author: FITZGERALD, S.

text:
    In the Matter of Proving the Last Will and Testament of John H. Haviland, deceased.
    (Surrogate’s Court, New York County,
    May, 1896.)
    Wills—Validity—Omission of date.
    A will is not invalid because the date is left blank, as the statute does not require the will to be dated.
    C. Elliot, for proponent.
    Clark Bell, for contestant.
    Samuel R. Taylor, special guardian.
   FITZGERALD, S.

Two wills are presented for probate, one bearing date the 14th of March, 1884, by which the testator leaves everything to his wife, and appoints her sole executrix. The other will is dated the-day of-, 188—, By this latter instrument the testator gives everything to his wife, except that he devises to two of his daughters one-third interest each in certain real estate. The proponents of the latter will allege in their petition, and sought to establish upon the hearing, that the instrument had been executed and should bear the date the 21st day of December, 1885. In support of this allegation, and for the purpose of establishing the paper as the last will and testament of the decedent, the two subscribing witnesses were called,—one, the draftsman of the will, the senior member of the firm of Fraser & Minor; the other, a practicing lawyer associated with that firm. They both testified to all the facts requisite for the purpose of establishing due execution, testamentary capacity, and the absence of restraint and undue influence. Both of these witnesses are unable to testify from memory merely as to the date of the execution of the will. In order to refresh their recollection in this respect, there was exhibited to the witnesses, and subsequently introduced in evidence, the blotter kept by the firm of Fraser & Minor, in which were recorded all entries of transactions from day to day referring to their business. Under date of December 21, 1885, appears the record as follows: “Be Haviland. His will was executed by Stern and Fraser as witnesses.” The entry, an original one, is in the handwriting of Mr. Fraser, and was made in the regular course of business. Mr. Fraser also produced a draft of the will which he states he handed to the testator, who took it away with him, and returned the ' same subsequently with his approval, when it was copied and 1 executed, A circumstance showing that, whatever the date of execution of this latter will, it must have been subsequent to March 14, 1884, is that the testator purports therein ' to devise absolutely and" in fee certain real estate in which, • at the date of the execution of the will of March 14,1884, he only had a life interest. Subsequent to the execution of that will, and on the 27th of June, 1884, Mr.. Haviland’s three children, by a former wife, executed to him a deed of the ' premises referred to, which formed a part of the estate of the decedent’s former wife, the mother of the grantors. The undated will purports to devise back to two of these children a one-third interest each in this identical property. ■' Some doúbts seem to have existed in the minds of counsel for the contestants of this latter will as to the competency of parol proof to establish the date of execution. The Revised Statutes do not require that a will shall be dated. The date may be established or corrected by parol evidence showing the real date of its execution. Schouler, Wills (2d Ed.) 279. If it were permitted to indulge in conjecture, it seems to me that the manner in which the defective date was . inserted is readily explained. But a short time would elapse before the termination of the year, and, in drawing the will for execution, the last word to indicate the date was omitted, in apprehension that it might not be executed ■ until the new year.

It is not necessary for me to determine as to the mutuality of the wills executed by the decedent and his wife on March 14, 1884. Whatever rights Mrs. Haviland may have under ‘ any contract she may be able to establish on the part of her husband to execute mutual wills must be enforced in another tribunal.

Some effort was made on the part of the contestants of the undated will to show that, at the time of its execution, the decedent did not have testamentary capacity. The proof on this point is so meagér, and so utterly inadequate to establish the charge, that I deem it unnecessary to refer in detail to the evidence adduced. A decree may be submitted admitting to probate the undated instrument.

Ordered accordingly.


source: Caselaw Access Project

author: MARCUS, S.

license: Public Domain

text:
    In the Matter of Proving the Last Will and Testament of John J. P. Read, deceased.
    (Surrogate’s Court, Erie County,
    May, 1896.)
    Wills—Undue influence.
    Undue influence on the part of a beneficiary under a will, in procuring testator to make a codicil, is not shown merely by the fact that the beneficiary was testator’s counselor and adviser; that testator was in feeble health when the codicil was made, while the will which it changed was , made when testator was in good health — where such beneficiary was not benefitted by the changes effected by the codicil.
    Edmund P. Cottle, for Octavius O. Cottle, executor and proponent.
    Marshall, Clinton & Rebadow, for Clayton L. Hill, executor, and Rowena E. Hill, contestants.
    Marcy & Close, for George Baltz, treasurer of the county of Erie.
    Frank M. Parsons, Dep. Atty. Gen., for the People.
   MARCUS, S.

There is no contest as to the probate of the instrument dated March 9, 1894, but the controversy is between strangers in blood to the testator, and grows out of the insirument bearing date January 3, 1896, which purports to be a codicil to the will mentioned, and which is contested by Clayton L. Hill and Rowena F. Hill on the following grounds, briefly stated: First, that the instrument offered is not the testator’s last will, nor does the same form any part of the last will and testament of the deceased, and that the alleged execution is not the free, voluntary, or unconstrained act of the decedent; second, that at the time when executed, if ever executed, the testator was not of sound mind; third, that the said paper was not subscribed, published, and attested as and for his last will, or as part of the same, in conformity with the statutes; fourth, the said paper propounded is invalid, and is illegal and void.

All of these objetions, which are general and sweeping, and which were, no doubt introduced for the purpose of allowing the testimony of the contestants to cover every conceivable fact favorable to them that might be revealed or discovered in the course of these proceedings, must fail for the total want of proof, .with possibly the exception of the first, which alone is worthy of consideration. Throughout the entire progress and hearing of this case it seemed clear that the only question to be considered and determined was whether the testator, at the time of the making of the codicil was of sound mind and memory, within the meaning of the law. Upon the argument, however, the counsel for contestants stated, and freely conceded, that the court might have been led astray by the proof which was offered, seemingly for the purpose of showing the testator to have been of unsound mind, whereas the mental capacity of the testator was not, in fact, questioned by the contestants, but the evidence offered was only for the purpose of showing a gradual and sieady mental and bodily decay, and for the ¡mu-pose of showing undue influence on the part of Mr. Cottle in the execution of the codicil, by the coincidence of “four things”: First. “That Mr. Cottle was his general counsel, attorney, and adviser; that it was under his supervision, and he is a beneficiary under it, since it removes obstacles to his receiving provisions for his benefit under the Ardil. Second. That the testator was in feeble health, and weak, mentally and bodily, 'when the codicil was made. Third. That it changes a prior rvill made when the testator was in good health and strong. Fourth, That it changes the purpose shoAvn by a former rvill, and persisted in up to the time of his death,—that is, to prordde for his benefactors, Doctor and Mrs. Hill; and this change is made, without any apparent motive, and apparently without his being cognizant of it, since he continued to treat Doctor and Mrs. Hill with the same consideration as before, and never once alluded to the fact of the codicil being mdae; that this codicil is the more remarkable in that its effect is to punish Doctor and Mrs. Hill in depriving them of their legacies under the aat.11, while those legacies are girren to no one else, no motive for this extraordinary change being even hinted at.”

The position of the contestants is that from these facts more evidence of the formal execution of the codicil ought to be made, and that until proof is given that the codicil was executed by the testator AA'ith full knoAA'ledge of its effect, and while in possession of sound mind and memory, and while fully conscious of what he was doing, probate of the same should be refused. The points raised by the contestants all narrow down to the question of undue influence. “Undue influence,” as used Avith reference to A\*ills, has been defined as “that which compels the testator to do that Avhich is against his aat.11, from fear, a desire of peace, or some feeling Avhich he is unable to restrain.” Schouler, Wills (2d Ed.) par. 22. The influence that will avoid a will on account of undue influence must amount to moral coercion, restrain independent action, and destroy free agency, or the importunity must be such as to constrain the testator to do tint t which is against his desire. Society v. Loveridge, 70 N. Y. 394. The underlying idea of undue influence is that the will of another is substituted for that of the testator nominally acting, and whose act is only the expession of another, so that all question of free agency fails. Any influence, to be material, must be operating, and must actually produce an effect' which is clear. It can never" be inferred from mere opportunity. It must arise in one of two ways,—either from proof, or presumption of law.

In order that a will may be avoided because of undue influence, it must be an influence exercised by coercion, imposition or fraud, which must be proved, but cannot be inferred because of opportunity or interest. Seguine v. Seguine, 4 Abb. Dec. 191. To invalidate a will oh the ground of undue influence, there must be affirmative evidence of the facts from which such influence is to ba inferred. It is not sufficient to show that a party benefited by a will had the motive and opportunity to exert such influence. There must be evidence that he did exert it, and so control the actions of the testator, either by importunities which he could not resist, or by deception, fraud, or other improper means, that the will is not really the will of the testator. Cudney v. Cudney, 68 N. Y. 148. Certain forms of influence, such as suggestion and advice, or solicitation, persuasion, and entreaty, unless the testator is worn out by importunities, so that his will at last gives aAvay, have been held not to. be undue, although the amount of pressure alloAvableahvays depends upon the relation of the parties in each ease, and the strength of the testator’s resistance. In other Avords, the only matter to be determined is, is the influence irresistible? If it is not, the influence is not undue, and this coincidence is immaterial, even though the testator is influenced and finally yields, and the Avill is executed in accordance. The burden of proof has been held almost, if not quite, generally to be upon those Avho allege it; and any one contesting a will on those grounds avIio sets the same up-in his pleadings must proAre such undue influence by a fair preponderance of evidence. Direct proof is neArer required, but alAA’ays may be inferred from other facts proven. The fact of fiduciary relationship alone does not raise a presumption of undue influence, unless combined Avith other circumstances tending to fairly sIioav an imposition. Such avouM be the fact if one in confidential relationship dreAV a Avill or caused it to be draAvn, in his oavh favor, if the testator was of weak mind, or if a person in a close position to the testator made active personal efforts to procure a will in his own favor. What the decree of confidential relationship is, and the extent of confidence reposed, is always to be inferred from the circumstances. As between an attorney and client, the law regards them in positions of confidence, one to the other.

There, are many cases which hold "that where one sustaining a fiducial relation to another, such as trustee, guardian, etc., is concerned in framing that other’s will to his own advantage, the instrument ought to be scrutinized closely. ■ That is undoubtedly true, and all such law is claimed to be: applicable to thi s case, since undue influence is inferred fromi the fact of the fiducial relation of Cottle and the testator ¡ as attorney and client. The relation unquestionably existed, but judicial decisions which declare that the exertion of such influence by one who holds a fiducial relation to another is deemed suspicious can not even be inferred from : the evidence that this codicil was procured to be made and : executed by the undue influence of Mr. Cottle, and as for: direct or positive proof, none appears. This case is unique in the absence of proof, either direct or circumstantial, from which undue influence or influence of any nature can be found. It can hardly be contended that simply because of the fact that Mr. Cottle was the attorney and counselor of Mr. Read, and drafted the codicil, there should arise a presumption of undue influence. I am unable to find any authority for the contention that where an attorney and counselor drafts a will for his client, and is himself named as a beneficiary, such act of itself raises any presumption of undue influence; but, on the contrary, the law requires something more than mere suspicion or.opportunity. There must be some affirmative evidence of undue influence. In 1 Re Smith, 95 1ST. Y. 516, it was held that undue influence must' be proved and can not be presumed; that the mere fact of the principal legatee being an attorney of the testatrix does not create a presumption against the legacy given by the will. Where, however, the fiduciary relation exists, and a change of testamentary intention has taken place, the age, mental and physical condition of the testator, added to the fact that the draftsman of the will took active part in' procuring its execution, is sufficient to require an explanation, and throw the burden of proof upon the proponent.; But we are not considering such a will. While it is true that, by this codicil offered for probate, a change of testamentary disposition took place, it was only in the striking-out of all benefits for the contestants. The instrument bear, ing date March 9, 3894, directed that Mr. Cottle should re_ reive certain benefits. The codicil in no way adds to or diminishes them. The bequests to Cottle are left undisturbed, and not increased, and are the same as the testator intended and willed they should be at the time he likewise remembered the Hills. If any undue influence was exercised on the part of Cottle, it was not in any sense for his -own benefit or increased advantage, so that we are not at all considering even an instrument drawn in favor of an attorney, but simply a new will, withdrawing a bequest to a beneficiary named in a former uncontested will of the deceased.

There is no evidence from which it can be inferred that Hr. Cottle is benefited by the codicil, or that his prospects •of getting what the testator originally gave to him were enhanced by the taking away of what was given to Dr. Hill and Mrs. Hill. This case is absolutely free of any testimony to the effect that Mr. Cottle or any one else exercised or attempted to exercise any influence on the testator in the drafting of this codicil. And even though one .is in the position of confidence, as it is assumed Mr. Cot tel was with the testator, so as to be able to have influenced him directly or indirectly in the drawing of the codicil, such influence must have been effectively exercised to avail the contestants. The mere fact of being in the confidential relation with the testator, and therefore in a position to exert influence, fails, unless the acts are shown. I am unable to find any facts or circumstances from which any undue influence of any kind or nature whatsoever, can be inferred, that would suggest that this codicil does not express the intention of the testator. When it is remembered that the mental capacity of the testator is conceded by the counsel for the contestants, and that there is an entire absence of any form of proofs of any interference by any person with the free exercise of a disposing mind on the part of the testator, the circumstance that the court can not fathom the reasons which may have led the testator to abandon his original intention can be of no purpose.

Unless the law is declared to be that where' a will is drawn by a testator, making a bequest to a person standing in a confidential relation to him, and some years thereafter the testator has a codicil drawn by such beneficiary whereby the disposition of his estate as to others is changed, but the bequest to such beneficiary is neither increased nor other- ; *wise affected, such codicil is void, because of the presumption of unfair dealing or undue influence, then it must be declared that this instrument contains the true will of the decedent. A testator has the right to dispose of his estate in .any way he may deem best. The law does not require him t.o make an equitable will, and he may choose his beneficiaries as well as reject them. His wishes and judgment are sole and supreme. He has the right to make whatever disposition of his property he chooses, however absurd or unjust it may be, if he has capacity and free volition. It is abo pertinent to remember that the bequest to Cottle in the will of the decedent is given in lieu of any charges for services that may have been rendered by Mr. Cottle to the testator that remain unpaid, and that, upon the examination, Hr. Hill conceded that an arrangement had been made between himself and the testator during his lifetime for compensation for his care and services to the testator, and therefore he is presumed to have an adequate remedy to recover .any claim he may have against the estate. The law does not ,require a will to be in accordance with what a testator may have previously declared his intentions to be, even though such declarations were made almost to the moment of his death, assuming, of course, that the testator is mentally sound 'and free from undue influence or fraud being practiced , upon him; nor does the law require the testator to be in the same relative physical and mental condition of strength that he was before he may have changed or added to a previous disposition, always assuming that the testator is of sufficient mind and memory, and not under restraint or undue influence or fraudulent misrepresentation; otherwise, a change of testamentary disposition would be practically barred. It is also to be borne in mind that the testator had no ties of blood, affinity, or marriage, and it seems*, little or no appreciation of friendship, duty, or moral obligation. If it were for the court to determine whether Mr. Read acted fairly or even wisely in making the change effected by his codicil in the disposition of his litigious holdings, it would require no effort to disagree with his, dispositions; for he, undoubtedly, owed to the contestants many of the latter years of his life, by reason of their having taken him from his uninhabitable surroundings to their own home, with its attendant care and comforts. But it is not the province of the court to determine who is best entitled to a testator’s bounty, or whether, if in the place of the testator, under the same conditions and circumstances, a different will would have been made, but only to declare whether the will expresses the wish of the testator, as I am clear it does in this case. I am satisfied, therefore, that the execution of this codicil has been duly proved; and as there is no evidence establishing fraud or undue influence, should be admitted to probate.

Decreed accordingly.


author: DAVIE, S.

text:
    In the Matter of Proving the Last Will and Testament of Augustus Schweigert, deceased.
    (Surrogate’s Court, Cattaraugus County,
    May, 1896.)
    1. Wills—Execution—Recollection op attesting witnesses.
    One of the attesting witnesses of a will executed 18 years before it was offered for probate testified that he did not see testator sign it, but that he remembered testator’s saying that he wanted to go on a journey, and wanted to make a will before lie went; that the draftsman stated in testator’s presence that the paper was testator’s will. On his re-direct examination he stated that his best recollection was that testator signed the will in his presence, and in the presence of the other witness, before the - witness signed. The only recollection of the other witness was that lie signed the will as a witness. The draftsman testified, from his method of doing business of that kind, that the attestation clause, which was complete, except that it stated that testator “ sealed, published, and declared” the will, instead of stating that he “signed” it, was read over to the attesting witnesses before they signed it. Meld, that a due execution of the will was sufficiently shown.

      2. Same—Supplying omitted words.
    A clause bequeathing to certain persons “the sum of one hundred each” refers to money, and, as the omitted word could be no other than “ dollars,” such word will be supplied.
    Frank Chase and W. G. Laidlaw, for proponent.
    W. W. Woodworth and W. K. Harrison, for contestants,.
   DAVIE, S.

The will in question bears date April 29, 1878. The testator died on the 28th day-of December, 1895. No issue is presented by the objections filed or the evidence as to ‘decedent’s testamentary capacity, nor is the question of undue influence involved, but it is asserted on the part of the contestants that the proponent has failed to show a compliance with the statute in the execution of the will, or that decedent was apprised of its contents before its execution The The evidence of the attesting witnesses regarding formalities of execution, as might be reasonably expected in consequence of the long lapse of time, is to some extent indefinite and uncertain. The will was drawn by a justice of the , peace familiar, to some extent, with the preparation and ! execution of wills, and who resided in the vicinity of the decedent. The attesting witness Lints says: “The will was drawn about eighteen years ago. This is my signature to the will. I was at Multer’s office when I signed it. He was a justice. Schweigert came to me, and asked me to go to Multer’s office, to witness his will. I went, and found Boss [the other attesting witness] at the office. He went with me. The will was drawn. I do not remember that I saw Schweigert sign it. I can only recollect one circumstance. Deceased said he and his wife wanted to go on a journey, and he Avanted to make a will before he went. Boss signed it at the same time. I saw him sign it. Multer did not read anything to me, but stated that was Schweigert’s will. Deceased was there when he said that.” On his cross-examination, after speaking of AA'hat deceased had said about going on a journey, the witness added: “That was all I could recall, except that I remember going to Mutter’s office, and signing some paper that was called a will.” On redirect examination he testified; “ My best recollection is that deceased Avrote his name to the will in my presence there, in the office, and in the presence of Boss, and before I signed.” The memory of the other attesting witness, i Boss, AAras even less distinct as to the details of execution. He recalled the circumstance of being at Multer’s office, and signing the will, and he says : The first thing, when I got to the office, I think, a part of the will was read over, and I signed it.” The justice who drew the Avill testified that deceased spoke to him about drawing the will a few days before its execution, and. made an appointment with him for that purpose; and while he says that he has no distinct recollection of the witnesses being present at the time of the execution he testifies: “I know their handAA7riting, and I am satisfied that they vvere there at date of execution of Avill. I have no doubt that it [the attestaton clause] was read over to them at the time, and in presence of deceased. I am willing to SAvear positively that I read this attestation clause to each of the Avitnesses in the presence of deceased, but I testify to that from my method of doing business of this kind.” The examination of each of these witnesses was someAvhat exhaustive, but the substantial portion of their evidence is above set forth, and it is quite apparent that the evidence, unsustained by the surrounding circumstances and the attestation clause, falls far short of being sufficient to establish compliance with the statute. The circumstance of the indistinctness of recollection on part of the1 witnesses is entirely explained by the fact that the will was made in 1878; that it was a transaction in which they had no personal interest, and to which their attention had not been called until proceedings were instituted for probate of the will. Cases of this character have frequently arisen and the courts have held that, where the attestation clause to the Avill is full and complete, it is not always essential that all of the particulars required by the statute to constitute a. Aralid execution of a Avill should be expressly proved. The presumption is in favor of due execution, and a failure of recollection on the part of the subscribing Avitnesses will not, defeat the probate, if the surrounding circumstances, taken' together with the attestation clause, satisfactorily establish ■ such execution. In re Pepoon's Will, 91 N. Y. 255.

The evidence shows that the decedent desired to make a will. He had a substantial reason for so doing. He employed the jus tice to draw the same. He went to the office of the justice on the appointed day, selected and called in each of the attesting witnesses, and told each of them, that he wanted them to go to Multer’s office to sign his will. Multer testifies that lie drew the Avill after consultation ,viih the decedent, and in the manner directed by him. The attestation clause is as follows:

“The above instrument, consisting of one sheet, was at the date thereof sealed, published, and declared by the said Augustus Schweigert as and for his last aaúII and testament, in presence of us, AA'ho, at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto.
“John Lints, Residing at Ashford, Catt. Co.
“H. D. Boss, Residing at Ashford, Catt. Co.”'

It will be seen that this attestation clause is full and complete in every particular, except that it fails to recite that decedent signed the will in the presence of the witnesses. The phrase used is “sealed, published, and declared by the said Augustus Schweigert.” One witness, avIio was familiar Avith the handwriting of the deceased, testified that the signature at the end of the will was that of the decedent. In. fact, there is no substantal controversy about that. One of the attesting Avitnesses, as above set forth, states that, according to his best recollection, decedent signed the Avill in his presence, and in the presence of the other Avitness. The witness Multer was asked the folloAA’ing question: “After looking at the will, can you say that deceased signed it before the Avitnesses did?” To which the Avitness answered, “Yes. I am of the opinion, after a careful review of the authorities bearing upon this question, that this evidence, taken in connection with the surrounding circumstances, establishes, the fact that decedent either signed the Avill in the presence of the Avitnesses, or acknoAA'ledgecl his signature to them.

In the case of Nickerson v. Buck, 12 Cush. 332, Justice Dewey says:

“All that is necessary for him [the witness] to know from the testator is that the signature to the will is his, or Avritten by his direction, - and adopted by him. Hence, if the Avitness be requested by the testator to sign his name to the instrument as attesting Avitness, and the testator declares to the AAÚtness that the signature to the will is his, that is a bundan fly sufficient. But the adjudicated cases go further, and hold that the actual signature may be made knoxvn to the witnesses in other modes than an expressed declaration to the witnesses that the AA’ill is his. Any act or declaration carrying by implication an averment of such fact is equally effectual. Hence it has been repeatedly held that a declaration by a tesiafor to the witness that the instrument is his will, or exren a request by him to the AA’itnesses to attest his will, or other varied forms of expression implying that the same had been signed by the testator, are either of them quite sufficient.”

The same principle Avas also recognized and applied in Ela v. Edwards, 16 Gray, 91.

In the case of Ellis v. Smith, 1 Ves. Jr. 10, the principal question in controversy was Avhether the testator’s declaration before the Avitnesses that the paper was his Avill AvasequiA-alent to signing it before them, and it was held that it AA'as.

In Blake v. Knight, 3 Curt. Ecc. 549, three witnesses had signed the attestation clause. Two of them testified that testator did not sign or acknowledge the signature in their presence, and the other could not say Avhether he did or not, but there were surrounding circumstances indicating a due execution of the will, and it Avas admitted to probate.

In Gaze v. Gaze, 3 Curt. Ecc. 451, deceased exhibited the AA’ill to the Avitnesses already signed and sealed, and either pointed out the places Avhere they should sign, or said, “Put your names below mine.” They signed accordingly, and this-AA’as held a sufficient acknoAvledgment of his signature.

In the Case of Warden, 2 Curt. Ecc. 334, the will had been s:gnod before the Avitnesses came into the room. The Avitnesses were sent for by her. The draftsman produced the AA’ill, and told the testatrix that the witnesses had c. me, to AA’hich she replied, “I am very glad of it. Thank God.” Then the AA’itnesses signed their names, and the court held that the signature AA’as sufficiently acknowledged.

In Re Ware, reported in a note (25 N, Y. 425), one of the attesting witnesses testified before the surrogate that she Avas not requested by the testatrix to sign the will as a witness, and that there Avas no publication of the instrument as her last will and testament; yet, in consideration of the circumstan es attending the execution of the AA’ill, the court admitted it to probate.

In Peck v. Cary, 27 N. Y. 9, it Avas held that the signature of the testator, or his acknowledgment thereof in the presence of the witnesses, and his publication of the instrument as a AA’ill, were proved by the attestation clause and the attending circumstances, though after the expiration of two years none of the witnesses could testify that he saw the testator sign, or heal’d him acknowledge his signature, nor could testify that he himself read or heard read the attestation clause. See, also, Willis v. Mott, 36 N. Y. 486; Butler v. Benson, 1 Barb. 527.

In the case of Theological Seminary v. Calhoun, 25 N. Y. 422, the publication of the will was established by the testimony of one of the attesting witnesses in direct opposition to the evidence of the other.

The Code expressly provides that the proof of a will may be established when a subscribing witness has forgotten the occurrence of its execution, or testifies against it upon proof of the handwriting of the testator and the subscribing witness and of such other circumstances as would be sufficient to prove the will upon the trial of an action. Section 2620. This section received application in Brown v. Clark, 77 N. Y. 369, where the cour¿ held that where the attestation •clause of the will recites all of the facts necessary to constitute a due execution and publication, and is signed by two witnesses, and it appears that the testator executed the will in the presence of the- witnesses, that they were requested by someone to become witnesses to a will, and that they attended at the time in pursuance of such request, the fact that the witnesses, when examined, are unable to recollect that they signed as witnesses at the request of the testator does not authorize a finding that the statute requirements have not been observed. In the absence of evidence contradicting the recital, this lack of memory does not rebut the presumption of due publication arising from the attestation clause and the other circumstances.

In view of these authorities, I am convinced that the will in question ought not to be denied probate in consequence of the uncertainty of recollection on the part of the attesting witnesses.

In regard to the remaining question, as to whether or not the decedent understood the contents of the will at the time of its execution, but little doubt could arise. The deceased was a German, who had lived in this country for many years, and who did not learn English or speak the English language readily; yet it is evident that he could make himself understood in ordinary business transactions, when dealing with those who did not understand the German language. For many years he transacted business at the bank, making his own deposits, and giving instructions regarding the same. He informed Mr. Multer as to what disposition he desired to make of his property. He was a man of ordinary shrewdness and sagacity, and it would be contrary to reason to hold "that he signed the will in question without comprehending its contents.

The objections filed call for a cons ruction of the will in some particulars. By the first item of the will, the testator devises to his widow 50 acres of land from the north end of his farm, that being the portion on which the buildings are located, during life, the same to be accepted by her in lieu ■of dower. He also bequeathed to her one-third of his personal property absolutely. The second item of his will is as follows: “I give and bequeath unto Louisa ICesler, Madaline Michael, Frank Kesler, and Leopold ICesler (children of my said wife by her first husband, Leopold ICelser) the sum of one hundred each,” etc. Contestants claim that this item of the will is void as a testamentary disposition of personal projDerty, because of its uncertainty and indefiniteness,, The difficulty arises from the omission of some word after the word “hundred.” Standing in its present form the bequest is meaningless. It is evident that the scrivener in ad-A'ertently omitted a Avord in transcribing the Avill. Tavo questions arise in consequence £ First. Can the omitted Avord intended to be employed by testator be ascertained from the phraseology of the entire sentence? And, secoiid, is the court authorized to supply such missing word in order to effectuate the intention of the testator? The expression, “ I give and bequeath unto,” etc., “the sum of one hundred each,” indicates a design to make a bequest in money. If its purpose, had been to bequeath to each of the parties named 100 specific articles of personal- property other than money, the term “sum of” Avoidd hardly have been used. If the expression “one hundred relates to money, it can by no pos ible exercise of the imagination be/ construed as meaning other than “one hundred dollars.” It would be farcical to assert that lie might have meant “ one hundred cents ” or “ one hundred shillings.” The character of the omission at once suggests itself upon reading the sentence. If, then, this intention is apparent, it is proper to supply the omission. In construing AA'ills, the court may transpose, reject, or supply Avords so that it Avill express the intention of the testator. Starr v. Starr, 132 N. Y. 158, 43 St. Rep. 556. The meaning of the testator must be ascertained, if possible, lioAveA-er difficult or obscure the language; and it is only after eA'ery effort to discover that meaning has failed that the proArision can be Avholly rejected. Kane v. Astor, 9 N. Y. 113; Pond v. Bergh, 10 Paige, 140. Words of bequest inadvertently omitted may be supplied to effectuate the intention of the teslator. Marsh ax Hague, 1 Edw. Ch. 174; Carter v. Blood-good, 3 Sandf. Ch. 293. Under these authorities, the power to supply the omitted word is ample. A decree will be ira !e admitting the will to probate, and construing item 2 as a bequest of $100 to each of the parties therein named.

The surrogate’s court has no authority to construe the third item of the will, as that relates exclusively to real estate.

Ordered accordingly.


author: WILLIAMS, J. VAN BRUNT, P. J.

text:
    James F. Guilfoyle v. Catherire E. Pierce.
    (Supreme Court, Appellate Division, First Department,
    September 9, 1896.)
    Judgment—Amendment.
    Where the complaint in an action to rescind a contract of sale made by-defendant to plaintiff and to compel a reconveyance by defendant of real estate to plaintiff was dismissed on the merits, and judgment entered directing a receiver, who was appointed to take possession of the property, to convey such real estate back to defendant, the judgment may be amended so as to direct the receiver to convey it to a third person, to whom defendant, before entry of the judgment, had transferred her right.
    Appeal from trial term, New York county.
    The action was brought to cancel a contract made between plaintiff and defendant, by which plaintiff bought a livery stable from defendant, and to set aside and cancel two leases,, a certain chattel mortgage, and to compel defendant to reassign a certain bond, and to reconvey certain premises, situated in the city of Brooklyn, all of which plaintiff claims, to have paid for said livery stable. The ground on which such relief was asked was that plaintiff was induced to purchase the livery stable by reason of false and fraudulent-representations made by defendant. A receiver was appointed by the court to take charge of the property in litigation. Judgment was rendered in favor of defendant dismissing the complaint on the merits, and the receiver was directed by said judgment to reconrey the premises in the city of Brooklyn to defendant, and to assign said mortgage to her, and also that he file his account as receiver. This judgment was affirmed by the appellate division. 38 N. Y. Supp. 697. The order appealed from denied a motion to amend the judgment so as to direct the receiver to convey the real estate in Brooklyn to Frances M. Pierce, to whom defendant had conveyed her rights before the judgment was entered.

      T. M„ Tyng, for appellant.
    Franklin Bien, for respondent.
   WILLIAMS, J.

The part ot the order appealed from, should be reversed, and an order made directing the receiver to convey the property to the transferee of the defendant. It was a proper order to make in the case, unless somebody having an adverse interest should make an objection. The respondent 'had no interest to make any such objection. He had no interest whatever in the property. The plaintiff’s wife was not a party to the action and had no right to object to the order. The order could not, in any event, have injured her, because she is fully protected by the lis pendens filed by her in the action. The order should therefore be modified by striking out the provision denying this part of the motion and by inserting a direction to the receiver to make a conveyance to Frances M. Pierce, the defendant’s grantee. The appellant should have costs of the appeal.

RUMSEY and O’BRIEN, JJ„, concur.

VAN BRUNT, P. J.

-I dissent from the opinion of Mr. Justice WILLIAMS, I do not think there was any power in the court to amend the decree entered by another judge in a substantial particular. It might have been proper practice to have applied at the foot of the decree for a further and different direction, but there was no power in the court to amend the decree. I further dissent upon the ground that the application was entirely unnecessary. If the defendant in this action desired that this property should be conveyed to some other person after it had been conveyed to her by the receiver, she might have made the conveyance herself. It was, therefore, entirely unnecessary that the court should be called upon to examine this application for the purpose of determining as to whether it was proper upon this record to make the order in question. The order should be affirmed.


author: PER CURIAM.

text:
    Corn Exchange Bank v. Bartolome Bossio.
    (Supreme Court, Appellate Division, First Department,
    July 31, 1896.)
    Attachment—Withdrawal—Right to order oe vacation.
    The fact that an attachment may he withdrawn does not defeat defend-, ant’s right to an order vacating it.
    Appeal from special term, New York county.
    Action by the Corn Exchange Bank against Bartolomé Martinez Bossio. From so much of an order as denied a motion to vacate a warrant of attachment against defendant, issued on the 7th day of December, 1895, defendant appeals.
    Antonio Knauth, for appellant,
    John M. Bowers and Latham G. Reed, for respondent.
   PER CURIAM.

It is conceded that the first attachment, namely, that of December 7, 1895, fell because, of the failure to serve the summons as required by law. Upon the 13th day of May, 1896, the defendant served papers upon a motion to vacate this attachment, specifying as one of the grounds of the motion that the terms of the order of publication had not been complied with. Upon the 15th day of May, 1896, the plaintiff’s attorneys notified the defendant’s attorneys and the sheriff that the plaintiff withdrew the attachment. Still later, namely, May 19th, 1896, the sheriff returned the attachment with this indorsement: uThe within attachment has been withdrawn.’’ The plaintiff now insists that, as fhe attachment fell by operation of law, and especially in vieiv of its formal withdrawal, the motion to vacate was futile and unnecessary. It is, however, the settled practice not to leave the question of the existence or nonexistence of the attachment under such circumstances open upon the record, and dependent upon evidence, but to enter a formal order in accordance with the facts and the legal consequences following thereupon. It was held in Betzmann v. Brooks, 31 Hun, 271, that, although the attachment had become inoperative by reason of the omission to serve the summons, yet the defendant was entitled to an order definitely declaring that to be the fact. The order in that case denying the application was accordingly reversed, and the attachment vacated. The same practice was .adopted in Blossom v. Estes, 22 Hun, 472, affirmed 84 N. Y. 614, Indeed, this question of jurisdiction has in all the cases been determined upon motion to vacate. Taylor v. Troncoso, 76 N. Y. 599; Mojarrieta v. Saenz, 80 N. Y. 549; Gatlin v. Ricketts, 91 N. Y, 668. The defendant was entitled to a formal order giving legal effect upon the records of the court to the plaintiff’s withdrawal.

The order should be reversed, with $10 costs and disbursements, and the motion to vacate the first attachment granted, with $10 costs.


text:
    James McIntyre v. The Journal Company.
    (Supreme Court, General Term, Third Department,
    May, 1896.)
    Libel and slander—Libelous publication.
    A newspaper article stated that the Albany County Penitentiary was a gold mine, which furnished a corruption fund for the use of a certain political party, and that that fact explained why they “fought so desperately” to retain plaintiff, who was superintendent of the penitentiary, in office ; that such party had used the power of the court for iniquitous purposes, and that it would not be strange if they should do so again; that the reports of the penitentiary showed that there was “ juggling with the accounts ;” that it was generally believed that plaintiff was a rich man, though he was not so when he went into office; and it concluded by stating that “ the whole prison system is rotten to the core.” Held, that such publication was libelous, as charging plaintiff with maladministering his office for unlawful purposes.
    Appeal from special term, Rensselaer county,.
    Action by James McIntyre against the Journal Company for libel. From an interlocutory judgment overruling a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, defendant appeals.
    ■ The complaint alleged that plaintiff for several years had been the superintendent of the Albany County Penitentiary, the convicts in which were hired out under contracts made by plaintiff, as such superintendent, for the benefit of the county; and that plaintiff received the money under such contracts, and was required by law to deposit with the treasurer of the county the balance remaining after paying certain expenses. The complaint also set out the alleged libelous article, ivhich, after stating resolutions of the penitentiary commissioners directing a transfer to the credit of the county of $70,000 from the earnings of the penitentiary, was as follows:
    “For years the Journal has contended that the Albany Penitentiary was a gold mine that furnished the sinews of war and the corruption fund which the local Democracy hsu used to debauch the electors of this toivn. This explains why they fought so desperately to retain James McIntyre in office, for the removal of their creature from the superintendency of the institution means that they will be deprived of the means which caused them to buy so many elections. They are so desperate over this prospect that the public would not be surprised if they should resort to other measures to prolong their hold on the penitentiary. Before this, they have used the power of the court for iniquitous purposes, and it would not be strange if they should do it again. The figures contained in the above resolution are highly significant, and the question naturally arises, how does it come to pass that the penitentiary commissioners are able, in the spring of 1895, to turn over $70,000, when, in 1894, only a surplus of $27,000 was reported? Has the surplus ever before exceeded $30,000? In view of existing conditions, these inquiries are pertiment, and may lead to an examination which will show conclusively why the desperate ringsters are so unwilling to give up their hold on this building. The Journal has contended time and again that there was juggling with the accounts of the prison. This seems to be indicated in the reports of the years 1875 and 1894. In these two years the number of prisoners in the penitentiary was the same. Yet in 1875, when high prices were the rule, it cost only $75,000 to maintain the prisoners, and $28,000 was turned in to the county. In 1894, with prices down to bed rock, it cost $100,000 to maintain the same number of prisoners, and only a surplus of $27,000 was reported. These figures indicate that somebody was making a good thing out of the penitentiary, and it was not the tax payers of Albany county either. It is generally believed that Superintendent McIntyre is a rich man, though, when he went into office he was not burdened with an over-supply of this world’s goods. Did he make this money out of his salary? If he made it out of the proceeds of the work of prisoners, he has done an illegal thing. The fact is, the whole prison system is rotten to the core, and to prevent shameful revelations, and at the same time retain hold of the means that has provided a great corruption fund, there is reason to believe that the ringsters will make a further fight.” 3 ....
    Arthur L. Andrews, for appellant.
    James W. Eaton, for respondent.
   PER CURIAM.

Construing this article as we think it would be understood by people generally (Turton v. Recorder Co., 144 N. Y. 144, 63 St. Rep. 69), we have no doubt that it is libelous. It charges the plaintiff, in substance and effect, with maladministering his office in the past for unlawful purposes, and with being such a corrupt character that he is ready and willing to repeat and continue the like maladministration, and so facile an instrument in the hands of certain “ringsters” that he is willing to prostitute his office to subserve their unlawful purposes. We consider the •■article as a whole. It is so written as to leave the impression upon the mind of the reader that the plaintiff has been,, and still is, an officer who has criminally abused, and is willing to continue to abuse criminally, hi's very responsible office.

The interlocutory judgment is affirmed, with costs, with the usual leave to the defendant to answer upon payment of costs in this court and below.

All concur.


text:
    Ellen M. B. Connolly v. Manhattan Ry. Co. et al. Mary De Blaine v. Same.
    (Supreme Court, Appellate Division, First Department,
    June 29, 1896.)
    Appeal—Stay DtritiN» pendency.
    Under Const. 1895, art. 6, § 9, providing that no unanimous decision of the appellate division of the supreme court that there is evidence supporting the finding of fact or a verdict not directed hy the court shall he re viewed hy the court of appeals, a stay will not he granted pending an appeal to the court of appeals from a judgment which has been unanimously affirmed by the appellate division.
    Appeal from special term, New York county.
    Actions by Ellen M. B. Connolly against the Manhattan Railway Company and the Metropolitan Elevated Railway Company, and by Mary A. Durup De Balaine against the same defendants. From ah order denying a motion by defendants for stay in each case pending an appeal to the court of appeals, defendants appeal.
    The opinion of- Mr. Justice LAWRENCE at special term is as follows:
    Motions are made in each of these cases for an order staying the operation of the injunction contained in the judgments therein pending an appeal to the court of appeals, and extending the time of the defendants to make the tenders and payments provided for by said judgments until such time as may be reasonable af ter the decision of the appeal which the defendants have taken to the court of appeals. The granting of such motions would be a matter of course, in ordinary cases. But in these casesit appears that each of the judgments after modification as to damages, were unanimously affirmed by the appellate division; and, inasmuch as the new constitution (article 6, sec. 9) provides that no unanimous decision of the appellate division of the supreme court that there is evidence supporting or tending to sustain the finding of fact on a verdict not directed by the court shall be reviewed by the court of appeals, there is no necessity for a stay, because, upon the face of the papers, the ap-. peal must be fruitless. Motions denied, with costs.
    J. T. Davies, for appellants.
    H. A. Forster, for respondent Connolly.
   PER CURIAM.

Order affirmed, with $10 costs and disbursements, in each case, on opinion of Mr. Justice LAWRENCE at special term.


text:
    Matter of the City of Rochester.
    (Supreme Court, Appellate Division, Fourth Department,
    June 17, 1896.)
    Boundaries—Following stream.
    Where a deed describes the land conveyed as beginning at a certain point, and “running thence east, to the top of the bank of the Genesee river; thence southeasterly, along the top of the hank, to a point that a line parallel with tUe north line will contain ten acres, * * * containing ten acres, and no more,”—the course “along the top of the bank ” follows the meanders of the bank.”
    Appeal from special term, Monroe county.
    Application by the city of Rochester to acquire land for park purposes. From an order confirming the report of the referee to whom the cause was referred to ascertain the rights of claimants to the awards made, William H. Robinson, one of the claimants, appeals.
    The opinion of P. M. FRENCH, Esq., the referee, is as follows:
    In 1859, five persons, who were the heirs at law of Nathaniel Hall, owned the premises taken by the city for park purposes in this proceeding, including the premises in dispute, as well as other adjoining land. The premises in dispute, the title to which is claimed by William II. Robinson, and also by Mary Martin, are situate between the boulevard leading from Rochester tóCharlotte and the top of the high bank on the west side of the Genesee river. In 1861, the said heirs at law of Nathaniel Hall conveyed to Samuel Donnelly a portion of the land owned by them, by the following description: “All that tract or parcel of land situate in the town of Greece, being in township number one, beginning at the northwest corner of lot No. 2; running thence east, to the top of the bank of the Genesee river; thence southeasterly, along the top of the bank, to a point that a line parallel with the north line will contain ten acres; thence westerly, along said line, to the River road, known as ‘Lake Avenue’; thence northerly, along the line of said highway, to the place of beginning—containing ten acres, and no more.” By mesne conveyances, the claimant Mary Martin has succeeded to the title so conveyed to Donnelly. The top of the high bank referred to in this description is irregular, and the question to be decided here involves the location of the east line of the premises. If that line follows the course of the top of ihe high bank of the river in all its irregularities, ihe disputed land was conveyed to Donnelly, and the claim of Mary Martin is substantiated. If, however, on the contrary, that line is a straight line, as is claimed by the claimant William H. Robinson, such eastern boundary would exclude and cut off the disputed land, which contains about one acre, and projects easterly, to follow the course of the river at that point, and to which the said William H. Robinson claims title through mesne conveyances from the said heirs of Nathaniel Hall, all executed and delivered after the deed to Donnelly. The description in the deed to Donnelly, above quoted, is unambiguous, very plain, and easily understood, and there would seem to be no room for conjecture as to the intent of the grantors, or for construction of the language used so far as the eastern boundary is concerned. Applying the elementary principle that distances, courses, and quantities must yield to natural monuments and objects, the east line of the premises conveyed to Donnelly must be held to be the top of the high bank, following all its irregularities. The course “ thence southeasterly ” is described and accurately fixed by the Avoids folloAving, “along the top of the bank,” Avhieh described a natural monument or course marked on the land itself. The exception to this rule concerning natural monuments, referred to in Higinbotliam v. Stoddard, 72 N. Y. 99, and similar cases, has no application here, because, if for no other reason, the course of the eastern boundary in the Donnelly deed is not accurately given in the deed; it is simply “southeasterly,” Avliieh might be any course betAveen due south and due east, were it not for the following language in the same sentence, defining and locating it as “along the top of the high bank.”
    As I understood the argument of counsel for the claimant William H. Robinson, it is that the south line of the premises conveyed to Donnelly Avas, at the time of the deed to him, practically located on the ground by actual survey, and then agreed upon as it is noAV located, and that it is located too far south to include “ten acres, and no more,” Avithin the boundary lines. To sustain this argument, Avo things are necessary; First, the west and north boundary lines must be taken to be the center of the adjacent highways, and not their exterior lines; and second, to show title to the disputed land in the claimant William H. Robinson, the boundary line to be changed must be the easterly, and not the southerly, line,—that is, the easterly boundary line, instead of following the high bank, must be a straight line extending from the northern to the southern boundary, and reaching its southern limit at a point distant about one hundred feet westerly from the top of the high bank. Various measurements have been made, and maps prepared and given in evidence, showing that, if that were done, the included land would be 10 acres.
    Much evidence has been taken up in the attempt to locate the starting point in the Donnelly deed, which is the northwest corner of lot '2, in the center of Lake avenue, and the Handford Landing road, or at the intersection of their exterior lines. The question is not without its difficul ties, but the controlling fact which has led me to believe that the northwest corner of lot 2 is not in the center of those highways is that the parties to the Donnelly deed, after causing the 10 acres to be surveyed at the time of the conveyance, located the south line of the premises so far south that it is necessary to exclude the highway in order to include no more than 10 acres, and at the same time have the east line follow the top of the high bank, The description used does not in terms include any portion of the highways, unless the northwest corner of lot 2 is in the center of the highway. Such language is used that, under the authorities, the presumption would be that the highways were intended to be conveyed; but that presumption is rebutted in this case, because it appears that by excluding the highways, and following the top of the high bank for the eastern boundary, and leaving the southern line as located, just 10 acres are included. Mott v. Mott, 68 N. Y. 253; Hussner v. Railroad Co. .96 N. Y. 2,3. And, second, if any line is to be changed, it must be the southern line. That is the line which is to be so drawn as to include "ten acres, and no more.” In no event could the eastern line be diverted from the top of the high bank, because it is located there by the express terms of the deed. The intention of the heirs of Nathaniel Hall to so locate that line, and their belief that they had so done, and that the southeast corner of the land conveyed to Donnelly rested on the high bank, is shown beyond a doubt by the fact that in May, 1865, about five months after their deed to Donnelly, they conveyed to James IL„ Shanley lands adjoining these on the south, and described the easterly boundary of Shanley’s land as extending "northerly, along the top of said [high] bank, to the southeast corner of lands sold by the parties of the first part of Samuel Donnelly; thence west, along said Donnelly’s south line, to the River road, known as ‘Lake Avenue.”* If Donnelly’s southeast corner were about 100 feet westerly from the high bank, of course the description in the Shanley deed would be erroneous. The fact that the top of the high bank of the river at these premises has been changed by means of quarrying carried on there, or for any other cause, can make no difference in the location of the land conveyed. Such fact simply renders proof of location more difficult now than it otherwise would have been. Donnelly and his grantees have always occupied to the high bank, and it must be held that Mary Martin owned the land in dispute, and is entitled to the money representing it, which has been deposited to await the result of this reference.
    Another fact which is perhaps not controlling, but is at the same time not Avitliout its significance, is that if counsel for the claimant William II. Robinson Avere right, and the south line must be removed about 40 feet northerly to include Avith the higlnvays just 10 acres, still the disputed land would not belong to Mr. Robinson, because of the Shanley deed, above referred to, which has for its northerly boundary in the Donnelly deed; and, further, there is no other party to this proceeding claiming to oavii this land.
    Argued before HARDIN, P. J., and ADAMS, WARD, and GREEN, JJ.
    Martin W. Cooke, for appellant.
    T. D. Wilkin, for respondent.
   PER CURIAM.

Order affirmed, Avith costs and disbursements, on the opinion of the referee.


text:
    Alfred M. Douglass v. Sally Maria Hazen.
    (Supreme Court, Appellate Division, Fourth Department,
    June 17, 1896.)
    Wills—Construction—Amount necessary for devisee’s support.
    Where a will provides that testator’s real esiate shall he applied to the use of his widow, if necessary for her comfort, the necessity is to be determined by her.
    Appeal from special term, Chautauqua county.
    Action by Alfred M. Douglass, as executor of the Avill of Daniel A. Hazen deceased, against Sally Maria Hazen, to -obtain a judicial construction of the Avill of plaintiff’s testator. From a judgment entered on a decision dismissing the complaint, with costs to defendant, to be paid by plaintiff personally, plaintiff appeals.
    The opinion of Mr, Justice SPRING, at special term, is as follows:
    Daniel Plazen was the owner of a small farm in the town of Mina, in the county of Chautauqua. He died in 1887, leaving the defendant, who had been his life companion for nearly 50 years, and no descendants. He made his will, which was admitted to probate; and the plaintiff, who was a neighbor of testator, and the defendant, were named as executors. The plaintiff assumed he had a right to the immediate occupancy of this little farm, and promptly took possession of it, exercising control OArer it, to the exclusion of defendant. That continued for the period of six years, Avhen defendant succeeded in acquiring control of the farm, and plaintiff brought this action to construe the will, and in assertion of his right to the possession and control of the real estate of' which decedent died seized. The will does not vest in him any title to the farm during the lifetime of the widoAW The devise to him is explicitly limited to such part as may remain after her death. No authority whatever is vested in the executors, so that plaintiff cannot maintain his action on the assumption of the creation of a trust. While no specific-words, as contended for by plaintiff’s counsel, are essential-to create a trust, yet the intention of the testator to Arest a farm must clearly appear in the instrument, and there is no language in this Avill from which such a construction can be spelled out. It was the obvious intention of the testator to make suitable provison for his AvidoAV so far as his small estate Avould permit, and he did this first by the bequest of his feAV dollars of personal estate, and then by permitting her “to draw from the real estate,” if necessary fo0r her comfort. She is the one to determine that necessity. In re Grant (Sup.) 16 N. Y. Supp. 716; Smith Ar. "Van Ostrand, 6-1 N. Y. 278. That the necessity exists in this case is quite apparent. She has no other property, is in the decline of life, and cer tainly should have whatever property a fair construction of her husband’s aaoLI accords to her.
    The complaint must be dismissed, with costs against the executor personally, as the small patrimony should not be depleted further to aid the plaintiff in his attempt to Avrest it from the defendant.
    Van Dusen & Martin, for appellant.
    Ottaway & Munson, for respondent.
   PER CURIAM.

Judgment affirmed, on the opinion of SPRING, J., delivered at special term, with costs against the appellant personally.


text:
    Albert C. Beebe v. Richmond Light, Heat and Power Co., Limited, et al.

    (Supremo Court, Appellate Term, Second Department,
    June 23, 1896.)
    Parties—Right to intervene—Interest acquired after judgment.
    One who acquires an interest in mortgaged premises after judgment of foreclosure is rendered can not intervene as a defendant in the foreclosure action.
    Appeal from special term, Richmond county.
    Action by Albert O. Beebe against the Richmond Light, Heat & Power Company, Limited, the Electric Power Com-¡>any of Staten Island, Albert B. Boardman, as receiver of the Electric Power Company of Staten Island, Erastus Wiman, and David Bennett King, as assignee for benefit of creditors of Erastus Wiman and the Holland Trust Company, to foreclose a mortgage made by the Richmond Light, Heat & Power Company to the Holland Trust Coni2>any, in trust, to secure an issue of (6150,000 of bonds. From an order denying the ap2>lication of Austin B. Fletcher, who was the assignee of certain claims against the Electric Power Company of Staten Island, to intervene in the action and be made a party defendant thereto, and from an order denying an aiijilication to direct Albert B. Boardman, as receiver of said Electric Power Conijiany, to appeal to the court of ajijieals from the order affirming the decree of foreclosure (38 N„ Y. Sujip. 395, affirming 35 1ST. Y. Supp. 1), said Fletcher and the Electric Power Company of Staten Island, and Erastus Wiman, respectively, apiieaL.
    Albert Reynaud, for appellants Electric Power Co. of Staten Island and Erastus Wiman.
    A. B. Fletcher, in pro. per.
    Geo. A. Black, for respondent.
   PER CURIAM.

The first appeal is from an order of the special term denying the application of the ap2)ellant Fletcher to intervene in tins action, and to be made a jiartv defendant thereto. The affidavit of Mr. Fletcher shows that he is the owner, by assignment, of unsecured claims against the Electric Power Company of Staten Island, the owner of the equity of redemption. It further shows that on February 14, 189(5, he acquired, by 2">urchase at a receiver’s sale, all the property, real and personal, of said company. Judgment was entered in this action, which is for the foreclosure of a mortgage, on the ISth day of November, 1895. We think the application was properly denied. Had the appellant acquired title to the mortgaged property pending the action he doubtless would have the right to intervene. But his title accrued subsequent to the rendition of the judgment which established the rights of the par ties, and his title was subject to the lien of that judgment. In a case of fraud a judgment operating injuriously to the appeallant’s rights would doubtless be opened, and the appellant allowed to intervene and defend, but this action was defended vigorously and in good faith by the Electric Power Company. From the judgment rendered against it (35 N. Y. Supp. 1) an appeal was taken to this division of the court, and the appeal argued, the present appellant being on the defendants' brief. We affirmed the judgment on the 7th of April, 1896 (38 N. Y. Supp. 395), and the application of the appellant was not made until after our decision. To suffer the apellant to now intervene, would be to permit the whole matter to be again li Ligated. If such practice is to be permitted it would be possible, by successive transfers of the property, to prolong indefinitely any action of foreclosure.

The appellant claims that the judgment is irregular, because prior to its rendition the Electric Power Company^ had been dissolved by a decree of the court. If this be so, then the appellant can bring his action in ejectment to recover the property; for it is settled by authority that, where the owner of the equity of redemption is not a party to a decree in foreclosure, the foreclosure is void, and the purchaser does not become even a mortgagee in possession. Howell v. Leavitt, 95 N. Y. 617.

The appellant further claims that, while the judgment provided that only chattels or personal property acquired before the date of the execution of the mortgage should be sold under the decree, the referee has sold chattels acquired since that time. This question cannot be determined by opening the judgment, or making the defendant a party to the action. The action by the referee has in no wise prejudiced the appellant’s rights. If the referee has sold property not covered by the terms of the judgment, the appellant may recover the same by replevin, or sue in trover for their conversion.

The order appealed from should be affirmed, with $10 costs and disbursements.

A second appeal is from an order denying an application to direct Albert B. Boardman, as receiver of the Electric Power Company, to appeal to the court of appeals from the order of affirmance of the decree in foreclosure made by this division of the court in April, 1896. It appeal’s by the affidavits that notice of the decree was served on the receiver,. and that he took no appeal therefrom to this division of the court. The time for appeal by him is now lapsed. As he did not appeal to this division of the court, he, of course, can not now appeal from the order of affirmance to the court of appeals.

The order appealed from should be affirmed, with $10 costs and disbursements.


text:
    Mary A. Hatch v. Matilda Gillette.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    Contracts—To pat money at death—Implied promise.
    An instrument which “requests” money to be paid to p'aiutifl: at the maker’s death, for value received, and directs that it shall he paid before anything else, implies a promise that the amount named shall he paid to-plaintiff at the maker’s death, and is an undertaking by him that his estate shall be charged with the payment of it.
    Appeal from special term, Yates county.
    Action by Mary A. Hatch (formerly Mary A, Chase) against Matilda Gillette, as executrix of the will of Caleb W. Bishop, deceased, on a written instrument executed by defendant’s testator. From an interlocutory judgment entered on an order overruling a demurrer to the complaint, defendant appeals.
    The opinion of Mr. Justice BRADLEY, at special term, is as foHows;
    The action is upon a written instrument executed by the defendant’s testator, of which the following is a copy, to wits “$1000. Penn Yan, July 23, 1883.
    At my death I request to be paid to Mary A. Chase one thousand dollars for value received if she is my wife this note is void if I shoidd die before she is my wife this is to be paid in full with interest this is to be paid before anything else. “ C. W. Bishop.”
    The plaintiff alleges in her complaint that such instrument was made and delivered by the maker of it to the plaintiff for a good and valuable consideration; that she did not become his wife; that his death was followed by probate of his will and the issuance of letters testamentary to the defendant, who declined to recognize the alleged claim of the plaintiff, but rejected it, and refused to refer the matter.
    The question presented is not entirely free from doubt. ' The paper, in terms, contains no express promise to pay. It is urged on the part of the defendant that the request and. direction expressed by tlie testator import a testamentary gift, and that such is the effect to which the instrument is entitled. That contention is not supported if a promise by its terms is implied, because it is alleged that it was made for a valuable consideration. The main question, therefore, is whether or not the testator, by it, promised that the amount be paid to the plaintiff at or after his death. The paper, in. any view, is not a promissory note. But the fact that it is not such is not important if it contains a promise to pay the plaintiff the sum mentioned, since it not only states that it was made for value received, but it is alleged to have been for a valuable consideration, executed and delivered by the testator to the plaintiff. If it may be so construed as to import a promise of the testator to pay such sum to her, the instrument may be treated as the undertaking of the maker that the sum be paid at his death, and that, his estate be charged with the payment of it. Worth v. Case, 42 N. Y. 362; Carn wright v. Gray, 127 N. Y. 92, 38 St. Rep. 56. His intention, as there manifested, was that it should be then and so paid; and it may be observed that he not only requested, but directed, that it be then paid, and this was founded upon a consideration received by him, the testator. The direction to pay at his death was, in practical effect, addressed to his personal representative to pay after his decease. And I think it may be treated as if he had, by words to that effect expressed in an instrument, charged himself with the duty to pay a sum certain for a valuable consideration received by him. Thus viewed, it imports that he owed the plaintiff the sum mentioned. This acknowledgment of indebtedness is equivalent to a promise to pay such sum to her. Elder v. Rouse, 15 Wend. 218; Kimball v. Huntington, 10 Wend. 675.
    If these views are correct, the complaint alleges an undertaking of the testator to pay to the plaintiff a debt which the defendant is required to recognize as valid, and pay, if he has assets with which to do so. And the demurrer should be overruled, with leave to the defendant to answer over within 20 days, on payment of the costs of this demurrer.
    Argued before HARDIN, P. J., and FOLLETT, ADAMS, WARD and GREEN, J J.
    M. A. Leary, for appellant.
    Huson & Dwelle, for respondent.
   PER CURIAM.

Interlocutory judgment affirmed, with costs, on the opinion of BRAD ELY, J., delivered at special term, with leave to defendant to withdraw the demurrer, and to answer upon the payment of the costs of the demurrer and of this appeal.


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    Queen City Bank v. Fred W. Hudson et al.

    (Supreme Court, Appellate Division, Fourth Department,
    June 17, 1896.)
    Action on note—Answer—Denial of plaintiff’s title.
    A denial in the answer that the payee of the note sued on “for value Indorsed and transferred said note to plaintiff, as alleged in said complaint,” is insufficient to put plaintiff’s title in issue,, as the indorsement and transfer are not denied, but only that they were made for value.
    Appeal from special term, Erie county.
    Action by the Queen City Bank against Fred W. Hudson and Sarah E. Short on a promissory note, of which defendants were maker and indorser, respectively. Judgment was ordered for plaintiff, on the ground that the answer of defendant Hudson, who alone appeared and defended, was frivolous, and defendant Hudson appeals.
    The opinion of Mr. Justice SPRING, at special term, is as follows:
    The action is on a promissory note made by the defendant Hudson to the order of his co-defendant. The complaint alleges that the payee, “ for value, and before the maturity of said note, duly indorsed and transferred the same to the plaintiff, which thereupon became, and still is, the sole, true, and lawful owner thereof.” The averment of denial of defendant Hudson, who alone answers, is as follows : “That he has no knowledge or information sufficient to form a belief as to whether or not said defendant Sarah E. Short, for value, indorsed and transferred said note to said plaintiff, as alleged in said complaint, or otherwise, and therefore denies the same.” The contention of the defendant is that this is a denial of the indorsement and transfer of the note to plaintiff, which is an issuable averment. Taylor v. Smith (Sup.) 8 N. Y. Supp. 519; Bank v: Inman, 51 Hun, 97, 5 N. Y. Supp. 457. The vice in the denial is that it does not deny the indorsement and transfer, but that they were made for value, which is an immaterial averment. Whether the plaintiff’s title came by gift, or was based upon a valuable consideration, is unimportant in this case; but the significant inquiry is as to whether it obtained title by indorsement and transfer from the payee, and that fact is not covered by the quoted allegation in the answer. If the defendant possessed knowledge of the indorsement and transfer of this note, no indictment for perjury could be based upon the denial, for he could say that he simply denied that the indorsement and transfer were for value, and an inspection of the answer would sustain this contention. Nor does the phrase “or otherwise” shield defendant from the defective pleading, for that limits the consideration of the transfer; that is, defendant has no knowledge whether the transfer was made for value or otherwise, whether with or without consideration. The averment is skillfully drawn to place stress upon the quid pro quo, and evade any denial of the facts which vest title and possession in the plaintiff, as alleged in the complaint. See Morrill v. Morrill, 26 Cal. 288-292; Frasier v. Williams, 15 Minn. 288 (Gil. 219).
    The complaint, after alleging the indorsement and transfer, avers that thereupon the plaintiff became, and still is, the true and lawful owner and holder thereof. While, ordinarily, such an allegation is a conclusion of law, it does show the basis of the holder’s title to be the transfer and indorsement specifically set forth. The fact that the answer fails to deny this possession or title is significant in stamping the pleading as an evasive one, and confirms the construction I have given to the denial that it was cunningly framed, not to test the question of the plaintiff’s title, but to edge in a controversy over an immaterial averment.
    The defendant’s counsel cites several authorities in support of the proposition that an averment in the form of a negative pregnant, following the language of the complaint, is good. That may be true where an inspection of the pleading shows the design of the defendant is to put in issue a material allegation of the complaint. It is not then so important in what form the denial is couched, if the scope of the allegation is obvious. The infirmity here descends a stratum below the mere form in pleading, for to my mind it is prepared, not to deny in any manner the indorsement and transfer, but that it was based on value. I am aware that, where the defendant has no knowledge or information sufficient to form a belief as to a material allegation set forth in the complaint, a qualified denial setting forth such lack of knowledge or information is permissible; but in that case, as in every other, the detail must be specific, and unequivocally put in issue material allegations in the complaint. Under such a qualified denial, the defendant certainly cannot be allowed to incorporate in his answer an evasive averment merely for the purpose of delay, and I am thoroughly impressed that such "was the ' intention in interposing the answer in controversy.
    Judgment is ordered for plaintiff, on the ground that the answer is frivolous, with $10 costs.

      F. Greiner (J. W. Russell, of counsel), for appellant.
    Marcy & Close (William L. Marcy, of counsel), for respondent.
   PER CURIAM.

Order affimed, on the opinion of SPRING, J., delivered at special term, with $10 costs and disbursements.


text:
    Matter of Estate of Sarah H. Green.
    (Supreme Court, Appellate Division, First Department,
    June 29, 1896.)
    Transfer tax—Property conveyed to trustee.
    A conveyance of personal property to a trustee to collect and apply the income to the use of the grantor as long as she should live, and after her death to divide the property among certain persons, becomes effective on the execution of the deed and the delivery of the property, though the deed also provides that it “ may at any time be modified or vacated by an instrument in writing to be executed by me [grantor] and by the said trustee,” and such property is not taxable under the transfer tax law.
    Appeal from surrogate’s court, New York county.
    Appraisal of the estate of Sarah H. Green, deceased, for taxation under the transfer tax law. The surrogate held that property was not taxable, and the comptroller appeals.
    The opinion of Surrogate FITZGERALD is as follows:
    This is an appeal from an order entered herein fixing the transfer tax. The decedent died in the city of New York, where she resided, on the 21st day of May, 1893. She left a will, dated January 30, 1889, and a codicil dated February 1, 1893, both of which were admitted to probate prior to her death, and on February 14, 1889, she executed and delivered to a trustee a trust deed, by which she assigned, transferred and delivered to him as trustee, certain securities. This trust deed provided that the trustee and his successors should hold the bonds in trust to collect and receive the income and interests thereon, and of all investments thereof, and apply the same to the use of the said decedent as long as she should live: and from and after her death the trustee was tó divide and pay over the securities and proceeds thereof in equal shares amongst certain nieces named. That said deed also contained the folloAving provision: “ (3) Pro Added, hoAvever, that this instrument may at any time be modified or vacated by an instrument in writing to be executed by me and by the said trustee or his successor or successors.” The trustee was empoAA-ered by the said deed to dispose of the securities and all investments of the same, and to reinvest the proceeds in his discretion. The securities referred to in the trust deed Avere thereupon deliArered to the trustee, and have ever since remained in his possession and under his control. On the 14th of November, 1890, the deed above mentioned was modified by written agreement, executed by the said decedent and trustee, so as to provide that the share of one of the nieces should be kept in trust for her by the trustee during her life, and the principal, upon her death, should be paid to her issue when the said issue should reach twenty-one years of age. It was further modified by an agreement executed by the decedent of the said trustee on the 28th of October, 1891, by providing for the disposition of the respective shares in case of the death of the beneficiaries without issue. During the lifetime of the said decedent the trustee collected the income of the securities, and paid the same over to her periodically. The appraiser reported (an order was entered in conformity therewith) that the transfer of the property under the trust deeds referred to was made in contemplation of the death of said decedent, or was intended to take effect in possession or enjoyment at or after her said death, and that the said property is subject to the payment of the tax imposed by law. The propriety of the ex parte order entered on the appraiser’s report must be determined by reference to chapter 399 of the Laws of 1892, the láw in existence at the date of the decedent’s death. That law has recently been construed by the court .of appeals in Ee Seaman’s Estate, 41 N. E. 401, and a reference to the opinion in that case will show that the transfer in the case at bar can only be held liable to taxation upon one of two assumptions: First, that it was a gift mortis causa; or, second, that it was a conveyance in contemplation of death, to take effect upon the happening of that event, or reserving a power of revocation as well as the possession or enjoyment during lifetime of the grantor. It will hardly be claimed that the transfer in question constituted a donatio mortis causa, for it lacks the essential requisite to such a gift of having been made in apprension of death, and its effectiveness being dependent upon that event. The discussion is therefore necessarily confined to a consideration of whether the transfer was to take effect upon the happening of the death, or whether a power of revocation was reserved in the instrument, as well as the possession or enjoyment of the property during the lifetime of the donor. I ain of the opinion that the transfer became effective upon the execution of the deed and the delivery of the securities in conformity therewith, and that the donees mentioned therein take a vested interest, liable, of ourse, to be defeated by their failure to survive the lifetime of the don- or, or to any modification that might be agreed upon under its terms between the trustee and the donor. It was, therefore, the perfected transfer in the nature of a gift inter vivos, and not taxable. In re David’s Estate. It is claimed by and on behalf of the state that the power of revocation reserved in the deed rendered the transfer in its nature incomplete and ambulatory. It will be observed, however, that this power to revócate or modify required the assent of both parties thereto. The trustee stands in the same position as the donor. If the trustee desired to modify the instrument, he may do so only with the consent of the donor; and if the donor wishes to modify the instrument, she could do so only with the consent of the trustee. For all practical purposes, such a provision in the deed might have been omitted, for it simply states what would have been the rights of the parties thereto under the law. As between the parties to the transaction, the effect of a gift, if completely executed, is to effectually transfer the full title and ownership of the property from the donor to the donee, as much so as if the article had been sold for a valuable consideration. It is not, then; in the power of either the donor or donee to revoke it without the consent of the other, 8 Am. & Eng. Enc. Law, 1339, and cases cited. It is only when something remains to be done by or on behalf of the donor, which is not done before his death, that the gift fails to take effect. Submit order accordingly.
    B. F. Dos Passos, for appellant.
    C. G. Frelinghuysen, for respondents.

      The decision in Re David’s Estate, in surrogates’s court, New York county, May 16, 1895, is as follows : “Fitzgerald, S. Transfers by deed are taxable only (1) when made in contemplation of the death of the transferror, or (3) are intended to take effect in enjoyment after the death of the transferror. The transfer herein is in the nature of a gift inter vivos, the taxation of which was not contemplated by the act, chapter 399 of the Laws of 1893.”

   PER CURIAM.

Order affirmed, with cos's, on opinion of the court below.

IN GRAHAM, J., taking no part.


author: PER, CURTAIL

text:
    Herman T. Koener et al. v. Charles P. Henn.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    Sale—Recission by buyer—Breach of contract.
    A breach by the seller of a provision of the contract, that he will not, for four mouths, sell similar goods to any person other than defendant, is a ground for the recissionaof the contract by the buyer, though the stipulated time for the payment expired within the four months.
    Appeal from special term, Erie county.

      Action by Herman T. Iioener and Charles E. Hayes against Charles P. Henn to recover the sum of $225 for pictures alleged to have been sold and delivered by plaintiffs to defendant. The complaint was dismissed, and plaintiffs appeal.
    The opinion of Mr. Justice BRADLEY at special term is as follows:
    By agreement of date March 2, 1895, the plaintiffs undertook to sell and deliver to the defendant, and the latter to purchase, 25,000, No. 512, dog pictures, at the price of $225, to be paid for in thirty days from time of delivery. In the agreement was the provision that plaintiff should sell none in the city of Buffalo for the period of four months from the date of such delivery, except to the defendant. The defense is founded upon the charge, supported by the evidence, that the plaintiffs did, within such time, sell similar dog pictures to another person in the city of Buffalo. Thereupon defendant called the attention of plaintiffs to such violation of the agreement, and notified them that he rescinded the agreement, and that the 25,000 dog pictures so delivered were set aside for the plaintiffs, and held subject to their order. It appears that they were so set aside and held. This was within thirty days after the property had been delivered by the plaintiffs to the defendant, and before this action was brought to recover the price. The question presented is whether or not the breach of the contract on the part of the plaintiffs enabled the defendant to rescind the agreement, and thus furnish a defense. The stipulated time for payment by the defendant expired before that within which the plaintiffs were required by the ter.ms of the contract to observe their stipulation not to sell to any person in Buffalo other iban the defendant. That condition or provision cannot, therefore, be treated as a condition precedent to the right of action to recover the price. Tipton v. Feitner, 20 N. Y. 423; De Kay v. Bliss, 120 N. Y. 91, 24 N. E. 300. It is, however, a general rule that an executory agreement which is entire may, upon a substantial breach by one of the parties be rescinded for that reason by the other, when it can be done in toto, and the parties put in statu quo. Weaver v. Bentley, 1 Caines, 47; Meade v. Insurance Co., 51 How. 1; Giles v. Edwards, Term R. 181; Hunt v. Silk, 5 East, 4419 In the present case the contract was executory, and part of the consideration of the purchase was the plaintiffs’ stipulation that they would not, within such term, give opportunity to any other person in the city of Buffalo, by sale to him, to come in competition with the defendant in the use of the advertising novelty in question. The plaintiffs disabled ,themselves from performance on their part of the contract in a respect which may have been deemed material to the beneficial purpose of the purchase. And when the plaintiffs did, by such sale to another, deny to the defendant the benefit of that provision, he was at liberty to treat such sale as a substantial breach of the contract, prejudicial to him, and on that ground to rescind it, if he was then able to restore to plaintiffs fully what he had received from them, and thus place them in the same situation in repeat to the subject of the sale in which they were at and immediately before the time of the delivery of the goods. This the evidence on the part of the defendant tended to prove, and the conclusion is permitted that the defendant had in the meantime made no use of any of them. It was nevertheless necessary for the defendant to proceed promptly to rescind the agreement, to render it effectual. The conclusion was warranted that, under the circumstances, he did so with the reasonable promptitude and diligence essential to accomplish it. The cases cited by plaintiffs’ counsel on the subject of remedy when the stipulations of a contract do not constitute cohditions precedent Avere those in whch they Avas no restoration to place the parties in statu quo. In such ■case the remedy for breach is an action for damages. There seems to have been no ruling at the trial to the prejudice of the plaintiffs. The judgment should be affirmed
    F. M. Inglehart, for appellants.
    Strebel & Corey, for respondent,
   PER, CURTAIL

JUDGMENT affirmed, with costs, on the opinion of BRADLEY, J,5 delivered at special term.