text:
    GEORGE H. CONVERSE, by Guardian, Respondent, v. ARTEMUS B. WALKER, Appellant.

      Negligence — liability of a landlord to strangers, whom, he has allowed to come upon his premises.

    The defendant was the owner of certain grounds, upon which there was a building used and occupied by him as a public hotel. In front of the hotel was a piazza on a level with the main floor, about seven feet from the ground, about forty feet long and sixteen feet wide, underneath which was a billiard room used in connection with the hotel, the entrance to it being on a level with the ground. The piazza was supported by posts, one of which had been removed about a year before the accident, to improve the billiard room. Adja- ' cent1 to the defendant’s grounds were situated another hotel, and the grounds of the Pioneer Association. In August, 1878, there was a public meeting and celebration on the grounds of the association, which was attended by large numbers of people. A large number of guests were on that day entertained by the defendant. In the afternoon a sudden and severe storm of wind and rain arose, which drove from the grounds adjoining the house a large number of people who were gathered there, many of whom, including the plaintiff, were not defendant’s guests. A number of them gathered in the defendant’s hotel and upon the piazza, occupying two-thirds of the standing room thereon. The floor of the piazza fell in consequence of this great weight, and injured the plaintiff who, with his mother, had sought refuge in the billiard room, beneath it. As soon as the crowd came into the building the defendant and his servants did all that could reasonably be done to preserve order among the people and to notify them of the danger to which they were exposed by their own action. In an action to recover damages for the injury so sustained by the plaintiff*

      Held, that a nonsuit should have been ordered, upon the ground that no actionable negligence upon the part of the defendant was shown.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order of the "Wyoming Special Term 'denying a motion for new trial, made upon a case and exceptions.
    The action was founded upon the alleged negligence of the defendant. The complaint alleges that in August, 1878, the defendant was the owner of certain grounds upon which there was a building used and occupied by him as a public hotel, a place of public resort; that there was connected with such building and used as a part thereof, a piazza, underneath which there was a room also used as a part of the hotel building, both of which were used by the guests and visitors of such hotel; that such piazza was negligently and carelessly constructed, inasmuch as there was not furnished and provided the necessary props or supports underneath the same, and inasmuch, also, as certain props or supports of the same had been before removed by or under the direction of the defendant, and that the defendant, well knowing the premises, and while in the occupancy of said building did negligently and wrongfully leave the said piazza unprotected and unsupported, and did wrongfully and negligently suffer a great number of persons to go on said piazza by means whereof the said piazza gave way and fell upon the plaintiff, who was lawfully in said building, and by permission and request of said defendant and while in pursuit of the plaintiff’s own business, that by reason of the premises, the defendant was greatly hurt and injured in one of his arms.

      I. Sam Johnson, for the appellant.

      F. G. Peak, for the respondent.
   Barker, J.:

The facts of the case upon which the plaintiff seeks to uphold the verdict are undisputed. Briefly stated they are thesp: the defendant was the proprietor of a hotel at Hemlock Lake, located upon a piece of uninclosed land of which he was also the occupant, the same being used in connection with the hotel. The main part of the building was surrounded by a covered piazza, one section thereof being about forty feet in length and sixteen in width, the floor of which is on a level with the floor of the main part 'of the hotel, and is reached through doors opening out from this floor on to the veranda. The floor of the piazza is seven feet from the ground, and beneath it there is a billiard room used in connection with the hotel and as a part thereof,' the entrance to which is on a grade with the grounds ' and walks which surround the building. Near by there is another hotel. It does not, however, appear from the evidence that there are other accommodations for the public at this place. Adjacent to the defendant’s hotel grounds are the grounds of the Pioiieer Association, between which and the hotel grounds there is no fence or other object indicating the division line.

The day the plaintiff vas injured there was a public meeting and celebration on the grounds of the Pioneer Association, the attendance being unusually large, amounting as estimated by some of the witnesses to from twelve to fifteen thousand people. The defendant’s hotel was open and a large number of guests were entertained by the defendant. • The place of interest on _the Pioneer grounds, and around which the people in attendance mostly gathered, was some ten or twelve rods from the defendant’s hotel. Upon the grounds surrounding the hotel many people not guests at the hotel served their own refreshments without any objection being made by the defendant. In the afternoon there came a sudden and severe storm of wind and rain which broke up the meeting and dispersed the people who had assembled on the Pioneer grounds, many of them seeking shelter in the defendant’s hotel. The plaintiff, a lad thirteen years old, in company with his father and mother, was on the Pioneer grounds when the storm , came on and he, in company with his parents, went to the door of the billiard room under the piazza, and he and his mother passed into the billiard room out of the storm, his father remaining outside. The' piazza over this room was resorted to by a large number of people from the Pioneer grounds, two-thirds of the standing room being thus occupied, and in consequence of the weight thereon the floor fell and injured the plaintiff, who was in the billiard room below. The first floor of the hotel was also filled with people, all of whom came in within the space of five minutes. Most of the people on the piazza were not guests of the hotel and went there seeking shelter from the storm. About a year before the accident one of the props or supports under the middle of the veranda floor was removed for the more convenient use of the billiard room, and the proofs tended to show 'that in ■ consequence of such removal the strength of the piazza was weakened, and that it was more likely to give way when in use. Neither the plaintiff nor his parents were guests at tiie hotel that day, and they went into the billiard room to be out of the storm and for no other purpose.

At the close of the plaintiff’s proofs the defendant moved for a nonsuit, which was denied and the defendant excepted. At the close of all the proofs the learned judge charged the jury in substance: that, under the circumstances of the case, the law required from the defendant the exercise of a reasonable and proper care, for the purpose of protecting the people, who availed themselves of the permission and license extended to them by the defendant, against the risk of accident, and that he should use ■ordinary diligence and care to avoid such consequences as happened to the plaintiff. That the important inquiry was, whether the defendant was shown to be negligent, whether there was any want ■of care or skill on his part-, in consequence of which this injury was produced. In other words, whether he should, in view ■of the extensive invitations circulated at that time, have prepared his building in such manner that it would be free from calamities of this nature; whether reasonable and proper care devoted to the .structure, required something more than had been done by him, in order to protect the persons who might visit this house against ■consequences such as happened to the plaintiff.

On the subject of the removing of the posts or support, and the effect the removal may have had upon the strength of the piazza, the charge was, viz.: “ It is claimed on the part of the plaintiff, .and whether the position is well taken or not is a matter for you to determine, that it did contribute to the' strength of the structure .at that place,' and that if the post had not been removed from its place without substituting for it some support, the accident would not have happened. That there was that omission of care and want of skill as justly and properly involved him in negligence. 'That is a question for you to determine, and these questions are to be determined, if they are found for the plaintiff, not by guessing or ■conjecture, but as satisfactorily established by the evidence, so that conviction forces the conclusion on your minds as a fair and proper .and legitimate deduction, and the charge is'made out against the party ,as alleged as the same must be in order'to constitute a legal liability.”

As the plaintiff was not a guest at the defendant’s hotel, and did not enter the same expecting to become one or to transact business with the defendant or with any of the guests of the house, I am unable to discover that the defendant was guilty of any breach of duty which he owed to the plaintiff.

He entered the hotel building for his own comfort and convenience, without any special invitation or inducement extended or held out to him on this occasion. It may well be assumed? however, in view of the character of the business carried on by defendant, that he extended to the public a general invitation to visit his hotel and the pleasure grounds surrounding the same, for their own comfort and convenience, to be used and enjoyed to the extent and in the way and manner such as is usual for visitors who are not guests of the house, and who have no business to transact with persons lawfully on the premises.

This is the most liberal view that can be taken of the case in the plaintiff’s behalf. This would place the defendant under the same obligations towards those who accepted his invitations, to care for and protect them from danger, as any host is who entertains invited guests without compensation. In order to maintain an action for an injury to person or property by reason of negligence or want of due care, there must be shown to exist some obligation or duty towards the plaintiff, which the defendant has left undischarged or unfulfilled. This is the basis on which the cause of action rests. There can be no fault or negligence, or breach of duty, where there is no act,- or service, or contract which a party is bound to perform or fulfill. All the eases in the books in which a party is- sought to be charged on the ground that he-has caused the way or other place to be incumbered, or suffered it to be in a dangerous condition, whereby accident or injury has .been occasioned to another, turn on the principle that negligence consists in doing or omitting to do an act by which a legal' duty or obligation has been violated. Thus, a trespasser who goes on the land of another without right cannot maintain an action if he runs against a barrier or.falls into an excavation there situated., The owner of the land is not bound to protect or provide safegixards for wrong doers. So a licensee who enters on premises by permission only without any enticement, allurement or inducement being held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls. He goes there at his own risk and enjoys the license subject to its concomitant perils. No duty is imposed by law on the owner or occupant to keep his premises in a suitable condition for those who go there solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come upon the grounds for the purpose for which the premises are appropriated and occupied, by some preparation or adaptation of the place for use by customers or passengers which might naturally and reasonably lead them to suppose that they might properly and safely enter thereon. (Sweeny v. Old Colony and Newport Railroad Co., 10 Allen, 368; Nicholson v. Erie Railway Co., 41 N. Y., 525.)

In the first of .these cases the rule is stated as follows: “ The general rule or principle applicable to this class of cases is, that an owner or occupant is bound to keep his premises in a safe and suitable condition for those who come upon and pass over them, using due care if he has held out any invitation, allurement or inducement, either express or implied, by which they have' been led to enter thereon. A mere naked license or permission to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner or person in possession, to provide against the danger of accident. The gist of the liability consists in the fact that the person injured did not act merely for his own convenience and pleasure, and from motives to which no act or sign of the owner or occupant contributed, but that he entered the premises because he was led to believe fhat they were intended to be used by visitors or passengers, and that such use was not only acquiesced in by the owner or person in possession and control of the premises, but that it was in accordance with -the intention and. design with which the way or place was adapted and prepared or allowed to be so used: The true distinction is this: A mere passive acquiescence by an owner or occupier in a certain use of his land by others involves no liability; but if he either directly or by implication induces persons to enter on and pass over his premises, he thereby assumes an obligation that' they are in a safe condition, suitable for such use, and for a breach of this obligation he is liable in damages to a person injured thereby.”

It is not easy to state the limit of the privileges which were included in the implied invitation. So much as was intended by the defendant was to the public generally, and not to any person or class of persons specially. Those' who sought refuge in the defendant’s hotel oh this occasion, must be regarded as having accepted the invitation in the face of the obvious perils and dangers incident to such a sudden occupation of the grounds and house by a multitude of people, many of whom, from the want of room, were unable to gain admittance to the hotel.

It must be admitted, that tbe defendant is not liable to the charge of negligence, by reason of anything which he did or omitted to do on this occasion. The veranda was apparently in a safe and secure condition, and there is not the least evidence that the defendant knew that it had not the strength to support the weight to which it was ordinarily subjected, when visited by the usual and customary number of guests in the hotel. The prop or support which was removed in 1877, had been out for more than a year when this accident happened, and in June, the same year, tlhere was a large assemblage of persons on the veranda, and there was no sign or indication of its giving way, or of its strength, being insufficient, in consequence of the weight to which it was then subjected. The defendant was not instrumental in the least in convening a multitude of people near his house and grounds; and he had no reason to anticipate the situation which so suddenly occurred and induced the people, in such a hurried and reckless manner, to enter his house and occupy the verandas. As soon as the crowd came he and his servants did all that could reasonably have been done to preserve order among, the people, and to notify them of the danger to which they were exposed by their own action.

It is common observation that such places are mostly used by guests of hotels for quiet and restful enjoyment. That it is very exceptional that any hotel is so quickly and completely overrun by a mass of visitors. There is a marked distinction between this case and the class of cases where the defendant has done an affirmative act by placing obstructions or digging pitfalls in the roads and places of resort to which the public have been by him invited.

The case is not unlike Southcote v. Stanley (1 Hurlst. & Norm., 247). There the declaration alleged that the defendant was possessed of a hotel, into which he had invited the plaintiff to come as a visitor, in which there was a glass door which it was necessary for the plaintiff to open for the purpose of leaving the hotel, and which the plaintiff by the permission of the defendant, and with his knowledge and without any warning from him, lawfully opened for the purpose aforesaid as the door was in a proper condition to be opened, nevertheless by and through the mere carelessness, negligence and default of the defendant, the door was then in an insecure and dangerous condition and unfit to be opened, and by reason of the said door being in such an insecure and dangerous condition, and of tbe then carelessness, negligence, default and improper conduct of tbe defendant in tbat behalf, a large piece of glass fell from tbe door and wounded tbe plaintiff. Tbe defendant demurred, and it was beld tbe declaration disclosed no cause of action. Tbe demurrer was sustained, tbe decision being placed upon tbe ground tbat no act of omission was alleged against tbe defendant, and that tbe case as stated did not disclose a breach of duty by the defendant.

Justice Br am well is his opinion remarked : “I agree * * * tbat where a person is in tbe bouse of another, either on business or for any other purpose, be has a right to expect tbat tbe owner of tbe bouse will take reasonable care to protect him from injury;' for instance, tbat be will not allow a trap door to be open through which tbe visitor may fall. But in this case my difficulty is to see tbat tbe declaration charges any act of commission. If a person asked another to walk in his garden, in which be bad placed spring-guns or man-traps, and tbe latter, not being aware of it, was thereby injured, tbat would be an act of commission.”

Tbe case of Camp v. Wood (76 N. Y., 92), cited by tbe respondent and rebed upon as an authority in siipport of bis position, does not seem to be in point. There tbe plaintiff sustained an injury by falling from a piazza erected on tbe side of tbe defendant’s hotel, tbe same'being six feet wide and twelve feet above tbe sidewalk, and was reached by a door which opened out upon it from tbe second story of tbe bouse. There was no guard or railing to the piazza. Tbe plaintiff was a guest in tbe bouse that night, attending a dance for which be paid an entrance fee, and remained one of tbe company until about eleven o’clock in tbe evening, when be left for home. It being a dark night be mistook the veranda for tbe front stoop or platform to tbe bouse which led to tbe first floor of tbe hotel. Tbe distinction between tbat ease and this being, tbat in tbe case cited tbe plaintiff was a guest of the bouse, and the place where be was injured was in tbe nature of a snare or pitfall having no proper or suitable guard, and for tbat reason accidents of tbat character might reasonably have been anticipated and should have been guarded against, and it was' beld to be negligence in tbe landlord not to do so. Where the owner of land expressly or by implication entices a person to go on his land, he cannot permit anything in the nature of a snare to exist thereon which results in the injury of the person who avails himself of the invitation, and who at the time is exercising ordinary care, without being answerable for the consequences.

The case of Corby v. Hill (4 C. B. [N. S.], 556 [93 Eng. Com. Law, 554]), illustrates this rule. There the facts were: The owner of land upon which was a private road leading to an asylum on his premises for the use of persons going there, gave permission to a third person to place material on the'road. The servant of the plaintiff in the night time while driving his master’s horse over this road on his way to the asylum, and using due care, ran upon and against the material placed in the , way by defendant’s permission, and the horse jwas injured. The defendant was held to be liable, and Cockburn, C. J., said: “The proprietors of the soil held out an allurement whereby the plaintiff was induced to come upon the place in question; they held out this road to all persons having occasion to proceed to the asylum as the means of access thereto. Could they have justified the placing an obstruction across the way whereby an injury was occasioned to one using the way by their invitation ? Clearly they could not.”

It will be observed- that there the defendant the owner of the soil was guilty of an act' of commission. It is usual and proper in most cases of alleged negligence to submit the question in dispute to the jury for their determination, but in this case there is no dispute about the controlling facts and circumstances, and to my mind it would be unjust to the defendant and an unreasonable deduction to make ■ from the facts to charge the defendant with being guilty of a breach of duty which he owed the plaintiff, and the motion for a nonsuit should have been granted. It is therefore unnecessary to consider the exceptions which were taken to portions of the charge and to some of the evidence given by the plaintiff.

The judgment should be reversed, new trial granted, costs to abide the event.

Present — Smith, P. J., Hardin and Barker, JJ.

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


source: Caselaw Access Project

author: Barker, J.:

license: Public Domain

text:
    EDWIN BEARDSLEY and NATHAN OAKS, Assignees of LEMAN B. HOTCHKISS, Respondents, v. WILLIAM B. HOTCHKISS and Others, Respondents, and THE GENEVA NATIONAL BANK and Others, Appellants.

      Ante-nuptial agreement — ratification of it by am inf amt wife often' she becomes of age— power reserved to hen' of devising the property — what estates and limitations she may create under it — absolute ownership must vest within the duration of lives existing when the agreement was made — distinction between real and personal estate — allowance to the father for moneys advanced to and expended for infant, and adult child/ren..
    The defendant Hotchkiss having made a general assignment containing prefer- ■ enees to the plaintiffs, the defendant, The Geneva National Bank, a general creditor, contested in this action the amounts due to the creditors constituting the second preferred class. These creditors were children of the assignor, and the debts were claimed to be due to them for property, both real and personal, to . • which they were entitled under the will of their mother, and whiqh had been received and not accounted for by him. Prior to the marriage of the assignor and on April 29, 1844, an ante-nuptial agreement was entered into between him and his intended wife, Lucretia Oaks, who was then under the age of twenty-one years. The agreement provided that all her property, both real and personal, was to be conveyed to a trustee; that she should receive for and during her natural life, and free from all control of her husband, the rents and profits thereof; that upon her death the trustee should stand seized for the usd of her husband, if he survived her, and if not for the use and benefit of her heirs, subject to a power reserved to the said Lucretia to give and devise, notwithstanding her coverture, the said premises to and among her husband and their issue, or to him, or to such issue or any of them, in such shares and proportions as to her should seem meet. Such gift or devise to take effect, and the estate so given and devised to vest in the devisees named, as the same should be to them given and devised upon her death.
    The wife died in 1855, leaving her husband and five children her surviving, and a last will and testament, made in January, 1850, by which she bequeathed the property named in the ante-nuptial agreement to her children, and appointed her husband her executor and the guardian of the children. The will was proved and letters'testamentary were issued to the husband, who took possession of the property, both real and personal, and applied the rents, issues and income thereof to his own use.
    It appeared that the trustee never took possession of the property, but that the rents, issues and profits were collected and used by the wife and her husband. The referee charged the husband with the amount of the rents and profits of the real estate,, and with the amount of the personal property which came into his hands, and which constituted the personal estate of the wife prior to her marriage.

      Held, that although the ante-nuptial agreement was voidable by reason of the infancy of the intended wife, and although the burden of proving that she had ratified it after attaining her majority rested 'upon those claiming under the agreement, yet as sufficient proof of such ratification was given the agreement was valid, as against the creditors of the husband, and prevented them from, claiming that he was entitled to receive the rents and profits of the real estate, subsequent to his wife’s death, by virtue of his marital rights and as a tenant by the curtesy.
    The ante-nuptial agreement recited that all the personal property of the intended wife should be settled and reserved for her sole and separate use during her life, and that she should have power to dispose of the same by her will as-therein provided. Her husband covenanted therein that he would join and concur with her in all such acts and deeds as might be necessary to effect such settlement. No conveyance of the property from her or her husband to-the trustee was ever executed.

      Held, that as against the husband and his creditors the equitable title to the personal property of the wife was transferred to the trustee, and as a specific performance of the covenant of the husband could at any time be compelled • by the trustee, or after the death of the wife by her legatees, the husband was properly charged with the amount of the personal property so receive^ by him. ^
    The will of the wife, after referring to the ante-nuptial agreement and the power therein, reserved of giving and devising her estate as therein described and referred to, proceeds as follows: “Now therefore I, the said Lucret-ia Hotchkiss, do make, publish and declare this my last will and testament in the manner and form following, that is .to say: First. I give, devise and bequeath unto such child or children as I shall leave or have living at the, time of my decease, and to their heirs and assigns forever, all my real and personal estate of every manner and nature, wheresoever situated, and more particularly described in the instrument hereinbefore referred to.”

      Held, that the will was intended to be an execution of the power reserved to the testatrix and nothing more, and that it was not intended to, and did not, pass or affect real and personal property acquired by her after her marriage; and that as to such property she died intestate.
    The testatrix left her surviving five children, all of them minors. One of them died under age, unmarried and without issue. The devise to the children was - followed by a clause as follows: “Provided, nevertheless, that in case either or any of my children living at my decease shall die before he, she or they shall arrive at the age of twenty-one years, and without issue living at the decease of such child or children, the share or. estate of the child or children so dying shall vest and belong to; and I give and devise the same to the survivor or survivors of such deceased child or children.”

      Held, that the testatrix was authorized by the terms of the ante-nuptial agreement, to so limit the estates devised to her children, and provide for the division of the share of a child dying under age and without issue among its brothers and sisters.

      That the gift over of the share of a child so dying was valid as to the real estate, but invalid as to the personal property as unlawfully suspending the absolute ownership thereof.
    That the share of the real estate of a child so dying vested absolutely in the survivors, and would not be divested by their subsequent death under age and without issue".
    That the rents and profits accruing upon the share of a child so dying, from the time of the death of his mother to that of his own, were his own absolute property and did not follow the devise over of the real estate.
    From the time of the death of the mother the minor children resided with the father, and were maintained and educated by him at his own cost and expense. Two of the daughters continued to reside with their father, and were so maintained and supported after they had arrived at full age.

      Held, that the father should not be credited with the cost of supporting and maintaining the minor children, but should be credited with money advanced to the^ children, after they came of age, to complete their education, and for their wardrobes and traveling expenses, as advances made out of the moneys in his hands as their guardian and trustee.
    Appeal by tbe corporation defendants, from a judgment entered apon the report of a referee.
    "William B. Hotchkiss, an insolvent debtor, made an assignment of all his property for the" benefit of his creditors on the 7th of June, 1879, naming the plaintiffs as his assignees, who accepted the trust and entered upon its execution. The creditors • are classified, the appellants being placed with the general creditors who are mentioned in the assignment as the fourth class. Among the preferred creditors who constitute the second class, are the assignor’s three children, William B., Fannie T. and Alice L., who are the children of his late wife Lucretia Hotchkiss. The debt due these children was not liquidated at the time of the assignment, and the assignees were directed to pay them such sums as should be found due on an accounting after allowing all just payments and offsets. A portion of the assets have been converted into money añd the' first class of creditors paid off in full, and there is now in the hands of the assignees a large amount of valuable assets.
    This action is for the purpose of determining the amount due the children, and for instructions. The main controversy is over the question of how much is due from the assignor to his said children respectively.
    Leman B. Hotchkiss, the assignor, intermarried with Lucretia Oaks on the 1st day of May, 1844, in Ontario county, in this. State. Prior thereto and on the twenty-ninth day of April, of the ■ same year, an ante-nuptial agreement was ^entered into by and between them, Lucretia Oaks being at that time an infant under the age cf twenty years. The property belonged to the intended wife, and consisted of lands of large value and also of some personal property. The articles, upon the treaty for said intended marriage, which were agreed to by and between the said Leman B. Hotchkiss and said Lucretia Oaks, provided that all the real estate belonging to the said Lucretia should be conveyed to Willard Wells, as trustee, and that she should receive for and during her natural life and for her sole and separate use, the rents and profits thereof, free, clear and discharged from the control of her intended husband, and if her husband survived her, then the trustee ^was to stand and be seized of the lands for the use of him, her intended husband, for and during his natural life, and in case he should not survive the said Lucretia, then' upon her death the trustee was to stand and be seized of the real estate for the use and benefit of the heirs of the said Lucretia, she reserving the right and power to give and devise the said real estate to. and among her lawful issue, or any one or more of such issue in such shares and proportions as she should deem meet, or to devise the said real estate to the said Leman B., her said intended husband, or to him and her said issue, or to him and any one or more of such issue, in such shares and proportions as to her should seem meet, notwithstanding her coverture. In express terms Hotchkiss, the intended husband, gave his consent to the conveyance to the trustee and joined in the execution of the instrument, releasing all control over the rents and profits. ' Mrs. Hotchkiss died in July, 1855, leaving her surviving her husband and five children. Prior to her death and in January, 1850, she made and executed a last will and testament which has been admitted to probate, and by the'terms of which she bequeathed the property mentioned in the marriage articles -to her children, naming her husband as executor of the will, to whom letters testamentary were issued, and constituting him the guardian of her children. Hpon the death of the wife her husband went into possession and received the rents and profits of all the real estate, as well as the personal property, and it appears, from the proof, that he applied the income of the real estate and converted to his own use the personal property, and in the accounting before the referee, with a view of ascertaining the sum justly due his children, he was charged with the rents and profits of the real estate, and with the amount of the personal property which came to his hands and which constituted the personal estate of his wife prior to her marriage.
    The appellants insist that as Mrs. Hotchkiss was a minor at the time of the execution of the articles they were voidable, and that she never ratified them after arriving at full age, but in fact disaffirmed them, and for that reason her husband had an estate by the curtesy in all the lands, and became the absolute owner of all the personal estate of his wife as it existed at the time of the marriage.. The other facts necessary to the questions discussed are mentioned in the opinion.

      Barlow c& Olmey, for the National Park Bank of New York appellant.

      Mason c& Rose, for the defendant Banks of Geneva.

      W. R. Adams, for the defendant, The First National Bank of Oanandaigua, appellant.

      C. R. Hobby, for the plaintiffs, respondents,

      Ooggswell & Bentley, for the defendant Hotchkiss, respondent
   Barker, J.:

The question first argued on the hearing is the one which we shall first consider, that is, had Leman B. Hotchkiss, the husband, an estate by the curtesy in the lands of which his wife was seized, as owner in fee simple, at the time of the execution of the marriage agreement. This instrument is in due form of law, the intention of the parties thereto is clearly and intelligently expressed, and the purpose sought to be effectuated by the parties was in every respect legal. This being so the trustee became vested with the fee of the lands immediately on the delivery of the instrument, therefore there was never any seizin in the wife after coverture, if she ratified the same after arriving of full age.

It is contended by the appellant, that the wife never did ratify the marriage agreement, but on the contrary repudiated the same and assumed entire control of her estate, both real and personal aa if the articles had no existence. Her infancy being conceded it was necessary and incumbent upon the children to establish as a fact that on arriving at majority their mother did affirm the same, otherwise their father on the death of their .mother had a vested estate by curtesy in all the lands embraced in the marriage articles. If such an estate became vested in the husband the same has been transferred to his assignees for the benefit of his creditors, and he was entitled in his own right to the use, rents and profits thereof, from the death of Mrs. Hotchkiss up to the time of making the assignment. The 'assignees representing the creditors stand in the place of the assignor, and in their interest may insist on a recognition of all his property rights, as they existed at the time of the assignment, as against the claim of the children.

It has not been claimed before us that the appeal by the bank creditors, does not bring up for review any error in the accounting which affects their interest. The action may be considered and has been so regarded, as in the nature of a bill of interpleader, to adjust and determine the rights of creditors as between themselves, to the funds and assets in the hands of the assignees.

The deed of an infant, when intended as a grant, is not void but only voidable! It may be avoided by an infant when he attains his age and by those who are privy in blood or estate, but it passes a title which a stranger is never permitted to impeach. If there be any adult parties to the grant or contract, it is binding on them so long as it remains executory and is not rescinded by the infant. (2 Kent’s Com., 232—236; Dominick v. Michael, 4 Sandf., 419; Bool v. Mix, 17 Wend., 119.)

Doubtless, and we so hold for all the purposes of this case, that the affirmative of this question is with those who claim a ratificar tion. We are satisfied with the decision, of the referee on this question, and believe with him that the intention of the wife to affirm and abide by the terms of the marriage agreement and to uphold the trust created for her own benefit, is manifest, and to hold to the contrary would defeat her intention concerning the management and disposition of her estate, and thwart her purpose of preserving and securing to her children her estate as the same existed at the time of the execution of the marriage settlement.

. It is not disclosed by tbe evidence that she ever did by any utterances on her part condemn the ante-nuptial agreement, or expressed any dissatisfaction therewith. The fact of the most significance, indicating disaffirmance, is that she never surrendered possession of the lands to the trustee, and she and her husband occupied the premises, enjoyed the use, rents and profits, and managed the same independent of any direct interference or supervision by the trustee. In this .connection, however, should be mentioned, as indicating that Mrs. Hotchkiss, as well as the trustee, considered the articles as continuing in force, the circumstance that each year she executed and delivered to the trustee a receipt indorsed on the original articles, in the following words: Received of Willard Wells, payment in full for the use and occupation of the property described in the within instrument, together with all the rents,- profits and income of the same to this date.” The rents and profits belonged to the wife in her own right, and in view of the fact that the real estate consisted of farm lands, it was a very natural arrangement for the interested parties to make, that the wife should enjoy the possession instead of requiring the trustee to let and lease the same and pay over the awards to the beneficiary. We can well believe that such was the most wise and prudent course to take, for the purpose of securing to Mrs. Hotchkiss and her family, the largest income from the property.

In her will, the testatrix, refers to the marriage articles with so much particularity, and the recitals are such that it is manifest she never did disaffirm the same, and at the time of making the will regarded them as in full force and valid.

The ratification of the marriage articles being well established, it follows as a matter of law, that the husband had no estate by the curtesy in the land embraced therein.

In stating the account between the assignor and his children, the former was.charged with the personal estate owned by Mrs. Hotchkiss at the time of the execution of the articles, amounting in the aggregate to $11,000, which sum came to his hands as executor, on the death of Mrs. Hotchkiss. The appellants insist that this item should be rejected, for the reason that all the personal estate of the wife became the property of the assignor on and after the marriage and that his right thereto, as the husband of the testatrix, was not affected by the ante-nuptial agreement.

It is therein recited, as one of the terms of the treaty for the intended marriage, that all the personal estate of the intended wife should be settled and reserved for her sole and separate use for her natural life, and that she_ should have the income thereof, and that after her death it should be and belong to her next of kin, reserving, however, to herself the power to dispose of the same by a last will and testament, to and for the benefit of her children, in snch shares and proportions as to her should seem meet and proper. This recital is followed by a covenant on the part of the husband that in consideration of the intended marriage he would at all times thereafter join and concur with his intended wife in all such acts, deeds, assignments and assurances, as should in law be found necessary to settle all the personal estate of his intended wife in the trustee, upon the trust, and for the uses and purposes therein mentioned. Mrs. Hotchkiss died without any further conveyance or assurance of title being executed by herself or her husband to the trustee. This covenant ,on the part of the husband is founded upon a good consideration and is binding upon him, as< marriage is in law a valuable consideration and is as effective as money. (Bradish v. Gibbs, 3 Johns. Ch., 550.) The trustee could have at any time during the life of Mrs. Hotchkiss, compelled a specific performance of this covenant on the part of the husband. Upon the death of their mother the children, as her legatees under the will, in equity became the owner of the personal property embraced within the terms of the marriage agreement, although their father never made a formal assignment or release to the trustee. An intended husband may by a mere agreement, simply executory in terms, if founded on a good consideration, release and surrender up all his interest in the personal property of his intended wife. It is a general rule that equity will execute marriage articles, at the instance of all persons who are within the influence of ihe marriage consideration, the same as if there had been a complete conveyance. (Bradish v. Gibbs, 3 Johns. Ch., 550; Wadhams v. Am. Home Miss. Society, 12 N. Y., 422.)

This item of $11,000, was therefore properly charged to the assignor as a fund belonging to the children, whether it came to his hands directly from the trustee as part of the trust fund, or was paid over directly to the assignor by the original debtors, who owed the same to Mrs. Hotchkiss, prior to her marriage.

At the time of the death of the testatrix she was seized of lands and possessed of some personal property, the title of which was acquired by her after the execution of the marriage agreement. A question is presented by an exception taken to the findings, by the appellants, whether such property was devised and bequeathed by her last will and testament. If it was not, then the assignor had an estate by curtesy in the lands, and under the statute of distributions was entitled to the personal estate. It is contended by the appellants that the will is but an execution of the power, and that the testatrix did not intend by that instrument, to make a disposition of such property as she might own and possess at the time of her death.

After referring to the ante-nuptial agreement by a reference thereto which clearly identifies that instrument, and declaring that she did execute the same prior to her intermarriage, and reserved to herself the privilege of giving and devising her estate as therein described and referred to, follow s the devising paragraph of the will, which is in these words: “Now, therefore, I, the said Lucretia Hotchkiss, do make, publish and declare this my last will and testament, in the manner and form following, that is to say: First. I give, devise and bequeath unto such child or children as I shall leave or have living at the time of my decease, and to their heirs and assigns forever, all my real and personal estate of every name and nature wheresoever situated, and móre particularly described in the instrument hereinbefore referred to..”

In construing wills, deeds and other written instruments, resort is had 'to a variety of legal rules for the purpose of aiding in their interpretation, but all the rules are subordinates to that primary one which requires that every instrument shall be construed according to the intention of the parties. The ordinary rule is that general words are limited in their operation by those which are more particular and specific, unless from all the parts of the instrument it can be discovered that they were used by mistake or misapprehension, and that it was not the intention of the party executing the instrument to narrow and limit the effect of the words possessing the broader meaning. (Platt v. Lott, 17 N. Y., 478.)

The relation or position in which th,e words are placed, in connection with the general words or phrases as used in the writing, often aid in determining the purpose for which they were used. This is significantly so when they aré placed in a separate paragraph at the conclusion of the instrument. When thus inserted it is a general rule to regard them as intended to qualify something that has been previously expressed. When the general words are ' followed immediately, and in the same sentence, by the particular ones, having a special and limited meaning, as they do in this instance, then it may be reasonably concluded that some of the. words have been used by mistake and without a full comprehension of their meaning, and it is the office of interpretation to determine which set of words shall prevail, as expressing the intention of the party. We have experienced some difficulty in ascertaining what was probably the real intention of the testatrix on this subject and the construction which should be given to the will. Our conclusion is that the will was intended to be an' execution of the power reserved to the testatrix, and nothing more; that the words of limitation, limiting and confining the operation of the will to the property described in the ante-nuptial agreement, were used understanding^ and not by mistake, as they form and are a part of the sentence describing the property devised and bequeathed by the will.

In cases of doubt the preamble or introductory clause of the will ■ may be resorted to with a view of ascertaining the intention of the testator. This being read in connection with the clause describing the property, it seems quite certain that the sole purpose of the will was to execute the power reserved to the testatrix. The words “now, therefore,” standing at the head of the devising clause; and being inserted immediately after the preamble, have in this instance a particular significance as indicating the purpose of the testatrix, and were evidently used as a declaration on her part, that by the instrument which she then executed she intended to prepare and publish a last will and testament in'the form required by the ante-nuptial agreement, and to execute the power reserved in the same. As bearing upon the question of intention some weight should be given to the circumstances that the properry owned Dy the testatrix at the time of her death was acquired after the execution and publication of the will. As Mrs. Hotchkiss died intestate as to all her property, both real and personal, acquired after the date of the ante-nuptial agreement, her husband was entitled to an estate by the curtesy in the lands, and to all of the personal property. (Barnes v. Underwood, 47 N. Y., 351; Hatfield v. Sneden, 54 id., 287; Leach v. Leach, 21 Hun, 381; Laws of 1867, chap. 782.) The account, .as it is stated between the assignor and his children, must be connected accordingly.

The testatrix left her surviving five children, all of them minors. Nathan, one of them, died in 1861, under age, unmarried and with-cut issue. By the will the real and personal property was devised to and among the five children in equal proportions, to the exclusion ■of the husband, and upon the condition that if either of them should ■die 'before they arrived at the age of twejity-one years, and without issue living at the time of such death, then the share or estate of the child so dying should vest in and belong to the survivor or survivors ■of such deceased child or children.

In ascertaining the sum due from the assignor to his children, the referee regarded the remainder over as valid, both as to the real and personal estate, and charged the assignor with the rents and profits of the land after the death of the minor child, and with the entire amount of Nathan’s share of the personal estate. The creditors objected to these allowances upon the ground that under . the power- reserved to the testatrix she was not authorized to impose a conditional limitation upon the share allotted to either of the ■children, and the testatrix having selected them, as she was ■authorized to do, as. her devisees or appointees under- the power, •they were entitled to an absolute fee in the land, and the testatrix had no power to limit -or qualify the same, as she sought to do, by providing for the remainder over, on the happening of the con - tingency mentioned in the will. The power reserved to the testatrix in the articles _ seems to be broad enough to justify the limitation provided for in the will. There is no positive direction that the children, who might be selected by the testatrix as -the donees of the estate left at her'disposal, should take .the same free and clear of all conditions and be vested with an absolute fee. It was .one of the declared objects of the ante-nuptial agreement, to secure to the testatrix the privilege of disposing of her property by a last will and testament, and the only restraint placed upon the testatrix, was as to the class of persons to whom it should be given.

The terms of the power so far as they relate to the real estate, authorize the limitation over in favor of the survivors. The reservation is to give and to devise the lands to any one of her children or to any one or more of them, “ in such share and proportions as to her should seem meet, such gift and devise to take effect, and the estate so given and devised to vest in the devisee as the same should be given and devised to them.”

The testatrix under these provisions of the articles of settlement could have excluded the deceased child altogether from sharing in the property. By a last will and testament the testatrix was authorized to make the same disposition of the property to and-among her own issue, as she could have done in and by the articles, by a provision inserted therein, at the time 'that property was conveyed to the trustee.

In Sugden on Powers the rule on this subject, as established by the English cases, is stated as follows: A power to appoint a fund in such proportions as a party shall think fit, implies that he may apportion it out" in such manner as he pleases, consequently he may give an interest for life in a particular share to one child, or limit the capital of the same share to another, or even go so far as to limit to a third child upon a contingency, provided he doles out the whole in this various way among all the children only. The power does not require that he should distribute it in gross sums and give each child an absolute interest in that gross sum, for such a power enables the gift of particular interests and the apportionment of such interests; and a general power to apportion lands receives the same construction, therefore life estates or rent charges may in like manner be given to any of the children.” (2 Sug. on Powers, 272, chap. 15, § 2; Alexander v. Alexander, 2 Ves., 640.)

The subject is not much discussed in this State, and I am unable to find any decision in conflict with this epitome of the cases. An estate created by the execution of a power takes effect in' the same manner as if it had been created by the deed which raised the power. The party who takes under the execution of the power takes under the authority and under the grantor of the power, whether it applies to real or pijrsonal property, in like manner as if the power, and. the instrument executing the power, had been incorporated in one instrument. (4 Kent’s Com., 337.) As to the real estate there was no suspension of the power of alienation in contravention of the provisions of the statute upon the subject. The period during which the absolute right of alienation may be suspended by any instrument in the execution of a power must be computed, not from the date of such instrument, but from the time of the creation of the power. (1 R. S., 737, § 128.)

The power of alienation was only suspended during the life of the testatrix, and upon her death the title vested in her children, a contingent remainder in fee being created on a prior remainder in fee, as provided i'n the sixteenth section of the article of the Revised Statutes, relating t-o the creation and division of estates. (Manice v. Manice, 43 N. Y., 382.)

The language of the will indicates an intention on the part of the testatrix, on the death of either child under age without issue, to give the share and portion of such deceased child to the surviving children in fee and m severalty, and not subject to a further remainder in case another child should die under age without issue.

The provision of the will, creating the remainder, follows the devise to the children, and is as follows: “ Provided, nevertheless, that in case either or any of my children living at my decease, shall die before he, she or they, shall arrive at the age of twenty-one years, and without issue living at the decease of such child or children, the share or estate of the child or children so dymg shall vest and belong to, and 1 give and devise the same to the sv/rvivor or survivors of such deceased child or children.”

This is an express declaration on the part of the testatrix, that upon the happening of the contingency provided for, the share or estate of a deceased child, shall vest in the survivor or survivors. Upon the death of the mother each child was entitled to the possession and enjoyment of his share in severalty.

In giving construction to wills, an illegal intent on 'the part of the testator is not to be inferred. If there be equal ground for inferring a lawful intent, such inference will be accepted.

As the provisions of this section of th¿ statute do not apply to personal property, it was necessary that the same should vest somewhere upon the death of then testatrix, as she was the only person in being at the time of the creation of the power. (Manice v. Manice, supra) The bequest of the personal estate, subject to a remainder over the same as the real estate, was therefore void, and the title to the same vested upon the death of the mother in the children absolutely.

The rents and profits on Nathan’s share of the real estate, after his death, were properly chargeable to the assignor, but his share of the personal estate on his death belonged to the father, and should be stricken from the account as an item against him.

The rents and profits of Nathan’s share in the real estate from the death of his mother, to the time of his own death, were his own absolute property and did not follow the title to the real estate, and they should not have been charged up against the assignor, as they belonged to him under the statute of distributions.

From the time of the death of the mother the minor children lived with their father, and were maintained and educated by him at his own cost and expense. After .they severally arrived of age; in particular, Fannie and Alice continued to reside with their father. The former attained her majority in 1878, and the latter in 1876. The referee refused to credit the father with the expense of maintenance and education of the children, and to this ruling the defendants excepted.

We concur in the decision of the referee as to the support and education during minority, and without taking the time to mention our reasons we cite the following authorities in support of our conclusion: In Matter of Kane (2 Barb. Ch., 375); Carmichael v. Hughes (6 Eng. Law and Eq., 71); Wilkes v. Rogers (6 Johns., 566); Ex parte Bond (2 Mylne & Keen., 440); Smith v. Goertner (40 How., 187).

As to the moneys which were advanced to some of the children, particularly Fannie and Alice, after they became of age, to complete their education, to provide for their wardrobes and to meet traveling expenses, they should be credited to the assignor as sums advanced to them out of the money in his hands as their guardian and trustee. Such expenditures do not come within the. rule of law requiring parents to'educate and support infant children, and it seems entirely just and equitable, in view of the features and circumstances of this case, to credit the assignor’s account with all such items. There is nothing disclosed in the evidence fairly establishing that these moneys were intended as gifts on the part of the father to his children.

¥e have examined all the other items, those allowed as well as those disallowed, to 'which exceptions were taken by the appellants and do not find any error.

The judgment as modified affirmed, the costs of all the parties to this appeal to be paid out of the funds in the hands of the'assignees, the form of the judgment to be settled by Justice Barker.

Hardin, J., concurred; Smith, P. J., not sitting.

Judgment modified as stated in the opinion, and as modified affirmed, with costs of all the parties to the appeal to be paid by the assignees out of the fund. Judgment to be settled before Mr. Justice Barker, on notice.


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    FRANK C. BOLT, Appellant, v. MARY KEYHOE, Respondent.

      Benevolent societies — the relief funds a/re liable for the debts of the beneftcia/ries after such funds have been received by the latter —1879, chap. 189 —1877, chap. 73.
    Chapter 189 of 1879, incorporating a society .for the improvement of the moral, mental and social condition of its members, and to aid and support them and their families in cáses of want, sickness or death, provided that a fund be set apart to be paid over to the family, heirs or legal representatives of disabled or deceased members, or to such person or persons as might be named by such deceased members in their lifetime, and directed that such funds shall be exempt “from execution, and shall not be liable to be seized, taken or appropriated by any legal or equitable process to pay any debt or liability of such deceased member.” In pursuance of directions given by the defendant’s husband, a member of the society, the fund which he was entitled to receive was, upon his death, paid to the defendant for her own absolute use. She loaned the same to one Flagler and took from him his promissory note for the amount thereof.

      Held, that the fund, after being received by l},er, was not exempt from the claims of her creditors.
    That she should be compelled to transfer and deliver the said note to a receiver appointed in proceedings supplementary to an execution issued upon a. judgment recovered against her.

      Appeal from an order, made by the eounty judge of Niagara county, denying a motion to punish the defendant for a contempt.
    In proceedings supplemental to execution, pending before the county judge of Niagara county, an order was made, denying the plaintiff’s application, to punish the defendant as for a contempt, in not delivering assets in her hands, to the receiver, in pursuance of the requirements of a previous order.
    The defendant is the widow of James Keyhoe, who died leaving her and twó children him surviving.

      E. G. Earle, for the appellant.

      Ellsworth' dh Potter, for the respondent.
   Barker, J.:

The plaintiff recovered a personal judgment against the defendant, the' amount of which, and the time when the same was recovered, is not set jforth in the papers.

Upon such judgment an execution against the defendant’s property was duly issued and returned unsatisfied, and thereupon proceedings supplementary to execution were instituted, which resulted in the appointment of a receiver of the property and effects of the judgment debtor. At the time of the appointment of the receiver, the defendant was the owner of a promissory note made by one Flagler, and payable to herself, dated September 5, 1881, for the sum of $3,700. The receiver demanded of the defendant a delivery of the note to him, as receiver, which she refused to do, for the reason that it was exempt from liability for the payment of her debts. The facts upon which such exemption is based are these: James Keyhoe, her late husband, in his lifetime, was a member of “ The Grand Lodge of the Empire Order of Mutual Aid of the State of New York,” and also of “The Grand Lodge of United Workmen of the State of New York.” •Upon his death, which occurred in May, 1881, the first of the above mentioned societies paid over to the defendant $2,000, the other the sum of $1,700, in pursuance of the constitution and by-laws of said societies. These sums were loaned by the defendant to the maker of the note, and constitute the sole and only consideration therefor.

These corporations are organized under the enabling acts (chap. 189, Laws of 1879; chap. 74, Laws of 1877), the provisions of which are precisely the same, so far as they relate to the question presented on this appeal. We shall therefore only refer to and quote from the act of 1879. The corporation thus created is beneficent in its aims and character, and the act declares its purpose to be: To improve the moral, mental and social condition of its members, to prevent strikes among all classes; to aid, assist and support members and their families in case of want, sickness or death. The corporation is authorized to create, hold, manage and disburse a beneficiary fund, sufficient to pay. all loss and expenses incident to its management, and for the relief of the members of the same and their families. This fund is to be set apart, to be paid over to the family, heirs or legal representatives of disabled or deceased members, or to such person or persons as may be named by such deceased member, in his lifetime, and such funds so provided and paid over shall be exempt as the statute declares, “from execution, and shall not be liable to be seized, taken or appropriated by any legal or equitable process, to pay any debt or liability of such deceased member.” By other provisions of the act the collecting, managing and disbursement of the beneficiary fund as well as the person or persons to whom, and the manner and time in which the same shall be paid on the death of a member,-is to be regulated and controlled by the rules and by-laws of the society.

It is set up by the defendant In her affidavit, and not disputed by the plaintiff, that her husband in his lifetime directed that so much of the beneficiary fund as should be payable upon his death, should be paid to her in her own right, in pursuance of the rules and by-laws of the corporation.

I am of the opinion that the note held and owned by the defendant should be appropriated to the payment of the plaintiff’s judgment. It is certain that upon payment of the money to the defendant the same became her absolute property. There is no provision in the act exempting the funds from the payment of the debts of the person who should be entitled to the same, as provided by the charter and by-laws of the corporation, nor is there any declaration of an intent on the part of the legislature to secure such au end. It is the general policy of the law, that all the debtor’s property shall be liable for the payment of his debts. If there be any exception in favor of a class of debtors, it must be found in some legislative enactment. The fund intended to be created by the statute is to be paid over to the family of the deceased member of the society, or to his heirs or representatives, or to such person or persons as he in his lifetime may nominate. A member with the consent of the society, may cause the fund which is to be distributed at his death, to be paid to an entire stranger, depriving his wife and children, if he should have any, of all participation in the same. It is under this provision of the act that the defendant secured absolute title to the money in her own individual right.

If the deceased had not made the defendant his appointee, to whom the money should be paid, and had died without making any appointment whatever, then her interest in the fund would have been much less than it now is, for the reason that without the direction which her husband did make, her children would have had an interest in the fund and the legal fight to share in its use and enjoyment.

As the statute is beneficent in its character, all its provisions-should be so construed as to effectuate the legislative intention. I ant unable to discover any provision which can be made to bear the construction that it was the aim and purpose of the legislature, to exempt the funds in the hands of the donee, from the payment of her debts.

The provision exempting the fund from the payment of the debts-of the deceased member is clear and positive. It is fair to presume, if the legislature intended to preserve the fund from liability to pay the debts of the beneficiaries, the act would have contained a clear and unqualified expression of the purpose. But there is an entire absence of any provision or declaration of intent,’that the fund should be exempt from the debts of the person who shall become-the absolute owner.

The cases cited by the learned counsel for the respondent do not support his argument, nor justify the interpretation sought to be placed upon the statute. In Eadie v. Slimmon (26 N. Y., 9) it was held that a policy of insurance issued to a married woman, under the act of 1840, for her benefit and that of her children, in case of her death before her husband, could not be transferred by her during the lifetime of her husband, whose life was insured so as to divest her interest or that of her children, the court holding that it Was the intent of the statute to make the policies, issued under and in pursuance of the provisions of the act, a security to the family of a married man, and a provision for their use and benefit; that the intent' of the statute would be defeated if such policies were held to be assignable by the wife, like ordinary choses in action belonging to her, in her own right as her separate property; that as the contract was executory in its character, that circumstance distinguished the case from an ordinary chose m action, belonging to a married woman as her separate estate; that the provisions of the law were special and peculiar, and were enacted for the purpose of making a contract of that character valid, which, without the sanction of the act, would have been invalid and ineffective and was intended as a benefit for a state of widowhood and for orphan children, and that it would defeat the policy of the statute to permit the wife to sell and traffic with a policy as though it were realized money, or an ordinary security for money.

In Barry v. Equitable Life Assurance Company (59 N. Y., 587) the plaintiff, in the lifetime of her husband, procured to be issued to herself a policy of life insurance upon the life of her husband for her sole use, if she was living at the time of his death, and if not then living for the benefit of her children. In the lifetime of her husband the plaintiff assigned the policy as a collateral security for the payment of a debt due, the assignee from her husband. It was held, following the case of Eadie v. Slimmon (supra), that the policy was not assignable during the lifetime of her husband; that she could not sell or traffic with it as though it was realized personal property or an ordinary security for money ; that the contract for insurance would be unlawful, except for the provisions of the act of 1840, and the acts amendatory thereof; and that it was the intent of those acts to secure the money for the benefit of the family after the decease of the person whose life was insured.

The case of Smillie v. Quinn (25 Hun, 332) is but another announcement of the same proposition, decided in the cases already cited. In the latter case Mrs. Tetens procured a policy of insurance to be issued upon tbe life of her husband, payable to hersélf, if she survived Mm, and to Ms children in case she should die first. During the life of her husband she assigned the policy to a third person in trust for the benefit of the children, of herself and her husband. Her husband thereafter died, leaving his wife surviving and a personal judgment outstanding against her, recovered for a debt contracted in her separate business. The dispute arose between the trustee for the children and the creditors of -Mrs. Tetens,. as to the title of the money due by the terms of the policy, and it was held that' at the time Mrs. Tetens made the assignment to the trustee for the benefit of her children, her creditors had no personal interest in the policy, nor any' claim or lien upon it, either in law or equity, which they could enforce. As she was under no moral or legal obligation to keep possession of hér ownership of or interest in the policy for their benefit, until upon the possible death of her husband, prior to her own, when her interest in the policy might ripen into a possession in her own right of - the money which would then become payable upon it, her interest in the policy during the lifetime of her husband was contingent, and in disposing of it for the benefit of her children, nothing passed upon which her creditors had any just claim.

This ease was affirmed in the Court of Appeals, and is reported in 90 New York, 492. It'was there ruled that the assignment made by Mrs. Tetens, was not fraudulent as to her judgment creditors, for prior to the death of her husband she had no interest in the policy which her creditors could seize. If it should be held that She had such an interest, the policy of the law could be thwarted in every case by the action of creditors; that she was not bound to keep the policy of insurance in life for the benefit of her creditors, and she could at her own option allow it to lapse; and that it was no fraud upon her creditors to make the assignment in the lifetime of her husband before the moneys .were realized' for the benefit of her children.

These cases simply decide, that a policy of insurance issued to a wife upon the life of her husband, is not assignable while he is living, and that her interest in the contract is not such that the same can be seized by her creditors while the contract remains, executory. They do not reach nor discuss the question whether moneys actually realized on contracts of insurance, after the death of the husband, can be reached by her creditors. As the county judge disposed of the application upon the ground that the note could not be used and appropriated to pay the debt of the judgment debtor and for that reason her refusal was justified, the older should be reversed.

The order which we make is, that the order appealed from be reversed and the proceedings remitted to the county judge of Niagara county, with directions to proceed on the application made by the plaintiff to punish the defendant, with ten dollars costs of this appeal.

Present — Hardiñ, P. J., Barker and Dwight, JJ.

Order reversed, with ten dollars costs and disbursements and proceedings remitted to the county judge of Niagara county, with, directions to proceed on notice.


text:
    THOMAS B. HOWELL, Executor, etc., of HUNTING M. HOWELL, Deceased, Appellant, v. ORLANDO HOWELL and Others, Respondents.

      Practice — proceedings in Surrogate's Court — the Supreme Court can only remero them upon appeal — it cannot grant a new trial therein, for newly discovered evidence.

    A decree was entered in a Surrogate’s Court settling the accounts of the plaintiff, as executor, and requiring him to distribute a specified sum of money among certain legatees. An appeal was taken therefrom to the General Term of the Supreme Court and to the Court of Appeals where the decree was affirmed. Subsequently the appellant moved at a Special Term of the Supreme Court, for a new trial, upon the ground of newly discovered evidence.

      Held, that the court properly denied the motion upon the ground that it had no jurisdiction to entertain the same.
    Appeal from an order of the Oneida Special Term, denying appellant’s motion for a new trial, on the ground of newly discovered evidence.
    Proceedings were instituted in the Surrogate’s Court for the county of Oswego, to compel the appellant, as' executor, to render an account, which resulted in a decree requiring him to distribute a specific sum of money among tlie legatees, of the testator. On such accounting his account was surcharged with an item which, together with the interest thereon, amounted to the sum of $2,800. The executor complains of so much of the decree as charges him with this sum. In J une, 1880, the decree was in all things affirmed at the General Term of the Supreme Court. From the judgment of affirmance entered in this court an appeal was taken to the Court of Appeals which the appellant deserted, and in February, 1881, the same was dismissed. Afterwards and in June, 1880, this motion was made.

      'J. B. Deoher, for the appellant.

      D. P. Lesten•, for the respondents.
   Barker, J.:

The Special Term in denying the motion for a new trial, placed the same upon the ground that this court is without jurisdiction to entertain the same.

We fully concur in the opinion of the learned judge who presided on the hearing. The Surrogate’s Court, where the proceedings originated, has original jurisdiction over the matter involved in this controversy, to take proofs on the questions of fact in contention between the suitors, to make final orders and decrees concerning 1 the matter in dispute subject to the appellate jurisdiction of this court. The right of ajrjjeal is given, to aggrieved parties and the order or decree of the surrogate may be reviewed in this court. The jurisdiction conferred by statute upon the Supreme Court in sucli matters, is strictly appellate and the appeal must be .heard upon the same evidence upon which the court below founded the decree. This court does not proceed de novo.

The statute regulating this subject provides that appeals may be ' taken from the order, decree and sentences of Surrogate’s Court, in all cases to the Supreme Court, except appeals from orders containing an admeasurement bf dower. (2 R. S., 610, § 104, as modified by chap. 280, Laws of 1847.)

In another section provision is made for giving security on such appeal, and it also declares that no such appeal shall ^be effectual without the giving of the security required. Then follows a provision 1 that every such appeal when perfected, shall suspend all proceedings on the order appealed from, until such appeal be determined or until the court unto which the appeal shall, have been made shall authorize proceedings thereon. (See see. 109.)

These are all the provisions contained, in the statute as to the power,¶ jurisdiction' and mode of procedure in this court on an appeal from an order or decree involving the question now presented. Special provision'is made concerning appeals from decrees admitting or rejecting the probate of a will. Prior to the He vised Statutes, the Court of Chancery proceeded on appeals from the decree of surrogates, according to the course of the civil law and might hear new testimony and call to its aid the verdict of a jury upon disputed questions of fact, but since the revision of the laws upon this subject as contained in the Pevised Statutes, the right to proceed de novo does not exist.

In Devin v. Patchin (26 N. Y., 441), which was pn appeal from the decree of a surrogate denying letters of administration to the petitioner therefor, it was distinctly held,-that the decree must be reviewed upon the proofs which were before the surrogate, and that this court had no power to receive further evidence.

This case has not been disturbed and has been followed in subsequent cases as a correct exposition of the statute. (See Doty v. Wilson, 47 N. Y., 580-585; Johnson v. Hicks, 1 Lans., 157.)

In disposing of the appeal, this court may ' affirm, reverse' or modify the decree appealed from, as justice requires. If a reversal of the decree or a modification of the same be ordered, then the practice is to remit the proceedings to the court below with instructions to the surrogate to enter a final decree upon the principles settled by' the appellate court, or to take such further proceedings as may be necessary. (Gardner v. Gardner, 7 Paige, 112; Halsey v. Van Amringe, 6 Paige, 12; 4 Wait’s Prac., 365.)

Upon tire affirmance of the'decree of a surrogate directing the payment of a balance found due from the appellant, the respondent may have the decree of affirmance enrolled and may take execution thereon in the appellate court. Such was the practice in Shultz v. Pulver (3 Paige, 182); Kellett v. Rathbun (4 Paige, 102).

As this court has only jurisdiction to reverse the judgments of the court below for error found in the record brought here on appeal, and cannot try and determine questions of fact anew, the order of the Special Term should be affirmed for the reasons assigned by that court.

Present — Hardin, P. J., Barker and Dwight, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: Dwight, J.:

text:
    DAVID P. MOREHOUSE, as Receiver, etc., of DUNCAN McRAE, Respondent, v. THE SECOND NATIONAL BANK OF OSWEGO, Appellant.

      National hank — action against it for taking usury — when the usury has been paid, within the meaning of the statute— a batanee due from the depositor on an unpaid note cannot be set off against the penalties — U. 8. B. 8., sec. 5198.
    This action was brought by the plaintiff, a receiver of the property of one McRae, to recover penalties incurred by the defendant, a national bank, .by taking unlawful interest from the debtor. It appeared that for a period of fifteen months, in the two years immediately preceding the commencement .of the action, the defendant had discounted McRae’s notes at the rate of thirteen per cent per annum. And it also appeared from the books of the bank that all the paper so discounted had been paid, except the note last discounted, as the balance apparently due from him by the said books was less than the face of the said note.

      Held, that the usurious excess had been paid to the bank within the meaning of the statute.
    That the balance due from McRae could not be set off against the amount due from the bank for the penalties.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

      S. O. Huntington & Son, for the appellant.

      B. B. Burt, for the respondent.
   Dwight, J.:

This is an action for penalties for taking unlawful interest, under section 5198 of the Revised Statutes of the United States. The plaintiff is a receiver in proceedings supplementary to execution of the property of one McRae, in whose favor the alleged cause of action arose.

The loans to McRae were by way of discounts, continuing through a period of about twenty months, fifteen months of which were included within the two years (before the commencement of the action) limited by the statute. Proof of the transactions between the parties was made partly by the evidence of McRae and officers of the defendant, but chiefly by the bank pass-book which exhibited the account of McRae as kept by the officers of the bank; on the one side credits to McRae of cash and the avails of discounts, on the other debits of checks drawn against the account. The particular boobs of the bank which contained the entries of these transactions were mysteriously missing, and were not produced by officers of the bank in response to subpoenas duces tecum. The best evidence attainable seems to have been given by the plaintiff of the dealings of the bank with McRae. It was wholly uncontradicted, and it seems to have established with sufficient certainty the facts found by the referee. These facts, so far as material to the questions®presented on this argument, are that the defendant during the fifteen months embraced within the two years, discounted a large amount of paper at the rate (generally) of thirteen per cent per annum. That the total of the deductions by way of discount in excess of seven per cent per annum amount to the sum of $946.75 ; that the final balance of account against McRae on the 31st day of October, 1878,,as shown by the proof of debt in bankruptcy against McRae, made by the defendant and verified by its president, as also by the verified answer of the defendant in this action was $6,479.50. From which it follows that all the paper discounted by defendant for McRae was paid before the date mentioned, except the last note of $8,106.03, discounted August 28, 1876, and that something like $1,700 was paid on that. The discount on that note (being for one month and at the rate of thirteen per cent per annum) was ninety-two dollars and fifty-three cents.

There was evidence on the part of the defendant tending to show, and the referee finds, an agreement between McRae and the bank in November, 1876, by which he was to release and discharge his claim for penalties, and the bank was to credit him with the amount of such penalties, and apply them in payment of the balance of account due to the bank after applying collections from other sources. This was an agreement which it was entirely competent for the parties to make, and had it been executed, would, have been binding and a complete answer to his action. JBut it was unexecuted. Indeed, it seems to have been entirely ignored by both parties. The bauk proceeded to prove its entire claim against McRae in bankruptcy, setting out under oath a statement of the indebtedness which gave no credit for the penalties in question, and proceeded, also after the alleged settlement, to bring an action and verify a complaint on one of the notes which was embraced in the settlement, if a settle' ment was made. The alleged settlement seems to have been only an unexecuted accord and satisfaction, and therefore of no avail to either party.

This leaves but two questions * in the case as presented by the appellants on this argument: 1st. Was the excess of interest complained of “ paid ” within the meaning of the statute: and 2d. Can the defendant avail itself of the balance due from McRae on the genéral account as an offset to the claim.for penalties.» In the case of the National Bank of Auburn v. Lewis (81 N. Y., 15) the court hold, in effect, that the deduction made by way of discount on a note is interest reserved, and that it is not paid until the note is paid, or a payment made thereon which either by agreement of the parties or by'operation of law is applied to the payment of the interest.

But the rule is recognized, as governing in such case, that a partial payment on a security drawing interest is to be first applied in payment .of interest. Upon this principle the interest on all the notes in this case was paid, for, as we have seen, all the notes were paid in full except the last, and a payment had been made upon that more than sufficient to cover the interest.

■ I am not aware that the other question, namely, of offset, has been directly passed upon in an action for the penalties, when the attempt has been to offset the amount due on the notes, but it clearly must be decided advez’sely to the defense.

In the case of the National Bank of Auburn v. Lewis (supra) it was held, following Barnet v. National Bank (98 U. S., 555), that a cause of action for. the penalties in question could not be offset in an action for the amount due on the notes; and it would seem, on principle, that the rule must woi’k both ways. Indeed,, the reasoning of the two decisions last cited is as applicable to the one case as to the other. The action given by the statute is; in the strictest sense, a penal action. The penalty is incurred the moment the illegal interest is exacted and received; and in the case of Barnet v. Bank, the court say that the penalty can be recovered only in an action “ where the sole issue is the guilt or innocence of the accused without the presence of any extraneous facts which might confuse the case,” etc.. This is directly to the effect that in an action for the penalty no other question can be litigated than the question whether the illegal interest was received; and such I suppose is the rule in- all penal actions.

This disposes of all the questions argued on this appeal. Other questions are suggested in the brief of counsel, but they do not seem to require or admit of extended discussion. One of the' objections 'was that the State court had no jurisdiction of the action for penalties given by a statute of the United States. But all the authorities are to the contrary, and the express provisions of the national banking act are equally so. (See U. S. R. S., § 5136, sub. 4; sec. 5198, as amended in 1875; Claflin v. Houseman, 3 Otto, 130.)

Another objection to the judgment suggested on the brief was that necessary proofs were not made preliminary to the order for the appointment of the plaintiff as receiver of McRae. But the proof of the appointment was offered and received without objection ; and no objection to the sufficiency of, that proof was made at any stage of the trial.

We do not see that any of the defendants’ objections to the judgment are well founded, and are of the opinion that the judgment must be affirmed.

All concur.

So ordered.


text:
    In the Matter of the Accounting of ROBERT K. SMITHER, as Administrator, etc., of CHARLES SMITHER, Deceased. ROBERT K. SMITHER, Respondent. ROBERT SMITHER and Another, Appellants.

      Gift mortis causa --delivery — a check of one about to die is not a valid gift mortis causa.
    The plaintiffs’ intestate being at the point of death, and desiring to give to the respondent a sum of money then on deposit to his credit in a bank, delivered to him a check upon his bank for the amount of the deposit.

      Held, that the delivery of the check was not a sufficient delivery of the money to render the gift valid and effectual.
    Appeal by the present administrators from a decree of the surrogate of Erie county, on the accounting of a former administrator of the same estate.

      O. F. Tabor, for the appellants.

      Baker <& Schwartz, for the respondent.
   Dwight, J.:

The question presented relates to an alleged gift to the respondent (the former administrator) by the intestate, of a fund or deposit belonging to the latter, in the Bank of Commerce in Buffalo.

By a decree of the surrogate dated February 28, 1882, the respondent was removed from the office of administrator of the estate of Charles Smither, deceased, and the appellants were appointed thereto. By the same decree the respondent was required “to account for all money and property received by him as administrator as aforesaid, and to pay and deliver over all money and other property in his hands belonging to the said estate, or received by him as aforesaid ” to the appellants. The respondent made answer that, after the issuance of letters to the appellants, he had paid over to them all the property of every name and nature which he then had as administrator, or otherwise belonging to the deceased, and that he had not (at .the time of his answer) any property of any kind to his knowledge belonging to the estate. The appellants objected to such answer or account, that it failed to charge the respondent with an item of $2,101.13, which was paid to him as administrator of said estate by the Bank of Commerce in Buffalo, on or about the 11th day of Febraary, 1882, and which belonged to said estate. TJpon a hearing of the parties in reference to the accounting, proofs were taken from which the following facts appeared: On the 11th day of January, 1882, Charles Smither, the intestate, deposited in the Bank of Commerce, in Buffalo, the sum of $2,101.13, and received a certificate of deposit therefor in the usual form “ payable to the order of himself on the return of this certificate properly endorsed.” The intestate died January, 28, 1882; two hours before his death he requested the respondent to draw a-check on the Bank of Commerce for the amount of his deposit, and dictated the form of the check substantially as drawn; half an hour later the check was drawn by the respondent, and signed by the intestate as follows:

‘No. Buffalo, N. Y., January 28, 1882.

Pay to the order of R. K. Smither the amount of my deposit, and charge to account of

CHARLES SMITHER.

The check after it was signed was handed to the respondent. Immediately after the death of the intestate the respondent presented the check for payment, which was refused on the ground that the bank could not pay a check after the drawer was dead. On the tenth of February the respondent was appointed administrator, and on the next day, on presentation to the bank of a certificate of his appointment, and the indorsement of the certificate of deposit by him as administrator, the money was paid to him. '

The surrogate found the foregoing facts, and that at the time of the execution and delivery of the check the intestate was at the point of death, but of sound mind and disposing memory, and desired and-intended to make a gift oausa mortis of said deposit to his brother Robert. He also found as a conclusion of law that the execution and delivery of the check constituted an equitable assignment of the deposit and a valid gift causa mortis, and operated to vest in the respondent the title to the moneys represented by the certificate, and the decree was made accordingly from which this appeal is taken. So that the question is presented whether the delivery of an executory order for the payment of money, as a check on a bank, is a sufficient delivery to effectuate a gift of the fund.

The question seems to have been settled in the negative by repeated adjudications. Many of the cases are collated in the opinion of the Supreme Court of the United States, by Matthews, J., in the case of Basket v. Hassell (decided March 26, 1883, reported- in 17 Abb. L. J., 367). That case was not, itself, in point, for there the delivery was of the certificate of deposit itself, under the condition indorsed, that it should not be paid until after the death of the donor. But in the general consideration of the subject, the court cites with approval a number of cases which are directly in point; among them that of Harris v. Clark (3 Comst., 93), in which it was held, that a written order upon a third person, made by the donor, was not the subject of a valid gift, either vnter vwos or mortis causa and Hewitt v. Kaye (L. R., 6 Eq., 198), which was the case of a check on a bank drawn by the donor, where the master of the rolls stated very clearly the distinction between the gift of a chose in action, viz., the evidence of indebtedness of a third person, and the gift of a prorqise to pay or. order for payment of the donor himself, and the distinction is illustrated in numerous other cases cited. Among them Westerlo v. De Witt (36 N. Y. 340), where it was held that the delivery of a certificate of deposit would- constitute a valid donatio mortis causa, the certificates of deposit being a subsisting chose in action and representing the fund it describes, so that the delivery of it constitutes an equitable assignment of the money for which it called. Whereas, in Second National Bank of Detroit v. Williams (13 Mich., 291), it was held that a check upon a bank account is not of itself an equitable assignment of the fund; it is a mere-order or request to pay and,- until accepted by the drawer, constitutes no claim or cause of action against him.

The authorities seem to be very explicit and quite numerous to the effect that the delivery of the check or order of the doner for the payment-of money to the donee is not an executed gift, and unless the money is obtained before the death of the donor it is not a valid gift mortis ccmsa.

The same authorities it is seen dispose of the alternative finding of the surrogate, that the delivery of the check was an equitable assignment of the fund. They hold the contrary, no doubt upon the same general principle as in the case of Tallman v. Hoey (N. Y. Court of Appeals, 15 Week. Dig., 348), where it was held that a valuable consideration is an essential and necessary element of an equitable assignment; and in Brill v. Tuttle (81 N. Y., 454), where it was held that the doctrine of equitable assignment does not apply to uphold an unexecuted or imperfect gift.

A careful examination of' these authorities will I think disclose the same general principle as the.ground of them all, namely, that to effectuate a gift there must be an actual delivery to, and possession by the donee of the subject matter of the gift. If it be a gift of money the money must be delivered to, if it is not already in the possession of the donee. (Champney v. Blanchard, 39 N. Y., 111.) If it be of a chose in action, as a claim against a third person, there must be a delivery of the evidence of indebtedness. And it is under this lattep rule that the delivery of certificates of deposit and of savings bank books have been held sufficient to effectuate the gift of the fund represented thereby. They are choses in action, or evidences of indebtedness enforceable against the institutions or individuals by whom they are issued; whereas a promissory note or cheek of the donor himself is his mere voluntary promise or direction to pay, which of itself is enforceable against nobody. In the case of the chose in action the evidence of indebtedness of the third person is all the donor himself possesses of the subject matter, and therefore, in the nature of things, all he can deliver. In the case of the check the fund upon which it is drawn is within the donor’s control and may itself be made the subject of delivery.

We find the rule as contended for by the appellants well founded in principle and amply sustained by authority, namely, that. the delivery of a check or order for the payment of money is not of itself sufficient to effectuate a gift of the fund upon which it is drawn.

The decree appealed from must therefor be reversed and a rehearing of the matter of the respondent’s accounting be had before the surrogate of Erie county, with costs of the appeal.

All concur.

Present — Smith, P. J., Hardin and Barker, JJ.

Decree of the surrogate reversed, with costs of appeal, and proceedings remitted to the surrogate of Erie county.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN W. SCHLEHR, Appellant, v. THE COMMON COUNCIL OF THE CITY OF BUFFALO, as a Board of Election Canvassers of the City of Buffalo, Respondent.

      Ex parte order — is not appealable — how it can be reviewed.

    No appeal lies to the General Term from an ex pa/rte order made at Special Term, vacating and setting aside an order theretofore made.
    The proper remedy is to move at Special Term, on notice and the proper papers, to set aside the ex parte order objected to, and if such motion is denied then to appeal from such order of denial.
    Appeal from an order made at Special Term vacating and setting aside an order allowing a writ of mandamus.

      O. O. De WíüatkI E. O. Bobbins, for the relator, appellant.

      (riles E. Stillwell, James O. Fullerton and Traoy O. Beaker, for the respondent.
   Dwight, J.:

This appeal is not well brought. The order appealed from was granted ex parte or, so far as appears, on the court’s own motion. No,papers are presented to us which purport to have been used in obtaining the order appealed from. The papers printed in the appeal book are those used on the original application for the order which was set aside, and an affidavit which appears to Lave been made for the purpose of this appeal, and is now first presented to any court.

No, such practice is recognized. An appeal can be heard only on the papers used in obtaining the order appealed from. And it seems that an appeal cannot be taken at all from an order granted ex parte. (Code of Civil Procedure,-§§ 1347, 2087.)

The remedy is by motion at Special Term, on notice and the proper papers, to set aside the ex parte order objected to, and if such motion is denied, an appeal from the order of denial will present the case to the appellate court as it was presented to the1 court making the order.

This appeal should be dismissed.

All concur.

Appeal dismissed, with ten dollars costs and disbursements.