation, take good care of the cows, house, barn, do all the work as the first party (Strickland) might'direct, and generally to perform the work upon such place under the direction of the first party; each party to furnish one-half of the seed and all other “ findings,” and pay one-half the taxes; the milk to be entered at the factory in the name of the first party; the proceeds thereof to be drawn by him, and out of such proceeds to pay the taxes, and to retain therefrom “ what other moneys may be due the said party of the first part in consequence of the second party failing to perform such agreement on his part,” and to pay one-half of what might remain to the second party ; that the hay, straw, and “ coarse fodder ” be left upon the place; “and otherwise the place is to be let to the halves.” The $157.24 in controversy is the portion of the avails of the milk taken to the factory to which the intestate would have been entitled had he survived, and which was in fact paid to the administrator. It is claimed by the administrator that this money, under the provisions of the agreement referred to, is rent for the land, and not having accrued prior to the death of the intestate, belohgs to the heirs. The statute defines quite distinctly what are assets. Section 6, su-bd. 7, art. 1, tit. 3, pt. 2, c. 6, 2 Rev. St-., provides that “ rents reserved to the deceased, which had accrued at the time of his death,” are-assets. If, however, such rents had not accrued—that is, become due and payable—before his death, they belong to the heirs. This principle is not modified by the fact that the lease covers and provides for the use of personal property in connection with the real estate. Fay v. Hollovan, 35 Barb. 295 ; Marshall v. Moseley, 21 N. Y. 280; Armstrong v. Cummings, 58 How. Pr. 332. In the case last cited the court cites, among other authorities, the case of Newman v. Anderlon, 2 Bos. & P. (N. S.) 224, where Mansfield, C. J,, states the rule to be that “it must occur constantly that the value of the demised premises is increased by the goods upon the premises, and yet the rent reserved still continues to issue out of the lands and not out of the goods.” Hence it is quite apparent that, if the agreement referred to was a lease of the farm, and the relation of landlord and tenant was thereby created between the intestate and Jenkel, and the money which the intestate was to receive from the avails of the milk taken to the factory was rent for the use of the farm, within the usual and technical meaning of the term, then the administrator is right in his claim, and he is not authorized to distribute this money as assets. But the confusion in the mind of the administrator as to the proper disposition of this fund arises from a misunderstanding of the true nature of the agreement. The authorities are quite numerous holding that an agreement of the kind which the parties made in this case is not a lease, and that the profits which the landlord derives from such an arrangement are not rent. In Tay lor v. Bradley, 39 N. Y. 129, the agreement was very similar to that entered into between the intestate and Jenkel. In the case cited such agreement was under seal, and it provided that the owners of the land “ do by these presents lease and to farm-let all said lands to the parties of the second part.” Then followed specific details as to the furnishing of seed, the mode of cultivation, the care of the sheep, which were to be furnished by the first party, for a division of the wool produced, and that the second parties “ should yield, pay, and give to the parties of the first part one-half of all the grain raised, to be delivered,” etc. The court, upon reviewing the various authorities construing agreements of this character, says:

“ The balance of authorities above cited seems to be that, notwithstanding the technical terms employed, such an agreement does not amount to a technical lease; that the relation of landlord and tenant is not contemplated, and the portion of the crops reserved to the owner is not rent, but compensation for the use of the land, while the other portion is compensation to the occupier for his work, labor, and services; that the legal possession of the land is in the owner, and the two are tenants in common of the crop.”

To the same effect, see Reynolds v. Reynolds, 48 Hun, 142; 15 St. Rep. 464.

If, then, the contract between intestate and Jenkel was not a lease, the $157.24 in controversy represents simply the earnings or avails of the personal estate of the intestate, and must be disposed of in the same manner as any other increase of the personal estate coming into the hands of the administrator.

The real estate of the intestate was encumbered by a. mortgage thereon at the time of his decease, which mortgage was foreclosed after his death, and the premises sold, and a judgment for deficiency upon the bond of intestate accompanying such mortgage obtained, amounting to about $1,000. This judgment is now owned by the contestant, and he has duly presented his claim to the administrator. and the claim has been duly allowed. The total personal estate of intestate is insufficient to pay his debts in full; hence the question is whether the administrator shall distribute the fund in controversy among the creditors, or to the next of kin, of intestate. In view of the authorities above referred to, construing and determining the character of agreements like that existing between intestate and Jenkel, it must be held that this fund is an asset, and that it should be distributed, together with the other moneys in the hands of the administrator, among the creditors whose demands have been duly established, pro rata.

It appears from the account filed that Phoebe M. Hayes, a daughter of intestate, had presented an account to the administrator for labor and services claimed to have been rendered by her to the intestate during his last illness, which claim has been allowed by the administrator. The contestant objects to this item of the account, asserting that whatever services were rendered by the claimant, who is a daughter of intestate, were so rendered gratuitously, and without -expectation of compensation therefor. The evidence quite clearly shows that Mrs. Hayes attended upon and nursed the intestate during the last three weeks of his life, and that he was in a situation rendering his care somewhat onerous. The services were quite likely worth the amount charged. The. question regarding this item is whether the evidence discloses that such services were rendered in consequence of the express promise of intestate to pay therefor, and, if not, are the circumstances attending the transaction such that the claimant is entitled to recover upon an implied promise ? I have carefully examined the authorities where claims for services rendered by one member of a family for another have been disallowed, and the fundamental principle underlying all such authorities seems to be that, where the relations existing between the parties are such that it is evident the services were performed as acts of gratuitous kindness and affection, without any expectation of pecuniary compensation, and in consequence of reciprocal obligations and advantages, the law will not imply a promise to pay. The rule is stated in Moore v. Moore, 21 How. Pr. 223, to be that ordinarily, from the fact of rendition and acceptance of services beneficial in their nature, the law will imply a promise to pay what the services are reasonably worth. This implication may not be wholly repelled by the fact that the services are rendered to a parent by a son of full age, but the legal presumption of an obligation to pay is less strong where the relation of parent and child exists than in the case of persons not bound to each other. If to the relationship be added other circumstances tending to show, as a matter of fact, that the services were gratuitously rendered, without any expectation at the time on either side that payment was to be made therefor, the law will not imply a contract for compensation. In this •case the only circumstance from which it could be inferred that the services were gratuitously rendered is that of the relationship existing between the intestate and the claimant, bnt this is not sufficient to justify such inference in this case. The claimant was not a member of the intestate’s family prior to the commencement of the services. She was a married lady, with a husband and family and home of her own. At the beginning of her father’s sickness she went from her home to his residence, was requested by the intestate to stay and care for him, he saying, in substance, that he had money to pay for what was done for him; that he had money in his pocketbook to pay for her services; that he wanted her to stay, and that she should have her pay. These requests and statements, if not sufficient to sustain a finding that such services were rendered under an express promise to pay therefor, are certainly sufficient to overcome the presumption arising from the relationship of the parties that such services were gratuitously tendered. It should be held that this claim is a valid debt against the estate, and, as such, entitled to share in the distribution. A decree will be accordingly entered.

Decreed accordingly.


author: Coleman, S.

text:
    In the Matter of the Estate of Robert A. Forsyth, Deceased. In the Matter of the Application of Robert Forsyth Little, as Trustee, etc.

      (Surrogate's Court, Orange County,

      Filed December, 1894.)

    Tax—Transfer.
    Where the transfer of a beneficial interest under a will occurred before the passage of chap. 399 of 1892, or of the previous acts, such interest is not subject to the transfer tax.
    Petition to procure an adjudication whether a stun held by a trustee under a will is subject to the transfer tax.

      W. F. Dunning, for Robert F. Little, Louis Bedell, for treasurer of Orange county.
   Coleman, S.

The testator died in 1873, and by the death of his widow, on the 26th day of October, 1893, the children of a sister of the deceased became entitled to the possession of a fund of $40,000, which had been held in trust for the use of the widow during her life. And it is now to be determined whether said fund is subject to a transfer tax under that portion of the third subdivision of section 1 of chapter 399 of the Laws of 1892 which reads as follows:

“Such tax shall also be imposed when any such person or corporation becomes beneficially entitled, in possession or expectancy, to any property or the income thereof by any such transfer, whether made before or after the passage of this act.”

In the case of Tallmadge v. Seaman, 9 Misc. Rep. 303; 61 St. Rep. 73, it is held that this provision relates only to a transfer by conveyance, and that undoubtedly is the strict grammatical and logical construction to be given this sentence, occurring as it does in the same paragraph with transfers of that character. But the use of the word, “also” (“such tax shall also be imposed when,” etc.) makes it doubtful whether the legislature intended so limited a construction ; rather, possibly, it was intended to include transfers by wills. Added force to this possibility is given by the fact that beneficial interests in possession or expectancy are generally created by wills rather than by deeds. However, even if transfers by wills are included in this provision, such transfers are only made subject to the tax when the person or corporation becomes beneficially entitled, whether the transfer is made before or after the passage of this act. Becoming beneficially entitled is quite a different thing from becoming entitled to actual possession. In this case the legatees became beneficially entitled to their rights in the testator’s property at his death in the year 1873. At the time of that event the transfer by the will of theif beneficial interest occurred, while they only became entitled to the actual possession of the property at the death of the widow.

The transfer of the beneficial interest having occurred before the passage of this or of the previous acts, it is not subject to the tax, unless the act is intended to be retroactive. To conclude that this clause in the act was intended to be retroactive would be to extend its effect beyond the scope of the remainder and principal part of the act, which is not a necessary construction, and is improbable. It is very much more probable that it was intended, simply to have this clause, in harmony with the rest of the act cover transfers, if any there should be, whereby, either by will or deed, whether executed before or after the passage of the act, a person or corporation thereafter should become beneficially entitled to any property. See In re Brooks’ Estate (Surr.) infra. I therefore conclude that no tax is due, and that the appointment of an appraiser will be unnecessary. Decreed accordingly.