text:
    ST. JOHN CROFT, as Executor, &c., of MARY E. WILLIAMS, Deceased, Appellant, v. EMMA E. WILLIAMS and CORA E. WILLIAMS, Respondents.

      lAability-of one executor for money received hy his co-executor — when he will he cha/rged with money receipted for, hut-not received hy him — -when for- money he has allowed an insolvent co-executor, to receive.

    Money lent by one executor to a co-executor,' in reliance upon a statement of the latter that- he intends to apply it to pay debts of the estate, is not a charge against the estate, and cannot be allowed to the executor so advancing the same on the passage of his accounts, unless it be shown by him that it was in fact, actually, so applied. ■
    Two executors, having, in pursuance of a power of sale contained in a will, executed a contract for the sale of certain real estate, the purchaser, made a payment thereon, by laying the money upon a table in the presence of both of the executors, one of whom picked up the money and put it in his pocket, and the other of whom signed a receipt, in his name alone, which was indorsed upon the back of the contract. The executor who took up the money was insolvent and known to his co-executor to be so.

      Meld, that the executor so signing the receipt ’ was liable for- the amount so received by his co-executor.
    Although, when all of the executors join in the execution of a power of sale conferred by a will, each is, as a general rule, only liable for the application of so .much of the money received therefrom as actually comes into his possession or under his control, yet where one executor, knowing that his co-executor is in embarrassed circumstances and insolvent, allows the avails of such a sale to go into his hands, he is guilty of such negligence and want of care as to render him liable for the amount so received.
    What evidence that money came into the possession of an executor is sufficient to charge him therewith, considered.
    ■ Appeal by tlie above-named executor from a decree made by ■ the surrogate of Ulster county, February 2, 1880, upon the finaU settlement of his accounts, by which lie was decreed to pay to each of the respondents the sum of $1,986.20.
    Mary Williams, the testatrix, died in the month of April, 1868,. and resided then at Bondout with her husband, John Williams. She left four children — the respondents and two sons, all minors — ' residing with her and her husband at the time of her death. She made her will, giving two-thirds of her property to the respondents, to be equally divided between them, and one-third to her two sons, to he equally divided between them, and appointing her husband and Mr. Croft executors of her will, both of whom qualified as such. Mr. Croft, at the time of making such will and' for many years before, resided and was engaged in business at Peeksldll, and lias ever since continued to do so and Mr. 'Williams continued to reside at Bondout, and with him the respondents, until his death, which occurred in September, 1871-.' The testa-' Irix’ left no personal property; but left a house and lot at Bondoiit ii which she resided at the time of her death, and in which her liushand continued to reside with his children xintil his death ; asp, a farm in the town of White Plains, in Westchester county, which was-not-sold until an agreement for that purpose was entered into, November 23, 1869.
    In October, 1869, Williams applied to Croft for $2,000 to pay off a mortgage on the house and lot ■ at Bondout,. and hills and funeral expenses, which -amount was, oh October 13, 1869, ad;venced by Croft to Williams, and anoto was given.by the latter therefor, to secure the payment of which an interest to tlio, extent of $2,000 in a hon'd and mortgage of $5,000; 'held in trust. >y C. Frost for the executors of Mary E. Williams, ivas ¿ssignéd with the assent of said John Williams to Croft. This $2,000 and interest, not having been applied by Williams to the payment 'of debts of the estate, the surrogate refused to allow to Mr. Croft. ■
    On November 23, 1869, a contract was entered into between the executors and John Theill, for the sale of the White Plains farm and stock, and farming utensils thereon, for $16,500, the deed for which was taken by Mr. Charles Deuterman, the assignee of Theill, in the spring of 1870. There was a mortgage on the property which reduced the pur-chase money to be paid to the executors to $9,512.45, and which sum was paid as follows: $1,650, being ten per cent, of purchase-money, before the deed was given, to wit, $50 November 23, $800 December 18, 1869, $800 January 17, ■1870, $1,167.77 about April 19, 1870, in one check, and $6,694,68 at the same time, the time of delivery of the deed, by another check signed by Deuterman.

      Cabin Frost, for the appellant.

      J: Newton Fiero, for the respondents-.
   Learned, P. J.:

The first question relates to the $2,000. The circumstances aré as follows. The testatrix left no personal property of any consequence. She. left a house and lot at Rondout, and a farm' al White Plains, which the executors had a power to sell. She diei in April, 1868. In October, 1869, Williams, one of the executor», applied to Croft, the other, for $2,000. The purpose avowed tjy Williams, was to pay a mortgage on the house and lot, and to pay bills and funeral, expenses.. Thereupon Croft advanced to Wiliams, at that time, $2,000 ; and took Williams’s note therefor’, not signed as executor. Williams, at the time, made up, but did not execute, a paper, reciting that ho had paid out of his own funds this bond and mortgage, and a. note and' debts of the estate, amounting in all to $5,064.46; and containing an assignment' of these .-claims to Croft, as collateral , to the $2,000 -note. For this $2,000 note thus given to Croft, Williams confessed, judgment .to 'Cj’of-t, January, 1873..

Croft now claims to bo allowed for this $2,00.0 and interes thereto. The surrogate disallowed this, and properly. It was on its face a loan to Williams personally. If Williams stated that he was about to pay debts of the estate, and Croft lent him money for that-purpose, we see no reason for charging the estate on account of Williams’s intention, expressed but not performed. If an executor lends money to a co-executor, it is plain that this cannot be made a charge-against the estate, simply because the executor who borrowed it stated, honestly or falsely, his inte'ntion to pay debts of the estate. If Croft had then had money of the estate, this loan of it to. Williams would not have discharged Croft. (Adair v. Brimmer, 74 N. Y., 539.) Croft was bound to see that the money of the estate which came to him, was properly applied. So that, even if lye treat this transaction as an advance to Williams in his capacity as exqcutor, we do not see that Croft stands in any better position. Whatever debts Williams had, in fact, previously paid had been made good to him by money which came into his hands.

Second. The appellant objects that ho is charged with $800 received December 18, I860,, on the sale of the farm. It is ,not disputed that he received this money. His defense is that he paid it to his co-executor, Williams. He produces a receipt from Williams,mot as executor, dated two days afterwards, for the amount. For the reasons above given this does ■ not discharge him. We do ñot think-it necessary to discuss the point. If there may bo, sometimes; peculiar, circumstances under which such a payment to a coexccutor-would discharge an executor, none such exist in this case. The same may bo said as to the item of $G36.12, received by Croft, May TO, 1872.

Third. It is claimed by the respondent that Croft received, and should bo charged - ivitli, $50 paid by John Tlxeill November 23, 18G9, and also with $800 paid by him, as of the date of January 17, 1870. The appellant insists, as a matter of fact that lie did not receive.these.payments; and the surrogate so found. The respondent seeks to review these findings of fact. These sums of money were paid upon a'contract, made by Croft and Williams, as executors,'for. the sale'of. the White, Plains farm. The receipts for said payments are indorsed on the contract, and each is signed by Croft. ...

As to the $50, Theill, the purchaser, testifies that he paid it to Croft. Theill is interested, being the father of the testatrix; Croft at first testified that ho must have received it, as his siguaturo was there ; but that he had no idea he had ever seen it; that is, the money. Afterwards he testified: “Wo all stood by the desk, and Mr. Theill laid down the $50, tand Williams picked it up and put it in his pocket, and I receipted it.” Mr. Laird testifies to substantially the same facts. Mr. Laird is a lawyer, and drew the receipt. lie says that Theill came up and laid the money on the desk; that Williams took it up and put it in his pocket; and then that Croft signed the receipt.

The question of the liability of an executor, in such a case, cannot depend on such a merely formal matter as his actually touching,’-or handling the money. Suppose that Croft had picked up the money, had given a receipt for it, and then had handed it over to his co-executor, thus putting it in his co-executor’s power to waste or misapply it. Under the doctrine above cited, Croft would not have been discharged from the liability.imposed by his receiving the money. It can make no practical difference, both parties being together, that the money was not actually held, for a moment ór two, in Croft’s hands. The money was there, and within his power. By signing the receipt, he acknowledged that he was the executor to whose fidelity it was intrusted. He might have refused to sign the receipt, unless he should have the money. But by' signing the receipt, and consenting to Williams’s taking the money, he did substantially the same act as if a clerk of his had actually taken the money, and Croft had given the receipt.

Judge Story well says that, if two executors sign á receipt, it is prima facie evidence that the money came to the hand's of both; but either of them may show that his joining in the receipt was merely formal. (2 Story Eq., 1283.) But here the. other oxector did not sign; and Croft’s signing could not have been formal merely. Without his signature there would have been no receipt.

We do not mean to controvert the doctrine that a receipt may be explained. The difficulty is that Croft does '-not explain tin's receipt. On the contrary, he shows that, if he did not take manual possession of the money, it was because he voluntarily permitted some one else to take it away. (1 Perry on Trusts, 510.)

We think Croft was chargeable with the $50.

As to the $800 paid in January, 1870, Croft’s receipt is shown. Theill says that he sent the money, and that he was notified by his messenger that Croft would not sign the receipt; that ho went to see Croft the next day, and asked him if he received the money; that Croft equivocated; that he-asked Croft if he would indorse it, and said: “If you do not, I have my remedy;” that Croft then wrote the receipt on the contract and signed it. Croft denies that he received the money, or that he saw any one receive it; says that he does not know who received it; that he objected to signing the receipt, because he had not had the money.. To sustain Croft, it is testified by Laird that he drew up the receipt at the request of Williams. And it is testified, by one familiar with Laird’s handwriting, that the body of the receipt is in his handwriting. These receipts, it is to be noticed, are on that agreement which was held by the purchaser. The duplicate, held by the executors, contains only one receipt, that of the first $50. And Theill reiterates the • statement that Croft wrote and signed the receipt, and admitted that ho had had the money.

There is thus a perplexing conflict of evidence. It is difficult to understand how Williams could 'have brought -to Laird the fur-chaser's duplicate of the agreement. Theill was not present at that time. Williams did not sign the receipt.

If wc leave out the evidence of Theill and of Laird, as contradictory as to who wrote the body of the receipt, and come to the examination of the evidence on the real point, viz., whether Croft had the $800, it stands thus: The next of. kin produce Croft’s receipt for the money, admitted to be genuine ; and there is no doubt that the money was paid to some one. . Croft, on .the other hand, denies that he received it, and does not show that it was received by any one else. Croft has lie ver. kept any account with the estate, and, even since the death of Williams, he has never kept the moneys of the, estate separate. Thus the denial of’ the receipt of the money stands on his uncorroborated testimony, without anything like a voucher or a contemporaneous series of entries to support his denial. The case would be different, if he showed affirmatively that Williams received the money, or if his account as executor, kept at that time, showed that no such money was entered therein. But, as it is, there is nothing to contradict his receipt but his own testimony. We do not think, that his own evidence is enough to discharge him as to this item.

Fourth. The next item which the respondents say should have been charged against Croft is that of $1,167.77, paid in April, 1870, when the deed of the farm was given, and which .was a part of the purchase price. The payment was made by a check of Deuterman, to whom Theill had transferred the contract. The check was to the order of Theill, indorsed by him.

Croft testified that the money was counted out and laid on the table, and Williams took it up. Afterwards he stated that it was a check, draft or money which was paid. Laird testifies that the purchase-money was paid in two cheeks, both handed by Deuterman to Williams, in'Marshall’s office; and that the next morning Williams went over to the Westchester County National Bank, where, it appears, that a check of this amount was cashed on April 20, 1870.

: Mr. Marshall, a lawyer in whose office the business was done, testifies that Deuterman, Laird, Croft, and others were present; that he was acting for Deuterman ; that three checks were, drawn by him, to order of Theill, and were signed by Deuterman and delivered to Theill; that ho does not recollect Williams being there. Dcuterm.an .testifies that he did not hand the checks to Williams. , Theill gays that ho handed the checks to Croft. The.evidence, therefore, does not, we think, charge Croft, on the ground of his receiving the.money. No receipt was given. Whether ho.is liable,.onthe ground of joining in the deed, will bo considered hereafter.

Fifth. It is claimed that Croft- should bo charged with two payments of $1,000 and $1,500, respectively, made on the Ingersoll bond and mortgage. At the time of the conveyance of the farm to Deuterman there was an apparent lion by judgment thereon. For this reason a part of the purchase price, $6,694.6.8, was, by agreement, held by Mr. Frost in trust, until the judgment should cease to be a lien. Afterwards the sum of $5,000, part .of this money, was invested in the Ingersoll bond and mortgage, which was subsequently assigned by Mr. Frost to Croft and Williams, executors. And the question now presented relates to payments made and indorsed on that bond.

The first is that of $1,500, September 27, 1872; the other is that of $1,000, June 20, 1873. Both of these payments are indorsed on the bond; and the receipts therefor are signed by Croft as executor.

Mr; Frost testifies that it is his recollection that, when judgment was about to be taken on a foreclosure of this bond and mortgage, he noticed that the indorsements were not signed; and that he asked Croft to sign them; that this was about May or June, 1875 ; and that Croft did sign them then.

Croft testifies that it is his impression that he signed these receipts all at one time. There are three receipts, one for $036.12, May 10, 1873, which money it is undisputed that Croft received. Croft testified, at first, that he never received any of the money mentioned in the three receipts. Afterwards he testified that he found that the $636.12 had been paid, in his absence, to his bookkeeper, from Ingersoll.

Ingersoll testifies that he made these payments to Williams. He even testifies (as to which he is plainly mistaken), that he paid the $636.12 to Williams. He has no memoranda or receipts.

The respondents urge the following facts. A receipt is produced, dated September 27, 1862, of $1,000, given by Williams to Croft as co-executor of the above estate. It is preceded by a statement of sums, alleged to have been paid by Williams, amounting to $901. The receipt is mutilated. It concludes,- “in consideration upon the future settlement.” They show also a deposit by Croft in his bank account, September 27, 1862, of $500, and they urge that these two sums make up the $1,500, paid that day.

Now, this receipt of Williams, given to Croft as co^exeoutor, with its reference to future settlement, is evidence, of some weight, that Croft had at least $1,000 of the money of the estate from some source. And, as ho kept no separate account, the $500 may well have been the residue of the $1,500. As the receipt is signed by him, his own evidence ought not to be enough to discharge him. True, we have the testimony of Ingersoll. But he is admitted to have been mistaken as to the payment of the $636.12; which Croft acknowledges, on more careful examination, that he received. Why should Ingersoll be more accurate as to the other payments ? And if Williams, in fact, received on September 27, this $1,500, what need was there that Croft, as co-executor, should advance him $1,000 more on the same day ?

It seems altogether incredible that Willliams should have in fact received this $1,500 from Ingersoll, on September 27, and that, besides this sum, Croft, on the same day, as co-executor, should have advanced Williams $1,000, to meet alleged payments by Williams of $901. It is very probable, as Ingersoll says, that Williams was pressing for money. And if Croft received the $1,500, and at once gave $1,000 to Williams, Ingersoll may easily be mistaken as to the actual recipient of the money.

There was some evidence given tending to show that the indorsements were signed at the time of the foreclosure. The counsel who conducted the foreclosure was not certain as to this. And, therefore, we are at liberty to examine the probabilities freely. And we are unable to understand why it was needed, at the time of taking judgment of foreclosure,' or at any other time, that the indorsements of money, paid on the' bond, which had been made without signature, should then be signed. It was not pretended that these «payments had been made to the attorney fpr the executors ; so that be should need vouchers for his own protection.

The payments had been made to one, or the other, of the parties in interest; their own attorney was foreclosing; and no one disputed the fact of payment. The counsel’s recollection was not perfectly certain, as he said, on the matter. If any one had desired to have the indorsements signed, it would seem probable that tbis would be Ingersoll, and not the attorney of tbe owners of the bond and mortgage.

At any rate, it is not very material when the receipts were signed. Whether signed at the time when the money was paid, or afterwards, they are evidence that Croft was the executor who had the money. We can hardly suppose that Mr. Croft’s attorney would have asked him to sign receipts for money which he had not had ; knowing, as a lawyer would know, the risk to which he thus exposed his client, by an act altogether unnecessary. On the whole, we do not think that Croft has satisfactorily done away with the presumption arising from his signature to the receipt for $1,500 ; and that he is chargeable therewith.

Next, in regard to the $1,000, receipted for as of June 20,1813 ; much that has been said above applies to this also. The testimony of Croft and of Ingersoll is substantially the same, as to this item. His cash book shows a deposit June 23,1813, of $1,060.

On June 21, only a few days afterwards, Croft paid to Williams $150, which, as in the former instance, indicates the possession of funds of the estate. The counsel for Croft, in answer to this, say that he had received May 10, 1813, from this Ingersoll bond and mortgage $636.12, the item above spoken of; and that he thus had funds out of which he could advance to Williams the $150.

■ .But the conclusive reply is that Crofts, in his account, credits himself, as of May 10, 1813, with this vqry sum of $636.12, as then paid to Williams, his co-executor. It is true that he did not prove' this payment by any voucher. But his putting it in his account contradicts his claim that it made a part of the subsequent payment of $150. Therefore the $150 musthave come from some other source. From what, if not from the $1,000 ?

For these reasons, more fully stated previously, we think that Croft has not done away with the presumption arising from his signing the receipt for $1,000 ; and that he is chargeable therewith.

Sixth. It is claimed by the respondents’ counsel that, aside from the question of fact, as 'to the receipt of the moneys arising from the sale of the farm, Croft is liable for all the avails thereof, on the ground that he joined in the execution of the power of sale.

We do not think that this position is well taken. It was necessary for all the executors to join in the deed. (1 R. S., m. p. 735, § [112].) On the execution of the deed, one or the other executor must receive the money. And therefore the claim, contended for by the respondents, would make one- executor liable, in spite of himself.. For each ought to join in the execution of the deed, in order to carry out the will of the testatrix; while, as both could not receive the money, one or the other would be liable for money which never had come to his hands.

Even in regard to property which one executor alone may transfer it is often reasonable that the other should join, to show his approval of the act. But it would be most unreasonable that, when none of the avails had come to his hands, he should be chargeable, merely for approving of the transfer.

The testatrix, in this case, placed confidence in each of the executors; and gave to each the power with which the law clothes such persons. It is enough to hold each responsible for the faithful application of such part of the estate as he'actually received, when it was sold under the power. We think' that this Nile is sound, although there have been some deviations from it. (1 Perry on Trusts, § 420 et seq.)

Seventh. The respondents urge again that Croft so negligently managed, and so carelessly permitted his co-cxecutor to waste the estate, that he should on that ground be held liable for all the assets which he might have cared for and preserved. (Clarkv. Clark, 8 Paige, 153 ; Elmendorf v. Lansing, 4 Johns. Ch., 562.) The doctrine on which the respondents rely, is stated in Adair v. Brimmer (74 N. Y., 539, 566). The important question is the application of the doctrine to the facts of the case.

Letters testamentary were issued in May, 3 868. Croft knew, before the death of the testatrix, that Williams, -his co-executor, was pecuniarily involved. Ho says that he did not account him solvent; but declines to fix the time when he thought him insolvent. Ho testifies that Williams received $1,167;77 (the sum above spoken of; with his consent, and in his .presence; and that he then knew him to be entirely irresponsible. He testifies that he knew, within a few months after the ' testatrix’s -death,..that Williams was badly cramped, and had been trying to compromise his debts; and that, in his own business,, he .would not have trusted a man in such condition. lie testifies that Williams crowded him, because ho was hard up and cramped. He heard that the going west of Williams’s father-in-law cost Williams §600, and a piano $600. Again, he testifies that he know that Williams was using the money for himself and his family; that he advised him to invest the money, but did not understand that Williams did so; or that he kept a separate account. He testifies that he made no inquiry as to the debts of the estate; or as to how much of them-Williams paid. That Williams . was sometimes in the. tobacco, and sometimes in the crockery .business, and his crockery store would not have brought $300. .That he was continually wanting money. That he did not think the. $1,167.77 would last. Williams long.

Now, without going over the evidence in any further detail, if is evident that, from the first appointment of the .executors, Croft knew that Williams was an embarrassed and insolvent man. And that, under the knowledge of this. fact, instead of taking car.e of. the avails of the sale of the farm, he allowed them to go into Wil- • liams’s hands, without any good reason to believe that they would be properly applied: It is very plain also that, in fact, the avails which passed into Williams’s hands were not properly applied. • The account of Croft contains items of board and clothing paid for the children. But we do not see that proof is given that Williams, used for their benefit the money which thus came to his hands.

We think, therefore, that such negligence and want of care have been shown, on the part of Croft, that he should be held liable also for the item above-mentioned under the fourth head, of. $1,167.77, in having permitted this money to go into the hands of an insolvent co-executor, when he had reason to believe it would not be properly used.

The decree should be modified accordingly, with costs against - appellant personally.

Present — Learned, P. J., Bookés and Westbrook, JJ.

Decree modified, with costs, against appellant (executor) personally. Order to be settled before Learned, P. J.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    WILLIAM EBERSOLE, Respondent, v. THE NORTHERN CENTRAL RAILWAY COMPANY, Appellant.

      Jury — submission of questions to, for special findings — right to withdraw them, when they cannot render a general verdict without malting the special findings.

    The plaintiff, one of the defendant's employees, brought this action to recover damages for injuries occasioned by a collision between the car in which he was riding and one in another train. The defendant claimed and the plaintiff denied, that at the time of the accident the plaintiff’s arm was outside of the window, by which he was seated. The judge submitted to the jury four questions, which they were directed to pass upon in addition to their general verdict; the first involving the question of the plaintiff’s contributory negligence, and the other three, the negligence of the defendant in employing- certain persons named, and the negligence of one of such employees. After retiring, the jury asked whether they were at liberty to find a general verdict, without passing on the special questions submitted te them, and were informed that if they could agree on a genera! verdict and could not agree.on the special findings, they might find sue!) a verdict and .come into court and report, and the court would do what it thought proper. Thereafter the jury found a general verdict for the plaintiff for $0,000, and stated that they could not agree as to the special findings... The defendant's counsel excepted to the verdict as irregular and moved to set it aside.

      Held, that the reply of the court to the question of the jury was not equivalent to a withdrawal of the special questions submitted to them, nor was the failure of the counsel for the defendant t.o except to what the court then said, a waiyer. of his right to object to the rendering of a general, verdict alone.
    That as there was nothing to show that the jury had agreed in deciding the - first of the questions submitted to them (that relating to the plaintiff’s contributory negligence) in favor of the plaintiff, a general verdict in his favor could not be sustained.

      Qumre, as to whether after special questions have been submitted to a jury, they can be withdrawn, without the consent of the- parties, when the. jiffy intimate that they cannot come to an agreement thereupon, and as. to whether, in any case, a general verdict and a report that they cannot agi-ee on the special findings can be allowed to stand.
    .Appeal from a -judgment in favor of the plaintiff, entered upon • the verdict of • a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    - This action was, brought to recover damages for an injury, alleged .to have ,bcen .v&aused to the plaintiff’s arm while riding on the de* fendant’s cars. The plaintiff was in the employ of the defendant, and at the time of the accident was traveling on duty in one.of the defendant’s passenger trains. Questions were raised as to the defendant’s negligence, and one question as to the plaintiff’s negligence. The injury was caused by another ear, which ran along the side of that in which the plaintiff was sitting and came into collision with it. It was claimed by the defendant that plaintiff’s arm was out of the window. It was claimed by the plaintiff that' his arm was not out of the window, unless it was thrown out by the concussion. It would seem that, either by his .own act or from the effect of the concussion, the plaintiff’s arm was out of the window when the injury happened.
    The court submitted to the jury four questions on which they were directed to pass, in addition to their general verdict.
    1. Did the plaintiff have his arm wholly or partially outside of the window at the time of the accident, or beyond the window-sill; and was it so placed by the plaintiff, or was-it thrown out by the concussion. As to this, the court directed the jury to write .beneath it such a finding as they believed was in accordance with the evidence.

      2. Was the defendant guilty of ■ negligence in employing or re- ' taining the switchman O’Brien ?
    ' 3. Was the defendant gu:*ty of negligence in employing or retaining the engineer O’Neil ?
    4. Was the engineer O’Neil guilty of any negligence in running his locomotive or the train at the time of the accident?
    It appears by the case that after the jury had retired, they came back into court and asked, “Are we at liberty to find a verdict, without passing on the special 'findings ?”
    The court replied, “The jury have a right to find; they may find .such a verdict, and come into court and report. If you can agree on a general verdict, and cannot on the special findings submitted to you, you may so report, and the court will do what it ' thinks proper.” ■ ' ■ '
    Thereafter the jury came into court, and found a general verdict for the plaintiff, $6,000, “ and as to special findings say they cannot agree.” The counsel for defendant excepted to the verdict as irregular and improper, and on this ground and others moved to set the verdict aside. The court refused to do this, and, in a memorandum, stated that if, to sustain the verdict, it had been necessary for the jury to find affirmatively on all the special questions, and if they had not done so, the verdict would have been set aside. But that it was not necessary to find affirmatively on all the specific questions, to sustain the general verdict. That the verdict could be sustained if they found affirmatively on a part of those specific questions. That the law will presume that they found affirmatively on sufficient of the specific questions to sustain the verdict, and disagreed as to the others. The defendant appealed.

      G. M. Diven, for the appellant.

      John Murdoch, for the respondent.
   Learned, P. J.:

It is- argued-, in the first place, by the respondent, that the court,in effect, withdrew the special questions from the jury, without objection on the part of the defendant. Such does not seem to have been the fact. The court told the jury that, if they could not agree,, they might so -report. This was not a withdrawal, because it implied that they were to consider the questions, and that they might perhaps agree thereon. If they had agreed on these special questions, no one would have said that the questions, had been withdrawn. Whether or not special questions can be withdrawn, and when tins may be done, are therefore matters not involved in this case. If a court should say to a jury (where there were no special questions), “ if you cannot agree you may report to the court,” this would not be a withdrawal of the case from them.

In the case of Moss v. Priest (19 Abb. Pr., 314), the jury rendered a general verdict for plaintiff; and, through some mistake, the foreman made an oral answer in the affirmative to.the questions. No written findings were made, and no entry of the verdict. No objection was made at the time. Afterwards the defendant moved to correct the verdict, by directing the answers to be entered. This was granted by the court below, but reversed by the General Term of the Superior Court; unless the defendant would consent that two of the answers should be in the negative. That case, therefore, does not apply to the present. Taylor v. Ketchum (35 How. Pr., 296), briefly holds that a judge can withdraw a special question. It does not appear when such withdrawal was. (Fraschieris v. Henriques (6 Abb. Pr., N. S., 251) does not touch this question here involved.

The defendant further insists that there was no exception at the proper time. The court, in saying that the jury might agree on a; general verdict, and report that they could not on the special findings, added, .“the court will do what it thinks proper.” This might mean that the court would send the jury put or refuse to receive the verdict. We do not think that the defendant’s rights were lost by a failure to except at that time. ' On the actual coming in of the jury and their rendition of the verdict, an exception was taken.

The Code of Civil Procedure is silent on the effect of an inability pf the jury to agree on the special questions. (§§ 1187,1189.) ¡

The learned justice who tried the cause was of the opinion that the report of the jury, that they could not agree as to special findings, -justified a presumption that they found on ■ sufficient of these to sustain the verdict, and disagreed as to the others. It is difficult-to understand how a report that they could not agree on special findings. meant that they did agree on some. Why did they not specify those on which they agreed ?

■ It is possible that only four jurors agreed on the affirmative to each of the questions, 2, 3 and 4; and then that all the jurors united' in the general verdict. Even supposing this to have been proper, the difficulty- remains that the question of the plaintiff’s contributory negligence was submitted to the jury in the first question and in no other.- To justify the general verdict, therefore, the jury were bound- to give, in their own minds, an answer to that question. Even if it-be permitted that the several, jurors should believe, in their minds, -that the defendant’s negligence consisted in several different things; still, to justify a verdict, there must have been an agreement on the plaintiff’s want of negligence. Wc do not-see anyground for presumption that the jurors agreed on an answer to the first special question. And. if they could not agree on that, how could they, in good faith, render a verdict ?

We arc not aware what is the special object of this system of submitting questions. Bat it may have the good effect of requiring a jury to come to distinct conclusions on the several matters iu issue, instead of rendering what are called, compromise verdicts. And perhaps the present may bo an instance where tho jury could not agree that the plaintiff had not been negligent; could not agree On any specific negligence of which the defendant had been guilty; but found it easy to agree that the defendant, a corporation, should pay- $6,000 to one whose arm had been lost in their employment, even by his own negligence or without any negligence of the defendants.

We are not prepared to say whether or not, after special questions have been submitted to a jury, they can bo withdrawn without consent of parties, when the jury intimate that they cannot agree thereon. It can readily be seen that such a practice might be evil. But that question is not before us now.

Nor do we need to say that, in every case where a jury find a general verdict and report that they cannot agree on the special findings, tho verdict cannot stand. We prefer to take the present case, just as it is. If tho jury were warranted in their own minds' in rendering the general verdict, they must have agreed that the plaintiff was not guilty of contributory negligence. That was submitted to them only by tho first question. If, in fact, they agreed On tho answer to that question, they could have said so. They said generally that they could not agree. Even admitting that conflicting views On the 2d, 3d and 4th might be mentally harmonized under a general conclusion of negligence, nothing of this kind could bo done as to the first. That presented the question for them to decide whether the plaintiff was negligent in the manner there stated. On this they evidently could not agree.

To have rendered a general verdict without agreeing on that first question was a violation of their duty.

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

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

Ordered accordingly.'


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    GERTRUDE FONDA, Respondent, v. JAMES R. CHAPMAN, Appellant.

      Application to sell lands of deceased, to pay debts — how far mortgagees and purchasers from heirs are protected — 1860, ch. 845; 1873, eh. 311.
    November 80, 1873, one Close died, intestate, leaving, him surviving a , daughter, his only child and heir-at-law, to whom certain real estate of ' which he was seized, descended, and of which she took possession. Thereafter, and on April 29, 1870, she mortgaged a part of the real estate to one ■ Brown, who thereafter assigned the mortgage to. the defendant Chapman, who, on January 20, 1880, commenced a statutory foreclosure thereof. On December 80,1879, letters of administration upon the estate of Close were, for the first time, issued to the plaintiff, as a creditor; the intestate having been indebted to him upon certain notes, the interest upon which had up... to that lime been paid by the daughter. On April C, 1880, the plaintiff instituted proceedings to have the land mortgaged, leased or sold, for the' payment of the intestate’s debts, and on April 31 brought this action to Lave the defendant restrained from proceeding with the .foreclosure of his . mortgage.

      Held, that the action could not be maintained.
    Chapter 845 of 1869, as amended by chapter 211 of 1873, providing that no-real estate, the title to which shall have passed out of. any heir or devisee,, .by conveyance or otherwise, to a purchaser in good iyilh and for value, should be sold unless letters have been applied for within four years from the death, nor unless an application for a sale has been made within three years after the granting of letters, applies to and protects one talcing a mortgage Upon the real estate, within the times therein specified, provided the said time has elapsed before proceedings to sell the land for debts have' been commenced.
    Appeal from an order granting a temporary injunction.
    This action was brought to restrain the defendant from proceeding: by.a statutory foreclosure to sell certain real estate formerly belonging to Lewis P. Close, deceased, during the pendency of proceedings before the surrogate, for a sale of the said premises to pay the debt of the said Close. The defendant claims .under a mortgage executed. by Maria A. Root, daughter and solo heir-at-law of the said Lewis P. Close, which is the mortgage sought to be fore.closed. The plaintiff is a creditor of the said Lewis P. Close, and claims that her lien as such creditor is superior to the claim of the defendant, and that her right to have the property of the said Close applied to the payment of his debts is superior to the right of the defendant to sell the property under a mortgage given by the heir-at-law. Lewis P. Close died November 30, 1872, and letters of administration upon his estate were issued to the plaintiff as a creditor, December 30, 1879.

      Putnam <& Pustis, for the appellant in each case.

      Ojiarles 8. Lester, for the respondent.
   Learned, P. J.:

Lewis P. Close died November 30, 1872, intestate, and indebted to the plaintiff on notes, past due. He left surviving Maria A. Hoot, his only child and heir. At his death he was the owner of real estate, which descended to her, and of which she took possession. No letters of administration were issued on his estate until December 30, 1879 ; when they were issued to the plaintiff as a creditor.

On April 29, 1876, Maria A. Hoot executed a mortgage to Orton J. Brown, on a part of the real estate, which had thus descended to her. Brown assigned the same to Chapman, and on January 20, 1880, Chapman commenced a statutory foreclosure. On April 6, 1880, the plaintiff presented to the county judge (the surrogate being incompetent), a petition for authority to mortgage, lease, or sell lands of the intestate for the payment of debts. That proceeding is still pending. On April 21, 1880, the plaintiff commenced this present action, by which she asks to enjoin Chapman from proceeding with the foreclosure of his mortgage. An injunction venciente lite was granted, and the defendant appeals.

It appears, also, that another mortgage on these premises was given by Maria A. Hoot to Brown, May 1, 1875; and that another mortgage on the same premises and on other premises, which also descended to her from the intestate, was given by her to one Walbridge, May 30,1876. It also appears that she paid the interest on the plaintiff’s notes until January, 1879; and also, that Brown, before taking the mortgage in question, inquired of her whether the intestate left any debts, and was informed by her that he did not.

It is elementary law that the heir takes an absolute title to the land of the intestate, subject only to be defeated, or charged with the debts of the intestate, in the manner provided by the statute. (Covell v. Weston, 20 Johns., 414; Pierce v. Alsop, 3 Barb. Ch., 184; Wilson v. Wilson, 13 Barb., 252.) Mrs. Boot was at once the legal owner, on the death of her father, and had a right to mortgage or sell. The purchaser, or mortgagee, took a valid conveyance, subject only to be defeated by the statutory power.

As the land thus descended to the heir, she became liable for the debts to the extent of the land descended. (2 R. S., m. p. 452, §§ 32 et seq., 49, 51.)

Another statutory remedy has been given; the sale by order of the surrogate. Before the Bevisod Statutes, a similar proceeding was to be had u as soon as conveniently may be.” (1 N. R. L., 450.) This meant, within a reasonable time. (Mooers v. White, 6 Johns. Ch., 360 ; Jackson v. Robinson, 4 Wend., 478.) The re visors limited the time to three years after appointment. (2 R. S., m. p. 100, § 1, Rev. Notes.) As administration might be granted, long after the death of the intestate, a lasting uncertainty remained. Hence chapter 845 of Laws 1869, amended by chapter 211 of Laws 1873, provided that no real estate, the title to which shall have passed out of any heir, or devisee, by conveyance or otherwise, to a purchaser in good faith and for value, should be sold .... unless letters . . should have been applied for within four years from his death, nor unless application for such sale should be made within three years after the granting of such letters. This limited even sales in proceedings commenced by creditors. (See Ferguson v. Broome, 1 Bradf., 10.)

This statutory j>ower* has been loosely called a lien. But the language is not accurate. In Matthews v. Matthews (1 Edw. Ch., 565), V. C. McCoun well said that the debts of the decedent were not a lien, and he refused partition on that ground ; adding that, if they -were a lien, the amount thereof might be ascertained on a reference and piaid out of the proceeds. The language of McLean, J., in Watkins v. Holman (16 Pet., 62), was used in reference to the validity of a special act of Alabama. In Jewett v. Keenholts (16 Barb., 193), the only question was whether crops passed under a surrogate's sale. Mr. Justice Barculo, in Hyde v. Tanner (1 Barb., 75), merely calls this “ a kind of statutory lien.”

Nor do we see that there is a question of equity between these parties. Each is acting in good faith. The plaintiff is seeking to collect her debt out of these lands by a statutory proceeding. The defendant is seeking to enforce, on the same lands, his lien, by another statutory proceeding. No fraud is alleged on either side, and each is pursuing a legal remedy.

And it might, with much force, be said, therefore, that these parties should be left to their legal remedies, and that the question which title should prevail, viz., that under the foreclosure or that under the surrogate’s sale, should be determined in a controversy between the respective purchasers.

But the plaintiff insists that the execution of the mortgage did not pass the title out of Mrs. Boot. It is well known that a mortgage, in this State, is treated as a security for a debt. But in construing a statute like this, we must inquire what was its object. And the object plainly was to permit heirs and -devisees to deal freely with the land, unembarrassed by the danger of á sale under a surrogate’s order, after a certain time had elapsed; or rather, to make it safe for others to deal with them. Now, saying that a mortgage which should cover (for instance) the full value of the property is not a passing of title, under the statute, would be adhering to the strict letter instead of accepting the plain spirit. This is apparent, also, from the proviso added in chapter 211 of Laws of 1873, for the filing a notice of Us pendens during an action against an executor and for the removal thereof.

It may be suggested that, as the mortgage was executed within four years from the death of Close, the mortgagee is not protected, even assuming that the conveyance was a passing of title. But the contrary was decided in Parkinson v. Jacobson (25 Sup’m. Ct., 353). There a conveyance was made by the heir, and a mortgage taken back, two years after the death of the ancestor. On a foreclosure of this mortgage, when some ten years had elapsed and no letters had been issued, it was held that, under the act of 1873, the purchaser at the mortgage sale took a good title. To the same effect is Waring v. Waring (3 Abb. Pr., 216). And the language of the statute is expressly a limitation on tho time within which the surrogate may order a sale of property of which the title shall have passed out of tho heir or devisee.

It is suggested that the claim on the plaintiff’s notes has been barred by the statute of limitations. On this we express no opinion.

' It is argued by the plaintiff that the defendant’s lien may, by foreclosure, make in the purchaser an absolute title. Assuming that this might be so, we do not think that the defendant should he enjoined. Whatever rights he obtained by his mortgage he should he allowed to enforce. There is nothing inequitable in his doing-so.

The order should be reversed, with $10 costs, and printing disbursements.

Present — Learned, P. J., and Westbrook, J.

Order reversed, with $10 costs, and printing disbursements, and motion for injunction denied, with $10 costs.


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    DAVID DILL, as Executor, &c., of RACHEL J. MILLER, Deceased, and DAVID DILL, Individually, Respondent, v. MARY WISNER, Appellant, Impleaded with others.

      Devise of real estate charged, with the payment of debts and legacies — by whom, the same-are to be enforced — the executor cannot maintain an action to do so.

    The plaintiff’s testatrix, after making certain specific and pecuniary legacies, and bequeathing the residue of her personal property to a Mrs. Dill, devised her real estate to two persons named in the will, charged with the payment of all her just debts, funeral and testamentary expenses, and pecuniary legacies. One of the said devisees, acting, as lie claimed, as executor, collected the rents of the real estate from the death of the' testatrix, April 6, 1877, up to October 3,187S, when, discovering that the debts exceeded the value of the farm, the devisees executed a deed renouncing and releasing their interest in it. Thereafter this action -was brought by the said executor for a construction of the will and to have the real estate sold to pay the debts and legacies, which exceeded in amount both the real and personal estate. It was not shown that the heir-at-law, who was the principal creditor of the estate, had been informed of the renunciation of the devisees, or had been asked or had refused to pay and discharge tho debts and legacies.

      Held, that if the devisees accepted the devise they became personally liable for the payment of all the debts and legacies charged upon it.
    That if they refused to accept it, the land descended to the heir-at-law of the testatrix, charged therewith, and that it was the right and duty of the creditors and legatees, and not of tho executors, to enforce such charges in an appropriate action.
    That this action could not be maintained.
    Appeal from a judgment in favor of the plaintiff, entered npon tlie trial of this action by the court without a jury.
    Rachel J. Miller, by her will, after making several specific legacies of furniture and silver, and giving pecuniary legacies to the amount of $2,400, gave the residue of the personal property to Radiol II. B. Dill. She gavo the real property to Matthew J. Dill and David Dill, charged with' the payment of all her just debts, funeral and testamentary expenses, and pecuniary legacies. She made David Dill and Lewis Wisner her executors, and she died April 6, 1877, leaving the defendant, her only surviving sister and heir-at-law. The will was proved, and letters thereon Issued.
    Lewis Wisner refused to qualify, and David Dill became sole acting executor. The personal property inventoried $1,146.10 ; of which $332.50 represented tho value of the furniture, &e., specifically bequeathed. The debts proved to be as follows : A claim of the defendant, disputed by tbe executor, on which she recovered judgment December 7, 1878, for $4,162.87. A claim of Fred. L. Westbrook, also disputed, on which he recovered $585.35 ; a judgment of Mary Bamon for $64.54, and medical attendance, $30.50. David Dill collected the rents of the real estate the first year. The next year he took possession of the farm, lie says, as executor, and worked .it on shares with his brother, Matthew J'. Dill, and he was in possession until October, 1878. Tbe farm is of the present value of about $4,000. On October 2, 1878, when it was becoming apparent that tlio debts exceeded the value of tho farm, Mattliew J. Dill and tlie plaintiff executed a deed poll, renouncing all claim to the farm, and recorded the same.
    On November 23, 1878, lie commenced this action, making the legatees, pecuniary and specific, parties, setting forth the will, the debts, the renunciation of the farm by the devisees, alleging that he could not proceed without obtaining the judgment of the court, and asking the judgment and direction of tlie court on several questions there propounded. The action was brought to trial on the facts substantially set forth above. A decision was made, and judgment thereon granted, that the farm was primarily charged with the debts, funeral expenses and pecuniary legacies, and.should be sold therefor by a referee ; that the personal estate was exonerated ; that, on the refusal of the devisees to accept the farm, there was imposed on the executor a trust to marshall the assets, convert them into cash and pay them to tlie parties entitled thereto ; that the mesne profits of the farm constituted a fund for the payment of debts and legacies ; and the referee was directed to. ascertain them, and the executor to collect the same ; that the referee was to pass the accounts of the executor and ascertain tlie liens and charges on the fund ; that if the moneys raised from the real estate were insufficient, the personal property should be sold and the proceeds applied.
    On February 18, 1879, David Dill was cited on the application of a legatee to render an account before the surrogate, which proceeding is still pending. In his account he charged himself with the rent, of the farm, and produce and crops raised on the farm and still on hand. lie claimed to credit himself with certain legal expenses, to which the defendant objected.

      D. If. De Witt, for the appellant.
    Neither the provisions of the will, nor the situation of the plaintiff as executor, warranted the commencement of a suit in equity for the construction of tlie will, or for instruction as to his duties. {Bowers v. Smith, 10 Paige, 193; Onderdonlc v. Mott, 34 Barb., 106; Walraih v. Hardy, 24 Now. .Pr., 353; Bailey v. Briggs, 56 N. Y., 407, 413 ; Chisman v. Montgomery, 4 Hun, 739,742 ; Smith v. Roekef 'allow, 3 Hun, 295; O. & I. O. R. R. Co. v. Vi. á C. R. R. Co., 4 4 Id., 712, 714.) Under tlie will in question, the executor liad no control over the real estate, had no duties with respect to the real estate, but the farm passed to the devisees (provided they accepted the devise) as fully exempt from all authority of the executor, as it would have descended to the heir-at-law in case of intestacy. (2 R. S., 82, § G, subd. 7; Kohler v. Knapp, 1 Bradf., 241; Fay v. Hallaran, 35 Barb., 295; Payn v. Beal, 4 Denio, 410; Cleveland. v. Whiton, 31 Barb., 54G. See also Brevoort v. Me Jimmy, 1 Edw. Ch., 551; Wilcox v. Smith, 2G Barb., 330, 337; Griffith v. Beecher, 10 Id., 432, 434; Redf. on Wills, Part II., p. 120 ; l R. S., m. p. 729, § 5G ; Redf. on Wills, Part II., p. 121; Stearns v. Stearns, 1 Pick., 157 ; Tole v. Ilardy, 6 Cow., 333, 339.) The circumstance that the real estate is charged with the payment of debts and legacies docs not devolve upon the executor any trust in the land, nor impose upon him any duties with respect thei*oto. (Willard on Executors, 314, 328; 2 R. S., 102, § 14; Matter of Fox's Will, 52 N. Y., 530, 536, 537; Redf. on Wills, Part II., pp. 220, 221; Holler v. Griffiths, 3 Paige, 402.) The renunciation of the devisees can make no difference in the duties of the executor. The land descends to the heir-at-law, as in the case of intestacy ; and chargeable in equity with the payment of debts and legacies, when "they would have been chargeable in the hands of the devisee. (4 Kent Comm., pp. 533, 534 ; Birdsall v. Hewlett, 1 Paige, 32; Goddard v. Pomeroy, 36 Barb., 546; James v. James, 4 Paige, 115 ; Willard Eq. Jur., 4S9.) The court erred in holding that the real estate is primarily liable for debts and legacies, and the personal estate exonerated therefrom. ( Walker v. Jackson, 2 Atk., 624; Hoes v. Van Iloesen, 1 N. Y., 120, and cases cited ; Willard on Executors, 393 ; Willard Eq. Jur., 564; Greene v. Greene, 4 Madd., 148 [82] ; Bootle v. Blundell, 1 Meriv., 230; Hawley v. Jam.es, 5 Paige, 318, 448; 2 Williams on Executors, pp. 1541-1549, and 2 Jarman on Wills, pp. 565-587.)

      Winfield; Leeds c& Morse, for the respondent.
    Where the land is charged, and the whole personal estate is bequeathed specifically, and not as a residue, the personalty is exonerated. {Youngs v. Youngs, 45 N. Y., 254; Larkvn- v. Mann, 53 Barb., 267; Sparks
      v. Van Alstyne, 18 Wend., 199 ; Story on Equity, § 57-4; Walker v. Jackson, 2 Atk., 624; Bicknell v. Page, 2 Id., 79.) The charge upon the land created a trust, and the refusal of the devisees to accept the devise will not defeat it nor exempt the land from the charge. The executor, whose duty if is to pay the debts, will be regarded in equity as a trustee, and the beneficiaries (as creditors and legatees) will be regarded as cestuis que trust. {Benson v. Leroy, 4 Johns. Ch., 651; Bailey v. Ekin, 7 Yosey, Jr., 323; Lewin on Trusts, 6 ed., 123, G27 ; 2 Washburn on Real Prop., 172; Glark v. Grego, 47 Barb., 599; 2 R. S., 730, § 68 [6 cd., vol. 2, 1110, § 81]; 2 R. S., 734, § 100 [6 ed., vol. 2, p. 1116, § 121] ; xj>. Turner, 9 Mod. 418; Elliott v. Merryman, Barn., 81; B. G., 2 Atk., 41; Lewie on Trusts, 627.) The devisees -were not bound to accept the devise, and had a legal right to refuse it. Nor were they bound to make an election in this respect, until they had knowledge of all the facts as to the amount of the liabilities of the testatrix, which they would have to assume if they took the devise. {Gridley v. Gridley, 24 N. Y., 130; 3 Washburn on Real Prop., 700; 2 Redfield on Wills, 304; Wheeler v. Lester, 1 Brad., 293; Messenger v. Andrews, 4 Russ., 478 ; Ghamberlain v. Ghamberlain, 1 Ch. Ca., 256 ; Roper on Legacies, 855; Story on Equity, § 1098.)
   Learned, P. J.:

The charge upon the land did not create a trust, in any accurate meaning of the word. It imposed only a lien or incumbrance. (Matter of Fox's Will, 52 N. Y., 530.) We are cited to no case in this State holding the contrary. Benson v. LeRoy (4 Johns. Ch., 651) was the case of a devise to trustees, in trust to pay debts and distribute the residue. It was not the case of a mere charge on lands devised. Clark v. Crego (47 Barb., 599) decides nothing on the point. There is no trust expressly given to the executors ; and it is not necessary to imply any.

It seems, this devise, if accepted, made the devisee personally liable to pay the liabilities charged thereon. (Gridley v. Gridley, 24 N. Y., 130. But see Mesick v. New, 7 N. Y., 163.) This sliorvs that it was not a mere devise in trust to sell and pay debts and legacies. On such a devise in trust the devisee would not be personally liable.

If the devisee did, in fact, refuse to accept the devise, then the estate descended to the heir, charged with the payment. (Birdsall v. Hewlett, 1 Paige, 32.) But, probably, there is no personal liability on the heir, upon whom, the law casts the descent. No trust, in any case, exists in the executor or elsewhere.

The distinction between legal and equitable assets has become unimportant and almost meaningless here. Formerly, equitable assets were distributed in a different manner from that in which legal assets wei-e distributed. They were those which the executor did not take, as executor. The plaintiff here sues as executor.

The plaintiff insists that, if no trust, there is a power in trust. But, none is given expressly, and there is no occasion to imply any. Such a power is implied when the executor is expressly directed to do some act, for the doing of which a power is necessary. (Morton v. Morton, 8 Barb., 18.) Here he is not directed to do anything touching the land or its avails. Even the power of the surrogate to authorize a sale of the land for debts is taken away, where there is a charge of the debts; until the creditors have exhausted their remedies under the charge. This indicates that the remedy is to be sought by the creditor himself, in an action to enforce the charge. (2 R. S., m. p. 102, § 14.)

The plaintiff stated on the trial that he entered on the land, as executor, and undertook its management, to save, for the payment of the debts, as large a sum as possible. As executor, ho had no right to enter upon the land. He could enter thereon only as devisee. If we assume that, having collected the rents of the lessee, whose term did not expire till April, 1878, and having worked the farm till October, 1878, the devisees could then renounce the devise,- still they are, or the plaintiff is, still holding the rent received and the crops taken off. With these the plaintiff has nothing to do. If the land has descended to the heir, she is entitled to the rent and the crops. There is nothing in the will which makes the income of the farm a fund to pay debts or legacies. The creditors and legatees are no more entitled to the income than is a mortgagee.

There is no positive direction to sell the land, and, therefore, there is no so-called equitable conversion of the land into money. - The heir certainly has, as the devisees had, the. privilege of paying * off the charges, without having any sale made of the land. It is only upon her refusal to pay off and discharge the charges on the land, that any person interested .therein could complain. Now, it does not appear that she has ever refused such payment. It was only on October 2, 1878, that the devisees renounced, and this action.was commenced üíovember 23, 1878. The heir was herself by far the largest creditor, and the largest pecuniary legatee. And. nothing appears showing that she had knowledge of the renunciation ; or that she was not willing to discharge the claims of creditors and legatees.

Indeed, we are unable to see the necessity for this action.. It is claimed that a marshalling of assets is needed; and a question is raised whether the charge is in aid, or in exoneration of the personal property. But, when this is considered practically, we see little occasion to examine it. It cannot be questioned in any event}.that debts are to be paid before legacies; funeral expenses, &c., before either. Now the funeral expenses, proving the will, &e.,. amount to over $216. The debts, as claimed, are stated in the complaint to be over $6,755. They are proved to be over $4,911; besides interest. Thus, we have a total of $5,127, before legacies are. reached. The land is estimated in .the complaint at $5,000; and is proved to be worth from $3,800 to $4,000.

Therefore, there is not value enough in the land to pay the legacies, after first paying debts and funeral expenses; &c. The' -exec-' utor shows, on the trial, personal property amounting to $1,146.10, of which $332.50 is the value of specific legacies. The total pecuniary legacies are $2,400. Now, even assuming that the land is the primary fund to pay the debts, legacies or funeral expenses, it is. shown to be insufficient for that purpose. And so great is the. insufficiency that all ilie personal estaje, as well as the land, will apparently be needed t.o pay the debts, pecuniary legacies, and funeral expenses, &e. And we suppose that it is not claimed that,. even if the land be the primary fund, the personalty is not the secondary.

In the will there are pecuniary legacies to the amount above stated, including one of $200 to Rachel Dill. She is also made the residuary legatee. We are inclined to the opinion that the charge was in aid, and not in exoneration, of the personalty. Because the will gives to Rachel Dill the residue of the personal property, after having specified numerous specific and pecuniary legacies; some to Rachel Dill herself. Now, if the testatrix had supposed' that the personal property was not to pay any of the legacies, she would not have bequeathedit as a residue, after pecuniary legacies. (2 Jarman on Wills, 586 ; Powell v. Riley, Law Rep., 12 Eq., 175.) In Youngs v. Youngs (45 N. Y., 254), cited on this argument, certain real estate was charged, and if that proved insufficient then other real estate was charged ; and then the residue of the real and personal was given.

The provisions of the will in that case were different from those of the will under consideration. But we deem it unnecessary, as above stated, to decide whether the charge is in aid, or in exoneration, of the personal imoperty.

■ It seems to us that this action should not be sustained. (Brundage v. Brundage, 65 Barb., 397; Chipman v. Montgomery, 11 Sup’m. Ct,, 739 ; Smith v. Rockefeller, 10 Id., 295.) We do not see that the executor had anything to do with the land. As to •the personal property, he could account before the surrogate, as he has been doing. However the complaint may endeavor to conceal ¡.the-fact, the action is really brought against Mrs. Wisner,, the heir. And yet no allegations are made, or proof given, of any neglect, or refusal, on her part, to discharge the charges on the land. Whether she discharged them or not’ was; a matter with which the plaintiff had nothing to do; unless as.it might affect his accounting, and the distribution of the personal property before the surrogate. But all the circumstances show that no difficulty ..of that kind gayé rise to the action. If Mrs. Wisner ■ had recovered no judgment, the executor would have found the will to he simple in its meaning.

We think.that .the judgment should be reversed and the complaint'should be dismissed, with costs against the plaintiff personally.

Present — Learned, P. J., Bockes and Landon, JJ’.

Judgment reversed and complaint dismissed, with costs.


text:
    GEORGE DAY, as Executor, &c. of PRISCELLA LINTERN, Deceased, Appellant, v. EBEN C. REYNOLDS, Clerk of Rensselaer County, Respondent.

      Wegligence — a county flerlc is only liable for negligence in, malting a search, to the person for whoM it is made.

    One O’Donnell, having applied by his agent Winslow, to the plaintiff, for a loan on bond and mortgage, was told to procure a proper search from,the county clerk’s office, and that if the property was clear, lie could have the money. Winslow, acting for O’Donnell, and at his expense, procured from the defendant, the- county clerk, a search against the premises, from which was omitted a deed, then on record, by which O’Donnell had conveyed to another person the premises in question. The plaintiff, having made the loan in reliance upon the search, and being unable to 'collect the money on his bond and mortgage, brought this action ,against the defendant, to recover the said amount as damages for the negligence of the defendant in omitting the deed from the search.

      Held, that the defendant owed no duty to the plaintiff, and was not liable to him for the damages occasioned by his omission of the deed from the search.
    Appeal from a judgment in favor of the defendant, entered upon a nonsuit, ordered at the Circuit.

      John II. Colly, for the appellant.

      Charles E. Patterson, for the respondent.
   Learned, P. J.:

One O’Donnell, by his agent Winslow, applied to plaintiff for a loan on bond and mortgage. Plaintiff told Winslow to procure a proper search from the county clerk’s office, and, if the property was clear, O’Donnell could have the money. Winslow acted for O’Donnell, and-obtained such a search. ■ Plaintiff did not pay for the search. The search ivas made by defendant, then county clerk, and was brought to plaintiff by Winslow. On receiving the search, and in reliance thereon, plaintiff lent O Donnell the money, through Winslow. • At the time of making the search and of the lending the money, there was on record a deed from O’Donnell, conveying the land covered by the mortgage, which deed was not mentioned in the search. The plaintiff has, therefore, been unable to collect his money on the mortgage, and O’Donnell is not solvent. The question is whether defendant is liable to plaintiff for the negligence of omitting'the deed from the search.

This question, or one very similar, has recently been decided in the Supreme Court of the United States. (Savings Bank v. Ward, 100 U. S., 195.) There A., an attorney employed and paid by B., to examine and report on B.’s title to land, gave a certificate that B.’s title is good, and the property unincumbered.” C., with whom A. had no contract, relied on this certificate, and lent money to B. on the land. The land proved to be incumbered. It was held that C. could not recover from A. The court held that the obligation of the t attorney was to his client and not to the third party. Three of-the justices dissented. And it is to bo noticed that, in the dissenting opinion, they say that the lawyer who gives liis client a certificate, “ which he knows, or ought to, know, is to be used by the client in some business transaction with another person as. evidence, of the facts certified to, is liable to such other peí son for,” &c.

Thus the dissenting judges placed their dissent on the fact that the lawyer, in that ease, ought to have known that his client was to use the certificate in a business transaction with some-other- person. Now, there is no reason, without proof of the fact, why this defendant should know that O’Donnell or Winslow, his agent, was to use this search in a transaction with the plaintiff or with any one else.

■ One may procure a search of the title to his land for his own satisfaction as well as for use-in procuring a loan. Hence, we think .that the obligation which the defendant incurred' was to O’Donnell; for whom, through Winslow, the search was made.

Nor do ive 'think that the present case iá to be governed by a different rule from that of the case cited, on the ground that the defendant in this is a county clerk, and in that was an attorney. There is no reason why the liability of the one should be extended to those with whom he has no dealing, any more than should that of the other. The doctrine of Hover v. Barkhoof (44 N. Y., 113) is not in conflict with this view. That holds only that public officers are liable to one specialty injured by their negligent performances of duty.

But the question whether the plaintiff in this case has been injured by. defendant’s negligence depends oil the very, point under discussion; that is, whether defendant owed the plaintiff any duty.; or, in other words whether the search was quasi negotiable ; so that any one into whose possession it shouíd come might rely upon it-as an official statement made by defendant to him. -, •

Of course the plaintiff has not been injured by the defendant’s negligence, unless he had a legal right to rely on the defendant’s search, just as if it had been made for him, at his request. If the claim of the plaintiff is correct we do not see where the liability of the defendant will .end. In any future negotiations which might be had with a person in actual ignorance of the mistake in the search, this search might again be used and the defendant would again, be liable to the person who should trust to it.

¥e think, that on principle and on authority the judgment was right and should be affirmed, with costs.

Present — Learned, P. J., Bookes and Follett, JJ.

Judgment affirmed, with costs.


text:
    CHARLES H. PAYN, as Receiver, &c., Respondent, v. CHARLES S. GRANT, Appellant, Impleaded with LUCY C. LESTER and others.

      Judgment of foreclosure — how far a defendant, having a lien prior to that of the plaintiff, is hound hy the judgment — when the priority of their liens cannot he established in such an action — Code of Civil Procedure, § 521 — when an answer' may he served upon a co-defendant under.

    To this action, brought by the plaintiff to foreclose a mortgage given by ono . C. S. Lester, Lucy C. Lester, his wife, C. S. Grant, and E. M. Harris were made parties defendants, the complaint containing the usiuil allegations that they held interests or liens which had accrued subsequently to the lien of the plaintiff’s mortgage. Grant appeared, but did not answer. Lucy C. Lester and Harris appeareeband answered, denying that their liens were subsequent to that of the mortgagee, and demanded, and obtained a judgment declaring that the inchoate right.of dower of Lucy C. Lester, and a mortgage held by her, and a judgment held by Harris, were prior and superior to the plaintiff’s mortgage, and directing the premises to be sold subject to their said liens.
    Upon an appeal from an order denying a motion made by Grant to have the clause establishing the priority of the liens of Lester and Harris stricken from the judgment, and to have the sale set aside; Held, that it was not necessary for Lester or Harris to have answered, setting up the priority of their respective liens, as the entry of the usual judgment of foreclosure and a sale thereunder would not have cut them off if they were prior in fact.
    That upon their serving answers, sotting up the priority of their liens over that of the plaintiff, the court should have dismissed the complaint as to them, but should not have rendered a judgment establishing the priority and amount of their liens as against the defendant Grant.
    That the order should be reversed:

      Quaere, as to whether the defendants Lester and Harris could, by serving • their answer upon (ho defendant Grant, as provided by section -521 of the ¡ ..-Code of Civil Procedure, have litigated aud established the priority of their liens in this action.
    Appeal from an order made at Special Term, denying a motion made by tlie defendant Grant, to strike out a clause of the judgment of foreclosure entered herein, to vacate a sale bad thereunder, and for leave to file exceptions to the report of tbo sale of the premises.
    ■ This was an action brought to foreclose a mortgage executed by Charles S. Lester to tbo Commercial National Bank of, Saratoga Springs. Grant was made a party, because be bad a judgment against Lester subsequent to tbe mortgage. Lucy C. Lester, the’ wife of the mortgagee, and Edwin M. Harris were also made parties, defendant. And the complaint contained the usual allegation that they had interests, or liens, which accrued subsequently to the lien of the mortgage. Grant appeared, but did not answer. Harris and Lucy C. Lester each appeared and answered, denying thattlieir liens were subsequent to said mortgage, and averring that they were prior, and demanded a, judgment so declaring. These answers were not served on Grant, under section 521 of Code of Civil Procedure. Judgment of foreclosure was entered up' January 15,‘ 1880, and it contained a clause to the effect that the inchoate right of dower of Lucy C. Lester and the mortgage held by her are prior and superior to the mortgage described in the complaint, and also that a judgment recovered by Harris and therein described was also prior and superior to the mortgage, and adjudging that the premises be sold, subject to this dower right, this mortgage and this judgment. :
    The sale took place March 5, 1880, and the premises were sold to the attorney of Lucy C. Lester for $4,000,- leaving a deficiency of $3,865.06. Notice of filing the report of sale was -served on Grant’s attorney; but he did not know of the clause in the judgment above stated. Grant applied for an order to correct the judgment by striking out this clause; to set aside the .sale; and io allow him to file exceptions nunopro tunc. This was denied and he appealed.
    E. T. Brackett and Samuel Hand, for the appellant.
    The judgment of foreclosure - and sale in - the- action, as entered up herein, so far as it assumes to ' establish said alleged prior liens of his said co-defendants, Harris; and Lucy Gi Lester, is-illegal, irregular and void as against.-the-.defendant Giant, who suffered a default in the action. A mortgage^ ■has no right-to make one who claims adversely to the .title of the mortgagor, and prior to the mortgage, a party defendant, for thp ■purpose of trying the. validity-of his adverse - claim of, title in this ■'court.' - -{Eagle .Tr. Go. v. Lent, 6, Paige, 638 ; Jones; v, Weed, -4 -Sandfi Oh., 208;, Bank of Orleams v. Flagg, 3 .Barb, Cli. 316 ;
      Holcomb v. Holcomb, 2 Barb., 20, 22; Corning v. Smith, 2 Seld., 82, 84; Lewis v. Smith, 5 Sold., 502; Frost v. LLoon, 30 N. Y., 428, 444, 449 ; Lee v. Parker, 43 Barb., 611; Mechanics' Bank v. Thomson, 55 N. Y., 7, 11; BatKbone v. LLooney, 58 Id., 463, 467.; Emigrant Ln. Sam. Bank v. Goldman, 75 Id., 125, 131; Yerkes v. Boots, 22 Alb. L. <!., 97.)
    Section 274 of the old Code and section 521 of the Code of Civil Procedure did not extend the right of defendants to introduce in their answers matters respecting the priority of liens over the mortgage in suit, which affect their co-defendants. (Tracy v. N. Y. Steam■ and C. Co., 1 E. D. Smith, 349, 355 ; People v. Ad. and Sus. B. B. Co., 5 Bans., 26, 34; Mech. and Traders' Savings Lns. v. Bdberts, 1 Abb. Pr., 381.)

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

The general rule undoubtedly is that parties to an action are bound by the judgment. But the courts seem to have made an exception where, in a foreclosure action, one, having a prior right, Jias been made a party defendant. And they iiave held that the general clause of foreclosure in the judgment does not cut off such a person’s rights. In Lewis v. Smith (9 N. Y., 502), the wife of the mortgagor did not join in the mortgage. Oh foreclosure she was made a party defendant, with the usual allegation. She did ■not defend ; and it was held that the decree did not bar her dower. In Merchants' Bank v. Thompson (55 N. Y., 7) the same principle was decided ; the court saying that the position of the wife was the same as if she had not been a party. (See also Rathbone v. Hooney, 58 N. Y., 463.) The same doctrine is established as tó the holder of a mechanics’ lien in Emigrant Ind. Sav. Bk. v. Goldman (75 N. Y., 127) and as to a prior judgment in Frost v. Koon (30 N. Y., 428. See also Eagle Fire Ins. Co. v. Lent, 6 Paige, 635).

Under these decisions, then, the defendants, Lucy C. Lester and Harris, had no occasion to put in answers, alleging the priority of their liens ; as the judgment would not have barred them, if their liens were prior in fact. In the case of Benjamin v. Elmira R. R. Co. (49 Barb., 441) cited by the' learned judge, the incumbrance was subsequent to the mortgage foreclosed. So that the. case does not apply. Nor does that of Mechanics' and Traders' Savings Inst. v. Roberts (1 Abb. Pr., 381).

In Bank of Orleans v. Flagg (3 Barb. Ch., 318) on the foreclosure of a mortgage the plaintiff made Graves a party defendant, who had a contract of purchase from the mortgagor. The contract was made prior to the mortgage. The allegations of the complaint were simply in the usual form, that Graves and others had or claimed some interests, &c., which had accrued subsequent, &c. Graves answered, denying that he claimed an interest, and setting up his agreement. The Chancellor held that the bill was not propT erly framed to enable the plaintiffs to litigate the question whether they were entitled to a preference over Graves; that, to enable them to litigate that question, instead of falsely averring that Graves had an interest which had accrued subsequent, &c., they should have set forth his claim specifically. And he reversed the decree and dismissed the bill as to Graves.

That case is important because it shows the construction put by the Chancellor on rule 132, adopted by him, which permitted this general allegation as to inciunbranees, and which is commented upon by Judge Denio, in Lewis v. Smith (ut supra). It is also important, because it is cited as authority for a dictum of Judge Allen, in Brown v. Volkening (64 N. Y., 76), to which, in fact, it seems to be opjiosed. What the allegations were in the complaint in that last cited case does not appear. The judgment of the.Court of Appeals was for reversal; and therefore it does not appear that they disagreed with the doctrine of the Chancellor, in the Bank of Orleans v. Flagg, viz.: that the complaint should have been dismissed as to Volkening. The subsequent case of Emigrant, Ind. Sav. Bk. v. Goldman (ut supra), shows that the doctrine, of Lewis v. Smith is undisturbed.

If, then, it was unnecessary for Lucy C. Lester and Harris to answer, has Grant been injured by their answering, and by the ■judgment establishing the priority of their liens ? According to the rule laid down by the Chancellor, when it appeared that their claims were prior to the mortgage, the complaint should have been dismissed as to them. If this had been done, no harm could have been done to Grant. But on the contrary, there ivas a direct adjudication in this action, to which he was a party, that the inchoate right of dower, the mortgage and the judgment were prior to the plaintiff's mortgage. This also established as against him the amount of the Lester judgment and of the Harris mortgage. The plaintiff had no right to establish these facts against Grant. The complaint served on him (or of which ho was bound to talce notice) alleged, on the contrary, that the rights of Lucy C. Lester and of Harris were subsequent- to the plaintiff’s mortgage. His default was an admission only of the facts alleged in the complaint. And the plaintiff had no right, on such default, to enter a judgment, contrary to those allegations. (Tracy v. N. Y. Steam Faucet Co., 1 E. D. Smith, 355.)

It is unnecessary to inquire whether the defendants, Lucy C. Lester and Harris, could have availed themselves of section 521 of the Code of Civil Procedure, because, in fact, they did not.

The sale under the judgment followed it, and was expressly made subject to these alleged prior liens. The purchaser, therefore, was bound by the adjudication and sale.

It is insisted that Grant was not injured, for the reason that his own judgment was so late tliát, in any event, the value of the property would be consumed before he was reached. But this is not a case where we arc to measure his rights by examining whether or not he will probably be injured. A judgment was perfected against him, to which the plaintiff was not entitled. That is an injury. It is insisted that Grant can have no relief, because the sale has been confirmed and the deed delivered. One answer to that is. that the purchaser was the attorney of Lucy C. Lester, chargeable with notice that the judgment was unauthorized. The reasons why Grant did not oppose confirmation are satisfactory to excuse him.

The order appealed from must be reversed, with §10 costs, and printing disbursements; and the motion granted, striking out the clause in the judgment mentioned in the moving papers, and setting aside the sale, with §10 costs against plaintiffs.

Present — Learned, P. J., and Landon, J.

Ordered accordingly.


author: Bocees, ÍT.;

text:
    JACOB HARMON SNYDER, Appellant, v. WAITY SHERMAN and others, Respondents.

      Probate of a will — the beneficiaries thereunder cannot testify as to personal transactions with the testatrix, tending to establish her testamentary capacity — when the admission of improper evidence by a surrogate, furnishes no ground for reversing a decree admitting a will to probate — what degree of undue influence must be shown to authorize the rejection of a will.

    J^H^eal from a decree of tbe surrogate of Rensselaer county, admitting to probate tbe will of Elizabeth Snyder, deceased. .
    The court, at General Term, said: “The testimony of the beneficiaries under tbe will, as to personal communications and transactions with tbe testatrix, tending to show her possessed of testamentary capacity, and that she was free from all restraint and improper influence, was improperly received.' Evidence of this character from those persons was inadmissible under section 829 of tbe Code of Civil Procedure. (,Sdioonmalcer v. Wolford, 20 Hun, 1G6.) But tbe rule is now firmly settled, in accordance with the decision in Bride v. Bride (66 N. Y., 144), that the admission of improper evidence in proceedings before a surrogate for tbe probate of a will is not ground for reversal of his decision, admitting the will to probate, if it appears from the whole case that the will was properly sustained; according to the remarks of the court in Foote v. Beedier (78 N. Y., 155), the case, on an 'appeal like tbe present one, is to be determined on tbe competent evidence submitted, without considering such as may be incompetent. Judge Cjeiubcii says that in the case of an appeal from a surrogate’s decree upon the probate of a will ‘ the hearing is da novo in the appellate courts, and they may be determined upon the competent evidence appearing, disregarding such as is incompetent.’ (Page 158.) In this regard the learned judge makes a distinction between a case like the present one and appeals in legal and equitable actions. This distinction was not recognized in Schoonmdleer v. Wolford (mp-ra). The-decision in that case was, however, put upon the true ground, to wit: that on striking out the objectionable evidence there was no sufficient proof remaining to sustain the decree appealed from. (See also Children's Aid So. v. Loveridge, 70 N. Y., 387-302.) It should be here noted that there was no error in this case in the rejection of evidence on which any just complaint by the appellant can be grounded. The case then stands for examination on the competent evidence submitted on the hearing before the surrogate, disregarding all the incompetent proof admitted.
    “ The principal, if not the only question before the surrogate, was as to the testamentary capacity of the testatrix, whether jgb the time of the execution of the will she possessed sufficient ^ffttelligence, judgment, and mental power to make a valid testamentary disposition of her property. True, it was urged before the surrogate, as it is now urged on this appeal, that the testatrix, being aged and infirm both in body and in mind, was unfairly and improperly influenced in making her will. This position is not, however, at all sustained by the proof. There is no evidence whatever of solicitation or importunity, nor circumstances of inducement showing or tending to show the exercise of any improper influence over her, in regard to her property or to its ultimate disposition. There is, assuredly, none to bring the case within the rule laid down in Bride v. Bride (60 N. Y., 144), where it is declared on authority that to avoid a will on the ground of undue influence, ‘it must be made to appear that it was obtained by means of influence, amounting to moral coercion, destroying free agency ; or by importunity which could not be resisted, so that the testator was constrained to do that which was against his actual will, but which he was unable to refuse, or too weak to resist.’ (page 149 ; also Children's Aid So. v. Loveridge, 70 N. Y., 387.) There is a total failure of proof here to bring this case within the doctrine of the law laid downin the case cited. The question in this ease is then simply as to the testamentary capacity of the testatrix at the time she made the will. Had she at that time sufficient intelligence to comprehend the condition of her property, her relations to those who were, or might naturally be, the objects of her bounty, and to understand provisions of the instrument which was to evidence her wishes Purposes? If possessed of this degree of intelligence, in the ' of improper influence and restraint, her will must be sustained. (ILorn y. Pull/man, 72. N. Y., 269.) And it was also decided in this case, that there was no presumption against a will because made by a person of advanced age; and further, that incapacity to make a will could not be inferred from' an enfeebled condition of mind or body. The line of reasoning, and many of the remarks of Judge Andrews and of Judge Miller in the cases cited, have direct bearing upon the case here under examination.”

      Ma/rtin L. Townsend, for the appellant.
    ' MeGléllan <& Laming, for the respondents.
   Opinion by

Bocees, ÍT.;

Learned, P. J., and Westbrook, J., concurred.

Decree affirmed, with costs against appellant.


author: Learned, P. J.;

text:
    GEORGE L. HUMESTON, Appellant, v. ALEXANDER CHERRY, Respondent.

      Conditional sale, title remaining in vendor — effect of the destruction of part of the property, before payment of the price.

    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court, without a jury. ■
    The defendant Cherry agreed to sell to the plaintiff Humeston, a certain pair of horses for $300; the title to remain in Cherry until payment of the price, notwithstanding their delivery. In fact, the horses remained in Cherry’s stable, although they were used and controlled by Ilumeston. While they were there, and before anything had been paid on the price, one of them died. Some conversation was had about a new bargain, but none was made. And Ilumeston removed the dead horse, and took away the living oue, without any change of terms. Afterwards it was agreed that Ilumeston (who kept a store) should sell goods to Cherry to be applied towards the payment of the purchase-price. On this ai’rangement Ilumeston sold Cherry groceries to the value of $103.80.
    Afterwards, when the time agreed upon for the payment of the purchase-price of the horses arrived, Cherry demanded the balance of' the $300, and upon Ilumeston refusing to pay it he rc-t-ook the horse. Ilumeston now sues for the goods thus sold.
    The court, at General Term, said : “ It is not necessary to decide what would have been the rights of the parties, as to any payments which might have been made before the death of the horse. Because, after the death of the horse, Ilumeston took away the living horse and removed the dead horse, and made a new and additional agreement for paying the purchase-price. We must, therefore, assume that, notwithstanding one of the horses was dead, Ilumeston elected to have the, contract completed so far as it could be. * He may have thought the living horse worth the $300. It is not for him now to repudiate the contract on the ground (if that be a ground), that performance had become impossible by the death of one of the horses. It is to be regretted that courts have held that what are improperly called conditional sales of personal property, are valid. The doctrine that, on a sale of personal property, there can be a delivery, and yet that the vendor can retain title, is an evasion of the statute as to mortgages of personal property, and is contrary to good policy and to sound principle. But it is the law of this State.
    “ Then we have this state of things. Cherry was the owner of the horse, with a right to retake possession if Ilumeston did not pay at the time agreed. Ilumeston had made a part payment, and refused to pay the balance. Cherry was justified in re-talcing the horse. That did not necessarily violate or break the contract on Cherry’s part. lie has not refused to deliver the horse on receiving payment therefor. For anything that appears he is now willing to deliver the horse on being paid for it. lie is not now bound to deliver it without payment.
    “ Thus Cherry has in his possession a horse which he has agreed to sell to Humeston for a certain price. Humeston has paid a part and refuses to pay the balance. He now sues to recover what he has paid, without showing either that he has offered to perform his part in full, or that Cherry has put it out of his own power .to deliver the horse on receiving full payment. Humeston has no right of action at present.
    “We purposely refrain from expressing any opinion as to the course which Humeston or Cherry may take to close the matter between them, and finally to settle their right.
    “The judgment is affirmed, with costs.”

      A. Pond,, for the appellant.

      Burdidfi & Coon, for the respondent.
   Opinion by

Learned, P. J.;

Landón, L, dissenting.

Present — Learned, P. J., Bocees and Landon, JJ".

Judgment affirmed, with costs.


author: Westrrook, J.

text:
    FREDERICK M. WHEELER and MARTIN D. WHEELER, Administrators, &c. of MARVIN WHEELER, Deceased, Respondents, v. GILBERT SPENCER, Appellant.
   Judgment reversed; referee discharged; new trial granted, costs to abide event.

Opinion by

Westrrook, J.


author: Learned, P. J.

text:
    SARAH L. BURR and others, Administrators, &c., Respondents, v. AGRICULTURAL INSURANCE COMPANY, Appellant.
   Judgment and order reversed, new trial granted, costs to abide event.

Opinion by

Learned, P. J.


author: Bockes, J.

text:
    JAMES GORTHY and another, Executors, &c. of JOHN CLARK, Deceased, Respondents, v. SHAWMUT INSURANCE COMPANY, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Bockes, J.


author: Bockes, J.;

text:
    S. VISSCHER TALCOTT, Respondent, v. THE OLCOTT IRON MANUFACTURING COMPANY, Appellant.
   Judgment affirmed, with costs.

Opinion by

Bockes, J.;

Learned, P. J., taking no part.


text:
    HENRY D. WICKHAM, Respondent, v. JOHN BELL and another, Trustees, &c., Appellants.
   Judgment reversed; referee discharged' new trial granted, costs to abide event. ■" ’

Opinion by

Learned, P. J.


text:
    AVIS WAVLE, Plaintiff, v. WILLIAM D. TUTTLE and others, Defendants.
   Submission dismissed, without .costs to either party, unless parties in thirty days file- new statement, making the heirs-at-law also parties to the submission.

Opinion by

Learned, P. J.


author: Learned, P. J.,

text:
    ANN SIMMONS, as Administratrix, &c., Appellant, v. THE PRESIDENT, &c., of the DELAWARE & HUDSON CANAL COMPANY, Respondents.
   Judgment affirmed, with costs.

Learned, P. J.,

taking no part.


text:
    MICHAEL G. CASEY, Respondent, v. THE MANHATTAN FIRE INSURANCE COMPANY, Appellant.
   Judgment reversed, new trial granted; referee discharged; costs to abide event.

Opinion by

Learned, P. J.


author: Bookes, J.

text:
    GEORGE PERT, Appellant, v. MARY E. BACON, as sole Executrix, &c., Respondent.
   Judgment reversed, new trial granted, costs to abide event. .

Opinion by

Bookes, J.


text:
    JAMES BASSETT, Appellant, v. SARAH E. GETTY, Respondent.
   Decree affirmed, with costs against appellant.

Opinion by

Learned, P. J.


text:
    PELATIAH J. MARSH, Appellant, v. JOHN M. KINNEY, Respondent.
   Judgment affirmed, with costs.

Opinion by

Bockes, J.


text:
    GEORGE MERKLEY, Appellant, v. JOHN T. GREEN, Respondent.
   Judgment and order affirmed, with costs.

Opinion by

Bockes, J.


text:
    DAVID CARR and HERMAN A. BLANCHARD, Respondents, v. ANN PENDERGRASS, Appellant.
   Judgment affirmed, with costs.

Opinion by

Learned, P. J.


text:
    ISAAC J. ST. JOHN, Respondent, v. CHESTER ROOD, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Bockes, J.


text:
    JEREMIAH BARRY, as Administrator, &c., Respondent, v. THE NEW YORK CENTRAL & HUDSON RIVER RAILROAD COMPANY, Appellant.
   Judgment and order reversed, new trial granted, costs to abide event.

Opinion by

Bockes, J.


author: Landon, J.

text:
    JOHN B. SLY, Respondent, v. DAVID E. GREER, Appellant.
   Judgment affirmed, with costs.

Opinion by

Landon, J.


text:
    GEORGE MARK, Respondent, v. THE VILLAGE OF WEST TROY, Appellant.
   Judgment affirmed, with costs.

Opinion by

Learned, P. J.


text:
    WILLIAM OBER, Respondent, v. LEWIS H. ROE and others, Appellants.
   Judgment affirmed, with costs.

Opinion by

Bockes, J.


text:
    WILLIAM WINTER, Respondent, v. CHARLES B. RIGGINS, Appellant.
   Judgment of justice of the peace and of County Court reversed, with costs.

Opinion by

Learned, P. J.


text:
    HENRY G. BURLEIGH and BRACKETT W. BURLEIGH, Respondents, v. THE GEBHARD FIRE INSURANCE COMPANY, Appellant. SAME v. ADRIATIC INSURANCE COMPANY, Appellant.
   Reargument ordered.


text:
    MARGARET McCAUGHIN, Respondent, v. ISAAC SPAULDING, Appellant.
   Reargument ordered.


text:
    JOHN KEEFE, Appellant, v. SAMUEL S. WARNER and others, Respondents.
   Judgment affirmed, with costs.

Opinion by

Bockes, J.


author: Bocees, J.

text:
    JANE A. LASHER and others, Appellants, v. THE NORTHWESTERN NATIONAL INSURANCE COMPANY, Respondent.
   Judgment affirmed, with costs.

Opinion by

Bocees, J.


text:
    CHARLES G. W. STODDARD, Respondent, v. GEORGIANNA BANNISTER, Appellant.
   Judgment affirmed, with costs.

Opinion by

Bockes, J.


text:
    EDWARD S. BINK, Respondent, v. JAMES ROBERTSON, Appellant.
   Judgments of justice’s court and County Court reversed, with costs.

Opinion by

Landon, J.


text:
    JOHN G. FARNSWORTH, as Receiver, &c., Respondent, v. S. FOSTER DEWEY, Appellant, Impleaded with others.
   Motion for reargument granted, unless plaintiff .stipulates to allow defendant to answer in case judgment on demurrer shall be affirmed in Court of Appeals; and, if such stipulation be given in fifteen days, then motion denied ; no costs to either party.

Learned, P. J.,

taking no part.


text:
    ALFRED B. WOODWORTH and others, Respondents, v. EDWARD C. SEYMOUR, Appellant. SAME v. WILLIAM B. DOUGLASS and others, Appellants.
   Motion for reargument denied, with $10 costs, in one case.


text:
    JOHN W. CASTREE and others, v. WILLIAM H. WHISPELL, Executor, &c.
   Judgment affirmed, with costs.


text:
    ROXY A. ALDEN, as Administratrix, &c., Respondent, v. THE PRESIDENT, &c., of THE DELAWARE & HUDSON CANAL COMPANY, Appellant.
   Judgment and order affirmed, with costs.

Learned, P. J.,

taking no part.


text:
    REMUS A. KNEELAND, Appellant, v. MERRITT P. McKOON, Respondent.
   Order reversed, with $10 costs, and printing disbursements.


text:
    JACOB GLADKE and another, Appellants, v. ISAAC BERNSTEIN, Respondent. WILLIAM P. ELLISON and another, Appellants, v. ISAAC BERNSTEIN, Respondent. LOUIS LEVERSON and another, Appellants, v. ISAAC BERNSTEIN, Respondent.
   Orders affirmed, with $10 costs, and printing disbursements, in' each case.


text:
    WATSON HAM, as Administrator, &c., Appellant, v. EDMUND H. VAN ORDEN, Trustee, &c., Respondent.
   Judgment affirmed, with costs.

Learned, P. J.,

taking no part.


text:
    JOHN HART, as Administrator, &c., Appellant, v. THE HUDSON RIVER BRIDGE COMPANY AT ALBANY, Respondent.
   Motion denied, and judgment ordered for defendant on verdict, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error, v. JAMES B. KING, Plaintiff in Error.
   Judgment and conviction affirmed.


text:
    CHARLES W. LOOMIS, as Executor, &c., of JUSTUS PICKERING, Deceased, Appellant, v. THEODORE C. MASON, Respondent, Impleaded, &c.
   Judgment affirmed, with costs.


text:
    ROBERT BLISS, Respondent, v. ELLEN E. BLISS and others, Appellants, Impleaded, &c.
   Judgment affirmed, with costs.


text:
    FREDERICK LOEFFLER, Respondent, v. JOHN L. FOX and LEVI FOX, Appellants.
   Judgihent affirmed, with costs,

Memorandum by

Learned, P. J.


text:
    JOSEPH FOXELL and THOMAS JONES, Appellants, v. GEORGE W. FLETCHER, Respondent.
   Judgment affirmed, with costs.


text:
    HENRY G. LAPHAM , and others, Respondents, v. THE CHROME STEEL COMPANY, Appellant.
   Judgment reversed, new trial granted; referee discharged; costs .to abide event.

Opinion by

Bockes, J.


text:
    LEWIS C. B. GRAVELINE v. SHUBELL KELLY.
   Judgment affirmed, with costs.

Opinion by

Bockes, J.


text:
    BENAJAH TYRRELL and DARWIN L. WEEKS, Appellants, v. FRANCES J. PEREAU, Respondent.
   sjndgment affirmed, with costs.

Opinion by

Learned, P. J.


text:
    CALVIN L. HATHAWAY and others, Respondents, v. OLIVER PORTER and others, Appellants.
   - Judgment affirmed, with costs'; aud order affirmed, with $10 costs, and printing disbursements.


author: Boardman, J.

text:
    ALFRED N. RUSS, as Overseer of the Poor of the Town of Palatine, Respondent, v. PHILIP FAILING, Appellant.
   Judgment affirmed, with costs.

Opinion by

Boardman, J.