author: W. P. S. Melvin, Referee. Ransom, S. Barrett, J.

text:
    In the Matter of the Judicial Settlement of the First Account and First Supplemental Account of William Mitchell, Ex’r of Clarissa E. Curtis, Deceased.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    1. Will—Equitable conversión—Taxes.
    By testatrix’ will she gave all her personal property to her daughters, and directed that if certain real estate was sold before or after her death an annuity should be paid to her husband from the proceeds. She gave said real estate or its proceeds to her executors in trust to divide into eight parts and hold certain of such parts for the use of her daughters and grandchildren during their respective lives with remainder over. She also directed the payment of certain legacies out of said proceeds. Held, that there was an equitable conversion of the realty into personal property, and that on a sale thereof the taxes, assessments and liens should be paid from the proceeds, and not from the income arising from investments thereof.
    2. Curtesy—Married women’s acts.
    Birth of issue prior to the passage of the married women’s acts of 1848 and 1849 did not give a husband such a vested right in property subsequently acquired by the wife that she cannot deprive him thereof by will.
    3. Decedent’s estates—Set off.
    At the time of her death testatrix was in possession of a house under a lease which had eleven months to run. Her daughters continued to occupy it for the term of the lease. The landlord assigned his claim for rent to one of the daughters, who presented it as a claim against the estate. Held, that the estate had no claim against her for rent which could be set off; that its claim, if any, was against the daughters jointly, and that § 2312 of the Code was inapplicable.
    Appeals by various parties from a decree of distribution made by the surrogate of the county of Mew York.
    The following are the opinions of the referee and surrogate referred to in the opinion of general term.
   W. P. S. Melvin, Referee.

The facts in the case are simple, and in the main undisputed, but the objections that are urged by the husband of the testatrix and her children are of the utmost importance. It appears that the testatrix, Clarissa E. Curtis, and James L. Curtis intermarried in the city of blew York on June 18, 1832. There were four children by the marriage, of whom two survive, namely, Clara Isabelle Curtis, born April 1,. 1833, and Julia Frances Munson, born September 19, 1838. Both these daughters unitedly file objections to the account of the executor, and their father, separately, and in his own behalf, files objections. The latter claims a right in the real estate left by his wife as tenant by the curtesy, and, further, that the entire personal estate left by his wife belongs to him, after payment of her debts and funeral expenses; and finally, that no distribution of the proceeds of the real or personal estate should be ordered on this accounting, and that no distribution of the proceeds of the real estate can be directed until after his death. His daughters, on the other hand, accepting the will of their mother, substantially limit their contention to this, briefly stated: That a certain bequest in their favor should not be defeated .by devoting the property covered by the terms of the bequest to the payment oí taxes, assessments and other charges upon the real estate at the time of the death of their mother.

The material portions of the will of Mrs. Curtis, so far as this proceeding is concerned, are as follows: “ First. I give and be-, queath all my jewelry, laces, and other wearing apparel, and all my silver and plated ware, all my paintings, pictures, books, book-cases, and all my household goods, stores and furniture, to my daughters, Clara Isabelle Curtis and Julia Frances Munson, share and share alike, absolutely. In case either should die before me, her share to go to the survivor. Secondly. I direct my executor to pay all my debts and funeral expenses. Thirdly. In the event of a sale in my life-time of my real estate'situated between 107th street and 108th street and the Boulevard and Riverside park, in the city of New York, or, in the event of a sale after my death, then after such sale, and from the proceeds thereof, I give an annuity of twelve hundred dollars to my husband, James L. Curtis. Fourthly. All the rest of my personal property owned by me absolutely, amounting now to about twenty-six thousand dollars, and except the proceeds of said plot of real estate, I give and bequeath to my executors hereinafter named, in trust to receive and .collect the income, interest, dividends, and profits thereof, and to apply the same to the use of my daughters, Clara Isabelle Curtis ancl Julia Frances Munson, during their lives, share and share alike, and to the survivor for life. Fifthly. I give, devise and bequeath my plot of real estate, or the proceeds thereof, if sold before my death, to my said executors, in trust to divide the same into eight equal portions, and to receive and apply the rents, interest, income, dividends and profits of (3) three of such portions to the use of my daughter Clara Isabelle Curtis during her life; and of (3) three other of said portions to the use of my daughter Julia Frances Munson during her life; and of one of said portions to the use of' my granddaughter Edith Hastings during her life ; and of the remaining portion to the use of my grandson Ernest Hastings during his life. Sixthly. I give and bequeath from the proceeds of the sale of my above-specified plot of ground (£500) five hundred dollars to Eliza Fitzpatrick, and ($500) five hundred dollars to Elizabeth S. Higgins, who have been my dressmakers for many years.” Then follows a bequest of “all the respective remainders upon the respective life-estates in the real and personal property hereinbefore created ” to certain residuary legatees, coupled with a power of sale to her executors, or the one who should qualify, at such time as they may deem fit. This will was made or dated March 30, 1882. At the time of the death of Mrs. Curtis she owned considerable personal property. All of it was included under the terms of the first of the foregoing bequests, except a block of railroad stock inventoried by the executor as 250 shares of the capital stock of the New York Central & Hudson River Railroad Company at a value of $26,250, besides a sum in cash, namely, $2,420.43.

(1) Now, asto the real estate left by the testatrix. It appears that on the 29th day of December, 1856, Mr. Curtis executed, under seal, a deed of bargain and sale to Eastburn Hastings, in consideration of the sum of $25,834.33, of eight lots on One Hundred and Eighth street, in the city of Hew York, and also of thirty-one other lots in the same vicinity. The conveyance was made subject to a number of mortgages, the amount of which formed part of the consideration, and the receipt of which consideration was in ordinary terms “hereby acknowledged.” Afterwards, on the 30th day of December, 1856, Eastburn Hastings made a like deed, under seal, to Clarissa Emma Curtis, the wife of James L. Curtis, for the very same consideration named in the deed to Mr. Hastings, conveying the same property subject to the same mortgages, which likewise formed part of the consideration, the receipt of which was also in terms acknowledged. These deeds were properly delivered, and Mr. Curtis procured the same to be duly recorded. He testified, moreover, that the object in making the transfers was to secure his wife and his children against the contingency of his sudden death or future possible business embarrassments. He admitted that the title was not in him, and that Mrs. Curtis continued in the undisturbed possession of the property as “ all was very comfortable with ourselves.” Some testimony was presented in this proceeding on the part of Mr. Curtis which showed that the consideration named in the deeds was not paid by either Mr. Hastings or Mrs. Curtis, but, if this testimony was offered for the purpose of annulling the deeds, it cannot avail. “A man is estopped by his deed to deny that he granted or that he had a good title to the estate conveyed, but he is not bound by the consideration expressed, because that is known to be arbitrary, and is frequently different from the real consideration.” Wilkinson v. Scott, 17 Mass., 249. He is estopped from alleging that the deed was executed without consideration, though he may explain or vary it by paroi proof. McCrea v. Purmort, 16 Wend., 460. “ In a conveyance by bargain and sale, there must be some good consideration given, or, at least, said to be given, for the land; and if the deed makes mention of money paid, as in consideration of £100 or the like, and in truth no money is paid, yet the bargain and sale is good.” Shep. Touch., 222; Fisher v. Smith, Moore, 569; Chiles v. Coleman, 2 A. K. Marsh., 298; Bank v. Housman, 6 Paige, 526. But it is likely, however, that the testimony relative to the non-payment of the price mentioned was introduced not for the purpose of annulling the deeds, but rather to present in a strong light the idea of the contestant that these deeds operated, in effect, as a conveyance from husband to wife, and hence were not entitled to the favor of the law. It is proper, then, to consider the force of the objection of Mr. Curtis that his wife could not, by her last will and testament, defeat his alleged life-estate in this realty, as tenant by the curtesy; and this involves an examination of the terms of the statute which enabled women to hold property free from the ® control of their husbands, and conferred upon them power to devise the same as if they were unmarried. Its language is, Laws 1848, chap. 200, as amended by Laws 1849, chap. 375; “ Any married female may take by inheritance, or by gift, grant, devise, or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise, real and personal property, and any interest or estate therein, and the rents, issues and profits thereof, in the same manner, and with the like effect, as if she were unmarried.”

In the first place, then, are these two deeds, in effect, a conveyance from Mr. Curtis to Mrs. Curtis ? That may have been the effect, but with the language of the statute before us, and technically, we must say that it was not a conveyance such as the law excepted from its beneficent provisions. At the time these deeds were made it was the careful endeavor of the parties that they should not conflict with this statute. It was a question, Mr. Curtis testified, whether he had the right to convey property directly to his wife, and hence it was to obviate this objection that Mr. Hastings was selected as the intermediary. Direct conveyances between married parties were never encouraged, and, though sometimes sustained in equity, in law they were always refused recognition because of the unity of husband and wife. To avoid this objection, consequently, it was the almost invariable rule to have such deeds made through the intervention of a trustee, and the statute was drawn, not to prevent or discourage what had been allowed time out of mind, Hunt v. Johnson, 44 N. Y., 27, but to prevent a construction which would sanction such. direct conveyances. Its very exception, as it were, explicitly declares that only conveyances direct from the husband to the wife shall not receive the benefit of its favor. The primary purpose of these acts was to enable every feme covert to hold property in her own right without the intervention of trusts or marriage settlements. Owen v. Cawley, 36 N. Y., 603; Wilbur v. Fradenburgh, 52 Barb., 478. The object of the statute was remedial, as expressed in the very title of the act, to remove the disability which attaches to coverture, and should have a liberal construction. Darby v. Callaghan, 16 N. Y., 79. But this should be a construction liberal for the one sought to be benefited, not for him who seeks to turn the phraseology of the law, by a liberal construction, in his own favor, to defeat conveyances to wives ; and so far as such a one is concerned, so far as the construction to be placed on the exception, the words “ from any person other than her husband,” the law should be construed strietissime. It is the duty of the courts, when the intention of the legislature is apparent, to see that the design and object of the statute is not evaded by construction, but, on the contrary, is permitted to have full effect and operation. Hurd v. Cass, 9 Barb., 366.

If, then, the will of the testatrix as to this real estate was made under sanction of the law, had the husband any right to an estate as tenant by the curtesy of which she could deprive him by the execution of the will? There is no question but what, in the absence of a testamentary disposition by her of her property, the right of tenancy by the curtesy survives in this state, notwithstanding the enabling acts relative to married women. Hatfield v. Sneden, 54 N. Y., 280. But the contestant maintains that he had a vested right in this property on the birth of issue which could,not be disturbed by statute; that the married woman’s acts can have no application to those who contracted the relation of marriage, and had issue born to them, before those acts; and he declares that an examination of all the cases reported in this state will fail to show in a single case that issue was born prior to the passage of the act. It is true that the reports fail in this particular, but counsel for the executor has called my attention to the very important case of Thurber v. Townsend, and the fact that the papers on file in that case, as well as the defendant’s points, disclose-that a child was born about 1837. The importance of this case, in view of the objection of the contestant, Mr. Curtis, warrants my giving its particulars as it appears in 22 N. Y., 517. The syllabus of the case recites that “ the acts of 1848 and 1849, to protect the rights of married women, are not liable to objection as impairing the obligations of a contract because they defeat the expectation which the father of a living child had, previous to those acts, of being tenant in curtesy in lands acquired by his wife during coverture, and subsequent to those acts.’’ This was an action in ejectment in the mayor’s court of the city of Albany by Margaret Thurber, a married woman, and another, not her husband. Upon the trial it was proved that the plaintiff, Mrs. Thurber, married in 1833, and had a daughter, the issue of said marriage, who was living at the time of the trial, as was her father. The land in question came to Mrs. Thurber by descent in 1854. The defendant, for the purpose of upholding a lease made by Mrs. Thurber's husband, asked the court to charge the jury that Mr. Thurber, by his marriage and the birth of a child, acquired an estate by the curtesy in the lands of his wife which could not be defeated by the legislature. The court charged to the contrary, and the defendant excepted, The jury found for the plaintiff. On appeal, this judgment of the mayor’s court was affirmed by the general term of the fourth district on all questions of law, and by the court of appeals in all respects.

In Sleight v. Read, 18 Barb., 159, in the general term of the first district, Judge Gierke, referring to the acts of 1848 and 1849, asks: “ What were the rights which actually vested in the husband previous to their enactment ? ” and presents the following cogent summary of the law: “In regard to the real property belonging to the wife at the time of her marriage, he took a vested interest, and became at once entitled to the rents and profits during their joint lives, and, in the event of a birth of a living child, to a contingent right on the death of his wife to the sole enjoyment of the estate during his life, but as to any of her future acquisitions the nature and extent of his interest were subject to any change which the legislature might thereafter make in the laws relating to the acquisition, disposition and .enjoyment of property. All regulations of this kind, the rules of inheritance, the rules relating to wills, successions and conveyances, and all provisions by which the transmission of property is either directed or intercepted, are the offspring of law, and entirely dependent on the legislative power.” Any person, therefore, whatever may be his prospective “possible rights arising from existing legislation in regard to property not yet vested in him, is liable to have them abridged or altogether revoked by any further legislation, whether such person is heir apparent, heir presumptive, or stands in the relation of a husband whose wife may at any time afterwards become entitled to property. The marriage contract does not imply that the husband shall have the same interest in the future acquisitions of the wife that the law gives him in the property she possesses at the time of the marriage, but that he shall have whatever interest, if any, which the legislature, before she is invested with them, may think proper to prescribe. This is precisely the contract to which Mr. B. and Mr. A. were respectively parties at the time of their respective marriages, and this contract, or the obligations to enforce it, has certainly not been impaired by the laws of 1849. Mrs. Bishop and Mrs Alexander married previous to the death of their father, from whom this property descended, and previous to the enactment of this statute. Instead of the law which existed at the time of their marriage, giving the husband a right to the rents and profits during the joint lives of the husband and wife, the legislature in its wisdom, or at all events in the legitimate exercise of its power, deemed it proper to enact that all future property descended to the wife should be transmitted to her to her sole and separate use, and that she should hold the rents, issues and profits thereof in the same manner, and with the like effect, as if she were unmarried. This was, in effect, a modification of the law of inheritance entirely within the control and direction of the legislative power. This modification does not operate on a marriage contract made before its passage, so as to be within the scope of the provision of the United State constitution prohibiting to the states the passage of laws impairing the obligations of contracts, because, as I have shown, the interest of the husband in the future acquisitions of the wife is subject to the power of the legislature in controlling and directing the acquisition of property, and this contingency was an ingredient of the marriage contract.” And so, too, it was held in Blood v. Humphrey, 17 Barb., 660, by Judge Mason, in commenting on this law: “Neither does this act conflict with any provision of our state constitution so far as the property in question is concerned. The legislature may qualify the wife to hold and convey property without in any manner depriving the husband of any of his property, and without impairing any of his rights of property; and, besides, all of these relations of after-acquired property are wholly dependent upon the municipal law, and do not rest in any manner upon any contract, express or implied, between the parties.” An interesting case in connection with this subject is that of Kelly v. McCarthy, 3 Bradf., 7, in which the learned surrogate discusses the contract of marriage with reference to the questions arising out of it regarding the lex loci contractus and the lex loci domicilii, and says: “ With regard to most, if not all, of them, the weight of authority is in favor of the lex loci domicilii over the lex loci contractus, and on the obvious ground that there are many incidents of marriage not the subject of express contract, but flowing from municipal regulation, and dependent, therefore, except as to vested rights in property, upon municipal regulation for their continuance. Vested rights in the property of the wife already acquired under the law regulating the marriage contract cannot, of course, be disturbed by an alteration of that law; but it is quite a different thing to modify the law as to the incidents of marriage in respect to property to be acquired after the change of the law.” For these reasons we entertain no doubt that Mr. Curtis has not a life estate in the real estate of his wife as tenant by curtesy. See, also, Cooley Const. Lim., 360-362; Schouler Husb. & Wife, § 213; Ransom v. Nichols, 22 N. Y., 110; Moore v. City of New York, 8 id., 110; Holliday v. McMillan, 79 N. C., 315; Dunn v. Sargent, 101 Mass., 336; Hill v. Chambers, 30 Mich., 422; In re Clark, 40 Hun, 237; Southard v. Plummer, 36 Me., 64.

(2) We come now to the consideration of Mr. Curtis’ second objection, namely, that, as the husband of the deceased by his marriage to her in the year 1832, he is entitled to receive the whole of her personal estate after the payment of her debts and funeral expenses. And at the very threshold of the inquiry we must admit that the principle for which he contends is correct, with this restriction: that it should apply only to such personal property as Mrs. Curtis received before the said laws of 1848 ana 1849, because, as to all personal property which she receives .after the married women’s acts went into operation, by the force of those very statutes a testamentary disposition of such personal property by his wife ended all possible claim by him to it. The question has been before the highest court of the state, and it has been repeatedly determined that the husband has a vested interest, as to the personalty acquired by his wife before the acts, of which he cannot be deprived by legislation. Westervelt v. Gregg, 12 N. Y., 205; Barnes v. Underwood, 47 id., 351; Ransom v. Nichols, 22 id., 110; Robins v. McClure, 100 id., 328. But there is no proof before me that the personal property left by Mrs. Curtis was acquired by her prior to the 'statutes of 1848 and 1849. The testimony relative to what property Mrs. Curtis had at the time of her marriage, or at later periods during her married life, was given by her husband, who said that at the time of their marriage she had some property, “ but not what we would call nowadays considerable. I can tell you very nearly the amount of property, I think. The amount of property my wife received from her father’s estate, from the personal estate, was less than $9,000, and subsequently a piece of real estate was sold, which was about four thousand; about 813,000. The amount received from her mother’s estate was $15,000; say about $28,000 in the aggregate. And she had at the time her death personal property, one item of property for which she paid $30,000, which is in the Hew York Central railroad.” This is all the testimony in the case relating to the personal estate of the deceased, except the language of the testatrix herself in her will, in which she says: “All the rest of my personal property owned by me absolutely, amounting now to about $26,000,” etc.; and I cannot indulge the presumption that the personal estate actually left by deceased is a part or the whole of that which her husband testified she received from the estate of her father or mother.

(3) Having determined the objections raised by Mr. Curtis, it is proper to turn to those presented by his daughters, Clara Isabelle Curtis and Julia Frances Munson. They are five in number, but, excepting the fifth, they may all be condensed, substantially, in the single one, namely, that these ladies object to the bequest to their use of the residue of the personalty, contained in the fourth item of the will of their mother, being diminished or impaired by the payment out of that fund of that portion of the mother’s debts, namely, the taxes, assessments, or the liens or .incumbrances which existed on the real estate at the time of their mother’s death; that by the will a distinct trust of the real estate was created; and that all liens and charges against said real estate, and all expenses and disbursements incurred by the executor in regard thereto, should be paid out of the proceeds of the sale thereof; and, consequently, that the block of railroad stock of which mention has been made should be held subject to the trusts as to personal property created in said will. As to the fifth objection raised by them, namely, that certain legacies should be paid out of the proceeds of the realty, it is sufficient to say that it must have been made under a misapprehension on the part of the objectors, for the will explicitly provides that the legacies to Elizabeth S. Higgins and Eliza Fitzpatrick should be paid out of the proceeds of the sale of the real estate. This question, then, of the daughters involves a criticism of the character of the several bequests, and an interpretation of the language of the will of the testatrix. And at the very outset of the inquiry, looking at the will in its entirety, regarding the bequests that were imposed on the realty by the third and fifth items of the will, namely: First, by the foundation of an annuity from the proceeds of the sale of the real estate in favor of her husband; and, second, by the fact that the said legacies to Elizabeth S. Higgins and Eliza Fitzpatrick are to „be paid out of the same proceeds, in connection with the fact that a power of sale was given to the executor, which power he has exercised, we are lead to the conclusion that there has been an equitable conversion of the realty into personalty for all the purposes of the will. White v. Howard, 46 N. Y., 162; Van Vechten v. Keator, 63 id., 52; Glacius v. Fogel, 88 id., 434; Lent v. Howard, 89 id., 169; Hobson v. Hale, 95 id., 588; Chamberlain v. Taylor, 105 id., 185; 7 St. Rep., 517; Asche v. Asche, 113 N. Y., 235; 22 St. Rep., 799.

But this equitable conversion cannot have the effect, as suggested by the learned counsel for decedent’s daughters, of causing all of the property, both real and personal, left by the testatrix to pass under the trust created by the fourth item of the will; indeed, in the view I entertain of the will, it cannot now make any .material difference whether or not there was an equitable conversion to any of the parties interested. In case of an. equitable conversion the executor has, by virtue of his office, the administration of both kinds of property, real and personal, and should account for all as assets. This the executor is, in fact, doing, and he now brings the entire estate into court for distribution. Erwin v. Loper, 43 N. Y., 525.

But if we may regard the entire estate as personalty, how is it then relative to the provisions of the will? We may then regard all the provisions contained in it technically as bequests, and so let us see how they stand with reference to each other. The first, third, fifth and sixth items are what are termed “specific bequests,” and the fourth and seventh items'are “general bequests.” Now, it is an indisputable rule that chattels specifically bequeathed cannot be sold for the payment of general legacies, and can be sold for the payment of debts only after the other assets not specifically bequeathed have been applied. Stall v. Wilbur, 77 N. Y., 158. Another rule is that when the personal assets not specifically bequeathed are insufficient to pay all the debts, then the specific legacies must abate or* contribute in proportion to the value of their individual legacies. 2 Williams Ex’rs, 1372. In other words, though general legacies be swallowed up, it is only when the residuary and other legacies have been sacrificed, and nothing remains of the personal estate for satisfying legal debts and charges but what was specifically bequeathed, that specific and demonstrative legacies can be compelled to contribute for the deficiency. The question becomes important, considering the fact that, at the time of the death of the testatrix, the taxes and assessments resting on her real estate amounted, with interest, to the great sum of $36,611.65. Who shall bear this great load ? Shall it be deducted from the proceeds of the real estate, or shall it be paid out of the personalty? And, primarily, shall the residuum bequeathed by the fourth item of the will be devoted as far as it will go to that purpose, although it exhausts the entire fund passing under this item, which, as we have seen, amounts by the inventory to about $28,500? Í was at one time inclined to regard this fourth item as a specific bequest, moved by the tendency of some modern decisions, Woodworth’s Estate, 31 Cal., 595; Warley v. Warley, Bailey’s Eq., 397; Godard v. Wagner, 2 Strob. Eq., 1; In re Beckett, 15 St. Rep., 717, and so cast the burden of this mass of indebtedness proportionally on all the specific legacies; but greater study of the will leads me to the conclusion that the solution of the problem is to be found in the instrument itself. No light is to be obtained from the instruction in the second item of the will to the executors to pay all the debts of the testatrix and funeral expenses. Lord Chancellor Campbell says with reference to such directions: “ I will not say that the words here relied on are mere words of style, like the pious phrases with which the wills usually begin, but they do not seem to me to show that the testator had in mind the option given him of making the debt fall on' the mortgaged land or on the personal estate.’’ Nor does the statute, Rev. Stat., part 2, chap. 6, tit. 3, art. 2, § 27, preferring the payment of taxes, etc., by administrators and executors, necessitate their payment out of the personalty in the face of a contrary direction to be found in a will, the estate being solvent. What does the will in question say, expressly or by implication ? And in this interpretation of the will we should bear in mind that the canons of construction of wills are more liberal than those of contracts. The intention of the testator is the great guide, subject, of course, to this: that this intention be agreeable to the rules of law. It has been called the “ polar star ” by which the court should be guided, and though Redfield dislikes the expression as being too fanciful, nevertheless the whole learned treatise on the construction of wills points to innumerable examples of the endeavor of courts to learn the purpose or intention of the testator. In Mann v. Mann, 14 Johns., 1, it is said that “ the rule in the construction of wills is that they be construed liberally and benignly, not technically. That construction will be most favored which will prevent a total failure of the bequest. This is the leading principle which runs through the cases cited upon this point. * * * It is the duty of courts to search for a construction that will carry the plain purpose of the testator’s bounty into effect.” Again: “The common law rule that the personal estate of a deceased person will be applied to the payment of his contract debts, to the relief of his real estate, is not, however, of universal application, and will not be enforced where it is in apparent hostility to' the plain intent of the deceased as expressed in his will, and would defeat bequests made therein.” Rice v. Harbeson, 63 N. Y., 493, and see Arcularius v. Geisenhainer, 3 Bradf., 72. Indeed, this humane principle of construction has been crystalized in a maxim, one of the oldest in the law, which comes to us even from the time of Bracton, and of the most frequent application in this very matter of the construction of wills, benigne faciendce sunt interpretationes chartarum ut res magis valeat quampereat.

Now, regarding the will in this beriign spirit, with a full view of everything within the four corners of the instrument, Hoxie v. Hoxie, 7 Paige, 192, what do we find? We are first struck by the manifest intention on the part of the testatrix to provide amply for her daughters, Miss Curtis and Mrs. Munson. Between them she divides all her jewels, silver, works of art and household goods; gives them equally a life-estate in all the rest of her personal property, and gives them for life the chief portion of the real estate. And, looked at more critically, we find that she uses the word “ proceeds ” in four parts of her will, namely, in the third, fourth, fifth and sixth items. The consideration we shall give to the third and fourth will be sufficient for all. The third item looks to the possibility of a sale of the realty during the lifetime of testatrix or after her death, in either of which events she provides “from the proceeds ” an annuity for her husband of $1,200. Now, in the ordinary business of life, what are the proceeds of a transaction with reference to those who are to be benefited by the outcome ? Evidently, the amount remaining after deducting the charges incidental to the matter. If a title to real estate is to be closed, the grantee sees to it that all the taxes, assessments, or other liens are first deducted from the purchase price, and the remainder will generally be said to be the proceeds. Indeed, it is the net proceeds that the testatrix had in mind when the will was framed. This becomes still more evident when we consider the language of the fourth item of the will. In this she gives to her daughters’ use “ all the rest of my personal property, owned by me absolutely, amounting now to about $26,000, and except the proceeds of said plot of real estate.” The exception was made because there was, as we have seen, the possibility of the sale of the real estate during her life-time ; and. this very exception discloses that, though it might become personalty, still the fund of “ about $26,000 ” she determined should remain intact. Moreover, the testatrix announces about how much she expected this fund or residuum would be: about $26,000. Bear in mind that the vouchers filed herein show that at the time the will was made there were arrears of taxes and assessments already amounting to upwards of $10,000. If these were contemplated to be deducted from the personalty, she could not say “ about $26,000,” for there would not then have been that sum, but only about $16,000 for distribution. At the time of her death these unpaid taxes and assessments amounted, as we have seen, to more than $36,000; enough to far more than extinguish this legacy. Is it possible to entertain the idea that the testatrix intended to offer, as it were, Dead Sea fruit of bitterness and disappointment to the dearest objects of her benefactions ? The only fair and reasonable construction of this will seems to be to regard the word “proceeds ” as equivalent to “ net ” proceeds of the real estate. This will render the structure of the whole instrument harmonious, and will work no benefit to one part at the sacrifice of another. This is our conclusion, and so I have held that the personal property shall not be applied towards the payment of taxes and assessments on the real estate, and only to such debts of the testatrix as are not peculiarly incidental to the real estate.

(4) There remains for consideration but one question of minor importance respecting the amount involved, though the dispute is very earnest regarding it. It appears that the testatrix was, at the time of her death, the lessee of a house in Bridgeport, Gonn. The lease was for one year, from October 16, 1886, to October 16, 1887, for the rent charge of $420. The testatrix died there on Eovember 3, 1886. The testimony shows that her daughters, the contestants, continued to occupy the house from that time to the termination of the lease. The executor suggests in his account that the amount of the rent be charged against them. The landlord, Merritt Merwin, has, since this reference was ordered, assigned the claim for the entire rent to Miss Curtis, who now presents the claim and demands its payment. Some testimony was given by Mr. Curtis, who was called by the executor, that these ladies remained in the house “ at the special request of Mrs. Curtis, before her decease, that the children should remain there for the term for which she hired the house; ” but if by this evidence it was sought to show that there was a donatio causa mortis of the outstanding term, it seems to me to be altogether insufficient. As I have deemed it within the jurisdiction of this court to determine the rights of these parties, I have set off against the probated claim of Miss Curtis, as assignee for the rent, the relative value of the-premises, at the same rate ($420 per annum) for the period of time for which she and her sister occupied them.

Ransom, S.

I concur in the very able opinion of the learned referee as to the effects of the “ Married Women’s Acts ” upon the property rights of the husband of deceased. While I differ with him as to the effect of the testimony of the husband, given upon cross-examination, as to what personal property was possessed by his wife, at the time of the marriage, I am of opinion that the-husband must have recourse to another tribunal for the effectual enforcement of his rights. Conceding that the testimony referred to established prima facie that prior to the act of 1848 his wife was possessed of the personalty mentioned, and that, in the absence of proofs as to its disposition, it must be held to-be represented in the assets which cam e to the executor, in that event the property is the husband’s by virtue of the marital relation; he is entitled solely to administer thereupon. Tompkins v. Rice, 29 St. Rep., 427, and cases cited. The surrogate has no. jurisdiction over an executor with respect to property of which, as executor, he had no right to take possession. Estate of Hall, Surr. Dec., 88,. p. 9. The daughters of testatrix were prominent objects of her solicitude, and it was her manifest design that they should be the chief beneficiaries of her bounty. With the clear light of this intention to elucidate this instrument, I am convinced that the report of the referee as to the fund from which the taxes, etc., are to-be paid is correct. The referee is in error as to the rent of the-Bridgeport house. It is a disputed claim, and the surrogate is without jurisdiction to determine the same. Inasmuch as the executor asserts a claim against the legatees, however, he is entitled to have reserved from the fund to which they may be entitled a sum sufficient to protect the estate in the event that it should be determined in an appropriate tribunal that they are-liable. Estate of Colwell, 15 St. Rep., 742. In schedule D the executor seeks credit for $2,249.90, amount of bill of E. A. Thayer for services in reducing assessments on real estate. One thousand dollars of this has been paid. It is claimed by the daughters that this sum should be charged upon the real estate, and the referee sustained this claim. The only evidence as to the claim is the voucher, which would indicate that the attorney procured reductions on various assessments upon the realty, and was to receive a stipulated fee of one-quarter of the amount of the reduction. Testatatrix died November 8, 1886, and the services all appear to have been rendered prior thereto. I think the referee is wrong in charging this debt against the realty. It was a personal obligation of the deceased, entered into during her lifetime ; the services were rendered while she was living. Unlike the assessments, it was no lien against the real estate, and, as suggested by counsel, it was not such a claim as could be enforced by proceedings in rein. In this-regard the referee must be overruled. It might also be added that upon a sale of the real estate this debt, although contracted exclusively for the benefit of same, would in no wise reduce the amount of proceeds. Objection was made by the daughters to the items $1,500 and $239, being for services and disbursements of attorney for executor, it being claimed that a large portion of the services were rendered in connection with the sale of the real estate. The items are not disputed. The only evidence is the bill or voucher, which casts no light upon the matter, and the testimony at page 11, where the attorney himself swears that “ in round terms about three-fourths of the $1,500 fees belong to real estate, and of the disbursements all the items belong to the real estate account, except the two items for advertising for claims, $45.” In my opinion, charges incidental to the sale of the lots should be deducted from the sums realized, and are not to be paid out of the personalty. There is no proof before me, however, from which I can determine to which class the different items belong. Unless counsel can agree, the matter will be remitted to the referee for further proof on this point.

Cortlandt Irving, for executor, William Mitchell; E. A. S. Man, for Clara Isabelle Curtis, assignee; William Fullerton, for James L. Curtis.

Barrett, J.

We agree with the learned referee in the conclusion arrived at as to the main question presented in this matter, namely, that of equitable conversion. This question was elaborately considered by the learned referee, and nothing need be added to his able and convincing opinion on that head. The report in this particular was confirmed by the learned surrogate, .and an opinion filed expressing full concurrence with the referee’s views. Subsequently, however, the learned surrogate decreed that the taxes and assessments which accrued against the real -estate between the death of the testatrix and the date of the sale should not be paid out of the proceeds of such sale, but should be paid out of the income to be derived from the investment of these proceeds. This ruling, it seems to us, was not in harmony with his previous decision confirming the, report of the referee. By that report and the decision confirming it, the taxes and assessments which accrued upon the property prior to the death of the testatrix were directed to be paid out of the proceeds of the realty. This was upon the distinct ground that, in order to carry out the provisions of the will and the intentions of the testatrix, an equit.able conversion of the real estate into personalty for all the purposes of the will must be implied, and that such equitable conversion was thereby effected. If the reasoning which led to this conclusion was correct, and we think the referee has demonstrated its correctness, then all the liens upon the property, whether .accruing before or after the death of the testatrix, should be paid •out of the proceeds of the sale. The real estate in question was vacant land, and- no income was derived from it between the death ■of the testatrix and the time of the sale.

The cestuis que trust did not therefore benefit in the least from this property, while the liens in question continued to accrue. And it was clearly the net proceeds of the sale, after paying all existing incumbrances, that is, existing at the time of such sale, which the testatrix intended by the fifth clause of her will to divide into eight equal portions. The reasoning with regard to the liens existing when the testatrix died applies equally to those which accrued down to the dot^ of the sale. We think, therefore, that the decree on this head should be affirmed on the executor’s appeal and reversed on the appeal of Clara Isabelle Curtis and Julia Frances Munson.

With regard to Mr. Curtis’ appeal, we concur in the result'arrived at by the learned surrogate, and also with the referee in the general discussion of the married women’s acts of 1848 and 1849.

As to the rent of the Bridgeport house, we differ with both the learned referee and the learned surrogate. That rent was due to the landlord and he assigned his claim therefor to Clara Isabelle Curtis. By this assignment Miss Curtis became entitled to payment quite the same as the landlord would have been had the assignment not been made. The- estate had no claim against Miss Curtis which could be set off against the debt for rent thus assigned. Whatever claim the estate had was against Miss Curtis: and her sister, Mrs. Munson, and even that was disputed. The remedy of the executor was by action against Miss Curtis and Mrs. Munson, and he was not entitled to reserve $500, or any sum,, from the personalty payable under the will to himself as trustee, or from the income ultimately coming to the beneficiaries. Section 2812 of the Code of Civil Procedure is inapplicable to the facts under consideration. There was here no “claim in controversy respecting the right of any person to share in the money to be distributed.” The decree in this respect should, therefore, be reversed, and the executor required, without reservation, to pay Miss Curtis the amount due for the rent in question, with interest. It should also be reversed in the particular already pointed out, and the executor required to pay all liens, assessments and interests out of the proceeds of the realty.

In all other respects the decree should be affirmed, with costs to the executor, and to Miss Curtis and Mrs. Munson, jointly, payable out of the fund.

Patterson, J., concurs.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    In the Matter of Cornelia M. Stewart, Deceased. Appeal of Charles J. Clinch.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    1. Collateral inheritance tax—Time of determination of question.
    The question of taxation of estates must he determined by the condition of things which arises immediately after the death of the decedent, and subsequent events by which uncertainties are rendered certainties cannot be appealed to in determining that question.
    2. Same.
    Where a will confers power upon the executor to distribute a fund among such of certain persons named and in such proportions as he deems best, some of which persons would not be subject to tax on legacies bequeathed directly to them, the amounts appropriated under such power are not subject to taxation under the act.
    3. Same—Interest.
    Where the settlement of the estate has been delayed by proceedings for the revocation of the will, interest at the rate of ten percent is not recoverable, but interest can only be charged at the rate of six per cent from the expiration of the eighteen months from the death of decedent until the cause of delay is removed.
    Appeal from order of the surrogate assessing collateral inheritance tax.

      H. Russell and Jabish Holmes, Jr., for app’lt; I. H. Maynard, for resp't.
   Van Brunt, P. J.

Cornelia M. Stewart died on the 25th of October, 1886, leaving a will and four codicils, which were duly-admitted to probate by the surrogate of the county of New York on the 13th of November, 1886, upon which day Henry Hilton and Charles J. Clinch qualified as executors.

The questions arising upon this appeal are presented by the last codicil to the will. By this codicil, which revoked certain of the trust powers which had been conferred upon the executor Hilton by the previous codicils, the said trustee was given the power to endow a seminary of learning for women in connection with the Cathedral of the Incarnation of the diocese of Long Island, theretofore mentioned in said will and codicils, and also to endow such other buildings and institutions connected with said cathedral as he should deem necessary or proper.

The codicil then provided, as to the property not necessary in the judgment of the trustee for any of these purposes, that he should have the power to distribute the same among such of the legatees mentioned in the will and in such proportions as he saw fit. The legatees amongst whom this discretionary power of appointment might be exercised were nineteen in number, consisting of half sisters, nephews and nieces and grand nephews and nieces. On the 25th of April, 1887, the surrogate, upon motion of the executors, assessed and fixed the collateral inheritance tax upon the legacies given by the will; and on like motion appointed an appraiser to appraise, for the purposes of said tax, the clear market value at the death of the decedent of the property which passed by the residuary clause of the will; and further provided that he report the amount of said residuary estate of said deceased subject to the said tax, the names of the different parties whose shares were subject thereto, the amount of their respective shares and the amount of the tax for which they were respectively liable. On the 28th ox October, 1887, one of the next of kin and heirs-at-law filed her petition to revoke the probate of said will and codicils, and it was not until January 16, 1890, that a decree" was entered dismissing said proceeding. On the of January, 1890, Hilton executed the trust and power of appointment imposed on him by the will. After endowing the cathedral with the sum of §500,000 and certain lands at Garden City, lie exercised the discretionary power of appointment by transferring to ten of the nineteen legatees the remainder of the estate in the following proportions: “ One-tenth to Charles J. Clinch, the nephew of the deceased; one-tenth to Sarah N. Smith, a niece of the deceased; three-fifths to Anna and Emma Clinch, half sisters, and one-thirtieth to each of six nephews and nieces.

On the 19th of February, 1890, the appraiser filed his report, by which he found that the value of the one-tenth received by Charles J. Clinch under the power of appoi nent was $248,-540.16, and that it was subject to a tax of $12,427. The appraiser also reported that the one-fourth received by Clinch directly under the will was subject to a tax of $74,942.14, and interest was charged upon this latter amount after the expiration of the eighteen months allowed by the statute of 1887 for the payment of the tax without interest.

The questions presented on this appeal are:

First. Whether the amount received by Charles J. Clinch under the power of appointment is subject to the collateral inheritance tax; and

Second. The executors being prevented by the contest in respect of the will from paying the tax upon the legacies given by the will, whether such interest should be charged, such contest having been initiated prior to the expiration of the eighteen months ■allowed by statute.

Upon an examination of the statute we are of opinion that the amount received by Charles J. Clinch under the power of appointment is not subject to the collateral tax, and this conclusion it seems to us necessarily arises from a consideration of the language of the statute.

It should be borne in mind that it is the established law of this state that this tax being a special and not a general tax, a citizen cannot be subjected to it without the clear warrant of law. Matter of Enston, 113 N. Y., 174; 22 St. Rep., 569.

The substance of the first section of the statute as applicable to this case is that all property which shall pass by will from any person who may die seized or possessed of the same while a resident of this state, to any person in trust or otherwise, or by reason whereof any person shall become beneficially entitled in possession or expectancy to any property, or to the income thereof, other than to and for the use of mothers, fathers, brothers or sisters, etc., shall be and is subject to a tax upon the clear market value of such property. The statute, however, exempts estates which may be valued at less than $500 from the payment of such tax. The second section sets forth the method by which the amount of the tax is to be ascertained, and provides as follows: “ When any grant, gift, legacy or succession upon which a tax is imposed by § 1 of this act, shall be an estate, income or interest for a term of years or for life, or determinable upon any future or contingent event, or shall be a remainder, reversion or other expectancy, real or personal, the entire property or fund by .which such estate, income or interest is supported, or of which it is a part, shall be appraised immediately after the death of the decedent at what was the fair and clear market value thereof at the time of the death of the decedent in the manner hereinafter provided, and the surrogate shall thereupon assess and determine the value of the estate, income or interest subject to such tax in the manner recorded in § 13 of this act, and the tax prescribed by this act shall be immediately due and payable to the treasurer of the proper county, and in the city and county of Mew York to the comptroller thereof, and, together with the interest thereon, shall be and remain a lien upon said property until the same is paid.”

Section 13 provides that in order to fix the value of the property of persons whose estate shall be subject to the payment of said tax, the surrogate on the application of any interested party, or upon his own motion, shall appoint some competent person as appraiser, whose duty it shall be forthwith to give certain notices, and appraise the property, and make a report to the surrogate, who is thereupon, required forthwith to assess and fix the then cash value of all the assets, etc.

It further provides that the value of every future or limited estate, income or interest shall, for the purposes of this act, be determined by the rule, methods and standards of value which are-applied by the superintendent of the insurance department in ascertaining the value of policies of life insurance and annuities, save that the rate of interest to be assessed in computing the present value of all future interests and contingencies shall be five percent per annum.

It will thus be seen that by the provisions of the statute referred to it is evidently intended that the appraisement for the purposes of taxation shall take place immediately after the death of the decedent and that the tax shall be levied and become immediately due and payable.

If there was any doubt upon this proposition, § 4 is explicit upon this point, which provides that all taxes imposed by this act, unless otherwise provided for, shall be due and payable at the death of the decedent, and if the same are paid within eighteen months no interest shall be charged and collected thereon, but if not interest at the rate of ten per cent per annum shall be charged and collected from the time said tax accrued. Then follows a. curious provision, giving a premium to an executor for violating the law.

It thus clearly appears that the whole theory of the act is that the question of taxation is to be determined by the condition of things which arises immediately after the death of the decedent.

It is true that the learned surrogate suggests that in certain cases the assessment of the tax may be postponed until contingencies happen by which the value of the estate may be ascertained. But there seems to be no warrant whatever in law for such postponement.

We have then in the case at bar a power of appointment over a fund which may be appointed to persons who are not subject to the tax. Therefore the appraisement for purposes of taxation cannot be had until the exercise of the power of appointment, because it is only then that it is ascertained whether or not any portion of the-estate could by any possibility come within the terms of the act. Now, there being no authority conferred in the act for a postponement of the appraisement until the determination of this question, it seems to us clear that the appraisement must speak as of the time of the death of the decedent, and subsequent events by the happening of which uncertainties have become certainties cannot be appealed to in determining whether a tax should be imposed or not.

The case of the Matter of Cager, 111 N. Y., 343; 19 St. Rep., 497, seems to be in entire harmony with this view. The question in that case arose under the act of 1885, which in the respects affecting the tax under consideration is the same as the act of 1887. The will of Gager gave his residuary estate to his wife, to be used and enjoyed and at her disposal during the term of her natural life. One-third of the estate that might remain at the decease of his wife, the testator gave to an adopted daughter during her life and the other two-thirds and the remainder of the one-third he gave to four persons named, who are described as the heirs of said adopted daughter. Held, that upon the death of Gager his wife took a life estate with a limited power of disposition during her life for her use and enjoyment, and any interest in the other beneficiaries was dependent upon the exercise by her of this power of disposition, and that while said gifts were sustained as valid executory devises, and the beneficiaries might eventually take a valuable estate, yet as this contingency rendered the present value of such interest incapable of any correct or reasonably approximate valuation, there was no basis for the imposition of the tax; and it is expressly held that where the question as to whether any property will pass under the limitation over depends upon the will of the first taker, there is no rule by which its value can be determined. It is true that the court held that they were not called upon to determine whether the appraisal of the value of the devises for the purposes of taxation might not be made when they eventually came to the possession of the devisees ; but the intimation is reasonably clear that such was not the then opinion of the court. The idea of postponement of appraisal and payment is entirely opposed to the precise language of the statute. As has already been intimated, the tax becomes due and payable immediately after the death of the decedent, and if paid within eighteen months after the death no interest is charged, and if not interest at the rate of ten per cent shall be charged from the time such tax accrued, namety, from the death of the decedent. And it is further expressly provided that in all cases where executors, administrators or trustees do not pay such tax within eighteen months, they shall be required to give a bond in the form prescribed in another section of the act, for the payment of the tax together with interest. Thus the whole scope of the statute looks to the payment of this tax under severe penalties within the time ordinarily allowed for payment of claims against the estate. The running of interest from the time of the death of the decedent in case the payment is not made within eighteen months is not predicated upon the fact of an appraisement having been made. The party is liable for the tax, and if it is not paid he is liable to the penalty.

We are of opinion therefore that whatever expectancy the appellant had, it was of such a character that it had no market value, and could not be appraised at the time of the death of the decedent, being dependent upon the exercise of a power of appointment by the trustee which he might execute in his favor and might not, and that there was no basis upon which the tax could be assessed ; as has already been stated, the happening of subsequent events not bringing that within the scope of the law which at the death of the decedent was not within its terms.

Upon the question of interest we think the learned surrogate was clearly right. The statute is explicit that if the tax is paid within eighteen months no interest shall be charged; and if it is not paid within that time interest at the rate of ten per cent per annum shall be charged and collected from the time said tax accrued. The next section however provides a partial saving clause. The penalty of ten per cent imposed by § 4 for the nonpayment of such tax it is provided shall not be charged where in cases by reason of claims made upon the estate, necessary litigation or other unavoidable causes of delay, the estate of any decedent or a part thereof cannot be settled at the end of eighteen months from the death of the decedent, and in such cases only six per cent per annum shall be charged upon said tax from the expiration of said eighteen months until the cause of such delay is removed.

The proceedings for the revocation of the probate of the will came within this excepting clause, but it did not exempt entirely from the payment of interest; only reducing the penalty from ten per cent, to six per cent., and postponing the running of interest until the expiration of eighteen months from the death of the decedent.

The order of the surrogate should therefore be reversed as to the tax upon the amount appointed to the appellant, and affirmed upon the question of interest, without costs.

Ingraham and Daniels, JJ., concur.


text:
    In the Matter of Cornelia M. Stewart, Deceased. Appeal of Sarah N. Smith.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    Appeal from order of surrogate assessing collateral inheritance tax.

      W. W. Devine, for app’lt; I. H. Maynard, deputy attorney-general, for resp’t.
   Van Brunt, P. J.

The same questions are involved upon this appeal as were involved in the Matter of Clinch, decided herewith ; and for the reasons stated in the opinion in that case the order appealed from is modified in the same manner, without costs.

Ingraham and Daniels, JJ., concur.


author: Ingraham, J.

text:
    In the Matter of The People ex rel. Louis W. Schultz, App’lt, v. Theodore W. Myer, Comptroller, Resp’t

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    Coroners—New York—Fees.
    It is the duty of the coroners of the city and county of New York to pay over to the city all fees received by them when acting in place of the sheriff, and they are not entitled to receive their salaries until they do so,
    Appeal from an order of the special term denying a motion for a peremptory mandamus to compel the comptroller to pay the salary of the appellant for June, 1891.
    Appellant contends that the fees collected and received by the coroners of the city and county of New York in actions in which replevin writs are issued to them for execution are not payable into the city treasury, but are the personal and exclusive property of said coroners.
    Respondent contends that the coroners must account to the comptroller under § 56 of the consolidation act; that the coroners are officers of the city as well as of the county; that the respondent is not estopped by acquiescence, and that the petitioner has not established a clear legal right.

      D. P. Hays, for app’lt; Theodore Connoly, for resp’t.
   Ingraham, J.

Prior to the year 1878, the coroners of the city and county of New York were paid for their services by fees, regulated by statute. For certain of the services rendered the fees were paid by the county of New York, and when called upon to perform the duties of sheriff they were entitled to receive the same fees as paid for such services to the sheriff and to be paid in like manner.

By chapter 304 of the Laws of 1874, the county of New York and the corporation known by the name of The Mayor, Aider-men and Commonalty of the City of New York were consolidated into one body corporate and politic, and by the second section of that chapter it was provided “ that for all purposes the local administration and government of the city and county of New York, shall be performed by the one corporation aforesaid. All charges and liabilities now existing against the said county or which may hereafter arise or accrue in said city and county of New York and which but for this act would be charges against or liabilities of said county, shall be henceforth deemed and taken to be charges against or liabilities of said corporation or shall be defrayed or answered unto by it.” And after the passage of this act the liability for the fees of the coroners became a charge against the city and county of New York.

By chapter 256 of the Laws of 1878 it was provided that each of the coroners of the city and county of New York after his election should be paid in full satisfaction for his services a yearly salary of $5,000, and that salary and certain allowance should be in lieu of all his fees or compensation theretofore a charge upon the county of New York, or the mayor, aldermen and commonalty of the city of New York.

The effect of this legislation substituted a fixed salary of $5,000 in lieu of the obligation of the city and county of New York to pay to the coroner the fees which prior to that time he was entitled to receive from the county of New York or the municipal corporation, but he was still entitled to receive for his own use the fees paid to him for services rendered which theretofore had not been a charge against either the county of New York or the municipal corporation.

In 1880 an act was passed which was entitled “An act to amend chapter 335 of the Laws of 1873 ” (the city charter), “ and to reduce the burden of taxes to be levied in said city,” known as chapter 521 of the laws of that year. By that act the salaries of certain officers were regulated, and by § 3 of that act it provided as follows:

“ No officer or person who is paid a salary for his services from the city treasury shall receive to or for his own use any fees, costs, allowances, perquisites of office, commissions, percentage, or moneys paid to him in his official capacity; but all fees, costs, allowances, perquisites, commissions, percentages and money so paid or received by any of such officers or person shall be the property of the city, and shall be paid by him into the city treasury; and e.very officer or person who shall receive any fees, perquisites, commissions, percentages, or other moneys which belong to the city and should be so paid into the treasury shall before he shall be entitled to receive or be paid his salary make, under oath, a detailed statement and return to the comptroller, in such form as he may prescribe, showing the amount of all such moneys received by him since the last preceding statement and returns, and shall produce a receipt showing the payment of such sums into the treasury.”

It is clear that the relator was within the provisions of this section. He was an officer,' was paid a salary for his services from thé city treasurer, and the fees paid to him for services rendered as coroner were fees paid to him in his official capacity.

The provisions of this section cannot be restricted to officers that before the consolidation had been officers of the municipal corporation, because the act itself provided for the compensation to be paid to the clerks of the superior court and the court of common pleas and to the district attorney of the city of New York. . Neither of those officers were ever officers of the municipal corporation, and by the consolidation of the city and county all officers whose duties were administrative or governmental within the political division known as the city and county of New York were officers of the one municipal corporation, and the salaries paid to them were paid from the city treasury, and all such officers elected subsequent to the passage of the act of 1880 were subject to its provisions and were entitled to receive the compensation paid to them by the city only upon compliance with its provisions.

This provision of § 3 of chap. 521 of the Laws of 1880 was re-enacted in § 56 of the Consolidation Act. There can be no doubt but that by this legislation it was the intention of the legislature to restrict all public officers in the city of Mew York to whom a salary was paid by the city to such salary as their compensation for the services rendered by them, and that all provisions of law then existing by which any such officer was allowed to retain for his own use any fees by whomsoever paid was repealed, and after the passage of the act of 1880 there was no provision of law by which a coroner of the city of Mew York could legally receive for his own use any fee for services rendered in his official capacity from any person; but all fees paid to him for his services as such coroner or in an official capacity belonged to the city of Mew York.

The re-enactment of § 1 of chap. 256 of the Laws of 1878 as § 1767 of the Consolidation Act, whereby it was provided that the salary and allowance paid to the coroner should be in lieu of all his fees or compensation theretofore a charge upon the city and county of Mew York, must be read in connection with the reenactment of § 3 of the act of 1880 in § 56 of the Consolidation Act, and reading the two sections together they are not at all inconsistent.

The salary paid to him is in lieu of his fees or compensation theretofore a charge upon the city and county of Mew York, but he shall not receive for his own use any fees paid to him in his official capacity, but receive the same for and pay the same to the corporation.

This construction gives full effect to both of the sections of the consolidation act, and continues the policy that was adopted by the legislature on the passage of the act of 1880, in relation to the officials of the city and county of Mew York.

We think, therefore, that the relator was not entitled to receive his salary from the city until he had complied with the provisions of § 56 of the consolidation act, and that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and Daniels, J., concur.


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    Catharine Scott, Adm’rx, Resp’t, v. The Third Avenue Railroad Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    Negligence—Contkibutoiiy.
    Plaintiffs intestate, while attempting to cross defendant’s tracks, was struck by a car and injured so that he died. It appeared" that the view of the track was unobstructed, and the headlight of the car was lighted. Plaintiff who was with the intestate at the time of the accident, testified that both she and he looked both ways, but saw only the car which they allowed, to go by before attempting to cross; but on cross-examination admitted that the only reason that she knew that he looked was that it was perfectly natural for him to do so. Held, insufficient to show the absence cf contributory negligence on the part of the deceased.
    Appeal from judgment entered on verdict and from order denying motion for new trial.

      W. N. Cohen, for app’lt; G. W. Wilson, for resp’t.
   Van Brunt, P. J.

It appeared from the evidence developed upon the trial of this case that the plaintiff and her husband lived on Second avenue, between One Hundred and Twenty-fifth and One Hundred and Twenty-sixth streets, and that on One Hundred and Twenty-fifth street is a railroad upon which cable cars are operated, and that both the plaintiff and her husband had been accustomed to ride upon these cars. On the 16th of May, 1889, the plaintiff and her husband had gone to visit Mrs. Marshall, who lived about two blocks from where they lived, and about half-past nine o’clock in the evening they started to go home, proceeding northward along the west sidewalk of Second avenue. Upon coming to the railroad track on One Hundred and Twenty-fifth street, they looked east and saw a west bound car approaching on the north track and waited just south of the south track for it to pass. As soon as this west bound car had cleared the crosswalk they attempted to cross, and stepping upon the south track were instantly struck by an east bound car, which was only a short distance from them when they attempted to cross. The east bound car could have been seen a long distance before it approached the crossing. Both were knocked senseless and the plaintiff’s husband died from the effects of the shock.

It further appeared that it was a clear night and that One Hundred and Twenty-fifth street is straight, broad and well lighted with electric lights. The colliding car had a headlight and locomotive reflector, and there was evidence from which a jury might find that it was proceeding at a high rate of speed. The eyesight and hearing of both the plaintiff and deceased were good. There was evidence tending to show that although the west bound car was ringing a bell, the east bound car was not; and that the grip-man of the east bound car, with which the plaintiff and her husband collided, was looking to the north and not along the line of the track.

One of the claims presented upon the part of the appellant is that the evidence not only failed to show that the deceased was not guilty of contributory negligence, but such fact affirmatively appeared. And this claim is predicated upon the fact that there is no evidence that the deceased looked before he stepped upon the track for the approaching car; and that the proof is explicit that if he had done so he would have seen the danger and not have stepped upon the track in front of the car.

It is true that the plaintiff swore that both she and her husband looked both ways, and that they only saw the west bound car.

But it is to be observed that upon cross-examination it was shown that it was a mere inference upon her part that her husband looked or even that she looked. She was asked “ How do you know your husband looked ? ” and she answered, “ I think it was perfectly natural for him to look.”

“ Q. That is the only reason you know he looked ? A. Yes.”

It is apparent therefore from the testimony of this witness, which is the only evidence that this precaution had been taken, that she has no recollection whatever that she saw the deceased look for the east bound car.

It appears from the testimony of the other witnesses in the case that these parties were seen standing upon the side of the road apparently talking to each other, and that just as this car was upon them they stepped in front and were almost instantly struck. It being a clear night, the car having its headlight lighted, and there being no obstruction to their vision, it is apparent that if they had looked they must have seen the approaching car, and if, notwithstanding the approach of the car, they attempted to cross the street in front of it, they ran the risk of being struck by it before they could reach a place of safety.

In the case of Fenton v. Second Ave. R. R. Co., 126 N. Y., 625 ; 36 St. Rep., 385, the rule is distinctly laid down that street railways have a preference in the street, and while they must be managed with care so as not to injure persons in the street, pedestrians must yet use reasonable care to keep out of their way.

It is urged that if the gripman had been looking toward these people the accident might have been avoided. But it is clear from the testimony of the other witnesses who were examined upon the trial that the gripman had no reason to anticipate that these people were about to cross immediately in front of his car. He swears that he saw them in conversation ápparently, and that when the car was almost upon them they stepped in front of it, and attempted to cross the track. And the fact which is established beyond question that these parties had hardly crossed the first rail of the track before they were struck, shows that the car was immediately upon them when they attempted to cross. Under such circumstances, the gripman seeing the parties standing there as testified to would have no reason to apprehend that they were going to cross in front of the approaching car.

In the case of Davenport v. The Brooklyn City R. R. Co., 100 N. Y., 632, it was also expressly held that where a party crosses a city railroad track he is bound to use his eyes and exercise vigilance to keep out of the way of the cars upon the track.

In this case, it seems to us, the evidence shows that these persons did not resort to the most ordinary means of ensuring safety in crossing the street, or the accident would never have happened. As already stated, the car was in full Sight. It may be that it was approaching at a very high rate of speed, but that fact in no way interfered with the vision of these parties; and the fact is also established that they were struck almost immediately as they attempted to cross the track.

It seems to us clear that these persons were watching the west bound car and had no thought for the east bound car, and when the west bound car passed they stepped upon the track in front of the east bound car, and were immediately struck.

This uncontradicted evidence shows, as the evidence in Fenton v. Second Ave. R.R. Co., showed, that the accident was due either to the negligence or the misfortune of the deceased only.

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

Ingraham and Daniels, JJ., concur.


author: Daniels, J.

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    William Sperb, Jr., Resp’t, v. Metropolitan Elevated R. Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    1. Railroad—Elevated—Damages.
    In acquiring the right to maintain their structure in the street the railway companies are not bound to make compensation for the incidental injuries produced by the mere running of the trains upon the elevated railway structure, and compensation for the future discharge of smoke, cinders and noxous gases cannot be included as items for compensation to be made for the obstruction of light and air, although past damages sustained on account thereof may be recovered.
    2. Same—Grantee op premises.
    A grantee of premises whose deed reserves to the grantor all rights and causes of action for injuries suffered to the time of the transfer, is not entitled to judgment against the railroad where it is expressly found that no damages were caused to the fee value subsequent to the plaintiff’s purchase.
    Appeal from a judgment recovered on the report of a referee.

      Julien T. Davies and Samuel Blythe Rogers, for app’lts ; Edwin M. Felt, for resp’t.
   Daniels, J.

The plaintiff became the owner of premises situated upon the northerly side of Fifty-third street, 300 feet east-' erly from the northeasterly corner of ¡Seventh avenue, on the 22d of October, 1884. The elevated railway of the Metropolitan Company had been erected and was in operation in front or these premises in Fifty-third street at and prior to the time of his purchase. And it continued to be maintained and operated until the 18th of June, 1887, when this action for damages, and for an injunction restraining the operation and maintenance of the railway, was commenced by the plaintiff Upon the trial before the referee evidence was given tending to prove the facts to be that the basement and first story of the premises were injuriously affected by the elevated railway structure and the passage of the trains upon it, and by the smoke, cinders, dust ana noise occasioned by those trains. And for that the referee concluded the plaintiff to be entitled to recover the sum of $3,000. And there seems to be no substantial ground for holding that the referee erred in adopting this conclusion.

But he further found that the premises had been reduced in value to the sum of $6,000, by the taking and appropriation of the easement of light and air by the defendants’ structure, and its use and operation as a railway for the passage of railway trains propelled by steam locomotives. And that this amount should be paid by the defendants to the plaintiff upon the execution of a conveyance by him conveying to the defendants the right to use, appropriate and obstruct these easements in that manner.

The referee did not decide that for the payment to be made as the consideration of the acquirement of the title the plaintiff was entitled to be remunerated for the noise created by the trains. That was restricted to the damages which it was held the plaintiff was entitled to recover. And under the authorities defining the rights of adjacent owners against these elevated railway structures, that appears to have been a proper item of damages. But the referee was requested to hold and decide that for the acquisition of the right to use and appropriate these easements in the street in front of the plaintiff’s premises, the defendants were required to pay no more than for the obstruction occasioned by the structure itself upon which the railway was maintained, and that all other incidental injuries to the value of the premises should be excluded. The referee overruled this position, and the defendants excepted to the decision to that extent made. And he finally decided that the plaintiff was entitled to recover for the conveyance of these easements, so far as they were used, appropriated and affected by the structure and the trains, the sum fixed by him as the compensation. And he included' as a part of the subjects to be compensated by this sum of money the future passage of the trains, with the smoke, cinders and obnoxious gases found to be produced and discharged by the engines used upon the railway. And to that conclusion exception was taken on the part of the defendants.

Whether these items should enter into the amount to be paid by the railway company for the easements in this manner interfered with and obstructed has not been decided or determined by any finally controlling authority. But it has been held in the case of Fobes v. Rome, Watertown, etc., R. R. Co., 121 N. Y., 505; 31 St. Rep., 828, upon a full consideration of the decisions affecting these elevated railway structures and their use in the city of Hew York, that the adjacent owner of property fronting upon a street, who has no title to the land appropriated to the street, has no right of action against a railway company whose railway has been, legally authorized and operated over the surface of the street itself.

The effect of the decision substantially is, that where the adjacent owner has no title to the land over which the railway is constructed, he can recover no damages for the effect produced upon the light or air, in the operation of the trains passing along the railway structure on the surface of the street, or for its contamination by means of the smoke, cinders or gases discharged by the locomotive. This subject was also considered by this court in Matter of N. Y. Elevated R. R. Co., 36 Hun, 427. And it was there held that inasmuch as a railway through a public street was a lawful structure when it was constructed, maintained and operated under legal authority, that the owner of adjacent premises, having no title whatever to the land in the street, could recover no compensation for the incidental injury occasioned to his premises by that use of the street. That was considered to be the effect of the decision of the court of appeals in the case of Story, and of the other decisions made by that and other tribunals concerning the maintenance and operation of steam railways upon the surface of public streets. In Lahr v. Metropolitan, etc., Co., 104 N. Y., 268; 4 St. Rep., 340, the rights and liabilities of the parties were considered under the decision in the Story case, so far as the item of damages proper to be allowed had been compensated for by the recovery, leaving, however, this other question entirely open for further consideration. And the same is true of the decision made in Drucker v. Manhattan R. R. Co., 106 N. Y., 157; 8 St. Rep., 599. And Abendroth v. Manhattan R. R. Co., 122 N. Y., 1; 33 St. Rep., 475, proceeded upon the adjustment of the same subject of damages. And so, also, did the case of Kane v. N. Y. Elevated R. R. Co., 125 N. Y., 164; 34 St. Rep., 876. But in the decision of this last case it was said, in the course of the opinion of Andrews, J., that “ The court allowed the jury to consider the noise created by the trains of the defendant as an element of damage. If the defendant had the lawful right to operate its trains in the street, such inconvenience as might result to the plaintiff in the enjoyment of his property from the ordinary and usual operation of the defendant’s road would not, in the absence of negligence on its pari, furnish a ground of action.” Id., 186. Which seems to confirm the view that in acquiring the right to maintain the structure in the street the railway companies will not be bound to make compensation for the incidental injuries produced by the mere running of the trains upon the elevated railway structure. And that compensation for the future discharge of smoke, cinders and noxious gases cannot be included as items for compensation to be made for the obstruction of light and air, in the acquisition of the right to maintain the elevated structure and the operation of railway trains upon it. And that the referee therefore erred in including these subjects as objects of compensation to be paid for in the acquirement of the title to the obstruction of these easements of light and air.

Another difficulty, not apparently reconcilable with the conclusions of the referee, arises under his twenty-fifth finding of fact, by which he found that:

“ ITo damages have been caused to the fee value of the premises in question from October 22, 1884, to the present time by the existence and operation of said railroad, but all of such damages were incurred prior to the plaintiff’s purchase.”

And that indicates that the plaintiff himself sustained no depreciation whatever in the value of the premises themselves after he had acquired his title. And if he did not, then there seems to have been no ground upon which he could claim compensation for even this obstruction of the light and air from his premises. For by the deed which was made to and accepted by him there was a clause “ saving and reserving from the hereby granted premises all rights, claims, actions, causes of action and choses in action for any and all injury done to said property up to the time of delivery of these presents, and for any and all damages therefor suffered by their owner,” which, as there had been no other cause of injury or damage to these premises made to appear, must have been intended to include those resulting from the erection and operation of this elevated railway. And if, as the referee has found by this finding, no damages have been caused to the fee value of the premises after the execution and delivery of this deed to the plaintiff, the right to claim compensation for the reduction of their value by means of the railway, and the trains passing over it, appear to have been reserved to the grantor in the deed. For these reasons the judgment seems to have been erroneously recovered, and it should be reversed, and a new trial ordered before another referee, with costs to the defendants to abide the result

Lambert, J., concurs.


text:
    Lena Finelite, App’lt, v Alexander Finelite, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    Motions and obdebs—Relief fbom tebms imposed.
    The only way in which a party can be relieved from terms imposed as a condition of granting a favor is by appeal to the general term, or by application to the same justice who granted the order. An application to another justice for such relief is in the nature of an appeal from one justice to another, and is improper.
    Appeal from order denying motion to be relieved from the terms contained in a previous order.

      G. W. Stephens, for app’lt; Abram Kling, for resp’t
   Van Brunt, P. J.

Although we are of opinion that the terms imposed by the court upon the making of the original order were exceedingly stringent, yet we do not see how an appeal from the terms of the order, or any portion of them, could be made to another special term, which seems to have been the nature of the motion which resulted in the order appealed from. The only way in which a party could be relieved from the terms imposed as a condition of the granting of a favor asked for is by appeal to the general term, or by application to the same justice who held the court at the time the order was made. There is no such practice as allows an appeal from one special term to another upon any question which has been determined by either.

We think, therefore, that as this motion was simply such an appeal it was properly denied and the order appealed from should be affirmed, but under the circumstances without costs.

Ingraham and Daniels, JJ., concur.


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    Jules Bruchard et al., App’lts, v. The Mayor, etc., of New York, Resp’t

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    Pleading—Lien on contbact with new yobk city.
    The complaint in an action to foreclose a lien upon moneys to grow due on a contract made with the city of New York must set forth the terms of the contract between the contractor and the city and the fact of performance, so that it can be seen that any amount was due thereon at the commencement of the action.
    Appeal from interlocutory judgment sustaining demurrer to complaint
    The object of this suit is to foreclose a lien alleged to have been acquired by the plaintiffs against certain moneys alleged to be due from the city of New York to Messrs. O’Brien & Clark, contractors, for building certain sections of the new aqueduct

      L. Laflin Kellogg, for app’lts ; James C. Carter, for resp’t
   Ingraham, J.

To entitle plaintiffs to recover in this action they must allege the making of the contract between defendant and the original contractors; that the plaintiff, as laborer, mechanic, merchant or trader, in pursuance of or in conformity with the terms of such contract, performed labor or furnished materials towards the performance or completion of such contract, and that he has duly filed the notice prescribed by § 1825 of the consolidation act.

Where such a contract is made, such services performed or materials furnished and such notice filed, plaintiff may commence an action to enforce his claim against the amount in the hands of the city department due to the original contractor, and in that action the court must determine the validity of the lien, the amount due from the debtor to the contractor under his contract and from the contractor to the respective claimants.

The fact of the making of the contract and the fact of the performance of the terms of the contract by the contractor must be alleged and proved before the court can determine how much is due to the contractor from the city.

The provision that where money is to grow due a lien upon such money attaches upon the filing of the notice before it is due, does not justify an action to recover that money before according to the terms of the contract it is actually due and payable by the city to the contractor.

Considered in connection with the statute creating this lien, we think the complaint is fatally defective, in that it does not allege the terms of the contract between the contractor and the city, so that it can be seen that any amount was at the time of the commencement of the action due from the city to the original contractor. The contract itself is not set forth in the complaint, nor is its substance alleged in the complaint; all that the complaint alleges is that there was a contract made between O’Brien & Clark and the city to build section eight of the new aqueduct, and that thereupon O’Brien & Clark did enter upon the performance of said work, and that the same is now in process of completion or completed.

From this allegation it is impossible to say that there is any money due from the city to O’Brien & Clark, or that there ever will be any money due from the city to O’Brien & Clark. We think to sustain this action the complaint should set forth the contract as .it would be required to be set forth in an action brought by the original contractor against the city. In other words, the complaint must show that a cause of action existed at the time of the commencement of this action in favor of the contractor and against the city to recover a sum of money due under the contract, upon which sum of money the plaintiff acquired a lien by complying with these provisions of the Consolidation Act.

The plaintiff has no cause of action against the city until he alleges and proves the existence of the indebtedness by the city to the original contractor upon which he has a lien; and the complaint in this action fails to allege any facts from which the existence of such indebtedness of the city to O’Brien & Clark could be inferred.

Judgment affirmed, with costs.

Van Brunt, P. J., and Daniels, J., concur.


text:
    David R. Paige et al., App'lts, v. The Mayor, etc., of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    Appeal from interlocutory judgment sustaining demurrer to complaint

      L. Laflin Kellogg, for app’lts; James C. Carter, for resp’t
   Ingraham, J.

The question presented in this case is the same as that presented in the case of Bruchard v. Mayor, etc. For the reasons stated in affirming the judgment appealed from in that action, the judgment here appealed from is affirmed, with costs.

Van Brunt, P. J., and Daniels, J., concur.