text:
    JOAB L. CLIFT, Respondent, v. MARY E. MOSES, Appellant, Impleaded with SIDNEY SMITH, as Administrator, etc., and Others.

      A devisee of real estate, subject to a power of sale topay debts — is entitled to receive the rents and profits until a sale is made — when a power io sell or mortgage to pay debts and legacies will not be held io effect a conversion of realty into personalty.

    By his last will and testament Charles Pardee ordered and directed his executors to pay all his just debts and funeral expenses as soon after his death as could conveniently be done; he gave to his adopted daughter, Mary E. Moses, the household furniture; he gave his gold watch to one person, and three legacies, each of $100, to three other persons named in his will; he gave to his daughter the rest and residue of his estate, real and personal, making her residuary legatee of his will; he appointed Benoni Lee and Mary E. Moses executors of his will, and further provided as follows; “ I give and devise to my executor and executrix all my real and personal property of every kind, in trust, for the purpose of paying my debts and legacies named in this my last will, giving them power to sell, mortgage or convey any and all real estate for the purposes above named in this my last will.”
    The will having been admitted to probate on July 17,1878, and the executor and executrix having renounced, letters of administration, with the will annexed, were issued to one De Witt, and upon his death, in 1880, new letters weie issued to the defendant Smith, who was also, on November 18,1880, appointed a trustee under the will to execute the power in trust. From the date of the death of the testator, April 9, 1878, to July 1,1881, when the testator’s real estate was sold by the trustee for the purpose of paying his debts, Mary E. Moses, the devisee named in the will, was in possession of the testator’s real estate, and collected the rents thereof amounting to $7,222.92. The estate being insolvent, and the administrator refusing to sue to recover the sum so collected, the plaintiff, a creditor of the estate, brought this action to recover the sum for distribution among the creditors.

      field, that if it was conceded that the title to the testator’s real estate vested, upon his death, in Mary E. Moses, the devisee, subject to be divested by the execution of the power of sale, then, until such power was executed, she alone was entitled to the possession of the realty, and to collect the rents for her own benefit, and the action could not be maintained.
    That it was not necessary, to the decision of this case, to consider whether or not the will charged the testator’s debts upon his real estate, as, under the statutes of this State, the debts were charged and made a lien upon the whole estate, and the burden upon the realty, or the personal liability of the devisee for the testator’s debts, would not be increased although the debts were, by the will, specifically charged upon the realty._

      That a finding of the referee that, under the will, Mary E. Moses, by receiving the rents, became personally liable to pay all the testator’s debts could not be sustained.
    That the realty was not, by this will, converted into personalty either “ out and out ” or even for the purpose of paying the testator’s debts and legacies.
    That, from the fact that after the testator’s death, which occurred eighteen months after the date of the will, he was found to be insolvent, it could not be inferred that he intended to effect a conversion of his realty into personalty.
    To effect such a conversion, in the absence of a direction that a sale must be made in any event, it must clearly appear that the testator intended it.
    Appeal from a judgment in favor of tbe plaintiff, enteréd in Onondaga county, upon tbe trial of this action by tbe court without a jury.
    April 9, 1878, Charles Pardee died:, leaving a last will and testament, of which the following is a copy:

      “ I, Charles Pardee, of Skanea,teles, county of Onondaga, being of sound mind and memory, do make, publish and declare this to be my last will and testament in the manner following: I do order and direct my executor, hereinafter named, to pay all my just debts and funeral expenses,as soon after my decease as can conveniently be done. I give and bequeath unto my adopted daughter, Mary E. Moses, wife of Lucian Moses, the household furniture and whatever may be in the house and used as housekeeping articles. I give and bequeath unto Amos R. Pardee my gold watch. I give and bequeath to Eliza Bronson, widow of Henry G. Bronson, deceased, one hundred dollars; to Mrs. Sarah Greenman, one hundred dollars; to Mrs. Triphina Austin, if living at my decease, one hundred dollars. I do give unto my daughter, Mary E. Moses, the rest and residue of my estate, real and personal, making her residuary legatee of this my last will and testament. I do hereby nominate and appoint Benoni Lee and Mary E. Moses my executor and executrix of this my last will and testament, revoking all former wills by me made. I give and devise to my executor and executrix all my real and personal property of every kind, in trust, for the purpose of paying my debts and legacies named in this my last will, giving them power to sell, mortgage or convey any and all real estate for the purposes above named in this my last will.
    “ In witness whereof, I, the said Charles Pardee, have hereunto set my hand and seal this 19th day of September, 1876.
    ££ C. PARDEE, [l. s.] ”

      July 17,1878, the will was probated, and the executor and executrix nominated therein having renounced, letters of administration, with the will annexed, were issued to Jacob C. De "Witt, who qualified and thereafter acted as administrator until October 1,1880, when he died, and November 1, 1880, letters of administration, with the will annexed, were issued to Sidney Smith, one of the defendants, who has, since that date, acted as such administrator. November 18,1879, De Witt was appointed as trustee under the will, to execute the power in trust, and November 8, 1880, Smith was appointed a trustee, vice De Witt, who had died. July 1, 1881, the power of sale contained in the will was executed and the testator’s real estate sold for the purpose of paying his debts. Between April 9, 1878 (the date of the testator’s death) and July 1, 1881, (the date of the sale of the real estate), Mary E. Moses (the devisee named in the will) was in possession of the testator’s real estate, and collected rents therefrom amounting to $7,221.92. The estate is conceded to be insolvent. The administrator refused to sue for the recovery of the sum so collected, and the plaintiff, one of the creditors of the estate, brought this action to recover the sum for distribution among the creditors. The administrator and all of the creditors of the estate are joined as defendants with Mrs. Moses, but she alone defends. The case was tried at Special Term, where it was held that Mrs. Moses was liable to pay over the rents collected, and a judgment was entered directing her to pay them to the administrator for distribution among the creditors, from which judgment she appealed.

      William G. Tracy, for the respondent.

      Louis Marshall, for the appellant.
   Follett, J.:

The heir, and at law the devisee, of an insolvent decedent is entitled, as against the personal representatives of creditors, to receive and retain as his own, rents and profits arising from realty between the date of the decedent’s death and the date of the sale of the real estate, for the payment of the decedent’s debts. (Gibson v. Farley, 16 Mass., 280; Boynton v. Peterborough and Shirley R. R. Co., 4 Cush., 467; Newcomb v. Stebbins, 9 Metc., 540; Lobdell v. Hayes, 12 Gray, 236; Towle v. Swasey, 106 Mass., 100; Campbell v. Johnston, 1 Sandf. Ch., 148; 2 Will. Ex. [6th Am. ed.], 893; Schouler Ex. and Adm., § 216.) This rule is too firmly established to be questioned in this court.

“ Section 56. A devise of lands to executors or other trustees, to be sold or mortgaged, where the trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees; but the trust shall be valid as a power, and the lands shall descend to the heirs or pass to the devisees of the testator, subject to the execution of the power.” (1 It. S., 729.)

Upon the assumption that this case is within this section it was held at Special Term, and it is now conceded by the counsel for both parties, that the title to the testator’s real estate upon his death vested in Mary E. Moses, the devisee, subject to be divested by the execution of the power of sale, and until it was executed she alone was entitled to the possession of the realty, and entitled to collect the rents. If the concession expresses the rule of law applicable to this case, it defeats the plaintiff’s right to recover. Iler right must have been a personal one, for it is difficult to see how she was entitled to receive or recover the rents as a trustee for the personal representatives, or for the testator’s creditors, and not being in any sense a wrong-doer in receiving the rents, she cannot be held liable as a trustee in invihim.

It is illogical to say that rents which were hers alone, and which she alone could have recovered by action, can be recovered of her, unless by virtue of some promise, expressed or implied, or by virtue of some statute. Lent v. Howard (89 N. Y., 169) is not an authority for the position that rents which a devisee or heir is ( entitled to collect before the execution of a power of sale may be recovered of him by the executor. On the contrary, the case holds that the executor’s right to the rents arose from the fact that the realty was, by the will, converted into personalty at the testator’s death. The executors, and not the heir or devisee, in that ease, received the rents and profits, and it was held that they must account for them as assets, upon the theory that they arose from personalty. No case has been cited holding that when realty is by a will absolutely converted into money at the testator’s death, the heir or residuary devisee is entitled to possession and to the rents, until the land is actually conveyed under the power in the will.

We are uot considering cases in which the time for tlie conversion is postponed until some period after the testator’s death, or of the rights of heirs or of devisees to the intermediate rents in such cases. When the owner legally directs that upon the happening of an event, or at a time specified, his land shall be converted into, and treated as money, the courts of equity, by a convenient fiction, hold that upon the happening of the event, or the arrival of the time, the land becomes money, and is subject to the rules of law governing money, and ceases to be subject to the rules of law applicable to real estate. If the will absolutely converted the realty into personalty at the testator’s death, the executor, and not the devisee, was entitled to its possession, and to recover the rents and profits, notwithstanding the section of the statute quoted. Disregarding the effect of this concession, we are led to examine the plaintiff’s claim that the judgment is sustainable upon both, or upon either of the following grounds: First. That the devisee having accepted the devise and taken the rents, the law implies a promise, or liability on her part to pay all the testator’s debts. Second. That, under the will, the realty was, at the testator’s death, absolutely converted into personalty, and the rents, as well as the principal, are assets, and applicable to the payment of the testator’s debts. Can the judgment be supported on the first ground? That the will does not expressly charge Mary E. Moses with the duty of personally paying the testator’s debts, and that the devise to her is not, in terms upon the condition that she shall pay his debts, is so obvious that it cannot be made plainer by discussion. As bearing upon this ground of liability, the question whether the will charges the testator’s debts upon his real estate, was much debated by counsel upon the argument. Had the testator’s estate been solvent, and but partly disposed of by the •will, or had the estate been divided by the will between several persons, it might be important to determine whether he intended to charge his real estate, or some part of it, with the payment of his debts; but as the estate is insolvent, and there is no conflict between those named as beneficiaries, it seems wholly unnecessary to consider this question, for, under the statutes, the debts are charged, and become a general lien upon the whole estate, and the burden upon the realty, or the personal liability of the devisee for the testator’s debts would not be increased, though the debts were by the will specifically charged upon the realty. By statute (Code Civil Pro., § 1843) a devisee is liable for the testator’s debts to the extent of property received by him, but beyond this he does not become personally liable by merely accepting of the devise and of the rents and profits thereof, though the devise is charged with the debts, unless the will charges the devisee with the duty of personally paying the debts, or unless the devise is upon the condition that the devisee pays the debts. (Cronkhite v. Cronkhite, 1 T. & C., 266; Wheeler v. Lester, 1 Bradf., 213, 293; Pom. Eq. Jur., § 1246, note; 2 Redf. Wills [3d ed.], 304.) The position that when a testator expressly charges all of his property with the payment of his debts, and then devises and bequeaths the residuum, that the residuary legatee and devisee becomes personally liable to pay all the testator’s debts by simply taking possession of the realty and enjoying the use thereof until it is applied to the payment of the debts, is without support in reason or in authority. Neither can the devisee, in such a case be compelled to account for the rents, issues or profits received from the realty. (See authorities cited in support of the first proposition in this opinion.)

Grantees of lands, subject to specific liens enumerated in the grant, are not personally bound to pay the liens, though they form part of the consideration for the grant. (Belmont v. Coman, 22 N Y., 438; Binsse v. Paige, 1 Abb. Ct. App. Dec., 138; 1 Keyes, 87.) Persons who are vested with the legal title to, and by virtue thereof are in possession of real estate- charged with specific liens, are not accountable for the use enjoyed, or for the rents collected before the title is divested by a sale. If ci-editors wish to cut off the right to enjoy the use and rents, which is incident to possession under a legal title, they must intercept the rents and profits, while enforcing their liens, by- the aid of a receiver. In such cases creditors cannot lie by until after the title is divested and then compel its late owner to pay over the rents which he lias received, or the profits earned by his management and care of the property. (Hollenbeck v. Donnell, 94 N. Y., 347; Hamilton v. Austin, 36 Hun, 143; Jones Mort., §§ 670, 1120, 1659.)

We know of no authorities holding that the rights of creditors having general liens are superior in these respects to those of creditors having specific liens. The conclusion of'law (the ninth), that under the will, Mrs. Moses became personally liable to pay all of the testator’s debts by receiving the rents, cannot be sustained, and her exception to this conclusion is valid.

Was the realty converted by the will into personalty at the testator’s death ? When a testator directs that his real estate must be sold and converted into money, for all purposes, it is called “ a conversion out and out.” (3 Redf. Wills [3d ed.], 110.) This will does not direct that the real estate shall be sold, but simply empowers the testator’s executors to mortgage or sell; not for all purposes, but solely for the purpose of paying his debts and legacies, and a technical conversion out and out is not effected. But the more important question is: Was-the realty converted into personalty by the will for the purpose of paying debts and legacies? The will not containing an imperative direction for the sale of the realty, or' for treating it as personalty, a conversion is not effected unless it clearly appears that it was the intention of the testator to effect a conversion. It cannot be contended that the testator intended a conversion of his real estate for the purpose of paying pecuniary legacies, aggregating but $300. Nor does it appear that the testator contemplated a sale of all of his real estate for the purpose of paying his debts, as his executors are expressly authorized to mortgage his realty for this purpose. We are unable to conclude from the provisions of the will that it was the clear intent of the testator to effect a conversion.

But a single fact outside of the will is relied on for the purpose of aiding the court to infer an intention to effect a conversion, which is, that after the testator’s death, which occurred eighteen months after the date of the will, he was found to be insolvent. From this fact the trial court found that the testator was “probably” insolvent when he executed the will. (Ninth finding of fact.) The court did not find that the testator knew that he was insolvent when he executed it, and there is no evidence to support such a finding unless it should be inferred from the situation in which the estate was found after his death. If he was insolvent when he made the will, but was unware of it, it affords no guide to his intention; and so we are left to gather the testator’s intention from his will.

To effect a conversion of realty into personalty, in the absence of a direction that a sale must be made in any event, it must clearly appear that the testator intended a conversion. ( White v. Howard, 46 N. Y., 144, 162; In the Matter of the Will of Fox, 52 N. Y., 530, 537; affirmed, 94 U. S., 315; Hobson v. Hale, 95 N. Y., 588.)

In Hood v. Hood (85 N. Y., 561) and Lent v. Howard (89 N. Y., 169), power to sell was conferred upon the executors, who were directed, after paying debts and legacies, to invest the residuum in securities for specific purposes, which could not have been accomplished without a conversion of the realty into personalty, and it was held that the testators must have necessarily intended a' conversion. In Moncrief v. Ross (50 N. Y., 431) and Fisher v. v. Banta (66 N. Y., 468), a sale of the realty was directed. In Phelps Phelps (28 Barb., 121); S. C., Dodge, Executor, v. Pond 23 N. Y., 69), after paying the debts, about a million aud a half of dollars were devised and bequeathed, and the residuum, about $250,000, was directed to be divided into as many parts as the testator should have children and grandchildren living at a certain time after his death, or upon the happening of a certain event. The testator’s real estate was situated in five different States. At the time of his death he had five children and twenty-two grandchildren, and when the time for distribution arrived the number of his grandchildren had increased. It was held in the Supreme Court that the circumstances justified the conclusion that the conversion was intended. This, however, was not the principal question involved, and in the Court of Appeals (where the judgment was modified) it was remarked that it was not very material to determine whether the realty was converted into personalty, and then the opinion was expressed that a conversion was intended. In Hobson v. Hall (supra) the Court of Appeals analyzed and discussed, at considerable length, the leading English and American cases turning upon the question of conversion, and, if we correctly understand that case, it is decisive against the position of the plaintiff, that a conversion was effected. We have been cited to no case holding that authority conferred upon executors to mortgage or sell solely for the purpose of paying debts (which is the effect of this power, as the legacies amount to but $300) works a conversion of the realty into personalty as of the date of the testator’s death.

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

Hardin, P. J., and Boardman, J"., concurred.

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


source: Caselaw Access Project

author: Follett, J.:

license: Public Domain

text:
    JAMES RONEY, Appellant, v. BRUCE S. ALDRICH, Respondent, Impleaded with CUYLER E. BALDWIN.

      Construction of division fences — duty of an owner to maintain and erect them — when he is liable for the injuiies caused by their negligent construction.

    This action was brought by the plaintiff, who occupied, in 1883 and 1884, a farm owned by one Kelly, which adjoined, on the south, a farm owned, in 1884, by the defendant Aldrich, and which was then occupied by the defendant Baldwin, to recover damages for injuries sustained by the plaintiff’s horses from being badly cut by a wire fence erected by the defendant Baldwin along the division line of the two farms. The portion of the fence at which the injury was sustained was erected upon that portion of the line which the defendant Aldrich was bound to erect and maintain, by Baldwin, under the authority of Aldrich, who furnished the wire for it, without giving any directio ns as to thte size, kind or strength of the posts to be used, nor as to how far apart they should be set, nor as to how high above the ground the "wires should be strung, nor how they were to be secured to the posts. The jury found that the fence was negligently and improperly constructed.

      Held, that, as the defendant Baldwin in constructing the fence acted as either the servant or agent of Aldrich, the latter was liable for the damages sustained by the plaintiff.
    Appeal from an order granting a motion for a new trial made at Special Term after a verdict had been rendered in favor of the plaintiff at the Cortland Circuit.
    In 1883 and in 1884, the plaintiff occupied a farm owned by one Kelley, which adjoined on the south a farm owned, in 1884, by Aldrich, and occupied, in 1884, by Baldwin. By an agreement between the proprietors, the owner of the Kelley farm was bound to build and maintain the part of the division fence west of a certain chestnut post; and the owner of the Aldrich farm was bound to build and maintain the part of the division fence east of said chestnut post. In 1883, the plaintiff, with' the approval of Kelley, built a galvanized barbed wire division fence from said chestnut post to the west end of the boundary line; and in June, 1884, a japanned barbed wire (Grlidden’s patent) fence was built from said chestnut post to the east end of the boundary line, by defendant Baldwin, under circumstances which will be more fully stated hereafter. While the plaintiff’s horses were at pasture, they were, during the night of June 19, 1884, badly cut by a wire fence; and this action was brought to recover the damages. A verdict was rendered against both defendants for $133.50 damages. Upon a case containing all of the evidence, Aldrich alone moved for a new trial, which was granted as to him, with costs to abide the event. A judgment has not been entered.' The plaintiff appeals from the order granting a new trial.

      Franklin Pierce, for the appellant.

      T. F. Hancock, for the resoondent.
   Follett, J.:

The order not disclosing the grounds upon which it was granted, and no opinion having been Written, the grounds of the decision must be searched for in the record. At the close of the evidence, Aldrich, alone, moved for a nonsuit because a cause of action had not been proved against liim'; which was denied, and an exception taken. At the close of the charge he excepted to the direction that a verdict might be rendered against him. . We. think the new trial was granted on these exceptions,' for .two reasons: First. No other exceptions were taken upon the trial,- except to unimportant and not debatable rulings upon the reception- and rejection of evidence; which rulings were all common to both defendants. Second. The payment of costs by Aldrich was not required, which is the usual condition imposed when a, new trial is' granted for an error of the jury in rendering a verdict contrary to the evidence. (Bailey v. Park, 5 Hun, 41; Kelly v. Frazier, 27 id., 314; S. C., 2 Civil Fro. R., 322.) The record not disclosing that the motion was granted for errors of the jury, this court will presume that the court below followed this rule of practice, arid' granted the motion upon the exceptions. (Henderson v. Henderson, 2 Abb., N. C.; 102.) The verdict must be regarded as settling in plaintiff’s favor the three important questions of fact: First. That defendant’s fence was negligently built. Second. That plaintiff’s horses were injured thereby. Third. That plaintiff did not, by negligent acts, contribute to their injury. This brings us to the question of whether Aldrich is liable for the damages caused to the plaintiff by the negligent construction of this fence; otherwise stated, was the evidence insufficient, as a question of law, to render him liable; or was there sufficient evidence to make the question of liability one of fact for the jury?

Aldrich owned the farm, and as such owner was required by statute to build and maintain a just and equal proportion of the division fence. (1 R. S., 353, § 30, as amended in 1871 and 1872; 1 R. S. [7th ed.], 831.) He concedes that the owner of his farm was to build the part: of, the division fence extending east from the chestnut post (where-the-jury found the .-accident occurred), and it is pi’oved that such had' been the practice for many years. Ditchett v. S. D. and P. M. Railroad Company (67 N. Y., 425) does not hold that the occupant,, and not the owner, is charged by the above statute with the duty of1' building and maintaining division fences .as between adjoining owners. That case did not arise under this statute, or between adjoining owners, or between the occupants of adjoining properties ; but.it was an action by the administratrix of a traveler on a public-street,, who was killed by falling from the street into an excavatiom whichi had been previously guarded by a fence, but then out of repair. At common law, adjoining owners were not bound, as between-each, other,.to maintain division fences unless the right to compel' their-maintenance had been acquired by prescription, or by agreement; and the cases which arose before -the statute need not be .considered:

The cases deciding whether a anas ter is liable for the negligence of his servant, or a landlord" for.- injuries sustained 'by third persons on leased premises, or whether the owner of land is liable for the negligence of a person who has contracted, to do .some act thereon, .are instructive, but not" directly in point, because-.none of these relations existed between’ Aldrich and Baldwin.. So similar are many of the border duties of' speciah agents and servants that it has been found impossible to draw- a line clearly separating one from the other; and though this-is. a., border., case, we are-of the opinion that Baldwin must be held to have been the representative and agent of Aldrich in building the fence. Baldwin was not directed to use posts of any particular size, kind or strength; nor how far apart the posts should be set, nor how far apart, nor how high above the ground the wires should be strung, nor how they were to be secured to the posts. In these respects, which together, make up all there was to be done, he might, and did exercise his own judgment; and in these very respects the fence was negligently constructed. Aldrich is liable for this negligence of his agent. (Story’s Agency, § 452, and cases there cited.) But if it be held that Baldwin was the servant of Aldrich, in building the fence, the rule of respondeat superior, under which principals are liable to third persons for the acts of their agents, and masters, to third persons (not co-servants), for the acts of their servants, fixes the liability of Aldrich for the negligent construction of the fence. That Baldwin represented Aldrich in the capacity of agent, or servant, cannot, we think, be doubted. Aldrich owned the farm ; it was his duty to build the fence; he furnished the wire for it and authorized Baldwin to build it. ¥e have said that the relation of landlord and tenant did not exist, which we think cannot be seriously doubted, for it does not appear that Baldwin had the sole right to occupy or control this farm, to the exclusion of Aldrich, for any period of time; and it affirmatively appears that rent was , not paid, or agreed to be paid.

These views lead to a reversal of the order, with costs.

Hardin, P. J., and Boardman, J., concurred.

Order reversed, with costs, and judgment ordered upon the. verdict.


text:
    ANN SNELL, Appellant, v. ABRAHAM TUTTLE and Others, Respondents.

      When the title to a legacy, to he paid out of the proceeds of sale of land to he sold on the death of a tencmt for life, vests in the legatee on the death of the testator —
    ‘ when a devise of land will he satisfied by a conveyance of a part thereof by the testator to the devisee in consideration of his agreement to receive it in satisfaction of his claim as heir.

    Willard Cotton left a will "by which, after devising to his son, Hamilton, a tract of land therein described, he gave, bequeathed and devised to his wife, Eliza, all the residue of his real estate, consisting of about fifty acres, known as his homestead farm, and also the undivided equal one-half part of about twenty-four acres of land, jointly owned by the testator and his son-in-law, Elijah French, to have and enjoy the occupancy of the said described premises, and the use and occupancy of all his personal estate, during her natural life. On the decease of his wife his executors were directed to sell and dispose of all of his real estate, and the avails of such sales, together with the avails of his personal estate, after paying and discharging all the provisions made by the will, were given and bequeathed to his “ daughters, Eliza Tuke, Clarissa O. French and Ann Snell, to be divided equally between them, share and share alike,” and in 'case anyone or either of his said, daughters should “die in his life-time, leaving issue or descendants, he directed that her share should not lapse but should be baid to her child or children.” Power to sell the whole or any part of the real estate, before the decease of the testator’s wife, was given to the executors upon the condition that his wife should give her consent in writing. By a codicil to the will the daughter, Clarissa French, was given the right to use and occupy the homestead farm during the term of her natural life, provided she paid certain sums, annually, to her sisters, and complied with other terms and conditions prescribed in the codicil.
    September 1, 1874, Willard Cotton died,leaving him surviving his widow, Eliza, and a son, his three daughters, Ann, Clarissa and Eliza, and two grandchildren. The widow occupied the homestead until March 30,1880, when she died, after which event Clarissa occupied it until 1885, complying with all the conditions of the codicil until October, 1880, when Eliza Tuke died, leaving a will by which she bequeathed all of her estate to Clarissa.

      ■Held, that, under the testator’s will, the interests of the three sisters in the fifty acres vested at the testator’s death, and that Clarissa, under the will of her sister Eliza, acquired a two-thirds interest therein.
    On April 9, 1874, the said Willard Cotton and his wife, and the said Elijah French and Clarissa C., his wife, conveyed to Ann Snell three-fourths of an acre out of the aforesaid twenty-four acres by a deed reciting a consideration of $1,000, which stated that the consideration of the deed was “ five hundred dollars, a gift of the parties of the first part, and the other five hundred dollars, the arrangement of the party of the second part, to relinquish all her right, title and interest, prospective as heir-at-law of Willard Cotton and wife, in the twenty-four acres, of which said three-fourths acre is a part, so that the twenty-four acres shall be free and clear of her claim, as heir, as aforesaid.” On the same day Ann Snell executed an instrument, under seal, by which she acknowledged the receipt of the aforesaid conveyance, and that the same was in release and satisfaction of all her present and prospective interest in said twenty-four acres, as heir-at-law of said Willard Cotton.

      Held, that by executing the said deed and release the plaintiff, Ann Snell, satisfied and discharged the interest in the twenty-four acres devised to her by her father.

      Burnham v. Comfort (37 Hun, 216) distinguished.
    Appeal from a judgment, entered in Madison County upon the trial of this action by the court at Special Term.

      li. J. Fish, for the appellant.

      John F. Smith, for the respondents.
   Follett, J.:

Appeal from a judgment entered upon the decision of a Special Term, construing two wills.

The rights of these parties being dependent upon the intent of the testators, as expressed in their wills and codicils, it is important that the language of these instruments should be constantly borne . in mind. It will be most convenient to first consider the will and codicil of Willard Cotton, which provides:

“jFirst. I direct that my funeral charges, the expense of administrating my estate and all my debts be paid out of my personal estate.
“Second. I give and devise to my son, Hamilton Cotton, his heirs and assigns, all that tract or parcel of land of about five acres, more or less, of lot No. 6, North Mile Strip, situate in the town of Sullivan, Madison county, New York, together with all the hereditaments and appurtenances thereto belonging, to have and to hold the said premises to said Hamilton Cotton, his heirs and assigns forever. I also direct that my executor, hereinafter named, pay to my said son, Hamilton Cotton, one hundred dollars, all of which,- together with the advance I ha ye heretofore made to him, will make him to have received an equitable share of my estate. Said $100 to be paid on the decease of my wife.
“Third. I give, bequeath and devise to my beloved wife, Eliza Cotton, all of the residue of my real estate, consisting of about fifty acres, known as my homestead farm on Oak Hill, in said town of Lenox aforesaid, also the undivided equal one-half of about twenty-four acres of land situated in the village of Oanastota, in said town of Lenox, aforesaid, jointly owned by me and my son-in law, Elijah French, to have and enjoy the occupancy of the said described premises during her natural life. Also, I give and devise to my said wife, Eliza, the use and occupancy of all my personal estate of every name and nature, during her natural life.
“Fourth. On the decease of my said wife, Eliza, I do hereby direct and empower my executor, hereinafter named, to sell and dispose of all my said real estate at public or private sale, at such time or times and upon such terms and in such manner as to him shall seem most advantageous, also to execute and deliver all necessary conveyances therefor.
“Fifth. The avails of such sale or sales of said real estate, together with the avails of my personal estate, after paying and discharging all of the provisions herein named, I hereby give and bequeath to my daughters, Eliza Tuke, Clarissa C. French and Ann Snell, to be divided equally between them, share and share alike.
“Sixth. In case any one or either of my said daughters shall die in my life-time, leaving issue or descendants, I direct that her share shall not lapse, but shall be paid to her child or children.
“Seventh. If in the opinion of my executor, hereinafter named, for any cause it shall in his judgment be advantageous and desirable to sell the whole or any part of said real estate before the decease of my said wife, Eliza Cotton, I do in such case hereby authorize and direct and empower my executor, hereinafter named, to sell and dispose of said real estate as provided for in item fourth of this will, provided, however, that my said wife shall consent to such sale; such consent shall be in writing, duly acknowledged and filed in the office of the surrogate before such sale shall be consummated.
“Lastly. I do hereby nominate and appoint Henry K. W. Bruce, of Lenox, aforesaid, to be executor of this, my last will and testament, hereby revoking all former wills by me made.
In witness whereof I have hereunto set my hand and seal, this 1st day of December; 1868.
“WILLABD COTTON [n. s.]”

January 20, 1872, the testator executed a codicil, of which the following is a copy :

This is a codicil to my last will and testament, bearing date December the 1st, 1868. I, Willard Cotton, do hereby change the fourth item in my said will in manner following, viz.: That on and after the decease of my wife, Eliza Cotton, I direct that my daughter Clarissa French be allowed to have the use and occupancy of my Oak Hill farm, also the use of all carpenter and blacksmith tools in my shop during the term of her natural life, but upon the express terms and conditions hereinafter named, viz.: That she shall give to my daughte’r Eliza Tuke a good and comfortable support in her family, treating her with sisterly care and tenderness, and shall also pay to her annually, in money, fifty dollars, to bo paid to said Eliza in semi-annual payments of twenty-five dollars, on the first day of July and January of each year, so long as said Clarissa shall retain the use and occupancy of said premises. Said Clarissa shall also pay to my daughter Ann Snell fifty dollars annually, to be paid to her in semi-annual payments of twenty-five dollars, on the first day of January and July of each year, so long as she shall retain the use and occupancy of said premises. Said Clarissa shall also keep' said premises in as good a state of cultivation and care as when received by her; allowing no waste or unnecessary decrease in the value of the same; neither shall she allow the cutting of wood or-timber from said premises, or any part of them, tó any person, but ¡the same shall be exclusively occupied by said Clarissa and her family. All of which conditions above named I request and require my said daughter Clarissa faithfully to keep, and perform, each and all the conditions above named, and a failure on her part to keep and perform any and all the conditions herein contained shall cause the provisions made in this codicil for /her benefit to lapse and be of no favor or virtue. I also direct that in case any disputé ór disagreement shall arise as to the construction • or right of parties under and by my last will and testament, also this codicil, that the above shall be- submitted to the surrogate of Madison county for decision,-and his judgment or direction of the matter shall be binding-and ’conclusive on all persons interested in my estate!”

September 30,1873,"Willard Cotton executed a second codicil, but it does not relate to any of the rights or questions involved in this action.

Willard Cotton and Elijah French owned the twenty-four acres mentioned in said will, jointly. April 9, 1874, said Willard Cotton and Eliza, his wife, said Elijah French and Clarissa C., his wife, conveyed to Ann Snell three-fourths of an acre out of said twenty-four acres, upon the recited consideration of $1,000. It is stated in the deed that: “ The consideration of this deed is $500, a gift of the parties of the first part, and the other $500, the arrangement of the party of the second part to relinquish all.her right, title and interest, prospective as heir-at-law of Willard Cotton and wife, in the twenty-four acres, of which said three-fourths acre is a part, so that the twenty-four acres shall be free and clear of her claim, as heir, as aforesaid.” On the same day Ann Snell executed an instrument under seal, which was duly acknowledged May 28, 1874, by which she acknowledged the receipt of the aforesaid conveyance, and that the same was in release and satisfaction of all her present and prospective interest in said twenty-four acres, as heir-at-law of said Willard Cotton.

September 1, 1874, said Willard Cotton died, leaving him surviving, Eliza Cotton, his widow, Hamilton Cotton, a son; Ann Snell, Clarissa C. Cooper (formerly French), Eliza Tuke, daughters; Jeanette Wager and Emma Campbell, granddaughters, the daugh- . ters of Harry Cotton, a deceased son, only heirs-at-law, and next of kin, of said Willard Cotton. September 28,1874, the aforesaid will and codicil was duly probated. The testator’s widow, Eliza Cotton, used the personal estate, the fifty acres and the undivided half of the twenty-four acres (less the three-fourths of an acre conveyed to Ann Snell), until March 30, 1880, when she died, leaving as her heirs-at-law and next of kin, her children and grandchildren, above enumerated, as the heirs-at-law of Willard Cotton, deceased. After the death of Eliza Cotton, Clarissa C. French occupied said fifty acres and performed all of the conditions of said codicil until October 1, 1880, when Eliza Tuke died, leaving a last will and testament, by which she devised and bequeathed all of her estate unto Clarissa O. French, which will was duly probated April 25, 1881. Said Clarissa- C. French continued to occupy said fifty acres and performed the conditions of said codicil until April 1, 1885, when said Clarissa O. French intermarried with one Charles C. Cooper, removed ftom said premises and refused to longer perform the conditions of said codicil, that is, pay Ann Snell fifty dollars per annum. The plaintiff brings this action, claiming (1) that under said will and codicil, the daughters, Clarissa, Eliza and Ann, did not acquire a vested interest in the estate of said testator until after the determination of the conditional life estate devised to Clarissa, and that Clarissa took nothing by the will of Eliza; (2) that the power of sale in said will was revoked by the codicil, and demanded a judgment so construing said will and codicil, and restraining the administrator with the will annexed from selling the real estate.

The court, at Special Term, held (1) that under the deed and agreement of April 9, 1874, said Ann Snell accepted of the conveyance of said three-fourths of an acre in satisfaction of all her interest in the devise of the undivided half of the twenty-four acres, which interest in said devise was thereby released, and went, under said will and codicil, to Clarissa C. Cooper and Eliza Tuke, and through the will of Eliza Tuke, Clarissa C. Cooper became the sole owner of said undivided half of said twenty-four acres; (2) that the three daughters took vested interests in the fifty acres under said will, subject to the power of sale vested in the executor, and that the third devised to Eliza Tuke was carried by her will to Clarisa O. Cooper; (3) that the power of sale in said will was not revoked by said codicil.

The judgment directed that the fifty acres be sold, and out of the avails, each party be paid a bill of costs and one-third of the remainder be paid to Ann Snell, and two-thirds to Clarissa C. Cooper. Thus far the parties to this action are agreed. But the plaintiff insists that the interests devised to the daughters in the fifty acres did not vest at the testator’s death, therefore Clarissa C. took nothing under the will of Eliza, and that Clarissa C. and Ann are each entitled to one-half of the avails arising from the sale of the fifty acres. In support of this contention the plaintiff invokes the aid of the general rule, that when the payment of a legacy is charged upon land, and the legatee dies before the time for payment arrives, the legacy does not vest, but sinks into the land for the benefit of the heir unless it appears that the testator intended that the legacy should vest. . This rule, with its limitations, is clearly stated by the following authorities.: 1 Jarman on Wills (Big.ed.), 834; Hawkins on Wills (2d Am. ed.), 234; Loder v. Hatfield (71 N.Y. 102). When a will directs real estate to be converted into money and divided between legatees, it is to be treated as personal estate; and if the legacy is vested and the legatee dies before the sale, "the legacy goes to the next of kin, instead of to the heir of the deceased legatee. (1 Jar. on Wills [Big. ed.], 586; 1 Will. Ex. [6th Am. ed.], 729; Kane v. Gott, 24 Wend., 641.)

In Elliott v. Fisher (12 Sim., 505), land was directed to be sold after the termination of a life estate and the avails paid to a legatee, who died before the termination of the life estate, and it was held that the legacy vested, and went to the personal representative, instead of to the heir of the deceased legatee.

The sixth clause of this will shows that the testator intended that the interests devised to his daughters should vest 'at his death. In this clause he provides that if either daughter dies in his lifetime, leaving issue, that the issue shall take the share, but he makes no provision as to what shall become of the interest of a daughter dying after his death and before the termination of the life estate. There is nothing in this will or codicil evincing an intention that the avails of this, farm should not vest, but, on the contrary, the testator’s intention. to make a complete disposition of’ the residuum of his estate is manifest throughout both instruments, and there is nothing in the language of either indicating that the daughter’s interest should not vest at his death.

The appellant relies upon Vincent v. Newhouse (83 N. Y., 505), and Shipman v. Rollins (98 N. Y. 311). We do not think either case changes the well established rule, that when specific real estate is directed to be converted into money at a future day and the avails divided among legatees, that the rules applicable to personal bequests are to control. In In re Hart's Trusts (3 De Gex & J., 195, 203), it was said: “I have not met with any case in which it has been held that the rules as to vesting which apply to legacies charged on land are to be applied to legacies given out of moneys to arise from the sale of the land.” (See, also, Elliott v. Fisher, supra). In Vincent v. Newhouse, the will directed that in case either of the legatees died without issue before the legacy was payable, that the share of the legatee so dying should be equally divided between the surviving legatees. This was a plain direction that the legacies should not vest until the time arrived for their payment. The legacies in the case last cited would not have vested if they had been payable out of the personalty, instead of out of the realty. In Shipman v. Rollins (supra), the legacies over which the case arose were given to unincorporated societies which were incorporated after the testator’s death, and before the time for payment. The legacies could not vest at the death of the testator because the societies were not then incorporated and authorized to take, and the question arose, whether the testator intended that the legacies should vest at his death, or at the death of his widow, when they became payable. From the language of the will it appears that the testatof knew that the societies were not then incorporated and in a condition to take, and it was held that his intention was to vest the legacies at the death of his widow. We find nothing in this case which militates against the rule that when land is to be converted into money and distributed among legatees that the bequest is to be governed by the rules applicable to pecuniary legacies.

The interests of the three sisters in the fifty acres vested at the testator’s death, and Clarissa C., under the will of Eliza, acquired a two-thirds interest therein. The codicil does not affect the undivided one-half of the twenty-four acres devised by the testator’s will, and the question as. to when the interests in that vested need not be considered, because all of the parties agree that the sisters’ interests in the twenty-four acres vested not later than the death of the mother, at which time the three sisters were living, and Eliza’s interest was carried by her will to Clarissa C. The only question arising over this parcel is whether the plaintiff, by the deed and release of April 9, 1874, satisfied and discharged the interest devised to her in this parcel by her father. That such was the intention of the parties to the deed is substantially found in the ninth finding, which the plaintiff has not challenged.

When a legatee, subsequent to the execution of the will, receives from the testator property in lieu of the legacy, the legacy is satisfied. (2 Will. Ex. [6th Am. ed.], 1428; 2 Redf. Wills, 431 ; Pom. Eq. Juris., § 524; Beck v. McGillis, 9 Barb., 35, 56.) The plaintiff’s legacy, being governed by the rules applicable to pecuniary legacies, was satisfied by the conveyance. Burnham v. Comfort (37 Hun, 216) does not hold that a devise cannot be satisfied by a subsequent conveyance of land, but that a devise cannot be satisfied by a subsequent payment of money. Under the deed and release the plaintiff parted with her interest in the twenty-four acres. Eliza Cotton, at her death, left sixty acres of land and a will and codicil executed concurrently with the will and codicil of Willard Cotton. These wills and codicils, so far as they relate to real estate, are exactly alike, except that the husband devises his wife a life estate in his land, and the wife a life estate in her land to her husband; and the same construction must be given to both wills.

The judgment of the Special Term is affirmed, with costs against the appellant.

Hardin, P. J., and Boardman, J., concurred,'

Judgment affirmed, with costs.


author: Hardin, P. J.;

text:
    CHARLES W. MATHER, Appellant, v. THE EUREKA MOWER COMPANY, Respondent.

      Services rendered hy a stockholder of a company, while acting as its treasurer — when no promise to pay him frn’ such services will he implied.

    Appeal from a judgment upon the report of a referee, entered in Oneida county.
    The action was brought to recover for services rendered by the plaintiff as the treasurer of the defendant. The plaintiff and his banking partner and the plaintiff’s father, were stockholders at the time of the organization of defendant.
    The court at General Term ' said: “ Plaintiff has recovered seventy-five dollars, ‘ the value of the clerical services and bookkeeping performed ’ by the bookkeeper of plaintiff’s firm. He acted as treasurer for defendant from April, 1884, until May, 1885, making no claim, while so acting, for compensation as treasurer. He was a stockholder of defendant and he was a member of the banking firm of Mather & Co. His uncle, Joshua Mather, the other member of the banking firm, was a promoter of the organization of defendant and a stockholder therein, as was also plaintiff’s father. The calls for payments upon the stock were made payable and paid at said banking firm’s office, and that firm secured through the appointment of plaintiff as treasurer, the account of defendant, which was wholly kept in plaintiff’s firm during his treasurership. No resolution of the board of directors fixed any salary to the treasurership. No by-law fixed any salary for plaintiff as treasurer. By-laws were adopted which did fix salaries of other officers and the superintendent of defendant, and plaintiff knew of them and continued to act as treasurer without having any salary paid to him or fixed by the board or the by-laws. The manner in which the business of the corporation passed through the hands of the plaintiff was fully developed in the evidence. The' referee has found, thereupon, having had power to draw all the conclusions and inferences warranted by it, that ‘ the personal services of the plaintiff were intended to be gratuitous, and were performed by • him without expectation on his part, and without agreement or understanding on the part of the defendant, that he should receive any compensation therefor.’ We think there was evidence tending to support such conclusion.
    “ In Smith v. The Long Island Railroad Company (102 N. Y., 192), Andrews, J., said of a case involving the question here presented, viz.: ‘ The burden was upon the defendant to establish this defense.’ That case differs in some of its features from this one. Plaintiff there was ‘ neither stockholder nor director of the defendant, and stood in no relation to the company which entitled it to his gratuitous service, or which made it his interest to serve the company without compensation.’ Here plaintiff was a stockholder, and his partner in the bank was a stockholder and director. In that case there had been ‘ a salary to the prior incumbent.’ Here there was no prior incumbent. In that case there was cno apparent reason why a gratuitous service should be rendered or expected.’ Here plaintiff’s hanking firm secured the account of defendant, and had knowledge of its financial affairs through the relation which the plaintiff took towards defendant. While it may be said the - evidence is not strong and conclusive that the services were to be gratuitous, we think the question of fact which the referee found for defendant on that branch of the case was supported by evidence favorable to the defendant, and that we ought not to overturn his conclusions upon the whole case. It was for the referee to say whether the implication of the promise was overcome by the evidence.
    “ In Maliby v. Harwood (12 Barb., 473), it was said : ‘ A party is not to be made to promise against his will. Before he can be made liable for services, it must not only appear that services have been rendered, but also that they were rendered in expectation of receiving wages.’ The question is one of fact. (Canovar v. Cooper, 3 Barb., 115).
    “In Pendleton v. The Empire Stone Dressing Company (19 N. Y., 13), in speaking of a similar question, Denio, J., said: ‘ We think, upon the whole, that the question was one of fact suitable to be submitted to the jury.’ * * * The referee found the clerical services performed for plaintiff by his clerk, who was also serving the banking firm, were worth seventy-five dollars, and allowed plaintiff to recover therefor. The value of such clerical services and the good faith of plaintiff in regard to the payment were questions of fact we need not review, as they were determined upon conflicting evidence, and as we think rationally by the learned referee.”
    Judgment affirmed, with costs, against appellant.

      John W. Boyle, for the appellant.

      Goohingham c6 Sherman, for the respondent.
   Opinion by

Hardin, P. J.;

Boardman and Follett, JJ., concurred.

Judgment affirmed with costs.


author: Barnard, P. J.:

text:
    JOHN BOARDMAN, Respondent, v. WALSTON H. BROWN and Others, Appellants.

      Master and servant — duty Oj the master to furms. safe and suitable machinery.

    Upon the trial of this action, brought by the plaintiff to recover damages for personal injuries sustained by him while employed by the defendants, who had entered into a contract for excavating a tunnel for the new aqueduct for New York city, it appeared that he went down to and came up from the tunnel through a shaft 385 feet long which had been sunk from the surface of the ground to the bottom of the tunnel.
    The men, to the- number of four or five, rode in buckets which were let down from the surface. Some twenty feet above the bucket was a cross timber which descended with it, being confined in a frame or groove on the sides of the shaft. The rope to which the bucket was fastened passed through an aperture in the follower, but was not firmly attached to it. The follower was used to confine the sway of the bucket to twenty feet, instead of leaving it a possible sway of over 300 feet. On the day the plaintiff was injured the follower got caught, and after the bucket had left it it fell and detached the bucket from the swivil whichs supported it by breaking the rope.

      Meld, that the appliance was neither reasonably safe nor prudent, and that the case was properly submitted to the jury, and that their verdict in favor of the plaintiff should be affirmed.
    Appeal from a judgment in favor of tlie plaintiff, entered upon the verdict of a jury, rendered at tbe Weschester Circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      This action was brought to recover damages for personal injuries sustained by the plaintiff, a miner in the employment of the defendants, in an accident caused by alleged defective and unsafe machinery furnished by the defendants.

      E. T. Lovatt, for the appellants,

      W. B. Dmidson and Isaac E~. Mills, for the respondent.
   Barnard, P. J.:

This case was properly sent to the jury. The general rules which govern the relation of master and servant, in respect to the circumstances surrounding the accident, are' well settled. The servant takes the ordinary risks of the employment, but the master, is bound to furnish capable fellow-workmen and safe and suitable machinery and appliances for the purpose of the employment, and that if the machinery is unsuitable or dangerous the master is liable for an accident occasioned thereby, even if the negligence of a fellow workman occasioned the same. The fact that a dangerous machine could be safely worked by a careful man, did not remove the liability from the master. (Stringham v. Stewart, 100 N. Y., 516.) The evidence in this case discloses that the defendants were contractors in the excavation of a tunnel for the new aqueduct for New York. The shaft had been sunk to the bottom of the proposed tunnel 385 feet from the surface. The tunnel was extended both, ways from the shaft, - and -the material all came up the shaft. The men went down and came irp in the same way. The defendants had provided a bucket, which was let down from the surface, and four or five men rode in the bucket at once. Some twenty feet above the bucket there was what is termed a follower, being cross pieces of timber, which descended with the bucket; this follower was confitfedin ’a frame or groove on the sides of the shaft. The bucket was not attached firmly to the follower, but was so made that if the follower for any reason failed to descend by its own weight, the bucket would continue because the rope which went through the follower moved independently through an aperture in the follower. If the follower descended, the purpose of it was to confine the sway of the bucket to a sway of twenty feet instead of the possible sway from a depth of over 300 feet. On the occasion in question the follower got caught, did not follow., and after the bucket left it whicli should have supported it, it fell and detached the bucket from the swivel support by breaking the rope. Four persons were killed at once, and the plaintiff was permanently injured. The ¡appliance was neither reasonably safe or prudent. The follower ¡should have been attached to the bucket in some way so that when the follower stopped the car would stop. This would give notice .at the top of the shaft to stop lowering the bucket and its attachments until the obstruction was removed.

The judgment should be affirmed, with costs.

Peatt, J., concurred; Dykman, J., not sitting.

Judgment affirmed, with costs.


text:
    THE YONKERS SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN, Plaintiff, v. THE CITY OF YONKERS, Defendant.

      Fines imposed for violations of laws “ relating to or affecting children” — when to he paid to the society prosecuting the accused — 1875, chap. 130 —1876, chap. 122, sec. 5 — 1881, chap. 184.
    'Tlie plaintiff, a corporation organized under the provisions of chapter 130 of 1875, having made complaint against certain persons for violating the laws relating to or affecting children, the accused persons were tried before the city judge of Yonkers and fined. The fines having been paid by him into* the city treasury, the plaintiff brought this action against the city to recover the amount so paid.

      Meld, it was entitled to recover the amount of the fines.
    'That the provisions of section 5 of chapter 122 of 1876, providing that “ all fines, penalties and forfeitures imposed and collected in any county in this State, under the provisions of this and of every act passed, and which may be passed, relating to or affecting children, in every case where the prosecution shall be instituted or conducted by a.society incorporated pursuant to the provisions of chapter 130 of 1875, *' * shall, except where otherwise provided, inure to such society in aid of .the purposes for which it was incorporated,” did not conflict with the section of the defendant’s charter which made it the duty of the city judge of Yonkers to pay all fines imposed and collected by him into the city treasury; that the' latter act simply forbids the city judge to .pay the fines to the plaintiff'society, but did not authorize the defendant, after receiving the fines ffomithe-city jjjdge, to withhold the same from the plaintiff.

      Case agreed upon and submitted under sections 1279 and 1281 of the Code of Civil Procedure.

      Matt. H. Ellis, for the plaintiff.

      Joseph F. Daly¡ for the defendant.
   Barnard, P. J.:

The plaintiff is an incorporated society under chapter 130, Laws of 1875, with power to make complaints for the violation of law “ relating to or affecting children.”

Under this power the society made the complaints and the accused persons were convicted and fined. The fines were paid by the court into the treasury of the city of Yonkers.

By section 5 of chapter 122, Laws of 1876, it is provided as follows: “All fines, penalties and forfeitures imposed and collected in any county in this State under the provisions of this, and of every act passed and which may be passed relating to or affecting children, in every case where the prosecution shall be instituted or conducted by a society incorporated pursuant to the provisions of chapter 130 of the Laws of 1875, being an act entitled ‘An act for the incorporation of societies for the prevention of cruelty to children,’ shall, except where otherwise provided, enure to such society in aid of the purposes for which it was incorporated.”

Under this section it is clear that the plaintiff is entitled to the fines unless the Legislature “have otherwise provided.” .By the charter of the city of Yonkers (chap. 184, Laws of 1881) it is made the duty of the city judge of Yonkers to pay all fines imposed and collected by him, into the city treasury. (See. 10). The claim under this provision is that the Legislature intended to give the fines in question to the city. There is no necessary conflict between the acts..

The fines may be paid into the city treasury and still enure to the society for the protection of children. The charter simply does not permit the city judge to pay the fines to the plaintiff society. He is required to pay all fines over with a report of the subject of the fine “ for what received.” The money is not given to the city in. terms, and by the law of 1876 it is so given to the children’s society..

The portion of the fines which enure to the plaintiff reach the city treasury and an action had for money had and received will lie, The defendant has no right to hold the same as against the plaintiff. (Bank of the Commonwealth v. Mayor, 43 N. Y., 184.)

The fine for selling strong drinlc to a child belongs to the plaintiff. The offense is one “ relating to or affecting children.” The offense is created to protect children, and a license to sell intoxicating liquors is no protection from it because of the tender age of the child. The society was intended to protect them from wrongs like this.

There should be judgment for the plaintiff upon the submitted case, with costs.

Pratt, J., concurr

Judgment for plaintiff upon the submitted case.


text:
    In the Matter of the Application of AUGUST NICOLL and Others, Appellants, for a Mandamus Against the BOARD OF EDUCATION OF THE CITY OF BROOKLYN and Another, Respondents.

      Right of parents to have children admitted to primary schools — when such right will not he enforced by mandamus.
    Upon the hearing of this application for a mandamus to compel the Board of Education of Brooklyn to admit the children of the several relators to the primary schools in district No. 24, it appeared that admission was refused because the schools were full.

      Held, that as the board could only determine the number and location of schools and ask for an appropriation from the common council, and as it had already asked for such new primary schools, which were at the time this application was made, in course of erection, it could not be charged with neglect for a failure to keep pace with the rapid growth of the district in the school accommodations.
    That it was not for the court to determine as to the propriety of teaching music and drawing, or as to the number of scholars to be received at each school, or as to the length of the term for which they should be so received, as the decision of those questions was left to the board of education.
    Appeal from an order made at the Kings County Special Term denying a motion for a mandamus to compel the respondents to admit the children of the several relators to the primary schools in district No. 24, in the city of Brooklyn.

      The children were refused admission to the primary school of the district in which they resided, because such school had no accommodations for other scholars than those in attendance.
    The relators claimed that so much of the moneys appropriated for the board were improperly used, for what might be termed the higher education, that a sufficient sum was not left to provide primary instruction to all the children of the district who were entitled to receive it, and, also, that the difficulty could be obviated by shortening the term for which each child should be received into the school.

      William J. Gaynor, for the appellants.

      F. F. Dana, for the respondents.
   Barnard, P. J.:

No case is made for a peremptory writ of mandamus. The relators are shown to be children residing in a district in Brooklyn in which the defendants provide public schools. The district is known as No. 24.

In 1883 the school became crowded, and tne defendants, in the manner provided by law, caused to be erected a branch school in the same district. This branch school receives a younger grade of scholars and has a capacity for 616 pupils. It was supposed to be of sufficient capacity when built not only to relieve No. 24, but to receive the children of the entire district. The district has increased so rapidly that the branch school has been “ full to overflowing.” Since it was built with a seating capacity of 616 the average daily attendance has been over a 1,000. Of course it should not be that the State directs the parent to send his children to school and fail to provide for the scholars, but it is apparent that there is no neglect upon the part of the defendants. The board can only determine the number and location of schools and ask for an appropriation. The common council, must assent to the purchase. (Chap. 143, Laws of 1850, § 14.) It appears that the board has asked for a new primary school in that vicinity and that the purchase has been made and the building is now being erected. New buildings for schools, including additions to old buildings, are completed or in a process of completion, to the number of fourteen. District No. 24 has more than doubled since the branch school was built, and the defendants cannot be charged with neglect for a failure to keep pace with its growth, in school accommodations.

It is not the province of the writ to determine the propriety of teaching music and drawing. By chapter 143, Laws of 1850, the board of education have “ entire charge and direction of all the public schools ” of the city. The rules and regulations for instruction and discipline are given to the board subject only to the provision “that they be not inconsistent with the laws of the State.’’ The court cannot determine the propriety of the teaching unless some law forbids it. The discretion of the board cannot be reviewed. The result must equally follow the determination of the board at what point or number the receiving of scholars in any certain school must stop. The school is over full, and it is not .the province of the court to adjudge that more could be received by giving a larger rotation of scholars so as to enable all to be received.

That is peculiarly a question for a board of education. The order should, therefore, be affirmed, with costs.

Dykman and Pratt; JJ., concurred.

Order refusing mandamus affirmed, with costs.


text:
    WALLACE MAYO, Respondent, v. SALLIE M. DAVIDGE and Others, Appellants.

      Pleadinq — counter-claim — it must exist at the time the action was commenced — Code 0f Civil Procedure, sec. 501. . J

    In this action, brought to foreclose a mortgage made by the defendant, Sallie M. Davidge and her husband, and obtain a judgment against them for any deficiency, the defendants served an answer averring, among other defenses, a loan made by the husband to the plaintiff, a balance due thereon, an assignment of that balance to one Longuemon, and a reassignment of the same by him to the defendants. It was not alleged in the' answer that the assignment to the defendants was made before the commencement of this action.

      Held, that as it did not appear that the counter-claim was in the hands of the defendants at the time the action was commenced, a demurrer interposed by the plaintiff to that portion of the answer was properly sustained.

      Appeal from so much of an order, and from so much of the interlocutory judgment entered thereon in Kings county, as sustains the demurrer of the plaintiff to the counter-claim set up in the answer of the defendants.

      F. G. Gantme, for the appellants.

      II S. Snow, for the respondent..
   Barnard, P. J.:

The complaint is one' for the-’foreclosure of a mortgage made by Sallie M. Davidge and her husband for $2,000. A judgment for a deficiency is asked against both the '-wife and the husband, and the loan, so far as disclosed by the -complaint, was made to them jointly. They answer and, among other defenses, aver a loan made by the husband to the plaintiff, a balance due thereon, an assignment of that balance to one Longuemon, and a reassignment of the same by him to the defendants Davidge and husband. The answer does not contain an averment that the assignment was made or that the defendants above named obtained the title thereto before the commencement of this -action. A demurrer was interposed to the counterclaim thus pleaded. By section 501 of the Code the character of a counter-claim is established: In any action on contract, any other cause of action- on contract existing at the commencement of the action.” By section 495 it is made a cause for demurrer to a counterclaim that it is ¡not of the character specified in section 501. It is, therefore, essential to a,counter-claim that it exist in the hands of the defendants who 'set. it up, at the time of the commencement of the action. Thed'ights of the parties become fixed according to the-facts which existed.wfoen the plaintiff commenced his action. This-, is in accordance with ‘the rules of pleading, as; they- have' always; existed. It is never proper for a party defendant to- buy a> defense1 or a counter-claim after 'he 'was -.sued. Insolvency was- never- ai. reason why the rules- of ’pleading-'shoa'ld vary. AIT parties- are; under the same rules of pleading, ilt!cannot be1 assumed that the; wife, under the allegations- of the complaint, is not liable for the-deficiency and that the husband is alone liable, so as to prevent the counter-claim on behalf of the husband. The husband does not own the same; his former title passed from him and the reassignment, was taken to the wife and husband. Their right to set it up does not exist, because it was acquired after suit brought.

Judgment affirmed, with costs.

Dykman, J., concurred; Pratt, J., not sitting.

Order sustaining demurrer to counter-claim, and judgment affirmed, with costs.


author: Barnard, P. J. :

text:
    HENRY A. BLAKE, Appellant, v. RICHARD CROWLEY and ISABELLA CORBETT, Respondents.

      Warrant to seize a chattel, in an action brought to foreclose a lien thereon— Code of Civil Procedure, sec: 1738 — consti'uction of it.

    The provision contained in section 1738 of the Code of Civil Procedure, providing that where, in an action brought to foreclose a lien upon a chattel, a warrant to seize and detain the same is granted, “ the provisions of title third of chapter seventh of this act apply to such a warrant and to the proceedings to procure it, and after it has been issued, as if it was a warrant of attachment, except as otherwise expressly prescribed in this article,” was not intended to require the affidavit upon which the motion for a warrant is made to state that the claim is due over and above all counter-claims known to the defendant, as is required by section 636 of the said Code in the case of warrants of attachment.
    Appeal from an order made at the Westchester Special Term vacating and setting aside a warrant of attachment issued in this action.
    In this action brought to foreclose a lien upon chattels as provided by section 1737 of the Code of Civil Procedure, a warrant of seizure was issued, directed to the sheriff of Niagara county, under which he seized the chattels. The case being noticed for trial, the defendants moved on the call of the calendar, without notice, to vacate the warrant upon the papers on which same was granted. The motion was granted on the ground that the affidavit was defective on which the warrant was issued. An order was entered thereupon, and this appeal is taken from so much of said order as vacates the warrant.

      Charles W. Seymour, for the appellant.

      William J. Bulger, for the respondents.
   Barnard, P. J. :

A warrant of seizure may be granted in cases of foreclosure of a lien upon a chattel, where the chattel is not in the possession of the plaintiff who has the lien. (Code of Civil Procedure, §§ 1737,1738.)

The provision in section 1738, that the proceedings to procure the writ, and those after its procurement shall be similar to the provision in respect to attachment, was not intended to require the affidavit to state that the claim is above all counter-claim as in section 636 of the Code. This section only applies to attachments in actions to recover damages for breach of contract. There were three other cases in which attachments were proper, but it was only in cases for breach of contract that section 636 applied. Breach of contract has a definite meaning and does not include the foreclosure of a chattel mortgage, even though there was a failure to pay according to promises made. The affidavit is, therefore, sufficient. The action is not one in which the defendant Crowley can demand a trial by. jury. Crowley assigned property to defendant Corbett, and she assigned it to plaintiff to secure Crowley’s debt. The complaint avers that only a portion of this debt has been paid. An action at law cannot reach the proper remedy. The plaintiff is entitled to hold the chattel, to have the balance due on it adjusted and to a judgment to collect the amount due out of the proceeds of the chattel.

The order vacating the warrant should, therefore, be reversed and the case restored to the Special Term calendar for trial, with costs and disbursements.

Pratt, J., concurred; Dykman, J., not sitting.

Order vacating attachment, reversed with costs and disbursements.


text:
    EMILIE TABER, Appellant, v. WALTER R. WILLETS and Others, as Executors, etc., of STEPHEN TABER, Deceased, Respondents.

      Evidence — right of a party in interest to testify as to the existence of a fad although it may tend to establish that a personal transaction, has taken place with a deceased person — Code of Civil Procedure, see. 829.
    Upon the trial of this action, brought by the plaintiff, the widow of Stephen Taber, deceased, against his executors, to recover the possession of a bond and mortgage which she claimed had been given to her by the deceased, but which had been found among his effects and taken possession of by his executors, the plaintiff was sworn in her own behalf and was permitted to testify, under the objection of the defendants, that she had the bond and mortgage in her possession prior to the death of her husband Jn October, 1885, and from time to time thereafter, and that she had possession of it in February, 1886, at the New York Hotel, where they were then living; that i\lr. Taber used to take the paper while acting for her in negotiating an exchange of the bond and mortgage for land to be conveyed to her. Thereafter all evidence given by the plaintiff as to the possession of the bond and mortgage was stricken out as coming within the prohibition of section 829 of the Code of Civil Procedure. Held, that the court erred in so striking it out.

      Wadsworth v. Heermans (S5 N. Y., 689); Pinney v. Orth (88 id., 450); Holcomb v. Holcomb (95 id., 325); Lewis v. Merritt (98 id., 209; followed.
    Appeal from a judgment dismissing the complaint, entered in Queens county upon the trial of this action by the court without a jury.
    The action was brought to recover the possession of a bond and mortgage claimed by the plaintiff to belong to her, but which being found among the assets of the deceased were taken possession of by the defendants, his executors.

      Won. G. Low, for the appellant.

      Albert G. McDonald, for the respondents.
   Barnard, P. J.:

The plaintiff is the widow of Stephen Taber, deceased. The defendants are his executors. In 1873, one Groff gave a bond and mortgage to Annabella Levitt for $4,500, and this mortgage was assigned by a written assignment to the testator in his lifetime. He died in 1886, and this mortgage was found among his papers. The widow claims title to the same by gift from her husband. The defendants deny the claim and assert that it was an asset of the deceased. Upon the trial the plaintiff was called as a witness in her own behalf and was sworn. She was asked if she had the possession of the bond and mortgage in her husband’s lifetime, and was permitted, under objection as to the -competency of the evidence, to testify that she had it in October, 1885, and from time to time thereafter; that she had the possession of it in February, 1886, at the New York Hotel, where they were then living. That Mr. Taber used to take the paper to “ settle the matter with Mr. Levitt.” The evidence given by the plaintiff “ as to her possession of the bond and mortgage,” was all stricken out as coming within the prohibition of section 829 of the Code. The first question presented, therefore, is as to the correctness of this .ruling.

The Court of Appeals have recently been called to pass upon this section in several reported cases. (Wadsworth v. Heermans, 85 N. Y., 639; Pinney v. Orth, 88 id., 450; Holcomb v. Holcomb, 95 id., 325; Lewis v. Merritt, 98 id., 209.)

In Wadsworth v. Heermans, a claimant for certain bonds against a deceased party was permitted to testify that he bought the bonds of a third party; put them in his safe and that the deceased, in his absence, took them out, and that they were not in the name of the deceased. The court say that while the evidence might inferentially negative a personal transaction with deceased, yet that the fact was an undisputed one and that an inference may be formed upon such a fact.

In Pinney v. Orth, a defendant was permitted to testify in reply to proof by a clerk, of a transaction between a deceased person and the defendant, that he was present at no such interview.

In Holcomb v. Holcomb, the particular evidence received was held improper under this section, but it was’reasserted that an undisputed fact could be proven because the section did not prohibit such evidence, and apart from this section parties generally were witnesses.

In Lewis v. Merritt, the very point presented is decided. The facts are entirely similar and the only difference between the case there presented and the one in question consists in a reverse of parties. The executors of a deceased person were plaintiffs and the claim of title was met by an adverse claim derived from a gift by tlie deceased. The defendant, upon the trial, was not permitted to state that he had possession of the subject of the dispute in the lifetime of the testator.

The Court of Appeals held the ruling to be improper, and that the evidence was admissible, “ although such facts also incidentally tended to establish the inference that a personal transaction or communication. between the witness and the testator had taken place.” (Lewis v. Merritt, 98 N. Y., 210.) It did not need a written assignment to make a complete gift if all other requisites to make a gift are proven. “It is clear, upon the authorities cited, that choses in action, such as bonds and mortgages and promissory notes not indorsed, may be well transferred by delivery only as a donatio causa mortis.” The gift of a mortgage in apprehension of death or among the living “ may be effected by a simple delivery of the ’ security.” (Westerlo v. De Witt, 36 N. Y., 340.) Admitting the possession of the bond and mortgage to have been in the plaintiff after October, 1885, with occasional periods in which her husband had apparent possession of the same, the proof of the gift was sufficient to go to the jury. «

The parties were married late in 18S4. In October, 1885, the wife had this bond and mortgage. That was about the time when the deceased and his wife jnoposed to exchange the bond and mortgage for a house for Mrs. Taber. Tie stated to a vendor that the bond and mortgage belonged to his wife, and that the cottage which would be taken in exchange for it, was for her. There was a choice of three cottages or the house covered by the mortgage, which it was proposed to give Mrs. Taber, and in March or April, 1886, she selected the house. Mr. Taber was then on his death bed, and said that he “ was too feeble to change the paper.” He died in a day or two thereafter. There is further proof to the effect that, some six months before his death, the testator said to the plaintiff’s sister that he had given the bond and mortgage to his wife and that she was to take therefor a house and lot, and that in the fore part of April, 1886, the deceased proposed to his wife to go out and “settle up that affair of your mortgage.” She refused to permit it on account of his health. Upon this evidence, if credited by the jury, a gift may be established to the plaintiff. If the bond and mortgage was in his actual possession, and there be proof that it was delivered to her with the intent to convey and transfer at once the title thereto, and if the subsequent possession of the paper in the husband is explained by reason of his acting for her in transferring her property for land to be taken to her in exchange, all requirements of a valid gift will be furnished. The question was one for the jury.

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

Dykman and Pratt, JJ., concurred.

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


author: Barnard, P. J.: Pratt, J.:

text:
    THE RECTOR, CHURCHWARDENS AND VESTRYMEN OF ST. MARK’S CHURCH, in the Town of Newcastle, Appellant, v. CHARLES G. TEED, Respondent.

      .Agreement to pay money to a person not a party to it — when an action thereon will Me in favor of such person.

    An application for the probate of the ■will of one Lewis T. Wright, made by the defendant, wbo was named therein as executor, was resisted by Thomas Wright, the brother and only heir-at-law and next of kin of the deceased. Thereafter an agreement was made by which Thomas withdrew his objection to the probate and the defendant signed a written agreement by which he agreed to give the sum of $500 to the plaintiff in this action. Thereupon the objection was withdrawn and letters testamentary were granted to the defendant.

      Held, that the plaintiff was entitled to maintain an action upon the agreement, which had been assigned to it, to recover the said sum from the defendant.
    Appeal from a judgment dismissing the complaint entered in Westchester county upon the trial of this action by the court without a jury.
    The action was brought upon a written promise or undertaking, signed by the defendant, by which he agreed to pay to the plaintiff $500. The defense was that the undertaking was without consideration and void. The defendant was.the executor of the will of Lewis T. Wright, who died in or about the year 1875, and as such executor he propounded said will for probate before the surrogate of Westchester county. Plaintiff is a religious corporation duly organized and existing under the laws of New York, and is the same corporation mentioned as payee in the -written undertaking or promise sued upon in this action as St. Mark’s Church, Newcastle, Westchester county. Thomas Wright, the only brother, heir-at-law and next of kin of said testator, had filed objections to the probate of said will. Thomas Wright was a churchwarden of the plaintiff, and he insisted that the testator liad agreed to give $500 to the plaintiff. On April IT, 1875, the said contest respecting Lewis Wright’s will was on trial before the surrogate of Westchester county, the parties being present with their counsel; the defendant desired that the contest be withdrawn, and a compromise was arranged by which Thomas Wright agreed to withdraw his opposition to the probate of the will upon condition that the defendant would pay to the plaintiff $500, in the manner, at the time, on the condition and for the purpose expressed in the obligation sued upon; to this the defendant agreed, and immediately executed and delivered his written obligation, upon which this suit was brought. Thereupon Thomas Wright withdrew his opposition, the will was immediately admitted to probate, and letters testamentary thereon were issued to defendant. The written undertaking of defendant was passed and delivered to the plaintiff, who now owns and holds it. Thomas Wright died September 20, 1882, and no agreement or instrument of any kind has been executed by the legatees of Lewis Wright to bind them to the performance of said agreement, instead of the defendant.

      Edwards (& Odell. for the appellant.

      Glose c& Robertson, for the respondent.
   Barnard, P. J.:

The question so often made of a priority of contract between the promisor and the promisee is absent from this case. The promise is made by the defendant to the plaintiff. Even if the promise had •been .made to Wright, for the benefit of the plaintiff, an action would lie upon the promise, if founded upon a good consideration between the parties to the promise. (Todd v. Weber, 95 N. Y., 181.)

This case shows a promise made directly to the plaintiff upon a consideration moving from Wright to Teed. Wright was the sole heir-at-law and next of kin of Lewis Wright, 1ns brother. This brother had made a will giving legacies to a greater extent than could be paid out of the assets of the estate. The heir-at-law filed objections to the will, and among them that his deceased brother had agreed to give the church $500, to keep the burial grounds of the church in order. Teed was the executor of the will, and offered it for probate. The parties benefited by the will were, some of them, relatives of the deceased. Under this state of facts the executor and proponent of the will made a compromise. The consideration was good. If the promise liad, been made by the legatee to the contestant the consideration would have been good. (Palmer v. North, 35 Barb., 282.) This would stand upon the value of the withdrawal of the objection to the probate. If Wright, the contestant, could furnish a good consideration to the legatees, he could to a person who stood in the relation of executor, and personally made a promise to Wright, based upon the same consideration.

The judgment should, therefore, be reversed and a new trial granted; costs to abide event.

Pratt, J.:

It does not appear that Thomas Wright owed any debt or duty, or was under any obligation to the plaintiff. So that had the promise been made to Wright, for plaintiffs’ benefit, the case would fall directly within the language of Allen, J., in Vrooman v. Turner, 69 New York, 283: “To give a third party, who may derive a benefit from the performance of the promise, an action there must be * * * some privity between the two the promisee and the party to be benefited.” But in the case at bar the promise was made directly to the plaintiff.

The fact that the consideration moved from Wright is not important. Take the case where A lends money and receives a bond payable to B, can it be doubted that B can enforce the security? Wright was next of kin and heir-at-law. lie, therefore, had abundant motive to desire to defeat probate of the will, and the withdrawal of his objections was an adequate consideration which moved from him to defendant. It is not needful to the validity of the contract that the consideration should be beneficial to defendant. Yet, we think, his commissions as executor supply an abundant consideration, which may also be said of the benefit to his relatives, the legatees.

It follows that the plaintiff was entitled to recover, and the judgment in favor of defendants should be reversed and new trial ordered, with costs to abide the event.

Dykman, J., not sitting.

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