text:
    WILLIAM BEVAN, MARY ANN BEVAN and MARGARET E. HEATON, Appellants, v. CATHARINE COOPER and JOHN A. COOPER, Executors, etc., of WILLIAM COOPER, Deceased, and others, Respondents.

      Will — specific and general legacies— Charge upon real estate — ly implication.

    Nothing can be abated from specific legacies, because the estate of the testator turns out to be insufficient to pay the general legacies. It is the duty of executors to turn over specific legacies at the end of one year, with all the advantage that would have accrued to the legatees, had the property thus bequeathed been deliverable when the will took effect.
    Legacies are. primarily payable out of the personal estate, and are not payable out of the real estate, unless there be in the will an express or implied charge of such legacies upon the real estate.
    Accordingly, held, that where a testator makes certain general bequests and a devise of a specific piece of real estate, and then grants all the residue of his real and personal estate to- his executors, in trust, that if the personal property is insufficient to discharge the legacies, they must be paid pro rata, and are not a charge upon the real property.

      Semite, that the clause as to the residue of the estate would charge by implication the real estate to the amount unpaid on the legacies, if there had not been a specific devise of a portion of the real estate.
    Appeal from the surrogate’s decree on tbe final settlement of executors’ accounts. The testator, by his will, after directing the payment of his debts and funeral and testamentary expenses, gave : First. To his wife, all his household goods.
    Second. To his brother, John Cooper, all leasehold property, or chattels real, owned or possessed by him at the time of his decease, also all capital stock of the People’s Bank owned by him, and released his said brother from all claims against him, and directed his executoi’S to cancel all bonds and mortgages hold against him.
    Third. He then gave to William Bevan and Mary Ann Bevan, each, the sum of $5,000, and to Margaret E. Heaton the sum of $10,000.
    Fourth. He gave to Joseph Beachum all his real and personal property in Tuscarora, Pennsylvania.
    Fifth, and lastly, he gave all the rest and residue and remainder of liis estate, real and personal, to executors, in trust for certain uses and purposes specified in the will.
    The testator does not direct out of what fund or property the legacies to Mr, and Mrs. Bevan and Mrs. Heaton shall be paid.

      II. H. Anderson,, Rufus T. Andrews and Wm. T. Monteverde, for the appellants.

      Flanagan <& Bright, for John Cooper’s executors, respondents.
    - Mann dt Parsons, for Catharine Cooper.

      Horace W. Wingate, guardian ad, litem, for the infants.
   Davis, P. J.:

It does not seem to be controverted by the appellants but that the legacies to John Cooper were specific. The will bequeathed to John Cooper, the brother of the testator,- all leasehold property or chattels real, owned or possessed by him at the time of his decease, also all capital stock in the People’s Bank of the city of New York, owned by him. It also releases him aud his estate from all claims that the testator had or might have against him •, and orders and directs the executors to cancel and discharge every bond and mortgage he holds against him and his property, and to execute, acknowledge and deliver all necessary or proper discharges thereof. At the time of his decease the testator held two parcels of leasehold property, situated in the city of New York. He also held 141 shares of the capital stock of the People’s Bank which he owned when he made his will, and 200 shares of the same stock purchased by the testator a few days before his death, and two bonds aud mortgages made by John Cooper to the testator to secure the different sums therein mentioned.

It was manifestly the intention of the testator to make the legacies to John Cooper specific, and the language used by him is quite sufficient to declare that intention. It amounts to a bequest of particular things distinguished from the general property of the testator, and from all other things of the same kind; and it is quite clear that if the specific things named, or any portion of them, had been disposed of by the testator before his death, the legacies would have been adeemed, either wholly or pro tanto, in so far as the disposition went. (Tifft v. Porter, 8 N. Y., 516; Kirby v. Potter, 4 Vesey, 748; Walton v. Walton, 7 Johns. Ch., 258.) Nothing can be abated from specific legacies, because the estate of the testator turns out to be insufficient to pay the general legacies.

The point is made, however, on the part of the appellants, that as there is no time specified in the will for the payment of legacies, they become payable at the expiration of one year from the issuing of letters testamentary, and that the specific legacies to John Cooper, including the leasehold property, did not pass to him until the expiration of one year; and it is claimed, therefore, that the rents collected by the executors from the leasehold property, and the dividends on the stock of the People’s Bank, and the interest on the bonds and mortgages to be discharged, for one year from the granting of the letters, which amount to nearly enough to pay the general legacies, should have been applied towards their payment, pro rata, if insufficient to pay the whole.

It is undoubtedly true that legacies are not payable until after the expiration of a year from the granting of letters testamentary, unless the will directs them to be sooner paid, and that legacies, as a general rule, do not draw interest before they become legally payable. (Bradner v. Faulkner, 12 N. Y., 472; 2 R. S., 90, §§ 43, 45 ; Edmonds’ Statutes at Large, vol. 2, p. 92.)

Section 45 of the Revised Statutes (ubi supra) declares that, after the expiration of one year from the granting of letters testamentary, or of administration, the executors or administrators shall discharge the specific legacies bequeathed by any will, and pay the general legacies if there be assets; and if there be not sufficient assets, then an abatement of the general legacies shall be made in equal proportion. It will be observed that the general legacies are to be paid at the expiration of the year, and that they are subject to abatement, but the specific legacies are to be discharged. In respect to the latter, the duty of the executor is to make them over, or deliver them specifically to the legatee, in the substantial condition in which they were when the will became operative.

Whatever accretions have grown out of them belong to and go with the principal thing to the legatee. The policy of the statute in postponing their discharge for a year after the taking out of the letters, is to preserve the rights of creditors which, being superior to those of all classes of legatees, may, under certain circumstances, attach to specific bequests, and require their use by the executors in payment of debts. In this case no such exigency arose, and therefore it was the duty of the executors to make over the specific legacies with all the advantages that would have accrued to the legatees had the property thus bequeathed been deliverable when the will took effect.

It appears that on payment of the debts out of the personal estate of the testator, nothing is left for the payment of the general legacies out of that property. The testator left real estate of considerable value. By the residuary clause of his will, he devised and bequeathed all the rest, residue and remainder of his estate, real and personal, to the executors of his will, in trust for certain uses and purposes, to be executed for the benefit of his wife and children. It is claimed by the appellants that the operation of the clause disposing of the residuary estate is to charge the general legacies to'them, amounting in all to $20,000, upon his real estate in default of personal estate out of which they can be paid.

It is the established rule, that legacies are primarily payable out of the personal estate, and are not payable out of the real estate unless there be in the will an express or implied charge of such legacies upon the real estate of the testator. Lupton v. Lupton (2 Johns. Ch., 623), is a leading case, and expresses with great force and clearness the general rule. In this case, there is no express charge of any of the legacies upon the real estate. The question is, whether there is an implied charge in the language of the seventh clause of the will which disposes of the residuary estate of the testator, both real and personal. Under the authorities, the language used in the seventh clause of the will would undoubtedly create an implied charge, if 'the other provisions of the will did not contain dispositions of any thing more than the personal estate. In Shulters v. Johnson (38 Barb., 80), this question was quite fully discussed, and the conclusions arrived at, after a more careful examination than we are now able to give, seem to be sustained by the authorities. (Keeling v. Brown, 5 Ves., 359; Wood v. Vandenburgh, 6 Paige 284; Myers v. Eddy, 47 Barb., 263; Einnier v. Rogers, 42 N. Y., 631; Lujpton v. Lwpton, supra.)

But, in this case, it appears by the sixth provision of the will that the testator had made a previous devise of a portion of his real estate. That clause devises all the real and personal property owned by him at Tuscarora, in the county of Schuylkill, in the State of Pennsylvania, and its necessary operation was to create a rest, residue and remainder of his real estate precisely as the previous disposition of personalty had created a residue of that, part of his estate. We think it, therefore, well settled by the authorities that the bequests given to the appellants are not charged by the will upon the real estate of the testator. It is obvious that the testator supposed his personal estate would be sufficient to pay off all the bequests, specific and general, as well as his debts and funeral expenses, and leave a residue to form a part of the trust fund created by the seventh clause. The language of the seventh clause, in which Ire directs his executors to invest the residue of his personal estate in good securities for the purposes of the trust he thereby created, indicates- clearly that such was his expectation, and that he did not suppose it necessary to make any charge upon the real estate of any portion of the debts or legacies.

There is no sound reason why a pecuniary legacy should take effect sooner than a devise of lands; and, in this case, the trust of the real estate, which is created by the seventh clause, is for the benefit of- the wife -and children of the testator, the more natural objects of his bounty.

His intention seems to us manifest to give to them, or rather to the trust created for their benefit, all of his real estate except the portion specifically devised by the sixth clause. That intention will be defeated if the real estate must be now charged with the deficiency of about $20,000, necessary to make up the legacies given to other and more distant relatives or friends.

There is no manifest intention to be found in the will that they should enjoy his bounty in preference, and to the prejudice of his widow and children; and under the established rules of construe-' tion, no such intention can be inferred from, or imported into the will, under the circumstances of the case, from the language which he used.

The decision of the learned surrogate appears to have been correct, and the decree appealed from must be affirmed.

Brady and Daniels, JJ., concurred.

Decree affirmed.


source: Caselaw Access Project

author: Davis, P. J.: Brady, J.:

license: Public Domain

text:
    AARON FREEMAN, Respondent, v. THE PANAMA RAILROAD COMPANY and others, Appellants.
    § 16, a/rt. 3, Const. — Title of act — subject of, when sufficiently stated.

    It is not required by section 16 of article 3 of the Constitution, that the title of an act incorporating a company should set forth all the powers of the company or contain an abstract of the law. So long as the objects of the corporation are limited by the act to one body corporate, they constitute, in mass, the single subject which the act must contain.
    The act incorporating the Panama Railroad Company states, among the objects of such corporation, that of “purchasing and navigating such steam or sailing vesels, as may be proper and convenient to be used in connection with the said road." Held, that such powers were conferable in conjunction with the power to construct a railroad, and need not be specially expressed in the name of the corporation; and such language, construed in the light of facts existing at the time of the passage of the act, was broad enough to cover such vessels as navigate the ocean between New York and Aspinwall on the one side, and Panama and San Francisco on the other, in connection with the railroad.
    Appeal from order continuing an injunction restraining tbe defendant The Panama Railroad Company, and the other defendants as directors of said company, during the pendency of this action, from establishing a line of steamships to be owned, run and operated by the said railroad company between the port of New York and the port of Aspinwall, in the republic of New Grenada, and between the port of Panama, in said republic, and the port of San Francisco, in the State of California; and also from purchasing or entering into contracts for the purchase or construction, by or on behalf of or for said Panama Railroad Company, of steamships oi other vessels to be used on such a line or lines.
    W. D. Shipman and W. W. McFarland, for the appellants.

      William Fullerton and Henry F. Knox, for the respondent.
   Davis, P. J.:

There seems to be but two questions, necessary to be considered in this case. First. Is the act of the legislature incorporating the Panama Railroad Company void because violative of section 16 ot article 3 of the Constitution of the State ? Second. Is the undertaking upon which the complaint alleges the defendants are about to enter, in excess of the power conferred upon the corporation by that act? The provision of the Constitution referred to is in these words: “No private or local bill which may be passed by the legislature shall embrace more than one subject, aud that shall be expressed in the title.”

The title of the act in question (chap. 281 of the laws of 1819) is as follows: “An act to incorporate the Panama Railroad Company.” The subject of the act is the creation of a body corporate, bearing the name of the Panama Railroad Company, to be composed of the persons named in the act, and “ their associates, successors and assigns,” for the.purposes and having the powers specified in the act. This subject, of necessity, embraces a number and variety of details, all of greater or less moment to the organization of the body corporate, and proper, if not essential, to be expressed in the act. They relate to the capital of the corporation and its increase; the number of shares into which it shall be divided, and their assignability ; the officers who shall manage its affairs, how they shall be chosen, and their powers; the liability of stockholders and how enforced; the extent and character of the business which the corporation may carry on, and the powers and authority which it may use for that purpose. All these details, and as many more of like character as the act embraces, are objects of the corporation, the creation of which is the subject of the legislative act; and, so long as these objects are limited by the act to one body corporate, they constitute in mass the single subject which the act must contain, and which the title may express in the form adopted in this case under the provisions of the Constitution above recited. To hold otherwise is to hold that the title of the act must contain all these details and set forth every power, duty and obligation of the body corporate. That was, clearly, not the intent with which the constitutional provision was framed, and the omission of such duiails in the title of an act, is not the mischief sought to be prevented. In the first case that arose under section 16 of article 3 of the Constitution, the Court of Appeals held that “ the design of the constitutional provision was to prevent the uniting of various objects, having no necessary or natural connection with each other, in one bill, for the purpose of combining various pecuniary interests in the support of the whole which could not be combined in favor of either by itself.” (Conner v. The Mayor, 1 Selden [5 N. Y.], 293.) This, in substance, but in different forms of expression, has been held to have been the design, by the numerous cases that have since arisen, as in Brewster v. The City of Syracuse (19 N. Y., 116), where the title was: “An act for the relief of James Ley & Son,” and the court held that the title sufficiently expressed the subject within article 3, section 16, of the Constitution, although the relief was to be effected by the assessment and collection of a tax by a municipal corporation. The court held that the steps by which the relief was to be brought about were not a distinct subject, but minor parts of the one general subject, and that an abstract of the law is not required to be in the title.

In the case Sun Mutual Insurance Company v. The Mayor (8 N. Y., 241, 253), the court said: “ The purpose of the sixteenth section was that neither the members of the legislature nor the public should be misled by the title, not that the latter should embody all the distinct provisions of the bill in detail.”

In the People v. Lawrence (36 Barb., 192), Emott, J., says: “ It must not be overlooked that the Constitution demands that the title of an act shall express the subject, not the object, of the act. * * * It is no constitutional objection to a statute that its title is vague and unmeaning as to its purpose, if it be sufficiently plain as to the matter to which it refers.”

In the People ex rel. Davies v. The Commissioners of Taxes (47 N. Y., 501, 505), where the title was “An act to make provision for the government of the county of New York,” and a' provision of the act repealed in part a former act, exempting the real estate of the New York Hospital from taxation, the court held that it was not foreign to the subject of the bill, as expressed in the title of the act, to remove or modify the exemption, and thus add to the subjects of taxation; and they cite, with approval, The Sun Mutual Insurance Company v. The Mayor (vide supra). The cases are too numerous to bear further citation, and it need only be observed that they are quite uniform in the views above expressed.

The section of the act of 1849 upon which the question in this case arises, declares the object of the incorporation as follows: “For the purpose of constructing and maintaining a railroad with one or more tracks, and all convenient buildings, fixtures, machinery and appurtenances, across the Isthmus of Panama in the Republic of New Grenada, under the grant made by the said Republic to the said William II. Aspinwall, John L. Stevens, and Henry Cliauncey, and of purchasing and navigating such steam or sailing vessels as may be proper and convenient to be used in connection with said road, and for such purposes all the necessary and incidental power is hereby granted to such corporation.” Unless it is to be held that power to purchase and navigate such steam or sailing vessels, as may be proper and convenient to be used in connection with a railroad, cannot be granted unless the title of the act creating the corporation expresses that particular power, this provision is not obnoxious to the .Constitution:

It is not understood that the court below held, or that the counsel for the respondent now insists, that the act is void, unless it is to be construed as giving the power sought to be restrained by this action. But so far as the validity of the act under section 16 of article 3 of the Constitution is concerned, it must stand or fall upon its plain language.

Either the conferring of the power to purchase and navigate such steam and sail vessels as may be proper and convenient to be used in connection with the railroad, is another subject illegally embraced in the act, and not expressed in the title, or it is part of the one subject for which the corporation is created. If it be the latter, the act is free from the constitutional objection, and all that is left, is a simple question of ult/ra vires, to be determined upon the meaning of the language used. In short, if the language used means that the corporation, in the exercise of its powers, may do the things chai’ged in the complaint in this case, and thereby sought to be restrained, then the question, under the provision of the Constitution, is precisely as if the power to do these things were written out in the body of the act in plain terms. Would the act, if that were the case, have been void under the provision referred to3 The act would then have read, in substance, “ for the purpose of constructing and maintaining a railroad, etc., etc., across the Isthmns of Panama, and of purchasing and navigating such steam and sailing vessels from the several termini of said railroad, to and from the cities of New York and San Francisco, as may be proper and convenient to be used in connection with such railroad.”

Unless we are to hold that such a power is, for some reason, not conferable in conjunction with power to construct a railroad, or that it cannot be part of the objects for which a corporation maybe created, without expressing it specially in the name of the corporation, as given in the title of the act creating it, there is no force in the objection. But we are able to see no lack of power in the legislature to confer such rights; nor if conferred in an act creating a single body corporate, that it would be any more necessary to express it in the title than to express the power to purchase such vessels for the uses to which the plaintiff claims the company is limited.

The result is, that the case reduces itself not to a question of constitutionality, depending upon construction, but to one of fovwr granted under and by a clearly constitutional act, depending upon the intent of the legislature in using the language contained in the act. This, we think, is the serious and difficult question of the case.

The legislature must be presumed to have known the geographical situs of the contemplated railroad, and that it was proposed to be built across a narrow isthmus, separating two oceans, for the purpose of connecting the commerce of those oceans, and with little or no regard to, and with no hope of, support from the traffic of its locality. They saw the arduous and expensive nature of the undertaking, and that failure or success altogether depended upon whether the corporation, by the porvers and facilities granted, could make itself the carrier of a remunerative inter-ocean commerce and travel. It was then quite as apparent as now that unless there should exist lines of traffic between the great centers of commerce on the Atlantic and Pacific coasts, which should seek carriage across the Isthmus of Panama by the contemplated railroad, it would be of no value either to the company or to the world.

It was in the light of these facts that the powers were granted, and it is in tlie same light that they should be construed. It appears that the Pacific Steamship Company had already been chartered with the widest powers to navigate the Pacific ocean, and that linos of transportation existed from New York to Aspinwall on the Atlantic; but it by no means followed that these lines would be continued. They might, at any moment, be withdrawn or diverted, so that the business they brought to either terminus of the railroad would cease to be a means for its support. We cannot avoid the conviction, that it was in view of such possible contingencies that the legislature granted the powers contained in the act, in respect to the right to purchase and navigate such steam and sailing vessels as may be proper to be used in connection with said railroad. It is urged that this language only intended to confer the right to use such steam tugs and lighters, as might be necessary for transhipment from the railroad to vessels on the Pacific coast, where steamers and sail vessels cannot approach nearer the terminus of the road than three and a half miles.- To'that limitation the language is inapt. If designed to such a narrow sense, better fitted words would have been used. Commercial men do not speak of “purchasing and navigating steam and sailing vessels,” when they mean lighters and tugs used simply for lading and unlading such vessels. If the sense be broad enough to include lighters and tugs, it is also broad enough to cover such vessels as navigate the oceans between New York and Aspinwall on the one side, and Panama and San Francisco on the other, and few persons would fail to accept them in the larger sense. Besides, it was probably not at all necessary to use this language to confer power on the railroad to embark and disembark its traffic at its termini. That power would be implied from the general authority couched in the grant, “of all necessary and .incidental power.” It would follow that the power of any railroad company, when circumstances required it, to employ conveyances and men to deliver freight and passengers to its continuous or connecting lines of travel at and from its respective termini, was an incidental one, not requiring special expression in the charter. We think that the intent of the legislature was, in this case, to grant the power, whenever it became necessary and convenient to purchase and navigate such steam and sail vessels to be used in connection with 'the road as its exigencies should require, and that' the purchasing of steam vessels to navigate the oceans between San Francisco and New York by the route of the defendant’s railroad, as charged in the complaint, is not in excess of its powers. It appears by the affidavits, on the part of the defendants, that this exercise of power has become necessary, for reasons therein stated, and is not a wanton or improvident abuse. It follows that the injunction should not have been granted.

The order appealed from should be reversed and the injunction dissolved, with ten dollars costs, besides disbursements, and with ten dollars costs of opposing the motion below.

Brady, J.:

I concur in the result at which my brethren have arrived. I do so because the acts sought to be restrained relate to connections by steam vessels from this'jport with the defendant’s road across the isthmus, and which would seem to be essential to its success. It does not matter, perhaps, whether the road is reached by the defendant’s vessels secured by .charter or purchase. There is great force, nevertheless, in the suggestion of Justice Donohue that the right to purchase and employ steamers in the manner contemplated may, if it be exercised at all, be so extended as to include navigation from all places.

It is not difficult to understand, however, that if such a proceeding were attempted it could be prevented by a proper application. Pcannot avoid the thought that the question discussed in this case is delicate and not free from doubt.

Daniels, J., concurred in opinion of Davts, P. J

Order reversed, injunction dissolved with ten dollars costs of opposing motion.


author: Davis, P. J.: Brady, J.

text:
    In the Matter of the last Will of JAMES FOSTER, Jr., Late of the City of New York, and the Trust Fund created thereby to raise an Income for the Benefit of MARY E. WHITTELSEY, and the Petition of MARY E. WHITTELSEY.

      Trustee — discharge of — Revivor.
    A proceeding to vacate an order discharging a trustee granted upon his petition, may, upon the death of such trustee, be revived and continued against his personal representatives. (Brady, J., dissents.)
    Appeal from an order directing the representatives of Anthony L. Hognet, deceased, to be made parties to this proceeding in the place of said Hoguet, who died pending a reference ordered on the application of his eestui que trust to have an order discharging said Hognet as trustee opened, and for an accounting by him.

      Joshua M. Van Gott, for the appellant.
    Except as provided by statute, the established course of equity is to proceed by bill to remove a trustee or permit him to resign. (Quaehenboss v. Southwieh, él N. Y., 117, 121; In re Livingston, 31 id., 555, 569; In re Van Wyelc, 1 Barb. Ch. R., 565; 1 Barb. Ch. Practice [2d ed.], 579, and notes.) The order to revive the abated proceeding cannot be supported.

      Albert Qurdozo, for the respondent.
    The trustee had two methods of procuring his discharge, viz,: 1. By bill in equity; 2. By petition under the Revised Statutes. He chose the latter, but choosing it, he could not cut off the rights of the eestui que trust The cause of action against the order of discharge survived against the representatives of the deceased trustee. (Graves v. Sjpeir, 58 Barb., 385 ; 2 R. S. [Edm. ed.], p. 157, §§ 1, 2.) And it was necessary to revive by suit. (Id., p. 19, §§ 107, 109.)
   Davis, P. J.:

Anthony L. Hoguet was one of the trustees to carry out the provisions of the will of James Foster, Jr., and while acting as such trustee he presented his petition to be relieved from the trust, and such proceedings were had that the prayer of his petition was granted. Some time after the order to that effect had been entered, Mary E. Whittelsey, the oestui que trust under the will, applied to have the proceedings by which Hoguet was discharged opened, upon allegations of an abuse of his trust in 'making improvident and improper investments, in respect of which she claimed an accounting. On this application an order of reference was made to ascertain and report the facts. Pending the reference, and while the investigation under it was proceeding, Hoguet died, and the oestui que trust, Mrs. Whittelsey, applied to have the representatives of his estate brought in as parties to. the proceeding by an order of the court, which should revive and continue the proceeding for that purpose. The order was granted, and the executrix of Hoguet brings this appeal from the order.

The application of Hoguet to be relieved of the trust was properly made under the statute (1 R. S. [Edm. ed.], 680), and the court had jurisdiction in that form of proceeding. The order made was conclusive upon persons made parties to the proceeding, unless subsequently opened or vacated by the court or set aside for some alleged fraud, by a direct action for that’ purpose. It is not disputed but. that the court had power to entertain the application of the oestui que trust to open the order, and investigate the allegations upon which she asked that to be done; but it is urged that the death of Hoguet arrested the proceeding and deprived the court of all power to continue it. We do not think that result follows. The direct object of the proceeding was to establish a personal liability against Hoguet, growing out of the alleged mismanagement of the trust, and the order 'of the court stood across the path of that proceeding. It was a complete answer to the claims and allegations of the oestui que trust, while it stood intact as a record of the court. The equity powers of the court were broad enough to entertain a direct application on broader grounds, than would uphold a suit to avoid the discharge for frauds ; and it was not at all necessary to .require the oestui que trust to resort to an action. In entertaining the application and directing the reference to ascertain the facts, the court acted within its clear equitable powers, and the oestui que trust acquired rights in the proceeding of which she ought not to be deprived by the death of Hoguet. The proceeding directly affected his estate which, by his will, is now in the hands of his executrix. It is'not perceived that any sound reason exists why the proceeding should not be continued. If sufficient facts are established upon the reference to call for the opening of the order, it certainly ought not to stand with the force of a judgment, to protect the estate of Hoguet from just liability to the cestui que trust. It is very true the provisions of the Code and of the statute touching the revivor of suits are, in strictness, applicable to actions eo nomine. But that does not deprive the court, we think, of its equitable powers on this proceeding to bring in the representative who has become interested in the question. It will be in the power of the court, and probably a proper exercise of its discretion, if it shall finally determine in this proceeding that the order of discharge ought to be opened, to direct an action to be brought by the cestui que trust against the representative for an accounting. That action will be, in that case, free from the embarrassment of the order, and may proceed upon other grounds than the fraud for which the order could be attacked by an action in the present posture of the case. I am of opinion that the order of the court below was correct, and that the representative of Hoguet was properly directed to be brought in. The order should be affirmed, with ten dollars costs and disbursements.

Brady, J.

(dissenting):

Anthony L. Hoguet was appointed one of the trustees to carry out the provisions of the will of James Foster, Jr., and after he had entered upon, and while discharging his duties as such trustee, he applied by petition, to be relieved from his trust, and such proceedings were had that his prayer was granted. Subsequently, and some time after the order to that effect had been entered, Mary E. Wliittelsey, the cestui que trust, alleging an abuse of the trust power by Hoguet, arising from improvident investments, sought to have the proceedings by which lie was released opened, and on application for that purpose an order of reference was made to ascertain and report the facts. During the investigation thus initiated, and before its conclusion, Hoguet died, and Mary E. Whitteb sey applied to have the proceedings revived and continued against liis estate. The motion made for that purpose was granted, and the executrix appeals. The relief sought by Anthony L. Hoguet could have been obtained by bill in equity, or by petition under the statute. (Yol. 1, R. S. [Edin. ed.], p. 680.) lie adopted the latter mode, and was successful. The application was a personal one, and all the proceedings by which it was, and is marked are also personal. It is summary in character, and has none of the attributes of an action. It addresses itself to the sound discretion of the court, which must be exercised with reference to the facts and circumstances disclosed by the petitioner, relative to the estate, and to his acts in the execution of the trust assumed. During his life, the court granting him relief would not lose jurisdiction of the subject or- of him; but upon his death, and the consequent intervention of other and different rights and relations, jurisdiction by order to show cause founded upon petition, or any other summary method against his estate, is wholly unauthorized, either on principle or by precedent. The object of opening the proceeding is to enforce a claim against the estate. If the order discharging Hoguet be set aside, that result will form the basis of a demand, that his estate make good any loss arising from the improper use of the trust fund for which the testator would have been responsible.

This is not the.manner in which such objects are accomplished. There is no provision by statute for such a purpose, and no precedent to that end in the manner stated has been cited or found. The laws affecting and controlling the revival of proceedings relate to actions, and not otherwise. (Vol. 1, R. S. [Edm. ed.], p. 680; Code, § 121; 2 Barb. Ch. Prac., 679, 686 [2d ed.].) The application of Hoguet was not an action, and the attempt to disturb the order made upon it, is not an action. His application was, as already suggested, a personal one, addressed to the discretion of the court, and not founded upon any right. It could be granted or denied. An action rests upon some right which the court is bound to respect, declare and enforce, and even the existence of these attributes does not always make the proceeding an action. If one be taken to dispossess a tenant, it is not an action. (People v. Hamilton, 39 N. Y., 107.) A proceeding under sections 372 or 376 of the Code is not an action, nor is a reference of a claim against the estate of a deceased person. Nor a motion for an injunction, nor for the discovery of books, &c., nor a foreclosure by advertisement. (Voorhies’ Code, eases collected [10th ed.],p. 10.) It follows from these views that the cestui que trust cannot, by this proceeding, attain the object in view, and that she must resort to the formal mode of presenting ber case and asking tlie judgment of the court. This tribunal acquires jurisdiction by action only, over estates, save in the exceptional cases, expressly provided by statute. For these reasons the order made at Special Term should be reversed.

Daniels, J., concurred in the opinion of Davis, P. J.

Order affirmed.


author: Brady, J.:

text:
    HENRY E. ROBINSON, Respondent, v. S. CHITTENDEN and others, Appellants.

      Owners victualling, manning and sailing a ship chartered by another- — liability of, for lost freight — carrier by water — duties of- — -notice to consignee — seeiionBB,act of congress of March Z, 1851 — usage of trade — what questions proper to establish.

    Where the general owner retains the possession, command and navigation of the ship, and contracts to cany a cargo of freight for the voyage, the charter party is considered a .mere affreightment sounding in covenant, and the freighter is not clothed with the character or legal responsibility of ownership.
    The defendants in this action were the owners, and victualled, manned and sailed a ship chartered by Moore & Co. for a voyage from San Francisco to New York. Meld, that defendants were liable for baggage, received as freight on-the vessel and lost.
    A carrier by water is relieved from liability, on delivering merchandise upon a wharf and giving notice thereof to the consignee, after a reasonable time for its removal has elapsed.
    Knowledge on the part of the consignee that the ship is unloading, does not impose upon him the duty of waiting at the vessel till his merchandise is discharged.
    The question “ Is it not customary for persons who take receipts for goods on board of a ship to procure bills of lading therefor ?” and the question “ Is it not customary for the manifest of the ship to be made up from the bills of lading ? ” are not suggestive of a custom amounting to a usage of trade.
    Appeal from a judgment directed for plaintiff at tlie Circuit, with a further direction that the exceptions taken be heard in the first instance at General Term.

      II. F. Hatch, for the respondent.
    From the time of the receiving of the trunk on board the ship for transportation, the masters and owners had a iien on the goods for their freight, ánd their responsibility as carriers commenced. „ (Mactaggart v. Henry and ors., 3 E- D. Smith, 398; Oamden H. B. and Trust Co. v. Belhnap, 21 Wend., 354; Schroeder v. Hudson R. R. R. Co., 5 Duer, 55; Grosvenor v. FT. Y. C. R. R. Co., 39 N. Y., 34.) Whether received and put on board by the charterers or by the officers of' the ship is immaterial. The latter were bound to deliver the trunk at the place of destination. (Langworthy v. N. Y. and Harlem R. Co., 2 E. D. Smith,' 196.) Where the agents of a vessel have clerks on the wharf, who sign bills of lading for goods delivered to them, the agents and owners are bound by the acts of the clerk. (Goddard, v. Mallory, 52 Barb., 87; Schroeder v. Hudson R. R. R. Co., 5 Duer, 55 ; Rawls v. Seymour, 3 Keyes, 577.) It is admitted that the defendants were owners of the ship Great Republic, and the evidence shows that Moore & Co. chartered her “ for that voyage,” and had nothing to do with victualling, manning or sailing the ship, and that the trunk was delivered to the acting freight clerk- of the ship, and by him placed on hoard, and was duly demanded while the ship was unlading at its port of delivery. Under such circumstances the law is well settled that the owners, as carriers, are liable. (Clarkson v. Edes, 4 Cow., 470; Mactaggart v. Henry and others, 3 E. D. Smith, 398; Campbell v. Henry etal., 8 N. Y., 430; 1 IT. Bh, 359; Brower ei al. v. Water Witch, 19 How. P. R., 241, Nelson, C. J.; § 53, act of congress, March 3, 1851.) The charterer in this case did not man, victual and navigate the 'ship. But upon the principle that .“the ship is bound to merchandise and the merchandise to the ship,” the owners are liable in solido while engaged as common carriers, and it makes no difference to the shipper whether or not the vessel has been given out as a general or chartered ship. (Act of congress, March 3, 1851, § 53; Parish v. Crawford, 2 Strange, 1251; Clarlcson v. Edes, 4 Cow., 470 ; Marcardier v. Chesapealce Ins. Co. 8 Cranch, 49 ; McIntyre v. Bowne, 1 Johns., 229; Campbell v. Perldns et al., 8 N. Y., 430.) It was the duty of the defendants, as carriers of goods for hire, to deliver the trunk on its arrival, or to give notice to the plaintiff, or his agents, the consignees, of their readiness to deliver the same.' (Be Mott v. Laraway, 14 Wend., 225 ; Price v. Powell, 8 N. Y., 322 ; Gibson v. Culver <&• Brown, 17 Wend., 305; Fenner v. Buff, and State Line R. R. Co., 44 N. Y., 505 ; Owners of the Mary Washington v. Ayers, 5 Amer. Law. Reg. [N. S.], 692; The Tangier, 11 Law Rep. [N. S.J, 12 ; Fisk v. Lfewton, 1 Den., 45 ; McAndrews v. Whitlock, Jr., 52 N. Y., 46.) Delivery at the wharf, without notice to the consignee, is not sufficient. (Bronson, Oh. J., in Price v. Powell, 3 N. Y., 322;' McAndrews v. Whitlock, Jr., 52 id., 46.)

      Samuel 3. Valentine, for the appellants.
    The plaintiff having-made an express agreement with the charterers, the law will not imply an agreement with the defendants, and thus overcome the express provisions of the parties. (Calkins v. Falk, 39 Barb., 620.) These defendants cannot be held liable to the plaintiff in this action, on the common-law liability of common carriers, irrespective of any contract, because under a charter giving to the charterers the whole capacity of the ship, the owners thereof are not common carriers, although under the charter they are to victual, man and sail her. (Lamb v. Parkman, Sprague, 343; Tuckerman v. Brown, 17 Barb., 191.) This rule does not require notice to be given after each package has come out, that it is out. Notice that the ship is about to discharge, giving the time, when and place, is sufficient. It is then the duty of each consignee to be present and receive liis goods. (Cope v. Cordova, 1 Rawle, 203; The Tangier, 11 Law Rep. [N. S.], 12; S. C., 3 Ware, 110; affirmed, 23 How. [H. S.], 28.) Where the residence of a consignee, claiming the right to notice of the arrival of goods, is not known to the carrier, “ the consignee ought, before the arrival of the goods, to give such information as will enable the carrier to give the requisite notice.” Pelton v. Pens, and Sara. R. R. Co., 54 N. Y., 214, 217; Goold v. Chapin, 10 Barb., 618; Stephenson v. Bcurt, 4 Bing., 476.) In such a ease as this, where the consignee was unknown through his own neglect, notice by publication in the newspapers was the only possible, and a sufficient notice. (1 Parsons’ Maritime Law, 154, note 5; Cope v. Cordova, 1 Rawle, 203 ; The Tangier, 11 Law Rep. [N. S.], 12.) Actual knowledge makes any formal notifying unnecessary. (Fenner v. Buff, and Sicote Line R. R. Co.,
      44 N. Y., 510, 511.) By then storing the trunk, in good order, in a public warehouse, the liability of the defendants ceased. (Angelí on Carriers, § 295, and» cases cited; Fish v. Newton, 1 Den., 45; Mayell v. Potter, 2 Johns. Cas., 371; Williams v. Niehols, 13 Wend., 58; Northrup v. Syracuse, etc., R. R. Co., 5 Abb. Pr. [N. S.], 425; Fenner v. The Buff, and State Line R. R. Go., 44 N. Y., 505, 509; Wiibech v. Holland, 45 id., 13 ; Zinn v. N. J. Steamboat Go., 49 id., 445 ; Pelton v. Rens. and Sara. R. R. Go., 54 id., 214; Chichering v. Fowler, 4 Pick., 371; Pichett v. Downer, 4 Vt., 21.) It is well settled that an agent cannot bind his principals by acts, admissions, or declarations, not within the scope of his authority. (Berger v. Miller, 4 Wash. C. C., 280; General Interest Ins. Go. v. Ruggles, 12 Wheat., 408; N. Y. Life Ins. and Trust Go. v. Beebe, 7 N. Y., 364; Mortimer v. Cornwell, Hoiim., 351; Brisbane v. Adams, 3 N. Y., 129.) It is the duty of the owner of goods* to deliver them to the carrier, properly marked, so that they may be entered in the carrier’s books, and if he neglects to do it, and loss occurs in consequence, he must bear the loss. {Boney v. The Huntress, 4 West. Law Jour., 38; S. 0., 4 Hunt’s Merch. Mag. [Jan., 1841], 83.)
   Brady, J.:

In June, 1865, the plaintiff, at San Francisco, California, shipped a trunk, in good order, marked H. E. R.,” on the ship Great Republic, then lying at a wharf in San Francisco, for New York, and obtained a receipt for the same from the freight clerk, who received the trunk and put it on board the vessel. The ship was owned by the defendants, but was chartered by Moore & Co. for the voyage to New York, but victualled, manned and sailed by the owners. The plaintiff left California for New York, where he arrived prior to the Great Republic. He called on Wells, Fargo & Co. and gave them the receipt given him on the shipment of his trunk, with instructions to obtain it for him on the arrival of the ship. When that event occurred, the receipt was presented to the consignees of the ship, who directed the person presenting it to the delivery clerk of the ship,, and the receipt was accordingly presented at the place where the ship was discharging, and the trunk demanded. The answer was that it had not come out of the ship, but as soon as it did, Wells, Fargo & Co. would be notified. The trunk was not delivered but placed in store, without notice to the plaintiff or his agents of its going out of the ship, or the disposition made of it. The plaintiff never received the trunk or its contents. The plaintiff insists that the defendants are liable to him for the loss, notwithstanding- the charter which was made for the voyage. It is admitted that the defendants are the owners of the ship, and it appears that although Moore & Co. chartered her, the defendants were to victual, man and sail her. They retained the possession, control and navigation of the vessel therefor, and were the owners for the voyage, regarded as carriers and liable for the loss. (Campbell v. Perkins, 8 N. Y., 432; Parish v. Crawford, 2 Strange Rep., 1251; Clarkson v. Edes, 4 Cow. Rep., 470; Mactaggert v. Henry, 3 E. D. Smith Rep., 398; Marcardier v. The Chesapeake Ins. Co., 8 Cranch, 49.) Where the general owner retains the possession, command and navigation of the ship, and contracts to carry a cargo of freight for the voyage, the charter party is considered a mere affreightment sounding in covenant, and the freightor is not clothed with the character or legal responsibility of ownership. In such a case the responsibility rests on the general owner. (8 Cranch, supra.) See, also, section 55, act of congress March 8, 1851, which, recognizing the distinction suggested, declares that the charterers of any ship or vessel, in case he or they shall man, victual and navigate the'vessel at his or their expense, or by his or their own procurement, shall be deemed the owner or owners of such vessel within the meaning'of the act, etc. It is therefore correctly said by the plaintiff’s counsel that upon the principle that “ the ship is bound to merchandise, and the merchandise to the ship,” the owners are liable in solido while engaged as common carriers, and it makes no difference to the shipper, whether or not the vessel has been given out as a general or chartered ship. Where the owner mans and navigates the vessel he is liable for all losses, not included in the excepted perils. The liability of the defendants as carriers thus appearing, did they discharge their duty to the plaintiff in delivering the goods? A carrier by water may relieve himself from liability by delivering merchandise upon a wharf with notice thereof to the consignee, after reasonable time to him to remove it has expired. (Price v. Powell, 3 Comst. R., 322; Redmond, v. Liverpool N. Y. and Phila. S. Co., 46 N. Y. Rep., 583; McAndrew et al. v. Whitlock, Jr., 52 N. Y. Rep., 45.) He must, it would seem from these cases, give the consignee due notice before unlading, and yield a reasonable time to take charge of and secure the goods. The propriety of such a rule is manifest, from the facts in this case, from which it appears that the ship was several weeks unloading. If the consignee or owner, after such notices, and the expiration of a reasonable time, does not remove the goods, they may be stored by the carrier, and his liability thereby ended. (Cases, supra.) In this case the arrival of the vessel was known to the shipper, and the necessary document placed in the hands of his agents to procure the goods. They were not ready for delivery when demanded, and no notice was given that they would be or were unladen, either to the plaintiff or his agents, who were known to the defendants. The mere knowledge that the ship was unloading, did not impose upon the plaintiff or his agents the duty of waiting for weeks to see the merchandise discharged from the vessel. The object of notice is to prevent this burden, and the duty of requiring it is neither severe nor unjust. The plaintiff proved that the clerk, who was at the ship while she was unloading, promised to send notice. The testimony was objected to; but if not admissible as a part of the res gestee (Mc Cotter v. Hooker, 8 N. Y., 497), it could not prejudice the defendants, because it was nothing more, by way of duty, than the law required of them without the promise. The defendants, not having given notice of the landing of the trunk, were not authorized to place it in store at the risk of the plaintiff. His right was' to receive it from the ship or the wharf, until he had lost it by delay beyond a reasonable time. If it was intact in the store, the defendants should have produced it, and thus either relieved themselves of liability or mitigated the demand. The defendants did not do their duty, therefore, in reference to the delivery of the trunk. It cannot be said, with propriety, that this case involves any question arising from the circumstance that the consignee could not be found. The plaintiff was represented by Wells, Fargo & Co., acting as his agents, having the receipt in their possession, which was exhibited to the consignees of the vessel and to the delivery clerk at the ship, where she was discharging. The defendants were informed, therefore, who the consignee was, and before the plaintiff’s trunk was taken from the ship. The defendants’ request, under the facts and circumstances disclosed, therefore, to go to the jury on the question of negligence, was properly denied. It was not disputed that the plaintiff’s trunk was not delivered, or that there had been no notice by the carriers of 'their readiness to deliver — no notice in fact of any thing in relation to the unlading of the goods. This established the liability of the defendants, and there was no question of negligence, upon disputed evidence, involved in the cause. The omission to deliver the trunk was not, in any way, excused by evidence, of facts relieving the defendants of their responsibility for that omission. The proof of negligence was therefore conclusive, and became a question of law. There was no conflict in the evidence going to establish any of the circumstances upon which the question depended. (Bernhard v. R. and S. R. R. Co., 1 Abb. Ct. App. Dec., 131.)

The offer of the.defendants to show the usual custom and course of business for receipts for goods to be surrendered and bills of lading taken, and the ship’s manifest to be made up from the bills of lading, was properly excluded.

The questions were: Is it not customary for persons who take receipts for goods on board of a ship to procure bills of lading therefor ? Is it not customary for the manifest of the ship to be made up from the bills of lading ? Is it customary for the consignees to send notice to the persons who have freight on board ? The first and second questions are not suggestive, of a custom, amounting to' a usage of trade binding upon the plaintiff, and in reference to which he was supposed to contract. It may have been customary to do both of the acts mentioned for the convenience of the carrier, but the omissions would not destroy the contract expressed by the receipt. There was no offer to show any rule to that effect. The third question was one in which the plaintiff had no interest. lie was not dealing with consignees, but with the defendants as owners of the ship, who were his carriers. The question about there being any memorandum or any papers of the ship, from which notice to any body could be given with relation to the delivery of the trunk, was equally inadmissible. The plaintiff had given notice at the office of the consignees and at the ship, to a person there intrusted with the delivery of the freight, and who, in reference to it, so far as the plaintiff was concerned, represented them.

The defendants say he was not an employe of theirs, but of the consignees, but the answer is that the ship was in their possession and under their control, and he was there acting on their behalf and relative to their business, namely, the delivery of the freight. The plaintiff was under no obligation to investigate his position. It was enough that he was the delivery cleric, engaged in and about a business which was clearly the defendants, namely, discharging the freight. The question which was designed to show that Mr. Bailey was instructed to deliver no cargo without an order of the consignees, was properly excluded.

There was no refusal to deliver upon any such grounds. The agents of the plaintiff were, in fact, sent by the consignees to the ship. This was not disputed. There was nothing said about any written or verbal order from them, but the direction to go to the ship was in effect a verbal order. The various questions argued have thus been considered,-and it seems that the defendants established neither a defense, nor a right to go to the jury on the only question which they desired to submit, namely, negligence. The plaintiff is therefore entitled to judgment with costs.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.


author: Brady, J.: Davis, P. J.:

text:
    ALFRED NELSON, Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.

      Railroad company — Refusal of pamnger to pay feme — removal of — no right to be tajeen bade on tendering fare.

    A passenger having been put off a car for refusing to comply with the rules of the company, cannot demand, as matter of right, to be taken back again upon complying with the rule violated, unless he beat a regular station, and then and there obtain a ticket or tender his fare.

      Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, in an action brought to recover damages for the ejectment of the plaintiff from the defendant’s ears, and its refusal to allow him to re-enter the train.

      Robert T. Green, for the appellant.

      Everett P. Wheeler, for the respondent.
   Brady, J.:

The plaintiff was ejected from the defendant’s cars on refusing to pay his fare. He had purchased in New York an excursion ticket on the 3d of August, 1872, from defendant’s ticket agent, to and from Southampton. The ticket was good for three days. When he applied for the ticket, some conversation ensued between him and the agent as to the time for which the ticket would be good, the plaintiff suggesting the Wednesday following, and the agent Monday, the ticket having been purchased on Saturday. The ticket was stamped the “ 5 of August,” which was Monday, and that seems to have been in accordance with the running time for the ticket, Saturday, the day of its issue, being regarded as one of the three days. The agent, when the plaintiff stated his theory of the time, expressed neither assent or dissent, but sold the ticket, stamping it according to the opinion expressed by him, that the time for its use expired on Monday. The conversation mentioned was taken under objection and exception, the defendants claiming that the ticket was a contract., and not subject to alteration by parol evidence. The plaintiff sought, on two occasions to employ the ticket, unsuccessfully, having ridden upon the main road-of the defendants and a connecting branch. On the second occasion, he refused to pay his fare other than by the ticket, and was put out of the car. As soon as that was done, and before the car started, he offered to pay his fare, but the conductor refused to accept it, and to allow him to enter the car again. .What relation the place at which he was put out of the car bore to dwelling-houses, or to the next station as to distance was, perhaps, in conflict in some respects, but that circumstance is not material in the view that is taken of this appeal. It is quite apparent that the plaintiff was determined to test the accuracy of his opinion as to the length of time or days for wliicli his ticket could be used, and 'to place himself in. the necessary hostile attitude, to enable him to do so. The agents of the defendants were equally determined to assert their rights in opposition to his views, and did so. The plaintiff was ready to be put out of the car, and the defendants willing to gratify him. On the trial, the learned justice presiding submitted the controversy about the duration.of the ticket to the jury, to be disposed of by them as a question of fact, and left them to say whether it expired on the fifth or the seventh of August. He also charged that when the ears were stopped, and the plaintiff ejected, the defendants were bound, then and there, to receive the tendered fare, and to receive back and carry the plaintiff to his destination. There were exceptions duly taken to both of these propositions, and other exceptions were also taken on behalf of the defendants, to which, however, it will not be necessary to allude.

The learned justice was right in declaring that the ticket was not conclusive of the plaintiff’s rights. It was only a token or voucher adopted for convenience, to show that the passenger had paid his fare from and to the points named. The court of last resort has sufficiently established this as a rule of law to leave no room to doubt of its existence. (Quimby v. Vanderbilt, 17 N. Y. Rep., 313, per Denio, J.; Rawson v. Penn. R. R. Co., 48 id., 217, per Earl, C.; Elmore v. Sands, 54 id., 515.)

The plaintiff had the right, therefore, to show that, in a conversation before his purchase from the defendants’ agent, he was induced to believe that he could use the ticket on the day when he attempted to do so, and was ejected. The question ivhat the contract really was, as to his transportation, was one, therefore, to be determined by the facts disclosed. The statements of the ticket agent were binding on them. He must be regarded as clothed with all the power necessary to enable him to conduct the business for which he is employed, and for which he is held out by the defendants as their representative. There is no hardship in the rule. When the agent is called upon to act, he must do so, if the defendants wish to protect themselves from liability beyond any desired limit. The agent, with whom the plaintiff dealt, could have said that the ticket was good for Monday only, and thus have prevented suffering, loss and damage. It must be assumed, therefore, that the rule of law stated, upon the subject considered, was correctly pronounced, and that the exception fails. The conclusion, in regard to the other proposition, is different. If a refractory passenger is put out of the car, and by refractory is meant any one refusing to comply with the rules of the company, which they can lawfully make, he cannot demand, as matter of right, even upon complying with the rule violated, to be taken back again eo instanti, unless he is put off at a regular stopping station, and unless, at least, he then and there obtained a ticket or tenders his fare. Railroad companies have rights which the public are bound to respect, and however unwillingly the doctrine may be accepted, are to be treated, in the administration of the laws, precisely as private persons, except when, from public policy or by express enactment, a different rule is prescribed. While such organizations should be held to a strict accountability, they should be protected in their franchise, and facilitated, in all reasonable ways, to make their enterprises successful and safe. It is not to be tolerated that, by a rule of law, passengers should be endangered by the errors or caprice of any one person whom it becomes the duty of a company to carry from one place to another, and especially when it is not essential to the assumed rights of that person, that the peril should be provoked. It was not necessary, for example, for the plaintiff in this action to require the ceremony of stopping the train and of expulsion. It would have saved his rights, if having refused to pay other than by his ticket, he was told that unless he paid he would be put out, and then paid under protest. If a passenger prefer the other course, then he must rely entirely upon the wrong done in putting him out, and upon the absence of any right of the company to eject him his remedy must depend. He cannot present his action in a double aspect, both upon the original trespass upon him, and the subsequent one, as well founded upon the refusal of the company to take his fare at a place not designated for the receipt of passengers or for stoppage, and at which he has, by his own conduct, compelled their train to stop. This right of a passenger, thus to continue in the train, has been considered and determined adversely to the plaintiff. “ By refusing to pay the fare demanded, it was the conductor’s duty to put McCormick off the cars immediately, with as much expedition as was consistent with- his safety, and the safety and convenience of the other passengers. He had no right to detain or delay the train to dispute with an obstinate passenger about the amount of the fare.

“By refusing to pay the fare demanded, McCormick relinquished his privilege as a passenger, and ceased to have any right in the cars, and the conductor was authorized to put him out as an intruder. It could not be that while the conductor was authorized to put him out of the cars as an intruder, such person could, by his own act, acquire a superior right to remain.” (Per Mullett, J., in The People v. Jillson, 3 Parker Or. Rep., 239.) It was held in that case, that the subsequent offer to pay the fare, therefore, did not do away with right to put the passenger out, or impose upon the company the obligation to receive him back and permit him to remain. The same principle was enunciated in Hibbard v. The N. Y. and Erie R. R. Co. (15 N. Y., 455). Justice Denio said, in considering the proposition, that if the plaintiff, in that case, had offered to show his ticket, or did show it after the cars had been stopped, in order to put him out for refusing to show it, the conductor should not have persisted in expelling him. This question, like the other, requires a consideration of the peculiar character of this new mode of transporting persons. Railroad trains are now run according to a scheme in which the time required in passing from one point to another, and the time required for the necessary stoppages is accurately calculated. Any derangement or departure from the time fixed, is exceedingly hazardous to the safety of the company’s property, and the persons employed in running the train. The most horrible calamities have often been the result of such derangements. And if one passenger, he also said, can, by his unjustifiable humor, cause the cars to stop, another may do the the same thing, and the utmost irregularity may be brought about. The rule, therefore, was, in my judgment, plainly reasonable, which imposed a forfeiture of his right to proceed further on the cars, upon a person who should refuse to show his ticket to a conductor when requested. Having forfeited his right by his improper conduct, it was for the company or its agents to say whether he should be retained, after having occasioned the inconvenience of a stoppage by his pertinacity.” The Court of Appeals have also, in the recent case of Hill v. The Syracuse R. C. Co. (not yet reported), sustained this doctrine. It may be said, in addition, that if the rule were otherwise declared, it would enable a passenger, so disposed, to pay his fare only on compulsion, and after a train had stopped, repeating the operation between all stopping points along the route of the road. The passenger must, therefore, stand or fall by the right of the company to expel him. If he incur the exercise of this power, he is at the mercy of the company. If they are wrong, they must respond. If he is in error, he must bear the burden of his folly. He cannot, as suggested, create the facts and circumstances out of his own wrong. He must take its consequences, which are expulsion at the will of the company, expressed through its agent, the. conductor, and the inconveniences resulting from that incident..

This conclusion renders it necessary to reverse the judgment, because we cannot say on which theory the jury determined the plaintiff entitled to success.

Wheth r upon that relative to the contract as adopted by him, or upon that of the asserted duty of the defendants to accept his fare, offered after the train had stopped. If upon the former, the judgment might be upheld ; if upon the latter, it could not be, because-the jury might have declared the expulsion justifiable, and the refusal to receive the fare thereafter unjustifiable and injurious. Indeed, the charge was to the effect that the plaintiff was entitled to recover, because the defendants did not deny that the fare was tendered after the expulsion took place, and that fact entitled him, under the law governing it, as pronounced, to transportation in the cars of the defendants, whether his expulsion was lawful or otherwise.

The judgment should be reversed.

Davis, P. J.:

I concur in the result. I do not concur in the views expressed by my brother Bradv, in the first proposition discussed by him. I think the learned judge at Circuit should not have submitted to the jury the question whether there was a contract made hy the ticket agent with ’the plaintiff, upon which the latter was entitled to use the ticket on Wednesday. There was no agreement, but a mere disagreement, on that question, and the ticket agent stamped the ticket to return on Monday, in accordance with his views. The ' piaintiff accepted the ticket when so stamped, and made no further objection, and he knew thereby that the agent rejected his idea that these days, from and including Saturday, included the following "Wednesday. Taking the ticket, with knowledge of such stamp or indorsement, made it in the nature of a contract, to which the act of taking with knowledge was an assent. The case in 54 N. Y. 512, establishes the correctness of this view. The defendant is entitled to a reversal and new trial on this ground, as well as that secondly discussed by Brady, J.

Daniels, J., concurred in this qualification of Justice Brady’s opinion.

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


text:
    CHARLES S. ARCHER, Appellant, v. JAMES O’BRIEN, Sheriff of the City and County of New York, Respondent.

      Faudulent assignment — transfer of property to secure debt. — Intent of debtor in so doing to delay creditors— does not invalidate transfer.

    B., the owner of certain property, caused it to be transferred to O. to secure an indebtedness of his in O.’s favor. In an action brought to determine the rights of O. in this property, as against the other creditors of B., in which it was claimed that the transfer to O. was made with the intent on the part of B. to hinder, delay and defraud his creditors. Held, that to constitute a valid-transfer by a debtor to his creditor, it was only necessary that three things should concur :
    1. That there was a valid subsisting indebtedness on the part df the vendor or assignor to him.
    3. That the property transferred was conveyed to secure the debt.
    3. That it was reduced to possession.
    Creditors as such in reference to a debtor’s property are equal, and the principles which govern the transactions between a purchaser and a fraudulent vendee, are not applicable as between creditors of the same class.
    Appeal from a judgment in favor of the defendant, entered on the verdict of a jury, in an action of replevin.
    This was an action brought by C. S. Archer, the above-named plaintiff and appellant, to test the title to the personal property and machinery of a distillery, Nos. 46 and 48 Marion street, in the city of New York. The plaintiff claimed title thereto under, and-by virtue of a bill of sale of the same from James England, in wífó’se name the title stood, and possession acquired thereunder. The property was really owned by Marcus Hanlon, who was indebted to the plaintiff; to secure which indebtedness, the transfer from England was made at Hanlon’s request. The sheriff claimed title thereto under, and by virtue of an attachment levied on the property at the suit of one Charles Doherty, an alleged creditor of Hanlon. There was a conflict of evidence as to the time of the execution of the bill of sale, and the attempt to take possession.

      Dennis McMahon, for the appellant.

      A. J. Vcmderjpoel and Robert S. Green, for the respondent.
   Brady, J.:

The plaintiff claimed property, seized by the defendant, as the owner by virtue of a transfer made to him to secui’e an indebtedness from the assignor, Marcus Hanlon. The bill of sale was executed by James England, who held the title for Hanlon. It was virtually conceded on the trial that the plaintiff was a bona, fide creditor of Hanlon, but it was contended by the defendant, representing a creditor of Hanlon, that the transfer was made to hinder, delay and defraud creditors. The facts and circumstances disclosed by the proofs presented a complex case, and one, there-' fore, which required a statement or explanation of the various legal propositions that would govern various findings which the testimony might warrant, affecting the rights of the parties. The chief feature of the controversy, however, was whether the plaintiff' was a purchaser in good faith. There was evidence for and against this issue, and it was presented in different aspects on different facts. The counsel for the plaintiff requested the learned judge who presided to charge as follows:

Third. If Archer had a lawful and bona fide debt against Hanlon, it was lawful for the latter to turn over to said Archer any of his personal property as security for said debt, if the latter took immediate possession thereof and continued such possession.

Fourth request. If the plaintiff took possession of said property involved in this suit, under a transfer made to him as security for a lawful debt, and such transfer was made and possession taken before the sheriff levied, then the plaintiff is entitled to recover, even though the owner of the property was Hanlon at the time it was so turned over.

Fifth request. That the title of the plaintiff under the circumstances stated in the fourth request, must prevail over the seizure by the sheriff under the attachment.

But the requests were refused, except as charged.

Upon the conclusion of the charge the plaintiff’s counsel also requested the court to charge, “That if Mr. Archer was a bona fide creditor to the amount claimed by him on the eighth of December, and he took this bill of sale as security for that debt, if he had no notice of any fraudulent intent on the part of Hanlon to defraud his creditors, that he is entitled to hold this property against the other creditors of Hanlon, even though he parted with no money on the eighth of December,” and the court refused to do so, otherwise than as charged. Are' the exceptions thus taken of any advantage to the plaintiff % It cannot well be gainsayed that creditors, as ’ such, in reference to a debtor’s property, are equal, each possessing the right to obtain payment of his debt or security as an equivalent, and each is entitled to the benefit of superior diligence in that respect. There are no superior or prior equities in favor of either of the same class, and hence the principles which govern the transactions between a purchaser and a fraudulent vendee are not applicable. In the latter case, an assignment is subordinate to the superior and prior equity of the defrauded owner, and cannot be sustained without proof of a given consideration, other than the discharge of a precedent debt. (Barnard v. Campbell, 58 N. Y., 73.) The distinction is clear, palpable and readily understood. Authorities to sustain this view are not wanting. “ When, said Selden, J., the transfer, instead of being to a stranger, is to a creditor of the vendqr, a different principle applies. It is not necessary, in such a case, that the vendee, in order to protect himself from á claim by other creditors, should show any new consideration paid, for the obvious reason that his equity, at the time of the transfer, was the same as theirs, and. he is entitled to the universal rule,' that when the equities are equal the legal title must prevail.” And again, “ there is no doubt that the debt paid or secured by the transfer must, in such case, be regarded as a valuable consideration within the section which saves the rights of Iona fide purchasers, so that if the creditor acts in good faith and for the mere purpose of obtaining satisfaction of his own debt in accepting the transfer, he will acquire a valid title. There being no equity prior to his own to.be overcome, the necessity which calls for proof of a new consideration in other cases does not exist.” (Seymour v. Wilson, 19 N. Y. Rep., 417; Towsley v. McDonald, 32 Barbour, 604.) The requests marked three, four, and five, were in harmony with this view, which was not charged, without qualifications which do not seem to be authorized, or in a manner which gave to the plaintiff all his rights.- It was said in the charge: “ If, upon the other hand, you find that it was an ordinary case of a debtor placing security in the hands of his creditor, to be applied by the creditor to the payment of his debts, and there were no circumstances likely to cause a prudent mcm to make inquiry, then Archer would be a purchaser in good faith and for a valuable consideration, aud that purchase must be protected unless there is want of a change of possession.” The burden of carrying the effect of “circumstances likely to cause a prudent man to make inquiry,” when a debtor is willing to secui’e the debt due by the transfer of his property, cannot be imposed upon the creditor. He lias the right to accept the security, and. it matters not what the debtor intended otherwise to do. He has the right to secure his debt, and the debtor has the right to select him of all the others' — -to give him, in other words, a preference. The validity of the debt protects him, and the subject assigned for its payment. If the creditors wish to obtain the property thus transferred, they can pay the debt and be subrogated. The transfer in itself, no matter how honestly done, is an act by which creditors are hindered and delayed. The right to select one implies the right to defeat others, in all eases where the debtor’s estate is insufficient to meet all his obligations.' The creditor, when he discovers circumstances which would put a prudent man on inquiry, should in the preservation of his own rights, seek the payment of his debt, the protection of his own property. Such a course is not only consistent with honesty, but is a duty which he owes to himself, the observation of which is sanctioned by the rules of law authorizing the preference which he obtains. The question is one of influence or diligence, and the result is the same whether it is acquired by voluntary appropriation by the debtor, or by attachment. If the diligent creditor is to be surrounded by the exigencies of a stranger taking title from a failing debtor under suspicious circumstances, then the rules of law declared in the charge are correct • otherwise they are not.

If the creditor is entitled to security they are not, because, as suggested, he takes the property only as an indemnity, and if it be in excess in value, coexisting equities in other creditors will enable them to relieve it by the payment of the lien, and then to have it applied to the payment of their debts. It cannot be correctly said that accepting a transfer of property as security for the payment of a valid claim, is taking it fraudulently or in bad faith. It is enough that it be taken for that purpose and reduced to possession. The debtor can make the selection of his creditor, and the creditor has the right to acquiesce in the choice made.

It was only necessary to authorize a verdict for the plaintiff, therefor, that three things should concur:

1. That there was a valid subsisting indebtedness-on the part of the vendor or assignor to him.

2. That the property transferred was conveyed to secure the debt.

3. That it was reduced to possession.

The plaintiff was entitled to the requests made therefor. The effect of a fraudulent combination between the plaintiff and the assignor was one of the elements of the defense. It was the duty of the defendant to establish it by evidence, and not that of the plaintiff to anticipate it. He was entitled to the unqualified rule of law, that if the transfer was made to secure his debt, he could hold it, the other requisites existing. If the defendant desired any qualification of this rule, it was incumbent on him to ask for it. The presumptions of fraud did not arise from the plaintiff’s transactions with Hanlon, as his case revealed it. It was the affirmative defense which asserted the fraudulent intent and co-operation. The plaintiff, nevertheless, by the last request, assumed the burden of that to some extent, because he put his right to hold the property upon the proposition: That he was a bona fide creditor, taking the bill of sale as security, without notice of any fraudulent intent on the part of Hanlon to defraud his creditors. He was clearly entitled to this request without qualification, and it should have been allowed. There is no reason, in morals or in law, for holding a creditor securing his debt, responsible for a fraudulent intent on 'the part of his debtor, of which he has no notice. There is not, and there should not he, any obligation on the part of the creditor, whose claim the debtor is willing to secure, to examine into any or all the circumstances to ascertain what ulterior object the debtor has in view. He- gets nothing but bis debt out of the security, and to tliat he is entitled. If he make any arrangement to protect the debtor by holding the property for some purpose other than the payment of his demand, he loses all advantage by the unlawful combination. If he have no notice of a fraudulent intent, bis rights should not be impaired. If he accept the subject assigned as a security for payment of his debt, he does no wrong; and to prevent him from doing it, would revolutionize the law of debtor and creditor as it is now declared in this State.

For these reasons I think the-judgment should be reversed.

Davis, P. J., concurred. Daniels, J., concurred in result.

Judgment reversed.


author:
Brady, J.:
      Daniels, J.:

text:
    THOMAS H. YOUNG, Appellant, v. J. C. JULIUS LANGBEIN, as Administrator, etc., of the Estate of ADAM MULLER, Deceased, and others, Respondents.

      Will — construction of — trust — curtesy — tenant by.

    A testator having directed that the income of one-half of his estate should be paid to his widow during her life, and that upon her death the said half should be divided equally among his children, absolutely, in fee forever, and that the income of the other half should be divided equally among his children until the youngest child should be of age, and then that such half should be divided among his children, absolutely, in fee forever. Held, that the children took the fee oh the death of the testator, subject to the restrictions contained in the will, and upon the death of a married daughter having had issue, her husband would be entitled to his curtesy.
    This is an appeal from a judgment entered on the 24th day of February, 1875, upon a decision rendered after the trial of the action at Special Term of this court by Justice Yan Brunt, dismissing the plaintiff’s complaint, in an action brought to establish the right of the plaintiff, as tenant by the curtesy, in certain real estate alleged to have belonged to his wife.
    . L. H. Bowan, for the appellant.
    By the terms of the will of Adam Muller, his children became vested of his real estate. (Everitt v. Everitt, 29 N. Y., 39; Post v: Plover, 30 Barb., 312 ; Gilman v. Beddington, 24 N. Y., 9; Tuelcer v. Bishop, 16 id., 405; Manioe v. Manioe, 43 id., 303; • Savage v. Burnham, 17 id., 561.) A devise of the interest, or the rents and profits, is a devise of the thing itself. (Patterson v. Ellis, 11 Wend., 298; Jackson v. Johnston, 5 Cow., 93, 95, 102; Manioe v. Manioe, 43 N. Y., 388 ; Gilbert v. Chapin, 19 Conn., 342.) In this case the children became vested of a foe under the Revised Statutes of this State. (1 R. S. [Edm. ed.], 699; Niooll v. Pf. Y. and ErieR. B., 12 N. Y., 128; Hatfield v. Sneden, 54 id., 284, and cases cited.) The will does not express a devise in trust, but if it were construed to intend such trust, the children of the deceased would become, by implication of law, trustees. (.Fishe? v. Fields, 10 Johns., 495; Story’s Eq. Jur., § 964; Gomez v. TradesmanBk., 5 Sandf., 162.) The clause regarding the sale of some of the real estate does not make the executors trustees. (Dtmscomh v. Exr. of Same, 1 Johns. Ch., 806; Vernon v. Vernon, 53 N. Y., 351; Tuoker v. Tuolcer, 5 id., 408; Bloomer v. Waldron, 3 Hill, 365; Ger. on Real Estate [2d ed.], 332.) The receipt of the rents by the plaintiff’s wife created a sufficient seizin of the estate by her to entitle her husband to curtesy. (Payne v. Pa/yne, 11 B. Mon., 138; Powell v. Gossom, 18 J. 0., 179; Pitt v. Jackson, 2 Bro. C. C., 51.) And an equitable estate or a beneficial interest as vestui que trust by her would have been sufficient for that purpose. -(Ellsworth v. Cook, 8 Paige, '643; 4 Kent’s Com., 31, and cases ^there cited.)

      George F. Langbein, for the respondents.
    The deceased wife of the plaintiff at no time became seized or possessed of the lauds of her father, sufficiently, in law, to create a tenancy by the curtesy. The will created a contingent “future estate” under the Revised Statutes of the State of New York. {Gil-man v. Reddington, 24 N. Y., 15 ; Carmichael v. Carmichael, 4 Keyes’ Rep., 355, 356, and cases cited; Kent’s Com. [last ed., vol. 4], 31; Jackson v. Johnson, 5 Cow., 98; Jackson v. Hendricks, 3 Johns., 214.) Actual seizin of the wife, during coverture, is necessary to a tenancy by the curtesy. (Ferguson v. Tweedy, 43 N. Y., 543; affg. S. C., 35 Barb., 158; Pond v.' Bergh, 10 Paige, 140, 154; 5 Cow., 74, 97; 8 Paige, 643; Adair v. Lott, 3 Hill, 182; Tyler on Infancy and Coverture, 399 ; Pond v. Bergh, 10 Paige Ch., 149; Orr v. Holliday, 9 B. Mon., 59.) Estates not of inheritance are not liable to curtesy (9 Modern, 147; 2 Atkyns’ Rep., 57; 1 Inst., 29); nor estates in jointure, nor remainders or reversions. (Sec. 1, Inst. 29, a 2, and 75; 2 Saund., 46, n. g.; vide 2 Bl. Com., 127; Watts v. Ball, 1 P. "Wins., 108; Casborne v. Scarfe, 1 Atk., 603; De Gray v. Liichardson, 3 id., 470; Goodtitle v. JYewmam, 3 Wils., 521; Stoughton v. Leigh, 1 Taunt., 410; Tyler on Infancy and Coverture, 399; id., 415; 4 Kent’s Coin., 29; Jackson v. Swartwout, 5 Cow., 74; Jackson v. Johnson, id., 98, and cases cited; Bates v. Schraeder, 13 Johns., 260; Jackson v. Lawrence, 16 id., 96; Coke on Littl., 29 a ; 3 Atk., 469; Coke on Littl., 32 a ; Cruise Dig. C., 2, § 12,16 ; Feme on Remainders [5th ed.], 35, 36; Park on Dower, 61, 73 ; 23 Pick., 80; 7 Mass., 253 ; 5 N. H., 469; 8 id., 240; Matter of Greiger, 1 Barb. Ch., 598 ; Greene sr. J-'utnam, 1 Barb., 505 ; Beardsley v. Beardsley, 5 id., 324; Dunham v. Osborn, 1 Paige, 634; Reynolds v. Reynolds, 5 id., 161; Tayloe v. Gould, 10 Barb., 388.) The fee in the real estate was in the executors in trust by implication of law. . {Leggett v. Perkins, 2 Comst. [2 N. Y.], 305 ; Brewster v. Striker, 2 N. Y., 19, 31, 32; Leggett v. Perkins, id., 297; Yail v. Yail, 7 Barb., 227; Fisher v. Fields, 10 Johns., 495; 2 Jarman on Wills, 147, etc.).
   Brady, J.:

The action was brought by the plaintiff, the husband of Bertha Young, deceased, one of the daughters of Adam Muller, deceased, to establish and recover his alleged right as tenant .by the curtesy in the alleged estate of his deceased wife, left her, as is claimed, by the will of her father. The testator made his last will and testament, dated January 26, 1870, and died February 6, 1873, leaving his widow, Matilda, and four children: Mary, wife of Charles Struppman, then aged about twenty-three years; Bertha, then aged about eighteen years; Augusta, then aged about thirteen years, and Louis, then aged about eight years, him surviving.

Mary Struppman, at the time of the making of the will by her father, was the mother of several children, the eldest of whom was seven or eight years of age. On the 31st day of July, 1873, Bertha Muller married the plaintiff, Thomas H. Young. On the 4th day of February, 1874, just six months and four days thereafter, it is alleged a child was born alive to the plaintiff by the said Bertha.

On the 7th day of February, 1874, the said Bertha Young departed this life, intestate, being then about nineteen years of age. At the time of her death, Augusta and Louis Muller were infants of the respective ages of about fifteen and ten years. On the 19th day of October, 1874, Matilda Muller, the widow of the deceased and mother of the children, departed this life intestate.

On the 22d day of June, 1875, pending this appeal, Mary Struppman departed this life intestate.

The principal issues on the trial in the court below, were as to whether the child of the plaintiff was born alive or dead, and if it was born alive, whether the plaintiff’s wife acquired any vested estate under the will of her father, which entitled the plaintiff, her husband, to an estate for life as tenant by the curtesy.

The court below held that the plaintiff’s wife, under the will of her father, never was seized or possessed, in fact or in law, of any estate which entitled the plaintiff to the right as tenant by the curtesy, and, therefore, that it was unnecessary to find the facts from the conflict of testimony whether the child was born alive or dead.

The will is as follows:

In the name of God, amen. I, Adam Muller, of the city of New York, cabinet-maker, being of sound mind and memory, and considering the uncertainty of this life, do therefore make, ordain, publish and declare this to be my last will and testament, that is to say:

First. After all my lawful debts are paid and discharged, I give and bequeath unto my wife Matilda, in lieu of her dower, the one-half of all the rents and interest and profits of my estate', real and personal, after payment of the taxes, assessments, insurance, Croton rents and repairs necessary to. be made, to have and to hold the same to her during her natural life, she to support and maintain my infant children thereout. I give and bequeath the other half of such rents, interest, profits of my estate, real and personal, after payment of such taxes and other expenses aforesaid, to my children, equally to be divided among them, until the youngest child shall attain the age of twenty-one years, when said estate is to be divided equally among my said children, absolutely in fee forever. Provided, however, that if, at such time, my said wife shall still be living, then my estate shall -be divided into two parts, one part thereof shall be set apart, and the income thereof, subject as aforesaid, shall be paid to my wife during her life, and upon her death such one-half shall be divided equally among my children, absolutely in fee forever.

The other half shall, when my youngest child shall be of age, be divided among my children, absolutely in fee forever, and who I hereby constitute my residuary devisees, any posthumous child to share equally with my children born during my life. I authorize my executors, or the survivor of them, to grant, bargain, sell, or convey by deed, with or without covenant, the lots of land on Eighty-seventh street, between Third and Fourth avenues, and to invest the proceeds on bond and mortgage. Likewise, I make, constitute and appoint my wife Matilda, and Jacob A. Geissenliaimer, counselor at law, to be executors of this my last will and testament, hereby revoking all former wills by me made.

The testator made no disposition of the fee of his estate in terms, or any part of it, until the event of the death of his wife, when one half was to be divided absolutely in fee among his children by his will, or until the youngest child arrived at age, when half of it was to be divided in like manner among them, in case his wife was living when that event occurred; otherwise, they then took the whole estate. There are no limitations over, and none were in the mind of the testator. He meant to give his children his entire estate, burdened only by the right of his wife to the income of one half and a restriction of the power of alienation. lie declared his chib, dren to be his residuary devisees, any posthumous child to share equally with his children born during 1ns life. The residuary estate was what was left after the payment of all his lawful debts, and included the whole of it. The design of the testator, that his children should possess and enjoy the estate, is evidenced by the fact that he created a trust by implication, namely, the payment of the income, but he named no one who was to execute it.

His executors were vested with a power to sell certain specified property and to invest the proceeds, but nothing more. The children, therefore, took the fee subject to the restrictions and burdens created by the will. There can be no doubt of this, even if the will created only a future estate. (1 R. S., 723, § 13; Gilman v. Reddington, 24 N. Y., 15.) The testator evidently intended to hold the property together, not to prevent the vesting of the fee, but the division of the corpus of the estate until the happening of the events named.

Hence the provision that it should then be divided equally between his children. It was the division of the estate that he designed to defer. His children, he said, were his residuary devisees.

There can be no doubt, either, that if any one of the children died leaving issue, her share would descend to such issue.

It must be said further, that with regard to one half of the estate the children were in possession, because they were entitled to the rents, issues and profits, without limit other than the payment of the expenses attending its possession.

Having the fee, the estate of the plaiutiff’s wife w'as one, subject to the right of her husband as tenant by the curtesy, according to the recent decision of the court of last resort. There was nothing by which it could be defeated. (Hatfield v. Sneden, 54 N. Y., 280.) The question whether there was a child born alive was not determined, however, by the court below, and we do not deem it onr province to make a finding on that subject. The judgment must, therefore, be reversed and a new trial granted, costs to abide the event.

Daniels, J.:

I do not tliink any trust was created in favor of the testator’s children. His real estate consequently descended to his children in fee, and the plaintiff, as the husband of one of them, may be tenant by the curtesy, as to his wife’s share.

Davis, P. J., concurred with Brady, J.

Judgment reversed, new trial ordered, costs to abide event.