text:
    In the Matter of the Last Will of Jane E. Kelemen, Deceased.

      (Court of Appeals,

      Filed March 10, 1891.)

    1. Wills—Construction—Evidence.
    A codicil provided that doubts having arisen as to certain charitable bequests in the will, testatrix modified the same by making one W. residuary legatee, and requesting him to carry into eSect her wishes in respect thereto; but the provision was not to be construed into an absolute direction on the part of testatrix, but merely her desire. Held, that the bequest was absolute and therefore valid on the face of the will.
    2. Same.
    In the construction of a will, conversations as to the intention, or even written memoranda, cannot be resorted to for the purpose of sustaining a will which is apparently against the provisions of a statute, much less to destroy a will which upon its face is not in contravention of any statute.

      {Matter of O’Hara, 95 N. Y., 403, distinguished.)
    Appeal from judgment of the supreme court, general term, first department, affirming decree of surrogate construing a will and codicil.

      0. Carshadda?i, for app’lts ; Jacob F. Miller, for resp’t.

       Affirming 33 N. Y. State Rep., 937.

   Finch, J.

There was no issue before the surrogate to warrant the admission of the extrinsic parol evidence relating to the circumstances under which the first codicil was executed, and no jurisdiction in that officer to try the question sought to be raised by such evidence. The answer filed to the petition for probate made no question over that probate, and by its silence conceded the due execution of the will by a capable testatrix, acting freely and without restraint. The issue tendered was that allowed by § 2624 of the Code of Civil Procedure, which peimits on the probate of a will the determination by the surrogate of “ the construction, validity and effect ” of any disposition of personal property contained in it That issue was the only one on trial; and -the sole question raised of which the surrogate had jurisdiction was the construction and validity and consequent effect of the first codicil, and that involved merely the inquiry whether the bequest of the residue to Wandell was absolute or in trust, and if in trust whether it was valid under the law of this state. That question rested upon the terms of the will itself and had nothing whatever to do with an alleged extrinsic fraud againstwhich equity might relieve in a proper case; and all the evidence pointing to that relief was inadmissible and totally immaterial. The general term was evidently of that opinion, but, after expressing it, passed to some consideration of the evidence, under a seeming impression that this court in the case of O'Hara, 95 N. Y., 403, had indicated a different doctrine. The learned judge writing the opinion said: “Upon what theory evidence of this kind is admissible I cannot comprehend. It is a cardinal principle in the construction of the terms of a will that the intention of the testator must be gathered from the will itself, parol proof being only permissible to show the condition of the estate and the surroundings of the testator, and that conversations as to the intention, or even written memoranda, cannot be resorted to for the purpose of sustaining a will which is apparently against the provisions of a statute, much less to destroy a will which upon its face is not in contravention of any statute.”

So far the general term stated the prevailing rule with substantial accuracy. Its opinion then proceeds thus: “ It is true that evidence of this kind was received in the Matter of O'Hara, and that .such evidence was commented on and formed the basis of the judgment of the court of appeals in the construction of that will.” That is a mistake, and one so serious that we ought not to allow it to perpetuate itself, even at the expense of explaining what seems to us to need no explanation. In the O'Hara case there was never any question of construction at all. Hone was raised and none considered; and so the parol evidence received was not ádmitted or acted upon “in the construction of that will.” It came in for a different purpose and upon widely different issues. There were two separate appeals, but heard and argued together. Upon the petition for probate of the will the contestants filed an answer denying its execution and alleging that it was obtained by undue influence. It contained an absolute bequest to three persons, not of kin to the testatrix, but standing in confidential relations to her. The fact furnished ground for an inference of some improper influence exercised over the testatrix, and to rebut that inference on the one hand, and fortify it on the other, all the extrinsic facts tending to prove or disprove the undue influence were admissible in evidence and properly received as bearing on that issue. In the case at bar there was no such issue, and so no such ground or reason for the extrinsic proof offered, and to admit it on an issue of undue influence is very far from holding it competent on a question of construction. The evidence thus offered in the O'Hara case disclosed a secret and illegal trust, to effectuate which the absolute devise and bequest had been made. The contestants thereupon filed a complaint in equity alleging all the facts, claiming that the devise and bequest in the hands of the legatees was the product of a fraud upon the testatrix or upon the law, and seeking relief against that fraud. Of course all the extrinsic facts became again admissible to establish the fraud alleged, and this court relieved against it by impressing a trust ex maleficio upon the property in the hands of the devisees and legatees for the benefit of the heir sand next of kin. In so doing we did consider the parol and extrinsic evidence, but in an action in equity and upon an issue of fraud. And that again is something very far away from holding such evidence admissible in a surrogate’s court upon a mere question of testamentary construction. ¡Nothing of that sort was involved in the case or decided by it.

In the case at bar, therefore, the extrinsic evidence was not admissible upon the issue of construction, nor to establish a trust ex maleficio, which was wholly outside of and beyond the jurisdiction of the surrogate. And so we must come back to the real question involved; whether the will, by its terms, established any trust, and, if só, whether that trust was valid.

We think- it very clear thát the bequest was absolute to the legatee and not upon any trust at all. The language of the codicil is as follows: “ Doubts having arisen as to the validity of the bequests made for charitable purposes in my said will, I hereby modifye said will dated February 18, 1889, by making my • friend, Townsend Wandell, my residuary devisee and legatee, and hereby request him to carry into effect my wishes with respect thereto, but this is not to be construed into an absolute direction on my part, but merely my desire.”

The will had made certain charitable bequests, but sure to fail if, as was probable and as happened, the decedent should not survive for two months after they were made, and that was the basis of the “ doubts ” expressed in the codicil.

It is very evident that the decedent did not intend to die intestate as to any part of her estate. By her will she devised and bequeathed any residue of her estate to one of the selected charities, and the purpose of the codicil was to carry that residue certainly and absolutely to Wandell, leaving him in that event to deal with the charities as he pleased.

It is true that the expression of a wish or a desire may sometimes serve to found a trust or effect a charge, but such expressions are by no means conclusive. We must still examine the will to discover the testamentary intention. Phillips v. Phillips, 112 N. Y., 205; 20 N. Y. State Rep., 301.

In the present case the testatrix expressly guards us against a mistaken interpretation. She says that the expression of her wish is not to be construed as an absolute direction; by which she evidently means that while she desires that her residuary legatee shall deal with the charities as she would have been glad to, yet she does not mean to fetter his ownership or qualify his right. She leaves him absolute owner and free to do as he shall choose. She puts upon him no obligation, legal or equitable, but contents herself with the bare expression of a wish which she hopes will influence his free agency. And so the bequest was absolute and therefore valid on the face of the will.

That conclusion disposes of the whole issue raised before the surrogate. It determines the construction of the bequest, declares its validity and consequent legal effect. If there are any extrinsic grounds for impressing a trust ex maleficio in favor of heirs or next of kin upon the bequest thus carried to the residuary legatee, it is sufficient to add that an action for such purpose must be brought in equity, where the power resides for granting that relief.

The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    Horace Benjamin, Resp’t, v. Henry L. Rogers, Ex’r, App’lt.

      (Court of Appeals,

      Filed March 10, 1891.)

    Bills and notes—Diversion—Bona-fide holder.
    One Calkins made his promissory note at one year for $4,000 to the order of Nellie Petit or bearer, and defendant’s testator, Hiram Crandall, signed “ as surety” for his accommodation. Nellie Petit refusing to loan money on it, Calkins, after informing plaintiff that the note was got up for the special purpose of raising the money from her and of her refusal, obtained from him $3,000 in cash and the return of his own past due notes for $3,000 more. Plaintiff held the note until January, 1880, without receiving interest or disclosing to Crandall or his executor that he held it. Held, that plaintiff had due notice that the note was diverted from the purpose for whicli it was made; that the declarations together with the conduct of plaintiff, the fact thatMrs. Petit was the payee named in the note and that Calkins immediately went to her and applied for the loan, were sufficient evidence for submission to the jury upon the question whether the terms and conditions declared by Calkins were actually imposed, and the court erred in directing a verdict for plaintiff.
    • Appeal from judgment of the supreme court, general term, fourth department, affirming judgment rendered at circuit in favor of • plaintiff.

      M. M. Waters, for app’lt; L. B. Kern, for resp’t.

       Reversing 33 N. Y. State Rep., 626.

   Earl, J.

This action was commenced about the 1st of December, 1886, to recover upon a promissory note, of which the following is a copy:

“ §4,000. Jointly and severally we promise to pay Nellie Petit, or bearer, §4,000 with use one year from date, value received.
“ Dated January 5, 1880.
“ Leman^ Calkins,
“ Calvin L. Hathaway,
“Hiram Crandall, as surety.”

The note was made by Calkins, as principal, and the other two makers simply signed it for his accomodation. Crandall died in August, 1881, and Hathaway in 1885, and it is inferable that Calkins was pecuniarily- irresponsible for some time before the plaintiff commenced this action. The note was made and signed by the accommodation makers to enable Calkins to borrow §4,000 of Nellie Petit, the payee therein named. She lived at Syracuse and Calkins took the note to her and she rejected it and refused to loan any money upon it. Two or three days after the date of the note he went with the note to the plaintiff and told him that he had a note for $4,000 which was made for the special purpose of borrowing $4,000 from Nellie Petit, of Syracuse, and that that arrangement had fallen through, he having seen her and she having refused to take the note. He then said, “ Benjamin, won’t you take the note.” and Benjamin said, “ I haven’t got as much money as that, but if you will take these past due notes which I hold against you, I will let you have part money and turn out the rest on those notes. ” Calkins then said, “ Benjamin, neither Crandall nor Hathaway know anything about this, and I have no right to use the note in that way. It was got up for the special purpose of raising $4,000 of Nellie Petit and I have no right to use it, and if I let it go on that consideration I will take it up in sixty days myself or I will get Nellie Petit to take it again, and neither Crandall nor Hathaway will know anything about it.”

The plaintiff then took the note, and advanced thereon about $2,000 in cash, and surrendered to Calkins his own past due notes for the balance. The money advanced and the notes surrendered amounted to just $4,000, and it was arranged between the plaintiff and Calkins at the time he took the note that he should conceal the ownership thereof from Crandall and Hathaway on the promise by Calkins that he would take it up in sixty days, or get Nellie Petit to take it; and the plaintiff held the note until January, 1886, without receiving any interest thereon, and without ever disclosing to Crandall or Hathaway, or Crandall’s executor, that he held it; and the note was for the first time brought to the knowledge of the defendant by the plaintiff on the 4th day of January, 1886, when he demanded the payment thereof.

These. facts as to what took place when the plaintiff took the note were undisputed. They were proved by the plaintiff’s admissions made in the presence of three persons who were called as witnesses for the defendant, and at the close of the evidence the trial judge directed a verdict for the plaintiff for the full amount of the note and the interest thereon, and refused to submit the facts to the judge upon the request of defendant’s counsel.

One of the defenses set up in the answer is the diversion of the note from the purpose for which it was made, and we think that defense ought to have prevailed. Crandall signed the note for the accommodation of Calkins; and he appears on the face of the paper to be a mere surety. There is no claim that he had any benefit whatever from Jhe note, or that his relation thereto was different from what it appears to be on the face thereof. There can be no doubt that if the plaintiff had taken this note without any notice of the special purpose for which it was made, he would have been a hona fide holder for value in such a sense that he could recover thereon. But an accommodation maker of a note, .or one who becomes surety upon a note, has a right to determine for himself what use shall be made of the note which he signs. He may impose material or immaterial conditions and terms, and no person, as against him, can get title to the note who takes it with full knowledge in violation of the terms and conditions imposed upon it by him. Here the plaintiff was informed that Cal-kins had no right as against the accommodation makers to negotiate this note to him, and that it was made for the special purpose of borrowing money from the payee therein named.

It cannot be said that this limitation was entirely immaterial even. Calkins was a business man, and Crandall may have been willing to sign this note to enable him to raise money to be used in his business, while unwilling to sign it if it was to be used to pay an antecedent debt. There may have been something in his relations with Mrs. Petit that made it more desirable to him that she should hold the note rather than some other person. He is long since dead, and cannot explain why it was that he was willing to sign the note for the special purpose named, and for no other purpose. Suffice it to say that he did make it for that purpose, and so the plaintiff was notified at the time he took it. As to him, therefore, the note never had any inception, and there can be no recovery against his executor; and we believe that no authority can be found, either in this country or in England, where it has been held that a plaintiff can recover under such circumstances. The authorities cited by the general term and by the counsel for the plaintiff are cases where paper was diverted and the person to whom it was negotiated had no knowledge of the diversion. We have examined all these authorities and many others, and none of them are applicable to the precise state of facts existing here.

We will notice a few of the authorities which appear to lean most strongly in favor of the plaintiff’s contention.

In Jackson v. First Nat'l Bank, 42 N. J. L. R., 177, an accommodation note was given, with the understanding that the payee was to deposit it temporarily as collateral security for a loan to be made to him, and instead of obtaining a new loan and giving the note to the lender as collateral, he deposited it with a bank as security for moneys already owing by him to that institution ; and it was held that this was not a misappropriation, the accommodation paper effecting the substantial purpose for which it was designated, although the result was not produced in the precise mode contemplated, and that in order to constitute a misappropriation of this kind of paper, the misuse must be tainted with fraud. There the bank had no notice whatever of the misappropriation of the paper.

In Powell v. Waters, 17 Johns., 177, a note was made by Wood, and the defendant endorsed the same as an accommodation endorser. The note was made and endorsed for the purpose of being offered for discount at a bank for the accommodation of Wood. It was presented for that purpose and discount refused. It was then negotiated to J. & T. Powell & Go., who advanced the money thereon, and who, at the time, were informed of the special purpose for which, the note was made. The defendant did not know that the note was negotiated to Powell & Co. Afterwards the note in suit was made and endorsed by the defendant for the purpose of taking up the former note (of which Wood had had the exclusive benefit), and it was used for that purpose, but the defendant did not know at the time he endorsed it that the former note had been negotiated to Powell & Co. He endorsed the note in suit however, and delivered it to Wood without giving any instructions or directions in what manner it was to be negotiated, and nothing was said upon the subject, but he well understood it was to be used to take up the original note, and it was used for that purpose. The plaintiff had no notice or knowledge of any limitation or condition imposed upon the last note by the defendant, and none was imposed further than above stated. It was with reference to this state of facts that the judge writing the opinion said: “ The note in question was a renewal one which had been drawn by Wood and endorsed by the defendant. The first note was intended to be discounted at the Newburgh bank, but was discounted by the plaintiffs'; and it appeared by the testimony of Smith, an endorser of the note, subsequent to the defendant’s endorsement, that the present note was delivered to him by Wood, endorsed by the defendant without any directions or instructions from either in what manner he was to negotiate it, though it was well understood by Wood and the defendant that with the avails he was to take up the original note. * * * The first note was made and endorsed to raise money on, and it was entirely immaterial whether it was discounted at the bank of Newburgh, or elsewhere. It did not alter or increase the responsibility of the endorser. The money to be raised was intended to be for the benefit of Wood, and he did receive the money for which the first note was discounted. If the plaintiffs knew, when they received the note, that it was intended to be discounted at the bank of Newburgh and had been refused, it would not affect them or establish any fraud.”

In Bank of Chenango v. Hyde, 4 Cow., 567, H. J. and W. drew a promissory note to be discounted at the Chenango Bank and payable to it On the bank declining to discount it, B., an attorney-at-law, at the request of H., advanced him the money, and it was agreed between them that the note should be left at the bank, as the agent or trustee of B., for his security. B. afterwards brought an action in the name of the bank against all of the makers, and it was held that he could recover. In that case there was no notice either to the bank or to B. that the holder of the note had no right to procure its discount from any one but the bank, and it was with reference to these facts that the judge, writing the opinion, said: “ Nor is the validity of the note affected by the circumstance that it was drawn for the purpose of being discounted at the Bank of Chenango. It was made to raise money on. It did not change the responsibility of any of the parties to it that the money was advanced by Birdsall instead of the bank.”

In Utica Bank v. Ganson, 10 Wend., 315, a note was made by a debtor payable to a bank in its corporate name for the purpose of raising money on it at such bank to pay and satisfy a particular debt, and the debtor procured a third person to become a joint maker of the note, who signed the same “A. B., surety,” and the bank refused to discount the note; and it was held that the creditor for whose benefit the note was made could, with the assent of the bank, maintain an action upon it in the name of the bank against the makers, although the note was not discounted at the bank in pursuance of the original intention. In that case there was no notice to the creditor or to the bank of any special purpose for which the note was made. Nelson, J., writing the opinion, said: “ The admission of the fact that the note had been presented to the bank for discount and rejected threw upon the holder the burden of showing that it came fairly and honestly into his possession, and for a valuable, consideration, in order to repel the suspicion thus cast upon his title. * * * It cannot be said that ■the face of the note shows that it was made for a special purpose, and there is no evidence of that fact aliunde

In Essex County Bank v. Russell, 29 N. Y., 673, a promissory note for $800 was. made by B. and endorsed by F. and A for his accommodation, to retire a previous note for like amount made .and endorsed by the same parties at the bank of W. The bank refused to discount the new note, or to receive it for the old one, whereupon B,., without the knowledge of the endorsers, put the note into the hands of 0. to get the same discounted, and remit the proceeds to the bank of W. to retire the prior note. 0. presented the note to the plaintiff’s cashier, who discounted the note, giving C., for the proceeds, a note for $500 made by B., which though good and collectible was past due and protested, and $285.93 in cash. Mo part of the proceeds of the discount were sent to the bank of W. or ever came to the hands of the makers and endorsers or either of them, and it was held that, notwithstanding the diversion of the note, the plaintiffs were bona fide holders and entitled to recover the amount, it not having been received under such circumstances as called upon the plaintiffs to institute any inquiries as to O.’s right to the possession of the note, or to procure its discount. The decision was placed upon the ground that the plaintiffs had no notice whatever of the intended misappropriation, and no ground ■even to suspect that 0. was not the bona fide owner of the note.

■ In Grocers’ Bank v. Penfield, 69 N. Y., 502, a promissory note was made for the accommodation of the payee, but without restriction as to its use, and an endorsee took it in good faith as collateral security for an antecedent debt of the payee and endorser, without other consideration; and it was held that he occupied the position of a holder for value, and could recover thereon against the maker; that the precedent debt was a sufficient consideration for the transfer, and no new consideration was required to be ■shown, and that it was only where the note had been diverted from the purpose for which it was intended by the payee, or where some other equity existed in favor of the maker, that it was necessary that the holder should have parted with value on the faith of the note in order to enforce the same. That decision was based upon the express ground that the endorsee took it in ■good faith.

These cases furnish no countenance to the doctrine that the transferee of negotiable paper who takes it knowing that it is transferred in violation of conditions or limitations imposed by an accommodation maker, can nevertheless hold and enforce it against such maker.

In Clinton Bank of Columbus, for use of Rhodes v. Ayres and Neil, 16 Ohio, 283, a note was made payable to a bank and signed by a surety and presented to the bank for discount and refused, and afterward discounted by a third person, without the knowledge of the surety; and it was held that an action would not lie .at the suit of the bank for the use of the person discounting the :note against the surety. That case goes further in the protection of accommodation makers than the authorities in this state would warrant There the judge writing the opinion, however, used language quite applicable to this case: “ Neil might be willing to become surety for Ayers to the Clinton Bank, when he would be utterly unwilling to have his note in the hands of Rhodes. He might be willing to lend his name to procure a loan from a party who would indulge him, who would advance to his principal the full face of the note, when he would be utterly unwilling to go security to one who was his personal enemy, or who would exact-harsh terms, or heavy interest of his principal. He might haveheen willing to aid him in procuring a loan of ready cash, when he would have been unwilling to become his surety for an old debt. He might have expected Ayers would be prompt to pay a bank debt in which the bank had the sole interest, when he knew he would be slow to pay an old debt due to a third party; and,' we think, a court should not settle all these matters by declaring it immaterial to him who advanced the money on credit so long-as his principal received the benefit of the advance on the delivery of the note.”

A surety has the right always to impose any limit he chooses to his liability. He may always fix the precise terms upon which he is willing to become a surety, no matter whether those terms seem to be material or immaterial. By imposing them he makes them material, and one who takes his contract with a knowledge of the limitations cannot enforce it against him. The general rule as to a surety is that he is not to be bound beyond the plain terms of his contract, and it is not sufficient to make him liable-that he may sustain no injury by a change in the contract, and that it may even be for his benefit. He has the right to stand upon the very terms of his contract and if a variation is made it is fatal. Miller v. Stewart, 9 Wheat, 681.

But it is said that the declarations of Calkins to the plaintiff at-the time he negotiated the note to him were not sufficient to show that the note was made for a special purpose, or was signed byCrandall upon any conditions. The rule is unquestioned that the mere declarations of a prior holder of a chose in action cannot be given in evidence to affect the title or the rights of a subsequent holder and owner. But does that rule apply where the declarations are made at the very time when the chose in action is negotiated to the person who is seeking to enforce it, and they are thus a part of the res gestee? Declarations thus made qualify, and in some sense attach to the plaintiff’s title. They are not conclusive and may be controverted, and if untrue the real truth may be shown. Here the plaintiff acted upon these declarations for years, and thus may be said, in some sense, to have admitted their truth. These declarations together with the conduct of the plaintiff, and the fact that Mrs. Petit was the payee named in the note, and that Cal-kins immediately went to her and applied for the loan from her upon the note, were sufficient evidence for submission to the jury upon the question whether the terms and conditions declared by Cal-kins were actually imposed, and the court, at least, erred in directing the verdict; and for these views we are not without authority..

In Crain v. Wright, 46 Ill., 107, the action was brought by Mrs. Wright against Crain as administrator of Martin to recover $500. It became material upon the trial to prove that certain money paid by Mrs. Wright's husband to Martin actually belonged to her; and she was permitted to prove the declarations of her husband to Martin at the time of the payment, to the effect that the money belonged to her. This evidence was held to be competent as part of the res gestee. The judge writing the opinion said: “ The declarations of the husband that money paid on the purchase of the land belonged to his wife and that he wished the contract to enure to her benefit, are admissible like all such declarations. They are not conclusive but may be proved to be untrue either by positive or circumstantial evidence.”

In Hayslep v. Gymer, 1 A. & E., 162, the action was brought to recover certain bank notes delivered to the defendant by the plaintiff, and she proved that the defendant, who was the executor of W., having questioned her as to her having possession of some property belonging to W., she handed the notes over to him, stating that W. had given them to her before his death. The defendant did not deny the statement, but had no means of knowing its truth or falsity. There was contradictory evidence as to whether the defendant said he would keep the notes, or that he would keep them to be returned to the plaintiff on request. The notes had been seen in the plaintiff’s possession before W’s death; and it was held that the declaration made by the plaintiff to the defendant at the time she handed the notes to him. might go to the jury ■as evidence in her favor, on the ground (though very slight) of acquiescence in its truth by the defendant, and also as being a part ■of the res gestae on the occasion of the defendant’s obtaining the notes, and as giving a character to the whole conduct of the plaintiff. Parke, J., writing one of the opinions said : “ A declaration made in the presence of a party to a cause becomes evidence, as ■showing that the party, on hearing such a statement, did not deny its truth. Such an acquiescence, indeed, is worth very little where the party hearing has no means of personally knowing the truth or falsehood of the statement.” Patterson, J., writing one of the opinions said : Here Mrs. Hayslep was obliged to show how the -defendant had obtained possession of the money, and she might give evidence of what she herself said at the time, as part of the transaction; and that being before the jury, it cannot be said that they were not entitled to give it consideration. The defendant having asked her how she obtained the money, did not, in terms, •deny the truth of her answer; bnt he retained the money, and thereby perhaps showed that he did not acquiesce in her account. There was, however, upon the whole transaction evidence, though ■of very trifling weight, to go to the jury, and there were circumstances which supported the plaintiff’s statement”

Our conclusion, therefore, is that the judgment should be reversed and a new trial granted, costs to abide event

All concur, except Gbay, J., not voting.


author: Follett, Ch. J.

text:
    Ludlow W. Valentine, an Infant, App’lt, v. Susan A. Austin et al., Resp’ts.

      [Court of Appeals, Second Division,

      Filed March 10, 1891.)

    1. Record—Lis pendens.
    When the action in which a Ms pendens was filed has heen dismissed and the notice canceled, it ceases to he a statutory notice to purchasers of the premises described in it.
    2. Same—Bona pide purchaser.
    When intending purchasers find that a Ms pendens his heen canceled, it is not negligence or evidence of bad faith on their part not to search for the papers which had been filed in such dismissed action.
    Appeal from a judgment of the general term of the supreme court, in the second judicial department, entered on the decision of a special term.

      Horace Secor, Jr., for app’lt; James D. Bell and W. 0. Beecher, for resp’ts.

       Affirming 34 N. Y. State Rep., 688.

   Follett, Ch. J.

The action was begun January 20, 1888, to-set aside the deed of June 7, 1886, from Catharine A. Valentine to Hermann T.- Richardt, on the grounds (1) that at its date the grantor was of unsound mind; (2) that it was obtained from her without consideration, by fraud and undue influence; and also to set aside the deed of October 27, 1886, from Richardt to Susan A. Austin, and the mortgage of October 1, 1887, given by her to Elizabeth H. Lunt, on the grounds (1) that each of .them had actual or statutory notice that Richardt acquired his title by fraud, or (2) that each of them had sufficient information of the circumstances under which he acquired his title to put them on inquiry, and having failed to inquire, notice to them of the fraudulent character of his title should be implied.

The court found that Mrs. Valentine was of sound mind on the-7th of June, 1886, and so remained until her death. But it was found that Richardt obtained his conveyance by undue influence and without consideration, and that the premises were then and ever since have been reasonably worth $15,000, and a judgment was ordered and entered against him for that sum with interest from the date of his deed, with costs. Richardt did not appeal from the judgment The complaint against Mrs. Austin and Mrs. Lunt was dismissed on the merits, and a judgment of dismissal entered, with costs in favor of each of them against the plaintiff, from which he appealed to the general term, where it was affirmed, with two bills of costs, from which affirmance he appealed to this court. Austin and Lunt, in compliance with the rule of pleading in such cases, Seymour v. McKinstry, 106 N. Y., 230; 8 N. Y. State Rep., 580; 11 id,, 760, alleged in their answers that the conveyance to each was for value, in,good faith and without notice of any kind that Richardt’s title was fraudulent.

A case not being annexed to the judgment roll, the only questions which are presented for discussion are those which arise on the plaintiff’s exceptions to the conclusions of law of the trial court.

Upon the issues joined between the plaintiff and the respondents, the court found that Mrs. Austin purchased the property from Eichardt in good faith, relying upon his possession and record title, without notice of any infirmity therein. The plaintiff conceded that this purchase was made in good faith, and went so far as to request the court to find “ that the defendant Austin purchased said property from said Eichardt in good faith, for $12,000, relying upon his record title and possession.” But he excepted to the sentence “ without notice of any infirmity therein,” which is the only finding to which an exception was filed, though exceptions were taken to all of the conclusions of law. As before stated, the evidence not being before the court, the finding so far as it is one of fact is conclusive, unless as the plaintiff asserts, it is inconsistent with and overthrown by the other facts found. It is not found nor is it asserted that either of the respondents had actual notice that Eichardt obtained his title by undue influence and without consideration, but it is asserted that both of them had either statutory or at least implied notice of the infirmity of his. title.

It is found that November 22,. 1883, Eichardt obtained, without consideration, by fraud and undue influence, a previous deed of this property from Mrs. Valentine, which was duly recorded the next day, and that in May, 1884, an action was begun in the city court of Brooklyn, in the name of Catherine A. Valentine by Charles H. Joy, her next friend, against Eichardt, to set aside the deed as fraudulent, and as obtained by undue influence and without consideration. It is also found that on the 7th of May, 1884, there was filed in the office of the clerk of the county of Kings a notice of the pendency of that action, which was in the usual form, the title being given, and stating in substance that its object was to set aside the conveyance of November 22, 1883. It is further found that by a deed dated May 22, 1884, Eichardt reconveyed the premises to Mrs. Valentine, and December 20, 1884, a final judgment was entered dismissing the complaint in the -last mentioned action; and September 6, 1886, the lis pendens was canceled by an order of the court in' which the action was brought. Before Mrs. Austin completed her purchase she received an official search, which revealed the fact that the lis pendens referred to was filed May 7, 1884, and canceled September 6, 1886. A like search disclosing the same facts was furnished Mrs. Lunt when she took her mortgage. The learned counsel for the plaintiff insists that the lis pendens was constructive notice, by force of the statutes relating to lis pendens, to the respondents that the first deed from Mrs. Valentine to Eichardt vías obtained by fraud. When the action in which the lis pendens was filed had been dismissed and the notice canceled, it ceased to be a statutory notice to purchasers of the premises described in it. Code Civ. Pro., §§ 1670-1674. It is difficult to conceive of an effective notice of the pendency of an action when no action is pending.

It is further insisted that if the lis pendens was not a statutory notice that the facts found were sufficient to put the respondents, upon inquiry, and that they having failed to inquire were negligent and notice should be implied.

It is not found that the respondents or their attorneys knew of the existence of the judgment which was entered in the action, or had any knowledge of the relations which are now found to have existed between Mrs. Valentine and Richardt. When the respondents found that the Us pendens had been cancelled, it was not negligent, or evidence of bad faith on their part not to search for the papers which had been filed in an action which had been dismissed. It is not affirmatively found that a complaint was ever filed in that action, but if one was, and had been examined, it would have shown that the defendant Richardt was charged with having obtained a previous deed by fraud and undue influence, which taken in connection with the dismissal of the action, and the re-conveyance of the property, would not be sufficient to authorize this court to hold as a matter of law, despite the findings of fact referred to, that the grantee or mortgagee believed, or "had cause to suspect that Richardt’s title was fraudulent, or that they were negligent in not making further inquiry.

The judgment should be affirmed, with costs in favor of each ' respondent

All concur.


author: Vann, J.

text:
    Sophia Oldenberg et al., Adm’rs, Resp’ts, v. The New York Central & Hudson River R. R. Co., App’lts.

      (Court of Appeals, Second Division,

      Filed March, 10, 1891.)

    Hegligence—Railroad crossing.
    Plaintiffs intestate was injured while crossing defendant’s tracks in Buffalo. He waited for a train to pass, and as the gates began to rise went on, a team crossing slowly at the same time, upon the invitation of the gateman. Until deceased had passed over the middle track he could see nothing south or west on account of a long train Standing upon the track. He passed the standing cars, failing to look to the west, and an engine backing down from that direction struck and killed him. Held, that it was for the jury to take into consideration all the circumstances, and decide whether he exercised such care as could reasonably be required of one in his situation and with his knowledge.
    Appeal from a judgment of the general term of the superior court of Buffalo, affirming a judgment entered upon the verdict of a jury and also affirming an order denying a motion for a new trial.
    Action to recover damages from the defendant for causing the death of plaintiffs’ intestate, by negligently running over him as he was walking upon a public street at a point where it crossed a railroad track at grade.
    Mo question was raised as to the negligence of the defendant, and the sole controversy upon this appeal is in relation to the alleged contributory negligence of the deceased.
    The facts, so far as material, appear in the opinion.

      James F. Gluck, for app’lts; Isaac S. Signor, for resp’ts.

       Affirming 33 N. Y. State Rep., 663.

   Vann, J.

Chicago street, in the city of Buffalo, runs substantially north and south, and is crossed at right angles by three railroad tracks operated by the defendant The distance from the north rail of the north track to the south rail of the south track is twenty-eight feet and five inches. Bach of the tracks is four feet eight and one-half inches between the rails. It is seven feet three and one-half inches from the south rail of the north track to the north rail of the middle track, and seven feet from the south rail of the middle track to the north rail of the south track. There are safety gates at this crossing, fifty-one feet and six inches apart, operated by a gateman stationed at the southwest corner. On each side of the street is a sidewalk substantially six feet wide, and the distance from one sidewalk to the other is about fifty feet. The west sidewalk between the gates is also crossed by two switch tracks, one north and the other south of the main tracks-already mentioned, and extending about half way across the street before they are merged in the outer main tracks.

On the 15th of September, 1888, at about one o’clock in the afternoon, Charles Oldenberg, the plaintiff’s intestate, a man of mature years, was walking south on the west side of Chicago street, and as he approached this crossing the gates were down to enable a passenger train of four or five coaches to pass toward the west on the north track. He stopped until the last car had crossed, and as the gates began to rise he went on. At the same time a team started to cross from the south, the gateman having shouted to it to go ahead. It went very slowly. Until Olden-berg had passed over the middle track he could see nothing south thereof and west of the sidewalk on which he was walking, because his view in that direction was cut off by fifteen passenger coaches standing on the middle track and extending westward for a block and a half. The most easterly of these coaches reached half way across the west sidewalk and projected two feet beyond the rails of the track upon either side. Thus, his view to the southwest was shut off until he had passed by the end of the coach, which would place him at a point two feet south of the middle track. Until he reached this point, which was only five feet from the south track, he could - see substantially no part of that track west of the sidewalk. As he reached this point, walking rather fast and having no knowledge of the locality, a locomoti ve with a tender attached was almost upon him, backing eastwardly on the south track at the rate of ten miles an hour. The bell was probably ringing, but the passenger train was not out of hearing, and there was some confusion of sounds. Had he stopped and looked toward the west at the instant that he reached said point, he could have seen the danger in time to avoid it, but less than two steps forward brought him in contact with the cross-beam of the tender, which projected about two feet beyond the rails of the track on each side and he was thrown. under the wheels and killed. He did not look toward the west at the critical moment when he could have seen the engine, but went with his head down, as if looking at the sidewalk, which was rough and the planks composing it very uneven. The gateman had begun to lower the south gate, and it was half way down when the accident happened. As lie was lowering the gate he shouted to the deceased, who paid no attention, and whether he heard or not was a question of fact under the circumstances.

The space between the middle and south tracks where Olden-berg could have stood without danger from the passenger coach behind or the advancing tender in front was only three feet long. In order to reverse this judgment it is necessary to hold that, notwithstanding the peculiar facts surrounding him, he was bound as matter of law, while passing over this distance of three feet, to look to the west so as to see the engine or else to look in front of him and up high enough to see the gate as it began to fall. We do not think that the law required this, but agree with the courts below in holding that the question of contributory negligence, under all the circumstances, was one of fact for the jury and not of law for the court.

The deceased did not enter upon the crossing until the flagman had not only given a signal of safety by raising the gates, but had also shouted to the team in waiting to go ahead. Whether he heard the shouts or not, the open gate was virtually an invitation to him to proceed and the team crossing slowly was in plain sight and would naturally add to his confidence. As said by this court in a recent case: “ The raising of the gate was a substantial assurance to him of safety, just as significant as if the gateman had beckoned him or invited him to come on, and that any prudent man would not be influenced by it is against all human experience.” Glushing v. Sharp, 96 N. Y., 676. Or, as laid down in a still later case: “ The open gate was an affirmative and explicit declaration and representation that neither train nor locomotive was approaching with intent to pass.” Palmer v. N. Y. C. & H. R. R. R. Co., 112 N. Y., 234, 241; 20 N. Y. State Rep. 904.

While the deceased had the right to rely, to a certain extent, upon the assurance thus given by the defendant that it was safe for him to go on, it was still his duty to be on the lookout for danger and to exercise the same care that a man of ordinary prudence would have-exercised under the same circumstances. The degree of care depended upon his knowledge of the situation, or upon those facts that he would have discovered by the use of ordinary vigilance. It does not appear that he had ever seen this crossing before, or that he knew anything about it except what he observed on the occasion when he met his death. In this respect, as well as by the implied invitation to proceed arising from the use of safety gates, this case is easily distinguished from those . relied upon by the defendant. Woodard v. N Y., L. E. & W. R. R. Co., 106 N. Y., 369; 11 N. Y. State Rep., 169; Young v. N. Y., L. E. & W. R. R. Co., 107 id., 500; 12 N. Y. State Rep., 285.

. It is claimed that he should have looked to the right, so as to see the approaching engine, and in front so as to see the descending gate, but can it be held as matter of law that he had time for this and also to use due care in other respects ? According to the evidence not more than nine or ten seconds elapsed after the passenger train had gone by on the north track before the engine came down on the south track. During this short period he proceeded to cross, passed over two tracks, reached the third, where he could not safely stop, because at any time the passenger coaches standing there might back down upon him, went on two feet further, where the strip three feet long would have afforded safety if he had known it, took one step more and, in the language of a witness, “just as he gave the second step he was whirled around and pitched headforemost” Can the court say that, knowing nothing of his surroundings, he was bound to look in any particular direction while, hearing no bell and conscious of no danger, he took one step and a part of another? How long is a rapid walker in taking a single step ? How much time was there for reflection or action? Even if he had stopped walking, how could he have decided on the instant just where it was safe for him to stand between the tracks ? It was his privilege to look down upon the rough walk, so as to avoid danger there, and the evidence warranted the jury in finding that he did so. It was his duty to look to the east, where there was no obstruction in sight; but, while he was bound to use his eyes, we cannot say that he was bound to use them in' a particular manner, at a particular instant of time. We think that it was for the jury to take into consideration all the circumstances and decide whether he exercised such care as could reasonably be required of one in his situation and with his knowledge. Greany v. Long Island R. R. Co., 101 N. Y., 419 Sherry v. New York Central, etc., R. R. Co., 104 id., 652, 657; 5 N. Y. State Rep., 574.

As this is the only question, properly raised by exception, that has been discussed by the learned counsel for the defendant, the judgment should be affirmed, with costs.

All concur.


author: Haight, J.

text:
    Theresa Wiwirowski, Adm’rx, Resp’t, v. The Lake Shore & Michigan Southern R. Co. App’lt.

      (Court of Appeals, Second Division,

      Filed March 10, 1891.)

    1. Negligence—Contributory, when a question for the jury.
    Plaintiff was walking closely behind her husband and a friend across defendant’s tracks, when the two latter were killed by being struck by the tender of an engine which was backing down on the fourth track. Upon the trial she testified that she looked both ways but saw no light or car “ when we came to the railroad tracks." Meld, that vigilance or care upon the part of the plaintiff did not relieve her husband from himself exercising care and prudence.
    3. Same.
    The inference that plaintiff’s intestate was free from contributory negligence cannot be drawn from a presumption that a person will exercise care and prudence in regard to his own life and safety ; and when the circumstances point as much to the negligence of the deceased as to its absence, or point in neither direction, a non-suit should be granted.

      Appeal from a judgment of the general term of the supreme court, fifth department, affirming a judgment entered upon a verdict at the Erie circuit.

      James Fraser Gluck, for app’lt; Frank B. Perkins, for resp’t

       Reversing 33 N. Y. State Rep., 666.

   Haight, J.

On the evening of October 27, 1888, at about half-past six or seven o’clock, the plaintiff, with her husband and a neighbor named Jacobowski, were walking across the defendant’s tracks along the southerly sidewalk of Oneida street, in the city of Buffalo. They first approached the tracks of the New York Central railroad, three in number, which they passed in safety. They then entered upon the defendant’s west-bound track, and whilst attempting to cross that the two men were struck by the tender of a locomotive and killed. The locomotive was backing into the city from East Buffalo, drawing a caboose. On the first of the Central tracks some cars were standing which came to within about twenty feet of Oneida street. A passenger train had just passed east on the Central tracks, the rear lights of which were at Montgomery street, the next street east of Oneida street, as the defendant’s engine passed that street. At the time of the accident it was dark, and there was a conflict in the evidence as to whether the usual signals were given, making the question of the defendant’s negligence one for the jury.

The only question which we are called upon to consider pertains to the contributory negligence of the plaintiff’s intestate. Upon this branch of the case the testimony given in support of the verdict was by the plaintiff, and is as follows: “ The two men went ahead of me and Y went behind them. When we came to the railroad tracks I did not see any car or hear any noise. A car came along and killed my husband and the other man with him, and then I fell down and don’t know what after that happened. We were- on the sidewalk on Oneida street when the car hit them. 1 was about three feet behind the men at the time. I did not see any flagman or hear anyone call to me, nor hear any bell or whistle or see any light I saw the men after the car had passed over them. It was dark at that time.”

On her cross-examination she testified that “we went along quiet; we were not talking. Everything was quiet all around there; all the way in. Alongside the tracks were some cars, on which one of the tracks I can’t exactly tell. My best recollection is they were on the first track we passed, about twenty feet back from Oneida street, and it was on "the fourth track after we passed the first track that my husband was killed. We walked along on this space and down on the other side of these cars. We came right down across the tracks, and my husband was struck on the fourth track.” After the plaintiff had rested, the defendant’s counsel requested the court to direct a verdict upon the ground that the plaintiff had failed to make out a cause of action. The court reserved its decision and permitted the plaintiff to be again recalled to give further testimony. She was then asked how she knew that there were no lights, and answered that she noticed that there were none. And when asked how did she notice it, answered, “ I looked atone side and the other; looked each way. I saw no light or any car. I didn’t see any car coming.” This was all of the evidence given on behalf of the plaintiff bearing upon the question." It will be observed that she says that she looked “ when we came to the railroad tracks.” From this we understand that she looked as they came to the first of the Central tracks. The defendant’s track, upon which her husband was killed, was the fourth track, a distance of about fifty feet from the first of the Central tracks. It does not appear that she looked or listened after this time, but followed along about three feet behind her husband and his companion until they were struck. At the place of the accident the tracks of the defendant were straight' for a distance of 1,850 feet east, and 3,200 feet west. Mo evidence was given tending to show whether the plaintiff’s intestate looked or listened before entering upon the defendant’s tracks.

The trial court appears to have been of the opinion that the testimony of the plaintiff as to the observations made by her were sufficient to excuse her husband from the exercise of the care and prudence that the law called for under such circumstances. If this were the rule it would hardly answer in this case, for her own statement does not show that she exercised vigilance or even ordinary care in the use of her eyes and ears in approaching the defendant’s track. " True, she looked both ways and saw nothing when she first approached the tracks, but had she again looked and listened after she had crossed the first two or three tracks it would hardly have been possible for her to have failed to discover the approach of the defendant’s train. It was running at a speed of between four and five miles per hour. The lights in the cupola of the caboose were burning, and even though there was no light upon the rear of the tender, or bell sounded, she possibly might have heard the tread of the train as well as have seen the approaching lights in the caboose.

But we do not understand that vigilance or care upon the part of the plaintiff relieved her husband from himself exercising care and prudence. The fact that she looked and saw nothing may be some evidence tending to show that he could not have seen had he looked, provided his chances for observation were the same as hers. It does not however follow that because she failed to see and hear he would have failed also had he looked or listened. It is undisputed that after passing the first of the Central tracks there was nothing to obscure the vision, other than the darkness that prevailed, for a long distance, and there was nothing to obstruct the sound. She was walking closely behind the two men, within three feet- Their bodies to some extent might have obscured her vision as they were approaching the defendant’s track. Their opportunity to see and hear was therefore better than hers. They were in a known place of danger and had they exercised their senses under the circumstances it is at least probable that they would have both seen and heard the approaching train. Freedom from contributory negligence cannot be assumed. McDonald v. Long Island Railroad Co., 116 N. Y., 546-550; 27 N. Y. State Rep., 481; Dobbins v. Brown, 119 N. Y., 188; 28 N. Y. State Rep., 957.

The burden of showing that the plaintiff’s intestate was free from contributory negligence rested upon the plaintiff. It is true that the want of negligence may be established from inferences which may be properly drawn from the surrounding facts and circumstances, as in the case of Galvin v. The Mayor, etc., 112 N. Y., 223; 20 N. Y. State Rep., 569. But such inference cannot be drawn from a presumption that a person will exercise care and prudence in regard to his own life and safety, for the reason that human experience is to the effect that persons exposed to danger will frequently forego the ordinary precautions of safety. And when the circumstances point as much to the negligence of the deceased as to its absence, or point in neither direction, a non-suit should be granted. Cordell v. N. Y. C. & H. R. R. R, Co., 75 N. Y., 330; See also Reynolds v. N. Y. C. & H. R. R. R. Co., 58 id., 248; Hoag v. N. Y. C. & H. R. R. R. Co., 111 id., 199; 19 N. Y. State Rep., 80; Bond v. Smith, 113 N. Y., 378; 22 N. Y. State Rep., 666.

The judgment should be reversed and a new trial granted, with costs to abide the event.

All concur.


author: Bradley, J.

text:
    George Cocks et al., Resp'ts, v. Phebe C. Haviland, App’lt.

      (Court of Appeals, Second Division,

      Filed March 10, 1891.)

    Executors and administeatobs—Liability fob default of co-executob.
    Defendant was one of several executors of her father’s will, but took no active part in the management of the estate. Her two co-executors in 1868 took actual possession of the assets and at once became, and, until their failure in 1876, continued to be, the acting executors, during which time none of the assets came into her hands, except her share of the residuary estate. There was nothing in the interim to arouse her suspicion. Held, that she was not charged with liability to the plaintiffs because of her failure to have their share invested as directed by the will.
    Appeal from judgment entered on order of the general term of the supreme court in the second judicial department, affirming judgment entered upon report of referee made pursuant to interlocutory judgment, which, by the notice of appeal, is also brought up for review.
    In June, 1868, John Cocks died leaving his will, which was shortly after admitted to probate, and by it he directed the executors to invest such sum upon bond secured by mortgage on real estate in Westchester county as would net an income of $1,000 per year, to be paid to his wife Adelia semi-annually so long as she should remain his widow unmarried, and no longer, in lieu of dower.
    He gave to his daughter Anna $3,000. The residue of his property he gave and devised to his five children, David Cocks, Harrison Cocks, Phebe C. Haviland, Mary Barlow and Anna Cocks, with direction that the share of his son David should be invested in real estate or upon bond and mortgage by the executors, and the income be applied to the support of him, his wife and children during his life, and on his decease such share to go to the children of David. He empowered the executors to sell his property, real and personal. And appointed his wife, his five children before mentioned, and his sons-in-law, Daniel E. Haviland and George J. Barlow, the executors of his will. Letters testamentary were issued to all of the persons so appointed by the will. David Cocks died in 1881, leaving the plaintiffs, his children, surviving him. The one-fifth of the residuary estate given for the benefit of David and his family was not invested as directed by the will, but all of it, except $1,500, was appropriated by Harrison Cocks and Barlow, two of the executors, to their own use, and in 1876 they failed, and were thereafter insolvent. This action was brought in 1889 to recover the share which by the will the plaintiffs were to take -on the death of their father. And while all the surviving executors were named as parties defendant in the summons, service was made only upon the appellant and Daniel E. Haviland, her husband. As to the latter the complaint was dismissed ; and by the interlocutory judgment it was determined that the appellant should pay to the plaintiffs the amount to which by the will they were entitled, and to ascertain what that was a reference was ordered, and the referee reported that the residuary estate amounted to $106,891.60, and that one-fifth of it (less the $1,500), and interest from the time of David’s death to date of the report amounted to $28,590.46. The report was confirmed, and judgment for that sum directed and entered against the defendant.

      Thomas Nelson, for app’lt; Thomas Harland, for resp’ts.

       Reversing 31 N. Y. State Rep., 743.

   Bradley, J.

The main defense is founded upon the alleged fact and assertion that the defendant did not participate in the administration of the estate of the decedent, ana, therefore, that she was not chargeable with liability for the failure to make the investment, as directed by the will, of the share to which the plaintiffs were entitled on the death of their father, David Cocks, or for the devastavit of the two executors who took charge of the estate and assumed to administer it. Hpon this subject it appears, and the trial court found that Harrison Cocks and George J. Barlow, immediately after the testator’s death, took actual possession of his assets and property, and that they at once became and, until the time of the failure in 1876, continued to be the acting executors of the will, and that during that time no portion of the assets came into the hands of Mrs. Haviland, except that which she received as and for her share of the residuary estate, and that she took no active part in the management of the estate, but left its management entirely in the hands of those two executors. The proposition is well settled that the mere fact that one of two or more executors or trustees is passive and does not interfere with the act of his co-executors in taking possession of the property and collecting moneys of the estate, will not charge him with liability for waste by them unless he has some reason to apprehend that such may be the consequence of their taking it and making such collections. Bruen v. Gillet, 115 N. Y., 10; 23 N. Y. State Rep., 780. There is no finding or evidence to warrant the conclusion that the character and habits, business or otherwise, of Harrison Cocks and Barlow were apparently such as to create suspicion in the mind of. the defendant that • they were not prudent, reliable and responsible business men, until their failure in 1876, about eight years after they had assumed the administration of the estate under the will. In the meantime they had divided it into shares and handed over to the beneficiaries, except David, their portions of the residuary estate. And on the occasion when the bulk of it was so divided, all of them, including David, were present, and the share for his family was apportioned and set apart by those two acting executors. It was then, by David, examined and handed to Barlow to be taken care of. There was no participation of Mrs. Haviland in the matter other than to receive the share apportioned to her by them.

It is not claimed that by any act of hers she became chargeable to the plaintiffs, but that her liability arose from negligence on her part to perform the duty imposed upon her by the will, and which she assumed by the acceptance of letters testamentary; and that such neglect was in the failure to make the investment of the share to which the plaintiffs were eventually entitled. It is true that by the will the duty was devolved upon the executors alike to observe and execute all of its provisions, but one is not liable for the misconduct or neglect of another to which the former has in no manner contributed, nor by any act has enabled him to violate his duty or to neglect its performance to the prejudice of. the beneficiaries of the trust The defendant did nothing to place the funds or property in the control of the two acting executors or to give to them its management. This they assumed and she did not attempt to obstruct their administration of the estate The court determined as conclusion of law that by her neglect to perform her duty in respect to the investment of the one-fifth of the amount of the residuary estate for the benefit of the plaintiffs, the defendant became liable to them for that amount, or so much thereof as was not invested pursuant to the direction of the will. This conclusion rests upon the mere omission of Mrs.' Haviland to act for the accomplishment of that object and to consummate it. The rule of liability does not go so far as to charge an executor having none of the funds of an estate in his possession or under his control with the consequences of the neglect or failure of his co-executor to make the disposition by investment or otherwise of the subject of the trust pursuant to the direction of a will where the latter lawfully has the entire fund in his hands and assumes its management, unless there is some occasion to suspect that he has or may fail to execute the will in that respect Croft v. Williams, 88 N. Y., 384; Ormiston v. Olcott, 84 id., 339; Wilmerding v. McKesson, 103 id., 329; 3 N. Y. State Rep., 108.

When it was established that without aid of the defendant the two executors, Harrison Cocks and Barlow, took the property of the estate into their hands and assumed the active duty of its management •; that none of it came to her possession; and that she was merely passive in respect to it, the burden was cast upon the plaintiffs to prove some facts or circumstances having relation to the character or habits of those persons or to the manner they apparently were executing the trust, which would fairly justify suspicion that they were or might be chargeable with its mismanagement.

In that case it may be that their co-executor would be called upon to investigate, and, if necessary, to cause them to render an account, and thus present the condition of the fund, with a view to such direction as the situation should require for its protection and the proper disposition of it. There was no fact found, nor does there appear to have been any evidence to permit the conclusion that Mrs. Haviland, before the failure of the firm of Cocks & Barlow (composed of the two acting executors), had any reason to suppose or apprehend that they would divert the fund set apart for David’s family from the purpose directed by the will. It is, however, found that they failed to make the investment for the benefit of the widow as directed by the will, but that they did invest for that purpose at the rate of ten per cent interest $10,000, secured by mortgage upon land in the state of Wisconsin; and that although the defendant remonstrated against such investment before it was made, she took no action to compel them to make a proper investment of that fund. This had relation to the matter of the income for the widow and the investment which the will directed to be made to produce it. The investment so made in violation of the trust was not assented to by the defendant. No loss resulted from it. It is not seen how the taking of that security upon the Wisconsin land would alone furnish to a prudent and reasonably cautious person suspi"cion that the executors taking it had failed or would neglect to properly execute the will in respect to the fund in which David and his family were interested. And the same, in connection with it, may be said of the fact that the defendant knew as late as 1872 that no other investment had been made for the benefit of the widow, and that she then joined with four other executors (including Harrison, Cocks and Barlow) in an undertaking to the widow that her annuity should be paid. This may well have been executed by the defendant, upon the faith that the acting executors would provide for and see to the payment of the annuity. This matter was independent of the duty in respect to the one-fifth, which is the subject of this action.

There is no finding of any specific fact which tends to charge the loss of the funds in question or failure to invest it to any negligence of the defendant other than that she passively permitted the two acting executors to have the exclusive management of the trust created by the will. There may be cases where an executor cannot passively permit his co-executor solely to control the management of an estate without becoming responsible for his ■failure to properly execute the will to the prejudice of its beneficiaries, but that depends upon something further than the mere fact that letters testamentary have been issued to and accepted by the former. This rule is distinctly recognized in the cases before cited. The conclusion that by the negligence of the defendant she became liable to the plaintiffs for the amount uninvested of the one-fifth of the residuary estate given them by the will seems not to be supported by the facts appearing in the record before us.

In Earle v Earle, 93 N. Y., 104, the executor who sought to relieve himself from liability had not only joined in an accounting charging himself jointly with his co-executor, but he had been somewhat active in the matters of the trust, and negligently had permitted persons not executors to have more or less charge of the funds, and besides that, his co-executor was a woman of feeble health without business experience. That case does not seem applicable to the situation in the present one. Nor in view of the facts upon which it was founded is the proposition declared in Remington v. Walker, 99 N. Y., 626, essentially applicable to the case at bar.

The facts as represented by the findings of the court or by the evidence do not, we think, justify the conclusion that the defendant was charged with liability for the loss to the plaintiffs occasioned by the default and misconduct of the two acting executors.

The final and interlocutory judgments should be reversed and a new trial granted, costs to abide the event.

All concur.


author: Brown, J.

text:
    Blanche L. Andrews, Resp’t, v. William C. Brewster et al., Ex’rs, App’lts.

      (Court of Appeals, Second Division,

      Filed March 10, 1891.)

    Contract—Agreement to give legacy in will.
    Plaintiff had a claim for rents which had not been collected by defendants’ testator, but which might have been, and a settlement was entered into by which plaintiff executed under seal to him a general release in consideration of a money payment, and also upon his independent parol agreement that she would sustain no loss, and that by his will he would leave her an equal share of his estate with the two children of his brother, which latter promise he failed to keep. Held, that plaintiff was not entitled to be made one of three residuary legatees, and that her measure of damage should be the share which she would have received if the testator had kept his agreement.
    Appeal from a judgment of the general term of the first judicial department overruling defendants’ exceptions taken at the trial and ordering judgment for the plaintiff.

      ■A. R. Dyett, for app’lts; William Allen Butler, for resp’t.

       Modifying and affirming 33 N. Y. State Rep., 972; see 30 id., 329, 1019.

   Brown, J.

The agreement which the plaintiff alleged in her complaint, and the breach of which constitutes her cause of action, was that in consideration of the plaintiff conveying to Seaburv Brewster her interest in the real estate of which Christopher Starr Brewster died seized and giving to said Seabury a formal release of all claims which she held against him, he agreed “ that by so doing she would sustain no loss, and that by his will he would leave her an equal share of his estate with the surviving children of said Christopher Starr Brewster, and an amount more than sufficient to compensate her for any loss she had sustained.” The “ loss ” therein mentioned had reference to a claim which the plaintiff had made against Seabury Brewster for loss of rents of the real estate conveyed, and grew out of - said Seabury’s neglect for a number of years to rent the said real estate, which consisted of valuable land and buildings on Broadway and Park Bow in the city of New York.

It appeared that Seabury was the agent of his brother Christopher during the latter’s life time and had the care and custody of his property. By Christopher’s will Seabuiy was appointed one of the executors and trustees. The will was not, however, probated until after the making of the agreement which is the foundation of this action. But Seabury retained possession of his brother’s property and managed it for his widow and children with their knowledge and consent, they with himself being the sole beneficiaries under the will.

The agreement alleged in the complaint appears to have been a part of a plan or scheme for the settlement of Christopher’s estate. The plaintiff, who was the widow and sole devisee and legatee of Louis Brewster, one of the sons of Christopher, was pressing Sea-bury for a division and settlement of the estate and also for a- settlement of the claim she made ¿gainst him growing out of his neglect to rent the real estate. Negotiations covering considerable time led finally to the adjustment of the plaintiff’s share in all the property at $166,000, which sum was paid to her. Whereupon she executed the deed and release already mentioned, and as a consideration for and an inducement to her to settle the estate in that way and execute said deeds and release, the promise sued upon was made.

It was not essential to the plaintiff’s case that she should prove that Seabury Brewster had been negligent in not renting the property, or that a valid claim in her favor existed against him for loss of the rents.

The cause of action alleged was not for the loss of rents, but was upon the new promise which the parties had substituted in its stead. That promise was made in the presence of that claim, and in order to meet and dispose of it, and in consideration that the plaintiff would consent to the settlement of the estate which Seabury Brewster proposed and release him from all claims made against him.

The release of the claim for the rents was a good consideration for the new promise,, even though a defense to the claim might have been interposed and established, and the law will presume that by the surrender and release of the old claim there was a benefit to the promisor and injury to the promisee. It was therefore of no consequence what Seabury Brewster’s legal liability was on the claim for the rents. It was asserted against him, and was colorable at least. It was recognized by him so far as to negotiate for its settlement, and as a result of that negotiation the plaintiff executed and delivered the release, and Brewster gave the new promise. The claim for the rent, whatever was its legal status, was thereby destroyed, and the new promise substituted in its stead; and this action has reference solely to the new agreement.

But the agreement was not attacked at the trial, nor is it now, for want of a sufficient consideration to support it, but mainly for want of legal proof of its existence, and the claim is that it was cut off by the written release of the plaintiff; and all evidence offered to establish it was objected to by the defendants on the ground that it was inconsistent with and tended to contradict the release and destroyed its legal effect.

The release did destroy and discharge the testator from all claim against him for his neglect and failure to lease the buildings in question. That was its purpose, and that it should have that effect was the intention of both parties. And no recovery could uow be had by the plaintiff upon that claim. But it is out of the delivery of that release that the agreement now sued upon arose. It had its inception with the negotiation leading to the execution of the release, and sprang into existence with its delivery, and it is because the plaintiff, at the testator’s request, destroyed and released-that claim that she may sue on the contract she now asserts.

The whole agreement with reference to the settlement of Christopher Starr Brewster’s estate vested in parol, and the execution and delivery of the release was in part execution of that agreement. It was not the repository of the agreement between the parties, but its execution and delivery was one of the obligations ■under that agreement. The respective promises and obligations of the parties were mutual, and those of one party formed the consideration for the other.

The whole agreement w.as performed, so far as it was possible, during the life of Seabury Brewster, and this action rests upon one of the obligations that he assumed, but which could be performed fully only at his death.

The rule that excludes parol evidence tending to contradict or vary a written contract had, therefore, no application to the case.

In view of the ruling of the trial court, we need not consider the discussion that is had upon the briefs of counsel and in the general term opinion as to the meaning and import of the agreement as it appears from the testimony of the witnesses.

It rested wholly in parol and the witnesses for the plaintiff do not agree upon its precise terms. The court, at the request of the defendants, ruled and charged the jury that the only agreement which the evidence permitted them to find that Seabury Brewster made with the plaintiff was .one to leave her by his will a share of his estate equal to that which he should leave his nephew and niece, Harry and Kate.

This charge was not excepted to by the plaintiff, and stands as the acquiescent interpretation by all parties of the import and meaning of the testimony given upon the part of the plaintiff.

The trial court, however, refused to charge that the plaintiff could not recover more than an amount which, under the will, Kate and Harry were entitled to, and did charge that if Mr. Brewster failed to keep his promise, she was entitled to recover, irrespective of what Harry and Kate did get under the will, that which she gave up at the time of the execution of the release, viz.: the amount of her claim for lost rents, and as this was fixed without dispute at the sum of $46,517, directed a verdict for that amount, with interest.

The defendants’ exception to the court’s charge, and its refusal to charge, which 1 have quoted in reference to the rule governing the amount of the verdict, were sustained by thé general term, and that learned court held that “ the plaintiff’s only claim was based upon what share she would have recovered of Seabury Brewster’s estate had he kept his agreement,” and upon the first argument ordered a re-trial.

Upon a reargument, however, the general term modified the verdict by allowing a recovery for an amount equal to one-third of the residuary estate, viz.: for $54,426.12, with interest, and, as so modified, directed judgment for the plaintiff.

We are of the opinion that the general term had power to permit the plaintiff to stipulate to modify the verdict, and to direct judgment for the reduced sum instead of ordering a new trial, even though the rule of damages applied by that court differed from that applied at the trial. The only disputed question of fact was whether an agreement had been made between the plaintiff and Seabury Brewster. If it had, both parties agreed as to its terms. There was, moreover, no dispute but if that agreement existed and was not obnoxious to some of the defenses set up by the defendants, that the measure of damages for its breach Was either that applied by the trial court or a share of Seabury Brewster’s estate. These several sums of money which the jury might adopt as its verdict, according as they applied one or the other rule of damages, was not disputed. The loss of rents and interest was fixed at $57,681.

The residuary estate in defendants’ possession was agreed to be $163,278.38, and it was stipulated that the distributive share of the surviving children of Christopher Starr Brewster (viz., Harry and Kate) under the.will of said Seabury, was one-twelfth part each if there was no equitable conversion by the will, and one-ninth each if there was an equitable conversion.

Under any rule of damages that might be adopted there was therefore no fact for a jury to determine. The fact of the making of the agreement having been established, the amount of the verdict that the plaintiff would be entitled to was a conclusion of law and could therefore be directed by the general term.

That learned court fell into an error however in awarding the plaintiff one-third of the residuary estate. The ruling of the trial court to which I have referred, and which was made at the defendants’ request and acquiesced in by the plaintiff, was that the agreement was to leave to the plaintiff a share of his estate equal to that which he should leave to his nephew and niece, Harry and Kate.

The modification directed by the general term is based upon the assumption that plaintiff was to be made one of three residuary legatees. There is no view of the evidence that justifies this result, and it is entirely inconsistent with the decision first made at the general term that the plaintiff’s claim was based solely upon what share she would have received if Seabuiy Brewster had kept his agreement.

It was not open to the general term to inquire whether the evidence justified a finding of an agreement more favorable to the plaintiff than that held by the trial court, nor is this court permitted to interpret the evidence in any other way than that expressed in the ruling I have quoted.

The plaintiff took no exception to that ruling, and in its application to the case it limits the plaintiff’s recovery to one-ninth or one-twelfth of the residuary estate.

The judgment entered by the general term for an amount equal to one-third of the estate has therefore no support in the record.

Whether Harry and Kate’s share in said estate was one-ninth or one-twelfth depended, according to the stipulation of the parties, upon the solution of the question whether there was an equitable conversion by the will.

The trial court was not asked to rule upon that question, and it is not presented by any exception for review. Having ruled that neither share represented the measure of the plaintiff's damages, there was no occasion to ask the trial judge to decide which share the jury should adopt

It is further claimed by the appellant that the trial court erred in not dismissing the complaint on the ground that there had been no accounting by the executors, and that as there might be other and further expense of administration, the exact amount of the residuary estate was not ascertained, and that the plaintiff’s only remedy was in equity.

The complaint stated a cause of action upon contract against the defendants, and the plaintiff was entitled in the proper forum to establish her right to share in the estate. The fact that there were obstacles which prevented the ascertainment of the exact amount to which she was entitled would not have justified the court in dismissing the complaint.

The court had ample power to inquire into the amount of the estate and ascertain the sum which would be divided among the residuary legatees.

The defendants’ objection went only to the mode of ascertaining that fact and not to the merits of the cause of action.

. If the case was one triable at the special term it could have been sent to that court by the circuit judge. But the defendants made no such request and the right to object to a trial at the circuit did not survive the commencement of the trial before the jury.

The motion to dismiss the complaint was properly denied. Ho other exception requires discussion.

The judgment must be reversed and a new trial granted, unless within thirty days the plaintiff stipulate to reduce the verdict to the smallest amount possible under the views herein expressed, viz., thirteen thousand six hundred and six 53-100 dollars. Upon making and filing such stipulation the judgment for such reduced •amount, with interest from the date of the verdict, is affirmed, without costs.

All concur.


text:
    William P. Willis et al. v. Aurelius S. Sharp, Ex’r.

      (Court of Appeals, Second Division,

      Filed March 10, 1891.)

    1. Receiver—Restitution of unauthorized payments.
    A receiver was appointed in this action and directed to pay the judgment out of defendant’s estate. Pending appeal from the order of receivership, other actions were brought by plaintiffs and others, the judgments in which extended the receivership and directed him, after reserving the amount of the judgment herein, to pay such judgments. The receiver did not reserve such amount, but paid out all the funds on the subsequent judgments. The order having been reversed for error, Held, that such payments having been unauthorized, the receiver should be required to restore to defendant the amount of the judgment, but with interest only from the time the order was reversed by the court of appeals.
    2. Same.
    The general term erred in requiring plaintiffs to pay defendant the commissions and expenses of the receiver, as the money retained by the receiver pursuant to the order of the court until he made the last payment to the plaintiffs embraced these items and were included in the sum he is directed to restore to the defendant.
    Two appeals from an order of the general term of the supreme •court, in' the second judicial department, affirming order of the .special term.
    The defendant’s testatrix by her will, which was admitted to probate in April, 1885, expressed her wish and direction that some legitimate business be carried on by the executors for the benefit of her son, and that her husband be the manager of it at a salary of $1,500 per year. One of the persons nominated in the will as executor renounced, and letters testamentary were issued to the defendant alone, who was husband of the testatrix at the time of her death. He thereafter carried on the merchant tailoring business; and in doing so incurred liability to the plaintiffs for goods purchased. They brought this action against him as executor; and in June, 1886, recovered judgment for debt and costs, $1,393.42, and by it the defendant was directed to pay the judgment out of the funds and property of the estate of his testatrix. This judgment was affirmed. 113 H. Y., 586; 23 H. Y. State Rep., 670. During the pendency of the appeal from the affirmance by the general term of that judgment, and July 2,1887, on motion of plaintiffs, an order was made by the special term appointing Thomas J. Ritch, Jr., receiver of the estate of the testatrix, and by it the defendant was directed to transfer to the receiver all the money, credits and property of the estate; and it was ordered that out of the money the receiver pay to the plaintiffs or their attorney the amount of the judgment before mentioned, and that for costs entered on affirmance by the general term, with interest from its date, and ten dollars costs of the motion, and hold the balance of the money subject to the further order of the court. Pursuant to that order the defendant handed over to the receiver the entire, fund of the estate, amounting to $2,295.80!
    The plaintiffs, on May 4, 1887, recovered another judgment against the defendant as executor for $417.75, and on July 16, 1887, on motion of the plaintiffs, an order was made by the special term appointing the same Mr. Eitch receiver in that action No. 2 of the estate of the defendant’s testatrix, and ordering the receivership in action No. 1 to be extended to the other; and that upon, the performance of his duties under the prior appointment the receiver pay the plaintiffs the amount of the judgment in action No. 2 with interest from its date and ten dollars costs of motion, and hold balance of the fund subject to the further order of the court. In February, 1888, John D. Cutter and another recovered a judgment against the defendant, as executor, of upwards of $1,500, whereby, after reciting that Eitch had been so appointed in the two former actions, it was adjudged that the receiver, “after satisfying the obligations of said prior receiverships, pay to the plaintiffs, or to their attorney in this action, the amount of the judgment with interest from its date. The defendant appealed from the order made in action No 1, and it was reversed October 8, 1889. 115 N. Y, 396; 26 N. Y. State Rep., 125. In the meantime and in June, 1888, an order was made on plaintiffs’ motion directing the receiver to pay out of such fund to the plaintiffs the amount of the judgment in action No. 2, with interest and motion costs. And on the same day an order was made directing him to pay on the Cutter judgment to its extent after paying judgment and costs in action No. 2, and further directing the receiver to retain in his hands during the pendency of the appeal to the court of appeals from the judgment inaction No. 1, the amount of the principal sum of that judgment; and that he should not, during that time, pay such amount so directed to be retained to the plaintiffs in the latter judgment. On September 5, 1888, the receiver paid to the plaintiffs’ attorney $494.17, on account of judgment and costs in action No. 2, and on the same day he paid to the plaintiffs’ attorney, on account of the Cutter judgment, $408.21. The sum of these two payments was all of the fund in his hands except the amount he was so directed to retain. Afterward and on the day the order in action No. 1 was reversed by the court of appeals (October 8, 1889), he paid to plaintiffs on the Cutter judgment the balance remaining in his hands, less $229.75 retained for his expenses and commissions as receiver.
    By the order made August 8, 1890, and which is the subject of this review, it was ordered that the receiver pay to the defendant or his attorney the amount of the first judgment in action No. lr $1,393.42, and that for costs on its affirmance by general term, seventy-six dollars, and interest on both of them from the time of their entry, respectively; and that the plaintiffs pay to the defendant or his attorney the amount of the judgment in action No. 2, $417.75, with interest from its date of entry, and the sum of $229.75 commissions and expenses of the receivership, with interest from September 5, 1888, and ten dollars costs of the motion. The receiver and the plaintiffs, respectively, appealed from this order to the general term, and, on its affirmance, they in like manner appealed to this court.

      Walter S. Logan, for app’lts; Alexander Y.> Campbell, for resp’t.

       Modifying and affirming 35 N. Y. State Rep., 329.

   Bradley, J.

The receiver claims that he paid out the fund in good faith and in obedience to orders directing him to do so. If that contention is sustained by the facts the claim as against him for restitution cannot be supported. He received the fund pursuant to the order made in action Ho. 1 appointing him as such, and directing the defendant to hand it over to him, and he made "the payments of - September 5, 1888, of $494.17 on account of plaintiffs’ judgment in action Ho. 2, and $408.21 • on the Gutter judgment in obedience to the direction in orders of the court, and by them he was protected in so doing. But the amount which he was directed to retain during the pendency of the appeal from the judgment in action Ho. 1 he had no specific direction to pay out except that given by the first order to pay it on the last-mentioned judgment; and the purpose of that direction was defeated when such order was reversed by the court of appeals. It is, however, urged that on such reversal the adjudication in the Cutter judgment and the order to make payment upon it remained effectual and opened the way for the payment of the balance in his hands upon that judgment; but it may be observed that the adjudication there was that the receiver pay the judgment “after satisfying the obligations of the prior receiverships,” and that the order directed him to retain the amount of the principal of the first judgment during the pendency of the appeal from it to the court of appeals; and it evidently was contemplated that in case it was affirmed such amount might become applicable to payment upon it.

There was never any direction to otherwise pay it out. That judgment was affirmed, and as such remained effectual; and afterwards on reversal of the order he held the balance so retained subject to the direction of the court; but without applying to the court for further instructions he paid it on the Gutter judgment. In this the receiver was justified if the plaintiffs in that judgment were entitled to it It is insisted they were, because their judgment, declaring their right to payment out of the funds of the estate, and the order before mentioned recognizing such right, remained undisturbed. This judgment as well as those preceding it established the claims of the plaintiffs as against the estate, and were charges upon it to the extent which the law would enable them to enforce them and obtain satisfaction. It appeared in the papers upon which the order under review was made, that there were creditors of the testatrix having unpaid claims amounting to $10,000. These judgment creditors whose debts were created subsequently to her death had no right in exclusion of her creditors to appropriate to the payment of their claims the entire amount of the estate of the testatrix; and how much of the fund they could eventually receive was dependent upon the distribution which the surrogate should direct after opportunity given to the creditors of the decedent to be heard. This was held in Willis v. Sharp, 115 N. Y., 396; 26 N. Y. State Rep., 125, upon reversal of the order. No greater right than that was established by the judgments or derivable from the orders. And the fact that the Cutter judgment and the orders in that case and in action No. 2 remined unreversed was not in the-way of inquiry by the court into the situation and its determination that they were not entitled to the money. They had an absolute right to seek and obtain a preference as against him personally who was executor, for debts created by him after the death of his-testatrix, but the fund belonging to her estate was held by him for all the creditors whose claims were properly chargeable upon it; and those parties had no right to make available to themselves a preference in the manner they sought to assert it. These views do not proceed upon the ground that the reversal of the order in the first action had any effect upon the existence of the judgment, and order in the Cutter case or of the order in the second action.

The question differs in that respect from that which would exist, in case of a series of orders appointing receivers of the property of a debtor in behalf of his creditors. Then if the earlier orders became inoperative for any cause, the advantage of priority might fall on those remaining in the order of time in which they are made. But that rule is not applicable to a trust fund or the estate of a deceased person, the disposition or distribution of which, when the rights of creditors are involved, is governed by law,, which the trustee cannot effectually disregard. While the executor could not afford any right to these parties by his consent, he was so far the representative of the creditors that he could take steps to restore the fund to its proper depository, and it was his duty to do so, with a view to its distribution through the action of the tribunal having jurisdiction of the subject of the administration of the personal estate of deceased persons, and whatever rights the plaintiffs in those judgments have in the fund must be ascertained and taken through the exercise of that jurisdiction. It follows that they had no legal right to appropriate, the fund in question through' the receivership sought to be created, and that the receiver was no further than he was by orders of the court directed to do so, justified in paying over to them the moneys which came to his hands. No satisfactory reason appears for charging him with interest upon the $1,393.42 from the time of entry of the judgment for that amount or with the costs of the general term, as he had the direction of the court to-pay over the entire fund in his hands except the sum last mentioned. The conclusion also follows that the plaintiffs were not. entitled to the money paid to them by the receiver. While the order permitted them to receive the money, the court properly determined that it established no right to its appropriation by them to the payment of the judgment. It is suggested by their counsel that, the motion and order under review were made in action No. 1 only, and, therefore, restitution of money received in No. 2 could not properly be directed in the order. The general rule goes in support of that contention, but in the present case the parties and their attorneys are the same in both actions, and all the facts are presented by the depositions ana papers upon which the motion was heard.

It does not appear that any such question was raised in the court below; and under such circumstances the objection now taken is not available. But we see no reason why the plaintiffs should be required to pay to the defendant the commissions and expenses of the receiver. The money retained by the receiver pursuant to the order of the court, until he made the last payment to the plaintiffs in the Cutter judgment, embraced the amount of those commissions and expenses, and they were included in the sum which he is directed to restore to the defendant.

The order as against the receiver should be so modified as to require him to pay only $1,393.42, and interest thereon from October 8, 1889. And as against the plaintiffs it should be so modified as to order them to pay only the sum of $494.17; and interest thereon from September 5, 1888, and as so modified the order as to such parties, respectively, should be affirmed.

All concur.