text:
    SARAH HURST, Appellant, v. SUSAN M. HARPER, and others, Respondents.

      Land — consideration furnished by one and title taken by another.

    In March, 1858, one Wormer bid off certain real estate, as the agent of plaintiff; the deed was taken in the name of one Harper, who paid $800, and gave his bond and mortgage for $3,200, which was subsequently paid off by the plaintiff, who entered into possession of the premises and so remained until 1874, expending over $10,000 in improvements. In 1863, at plaintiff’s request, Harper executed a mortgage covering the said premises and others to one L., for $5,000, the money being paid to plaintiff. Upon the foreclosure of this mortgage, a surplus of $8,000, arose. Harper, during his lifetime, admitted that he had no interest in the premises, and said that they belonged to the plaintiff. This action was brought to decide as to whether the $8,000 surplus belonged to the plaintiff or to the Harper estate.

      Held, that as the title was taken in Harper’s name, with the knowledge and consent of the plaintiff, and as there was no pretense that it was taken to secure any loan or advance by Harper, the plaintiff, by virtue of the provision of the Revised Statutes, acquired no interest in the land, nor in the surplus arising from the sale thereof.
    Appeal from a judgment in favor of the defendants, entered upon the report of a referee.

      Thomas B. Morrow and Nathaniel O. MoaJo, for the appellant.

      J. E. Dewey, for the respondents.
   Osborn, J.:

The findings of fact by the referee seem to be supported by the evidence, and the only question is, whether his conclusions of law arising upon such facts can be sustained.

In March, 1858, certain real estate situate in the county of Albany was bid off at public sale by one David Wormer, for the plaintiff. Instead of taking the title in her own name, the deed was taken in the name of Robert Harper. The consideration of the purchase was $4,000, and Harper paid $800 thereon and secured the balance by his bond and mortgage on said premises. Afterwards the plaintiff paid up such bond and mortgage, and the mortgage was duly satisfied of record. The plaintiff, from the time of the purchase by Wormer for her, paid and extinguished certain quit-rents due to Van Rensselaer upon a manorial lease of the premises, and expended $10,000 or thereabouts in improvements and had the full and uninterrupted possession thereof up to January, 1874.

In June, 1863, Robert Harper executed a mortgage on this property and other real estate, to one Jarvis Lamoraux, for $5,000. This was done at plaintiff’s request, and she had the money. In January, 1873, this mortgage was foreclosed. It brought $14,000, which made a surplus over and above the amount due on the mortgage and costs of $8,000. The purchaser, Rebecca Harris, instead of paying the $8,000, executed a bond and mortgage to defendant, county treasurer of Albany county, Nathan Wendell. In December, 1875, Wendell commenced a foreclosure on this mortgage given to secure the balance, viz., $8,000. The question now is, who is entitled to this surplus ? The plaintiff claims that she was really the owner of the property : that Harper had no interest therein, but simply held the title thereof for her benefit. ' Robert Harper died in 1870, intestate, leaving him surviving the defendant Susan M. Harper, his widow, and John Harper, George Harper, and the defendants Frank, Ira and Sarah J., his children and heirs at law. It appears from the evidence, and the referee so finds, that Harper stated frequently during his lifetime that he had no interest in the property which Wormcr purchased for plaintiff; that he held the same for the benefit of the plaintiff and her family.

The referee finds that the mortgage of $5,000 to Lamoraux included other property than that bid off by Wormer for plaintiff, and what the amount or value of this was does not appear, or to what extent this outside property contributed to this surplus now claimed by the plaintiff, does not appear. Nor is it very material to the decision here that that should be known, for the referee holds that the plaintiff has no interest whatever in the surplus, but that it all belongs to the estate of Harper. Why the plaintiff should have directed the conveyance taken in Harper’s name, does not appear; nor is there anything to show what agreement, if aiiy, was made between her and said Harper in reference thereto. His declarations show that he held it for her benefit, and there is some evidence from which it may be inferred that it was to keep the property away from persons who may have had demands against the plaintiff or her husband. Nor is there any evidence from which it can be inferred that the deed to Harper was in the nature of a mortgage, or as a security to hini for any advancement or indebtedness. At least the referee does not so find, nor are there any requests that he should do so. Certainly as favorable a view of the facts for the plaintiff as the evidence would warrant, would be that she purchased and has really paid the consideration price of this property, but for some purpose not clearly defined, put the title in the hands of Mr. Harper. Under such circumstances, is she entitled to any interest in the surplus moneys on a sale under the mortgage given by Harper, and when he held the absolute fee and title thereto ?

The plaintiff asserts that she was not indebted to the said Harper in any sum whatever. Hence it cannot be claimed, as before stated, that he was holding the title as a security, or that the deed is to be regarded as a mortgage.

Allowing the plaintiff the full benefit of all she claims, it seems to me that our statute of uses and trusts prohibits the granting of any relief.

“ Where a grant for a valuable consideration shall be made to one person, and the consideration thereof shall be paid by another, no use or trust shall result in favor of the person by -whom .such payment shall be made; but the. title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.” (1 R. S. [Edms. ed.], 677, § 51.) By section 52, “ every such conveyance shall be presumed fraudulent as against the creditors, at that time, of the person paying the consideration.” Section 53, “The provisions of the fifty-first section shall not extend to cases where the alienee named in the conveyance shall have taken the same as an absolute conveyance, in his own name, without the consent or knowledge of the person paying the consideration, or where such alienee, in violation of some trust, shall have purchased the lands so conveyed, with moneys belonging to another person.”

' It will be seen that the exceptions in sections 52 and 53 have no application here; no creditors are asserting any claims, .and it is not pretended that what was done, was without the knowledge or consent of either plaintiff or Harper.

The theory of the action is that the plaintiff bought this property, and has paid for it with her own funds and money, but directed the conveyance to be taken in the name of Harper. True, the referee finds that Harper paid $800, and gave a mortgage for the balance, which plaintiff subsequently paid. If the plaintiff is to be held to her theory, the theory upon which the complaint was drawn, and case heard before the referee, I do not see how she can escape the effect of this statute. (Everett v. Everett, 48 N. Y., 218; The Ocean Nat. Bk. v. Hodges, 9 Hun, 161; Porter v. Porter, General Term decision, 2d department, and recently affirmed in Court of Appeals.)

The idea that Harper took the title because of any advancements that he made, or to secure any indebtedness, is directly in opposition to the claim of the complaint, nor can I find that any such intimation was made at the trial. (Sturtevant v. Sturtevant, 20 N. Y., 40.) The plaintiff avers that she bought, paid for and took the title in Harper’s name, and that there is no indebtedness to Harper. Having brought and tried her action upon this theory, ought she now to change the nature of her claim, even though there may be some evidence to support the claim as changed? (Arnold v. Angell, 62 N. Y., 508; Williams v. M. & F. Ins. Co., 54 id., 577; Joslin v. Joslin, 9 Hun, 388.)

If this statute is to be applied, it is very clear that the plaintiff can have no relief because of the large expenditure made by her for improvements, etc. There is no pretense of an agreement to reimburse her for such outlays and expenditures. She knew all about the title; that it was held by Harper, and her expenditures, etc., were as owner of the property, and not because she was to be compensated. (Porter v. Porter, General Term decision, 2d department, affirmed in Court of Appeals; Kassel v. Becker, 25 How., 377, 378.) But, assume for a moment that this statute does not apply, for the reason.that the plaintiff did not pay the purchase money, or any part thereof, at the time of such purchase, but that Harper paid what was paid, and secured the balance by his own bond and mortgage. What interest has the plaintiff in this surplus which ean be enforced? There is no evidence of any agreement to reconvey. There has been no writing of any kind creating or declaring any trust. True, she paid the mortgage which had been given, but she subsequently received a large sum on the mortgage given to Lamoraux, and from the foreclosure of which this surplus was produced.

Even before the statute declaring some writing or declaration in writing necessary to create an estate or interest in, or any trust or power over or relating to, lands, it is by no means clear that the plaintiff had any interest which she could enforce. But certainly, since the statute, 2 R.S., [Edm. ed.], 139, § 6, Laws of 1860, chap. 322, it is difficult to see how she can obtain any relief, although there may be strong equities in her favor. (Cook v. Barr, 44 N. Y., 156; Sturtevant v. Sturtevant, 20 id., 39, 40; Dillaye v. Greenough, 45 id., 444; Wheeler v. Reynolds, 66 id., 227.) Even though it was clear that Harper purchased this property for her, and agreed to hold the same in trust for, and to convey to her, such agreement would be void by statute, and as well before as after the Revised Statutes. (Church v. Kidd, 5 T. & C., 455, Bockes, J.; Lathrop v. Hoyt, 7 Barb., 62, and cases cited; 2 Story’s Equity Juris., p. 611, § 1,201, note A.)

I have not thought it necessary to discuss the question thus presented, in view of another feature suggested by the evidence or findings, viz., that Harper was holding this property as a cover, or for a fraudulent purpose on. the part of plaintiff or her husband, and, therefore, that equity will not relieve her.

It seems to me that, in any view of the case, the conclusions of the referee are right and should be affirmed.

Judgment affirmed with costs.

Learned, P. J., concurred; Bocees, J., taking no part.

Judgment affirmed with costs.


source: Caselaw Access Project

author: Osborn, J.; Learned, P. J.:

license: Public Domain

text:
    JONAS S. HEARTT and EDWARD SCHELL, as executors, etc., of JONAS C. HEARTT, deceased, and said JONAS S. HEARTT, individually, Respondents, v. LOUISE P. W. LIVINGSTON, impleaded with others, appellant.
    Will— construction of — devise to “my four children,” viz., etc. — revocation as to one share — when such share should he divided among the other devisees.

    Plaintiffs’ testator, by Ms will, after giving certain specific legacies, provided:
    “ Item Eighth — After the payment of my just debts and funeral charges, I give and bequeath the rest and residue of my property, real and personal, of every kind and description, to my four children, M. W. H., C. S. H., J. S. H., and J. L. H., to be divided between them, share and share alike;
    "Item Ninth — In the event of any of my children dying, or either of them, before the division of my estate, leaving issue, then the share or shares to which he, or they, respectively, would be entitled under and by virtue of this will shall go to his, her or their issue respectively.”
    Subsequently he executed a codicil by which he revoked and cancelled “ the devises and bequests, and each and every of them, embraced in my said will to the said Charles S. Heartt.” At the time of the making of the will and of the codicil, Charles S. Heartt was living and had issue then living, a daughter. He died, however, before the testator.
    In an action brought for the purpose of obtaining a construction of the will, held, that the daughter could take only such share as her father would have been entitled to were he then living, and that as the devise as to him had been revoked, she took nothing.
    That the testator did not die intestate as to the share devised to the said Charles, but that said share should be divided among the other three children.
    Appeal from a judgment of the Rensselaer Special Term construing judicially the last will and testament of Jonas C. Heartt, deceased.

      John B. Gale, for appellant, Mrs. Livingstone,

      jE. Caiven. for Mrs. Schell.

      Charles B. Patterson, for respondents.
   Osborn, J.;

On the 10th day of February, 1870, Jonas C. Heartt made his last will and testament. The material provisions are as follows:

First. He gave to his daughter, Mary Wright Heartt, a house and lot and certain specific legacies. He also gave ber an annuity of $5,000; or so much thereof as she should choose to take for the purpose of keeping up the establishment. Second. After some specific legacies, which need not be referred to-, he proceeded as follows: “Item eighth. After the payment of my just debts and funeral charges, I give and bequeath the rest and residue of my property, real and personal, of every kind and description, to my four children, Mary Wright Ileartt, Charles S. Ileartt, John S. Ileartt and Jane Lamberson Ileartt the wife of Edward Schell, to be divided between them share and share alike.

Item ninth. In the event of any of my children dying, or either of them, before the division of my estate, leaving issue, then the share or shares to which he or she, or they respectively, would be entitled under and by virtue of this will, shall go to his, her or their issue respectively.”

When this will was made, Charles S. Ileartt was alive, and had living issue, namely, a daughter, the defendant, Mrs. Livingstone, who by the way is the only party appealing from the decree entered on the decision at the Special Term.

On the 14th day of January, 1874, and while Charles S. Heartt was living, the testator made a codicil to his will in the following language: “Whereas I,-Jonas C. Ileartt, of the city of Troy, county of Rensselaer, and State of New York, have made my last will and testament in writing, executed on the 10th day of February, in the year one thousand eight hundred and seventy, in which I have made certain devises and bequests to Charles S. Heartt, now therefore, I do by this, my writing, which I hereby declare to be a codicil to my said last will and testament, and to be taken as a part thereof, revoke and cancel the devises and bequests, and each and every of them embraced in my said will to the said Charles S. Heartt. I also hereby revoke and cancel the appointment of the said Charles S. Heartt and of John P. Albertson, as two of my executors in said will named. I also hereby declare that the devise of real estate in my said will to my -said daughter Mary, is a devise of the same to her for her. natural life, and such devise to her of all real estate contained in my said will, is to be construed and have effect as a devise of the same to her for her natural life; and lastly it is my desire that this codicil be annexed to and made a part of my last will and testament, as aforesaid, to all intents and purposes.”

Three questions as to the construction of this codicil were submitted to the court below:

First — Does Louise P. W. Livingstone take the share of her father, Charles S. Heartt, given him by the original will as a contingent devise, he having died before the testator, and the devise to his issue not being in terms, revoked ?

Second — If this fourth, originally devised to Charles S. Heartt, does not go to the defendant Louise, then did Jonas C. Heartt die Intestate as to that fourth; or does it fall into the residue and go to the other three children ?

Third — Was the life estate in Mary Wright Heartt, created by the codicil, limited to the specific legacy of the house and lot, or did it extend to her interest in the testator’s other real estate as his residuary devisee ?

The Special Term decided as follows:

First — That the defendant Louise (the only person appealing) did not take the share originally given to her father by the will.

Second — That the share of Charles S. Heartt, revoked by the codicil, went to the other residuary legatees.

Third — That the life estate created by the codicil applied only to the house and lot specifically devised to Mary Wright Heartt.

Judgment was entered hi accordance with this decision, from which the defendant Louise appeals to this court.

It seems to me entirely clear that the appellant can only take such share as her father would have been entitled to, in the event of his being alive at the time of the distribution of the estate.

The language employed in the' ninth item is clear, free from all ambiguity, and can bear only one interpretation or construction: “ In the event of any of my children dying before a division of my estate, leaving issue, then the share or shares to which he, she or they respectively would be entitled under and by virtue of my will, shall go to his, her or their issue respectively.” So far as the rights of Mrs. Livingstone are affected or concerned, it is the same as though the testator had said: “ If my son Charles S. Heartt shall die before a division of my estate, the share to which he would otherwise be entitled imder and by virtue of my will shall go to his daughter, Mrs. Louise Livingstone/’ Under this item, any interest which Charles, if living, would have at the division of the estate would clearly pass to his only child, Mrs. Livingstone, as heir-at-law. But she certainly can take nothing-more. If Charles was living and would be entitled to any interest in his father’s estate, just that interest, no more and no less, passes to the appellant. The codicil revokes all the provisions of the will in favor of Charles S. Heartt. It is in effect a republication of the will, and the two must be construed together as though the whole will was made at the time of the execution of the codicil. (Van Cortlandt v. Kipp, 1 Hill, 590; Kipp v. Van Cortland, 7 Hill, 346, and cases; Howland v. Union Theological Seminary, 5 N. Y., 193.) Now the language employed in the codicil is worthy of special, note: “ Now, therefore, 1 do by this-my writing, which I hereby deelare to be a codicil to my said last will' and testament, and to be taken as a part thereof, revoke and cancel the devises and bequests, and each and every of them embraced in my said will, to the said Charles IS. Heartt.”

By the codicil it seems to me very clear that if Charles S. Heartt had been living at the time of the division of the testator’s property, he could not have been entitled to the one-fourth provided for in the original will. If not, it follows that there is no reason or foundation for the claim or argument that his daughter, Mrs. Livingstone, is entitled to such interest. For as we have seen by the clear language used in the ninth item, she could take no. more than Charles would have been entitled to if living.

But a more serious question arises which the court is called upon to determine. That is, whether the testator in making the codicil intended to die intestate as to that part of his estate which, but for the codicil, would have gone to his son Charles. Whether such a construction is the proper one to be given to the will and codicil taken together and construed as one instrument. Or did the testator by striking out the name of Charles intend that the will should be read as though that name had never been inserted ?

It is undoubtedly a well settled legal principle, that where a person dies leaving a will, the presumption is that such person did not intend to die intestate as to any portion of his estate, and the court in cases of doubt will avoid such a construction as leads to and results in intestacy as to any portion of the testator’s estate. (Bates' Executor, v. Hillman, 43 Barb., 645; see opinion of Mr. Justice PARKER, pages 647-8; Shaw v. McMahon, 4 Dru. & War., 438.) It is also the general rule, as contended for by the learned counsel for the appellant, that a gift to several persons by nomination is a gift to each of a particular share, and if one of the persons dies, or the gift to him fails, the survivors do not take. But this rule is not an inflexible one and must yield if contrary to the manifest intent of the testator. (Hoppock v. Tucker, 59 N. Y., 208, opinion by Church, J.; Jackson, Executor, v. Roberts, 14 Gray, 546.) The difficulty in this case is that there is no gift to Charles. By the codicil his name is entirely stricken from the will. The clevises to him are revoked and cancelled by the codicil. It is evident that when the original will was made, the testator intended to dispose of his property (after the provision for Mary and the specific legacies given to his four children, Charles among the rest), by dividing it among his children equally, share and share alike. He does not say, to each the one-fourth part thereof. If he had this might have materially changed the construction which should now be given. The residue is given to the four to be divided equally, share and share alike. Years afterwards the feelings of the testator from some cause or other became changed and he then made this codicil, in and by which all devises and bequests to Charles are-revoked and cancelled. Is it not entirely clear that he meant to cut off Charles from any and every interest or share in his estate ?' Of this it seems to me there can be no reasonable question. This, intent must be gathered from reading the will and codicil together as one instrument, treating them as one instrument and construing them together. Suppose in the original will instead of saying my " four children ” he had used the language “ my children.” Then follow the words “ to be divided equally, share and share alike.” By the codicil the name of one child is eliminated and any bequest-to him cancelled and revoked. Would not the will remain undisturbed as to the other three, i. e., would not the entire residue go-to the remaining children, to be divided equally, share and share alike ? Or suppose he had said I give to my children Mary, Charles S., Jonas S. and Jane, the rest and residue, etc., “ to be divided equally, share and share alike.” By his codicil he cancels ' and revokes the bequest to Charles. Does this not leave the instrument to be interpreted precisely as though the name of Charles never had been inserted therein ? Would not the other three take the entire residue ? I think so, beyond all question. Nor do I think any different construction can properly prevail, because he says “my four children,” and then follows with'the names Mary, Charles, Jonas S. and Jane. Without further discussing the questions involved I may add that I fully agree with the conclusions arrived at by the learned justice at the Special Term. First, that the appellant did not take the share originally given to her father by the will in question, and second, that the share of Charles in the original will, revoked by the codicil, went to the other residuary legatees.

I have not examined particularly the effect of the codicil so far as Mary Wright Heartt is concerned, as no one appears but the defendant Louise, and she has no interest in that question. I am however of the impression, from the language of the codicil, that the life estate created thereby only applied to the house and lot specifically devised to Mary Wright Heartt, as decided at Special Term. In view of the conclusions at which I have arrived I have not deemed it important to examine the question as to whether this action is properly brought. (Chipman et al. v. Montgomery, etc., 63 N. Y., 221, 232; Bailey v. Briggs, 56 id., 413.) I have preferred to dispose of the case on the merits.

It follows that the judgment and decree appealed from must be affirmed, with costs against appellant.

Learned, P. J.:

I concur, but without expressing any opinion as to the effect of the codicil, so far as the legacy to Mary Wright Heartt is .concerned, or as to the right to maintain this action.

Bockes, J., concurred.

Present — Learned, P. J., Bockes and Osborn, JJ.

Judgment affirmed, with costs.


author: Osborn, J.: Learned, P. J..

text:
    HARRIET HOLLISTER, Executrix, etc., Appellant, v. ABEL BURRITT, Respondent.

      JSxeeutrix —failure to collect judgment — when liable personally for the amount thereof.

    On Oct. 12th, 1855, a judgment in favor of Coon was docketed against one Conover, who owned a farm worth about $4,000, which was subject to the liens of three prior judgments amounting to over $4,000, docketed in February, 1855 ; Coon died in January, 1860, when plaintiff was appointed executrix, and acted .as such till December, 1871. She left the judgment in the hands of the attorney employed by the testator, who issued executions thereon, from time to time, and collected small amounts. The prior judgments, not being revived, ceased to be liens in February, 1865, and from that time to Oct. 12th, 1865, plaintiff’s judgment was a first lien upon the farm.
    In this proceeding brought by the plaintiff' for a final accounting, held, that her failure to enforce the judgment during the time it was a first lien upon the farm constituted such negligence, as to render her personally liable for the amount of the judgment. Learned, P. J., dissenting.
    Appeal from an order made in the Surrogate’s Court of Tompkins county upon the final accounting of the plaintiff.

      Jerome Rowe, for the appellant.
    The executrix cannot be made liable to pay this judgment under such a state of facts. (Thompson v. Brown, 1 John., 629; Raynor v. Rearsoll, 3 John. Ch., 584; Lansing v. Lansing, 45 Barb., 192; Pierson v. Thompson, 1 Edwards Ch., 223; Tiffany & Bullard’s Law of Trusts, etc., 595; Higgins v. Whiton, 20 Barb., 142.)

      F. M. Finch, for the respondent.
   Osborn, J.:

The testator, Levi Coon, in his lifetime and on the 12th day of October, 1855, recovered a judgment against one John Conover, for the sum of about $1,129. At that time Conover owned a farm of laud worth about $4,000, but which was incumbered by three prior judgments, held by the Tompkins County Bank, amounting to over $4,000, and more than the value of the farm. These bank judgments were docketed against Conover in Febru■ary, 1855. This continued to be the situation óf affairs till ■January, 1860, when Coon died, and the appellant became his executrix, and continued to act as such till December, 1871, when she was superseded and the respondent was appointed administrator with the will annexed, in her place. Afterwards, Mrs. Hollister applied to the surrogate for a final accounting and to be discharged. The proper citations were issued, and upon the return thereof one John J. Taylor was appointed an auditor, to' examine and pass upon her accounts, and to make the usual report of his doings to the surrogate. On such accounting it turned out that this Coon judgment remained unpaid, except that shall amounts thereon had been received in different years, and executions had been issued thereon, which had not been returned, although one was in the sheriff’s hands when the lien of the bank judgments ceased, to wit, in February, 1865.

It will be remembered that the bank judgments were docketed and became, liens on the real estate of Conover in February, 1855. After such liens expired, and from the 20th of February, 1865, till October 12th, 1865, a period of nearly eight months, the Coon judgment was the first valid lien, and might have been collected without difficulty. These facts are undisputed. The lien of the Coon judgment expired October 12th, 1865, but for nearly eight months it was not only a valid, but the first lien, as has been seen. Instead of collecting it, the appellant, who was the executrix of the Coon estate, allowed the time to pass by, and the lien to expire, till the bank judgments were revived and so became prior liens again to the lien of the judgment in question. Under such circumstances, the auditor reported to the surrogate that in his opinion Mrs. Hollister had been guilty of such negligence, as that she should be charged with the amount due on such judgment, and account therefor to the Coon estate. The surrogate adopted the report, and made his d.ecree accordingly. Hence the appeal to this court.

It cannot be a matter for argument that the lien of the bank judgments expired as to the subsequent judgment (being the one in question) ten years after the docket thei’eof, and that for a ■period of nearly eight months the Coon judgment was a first lien on some $4,000 w-orth of real estate and could have been collected in full by the ordinary legal process. (2 R. S. Edm’s ed. 371, § 4; France v. Hamilton, 26 How. Pr. R., 183.)

In Dayton on Surrogates, page 519, the following language is used, and whiek shows the care and diligence to be employed by an executor in the exeeution of his trust. “ Such acts of negligence or careless administration as defeat the rights of the creditors or legatees, or parties entitled to distribution, amount to a . devastavit-, for if persons accept the trust of executors,' they must perform it. They must use due diligence, and not suffer the estate to be injured by their neglect.’’

By the report of the auditor it will be seen that he finds from the facts, that the appellant was guilty of gross negligence. If •such a conclusion is warranted or can be upheld from the facts, it is clear that the decree of the surrogate was right, and should be affirmed. All the cases to be found in the books concur in holding an executor liable for gross negligence or collusion. (Ruggles v. Sherman, 14 John., 446; McRae v. McRae, 3 Bradf., 199; Shidtz v. Pulver, 3 Paige, 182.)

Certainly an executor or administrator cannot complain if he is held to that, amount of care and diligence in the management of the estate committed to him, as a reasonably prudent person would employ in the management of his own affairs. (Redfield’s Law and Practice, page 250.) In the case before us, no one would question the liability of the appellant, if when she first accepted the trust she had found this judgment good, valid and collectable, for eight months, and the same was subsequently lost by reason of her neglect to enforce its payment. (Williams on Ex’rs, 15, 43; McClellan’s Probate Practice, 213; Schidtz v. Pulver et al., 11 Wend., 361.)

This judgment was for a huge amount and formed an important part of the estate which the appellant undertook to administer,. and the question is whether such diligence has been used in efforts to collect it as ordinary prudence would suggest. She is pre.sumed to know the law, though she says she did not in fact know that the lien of the bank judgments had céased after ten years from the time of their -docket, nor is there any pretense that she has acted in bad faith or collusively. It does seem hard, at first thought unjust, to charge her personally with the fidl amount of this judgment when she has received nothing therefrom. But I am forced to the conclusion after a most careful examination of the case as presented on this appeal, and the authorities to which we have been referred, and others, that there is enough to show such negligence or want of reasonable diligence as to warrant the decree of the surrogate, based upon the report of the auditor.

The decree appealed from must be affirmed with costs.

Bockes, P. J., concurred.

Learned, P. J..

dissenting:

The only question is, whether the executrix was guilty of such gross negligence in respect to the Conover judgment, that she should be held personally liable for its amount. When the testal or died, and the executrix was appointed, the judgment against Conover was of no value. It was a lien on a farm worth about $4,000; but there were prior judgments to an amount of more than the value of the farm. The testator died in January, 1860. Five years after that time the prior judgments ceased to be a lien by the lapse of the ten years; and for about eight months thereafter, the judgment belonging to the estate of the testator was the first valid lien.

After the appointment of the executrix, the judgment remained in the care and management of the same attorney who had been the attorney of the testator in recovering the judgment; and it continued to be in his care, and in the care of attorneys in good standing, until the executrix was removed. Executions had been issued thereon before the testator’s death, and one was issued after his death,‘and about 1861. These attorneys, from time to time, collected small sums of money which were paid to the executrix.

The executrix acted in good faith, and had no knowledge that the lien expired in ten years. I cannot think that she was guilty of gross negligence.

First. She entrusted the business of collecting the judgment to an attorney in good standing; the same attorney whom the testator had employed. This was certainly what she should have done. It was the proper means for her to take to collect the debt. Indeed, I might say, it was the only means. If she had attempted to collect the debt by issuing an execution herself, she would have been guilty of negligence, in case she had made any error in the process. Now, if the attorney neglected his duty in the matter, the executrix was not culpable, and would not become culpable until she should have knowledge of his neglect. Thus, if the administrator of a deceased partner, bona fide, permits the surviving partner to ooll the stock in the due course of trade, he is not to be held responsible for loss to the estate: (Thompson v. Brown, 4 Johns. Ch., 620.)

Second. If she was not negligent in entrusting the business to an attorney in good standing in the first place, there is nothing that I see to show subsequent negligence. It cannot be that an executor is chargeable with gross negligence for being ignorant, that the lien of a judgment ceases in ten years. It may be the duty of the executor to take legal advice, and it may be negligent to fail to do this. But to hold an executor negligent for ignorance of the law, is to say that he shall be wiser than the highest court in the state.

Third. When the executrix came into, possession of this claim it was valueless. It so continued for five years. At any time during that five years the prior judgment creditor might have sold the land and cut off this judgment altogether. Probably by some blunder the prior judgment creditor allowed his lien to expire. But the executrix had no reason to expect that he would do this. It was a thing improbable in itself. A very shrewd business man might have been on the look out for this possible neglect on the part of the prior creditor. It was not however gross negligence to suppose that the prior creditor would not let his lien run out. She could not be expected to foresee all possible future events. Where an investment is made by the intestate, the fact of a fall in the market is not enough to charge the administrators. It must be shown that they have acted unreasonably. (McRea v. McRea, 3 Bradf., 199.)

Finally; if the judgment, at the time when the executrix was appointed had been a first lien, and she had employed a competent attorney to collect it, she could not have been responsible for his neglect, not known to her. Still less can she be liable, when she has employed such an attorney, and only by some accident not to be expected, does the judgment at the end of five years, become a first lien and capable of being collected.

“This court has always treated trustees acting in good faith with great tenderness.” (Thompson v. Brown, ut supra.)

I think the decree should be modified in the respect appealed from with costs.

Present — Learned, P. J., Bockes and Osborn, JJ.

Decree of the surrogate affirmed with costs.


author: Learned, P. J.:

text:
    CATHARINE OWENS, Appellant, v. J. J. BLOOMER, Administrator, and MARY WELCH, Administratrix, etc., of JOHN WELCH, deceased, JOHN O’BRIEN and ALFRED BRINK, Respondents.

      For what debts, land may be sold by surrogate — Funeral expenses — what included in — Monument — when allowed as part of.

    The words “ funeral expenses,” as used in chap. 267 of 1874, declaring for what debts lands of the deceased may be sold by the surrogate, include the cost of a suitable head stone to be erected at the grave of the deceased. When, however, the estate does not exceed $8,000, an expenditure of $500 in erecting a head stone is extravagant and far too great to be allowed as a proper part of the funeral expenses.
    An appeal lies by the heir-at-law from a decision of the surrogate, made in proceedings for the sale of real estate for debts, adjudging certain claims to be valid and subsisting demands against the deceased and his estate.
    Appeal from an order of the surrogate of Chemung county, made in proceedings instituted before him by the administrators of John Welch, deceased, for leave to sell his real estate for the payment of his debts.

      It. King, for the appellant.

      J. McGuire, for administrator and administratrix.

      John A.Iteynolds, for O’Brien and Brink, respondents.
   Learned, P. J.:

■ Application was made by the administrator and administratrix to the surrogate, under the statute, for authority to sell lands of the deceased for the payment of debts. Upon such application the surrogate made an order, adjudging certain claims to be valid and subsisting demands against the deceased and against his estate. (2 E. S., m. p. 102, § 16 [13].) From so much of this order of adjudication as respects one of these demands the heir appeals.

The first objection is that an appeal does not lie. The statute gives an appeal from orders, decrees and sentences. (2 E. S., m.p. 610, § 23 [105].) The matter appealed from is entered as an order. By the language of section 16 (13) above cited, the surrogate is to “ adjudge valid ” the demands, and to enter them in the book of his proceedings.

The heir had a right to contest the validity of the debt. (§ 13 [ 10J.) The question as to such validity may be the important matter in the proceeding. I see no reason why the statute giving the right of appeal does not include this order.

On the merits of the controversy the question is whether the disputed demand is one for which the surrogate may order a sale of the real estate. The facts are that the personal estate of the deceased was $153.50, of which $150 were set apart to the widow. The real estate was estimated from about $7,000 to about $10,000. The sister of the deceased is his heir. His widow survived him. The surrogate allowed a bill of the undertaker for the expenses of the funeral, amounting to about $176; and also a bill of a grocer of about eight dollars, for candles, etc., used at the wake. Some other small bills also were allowed. To all of these no objection is made. He also allowed a claim of $500 and interest for a monument, ordered by the administratrix and set up at the grave of the deceased. For this monument Mary Welch, the widow, and the administratrix, gave her note, which has not been paid. This demand is disputed by the heir.

Chapter 267 of the laws of 1874 declares that the debts for which land may be sold under such proceedings as these shall include “ funeral expenses;” and the question is whether this monument comes properly under the words “funeral expenses.”

In Wood v. Vandenburgh (6 Paige, 277), the chancellor said that the erection of a heacl-stone at the grave of the deceased might be considered a part of the funeral expenses. The same view is expressed incidentally in Ferrin v. Myrick (41 N. Y., 315.) And this appears to me to be a sensible construction of the words “funeral expenses” in the statute. I think that a suitable head-stone to mark the place is a proper part of a decent interment. But the demand in controversy was not a mere head stone.- It is called a monument, and the price shows that it was an erection of considerable display.

To show the views of courts in this respect, it may be noticed that, in the case last cited, it was remarked that, where there was an estate of $10,000 or $20,000, stones of the value of $100 or $200 would very likely be deemed suitable. Now in the present case the estate is probably not worth, judging from the evidence, over $8,000 at the outside. The widow and administratrix has caused a monument to be erected at a cost of $500. This is extravagant.- If it be a gratification to the. friends of a deceased that an expensive monument should bo erected, they should themselves be at the expense. The only duty of the administrator or executor, in this respect, is to do those things which are proper for the decent burial of the deceased. They have no right to do> anything for ostentation.

The real estate of the deceased had descended to the heir, and without her consent the administratrix should not have made so large and unnecessary an expenditure, if she expected that it was to be paid by a sale of the land.

There are some circumstances in the case which look as if the erection of the monument was really a personal transaction of the widow. The inscription states that it was erected by the wife of the deceased, and Mrs. Welch gave her own note for it. But even without regard to these facts we think that expenditure was far too great to be allowed as a proper part of the funeral expenses.

The order appealed from must be reversed in this respect, with costs personally against the administratrix and administrator, who included this demand in their petition.

Present — Learned, P. J., Bockes and Osborn, JJ.

Order reversed in respect to the claims, for the monument, with costs personally against administrator and administratrix.


author: Per Curiam :

text:
    SOLOMON TERPENNING and others, Respondents, v. THE AGRICULTURAL INSURANCE COMPANY, Appellant.

      policy of insurance— what does not constitute a change of the interest of the insured,.

    The defendant issued to the plaintiffs, as “ heirs of John S. Terpenning,” a policy of insurance upon a dwelling-house and wood-house. Subsequently a partition suit was commenced and such proceedings were had that the land upon which the same were situated was sold by a referee, and the purchaser paid a portion of the purchase money and signed a contract of purchase. The sale was never confirmed by the court, nor was any deed ever delivered by the referee.
    In this action brought to recover for the loss sustained by the burning of the house, the defendant claimed that by the proceedings had in the partition suit the interests of the parties therein were changed, and that the policy was thereby avoided in accordance with one of its conditions.

      Held, that the sale in the partition suit was not absolute until confirmed by the court, and that until such confirmation it could not not be said that the interests of the insured had changed.
    Appeal from a judgment in favor of plaintiff, entered upon the report of a referee.
    The action was upon a policy of insurance issued by the appellant to the respondents, under the name of “ Heirs of John S. Terpenning,” whereby such heirs wore insured against loss or damage by fire from December 1, 1872, to December 1, 1875, to the amount of $3,400, to wit: $1,000 on dwelling-house and wood-house, if attached; $300 on household furniture therein, and the remainder of the amount on out-buildings and their contents, live stock, farming utensils, etc.
    The dwelling-house insured by said policy, and the wood-house, together with the household furniture and wearing apparel covered by said insurance, were destroyed by fire on or about April 7, 1875.
    June 28, 1875, appellant paid to the respondents the sum of $253, in full for loss on household furniture, provisions and wearing apparel as stated, and said policy was to be canceled as to such personal property. The appellant refused to pay the amount of the loss claimed on account of the destruction of said dwelling-house and wood-house, by reason of an alleged violation of the following condition of the policy: “ If any other insurance has been, or shall hereafter be, made upon the property hereby insured, or if the said property shall be sold or conveyed, or if the interest •of the parties therein he changed in any manner, whether by act of the parties or by operation of law, or the property shall become encumbered by mortgage, judgment or other-wise, then and in every such case and in either of said events this policy shall be null and void until the written consent of the company at Home Office is obtained.”
    ■ In 1874, an action in partition was brought in the Supreme Court of New York, for the partition or sale of certain real estate in Ulster county, of which the said buildings and real estate formed a part.
    Such proceedings were had in said action, that a decree of sale of the premises described in the complaint was granted and entered in Ulster county, wherein Howard Cockburn, Esq., was appointed referee to sell the same. Said referee advertised all of said premises for sale, and they were offered for sale pursuant to said decree by said referee, February 1, 1875, and the farm on which said buildings were situated was struck off on said sale to Absalom L. Anderson. According to the terms of sale, the purchaser was to pay twenty per cent, of the purchase money at the time of sa]e, and sign an agreement of purchase. Said Anderson, at the time of sale, complied with the said terms by paying said percentage and signing said agreement. There was no proof that said sale was ever confirmed by the court, or that a deed for said promises was ever delivered by the referee to said purchaser.

      Bradley Winslow, for the appellant.

      Charles A. Fowler, for the respondents.
   Per Curiam :

Only one question is presented. That is whether the proceedings and sale in the partition were a change of the interest of tho parties so as to annul the policy. A decree of sale in partition-had been made and the referee had sold the property. But there is no evidence that the order confirming the sale had been granted or ány deed executed.

The sale under a decree in partition is not absolute. It depends for its validity on confirmation by the court. Until confirmed it cannot be said that the interest of the parties had changed. For till that time it remains uncertain whether or not the court will grant a confirmation. It does not resemble a contract for sale between the owner and another person. Because that is binding, .when executed, and transfers an equitable right to the purchaser. He may enforce its performance. But clearly the purchaser in this case could not have brought an action in equity to compel specific performance. His only remedy would be to apply to the court to have the sale confirmed. And it may be remarked that if (as in this present case) the buildings had meantime been destroyed by fire, the court might take that into consideration and might, if equitable so to do, decline for that reason to confirm a sale where the purchaser would not receive the property in the same condition as it ivas when the referee sold.

We think the judgment should be affirmed, with costs.

Present — Learned, P. J., Boardman and Tappin, JJ,

Judgment affirmed, with costs.


text:
    ANN E. DE GROFF, Appellant, v. EZEKIEL TERPENNING, Personally and as Executor, etc., and others, Respondents.

      Legacy — ademption of — declaration of testator as to intention— What does not constitute an ademption — Annuity — effect of statute of limitations on.

    Declarations of a testator cannot be proved to establish his intention of adeeming a legacy by means of subsequent advances to the legatee, except where they are made at the time of making the advances and with a view of giving character to the transaction.

      Semble, however, that such general declarations may be given in evidence to rebut the presumption of any such intention, and that in such a case, similar-evidence may then be admissible to establish such intention.
    A testator by his will, executed in 1840, gave to his daughter §400, to be paid to-her one year after his death, if she then had issue, and if not then she to receive the interest during her life, and upon her death the principal to go to her issue, if any, and if not to be divided between his surviving daughters and their children. In October, 1845, he gave to the daughter $400, telling her to take it as a present from her father, and took her husband’s note for that amount. Thereafter and on the same day he executed a codicil to his will, by which, among other things, he said: “ Whereas, in my said last will I have given to my daughter Ann Eliza the sum of $400, now it is my will that if my said daughter Ann Eliza shall die without lawful issue. ,then the same is hereby devised to my daughters and not to my sons,” and directed that the codicil be annexed to and made Dart of his will.

      Meld, that the gift of the $400 to the daughter was not an ademption of the legacy contained in the will.
    The testator died in 1847, and this action was commenced in 1876 ; it appeared that a demand for the payments of interest due in the years 1848, 1849 and 1850 had been made and refused on the ground of the ademption of the legacy.

      Meld, that as plaintiff, having no issue, was not entitled to receive the principal but merely the interest annually ; her right to maintain this action to recover the arrears of interest on the $400 was not barred by the statute of limitations, and that she was entitled to recover the aggregate of the annual payments, with the interest thereon, but only for the ten years prior to the commencement of the action.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.
    This action was brought by the plaintiff to recover from the executors of her father’s estate the arrears of interest on a legacy claimed by her to be due, and to have the said legacy declared a charge upon the lands devised by the said will. The defendants claim that the legacy had been adeemed by advances made by the testator, and that the claim was barred by the statute of limitations.
    The testator died October 6th, 1847, and his two sons Ezekiel and John S. duly qualified as executors.
    In each of the years 1848, 1849 and 1850, a demand was made by the plaintiff’s husband, in her behalf, for the interest upon her legacy, but payment was refused on the ground of the ademption of the legacy. This action was commenced in February, 1876.

      JD. M. De 'Witt, for the appellant.

      Chas. A. Fouoler, for the respondents Helen, Solomon and Oliver J. Terpenning.

      F. L. Wesibroolc, for the respondent Ezekiel Terpenning,
   Learned, P. J.:

The first question is on the admission of the evidence of Van Auken. He was allowed to testify, against the plaintiff’s objection, that before the time when the testator made the alleged payment to the plaintiff, the testator told him that he was going to pay the girls a legacy. And he was also allowed to testify that, after the time of the alleged payment, and after the execution of the codicil, the testator told him he had given the plaintiff her money, and that he had fixed it so that the writing he took from her husband would show she had the money he had given them in the will.

The defendants, to show that this evidence was proper, cite the case of Paine v. Parsons, 14 Pick., 318. But the decision there was only that a charge in the testator’s books was legal evidence. Nothing is said in the opinion as to his declarations. They also cite Richards v. Humphreys, 15 Pick., 133. In that case the declarations were made to the legatee, and at the time of payment. Betts v. Jackson, 6 Wend., 188, also cited, does not apply to the circumstances of the present case.

In the very able case of Kirk v. Eddowes, 3 Hare, 509, the rule is laid down that in no case can the declarations of the testator be proved for the purpose of establishing his intention of adeeming a legacy by means of subsequent advancements, except such declarations as he made at the time of making such advancements and with a view of giving character to the transaction. This view is supported by the opinion of the Court of Appeals on ■ the analogous question, whether a legacy was intended as a payment of a debt. (Phillips v. McCombs, 53 N. Y., 494.)

Evidence of declarations may, perhaps, be admitted to rebut the presumption that a payment is an ademption of a legacy. And when admitted to rebut, then, probably, similar evidence to the contrary must be allowed to come in. (3 Green. Evid., § 366; Hine v. Hine, 39 Barb., at 512.) But, in the present case, the evidence of declarations was admitted to show that the testator intended to adeem the legacy. We think this was incorrect.

The next question is, was the transaction between the testator and ■ the plaintiff an ademption of the legacy ? The will was executed in- July, ■ 1840. It gives to the plaintiff “four hunclred dollars, to be paid unto her one year alter my decease, provided she has lawful issue at that time, and if she has' no lawful issue, then I order and will that my two sons pay to. her the interest of the four hundred dollars yearly and every year during her natural lifetime; and after decease, I give and bequeath the said four hundred dollars unto my surviving daughters, and their children if they should have deceased, and if and when she have issue the money is to be paid to her.”

Similar legacies were made to the other daughters'. On the-second of October, 1845, the testator gave to the plaintiff |400, telling her to take it as a present from her father. At the same time the plaintiff’s husband gave the testator therefor a note, or due bill of that date. This took place at the office of Peter Van Gaasbeck, and afterwards, at that same office, the testator executed a codicil to his will. By this codicil he recites the fact of his having made his will; he changes one legacy from $200 to $150, devises a piece of land, and then says, “Whereas, in my said last will I have given to my daughter, Ann Eliza, the sum of four hundred dollars, and now it is my will that if my said daughter Ann Eliza die without lawful issue, then the same is hereby given to my daughters, and not to my sons; and lastly it is my desire that this present codicil be annexed and made part of my last will and testament to all intents and purposes.”

The legacy given by the will was not absolute to the plaintiff. There was a remainder over, in one contingeney; and this remainder was not to her children, but to her sisters. It is urged, therefore, by the plaintiff that payment to her could not be an ademption of the legacy, inasmuch as others were interested in it. These others were not her children or family. (Carver v. Bowles, 2 R. & My., 301; Langdon v. Astor's Ex., 16 N. Y., 45; Kirk v. Bddowes, ut supra.) Nor were they incidentally interested. (Hine v. Hine, ut supra.) The legacy then was not for the benefit solely of the plaintiff and of her family. It was, in the contingency of her death without issue, given to others.

The learned justice who tried the case felt the force of these considerations. He says that it is not decided whether those who are entitled to receive the money upon the death without issue, can make any claim upon the estate. But it musí be that if a general legacy is adeemed, it is adeemed in toto. The theory of ademption is that the gift or advancement takes the place of the legacy. It is hardly possible to say that the gift or advancement to the plaintiff adeemed the legacy as to her and left it valid as to the legatees in remainder.

And passing over this point, we must notice that, after having given the money to the plaintiff, the testator made the same day a codicil. In that codicil he refers to the legacy given to the plaintiff by his will, and he directs how that legacy shall go if she should die without issue. It would seem that he had forgotten just what the direction was in that respect in the will; because he makes, in fact, no change. But he recognizes the legacy as a thing still in his mind, and remaining of force in his will. Can it be possible that he intended to adeem it by the act which he had just done ?

The case of Paine v. Parsons (tit supra), is cited by the defendants to show that the republication of a will by a codicil does’ not rebut the presumption of ademption of the legacy. But in that case the will gave a certain amount, to be paid the legatee on her marriage. She had married, and had received from the testator himself this amount, or at least substantially this amount. Subsequently the testator made his codicil, by whieh he gave her $100, “ in addition to what I have before given ” her. It was held that the republication of the will by the making of the codicil, did not rebut the presumption that the legacy had been adeemed. That case is by no means like the present. The question here is whether the codicil docs not, in its language, recognize the legacy as a thing still in force. If the testator had given to the plaintiff, before executing the codicil, $400, he had no control over that money, to say that it should go to any one after her death. It was the plaintiff’s, if it had been given to her; and she might do as she pleased with it. And the testator had no further power over it by will or otherwise. And since, by the codicil, he did direct where the legacy should go, he must have understood that the legacy was still to be paid out of his estate at his death, and therefore was in his own power. It seems to us, therefore, that the codicil rebutted any presumption of ademption which might otherwise have arisen from the transaction which took place previously, on the same day.

The answer of the defendants avers that at the death of the testator the plaintiff was indebted to him in the sum of $400, for which a promissory note had been given, which note was among the effects of the testator at his death, and that after his death the plaintiff took and received this note in lieu of the bequests. On this point the only proof is that one of the defendants and of the executors of the testatoiy after his death, found among his effects a note of the plaintiff’s husband; that afterwards ho looked for the note and could not find it. It appears that the note has not been paid; but it does not appear what has- become of it. This defense of the answer, therefore, is not proved.

The next question is, whether the legacy is a charge on the real estate. The testator gave certain land to his son, John S., “upon this express condition, that he pay, or cause to be paid, such legacies, and perform such acts, and pay such moneys as I shall herein enjoin him to perform.” He gave other land to his son, Ezekiel, on the same terms. The legacy to the plaintiff directs (as above quoted) that the two sons pay her the interest of the $400 yearly, if she has no issue. The last clause but one of the will, orders his sons to faithfully pay all legacies; and again it says: “ the legacies and the debts they must pay equally between them, share and share alike.” And the last clause appoints these sons executors. They also' were residuary legatees of the personal estate. It hardly needs argument to show that the testator intended the real as well as the personal property should be appropriated, if necessary, to pay the legacies. Such payment was the express condition of the devises to .the sons. The real estate is still in the ownership of one devisee, and of the heirs of the other*. No questions arise, therefore, on the necessity of first exhausting the personal estate.

Another point raised is on the statute of limitations. As the plaintiff never has had issue, she has never been entitled to receive the $400. All that she has ever been entitled to is the interest on that amount, payable every year. She has never had a right to ask the defendants to pay her the $400, or to have that amount adjudged a charge on the estate. What is called interest in the will is not a mere collateral to the principal sum, which would be discharged by the payment of the principal sum to the parties entitled in remainder. The direction that the two sons should pay the plaintiff the interest of the $400 yearly, imposed on them the duty of paying her, every year, $28. Each neglect to pay the sum of $28, gave a ground for the plaintiff to bring her action, therefor. She might waive or release the payment due for one year, and claim that which should bo due the year after. If the sons had made the yearly payments for ten years, and then had refused to make any more, her rights would be the same.

The case of Bruce v. Tilson (25 N. Y., 194), holds that where there is a contract for the conveyance of land, a request for such ■conveyance is not necessary. The party entitled may bring an action for specific performance without request. Hence the stat-' ute begins to run at once, and a subsequent request does not extend the time. But that is not this case. In the case of an annuity, if a party neglects to sue for the first year’s sum until, such suit is barred by the statute, this neglect does not prevent an action on the sums payable in subsequent years. And if such annuity be secured by a mortgage or by a charge on land, the same rule must apply. So far, then, as these annual payments are not barred, the plaintiff must be entitled to recover them, and to -enforce them as a charge. It is decided in Loder v. Hatfield (11 S. C. N. Y., 36,) that the statutory limitation of actions to enforce legacies charged on land, is ten years. That decision must control us. It is also decided in that case that a legacy thus charged draws interest, without demand. The plaintiff, therefore, is entitled to the aggregate of the annual payments, with interest thereon for ten years prior to the commencement of this action, and she is entitled to such annual payments during her life, unless she .should have issue.

The amount already accumulated as above, and the future payments, are a charge on the land; one-half on that of Ezekiel, and the other half on that of the heirs of John S.

The disappearance of the note made by the plaintiff’s husband, and the long delay in commencing this action, are circumstances •which hai’monize with the theory that the plaintiff’s claim was satisfied by the surrender of that note. But there arc not facts ■sufficient, as the case stands, to sustain that theory. The surviving executor testifies positively that the note never came into the possession of the executors; therefore it could not have been surrendered by them. ■ . •

There must be a new trial, costs to abide the event.

Present — Learned, P. J., Bockes and Osborn, JJ.

Judgment reversed, new trial granted, costs .to abide event.


text:
    WILLIAM KENNEDY and JAMES J. McGOWAN, Respondents, v. THE CITY OF TROY, Appellant.

      Assessment — Erroneous principle adopted by assessors — Action for injunction — by whom maintainable — Evidence as to erroneous principle adopted by the' assessors.

    Where assessors, in making an assessment for a local improvement, have, by acting upon an erroneous principle, omitted from the assessment property benefited by the improvement, and which should have been assessed therefor, held, under the authority of Clark v. Village of Dunkirk (19 S. C. N. Y., p. 181), that an action might be maintained by one or more of the persons assessed in behalf of themselves and others similarly situated, to restrain the ■ collection and enforcement of the same.

      Held, on the same authority, that the testimony of one of the assessors, as to the principle upon which they acted in making the assessment, was competent to show that it was an erroneous one.
    That the fact that a portion of the persons assessed had paid their assessments did not prevent the maintenance of an action by the others to restrain further proceedings thereunder.
    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court without a jury.
    This action was brought to have an assessment for laying a sewer, in one of the streets in the city of Troy, declared void, and to enjoin and restrain all proceedings for the collection thereof. The complaint states that the cause of action and the relief demanded by the plaintiffs was of common interest between them and other persons, whose premises were assessed and whoso assess-' ments remained unpaid, and that the action was brought by them as Yfrell for their own benefit as for that of all the persons assessed and whose assessments remained unpaid. It was claimed by the plaintiffs that the assessors, in making the assessment, had assessed only those lands the surface water of which could flow into the sewer, while there were other lands the surface water of which could not flow therein which were benefited and should have been assessed; the charter requires all property benefited by the improvement to be assessed. The low lands were already drained by a sewer laid in them by the city, but at times of heavy rains it was claimed that the surface water from portions of the adjoining higher lands flowed onto the low lands; that the sower then laid not being, sufficiently large to carry it off, the same was burst open and much damage done; that by the building of the new sewer such surface water was carried off in it, and the damage to the sewer in the low lands and the floods thereby prevented.
    At the time of commencing the action a number of the persons assessed had paid the amounts assessed upon their lands.

      R. A. Parmenter, for the appellant.
    The complaint does not contain facts constituting a case for the equitable relief demanded, or for any other relief whatever in equity, or for damages in a court of law, in favor of the plaintiffs, jointly or severally. These grounds of defense are pleaded and were raised on the trial by motion to dismiss the complaint. This action cannot be maintained by the plaintiffs jointly, nor on behalf of themselves and others similarly situated. Nor would there have been any ground for equitable relief, had only one of the plaintiffs brought the action. [Bouton v. City of Brooklyn, 15 Barb., 375; Crooke v. City of Brooklyn, 40 N. Y. R., 547; Lyon v. City of Brooklyn, 28 Barb., 609.) If the assessment js illegal, the remedy was by certiorate, as adjudged in Le Boy v. Many or of New York (20 John., 430). That decision, though often questioned, was finally approved in People v. Board of Assessors (39 N. Y., 81); People v. Board of Police (id., 506), and People v. Ilillhouse .(1 Lansing, 87); see, also, Western. R. R. Co. v. Nolan (48 N. Y., 513).- A local assessor who has,signed the assessment cannot be allowed to impeach or contradict his solemn act. In that respect, he is like an arbitrator, or a juror, or a referee. ( Van Courtlandt v. Under-

      hill, 2 Johns. Ch. R., 349; Campbell v. Western, 3 Paige, 137; The People v. Sujyervisors of Livingston Co., 43 Barb., 236-7.)

      Eselc Cowen, for the respondents.
    If the assessors adopt aix erroneous and unsound rule, of law in ascertaining the property benefited, their action is illegal and without jurisdiction. The plaintiffs are compelled to resort to this remedy, because the-assessment is void, and because its invalidity must be shown by extrinsic facts not appearing on the face of the proceedings. This action is proper, because it prevents a multiplicity of suits, and because the assessments are a cloud upon the title of the plaintiffs and those on whose behalf they sue. (Leroy v. New Yorlc, 20 Johns., 430; Ireland v. Rochester, 51 Barb., 414; Langly v. Hudson, 4 Thomp. & Cook, 353; Heywood v. Buffalo, 14 N. Y., 534.)
   Learned, P. J.:

In regard to tax assessors, the Court of Appeals has distinguished between an erroneous and an illegal assessment. (Bank of Chemung v. City of Elmira, 53 N. Y., 53.) So in People v. Supervisors (17 S. C. N. Y., 545), affirmed in Court of Appeals.

It would seem that a neglect, such as in the present case is claimed, to assess lands which might propcily have been assessed for benefits, would be an erroneous rather than an illegal act. But in the case of Clark v. Village of Dunkirk (19 S. C. N. Y., 181), an action was brought to restrain the collection of an assessment for making a sewer, upon the ground that the assessors had proceeded upon erroneous principles; that they had assessed some land 'which was not benefited; that some of the land assessed could not drain into the sewer, and that a large part could not be drained without considerable expense and changing the surface of the lots, etc. The action was sustained, and the assessment was declared void, and a perpetual injunction was granted. That case •seems to hold that where the assessors err in judgment, “ proceed upon erroneous principles ” as .to the property which they assess, an action can be maintained by a person assessed to restrain the assessment, on the ground that such- error makes the assessment void. The decision appears to cover the present case. And, therefore, without expressing our own opinion, we follow that decision.

It is worth noticing, however, that that assessment was adjudged to be void because the assessors did assess land which lay below the bottom of the sewer and could 'not drain into it. The present assessment has been adjudged to be void for the opposite reason, that is, because the assessors did not assess certain land which lay below the sewer and could not drain into it. The courts, therefore, in each case must have assumed to decide what land was, in fact, benefited by the sewers. They must then have reviewed, in an action for an injunction, the judgment of the assessors, as expressed in their assessment. This seems to be of doubtful propriety; but such is the decision in the case above cited.

On the trial of this case the plaintiff proved, by one of the assessors, that the reason why the assessors did not assess the laud referred to, lying below the sewer, was that they thought they could legally assess only the lots that furnished the water which ran into the sewer. The defendants objected to this evidence, and claimed that the correctness of a decision actually made, does not depend on the reasons which influenced the persons making it. But the duty of the assessors is to apportion the expenses on the property benefited. If they had in fact decided that these lower lands were not benefited by the sewer, it would probably be admitted that they had passed on a matter within then-jurisdiction. The ground of the plaintiffs’ action is that the assessors did not in fact so decide; that they erroneously thought these lower lands were not within their power. And in accordance with the case of Clark v. Dunkirk (lit supra), it would seem to be proper to show the erroneous principles on which they acted; to show that, in fact, they did not decide that these lower lands were not benefited. There is plainly an evil in permitting the act of a body of legally appointed officers to be attacked by such evidence; by showing their views of the law, in order to qualify and affect their sworn verdict, as it might be called. But the plaintiffs claim the right to show that the assessors adopted an improper rule. And from the decision, above referred to, it ■seems to follow that they may show this.

The defendant urges that the finding by the learned justice, to the effect that many of the owners of the lots assessed appeared before the assessors and claimed that these other lots above mentioned, should be assessed, is not sustained by the evidence. The case shows no evidence on this point. But the matter is immaterial.

So also the defendant urges that the finding as to the admission of the assessors is not supported by the evidence. It docs not appear in the evidence that they admitted the matter to be as found. The only testimony is that of one of their number. He testifies that the reason they did not include this property, was, because it was claimed that they could not do it legally; that they coidd only assess the lots that furnished the water. No contradictory evidence is given.

Assuming, under the decision cited above, that it is for the court to decide what property was benefited and whether the assessors omitted any that was benefited, or included any that was not, we think that the finding of the learned justice that these lands in question were benefited, is supported by the evidence. Some argument was made based on the effect of restraining the collection of an assessment after the work was done and some of the assessed parties had paid. But that point also must have been considered m Clark v. Dunkirk (ut supra).

The defendant further insists that there is no right in the plaintiffs to unite in this action. There was no inflexible rule in the Court of Chancery as to joinder of parties; and persons having separate interests were sometimes allowed to unite to restrain a common injury. (Murray v. Hay, 1 Barb. Ch., 59; Code, § 199.) This action is brought by these plaintiffs for the benefit of all similarly situated. Numerous suits for the same object would bo án evil.

For these reasons we think the judgment should bo affirmed with costs.

Present — Learned, P. J., andBocKES, J.; Osborñ, J., taking no part.

Judgment affirmed with costs.


author: LEARNED, P. J.:

text:
    SILAS MARLETT and others, Appellants v. RACHEL MARLETT, Executrix etc., Impleaded etc., Respondent.

      Will — action for construction of— when and by whom maintainable.

    Where a testator has, by his will, conveyed an estate in certain lands to his. wife, which estate is claimed by her to be an estate in fee, and by his heirs at law to be one for her life only, the heirs at law cannot maintain an action for the judicial construction of the will, and to have the estate to which she is entitled judicially determined.
    A testator appointed his wife executrix of his will, and gave to .her his residuary estate either for life or absolutely. Held, that his next of kin could not maintain an action to have the nature of the estate to which she was entitled, declared, unless it was shown that she was squandering or wasting the estate, or that she was unable to respond to the plaintiff, at the termination of the life estate, or to'those who might then represent them.
    The plaintiffs are heirs-at-law and next of kin of one Silas Marlett, deceased. The defendants are the executrix, and the legatees, and devisees under his will. The complaint sets forth the will at length, and avers that Rachel Marlett is entitled under the same only to a life estate in the real and the personal property, and that she claims that she is the owner thereof in fee. It avers that she has given away and threatens to give away and squander the personal estate; and the complaint asks a construction of the will.
    The answer admits the will, and avers that Rachel Marlett claims to own the real and personal property absolutely; puts in issue the giving away and squandering of the personal property, and demands that the will be construed so that she shall be declared to be the owner absolutely.
    On the trial no evidence whatever was given of any squandering or giving away of the personal property. The only proof given was of the inventory and of the refusal of the executrix to bring an action for the construction of the will. The Special Term decided that by the will the real estate vested in Rachel Marlett, with the right to dispose of the same in her lifetime absolutely; and the personal estate passed to said Rachel and vested in her absolutely; and dismissed the complaint with costa against the plaintiffs.

      Countryman & Bmoen, for the appellants.
    The executrix is the trustee for the next of kin, having under the avíII the use, control and management of the estate during her life, when it passes to the cestuis que trust under the statute of distribution. (3 Williams on Executors [6th Am. ed.], 2005, 2117; 1 Perry on Trusts [2d ed.], § 94; Willard’s Equity Jurisprudence, 490; 2 Story’s Eq. Juris., § 1208; 3 Revised Statutes [6th ed.], p. 104, §90.) Any one claiming an interest in the personal estate, either as legatee or under the statute of distributions, may maintain an action against the executrix for the construction of the will, where the provisions to be construed will affect such interest. (Bowers v. Smith, 10 Paige, 193, 199, 200; Walrath v. Handy, 24 How., 3.53, 356; Bailey v. Briggs, 56 N. Y., 407, 413.)

      Samuel S. Bdich, for the respondent.
    This action cannot be maintained, and the plaintiffs should have been nonsuited at the trial. Even were the complaint good as in an action in the nature of a bill quia timet, then the question arises that no evidence whatever was given on the trial showing waste or contemplated waste. (Chipman et al, v. Montgomery, etc., 63 N. Y., 221, 232; Brown v. Rickets, 3 John. Ch., 553; Brcnmi v. Smith, 10 Paige, 193, and Cases cited therein.) In other words, this action is one solely for construction prosecuted by heirs-at-law, and cannot be maintained. (Brown v. Smith, 10 Paige, 200; Post v. Hover, 33 N. Y., 593.) There is no effort even to enforce any rights or to correct any wrongs. The question to be decided is one purely of law. (Bailey v. Briggs, 56 N. Y., 413; Onderdonk v. Mott, 34 Barb., 112; Woodruff v. Cook, Ail id., 305; Chapter 238, Laws of 1853; Post v. Hove.r, 33 N. Y., 601; lleywood v. City of. Buffalo, 14 N. Y., 540.)
   LEARNED, P. J.:

If the court was right in giving any construction whatever to the will, then the complaint could not be dismissed. On the other hand, if the complaint was dismissed then the court could not properly give any construction to the will.

The plaintiffs ask the court to decide for them, whether the devise and legacy to Rachel Marlett gives her the whole ownership or only an estate for life. If the will gives her the whole ownership, they have nothing. If it gives her only an estate for life, then the remainder goes to them, as heirs-at-law. and next of kin; but not by the will.

First, as to the real estate. There is no dispute that she is entitled to this for life. At her death the plaintiffs, or the persons who shall then represent the heirs of the deceased, can bring ejectment and can try the question of title. It is, and it will be, a purely legal question, and it should be settled only by an action in ejectment. No equitable question can arise. The court should not be asked to decide the title now, when the plaintiffs, as they admit, are not entitled to possession. The decision in Baily v. Briggs (56 N. Y., 407), substantially affirms this doctrine, and see Bowers v. Smith (10 Paige, at page 200).

Secondly, as to the personal estate. Rachel Marlett is the executrix, and she is also the residuary legatee. That is, shé takes the residuary estate either for life or absolutely. The plaintiffs claim that, as legatee, she took only a life estate. But, even if this were so, then either she would be entitled to receive the legacy from the executrix, giving therefor an inventory and receipt, Spear v. Tinkham (2 Barb. Ch., 211); or else, the legacy being residuary, the executrix should invest and hold the legacy, paying the income to the legatee for life. (Covenhoven v. Shuler, 2 Paige, 122.) In either case therefore Rachel Marlett, as legatee or as executrix, is entitled to the possession of the legacy. There is no proof whatever that she is squandering, or wasting, or parting with the property. There is no allegation that she is not able to respond to the plaintiffs, or to any one who shall represent them, when her estate for life (if she has only such estate) shall have ceased. So that the action fails altogether as one quia timet.

The plaintiffs’ counsel cites a remark of the Chancellor in Bowers v. Smith, (10 Paige, at 199), to the effect that an executor takes the personal property as trustee, and that a person claiming an interest may file a bill to settle the construction of the will; but the Chancellor adds, “ and to enable him to obtain from the executors such portions of the estate as he is either legally or equitably entitled to.” Now the difficulty with the present case is that the plaintiffs, at this present time, are confessedly not' entitled to anything in possession. All that they claim is that, at some future time, they or some persons succeeding to them, will be entitled to this personal property. And as they do not show that the property is in danger of being lost, there is no occasion for their bringing any action. Advisory suits should seldom be permitted except when brought by trustees, or quasi trustees, for their own protection.

The learned justice Avho decided the case seems, however, to have been induced to give an opinion by the pleadings of the parties. But the defendants on the trial moved for a nonsuit on the ground of Avant of jurisdiction, and on the ground that the plaintiffs had not sIioavii sufficient facts. So that the}' insisted, on the trial, that the action could not be maintained. The language of the answer, Avlien the defendants ask that the Avill be construed to give. Rachel Marlett a fee, is not to be taken as a waiver of the objection that such an action as this could not be maintained. It is only the statement of the defendant’s construction of the Avill. There should then have been no judgment construing the will; but the complaint should have been simply dismissed. On the construction of the Avill Ave express no opinion.

The judgment must be modified accordingly Avith costs of the appeal against the plaintiffs.

Present — Learned, P. J., Bockes and Osborn, JJ.

Judgment modified so as to dismiss the complaint, without giving any construction to the will, and as so modified affirmed, with costs of appeal against plaintiff.


author: jLeahNed, P. J.:

text:
    JOHN MARSH, Respondent, v. ALEXANDER N. BENEDICT, Sheriff, etc., Appellant.

      Judgment against maker and accommodation indorser.— right of latter to pay and take assignment of judgment.

    The holder of a promissory note recovered a judgment thereon against the maker and an accommodation indorser, and an execution thereon was issued to the sheriff. Subsequently other judgments were recovered against the maker, and executions placed in the hands of the sheriff. A levy was made on personal property of the maker, but insufficient in amount to cover the first judgment. Subsequently the accommodation indorser paid the holder-the amount of the first judgment, and took an assignment thereof.
    In an action to determine to whom the money realized on the sheriff’s sale should be paid, held, that the payment of the judgment by the accommodation indorser and the taking of an assignment thereof by him, did not operate to extinguish the same, and that he was entitled to have the money in the hands of the sheriff applied upon the same.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      Samuel S. Edict;, for the appellant.
    The judgment in favor of the First National Bank was not satisfied and discharged when Peter Seeber, one of the judgment debtors, paid the same at the bank and took an assignment thereof. (Olason v. Morris, 10 Johns., 524; Gory v. White,- 3 Barb., 12; Kelsey v. Bradbury, 21 Barb., 531.) It is only when the judgment is obtained against joint debtors that payment by one defendant operates as a satisfaction of the judgment. (Morley v. Stevens, 47 How., 228; Ilarbeek v. Vanderbilt, 20 N. Y., 395; Booth v. Fanners’ Bank, 11 Hun, 258.) The two defendants in the bank judgment were in no sense joint debtors, and hence the assignment of the judgment to tho indorser was no satisfaction thereof. (Alden v. Glark, 11 How., 209; Goodyear v. Watson, 14 Barb., 481.) The rights and obligations of Peter Seeber were fixed and determined when he became accommodation indorser, and were not altered or changed by the fact that judgment had been obtained on the note. (Hub-bell v. Qurran, 5 Barb., 250; Bangs v. Strong, 4 N. Y., 315; S. O., 7 Hill, 250.)

      B. Countryman, for the respondent.
    The payment of the bank execution by Peter Seeber, one of the execution debtors, was a payment of that judgment and execution as against other execution creditors, who had obtained liens upon the debtor’s property, and entitled them to have the moneys collected by the sheriff applied on their executions in preference. (Banlc of Salina v. Abbott, 3 Denio, 181; Ontario Bank v. Walker, 1 Hill, 652; Craft v. Merrill, 14 N. Y., 456; Harbeclc v. Vanderbilt, 20 N. Y., 395; Booth v. Farmers etc., Bank, 11 'Hun, 258; Shumway v. Cooley, 9 Hun, 131; Adams v. Drake, 11 Cush., 504; Holmes v. Day, 108 Mass., 563; Hull v. Sherwood, 59 Mo., 172; Copis v. Middleton, 1 Turn. & Éuss., 224-231; Same Case, 12 Eng. Ch. B., 223; Hodgson v. Shaio, 3 Mylne & Keene, 183; Same Case, 10 Eng. Ch. B., 183; Wiggins v. Dorr, 3 Sumn., 419; 1 Story’s Eq. Juris., §§ 499, b. c. d.)
   jLeahNed, P. J.:

The action is, in part at least, for the refusal to return executions. The refusal is not denied. There is, therefore, a technical right of recovery. But the defendant may mitigate the damages in such cases; and, in strictness, it woidd be for the defendant to show that he could not have made the money within the life of the executions.

But the cause seems to have been tried on the theory that the sheriff had made such money as he could out of the debtor in the . execution, such being substantially the testimony of the deputy sheriff; and that the question to be tiled was where this money should be applied. The complaint itself alleges that the sheriff has in his hands moneys applicable to these executions, and the defense in the answer is, that the moneys are applicable elsewhere.

We ought, then, on this appeal, to examine the questions raised, as they were tried at the Circuit. And the inquiry is whether the moneys now in the sheriff’s hands are applicable to the plaintiff’s judgment. If they are, the judgment appealed from is correct. If they are not, then the plaintiff should have had only a nominal judgment.

On the 22d of October, 1873, the Bank of Commerce of Cooperstown recovered a judgment against Jacob Seeber, as maker, and Peter Seeber, as indorser, of a promissory note. Peter Seeber' was an accommodation indorser. The same day an execution thereon was issued to the defendant against both of those defendants.

On the 12th of November, 1873, one Randall recovered a judgment against Jacob Seeber, and an execution thereon was issued the same day to the defendant. This judgment has been assigned to the plaintiff.

On the 17th of November, 1873, the plaintiff recovered a judgment against Jacob Seeber, and an execution was issued thereon the same day to the defendant.

A levy was made on personal property of Jacob Seeber, but it does not distinctly appear at what time.

About the first of June, 1874, Peter Seeber purchased from the bank the aforesaid judgment recovered by it against himself and Jacob, paid the bank therefor and took an assignment thereof.

On the 22d day of July, 1874, the defendant sold all the property of Jacob Seeber in the county, and made therefrom $410. At the time of the sale, he had in his hands the bank execution, the plaintiff’s executions, and, it would seem, other executions also. While the fact does not distinctly appear, yet it seems to have been assumed that the sale was made by virtue of a levy made under these several executions.

The plaintiff now claims that the purchase by Peter Seeber from the bank of its judgment, and his payment thereof on receiving an assignment, was a payment of the judgment and execution as against other execution creditors. The defendant, on the other hand, insists that the money in his hands is applicable first on the bank execution. The amount of that execution is more than the money in his hands.

The plaintiff’s counsel urges that the case of Harbeck v. Vanderbilt (20 N. Y. 397), is conclusive on this case. In that case a judgment upon a joint contract was recovered against several defendants. One of the defendants paid his aliquot share, one-seventh and gave his note to the plaintiffs, with an indorser, for the remainder. At the same time the attorney of that defendant took an assignment of the judgment to himself as security for that indorser. The indorser paid the note. It was held that he might enforce the judgment. Nothing therefore -was decided in that case favorable to the defendants’ views. Judge Selden remarks that ■where one of several defendants against whom there is a joint judgment pays the other party the entire sum, the judgment becomes thereby extinguished. But however correct the remark may be, it was obiter. And the important fact is that in that case the original contract was joint. Neither of the defendants was a surety for the others.

So also the counsel for the plaintiff cites Booth v. Farmers and Mechanics' Bank (18 S. C. N. Y. [11 Hun], 258.) But the decision in that case is shown by the learned justice who wrote the opinion to rest on the fact that “as between the pai-ties to the judgment it was the joint obligation of all.” Again the learned justice says: “ as between the parties themselves the debt was in equity a joint debt.” It is true that Flint was in fact a joint debtor. And because he was in fact such joint debtor his payment of the debt discharged it.

So again the counsel for the plaintiff cites Shumway v. Cooley (16 S. C. N. Y., 131.) But the same circumstances appeared in that case. The person who paid the judgment was a principal debtor, one of three partners. He was not a surety.

The case of Adams v. Brake (11 Cush., 504,) is one of joint debtors. That of Holmes v. Day (108 Mass., 563,) was between parties all of whom were sureties.

Now in the present case Peter Seeber was the surety and Jacob Seeber was the principal debtor. The recovery of the judgment did not change their relation to each other. (Bangs v. Strong, 4 N. Y., 315.)

The rights of the parties as between each other were especially saved by section 7, of chap. 276, Laws of 1832, which authorized the joinder of drawer and indorser as defendants. They are not joint debtors, although sued in the same action. (Farmers' Bank v. Blair, 44 Barb., 641; Kelsey v. Bradbury, 21 Barb., 530 at 540; Corey v. White, 3 Barb., 12.) If they wore joint debtors, then if Jacob had paid the debt he could have called on Peter for contribution. But this plainly he could not do. And, as it appears to us, the error of the counsel for the plaintiff lies in the assumption that the defendants Jacob and Peter had become simply joint debtors. It is scarcely necessary to cite authorities to show that a surety who pays a debt is entitled to be put in the place of the creditor, and to have all the means which the creditor possessed to enforce payment against the principal debtor. (Lewis v. Palmer, 28 N. Y., 271.) It is said that he is entitled to an assignment of the debt. (Ellsworth v. Lockwood, 42 N. Y., at p. 98.) But we need not inquire whether the creditor can be compelled to assign the debt. For in this case he has done so voluntarily. And an important part of the security which the creditor had was the lien of the execution on Jacob Seeber’s property. It .was substantially as if Jacob Seeber had given a chattel mortgage to the bank to secure the debt. If Peter Seeber had paid the bank and had taken an assignment of the debt, the lien of the mortgage would have passed to him. (Eno v. Crooke, 10 N. Y., 60.)

It has sometimes been said that when a surety pays the debt, he is not entitled to have the debt assigned to him; because the assignment of a debt which had been paid would be a nullity. But if the creditor held collaterals of the principal debtor as a pledge, would the payment by the surety discharge those collaterals ? If the debt is utterly extinguished, how can the collaterals l>e held ? Yet it is fully settled that the surety is entitled to the collaterals. It matters not what it bo, if there be. any property of the principal debtor on which the creditor has a lien for the debt, the surety is entitled to the same lien when he has paid the debt of his principal. No wrong is done to the plaintiff. The bank had a lien prior to his. This lien has not been discharged by the principal debtor. It has been transferred to one who stood as surety. (Wilkes v. Harper, 2 Barb. Ch., 338.) The view we have taken has been held in other cases in this court. (Corey v. White, 3 Barb., 12; Goodyear v. Watson, 14 Barb., 481; Alden v. Clark, 11 How., 209.)

The judgment should be reversed and a new trial ordered, costs to abide the event.

Present — Learned, P. J., and Bockes, J.; Osborn, J., taking no part.

Judgment reversed and new trial granted, costs to abide event.


author: Learned, P. J.

text:
    MARY BYRNE, an Infant, by Guardian, etc., Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Testimony of witnesses as to ringing of belt on engine — denial that it was rung— effect of positive and negative testimony.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the ' action was tried.
    The action was brought to recover damages for personal injuries received by the plaintiff, caused by her being run over by a train of cars belonging to and managed by the defendant.
    The court at General Term said: “ The defendant seeks to review this case on the ground that the verdict was against • evidence. First, in regard to the negligence of the defendant, as alleged, in not ringing the bell. On this point Loughlin testified that the bell was not rung at all before the accident; he states this positively. On cross-examination, ho says he knew that it was not rung by hearing, because he did not hear it; ■ that after the accident, when the cord was pulled, he heard the bell distinctly. The cars passed near to Burns and Fisk, who were working by the track; they heard no bell.
    For the defendant, the engineer on the train testifies that the bell was rung all the way. The fireman testifies that he is pretty positive he was ringing.
    The defendant, in this connection, insists that the court erred in refusing to charge that the positive witnesses who swore that they heard the bell rung, should have more weight than that of witnesses who only swore that they did not hear it. And the counsel cites Calhane v. W. Y. C. é II. II li. Co., (60 N. Y., 133). There four witnesses testified to the ringing of the bell. The two said they did not hoar it, gave no attention to the matter. We cannot suppose that the court meant to hold, as a matter of law, that no negative testimony of that kind, however numerous the witnesses could outweigh positive testimony. Where one testifies that a bell did not ring, or that a certain remark was not made, his testimony must, in the nature of the case, be negative; that he did not hear the bell or the remark.
    In the- present case Loughlin shows the circumstance which attracted his attention; that is, the sound of a bell (perhaps the gong), striking his ear after the cord was pulled; and he is positive that the hell was not ringing before that time. Experience shows, too, that in such cases the employees of a road whose duty it is to ring the bell, or cause it to be rung, seldom fail to testify that they did their duty. They are under strong temptation to think that they rang the bell, and possibly this temptation affects their memory. We think this was a question for the jury, especially considering the additional evidence of Burns and Sisk, and that the refusal was not error.” The court then proceeded to consider the evidence, and held, that it showed the plaintiff to have been guilty of contributory negligence, aird that for that reason the court erred in submitting the case to the jury.

      Usele Cowen, for the appellant.

      12. A. Parrnenter, for the respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. J.; Bockes and Osborn, JJ.

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