author:
      Learned, P. J.:
      James, J.

text:
    GEORGE C. CHIPMAN and others, Appellants, v. CHARLES C. MONTGOMERY, Surviving Administrator, etc., and others, Respondents.

      Construction of will—who cannot maintain action for—Executor—when chargeable as trustee of personal estate.

    A mere pecuniary legatee cannot maintain an action to obtain a judicial construction of a will. He should sue for his legacy, or take proceedings before the surrogate to compel the payment of it.
    An heir at law or devisee, claiming a mere legal estate, cannot come into a court of equity to ask a construction of a will. He should bring ejectment.
    If, in any case, an action to obtain a judicial construction of a will can be maintained by one entitled as distributee, against an executor holding personal property, on the ground that the same is held by him in trust for the persons to whom it is bequeathed by the will, and, so far as these bequests are invalid, for the distributees, under the statute, it must be alleged in the complaint and proved upon the trial that the executor has in his possession, when the action is brought, personal property held upon such trusts.
    Appeal from a judgment dismissing the complaint herein, entered upon the trial of this action at the Special Term.
    This is an action brought to obtain a judicial construction of the will, or wills, of John S. Chipman, deceased. The plaintiffs are some of his heirs at law and next of bin. Some of the plaintiffs are also legatees under the will or wills. The plaintiffs aver that they are in doubt as to the time construction of the wills, and as to the validity of the bequests and devises, and as to the rights of the parties. They pray a judicial construction, and an accounting, and, pending the action, an injunction. >
    John S. Chipman duly made a will, dated December 28, 1854, and another, dated September 14, 1860. Each of these disposed of the whole of his property. In the general scope, that is, except a modification as to legacies and the use of the word “ heirs ” in one place in the second will, the two wills are the same. A codicil to the latter modifies a legacy. The testator died September 10, 1862. The wills and codicil were proved October 22, 1860.
    By the first will several of the plaintiffs had pecuniary legacies given to them severally. By the second, legacies were given to these plaintiffs, of amounts different from those in the former will. One legacy was omitted, and a pecuniary legacy was given to another of the plaintiffs. The executrix, in two instances, paid the larger legacy; once, a legacy given by the first, and again, a legacy given by the second will. One of the claims urged on the argument, is, that the court should declare that these legacies were cumulative, and that the legatees were entitled to both.
    After the legacies, each of the wills gives-the residue of the estate to “ my beloved wife, Sarah R., and to my three infant children, Mary, Harriet and Susan B., jointly * * * to them and their heirs and issue forever.” It provides for requiring from the widow a release of dower. It then declares: In case of the death of my said wife, or of one of the said infant children, without issue from said children, or either of them, the said property devised to them jointly shall vest in the survivor or survivors of them; but in case of the death of the four, without issue from the children, the property shall vest in the children by my first wife or their [heirs] or representatives.” Besides this, there is a power to the acting executor to lease or sell real or personal estate, beneficial to the estate, or necessary to the support of the said infant children, and a power to execute proper and necessary leases and conveyances during the minority of said children.
    At the death of the testator, there survived his widow, who died intestate January 3, 1870, and the following children and grandchildren : By his first wife, George C. Chipman, plaintiff, his son; Charlotte C. Sherman, plaintiff, his daughter; Mary H. Ford, plaintiff, his granddaughter; George S. Chipman and John C. Chip-man, plaintiffs, grandsons. By his second wife, Mary C. Shepard, defendant, his daughter; Harriet M. Wright, defendant, his daughter ; Sarah B. Chipman, defendant, his daughter, an infant. Said descendants were the only heirs and next of kin of John C. Chip-man, deceased. Mary C. Shepard has lawful issue, a son, born November 19, 1873. Harriet M. Wright has • lawful issue, a daughter, born June 6, 1873.
    This action was commenced in June, 1873. The Special Term, on the trial, dismissed the complaint, with costs.

      Edward C. James, for the appellants.

      L. W. Russell, for the respondents.
   Learned, P. J.:

By the first will, George 0. Chipman had a legacy of $500; by the second, of $300. By the first will, Charlotte C. Sherman had $200; by the second, $600. George C. Chipman has received $500; Charlotte C., $600. The plaintiffs now claim that these legacies were cumulative. However that may be, I see no right which these parties, as mere pecuniary legatees, have to bring a suit for the construction of the will. They should sue for their respective legacies, or take proceedings before the surrogate to compel the payment. Nor does it seem to me that, as to these legacies, they have a "joint right of action. This remark applies to any other pecuniary legacies, if there be any others, which have not been paid. The wills were proved in 1860, and this action was not commenced till 1873. Nor do the plaintiffs aver, as a cause of action, the non-payment of any legacies, or the demand for payment of the same. They ought not, therefore, to maintain this action, merely on the question whether or not the legacies were cumulative.

Aside from this question of the cumulation of the legacies, it seems to be of little consequence whether the former will should be deemed revoked by the latter or not. The residuary clause, which is the clause really in controversy, is identical in the two wills, except that the word “ heirs ” is in the second will at one place (as shown above in brackets). It cannot be thought, however, that the addition of this word changes the meaning. There is, then, to be examined, only this residuary clause, and the claim of the plaintiffs in respect thereto. The plaintiffs’ claim, briefly stated, is, that the power to lease and sell, in this residnauy clause, made an express trust in the wife (the acting executrix), investing her with the estate during the minorities of the three infant daughters; that therefore the residuary devise and bequest were void, as suspending the absolute ownership of personal, and power of alienation of real estate, during these minorities; that therefore the estate vested in the heirs at law and next of kin. And further, that this residuary devise and bequest is void, on account of the life estates in joint tenancy, and the contingent remainders, irrespective of the illegal suspension under the alleged trust; and that therefore the estate vested in the heirs at law and next of kin.

It is to be noticed, then, that the plaintiffs do not claim as cestuis que trust, under the provisions of the will, or as trustees. But they claim adversely to the provisions of the will, which, as they allege, create a trust. They claim as heirs at law and next of kin. So far as the real estate is concerned, it seems to be settled that the heir at law or devisee, claiming a mere legal estate, cannot come into a court of equity to ask a construction of the will. He should bring ejectment. (Walrath v. Handy, 24 How., 352 ; Onderdonk v. Mott, 34 Barb., 106 ; Woodruff v. Cook, 47 id., 304; Post v. Hover, 33 N. Y., 593; Bailey v. Southwick, 6 Lans., 356.) These plaintiffs claim that, by reason of the invalidity of the residuary clause, the real estate passed to the heirs at law, including themselves. This is a question of legal title, to be tried by a jury.

An action for judicial construction is exceptional. In such an action the court acts, as it were, the part of adviser of the parties. And the ground of such an action is, that some person, usually the plaintiff, .but some times the defendant, charged with an express trust, is at a loss to know how to perform it. The action should not be extended beyond its strict limits, because litigation is tempting when both sides are paid out of the fund. Generally it is better, as in other actions, that parties should litigate to enforce positive claims, and at the peril of costs. (Smith v. Rockefeller (10 S. C. [3 Hun), 295.) When parties have acquiesced in a will for ten years, it is doubtful whether the _ court ought not to leave them to their ordinary rights of action.

It is said that, in regard to personal estate, a rule must apply somewhat different from that applicable to real estate; that the executor always takes the title to personal estate as a trustee; that, so far as the provisions of a will are valid, he holds it as trustee for the persons to whom it is bequeathed^ and, so far as invalid, for the distributees under the statute; that a court of equity has general jurisdiction of trusts; that, therefore, an action for construction of a will may be brought against an executor holding personal property, by one entitled as distributee. (Bowers v. Smith, 10 Paige, 193.) Assuming this doctrine to be correct, its application must depend on the fact that the executor has in his possession, when the action is brought, personal property, held thus in trust either, under the provisions of the will, for the legatees, or, if the provisions are void, then for the distributees, under the statute. Now, on examining the complaint herein, it will be found that there is no allegation that Montgomery, the surviving administrator de bonis non, with the will annexed, of Chipman, has any personal property in his possession. It is, indeed, alleged that, when the letters testamentary were issued, there was a large amount of personal property. But that was in 1863, ten years before the suit was commenced. It may have been disposed of in the payment of debts. All the allegations of the complaint, on the matter of the personal property, seem, as far as can be judged, to be denied by the answer. The justice who tided the cause distinctly omitted to find that personal property remained unadministered at the death of Mrs. Chipman, and made no finding that Montgomery, the administrator de bonis non, had any personal property in his hands. On looking at the case, no proof seems to have been made as to any peisonal property now in the hands of the administrator unadministered. There is a stipulation that John C. Chipman left a certain amount of personal estate, but that is qualified by the statement that this admission is not to be construed to charge any of the defendants with any sum.” In the face of this qualification, and of the finding of the justice, and after the lapse of ten years from the granting of letters on the will, it would not be our duty to assume, without proof, that there was any personal estate now unadministered. It is not a reply to this objection to say, that, if the executor or administrator has improperly applied the personal estate, he is liable. If an action were brought against the executor or administrator, charging him with having applied these alleged trust funds to certain parties, while they rightfully belonged to the plaintiffs, in such an action the actual present possession of trust property might not be essential. But the present is an action for the construction of a will, for directions to the executor or trustee as to his future conduct. The ground of the action is that the trustee has, in the future, some duties to discharge, as to which he needs the advice of the court. The party, then, as a material matter, should show that there are trust funds now actually in the trustee’s hands, to be disposed of in the future under the trust, express or implied.

Much of the plaintiffs’ argument implied that, as a matter of fact, the controversy respected real estate. The plaintiffs urged that a power to lease and sell property showed that there was a trust. Now, so far as personal property is concerned, that argument is not needed. An executor, Chancellor Walworth said, in the case above cited, always takes the title to personal estate as a trustee. But as to the real estate, the argument was pertinent. Because, unless executors have power to receive the rents and profits of lands, they take no title (1 R. S., [m. p.] 730, § 75); and it was argued that a power to lease implied a power to receive rents and profits (Tobias v. Ketchum, 32 N. Y., 319); and that therefore the executors had a trust, and that the trust was void. Whether this was sound, or not, I do not say. But it was an argument applicable to real, not to personal estate. And indeed 'it may be said that the whole course of the plaintiffs’ argument was to prove that the provisions of the residuary clause created an express trust, and not to claim that an executor, simply as executor, held the personal estate as a trustee. I notice this line of argument, on the plaintiffs’ part, as evidence that, as would also seem from the proof, the controversy was really as to real estate. And as to real, estate, as was said above, the heir at law, claiming a mere legal estate, cannot bring an action for construction of the will.

In my opinion, therefore, these plaintiffs, as mere pecuniary legatees severally of a few hundred dollars, could recover their legacies, if unpaid, in a simple way, and ought not, especially at this late day, to maintain an action for construction of the will.

As heirs at law, if the plaintiffs have any • title to the real estate, it is, on their own view, a legal title vesting in them on account of the invalidity of the residuary devise. As owners of a, legal title, they cannot maintain' such an action as this.

In respect to personal estate it is. not alleged, nor proved, nor found, that there is any unadministered.

There is therefore, no need of this action to advise the administrator, as trustee, how to administer; and the action is unreasonably late. On the construction of the residuary clause and the alleged trust, I express no opinion.

The Special Term was fight in dismissing the complaint, with costs. But no construction should have been given to the will, lest future actions should be prejudiced.

The judgment appealed from should be modified, without costs of the appeal to either party.

James, J.

(dissenting):

The jurisdiction of a court of equity, of an action for the construction of a doubtful or disputed clause in a will, is incidental to that over trusts, and exists only where the court is moved on behalf of an executor, or trustee, or cestui que trust, and to insure a correct administration of the powers conferred by the will. (Bailey v. Briggs, 56 N. Y., 407.) Hence, when the will creates no trust estate, or powers in trust over the real estate, one claiming merely as an heir at law cannot maintain such an action. (Post v. Hover, 30 Barb., 312, 324; 33 N. Y., 593, 602.) But if the will does create a trust estate, or powers in trust over the realty, then the heir at law, although not named in the will, may maintain the action, for' in such case, if the devise of the estate subject to the power is void, the grantee of the power is trustee for the heir at law; or, if the devise of the estate in trust is invalid, there is a resulting trust in favor of the heir. (Bowers v. Smith, 10 Paige, 194, 200.) The right of the heir to maintain such an action was fully established in a very recent case in this court, and that judgment was affirmed in the Court of Appeals. (Kiah v. Grenier, 1 N. Y. S. C., 388, 390; 56 N. Y., 220.)

As to the personal estate, the next of kin may always maintain such an action, for the executor takes title "to the personalty as trustee, so far as the will is valid, for the legatees, and so far as it is invalid, for the next of kin; and the correct administration of his trust requires that it should be determined in whose famor it is to be administered, whenever the matter is one of doubt. (Bowers v. Smith, supra.)

The foregoing remarks apply to actions where the construction of the will is the only relief sought. It frequently becomes necessary to construe a will in determining actions brought to obtain other or further relief, such as for am accounting, partition, injunctions, etc. In all cases, therefore, where the plaintiff is entitled to maintain an action for some recognized mode of equitable relief, of which the court has jurisdiction, and the construction of a will is a necessary incident to affording the relief sought, such construction may be given. (Post v. Hover, 30 Barb., 312, 324.)

In this case, the will creates powers in trust over the real estate, and, as it seems to me, an express trust. The testator also left a large amount of personal estate, and, in the absence of any proof that it has been expended, lost, or used up, it presumably remains, especially as it was the duty of the trustee to preserve it; and so late as 1870 new administrators were appointed to administer the trust, and are found by the court to have duly qualified and assumed its duties. The plaintiffs are heirs at law and next of kin of the testator. The will, or wills, plainly require a judicial construction. Under the rules above stated, the plaintiffs would, as such heirs at law, if next of kin, be entitled to maintain an action solely for the construction of these instruments, in order that the trusts, or powers in trust, both as to the realty and personalty, might be correctly administered.

But this action is not brought solely for a construction of said, instruments. Indeed, such a construction is merely a necessary incident to the principal relief sought, to wit: an accounting and final settlement and division of the estate. The court has jurisdiction of the action entirely irrespective of the construction of the wills. Assuming the wills to be valid in every provision, the plaintiffs are entitled to an accounting, and to have the whole estate discovered and preserved, for they are named in the will as the ultimate residuary devisees and legatees, in the e.vent of the death of the children‘of the second wife without issue; and it is only by such an action that they can compel the preservation of the estate to await the contingency. (Studholme v. Hodgson, 3 P. Wms., 300, 303, 304.) The fact that some of the children have had issue born does not affect their right of action. It only makes the contingency more remote. The issue may die before its parent, and the parent may die without issue; and in that event, the limitation over, if valid, would take effect. Again, assuming the wills to be invalid, the estate belongs to the heirs at law and next of kin, and in such case they are entitled to maintain an action for an accounting and division of the estate. It is only in the event that such a construction is given to the wills as to cut off the provisions in favor of the plaintiffs in the residuary estate, and vest the whole -thereof absolutely in the children of the second wife, that the plaintiffs are not entitled to' an accounting. But to arrive at such a conclusion it is necessary to construe the said instruments.. And hence, the plaintiffs have the right to maintain this action, and have the said wills construed as incidental to affording the further relief sought; and it) under such construction, they are entitled to any further relief, it should be awarded; or, if not, it should be denied.

The Special Term construed the wills, and, under such construction, decided that the residuary estate was the absolute property of the children of the second wife. It thereupon dismissed the complaint, with costs against the plaintiffs. Assuming that this construction given to the wills was correct, it was error to dismiss the complaint, for the judgment giving such construction should be allowed to stand as the decision of. the case. And it was also an error to award costs against the plaintiffs, for the will confessedly required construction, and the plaintiffs, being in one event the residuary devisees and legatees, were entitled to it. Under such circumstances, equity always requires the estate of the testator, who made the doubtful or obscure will, to pay the expense of ascertaining its legal effect. (Kiah v. Grenier, 1 N. Y. S. C., 388; Oxley v. Lane, 35 N. Y., 340, 351; Smith v. Smith, 4 Paige, 271.) There is nothing in this case to take it out of the operation of the established rule.

But I entirely dissent from the construction given these instruments by the Special Term.

As to the revocation of the first will by the second, the surrogate had disposed of that question. He admitted both wills and the codicil to probate, as wills of real and personal estate, and as, taken together, forming the last will and testament of the testator. This is conclusive upon all the parties, as a former adjudication. (Baille v. Butterfield, 1 Cox, 392, 393; Morrell v. Dickey, 1 Johns. Ch., 153, 156.) But it still leaves open the question as to what construction is to be given to the three instruments, when so taken together.

As to the money legacies, the law is well settled. They are presumed to be cumulative, unless the contrary intention is clearly expressed. (Hooley v. Hatton, H. & W. Lead. Cases in Eq., 285 ; Dewitt v. Yates, 10 Johns., 156-158.) The right of the legatee to several legacies, bequeathed by different instruments, is not repelled by circumstances which only raise a mere balance of an argument that the legacies are substitutional. The primary and not the residuary legatee is entitled to the benefit of the doubt the form of the bequest has created. (Lee v. Pain, 4 Hare, 236; Wilson v. O’Leary, L. R. [7 Ch. App.], 454.) In this ease there is no evidence of intention sufficient to overcome the presumption; and, as both instruments have been established, we are bound to give full force and effect to the former, except so far as it is irreconcilably inconsistent with the latter. (Brant v. Wilson, 8 Cowen, 56; Nelson v. McGiffert, 3 Barb. Ch., 158.) As to the money legacies, therefore, so far as any matter concerning them may enter into this case, they are to be construed as cumulative, and not substitutional.

The residuary clauses in both wills are identical, and their legal construction is the important matter to be determined; In this we are to be guided by the intentions of the testator, as gathered from the language of the instruments and the extrinsic facts known to him. It is plain that the testator’s intention was ultimately to vest the residuum in the issue of the children of the second wife, or if they left none, then in the children by his first wife, their heirs or representatives. But at the time of his death, his children by his second wife were infants, and it was necessary to provide for their support and education during their minority, as well as for the support of his wife during her lifetime. This, the testator says, he deems a paramount duty, and assigns it as the reason for making the provisions contained in his will. The purposes which he thus confessedly had in view, required the intervention of an express trust, indeed are' the most usual purposes for which such trusts are created, and there can be no doubt the testator intended, by the provisions contained in the residuary clause of his will, to create an express trust in his executrix, which should vest the whole estate in her, and continue during the minority of his three children.

No particular form of words is necessary to create a trust. (Fisher v. Fields, 10 Johns., 496, 505.) The Court of Appeals, in Vernon v. Vernon (53 N. Y., 351, 359), laid down the rule in this language: To constitute a valid trust under the statute, the trust must be declared in the instrument creating it; but it is not necessary that the purpose of the trust should be stated in the words of the statute. It is sufficient that a purpose within the statute is clearly embraced in the language used, or that a power conferred in express terms includes a power over the estate, for the execution of which, the trustee may be clothed with the legal title.” Examples of express trusts, held to have been created by implication from the language used and purposes intended, and of having pertinent application to this case, will be found in Bradley v. Amidon (10 Paige, 235); Vail v. Vail (4 id., 317, 328; 7 Barb., 226, 235); Van Nostrand v. Moore (52 N. Y., 12); Tobias v. Ketchum (32 id., 319, 327). In Van Nostrand v. Moore, it was decided that the trust will be implied, although the residuary clause commences with an absolute devise and bequest of the whole estate, as in this case. In Tobias v. Ketchum, it is held that a power to lease carries with it the power to receive the rents and profits, and when conferred upon executors who were clothed with authority to manage the estate for a given period, it created a trust which vested the title in them, although the word trust or trustee was not used, and there was no devise in terms to the executor.

In this case the testator, having in view the objects before mentioned, and deeming their accomplishment a paramount duty, authorizes his executrix to lease or sell, from time to time, such portions of his real or personal estate as in her judgment may be beneficial to his estate, or necessary for the support and education of his infant children,.and for the proper support of his wife; and for this purpose, and for the purpose of managing his estate in the most prudent and economical manner, for the best advantage of his said wife and infant children, he authorizes his executor to execute all proper and necessary leases, contracts and deeds of conveyance, to the lessees or purchasers, during the minority of his infant children". So far as the power of sale above is concerned, it would be nothing more than a power in trust. But here we have the power to lease, carrying with it the power to receive the rents and profits, and the management of the entire estate, also conferred; and the declared purpose is one which requires the express trust for its due fulfillment; and the carrying out of this purpose, and application of the fund, are all placed within the judgment and discretion of the trustee. This plainly creates an express trust which vests the whole estate in the trustee, and renders it inalienable during the continuance of the trust. The power of sale may be exercised, and the realty thus turned into personal estate; the income, and possibly a part of the principal, if necessary, may be applied to the support and education of the cestwis que trust; but the corpus of the trust fund is inalienable so long as the trust continues. (Belmont v. O’Brien, 12 N. Y., 394, 402; Thomas’ Estate, 1 Tucker, 367, 370.)

The testator fixed the period for the continuance of this trust, as “ during the minority of his infant children,” and they were three in number at the time he died. To carry out his intentions, therefore, it is necessary to hold that these wills create an express trust of the whole residuum, to continue at least during these mindrities. But for the purpose of the statute against perpetuities, a minority is reckoned the same as a life; and these minorities constitute an unlawful suspension. (Hawley v. James, 16 Wend., 62; Thomas’ Estate, 1 Tucker, 367; Post v. Hover, 33 N. Y., 593, 597-599, 601 ; Oxley v. Lane, 35 id., 344, 345; Everitt v. Everitt, 29 id., 39, 71.) The personal estate is governed by the same rule as the realty. (Campbell v. Foster, 35 N. Y., 366, 370, 373; Knox v. Jones, 47 id., 389.) Hence this express trust is void, "unless the residuum can be separated into shares which are not severally suspended beyond the period prescribed. But the testator has, by express terms, precluded such a separation. The devise to the second wife and her children. is made in joint tenancy, and not tenancy in common. They are not to take share and share alike. There are no shares. The property is' given to them jointly ; and this is sufficient to create a joint tenancy within the statute, especially as it is followed with provisions for survivorship. (Coster v. Lorillard, 14 Wend., 265-343.) The property is thus made an inseparable unit, and the absolute ownership of the personalty, and absolute power of alienation of the realty, are unlawfully suspended during these joint minorities.

It is obvious that the testator never intended the disastrous consequences which must result to his testamentary schemes from this illegal trust; but it is equally clear that he did intend to make the testamentary dispositions which produce these results. His intentions are not to be judged by their consequences. He is not presumed to know the law in such a case. (Van Kleeck v. The Dutch Church, 20 Wend., 480.) He is deemed to have been ignorant of the illegality of the trust, and to have intended that it should be performed, and this precludes the presumption that he could have intended a different disposition of his property. Hence, when it is apparent from the language of a will that a testator means to create an express trust, the plain import of the language cannot be departed from, though it results in rendering the will invalid. (Van Nostrand v. Moore, 52 N. Y., 12, 22.) We cannot, in this case, ignore the plain intent of the testator to create this express trust for three minorities, and we must construe the wills according to that intention, although the consequence may be to inválidate the entire testament.

This trust estate precedes all other interests in the residuum, and the further dispositions of the property are dependent upon it as a precedent estate. It was the means adopted by the testator for effecting his primary object: the support and education of his infant children. We are not at liberty to conjecture whether, if he had known that these provisions were void, he would or would not have made such a disposition of his property as would result from striking out the trust and retaining the other provisions of the will. It is the duty of the court to construe the will he has made; not to make a will for him. The doctrine of eypres is now limited to cases where the provisions to be cut off are independent of the other dispositions of the will, and subordinate to them, and not an essential part of the general'scheme. (Manice v. Manice, 43 N. Y., 303; Knox v. Jones, 47 id., 389, 398.) Such is not this case. Here the trust estate is fundamental, and the objects for which it was created are declared by the testator to be paramount. We are not, therefore, at liberty to apply the doctrine. Nor does it help, that the residuary clause commences with an absolute devise. That was precisely the case in Van Nostrand v. Moore (supra), and yet, in consequence of the illegal duration of the express trust which the court implied from the further provisions of the will, the whole residuary disposition was declared void, and the property deemed to belong to the heirs at law and next of kin of the testator. The same result must follow in this case.

This conclusion renders it unnecessary to consider the further provisions of the residuary clause, which, aside from the express trust, are full of difficulty. After the three minorities, the whole estate, given in joint-tenancy, is limited on the life of the widow, and possibly upon the life of that one of her three children who shall survive the other two ; making it necessary, in one event, for four lives to expire before it can be definitely known whether the residuum belongs to the children by the first wife, or the issue, if any, of the children of the second wife surviving them. These ' provisions must be construed without reference to the events which have happened since the testator’s death, such as the recent birth of issue to some of the defendants. The devise must- be so made, that it cannot, by any possibility, contravene the statute. (Schettler v. Smith, 41 N. Y., 328.) If the shares were separable, there would be no difficulty, for then the contingency as to each share would be determined at the death of the owner of such share. But, by reason of the joint-tenancy, the second wife and each of her three children became seized of the whole, and when any died, the whole belonged to the survivors, and so on to the last survivor, if the others, as may be the case, should die without issue. Hence, any separation is impossible; and although the limitation is only upon one life, it is that one of the four which survives the other three, and that cannot be ascertained until three have expired. The limitations over would therefore be void under 1 Revised Statutes, 723, section 14, and the devise in joint-tenancy under section 15. If the life estates were successive, the remainders would vest on the expiration of the first two, and the overplus be cut off under section 17. But they are joint, and, if all stood, would themselves contravene the statute. They cannot all stand, and they are incapable of. separation. It would seem, therefore, that they must fall, and the property pass, as in case of intestacy, wholly irrespective of the illegality caused by the express trust.

The receipt by two of the plaintiffs of their money legacies, does not debar them from maintaining this action, or receiving their inheritance, if the wills are set aside. It is true they cannot take under the will, and in avoidance of it. They must elect between the legacies and their inheritance. But an election is a choice between two or more rights, and cannot be effectually made until the party knows that he has -such a choice. An act in, ignorance of one’s rights cannot be deemed an election, whether it be ignorance of law or fact. (Sanford v. Sanford, 9 S. C., 94; Wake v. Wake, 1 Ves. Jr., 335; Pusey v. Desbouvrie, 3 P. Wms., 315.) The party is to be allowed to elect after the court has decided that he has an election. (Hawley v. James, 16 Wend., 142-254; Knox v. Jones, 47 N. Y., 389-399 ; 1 Sand. Ch., 388.) Neither do these receipts create an estoppel. There is no proof that any one has acted upon them, or been misled to their prejudice, or that any one intended to mislead. All the elements of an estoppel are wanting. (Sandford v. Sandford (supra); Jewett v. Miller, 10 N. Y., 402.)

The judgment of the Special Term should be reversed and a new trial ordered, with costs to abide the event, on which trial an accounting should be had, and the estate settled and divided in accordance with the interests of the parties as heirs at law and next of kin, each to be charged with the amounts already received. Those parties who have received payments on account of money legacies, are to be allowed to elect between their legacy and their inheritance; and in case they elect in favor of the legacy, they are entitled to the legacies given in both instruments.

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

Judgment as to dismissal of complaint affirmed, and, so far as it gives construction to the will, reversed, without costs to either party in either court.


source: Caselaw Access Project

author: Learned, P. J.: James, J.

license: Public Domain

text:
    HERBERT H. SANFORD, Respondent, v. MARIA D. SANFORD, as Executrix, etc., and In Person, Appellant, WILLIAM A. SANFORD AND ANOTHER, RESPONDENTS.
    2 R. S., (m. p.) 65, sec. 44—3 R. S.', (to. p.) 456, sees. 64, 65 — Post-testamentarry child —share of, in estate of deceased, pan'ent—rule for determining — how assessed, among devisees and legatees —Advancements — Legacy in lieu of dower.

    The rule as to the mode of determining the share of a post-testamentary child in the estate of his deceased parent discussed.
    In order to determine the assessment among the devisees and legatees of a share ascertained to belong to a post-testamentary.child, each devisee and legatee is charged with such proportion thereof as the aggregate value of the .testator’s estate, on the day of his death, after the payment of debts, bears to the share of the post-testamentary child.

      Whether advancements are to he included when the share of the post-testamentary child is computed, but not when it is assessed, qumre.

    A legacy in lieu of dower abates like other legacies, and is not a charge upon the real estate, but is only entitled to a preference in payment from the personal estate over other legacies.
    Appeal by defendant Maria D. Sanford from a judgment entered on the decision of the court at Special Term.
    The action-was brought by a post-testamentary child, to recover his share of the estate of his father. The case has already been before this court. (61 Barb., 293.) It has since been tried before the Special Term. The plaintiff brought two actions in this court to recover the share of real and personal estate to which he would have been entitled, had his father died intestate : one action, pursuant to 2 Revised Statutes, 456, section 64, against the executors of Joseph H. Sanford, deceased, to recover his share of the personal estate of the deceased; the other action, pursuant to 2 Revised Statutes, 456,-section 65, against the devisees under said will, to recover his share of the real estate of the deceased. In both actions he alleged that advances had been made to the defendants William A. Sanford and Joseph H. Sanford, of both real and personal estate, and prayed for an account and reckoning of all such advances in estimating his share. Both actions are consolidated under the above title, and the decree appealed from is entered in such consolidated action. From the decision, one of the defendants appeals.
    No question is raised on this appeal involving the rights of the plaintiff. The only questions relate to the rights of the' defendants, as to each other.

      Edward C. James, for the plaintiff respondent.

      Charles O. Tappan, for the appellant.

      H. L. Knowles, for the defendants, respondent.
   Learned, P. J.:

First. The share of the post-testamentary child was computed, on the trial, as follows: Deduct one-third of the personal estate, as for the widow’s share, under the statute of distributions. Take the remaining two-thirds, together with the total value of the real estate of which the testator died seized, and the total of all advancements made to children in the testator’s life. Divide the aggregate by the number of children, and the quotient will be the plaintiff’s share; but his share of the real estate is subject to her dower.

There is no appeal from this part of the judgment, and therefore we have not to pass upon its correctness.

In the present case the advancements did not, as to any child, exceed the share of the estate, including advancements, which he would have had on an equal distribution. But if it had exceeded such share, some modification of the rule would seem to have been necessary, even if the rule be correct in general. For example: If a father had advanced $6,000 to a child, A, during life, and then had died, leaving a will giving his whole property, worth $3,000, to another child, B, and leaving, also, a post-testamentary child, O, under the rule adopted, unless modified, O would have taken the whole, and B nothing. It is not necessary, then, to decide at present, whether the provisions of 1 Revised Statutes, (m. p.) 754, section 24, apply to cases under 2 Revised Statutes, (m. p.) 65, section 44. The former section is, in words, limited for the purposes of this section only.” The share of the post-testamentary child is to be recovered out of the parts devised and bequeathed.” This point does not seem to have been involved in Mitchell v. Blain (5 Paige, 588 ; see Thompson v. Carmichael, 3 Sandf. Ch., 120).

There may be some question, also, whether the widow, having accepted the legacy in lieu of dower, should have dower in the share of the post-testamentarv child. No appeal is taken on this point.

Second. Having ascertained the share of the post-testamentary child, by taking his equal portion of the estate, including advancements, the judgment assesses'this share as follows: Each devisee and legatee is charged with such proportion thereof, as the aggregate value of the testator’s estate, on the day of his death, after the payment of debts, bears to the share of the plaintiff, as above ascertained. It will be seen, therefore, that, as the advancements were included when the plaintiff’s share was computed, but were not included when it was assessed, there is a certain apparent irregularity in the assessment. The advancements were not in the same proportion as the legacies and devises. Thus the advancements had the effect to increase the assessments of the plaintiff’s share on the legatee and devisee who had received no advancement. And this occasions one of the grounds of appeal. This apparent irregularity arises from the adoption of the rule, that, in computing the share of the post-testameu tary child, advancements are to be included. And it is plain that it .is not easy to assess the share in a manner which shall be consistent with the will and the. statute, and also equitable. But assuming, as we must, that the share of the post-testamentary child is fixed, it seems to me that the statute positively determines its apportionment. (1 R. S., [m. p.] 65, § 44.) He is entitled to recover “from the devisees and legatees i/n proportion to, and out of, the parts devised and bequeathed to them by. will.” The language is plain. The recovery must be in proportion to the legacies and devises, and it is to be recovered out of these legacies and devises. The statute referred to by the appellant, relative to bringing suits by and against legatees, heirs and devisees (2 R. S., [m. p.] 456, §§ 64, 65), uses the words “just and equal contribution by the legatees,” and “just and proportionate contribution by each devisee.” This is not inconsistent with the former statute, which expressly establishes the proportion of the recovery, thus declaring what was just. And if there were any inconsistency, the former statute should govern, because the language of that statute is definite, and is intended to establish the rule. That of the latter is only intended to give power to enforce it. For these reasons, while I appreciate the apparent inequality which is so ably set .forth by the appellant, I think that the plaintiff ’.s share was- in this respect assessed in conformity with the statute.

Third. It is claimed, on behalf of the appellant, that the legacies and devises to her, being in lieu’ of dower, and having been accepted, must be paid in full, and that she has a lien for the deficiency on the real estate devised to the respondents. The ground of this claim is that a legacy or devise in lieu of dower, when accepted, becomes as it were a purchase of the dower right; that it is not a merely voluntary gift; that the widow has parted with value in consideration thereof, and that it should, for these reasons, be paid as a quasi debt — a price given for the relinquishment of her rights, which relinquishment has inured to the benefit of the devisees of the real estate. These views are set forth in Isenhart v. Brown (1 Edw. Ch., 411), and cases there cited ; and they establish the doctrine that a legacy in lieu of dower shall not abate like other legacies. It appears to me that the same argument is very forcible to uphold the view of the appellant, viz., that a legacy in lieu of dower must be paid, even from the real estate. The widow is obliged to elect whether she will accept or not, within one year after her husband’s death. (1 R. S., [m. p.] 742, § 14.) It is not till a year after the issue of letters, at the shortest, that the amount of the debts can be ascertained. (2 R. S., [m. p.];88, § 39.) So that she is compelled to make her election before she can positively know the amount of the debts. If she elects; therefore, to take the testamentary provision, she must do so, I think, on the assumption that it will be paid, if there be any property with which to pay it. She gives up an estate in land, and I see not why those whose land is benefited by the bargain should not pay the purchase-price. But I am bound by the decision or opinion in Babcock v. Stoddard (3 N. Y. S. C., 207). The court in that case, admitting the justice of the claim, say that they have found no authority for it, and are not prepared to assert it. It must be noticed, however, that, in that case, the legacy in lieu of dower had not been accepted." The widow died a few days after the will was proved, without making an election. Thus the important element of a quasi bargain was wanting. She had parted with nothing, and might never have accepted the legacy. Still, I think it is better that we should follow the opinion of the court in that case than to have any conflict of views.

For these reasons, I think that the judgment should be affirmed, with costs to the defendants respondent, J. H. and M. E. Sanford; but not to the plaintiff.

James, J.

(dissenting):

But two questions are presented on this appeal: First) was the plaintiff’s share properly assessed ? Second, is the deficiency of the widow’s legacy a lien on the real estate ?

The only objection to the manner in which the plaintiff’s share was assessed, is, that by making the assessment fro rata, the widow is compelled to contribute from the property given to her in lieu of dower, to make up that portion of the plaintiff’s share which he is entitled to recover by reason of the advancements given to the elder sons. It was decided in Mitchell v. Blain (5 Paige, 588), that a widow’s legacy in lieu of dower .must contribute ratably with the other legacies to make up the share of an after-born child, and, as an equivalent, the widow was allowed dower in the real estate received by such child, because, if the father had died intestate, such share would have been subject to dower. That rule has been followed in this case; but in Mitchell v. Blain (supra) the question in this case presented did not arise, because there were no advancements in that case.

The child is entitled to the same' share of his father’s estate as if the testator had died intestate. (2 R. S., 65 § 49.) Had he so died, the advancements would have been so reckoned in ascertaining such share. (2 R. S., 97, §76; 1 R. S., 754, § 23.) They were properly reckoned in this case, and no objection is made thereto by any party; but had the testator died intestate, then the advancements would have been deducted from the shares of the heirs and next of kin who received them, and they would only have been entitled to the difference, if any. (Id.) The appellant now claims that, inasmuch as the heirs who received the advancements, are respectively devisees under the will, of property sufficient in value, after making up their fro rata contributions to plaintiff’s share, exclusive of advancements, to wholly pay the increase of plaintiff’s share by reason of their respective advancements, such increase should be wholly assessed upon the devisees who received the advancements which create it, and not upon the appellant, who received no part of such advancements. There is a strong equity in this claim, and, unless there is some rule of law which prohibits its allowance, this equity should not be disregarded.

There are several provisions of statute in respect to the manner in which the legatees and devisees should contribute to make up plaintiff’s portion. By 2 Revised Statutes, 65, section 49, it is provided that the after-born child shall be entitled to recover the same portion from the devisees and legatees, in proportion to and out of the parts devised and bequeathed to them by such will.” By 2 Revised Statutes, 456, sections 64, 65, the Supreme Court is empowered to compel the legatees to make a “just and equal contribution,” and to make the devisees make a “just and proportionate contribution,” to make up such share. It is plain that the legislature, by tpese provisions, intended to invest the court with full power to do justice in such cases.

In most instances, a proportionate contribution would be just. But here is a case, where it seems to me to be grossly unjust. The widow, whose legacy and devise are in lieu of dower and all claims on the estate, and who received none of these advancements, is compelled to contribute equally with the devisees, who received the advancements. In other words, she is compelled to pay plaintiff about $3,000, because the testator advanced William A. $6,000 and Joseph H. $10,245, although both these sons have enough given them by the will to pay the same in addition to all their other contributions. In such a case, equity requires that the increase by reason of advancements, be first paid from th'e property devised and bequeathed to the legatee or devisee who received them, until such property is exhausted, before the other legatees and devisees are called upon to contribute on account thereof; and such is the true application of the statute to this case. Therefore, the judgment should be modified by reassessing the plaintiff’s share in accordance with the above views.

The deficiency of the legacy in lieu of dower is a lien upon the real estate passing under the will to the defendants, William A. and Joseph H. Sanford. Such a legacy is not a bonus or gratuity, but a price offered by the testator for his wife’s interest in the real estate. When accepted, it amounts to a contract of purchase. (Isenhart v. Brown, 1 Edw. Ch., 411, and cases cited.) As between the widow and legatees and devisees, she is entitled to payment in full, while there is property enough of the estate to pay it. If the personalty is insufficient, it is a lien on the realty. (Flynn v. Croniken, 9 How., 214.) The devisees cannot take advantage of the relinquishment of the dower, and repudiate the payment of the consideration therefor; "especially in a case like this, where the will requires that it shall not only be accepted, but shall also be received in order to be in lieu of dower.

The case of Babcock v. Stoddard (3 N. Y. S. C., 207) is of no authority on this last point. There the widow died without accepting the legacy. It was not then a contract, but an offer simply while it remained unaccepted, and hence was not a lien. The question in this case presented did not there arise.

The judgment should also be modified by adjudging the deficiency of said legacy, with the interest, to be a lien on that part of the real estate devised to William A. and Joseph H. Sanford which remains to them after contributing to plaintiff’s share, to be paid from the proceeds of the sale of said part, in preference to all other claims thereon.

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

Judgment affirmed, with costs to the respondents J. H. and M. E. Sanford, but not to plaintiff.


author: Learned, P. J.:

text:
    NANCY SUTTON, Administratrix, etc., Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Railroad Co. —negligence.

    When the evidence shows that a railroad company permitted people to acquire the habit of crossing its track frequently at a certain place, the company is not at liberty to allow cars to run over that portion of the track without any one to control them.
    Appeal from a judgment entered at the Rensselaer Circuit in favor of the plaintiff, for damages sustained in consequence of the killing, by the defendant, of the plaintiff’s intestate, William C. Sutton.
    The Troy and Grreenbush branch of the defendant’s road, as it enters the city of Troy, passes a short distance from the east bank of the Hudson river. Upon that east hank, and between the railroad and the river, are situated the foundry and stove works of Fuller, Warren & Co. The plaintiff’s intestate, William C. Sutton, at the time of the accident by which he was killed, was employed in the carpenter shop connected with the foundry. It was proved by several witnesses, that, for a long time prior to the accident, the employes of the foundry were in the habit of crossing the railroad track, at a point opposite this carpenter shop. That from the carpenter shop across the track is a regular beaten path. There are two tracks in front of the carpenter shop where the accident took place. At the same place there is a slight grade descending to the south. Just before the accident occurred, a train of ten cars backed up on the west track. Just before reaching the carpenter shop, five of these cars were disconnected, and the locomotive, with the other five, gave the five disconnected cars a “ shove ” or “ kick,” which sent them north so far that the south car was above or north of the door of the carpenter shop.
    Just about the time these five disconnected cars stopped above the carpenter shop, Sutton started out of the shop with a pail on his arm, to go for some water to a well on the other side of the track. As he went down from the door of the shop, these five cars passed him going north. He waited till they had gone by and had stopped. He then attempted to cross the track, and actually crossed the west track to the space between the two. Just then a train backed up from the south on the east track. To avoid this, Sutton stepped back on the west track, which he had just safely crossed, and the five disconnected cars which were left without any locomotive attached, and with no one in charge of them, in running back down the grade, struck and killed him.
    Upon these facts, the jury found that the defendant was guilty of negligence, and that the accident occurred without the fault of the plaintiff’s intestate, and rendered a verdict of $5,000 damages, from which the defendant appeals to this court.

      Frank Loomis, for the appellant.

      Esek Cowen, for the respondent.
   Learned, P. J.:

The plaintiff’s intestate, under the circumstances, was not a trespasser. He was on the defendants’ premises, under an implied license. (Driscoll v. N. and R. Lime and C. Co., 37 N. Y., 637.) He was not there, however, by their express or implied invitation. The man who enters on another’s land, along a road laid out and used for access to the house, enters by an implied invitation. The owner assumes an obligation in respect to the safety of the road, an obligation which does not arise from the mere acquiescence of the owner in the use of his land by others. (Sweeny v. Old Colony and N. R. R. Co., 10 Allen, 373 ; Phil. and R. R. R. v. Hummell, 44 Penn., 375.)

In the very important case of Gillis v. Penn. R. R. Co. (59 Penn., 129), it is said that the owner is not liable to a trespasser, or to one who is on his land by mere permission, or by sufferance, for the negligence of himself or his servants. But that the trespasser, and, more strongly, the person who comes on land by a license, can maintain an action for wanton or intentional injury inflicted by the owner. That was the case of a person who was injured by the breaking of a platform. The plaintiff was not on the platform as a passenger, but, with, others of a large crowd, to see some attractive sight. To the same effect are Matze v. N. Y. C. R. R. Co. (8 S. C. [1 Hun], 417), and Nicholson v. Erie R. R. Co. (41 N. Y., 530). But in these two cases the liability is said to be limited to cases of intentional injury. I cannot think, however, that the court intended to say that there could not be a recovery for what, in the case of Grillis, is called “ wanton ” injury. Because, in the case of Driscoll v. N. and R. L. and C. Co., the plaintiff’s intestate was on the defendant’s land without right, and the administratrix was allowed to recover, on the ground of. the defendant’s negligence in not giving notice of a blast. .Thus there was no intentional injury. There was what might be held to be wanton injury, or injury arising from culpable negligence. In the case of Kay v. Penn. R. R. Co. (65 Penn., 269), the defendants had leased a lot of land for their side tracks, and had the right to its exclusive possession. By suffefance they had permitted the public to pass over the lot. They detached some cars and sent them around a curve without a brakeman. They were held liable to a person upon that lot, who was run over by these cars. The court say that duties grow out of circumstances; that culpable negligence is the omission to do that which a reasonable," prudent and honest man would do; or it is the doing of what such a man would not do; that if an owner has allowed "persons a use of his property, tending to produce a belief that it will not be objected to, he is held to exercise his rights in this view, so as not to mislead others to their injury. (See Whart. on Negligence, §§ 811, 389 ; Brown v. Han. and St. J. R. R. Co., 50 Mo., 461; B. and O. R. R. Co. v. Trainor, 33 Md., 542.)

It was right, therefore, in the present case, for the plaintiff to prove the long existing custom of crossing the 'tracks at this place, as indicating an acquiescence therein of the defendants. For having * acquiesced in this use, they should exercise their rights, in this view, so as not to mislead others to their injury. It might be a wanton disregard of life to run trains on this part of the track in a manner permissible elsewhere. The foundry of Fuller, Warren & Co. stood close to the defendants’ roadway, with doors opening thereon, and workmen (of whom the deceased was one) had been in the habit of crossing and recrossing for many years, and there was a well beaten path.

The defendants’ counsel requested the court to charge that the defendants owed no duty to the deceased to set the brakes or otherwise' fasten the cars. The court said that he declined, under the circumstances. It is insisted now that this was error, according to the decision in Nicholson v. Erie Railway Company. But the circumstances in the two cases were different. In that, the cars were left standing, and were started by a violent wind. This was a matter not to be foreseen by the defendants — not to be guarded against. In the present instance, if the theory be correct that the plaintiff was injured by the backward motion of the detached cars, there was no unusual or unexpected cause. No cause existed other than the alleged grade of the road. And if the grade of the road was such that cars would run down by the mere force of gravity, we cannot say, as the court was requested to do, that the defendants owed no duty to the deceased to set the brakes or fasten the cars. In the language already quoted, duties grow out of circumstances; and as the fact was, that, by the defendants’ permission, persons were accustomed to cross the tracks at this place frequently, the defendants were not at liberty to allow cars to run without any one to control them.

The second request to charge was also' too broad, and was rightfully refused. The fact that persons had been accustomed to cross at this place did impose further care on the defendants than if the deceased had been a trespasser. That is, if a person .were trespassing on the defendants’ track, in an unfrequented place, they would be under no obligation to expect that he would be there. In such a place, running cars without a brakeman would not probably be negligence. But the defendants’ duty was modified, when, by their implied consent, persons had been accustomed to go on the track. Although a man be a trespasser, the owner must not injure him by wanton negligence. (B. and O. R. R. v. Trainor; Driscoll v. N. and R. L. and C. Co., ut supra.) So also as to cattle. (Isbell v. N. Y. and N. H. R. R. Co., 27 Conn., 404; Corwin v. N. Y. and E. R. R., 13 N. Y., 42.) And it is worth noticing that the general railroad act, while it exempts railroad companies that make and maintain fences from damages for injury to cattle, excepts such as are “ negligently or willfully done.” Thus, too, in the often cited illustration from the civil law, the man who cuts a limb from a tree is liable, if it falls on one passing along a public or private way, unless he gives warning. But if it falls on one passing where there .is. no way, the pruner is liable only if he saw the person passing. For he cannot be blamed when he could not guess whether any one would be passing by. (Dig., 9, 2, 31.) This, too, was the doctrine of the' case of Driscoll, above cited. • And, therefore, it cannot be said that the court erred in charging that, the defendants owed the duty that no injury should be done to the deceased, by any negligent act on their part, in the discharge of a lawful duty. What would be negligent would depend, as said in the case of Kay v. Pennsylvania Railroad, on the circumstances. The case of Phil. and R. Railroad Company v. Hummell (44 Penn., 375) is some times cited as contrary to these views. But that only holds that the company is not liable to a trespasser, unless want of ordinary care is shown. And that case, with the still more important case of Gillis v. Pennsylvania Railroad, is reviewed in the very careful opinion delivered in the case of Kay v. Pennsylvania Railroad. And it is there shown that nothing in these two cases conflicts with the rules laid down in the case last named. And the court, in this present case, expressly charged that if the defendants exercised ordinary cafe in the management of .their cars,' the plaintiff could not recover. Whether they did exercise ordinary care was a question for the jury. And we must further notice that the court charged, that, if the defendants were watchful and had no knowledge of the deceased’s presence on the track, they were not bound to take any other than their usual modes to keep the cars in position. It is well pointed out, in the case of Baltimore and Ohio Railroad Company v. Trainor (ut supra), that although a man be a trespasser in going upon the roadway of the railroad, yet that fact is not of itself negligence contributing to the accident, provided the circumstances were not such, when the party went on the track, as to threaten injury, and provided that, being on the track, he did nothing positive or negative to contribute to the immediate injury. The mere going on the track is not of itself negligence. And this is especially true where, by acquiescence for years, the company had permitted, and where the situation of the buildings almost compelled, persons to walk on the roadway.

There is nothing, then, in this case requiring a new trial. The judgment and order should be affirmed.

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

James, J., dissented.

Judgment and order affirmed, with costs.


author: James, J.:

text:
    JANE E. TABER, Respondent, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Appellant.

      Negligence—contributory negligence—Evidence.

    A train of defendant, upon which plaintiff was a passenger, ran a short distance beyond the station at which she wished to alight, stopped for a moment, and then backed down to the station. As soon as the train stopped, the plaintiff, who was in the last car, supposing it was at the station, and that it would remain there but a short time, without the knowledge of any one in charge of the train, left the car by the rear door, and was on the steps, getting off, when, by a sudden jerk of the train, made in backing to the station, she was thrown off and injured. It was a very dark night. There was no station platform or light where the plaintiff attempted to leave the car, nor at the usual stopping-place, which was across a highway in front of a hotel. The name of the station had not been announced, and no notice had been given to passengers . to alight. The conductor saw the plaintiff after she fell, and made a signal with his lantern to stop the train, but it was not seen. There was no brakeman at the end of the car where plaintiff attempted to alight.

      Held (1), that the defendant was not guilty of negligence; and (3), that plaintiff, by her negligence, contributed to the injury.
    On the trial plaintiff was allowed to testify that she understood the train stopped at the station but a short time, and that the station agent’s wife had so told her. Held, error.
    Appeal from, a judgment entered on a verdict in favor of the plaintiff, and from an order denying a motion for a new trial made on the minutes.

      H. Hurlbut, for the appellant.

      Chapman & Martin, for the respondent.
   James, J.:

This action was to recover for injuries alleged to have been caused by defendant’s negligence. The defendant is a railroad corporation, and runs trains north from Binghamton, past Willard’s Station. In January, 1873, plaintiff took passage'at Binghamton, for Willard's Station, on the evening train. The usual stopping-place for the train at that station is across the highway, in front of a hotel. On this occasion the train ran a short distance past the stopping-place, but as soon as possible backed to that place. The plaintiff was in the rear car; as soon as the train stopped, without the knowledge of any of defendant’s employes in charge of the train, she stepped out of the car door, at the rear, upon the platform, and was stepping down the steps, when, by á sudden jerk of the train, she was thrown off and injured. It was a very dark night; there was no station platform at the place where she attempted to alight, nor any station light. And these acts of the plaintiff took place before the train was brought at rest at the station; before the name of the station had been announced or notice to alight given.

It seemed some of her most serious injuries, after falling off, arose from the backing of the train; and it seems that the conductor, from the steps of the forward end of the forward car, saw through between the cars a woman lying beside the rail, and, instead of pulling the bell-rope, or calling to the engineer to stop, gave- a signal with his light, which was not seen, and the balance of the train passed, cutting her head.

On the foregoing facts arises the questions of negligence: 1st. Did the plaintiff, by negligence, contribute to the injury? 2d. Was the defendant guilty of negligence that caused the injury ?

The case also contains exceptions to the admission of evidence. The plaintiff was allowed to testify that she understood the train stopped at Willard’s but a short time; also to testify that the' station agent’s wife so told her. The plaintiff was allowed to show that safety-brakes were not attached to this train, by which a train could be stopped quicker than with others.

In most cases the question of contributory negligence is a mixed one of fact and law; yet, where the evidence is not conflicting, or where plaintiff’s negligence appears by his own evidence, it is a question of law only. In this case there is no dispute about the facts. It is certain, but for plaintiff’s own folly and negligence, she would not have been injured. It is not material that the train ran a few rods past the station. That did not throw the plaintiff off. It is not an uncommon thing for a train to run past a station. It is one of those things which, from the great momentum and weight of the train, cannot always be avoided. The implied contract between these parties was, that defendant would carry plaintiff to Willard’s Station, notify her of the arrival, and when to alight. Instead of waiting for this notice, and before the train had been placed at the station, the plaintiff, without notice to, or knowledge in, the managers of the train, acted on her own volition, sought to alight from the train before it was time, and in doing so received the injury complained of; presenting a clear case where the plaintiff’s own negligence was the sole and only cause of the injury. (Johnson v. Hud. R. R., 20 N. Y., 65; Hayes v. Gallagher, 72 Penn., 136.)

The next question is as to the negligence of the defendant. The plaintiff’s counsel specifies several particulars, wherein it is claimed the defendant was guilty of negligence, as follows: Plaintiff was a woman and knew when the train stopped she was to get off; from what she had been told shé believed she must get off quickly; there was nothing to indicate to her that the train had run by the station; the train was still.; everybody was rushing to the front door to get out; she went to the back door as the safest. There is nothing in all these statements to show negligence in the defendant. They are mostly of a nature excusatory of the plaintiff’s own acts. The defendant was not responsible for what another had told the plaintiff about the train, or the length of its stop; nor was it chargeable with knowledge of the plaintiff’s fears; nor had its employes any information that she intended to run to the door and jump off on the first intimation of a halt.

It was urged, as a ground of negligence, “ that when the plaintiff opened the car door, on going out from the light, it was very dark; that there were no station lights, and never had been ; that there was no platform, and never had been; that there was no brakeman present to tell her the train would back up.” Conceding all this true, and even that it was negligent, neither in any way contributed to the injury. But neither was an act of negligence. It certainly was not the fault of the company that it was dark; or that, on passing out of the car from the light, it appeared to the plaintiff very dark. Conceding there was no platform or station lights; neither was the cause of the accident. The proper place for either would have been at the station stopping-place, and not where the car stood when plaintiff left it. At the latter place none were required, and she did not wait until the cars got at the proper place, so that their absence from that place did not cause her to fall. So as to having a brakeman present to tell her the train would back up. Of her own accord she left the car at an improper time and place, and railroads are not required to keep a brakeman to aid passengers to alight at other, than regular stopping-places. Had plaintiff waited until the train was at the station, non constat, a brakeman or conductor would have been present to help the plaintiff off the train.

The running of the train past the station was not the proximate cause of the injury. Had plaintiff retained her seat until the train was placed at the station, no injury like this could have happened to her. The conduct of the conductor, when he saw something lying by the rail looking like a woman, in not using other methods to stop the train, did not cause the accident. Gould the train have been sooner stopped, the extent of the injury might have been lessened. But her being there was through her own negligence, and the conduct of the conductor did not constitute neglect. On the law applicable to this case, I do not see how plaintiff can maintain an action against the defendant.

But there are other grounds for granting a new trial. The court erred in the admission of evidence. Plaintiff’s understanding of the time the train stopped at Willard’s Station, or what the agent’s wife said about it, were not admissible as evidence against the defendant, and as such testimony may have influenced the jury, it ought not to be allowed to stand.

Learned, P. J., concurred.

Boardman, J., dissented.

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


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    PATRICK KING, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Negligence — duty of mastm' to Imp in repair machinery used by servant.

    It is the duty of a master to see that his servants shall he under no risks from imperfect or inadequate machinery, and he is liable for any injury which may arise from his neglect to keep the same in repair, as well as for any imperfection ' in its original construction.
    Motion for a new trial, oh exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff, and from an order denying a motion for a new trial made on the judge’s minutes.
    This action was brought to recover for injuries alleged to have been sustained by the plaintiff in consequence of the falling of a derrick belonging to defendant; such accident being alleged to have resulted from the negligence of the defendant in not furnishing a sufficient derrick, and also in not using due diligence in keeping the derrick in order. The answer denies the alleged negligence and avers that the injuries complained of were caused by the negligence of the plaintiff and his fellow laborers.
    The defendant had placed a derrick on a dock belonging to it to aid in transferring steel and iron rails from boats to its cars and had contracted with one Dillon to unload the rails at a certain price per rail. A portion of the derrick fell on the plaintiff while engaged in hoisting a rail and inflicted the injuries to recover damages for which this action was brought.
    It was claimed by the defendant that the plaintiff was a partner of Dillon, while it was claimed in his behalf that he was merely an employe.

      Mathew Hale, for the appellant.

      Amasa J. Parker, for the respondent.
   Learned, P. J.:

It seems to me that some of the doctrines of Wright v. New York Central Railroad (25 N. Y., 562) have been modified. Warner v. Erie Railway (39 N. Y., 468) seems to establish that it is the duty of the master, not only to erect a structure to be used in his business without fault as to plan, construction and materials, but to supervise, examine and test it as frequently as custom and experience require. Laning v. New York Central Railroad (49 N. Y., 521) says that the duty to the servant is, that he shall be under no risk from imperfect or inadequate machinery. It is a duty to be affirmatively and positively fulfilled and performed. If the duty of the master is, that the servant shall be under no risks from imperfect or inadequate machinery, this certainly imposes some duty of maintenance as well as of original construction. It would be idle to say that the master was under an obligation to provide a safe machine in its original construction, but that he might allow it to become utterly and notoriously unsafe without incurring any obligation. In the language of the case last cited, the duty is not performed “ until there "has • .been, placed for the servant’s use, perfect and adequate physical means.” So, too, the ease of Coughtry v. Woolen Co. (56 N. Y., 126) declares that the duty of the defendants toward any person invited to go upon the structure was to use proper diligence in its construction and maintenance.” And, on principle, the nature of the obligation must be the same. Of course, when a man has made a safe structure, he may reasonably expect that it will remain safe for a time. How long will depend on the nature of the structure and its use. How soon he must, as a prudent man, cause it to be examined, will depend on the circumstances of each case. But, I think, the decisions require from him reasonable attention to the matter, according to the amount of wear which the use of the machine causes. This was stated -by the court in its charge: It was further their [the defendants’] duty, as the derrick was in continued use, to examine it from time to time, and to make repairs when needed, so that persons using it could do so with safety.” The court further charged, that if the plaintiff knew, or had reason to know, that the machine was dangerous, and continued to work, he could not recover. And further, that if there was a contract on the part of Dillon to take the responsibility of inspecting the machine and reporting its defects, and the plaintiff knew of this, he could not recover. This was sufficiently favorable to the defendants. An agreement by Dillon relieving the defendants from a duty imposed upon them by the law, should not take away from the plaintiff the right to have a safe machine provided for him — at least when he was ignorant of such agreement. If, as the cases hold, the defendants owed a duty to the plaintiff of providing and maintaining a safe machine, and then made an agreement with Dillon» to repair, when notified by him, this did not release them from their duty to the plaintiff without his consent. The charge of the court stated the law carefully; and, as to the defendants’ requests, it is well said by the Supreme Court of the United States: -“It is not error for a court to refuse to give an extended series of instructions, even though some of them may be correct in the propositions of law which they present, if the law arising upon the evidence is given by the court with such fullness as to guide correctly the jury in its findings.” (Railway Co. v. Whitton's Admr., 13 Wall., 270.)

The exceptions to the admission of evidence, with the qualifying remarks of the court in respect to them, do not, I think, warrant a new trial.

James, J.

(dissenting):

In April, 1872, the defendant erected upon the dock in Albany, a derrick for removing railroad iron from vessels to defendants’ cars. The derrick, according to the evidence, was of suitable material, and sufficiently strong and well built for the purpose. It was not then of improper construction or unsafe: A contract was made by defendant with one Dillon, to remove the iron from the vessels to cars at that time, at four cents per rail, using the derrick. It was further agreed that defendant was to repair the derrick whenever they reported any thing was wrong. Dillon made an arrangement with plaintiff and others, by which they were to do the work and divide the pay equally between them. Plaintiff had worked the previous year in the same place and manner with Dillon and others. On the 1st of July, 1872, when plaintiff, Dillon, and others, were at work removing iron, the hook which held the tackle block to the top of the. derrick broke, whereby a rail fell upon plaintiff and he was injured. The evidence.shows that such break was caused by the gradual wearing away of the iron of the hook, until it was too weak to sustain the strain. Upon a claim that defendant was negligent in not keeping the derrick in repair, and in a safe condition to use, this action was brought, and a recovery of $4,000 had. In Wright v. N. Y. C. (25 N. Y., 562) Judge Allen laid'down the rule of liability in such eases as follows : “ The master is liable to his servant for any injury happening to him from the misconduct or personal negligence of the master, and this negligence may consist * * * in the furnishing for the work to be done or for the use of the servant, machinery or other implements * * * improper and unsafe for the purposes to which they aré to be applied * * * and if the injury arises from a defect or insufficiency in the machinery furnished to the servant by the master, knowledge of the defect or insufficiency must be brought home to the master, or proof given that he was ignorant of the same through his own negligence or want of proper care; in other words, it must be shown that he either knew, or ought to have known, the defects which caused the injury. Personal negligence is the gist of the action.” Again, under the fifth subdivision, he says : If the servant, sustaining an injury through * * * defects in the machinery furnished by the employer, has the same knowledge or means of knowledge of the deficiencies referred to as his employer, he cannot sustain an action for the injury, but will beheld to have voluntarily assumed all the risks of the employment, incurred, as they were, by the * * * defective machinery used in the work.” Again, in the sixth subdivision, he says: “ If the injury was occasioned, notwithstanding such defects, by the negligence of a fellow servant, the master is not responsible.” For these positions numerous authorities are cited by the learned judge.

From these principles, the following .application may be made upon the facts of the present case.

The defendant, under its contract, was bound to furnish to its workmen under the contract a suitable and safe derrick. That was done. There was no liability of the defendant, therefore, in this respect. The company did not undertake, nor is it liable, for the continued sufficiency or safety of the derrick, except in case it knew or ought to have known of the defect or insufficiency. It is not claimed the company or its agents had actual notice of the defect in this hook. The contrary appears. Nor is there any reason for asserting that defendant or its agents ought to have known of such defect. By the contract the plaintiff and his associates, his copartners, were to give notice of defects, and defendant was then to repair. The duty to repair existed as well in the absence of, as with the contract. The only effect of the contract in that respect was to impose the duty upon the plaintiff and his associates, who were the only persons using the derrick, to examine it and give notice of any defects, that defendant might repair. The contract adds still greater strength to defendant’s exemption from liability, under the principle that the servant had greater knowledge or means of knowledge of the deficiencies of the derrick than the defendant, and consented to assume the risks of the employment and of his own negligence in respect to the examination of the machine, which he was constantly using, and detection of its defects. It is not clear how the defendant can be made responsible to plaintiff for want of proper care and vigilance in the inspection of the derrick and the discovery of its defects, when, by contract, it had exempted itself from such liability, imposing that duty and the duty of giving notice of any defect, on the plaintiff and his partners. If the defendant was guilty of negligence in this case, how much greater was the negligence of the plaintiff and Dillon 1

I do not understand that the principles stated have since been controverted or doubted. They are still a correct exposition of the law. The case of Coughtry v. Globe Woolen Co. (56 N. Y., 124) is clearly distinguished from the present action. That was a case of neglect by the woolen'company to furnish its servants machinery or implements originally well constructed and safe. It was a defect of original construction, for which, under the principles above cited, • the party was responsible. If the original structure was perfect, no liability would ensue for injury to a servant by reason of defects thereafter occurring, unless the defendant had notice of such defects, or ought to have known of them in the exercise of ordinary care and prudence.

Plaintiff was, upon the proofs, a partner of Dillon in the work and in the use of this derrick. I do not see that it would modify the case, if, instead, plaintiff had been the servant of Dillon. The right to recover, and the principles upon which a recovery might be had, would be the same in either event. The negligence of Dillon is imputable to plaintiff; certainly plaintiff can hav,e no greater claim against the defendant than if he had been its servant.

If the foregoing conclusions are justified, the learned judge at the Circuit so far over-stated the legal principles as to convey to the jury the impression that, in the absence of a contract absolving defendant, the defendant would be absolutely liable for any defects in this derrick which might during its use occur, irrespective of notice of such defects; that such liability arises from defendant’s neglect to examine and inspect the derrick from time to time. It seems to me’.also to have been error to charge that plaintiff might recover if ign'orant of a contract by which defendant was absolved from the duty of inspecting and watching the condition of the derrick, and Dillon .had assumed that duty. If the guarded language of the charge raises doubts as to the justness of these criticisms,

. I think the refusal of the judge to charge the second and third requests removes such doubts. Those requests were :

Second. That if the agreement between Dillon and defendant was, that Dillon was to report to defendant’s agent if repairs were needed, and that defendant was to make necessary repairs when such report was made, defendant cannot, upon the evidence in this case, be held guilty of negligence in regard to the hook in question, no report or notice of its insufficiency having been given to defendant or its agents. The court declined so to charge otherwise than had been charged.

Third. That under his agreement with Dillon, the plaintiff is in no better condition to maintain this action, than Dillon could have been, if he, instead of the plaintiff, had been the person injured by the accident in question. The court refused so to charge. I submit that both these propositions are sound law upon the facts presented, and that it was error to refuse to charge as requested. In this ease a proper machine is furnished for Dillon and his associates, to use in the performance of defendant’s work. They are set to work with it under an agreement that defendant shall make all necessary repairs upon being notified by Dillon and his associates that such repairs are needed. Neither Dillon nor his associates ever give notice of any defects, or ask for any repairs. They are constantly using this particular machine; they are competent to inspect and- judge of its sufficiency, strength and safety. The particular defect through which the injury happened, could have been easily discovered, if an attempt had been made. Indeed, by the evidence of one witness, the condition of the hook could be seen from the dock. Is it saying too much when it is claimed that the defendant would not be liable ? A more rigid rule would make masters guarantors of the safety of every piece of machinery, of every instrument, appliance or tool, put into the hands of a servant, so long as it was used by him. It would exempt every servant from the use of ordinary care and prudence. It would practically extinguish the distinction between the liabilities for injuries to passengers and employes. (Warner v. Erie Railway, 39 N. Y., 468, remarks of Bacon, J., 475, 476.)

Flynn, one of Dillon’s associates, was asked by plaintiff’s counsel this question : “ Whose duty was it, as you understand, when each of these contracts were made between Dillon and ■ the company, and you were present, to inspect and examine that derrick and keep it in order?” It, was answered, subject to objection and exception : I suppose it was Mr. Chittenden’s.” Then the further question: “ Q. The company you mean ? A. Yes.” This evidence seems to me clearly inadmissible. Flynn was called by plaintiff to make out his case. After plaintiff had rested, defendant called Flynn and examined him as to the contract for making' repairs, and what was said, and by whom. On his cross-examination, the above question was put and answered. I do not think these facts make any difference. The question asked for an opinion or conclusion of the witness, and not for a fact. It was as improper under the circumstances, upon cross-examination, as it would have been upon a direct-examination. Ordinarily not much consideration should be attached to such an error. But here the question calls for the opinion of the witness on a most important point. .That is. the most important question submitted by the court to the jury. Did the defendant absolve itself from the duty of inspecting the derrick ? ” is the judge’s charge. This witness is allowed to determine that fact by his opinion or conclusion from all he heard.

It wras error also to allow proof that, after the accident, double irons were ordered put upon the derrick, and were so put on. (Dougan v. Champlain Trans. Co., 56 N. Y., 1.) Perhaps, however the subsequent suggestion of the court that the evidence would be stricken out if the defendant desired it, lias cured the error.

But upon the main question presented, I think the order denying a new trial should be reversed, and that a new trial should be granted, costs to abide the event.

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

Order affirmed, with costs.


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    JAMES HALSEY, Respondent, v. EBENEZER M. REID, Appellant.

      Statute of limitations—pm-ol ratification of contract of infant— Code, § 110.
    This action was commenced in November, 1873, to recover for goods sold, in June, 1867, to the defendant, who was then an infant nineteen years of age. . The goods were not necessaries. In September, 1871, the defendant, by parol, acknowledged the justness of the account against him for the goods, and promised to pay it. Held, that section 110 of the Code was inapplicable to such a case, and that such parol ratification and promise were valid ; that plaintiff’s claim not being capable of enforcement until ratified by defendant after reaching his majority, plaintiff’s cause of action did not arise until then, and therefore was not barred by the statute of limitations.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action before the court, without a jury.

      Shaw & Palmer, for the appellant.
    The claim in suit is barred by the statute of limitations, it being conceded that no action was commenced upon it within six years after the indebtedness is alleged to have accrued. (Code, § 91.) Ho verbal promise can be of any legal force to take the case out of the operation of title 2 of the Code, of the time of commencing civil actions. (Code, § 110; Esselstyn v. Weeks, 12 N. Y., 639; McLaren v. McMartin, 36 id., 88.) Such a promise is not even operative as an estoppel. (Shapley v. Abbott, 42 N. Y., 443.) Hor is it possible to maintain this action upon the theory that the cause of action accrued when the new promise was made, based upon the old consideration, for, although the original debt may furnish a good consideration, the obligation itself is void by the statute.

      Youmans & Niles, for the respondent.
   James, J.:

This was an action for goods sold and delivered; the only defense, the statute of limitations. The action was commenced Hovember 14th, 1873; the goods were sold June 1st,- 1867 ; it was therefore certain that more than six years had elapsed between the sale and the commencement of this action. The plaintiff further showed that, at the time of such sale and purchase, defendant was a minor of the age only of nineteen years, and that after defendant became twenty-one, to wit in 1869, he ratified said purchase, and by parol promised and agreed to pay for said goods; and plaintiff claimed that as no cause of action accrued to him which he could enforce until the purchase was ratified and promise to pay made after defendant had reached his majority, the statute of limitations did not commence until then to run.

It is not claimed by either side that the original indebtedness was for necessaries; hence that obligation, though a moral one, could not he enforced. But the moral obligation existed, though incapable of enforcement, and furnished a sufficient consideration to support and uphold a promise to pay on arriving at age.

It is urged that such subsequent promise is void, for not being in writing under the provisions of section 110 of the Code. But that section has no application to this case. It has nothing to do with the question of infancy or a subsequent promise after maturity. That section has reference to title 2, part 2 of the Code treating of the time of commencing actions. I notice the reference to the cases of Esselstyn v. Weeks (12 N. Y., 638) and McLaren v. McMartin (36 id., 88) hut in each case the question arose as to the statute of limitations ; neither passed upon the question presented by this case. I regard the law now, in reference to parol ratification and promise to pay after maturity of a debt contracted during minority, the same as before the Code. A parol ratification and promise were then valid and are now valid. It is conceded that infancy is a personal privilege ; but the contract of an infant is not void, only voidable. It cannot be enforced if the infant, or, after maturity, the adult resists. But after maturity it may be ratified by promise to pay, and, being based on a sufficient consideration, may be enforced whether in writing or by parol. Of the validity of a parol promise there may be some doubt, although I have none. It is based on sound morals and in furtherance of justice, and hence I hold it must be sound in principle.

A cause of action is a claim which may be enforced. (Bucklin v. Ford, 5 Barb., 393.) A cause of action cannot be said to have accrued until capable of enforcement. - The statute of limitations does not commence to run against a claim until there is some one against whom it can be enforced.

Therefore this claim was not barred; it was not capable of enforcement until ratified by defendant after reaching his majority, and six years have not elapsed since he became twenty-one years of age.

Learned, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.