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

text:
    WILHELMINA HAACK, Appellant, v. JOHN H. WEICKEN, Executor, etc., of HEINRICH A. HAACK, Deceased, and Others, Respondents.

      Election — a devisee, by electing to take uwler a will, waives a right to enforce a claim inconsistent with its other provisions.

    Upon the trial of this action, brought to reform a deed executed to the plaintiff’s husband, Heinrich A. Haack, pursuant to an agreement for the partition of land devised by the plaintiffs father to his four children, it was shown that the inten ' tion was that the property described therein should be conveyed to the plaintiff and her husband, and that the latter should pay $10,000 (one-half the value of the property) to another devisee. By the directions of the plaintiff’s husband the deed was so made out as to convey the whole of the property to him, the name of the plaintiff being wholly omitted therefrom, which fact was not known to her or the party who executed the deed, he having neglected to read it, or to the other parties to the partition agreement, until after the death of the husband, which occurred several years after his receipt of the deed.
    The husband left a will by which he gave and devised to the plaintiff a dwelling-house and property in Brooklyn, together with the sum of $10,000, and declared these provisions to be in lieu of dower. After certain specific bequests, he gave all the rest, residue and remainder of his property, without other description, to his two sisters and a brother. The plaintiff, after learning that her name had been omitted in the deed and that the whole property had been conveyed to her husband, received under the provisions of this will a number of payments of portions of the legacy given to her, and also kept possession of the dwelling-house devised to her, and demanded that the executor should proceed and pay off a mortgage existing thereon as a debt of the estate, and delayed for a considerable period of time to commence proceedings to reform the deed.

      Held, that upon learning that her name had been omitted from the deed, the plaintiff was put to her election either to take under the will or to pursue her remedy by reformation of the deed, and that, in this case, she must be held to have elected to take under the will, and to have thereby lost the right to resort to the other remedy.
    Appeal from a judgment of tbe New York Special Term, dismissing the plaintiff’s complaint, with costs.

      II. C. Place, for the appellant.

      Pale da Keller, for the respondents.
   Davis, P. J.:

This action was brought to reform a deed executed by one John A. Ropke to the defendant’s testator, Heinrich A. Haack. The deed was executed to consummate an agreement of partition of certain lands devised by the plaintiff’s father to his four children, of whom the plaintiff was one. One parcel of the land was situate in the city of New York, and that was considered to be equal in value to one-half of the property devised, and was estimated at $20,000. It was arranged between the parties that this parcel should be conveyed to Heinrich A. Haack, then the husband of the plaintiff, and the plaintiff, and that Heinrich A. Haack should pay to another of the devisees the sum of $10,000, half of its estimated value. It was satisfactorily shown to have been the intention of all the parties that the deed conveying this parcel of property should be made to the plaintiff and her husband, as joint grantees, so that the interest of the plaintiff in her father’s estate should be represented in the grant, as well as the interest which her husband acquired by the purchase of the share of another of the devisees. It was shown, also, that by direction of the plaintiff’s husband the deed was made out to him in such form as to convey the whole of the property to him, the name of the plaintiff, his wife, being wholly omitted from the deed. The fact of such omission was unknown to the plaintiff, and to the party who executed the deed as grantor, he having neglected to read it, but executed it assuming that it was in accordance with the mutual agreement.

Heinrich A. Haack, the grantee, died June 5, 1883, several years after taking the above-mentioned conveyance. It was proven, also, upon tbe trial that the plaintiff: did not know of the fact that the deed had not been taken in the joint names of herself and husband until after his decease, and that that fact also was not known to the other parties to the partition agreement.

Heinrich A. Haack left a will, by which he gave and devised to the plaintiff a dwelling-house and property situated in Brooklyn, and in which they resided, and also the sum of $10,000, and these provisions were declared to be in lieu of dower. He gave certain specific bequests to other persons, and then gave and devised all the rest,' residue and remainder of his property, without other description, to his sisters, Wilhelmina Hopke and Mary Oest, and his brother, Dederick Haack.

The plaintiff, after learning the fact that her name had been omitted in the deed, and that the whole property had been conveyed to her husband, received under the provisions of his will a number of payments of portions of the legacy given to her, and also kept possession of the dwelling-house devised to her, and demanded that the executor should proceed and pay off a mortgage existing thereon as a debt of the estate. She delayed to commence proceedings to reiorm the deed for a considerable period of time after her knowledge of the alleged mistake, and after the payments made to her under the will of her husband.

The court below found, as matter of fact, that there was no mistake in the omission of her name from the deed to her husband, and refused to find that there was any fraud on his part in having the deed prepared in that form, substantially, it is supposed, on the ground that no fraud was charged in the complaint. He found, also, in substance that the plaintiff, by her acts after she learned the fact subsequently to her husband’s death, that the deed had been made to him alone, in receiving portions of the legacy and asserting other claims under the provisions of his will, had elected to take such provisions in lieu of any claim which she might otherwise have had to reform the deed.

We think the learned court ought to have found, on the evidence in this case, that the deed was made and executed under a mistake on the part of the grantor, who testified that he supposed it to be in accordance with the agreement that was made, and on the part of the plaintiff, who supposed until after her husband’s death, that her name as joint grantee was embodied in the deed ; and he might well have fonnd that the decedent made a mistake in giving his directions to the scrivener who drew the deed, as otherwise his conduct would have been a palpable fraud. The findings of the court to the contrary would require a reversal of this judgment, and a new trial if the other ground upon which the court also directed the judgment were not fatal to the plaintiff’s recovery.

It is a well settled principle of law and equity, where a testator devises and bequeathes portions of his property to a beneficiary under his will, and also by his will devises and bequeathes a residuary estate to other beneficiaries, which necessarily embraces property claimed by him, but in which the former beneficiary owns or claims to own an interest, that the acceptance-by such beneficiary of the provisions of the will, with knowledge of the fact that the testator has thereby disposed of the property in which he claims an interest, will be held to be an election by him to take under the provisions of the will instead of asserting and pursuing a claim to the property devised or bequeathed to the residuary legatees. In this case, if the plaintiff takes under the provisions of the will, and succeeds in asserting her title also to the real estate deeded to her husband, she will substantially receive the entire amount of her husband’s estate, and thus cut off the residuary legatees from that portion which-it is manifest the testator intended to devise and bequeath to them. As joint grantee of the deed, to herself and husband, she would take title to the whole of that property as survivor; asdevisee she would take the house and lots in Brooklyn; and this-comprises the whole of the real estate of which the testator died seized ; and her legacy of $10,000, together with the payment of the debt of $5,000 owing on the mortgage, would substantially absorb the entire estate.

This state of facts, we think, did put her to her election whether to take under the will or to pursue her remedy by reformation of the deed, and under the authorities cited by the learned counsel for the respondent, we think the case is one in which she must be held to have elected, and thereby to have created an equitable estoppel to the prosecution of this action. (Thellusson v. Woodford, 13 Vesey, 224; Ker v. Wauchope, 1 Bligh, 21, 22; Tibbits v. Tibbits, 19 Vesey, 663; and Ravens v. Sackett, 15 N. Y., 365, 369.) In this last case, at page 369, Denio, C. J., states the rule as follows: One wbo accepts a benefit under a deed or will must adopt tlie whole contents of the instrument, conforming to all its provisions and renouncing every right inconsistent with it. For example, if a testator has affected to dispose of property not his own, and has given a benefit to the person to whom that property belongs, the legatee or devisee accepting the benefit so given to him must make good the testator’s attempted disposition.”

Our conclusion is, therefore, that the judgment must be affirmed upon the ground last considered in this opinion, but, under the circumstances, without costs.

Daniels, J., concurred.

Brady, J.:

I concur, as the authorities seem to force the result declared, although I do not understand why the plaintiff’s land should be lost by her acceptance of the provisions in lieu of dower, when there is nothing in the will which declares that it was thus intended by the testator to extinguish all other personal claims against the estate. She was entitled to dower by law.

Judgment affirmed, without costs.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    WILLIAM E. FAY, Appellant, v. ISAAC H. HEBBARD and Others, Respondents.

      Evidence — statements of third, persons, when inadmissible as evidence against a pasty — light of an attorney to purchase a judgment in order to enforce the Men thereof on real estate — Code of Civil Procedure, sec. 78.
    This action was brought to have a judgment which had been assigned to the plaintiff declared a lien upon certain land conveyed to the defendant Hebbard by the judgment debtor, upon the ground that the conveyance was made to secure a debt, which the plaintiff asked to he allowed to pay off, in order that he might have the land sold under his judgment. One of the defenses to the action was that the judgment had been bought and paid for by one Thomas, the attorney for the plaintiff in the suit in which it was recovered, and that the title was taken in the name of the plaintiff, a clerk and stenographer in the attorney’s office, for the purpose of bringing a suit thereon for Thomas’ benefit. Upon the trial, witnesses were called who testified as to statements made by Thomas to them, which tended to show that he, and not the plaintiff, was the purchaser of the judgment.

      Held, that the evidence as to the purchase of the judgment by Thomas was not sufficient to justify the admission of his statement as evidence against the plaintiff.

      Semble, that even if Thomas had purchased the judgment for the mere purpose of establishing and enforcing a lien upon the property conveyed to the defendant, such purchase did not fall within the prohibition of section 73 of the Code of Civil Procedure, prohibiting such purchase by an attorney, with the intent and for the purpose of bringing an action thereon. (Brady, J., concurred in the result.)
    Appeal from a judgment of the New York Special Term dismissing the plaintiff’s complaint.

      Abner G. Thomas, for the appellant.

      J. Traoy Zangan, for the respondents.
   Davis, P. J.:

This action was brought by the plaintiff, as assignee of a judgment, to have the judgment declared a lien on certain land of defendant Hebbard, by establishing that the conveyance, to him of the land by' the judgment debtor, was a mortgage only, to secure a debt of such judgment debtor, and thereupon to redeem by paying off the mortgage on the lands and selling the same under the judgment. It was alleged, as one of the defenses, that the judgment had been bought and paid for by Abner C. Thomas, the attorney of the plaintiff in the suit in which it had been recovered and title thereto taken in the plaintiff’s name for the purpose of bringing suit thereon for the benefit of Thomas.

It was admitted in the case that the plaintiff, Mr. Fay, is a clerk and stenographer in the office and in the employ of Mr. Thomas. A witness was then called, who testified that Mr. Thomas told him that the check which paid for the assignment was made by him payable to the order of Mr. Fay and indorsed by Mr. Fay. This evidence was objected to as immaterial, and the objection was overruled and exception was taken. A motion to strike it out was also denied, and an exception was taken to the denial. The defendant in the judgment was called as a witness for defendants. He was asked if he liad had any conversation with Mr. Thomas about the purchase of the judgment, and to state what was said in such conversation. This was objected to by plaintiff, and the objection overruled and an exception taken. There was nothing in the case to show that Thomas’ declarations were competent evidence against the plaintiff, for, outside of those declarations, nothing appeared that would justify their admission. An attorney is not competent to make admissions in conversation with third persons which will be evidence against his client as to the facts of his case. The plaintiff was not shown to be pi’esent at the conversation ; and the mere incident that he was a clerk and stenographer, employed in his office, did not subject him to the effect of any casual declaration of Thomas as evidence against him. There was not enough shown to justify the admission of the statement of Thomas as evidence against plaintiff. The exceptions were therefore well taken.

Without the declarations of Thomas, there was nothing to warrant the court in finding that Thomas was the buyer of the judgment and the plaintiff his mere agent to enable him to purchase it in violation of the statute. For this error a new trial must be granted.

But we doubt very much whether the purchase of a judgment, to enforce an alleged lien upon property of a person not a party to the judgment, is within the prohibition of the statute. The judgment debtor is not sued upon the judgment. If it were bought by an attorney to sue over against the judgment debtor, as might have been done before the restrictions imposed by the Code or statute, the transaction might well be held within the inhibition. But the purchase of a judgment for the purpose of collecting it as such, by execution, or any other mode that simply enforces the judgment or its lien, is not within the letter of the statute or its mischief. Section 73 of the Code of Civil Procedure provides that “an attorney or counselor shall not directly or indirectly buy or be in any manner interested in buying a bond or promissory note, bill of exchange, book debt, or other thing in action, with the intent and for the purpose of blunging an action thereon.” There is nothing in this to prevent an attorney or counselor from buying anything named in the act for any other intent, use or purpose than that of bringing an action thereon. If an attorney or counselor buy a judgment with intent to sue the judgment debtor thereon, we think it would be deemed “ a thing in action ” within the meaning of the provision. It would be within the spirit of the law and the mischief to be prevented; .but it is quite another thing to buy a judgment with the intent to enforce it by execution against the judgment debtor, or by pursuing the lien it may have on his property in his own or another’s hands. To enforce such a lien of a judgment is not to bring “ an action thereon,” within the meaning of the Code. ( Warner v. Paine, 3 Barb. Ch., 620; Brotherson v. Consalus, 26 How., 213.) In this case the judgment debtor is not made a party to the action, and it was not necessary that he should be. He cannot be harassed in costs nor annoyed by another suit on the cause of action merged in the judgment.

In Wetmore v. Hegeman, the Court of Appeals say: “ The aim of the statute was to prevent attorneys from purchasing claims for the express purpose of instituting suits thereon, and thus oppressing debtors and making costs.” ( Wetmore v. Hegeman, 88 N. Y., 73.) In this case the plaintiff seeks only to ascertain how much is due the defendant as a mortgagee of the judgment debtors real estate, on which the judgment is an alleged lien, for the purpose of paying the alleged mortgage and collecting the judgment out of the lands when redeemed from the,mortgage. We think the court erred in holding that there was legal evidence that the plaintiff bought the judgment for the attorney, and also in holding that such a purchase, if made by an attorney for the mere purpose of establishing and enforcing a lien of the judgment, was within the statute.

The judgment must be reversed and a new trial ordered, costs to abide event.

Brady, J., concurred in the result.

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


text:
    ISAAC MOOG, Appellant, v. JAMES KEHOE and CLAUS WILKENS, Respondents, Impleaded, etc.

      Bond of a marshal of the city of New York — a party aggrieved cannot, under an order of a justice of the Court of Common Pleas, prosecute it in the Supreme Court— 1862, chap. 484.
    An order permitting a person aggrieved by any official misconduct on tbe part of any marshal of the city of New York to prosecute the bond which the marshal is required, by chapter 484 of 1862, to give to the mayor, aldermen and commonalty of the city of New York, can only be made by a justice of the Court of Common Pleas, as is prescribed in section 7 of the said act, and his jurisdiction being a special and limited one, is restricted to the form of order prescribed by that act.
    An order granting leave to prosecute the bond, in the name of the plaintiff, in the Supreme Court, instead of directing it to be prosecuted in one of the district courts of the city of New York, or in the Marine Court of that city, is not authorized by the act and cannot be sustained.
    Appeal from a judgment dismissing the complaint on the trial of this action at the New York Circuit, and from an order denying a motion for a new trial, made upoirthe minutes of the justice before whom the trial was had.

      Anthony B. Dyett and I. L. Bamberger, for the appellant.

      II. B. Glass and L. L. Kellogg, for the respondents.
   Davis, P. J.:

This action was brought on a city marshal’s bond, executed under the provisions of chapter 484, of the Laws of 1862, to the mayor, aldermen and commonalty of the city of New York. Section 6 of that act provides that any person who shall be aggrieved by any official misconduct on the part of any marshal, and who may desire to prosecute his official bond, etc., may move, before a justice of the Court of Common Pleas in and for the city and county of New York at chambers, after notice, for leave to prosecute such official bond in his own name. And section 7 of the act provides that such justice of the Common Pleas may order such bond to be prosecuted in any of the district courts of the city of New York or in the Marine Court of the city of New York. A motion was made before a judge of the court of Common Pleas, under these provisions, for leave to prosecute the bond in the name of the plaintiff, in the Supreme Court, and an order to that effect was granted by the judge. This action was thereupon commenced, and at the trial at Circuit, the court dismissed the complaint on the ground that the plaintiff could not maintain an action in this court in his own name, under the order granted by the judge of the Common Pleas. A motion was afterwards made before the justice holding the circuit for a new trial, which motion was denied ; and this appeal is from the judgment dismissing the complaint and from the order denying the motion for a new trial. The act of 1862 provides a special form of procedure under which an aggrieved party may obtain an order from a judge of the Court of Common Pleas at chambers, authorizing the prosecution in his own name of a marshal’s bond, and the act prescribes the order that such judge may make, by enacting that he may order such bond to be prosecuted in any of the district courts of the city of New York, or in the Marine Court of that city, and conferring jurisdiction upon either of those courts to entertain the action. No power is given, to the judge of the Common Pleas to make any otiier order than that prescribed in those sections. His jurisdiction is a special and limited one, restricted to the form of order prescribed by the statute. He had no power to direct the prosecution of the bond in this court in the name of the plaintiff, and the order which purported to do so conferred no greater right upon the plaintiff than he previously possessed.

The right of the plaintiff to maintain an action in his own name on the bond in this court cannot be upheld by the order of the judge of the Common Pleas, and the learned justice was right in dismissing the complaint unless the plaintiff was entitled, independently of the order, to bring an action on the bond in his own name. The bond was given to the mayor, aldermen and commonalty of the city of New York. Undoubtedly this court has jurisdiction to entertain any action that the obligees may see fit to bring upon the bond, but no person other than such obligees can maintain an action thereon, in his own name, in this or any other court, unless specially authorized by some statutory provision.

The plaintiff is not an obligee of the bond, and for that reason cannot sue in his own name without showing some special statutory authority authorizing him so to do. He wholly fails to show that because the ■ order of tbe judge of tbe Common Pleas, wbicb he produces, was not one wbicb sucb judge bad power to make. By consent of tbe obligees tbe plaintiff probably could bave brought an action for bis own benefit in tbeir name; but no sucb consent appears to bave been given. On tbe contrary, he undertakes to sue without the consent of the obligees, and in his own name, relying for bis right to do so upon the order of the judge of tbe Common Pleas, wbicb order such judge bad not power to make. It is not a question of jurisdiction of tbe subject-matter in this court, but of tbe right to maintain an action upon a bond of a public officer given to tbe mayor, etc., by an alleged injured party without having taken tbe steps necessary to acquire tbat right, and upon tbe order, not of a court, but of a judge whose powers were restricted and limited by statute, and cannot be extended beyond sucb limitation.

We think, therefore, that tbe court below was right in dismissing tbe complaint and denying tbe motion for a new trial, and tbat tbe judgment and order should be affirmed.

Brady and Daniels, JJ., concurred.

Judgment and order affirmed.


text:
    THE TONAWANDA VALLEY AND CUBA RAILROAD COMPANY and B. W. SPENCER, Receiver, Appellants, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Respondent. THE BRADFORD, ELDRED AND CUBA RAILROAD COMPANY and THOMAS C. PLATT, as Receiver, Appellants, v. SAME, Respondents.

      Contract between railroad companies, to endeavor to promote each other's interests — when not void as against public policy — a plea of ultra vires will not lie in favor of a party who has received benefits under the contract.

    The plaintiff and defendant, each being a railroad company, entered into an agreement by which the plaintiff agreed that it would at all times deliver to the defendant, for transportation, all the freight and passengers that it could lawfully control or influence, destined to points that could be reached by •wav of the railroad of the defendant, or its connections, and that it would use its influence to promote the interests and the business of the defendant company, as far as it could, with proper regard for its own interests. The defendant company agreed that, so far as it could, with a proper regard for its own interests, it would use its influence and exercise its control to promote the interests and the business of the plaintiff company; it also agreed to make good any deficiencies in the net earnings of the plaintiff company to meet the interest upon its present bonded indebtedness, from time to time, as the same should become due and payable.
    It was further agreed that, for the protection of the defendant company, in rendering assistance to the plaintiff company, the latter -should cause to be deposited with the defendant company a majority of the capital stock of the plaintiff company in such manner as should be required, and that, so long as the management of the plaintiff company should be satisfactory to the defendant company, the latter would give, or cause to be given, to such representatives of the plaintiff company as should be designated by it, the right to vote upon the stock so deposited.
    Upon the trial of this action, brought by the plaintiff to compel the defendant to pay certain sums which the defendant had become liable to pay under the terms of the contract, the complaint was dismissed upon the ground that the contract was contrary to public policy and void.

      Held, that it was error so to do, as the arrangement was not per se void.
    That if the question be considered as purely one of ultra vires, then it was obvious that the defendant was in no condition to avail itself of that objection, as it had entered upon, and enjoyed the benefit of, the contract for a long period of time, and could not now assert that the contract was void because it (the defendant) had no power to secure its performance in the manner stipulated in the instrument.
    Appeal from judgments of the New York Special Term, dismissing the complaints in each of the above entitled actions on the pleadings and opening of the plaintiffs.
    In March, 1883, contracts were entered into between the plaintiff and the defendant in each of the above entitled actions, which are identically the same. By this contract the Tonawanda company agreed: “ First. That it will, at all times, deliver to said Erie company, for transportation, all the freight and passengers, that it can lawfully control or influence destined to points that can be reached by way of the railroad of the Erie company or its connections, and will use its influence to promote the interests and the business of the Erie company, so far as it can, with proper regard for its own interests. Second. That for the protection of the Erie company iia rendering assistance to the Tonawanda company under this contract, it will cause to be deposited with the Erie company a majority of the capital stock of the Tonawanda company in such manner as shall be required, upon which, so long as the management of the Tonawanda company shall be satisfactory to it, the Erie company will give, or cause to be given, to such representative of the Tonawanda company as shall be designated by it, the right to vote upon the stock so deposited.” The Erie company agreed: “ First. That so far as it can, with a proper regard for its own interests, it will use its influence and exercise its control, to promote the interests and the business of the Tonawanda company. Second. That upon condition that the .corporate control of the Tonawanda company shall become and remain vested in the Erie company, as above provided, the Erie company will make good any deficiencies in the net earnings of the Tonawanda company to meet the interest upon its present bonded indebtedness, from time to time, as the same becomes due and payable; and for any and all advances so made-by it, with interest thereon, as well as for all advances made to said Tonawanda company by the Erie Company for other purposes, with interest thereon, the Erie company shall have, and is hereby granted, a first lien upon the railroad franchises and property of the Tonawanda company, next after its bonded indebtedness aforesaid, and a first charge upon its surplus earnings, next after the payment of the accruing interest upon its said bonded indebtedness. This contract shall continue during the corporate existence of the .companies parties hereto.” It was alleged and conceded that the plaintiff companies strictly performed this agreement. The defendant company performed the agreement on its own part in the case of the Tonawanda company until the 1st day of September, 1884, advancing in the aggregate $54,000, but, on the last mentioned date, an installment of interest upon the bond debt of that company having fallen due, and there being a deficiency of earnings to meet it, the defendant company, upon demand being made under the agreement, refused to make the necessary advances, and has continued to refuse to make the necessary advances for that purpose from that time down to the present. In the case of the Bradford company the defendant made good the deficiency from time to time until the 1st day of July, 1884, advancing for that purpose over $87,000, but on the date last mentioned it refused to make good the deficiency then existing, and has since continued to disregard its obligation. The refusal of the defendant company to perform its undertaking necessarily led to a default by the plaintiffs in the payment of interest upon their mortgaged indebtedness and to proceedings in each case for a foreclosure and the appointment of a receiver. These actions are brought to compel the defendant company to pay the sums of money which it has become liable to pay under the terms of the contracts. The motion to dismiss the complaint in each case was based upon the general ground that the contracts in question are contrary to public policy, and void.

      W. W. MacFarland, for the appellants.

      J. Buchanan and O. Steele, for the respondent.
   Davis, P. J.:

These cases present identically the same questions, and they were, for that reason, argued together. The contracts upon which the actions were brought were alike in form and identical in their objects and purposes. They were mere traffic agreements, by which the parties arranged for an interchange of business for their mutual benefit and advantage, and stopping with thé provisions which affect such interchange; there would seem to be no serious question of their legality.

. The plaintiff company in each case contracted “ That it will at all times deliver to the Erie company for transportation all the freight and passengers that it can lawfully control or influence, destined to points that can be reached by way of the railroad of the Erie company, or its connections, and will use its influence to promote the interests and the business of the Erie company, so far as it can, with proper regard for its own interests.” And the Erie company contracted that, so far as it can, with a! proper regard for its own interests, it will use its influence and exercise its control to promote the interests and the business of the plaintiff company. And in consideration of the performance of the agreement on the part of the plaintiff company, the Erie company agreed to make good any deficiencies in the net earnings of that company to meet the interest upon its present bonded indebtedness from time to time, as the same becomes due and payable.

"We think there is nothing in these provisions obnoxious to any law of this State. As collateral security for the performance of its agreement each of the plaintiff companies agrees to cause to be deposited with the Erie company a majority of the capital stock of the plaintiff company in such manner as shall be required, upon which, so long as the management of the plaintiff company shall be satisfactory to it, the Erie company will give, or cause to be given, to such representative of the plaintiff company as shall be designated by it, the right to vote upon the stock so deposited. And the promise of the Erie company to make good deficiencies in the net earnings of the plaintiff company is made upon condition that the corporate control of the plaintiff’ company shall become and remain vested in the Erie company as above provided.

The only question in the case is whether this provision in regard to the deposit of the stock as security for the performance by the plaintiff company of its contract, and the condition that the corporate control of the plaintiff company shall in that way become and remain vested in the Erie company, are invalid in law, and for that reason the whole contact between the parties is void. It is not contemplated that the plaintiff company shall not continue to carry on its business as a corporation by continuing to operate its railroad, as is its duty as a corporation. On the contrary, it is bound by the contract to do so in order to carry out the provisions to deliver to the Erie company all freight and passengers that it can lawfully control or influence, destined to the points mentioned. This is to be done under its own management and control so long as it performs the contract, but when it fails to perform its con tract then the provision is that the Erie company may, by the exercise of the voting power of the stock deposited as collatei’al, place in control such a board of management as will perform the agreement. It cannot take the control itself, so that the Erie company will manage and conduct the business of the corporation, but it can appoint such officers and agents of the plaintiff company as will manage the business of that company as required by its contract. Beyond this, the contract confers no power or control upon the Erie company over the plaintiff company, and the power given is purely contingent and does not appear from anything in the case ever to have been exercised, nor does it appear that any necessity for its exercise has arisen.'

It is averred by the plaintiff companies that the contract was performed on their part by the deposit of a majority of the stocks required, and that the performance of the contract by both parties was entered upon and continued until the defendant company saw fit to repudiate the same. The question arising upon these facts is an interesting one, by no means free from doubt, but we are inclined to the opinion, inasmuch as no decision is brought to our notice upon a precisely similar state of facts, that this arrangement is not per se void because in violation of law. If there be no question but that contracts between railway companies for the arrangement of their inter-mutual traffic may lawfully be made, by which one company may bind itself to pay stipulated sums or assume obligations to pay interest upon the bonds of the other, it is not clearly perceived why the company that undertakes so to pay may not secure the performance of the contract by arrangements which will enable it, in case of breach of the agreement, to appoint such officers or agents for the defaulting company as shall secure performance.

If the question be considered as purely one of ultra vires, then it is obvious that the defendant is in no condition to avail itself of that objection. It entered upon and enjoyed the benefit of the contract for a long period of time, and it is too late to assert that the contract was void because it had no power to secure its performance in the manner stipulated in the instrument. Neither company could assert such a defense after entering upon and enjoying the benefits of the contract. To avoid the agreement, the defendant must be able to assert that it was void in law as against public policy, or by reason of conflict with some provision of law, statutory or otherwise.

"We are of opinion that the judgment should be reversed and new trial granted, costs to abide event.

Brady and Daniels, JJ., concurred.

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


author: Davis, P. J. :

text:
    CHRISTOPHER A. WYATT and Others, Respondents, v. JAMES B. BROOKS and Others, Appellants.

      Place of trial of an action to set aside as fraudulent a general assignment covering real estate — the right to demand a change of venue cannot be defeated by an offer by the plaintiff to stipulate not to attempt to reach the real estate.

      A motion to change the place of trial of an action, brought to set aside an assignment for the benefit of creditors on the ground that it was made to hinder, delay and defraud the assignors’ creditors, to the county in which certain real estate passing under the assignment is situated, cannot be defeated by an offer on the part of the plaintiff to stipulate that he will not attempt to reach the real estate of the assignors, assigned to the assignee, or mate any claim of title or interest therein or thereto.

      AcJcer v. Leland (96 N. Y., 381) followed.
    Appeal from an order of the New York Special Term, denying the defendants’ motion to change the place of trial from New York to Onondaga county.

      Louis Marshall, for the appellants.

      8. R. Stern, for the respondents.
   Davis, P. J. :

This is an action in the nature of a creditor’s bill, to set aside an assignment made by the defendants Silberstein and Shovelsohn to the defendant Brooks, on the alleged grounds that the assignment was fraudulent and void on its face, and improper and illegal in. form, and was made and executed with intent to hinder, delay and defraud, the creditors of the assignors. Amongst the property assigned was a parcel of land situated in the city of Syracuse, county of Onondaga, which belonged to the defendant Silberstein, and which, as appears by his affidavit, is of the value of about $8,000, incumbered for about $6,400, leaving a margin, as he states, of at least $1,500 over and above the incumbrance. A demand of change of place of trial was made in due form, on the ground that the place of trial was not laid in the proper county, and the motion is based upon such demand and the grounds stated therein, and also upon affidavits tending to show that the place of trial should be changed for the convenience of witnesses.

To meet the claim that the city of New York is not the proper place of trial, on the ground that the action affected the question of title or interest in real estate, the plaintiffs made a stipulation that they “ will not attempt to reach the real estate of said assignors assigned to said assignee, or make any claim of title or interest therein or thereto.” The Special Term denied the motion upon the affidavits and the stipulation referred to.

The construction given by the Court of Appeals in Acker v. Leland (96 N. Y., 384) to section 982 of the Code of Civil Procedure, requires us to hold that this action is local, within the provisions of that section. It must be tried in the county in which the subject of the action, or some part thereof, is situated. The defendants were therefore entitled, upon their demand, to have the place of trial changed, and the order should accordingly have been made unless the stipulation given by the plaintiffs had the effect to take the case out of the provisions of section 982 of the Code.

The object of the action is to have the assignment declared absolutely void, because made in fraud of creditors. The assignment conveys certain real estate to the assignee. A decision that it is void will affect the title to that real estate, and it is difficult to see how the stipulation that the plaintiff will not pursue the real estate or claim any interest therein, will prevent the effect of a judgment, if they succeed in obtaining one declaring the assignment void, from affecting the title to the land. A receiver appointed under such a judgment would take title to the land, and a refusal on the part of the plaintiffs to reap any benefit therefrom would only impose on the receiver the obligation of applying it to other creditors who might come in and be made parties to this action or commence other actions. The right of the defendants to change the place of trial cannot, we think, be disposed of by such a stipulation.

On the subject of witnesses, the question presented to the court was one'addressed to its discretion, and it may be that the stipulation to admit on the trial what a portion of the defendants’ witnesses would testify to, together with the witnesses sworn to on the part of the defendants to reside in the city of New York, were an answer to that branch of the motion. But we are not inclined to examine particularly the disposition made of this part of the motion, because the order changing the place of trial should have been granted on the ground already considered.

<Tbe order should, therefore, be reversed, and the motion granted, with costs of the motion and of this appeal to abide the event.

Bradt and Daniels, JJ., concurred.

Order reversed, and motion granted, with costs of motion and of appeal to abide the event.


author: Daniels, J.:

text:
    BENJAMIN F. SMITH, Appellant, v. ALICE R. BAKER, Respondent, Impleaded with JAMES H. REDFIELD.

      Infant — when allowed to avoid a transfer of stock belonging to herr, and beati'ing her signature — extra allowance — the court cannot presume bank stock to be worth more than its par value.

    This action was brought to recover the amount secured to be paid by a promissory note given by the defendant Redfield, and to have sixteeen shares of bank stock, alleged to have been assigned as collateral security for the note, sold, and the proceeds applied to the payment of the note. The stock did not belong to Redfield, but belonged to the defendant Baker, for whom Redfield acted as guardian. While the defendant Baker was under the age of twentj'-one years, and in or about the year 1872, she, at the request of Redfield, wrote her name upon the back of the certificate, without being told for what purpose he desired her signature and without any arrangement that the shares should be transferred to him, or that he should be at liberty to sell or dispose of them. Under her name, as she had written it, her own name was again written by Redfield as her attorney.

      Meld, that as there was no intention on her part to supply Redfield with the evidence of the ownership of these shares, she was not estopped from disputing the validity of the title acquired by the plaintiff.
    That even if the shares had been received by the assignor of the plaintiff, or the plaintiff himself, in reliance upon the signature of the ward, she would not be legally bound, as she was an infant at the time, and the law would, in the absence of any actual representation concerning her signature or her age, permit her to avoid its effect on the ground of her infancy.
    The shares were for the sum of twenty-five dollars each, and no evidence was given that they exceeded in value that amount. The judgment of the court below denied the right of the plaintiff to appropriate this stock to the payment of his debt, and granted an extra allowance of eighty dollars to the defendant Baker.

      Meld, that the court could not presume the shares to be worth more than their par value, and that the allowance should be reduced to twenty dollars.

      Appeal from a judgment recovered upon the trial of this action at the New York Special Term.

      Birdseye, Gloyd & Bayliss, for the appellant.

      William F. McRae, -for the respondent.
   Daniels, J.:

The object of the action was the recovery of a debt against the defendant James H. Redfield, amounting to the sum of $2,000 and interest, upon a promissory note made by him on the 24th of Hay, 1878, and the sale of sixteen shares of stock of the National Broadway Bank, and the appropriation of the proceeds towards the pay ment of the debt. The fact that the debt was contracted and the plaintiff was entitled to recover the amount of it, were proved beyond dispute upon the trial. But the shares of stock assigned as collateral security for the loan were not the property of Redfield, the debtor, but they belonged to the defendant Alice R. Baker, for whom Redfield acted as guardian during her minority. She was under his charge after the decease of her mother, and from the time she was about nine years of age until she attained the age of twenty-one years, in October, 1877. These shares of stock were part of her estate, and while she was under the age of twenty-one years, and in or about the year 1872, at his request, she appears to have written her name upon the back of the certificate. This was done under no arrangement that the shares should be transferred to him, or that he should be at liberty to sell or dispose of them, and she was not given to understand what his purpose was in desiring her signature, or that it was to be placed, or was, in fact, placed upon the certificate of these shares. There was, accordingly, no intention on her part to supply him with the evidence of ownership of these shares, without which, in no event, could he have used or disposed of the shares themselves. ( Weaver v. Barden, 49 N. Y., 286; McNeil v. Tenth National Bank, 46 id., 325.) And it is quite evident than the assignor of the plaintiff received the shares upon no such understanding, for, under her own name, as she had written it, her name was again written by the defendant Redfield, as attorney, and, upon that signature the shares were probably transferred as security for this loan.

But even if the shares had been received by the assignor of the plaintiff, or the plaintiff himself, in reliance upon the signature of the ward, as she was an infant at the time, she would not legally be bound by this as her act. The law would still permit her, as long as she made no actual representation concerning her signature or her age, to avoid its effect on. the ground of her infancy. This is a general legal principle, too well settled to require any support by the way of citing authorities, and, being an infant, she could not be estopped by the simple circumstance of her name being placed upon the certificate of these shares of stock. (Ackley v. Dygert, 33 Barb., 176; Brown v. McCune, 5 Sandf., 224.) These cases proceed upon the legal principle that a person under the age of twenty-one years will not be estopped from asserting the truth, by the mere circumstance appearing to have transpired in this case. And the Jatter authority has not otherwise been disapproved of, except so far as it has a tendency to exonerate an infant from liability to arrest oh account of fraudulent representations actually made by such person. (Schunemann v. Paradise, 46 How., 426; Eckstein v. Frank, 1 Daly, 334; Wallace v. Morss, 5 Hill, 391.) The dealings through which the right is insisted upon, of appropriating these shares of stock to the payment of this indebtedness, took place exclusively between the plaintiff’s assignor and the acting guardian of this infant, and in no manner precluded her from asserting her, right to the shares, and repudiating the act and conduct of the person under whose charge she had been during the greater period of her minority. No act upon her part, either before or after she attained her majority, in any manner approved, confirmed or ratified, this illegal disposition of her property; but she, herself, continued to receive the dividends upon it near to the time when this suit was commenced. Upon the facts, as they were proven, the judgment denying the right of the plaintiff to appropriate this stock to the payment of this indebtedness was legal and proper. To that extent the case seems to be free from substantial ground for doubt. But, in determining the action without any proof as to the actual value of the shares, the court made an allowance in favor of this defendant amounting to the sum of eighty dollars. The shares themelves were for the sum of twenty-five dollars each, and as there was no evidence that they exceeded in value the amount for which they were issued, this allowanee was unauthorized. It may, probably, in the absence of any proof, be presumed that the shares were of their face value, for they would ordinarily represent that amount of the capital stock of the bank issuing them, which, if it complied with the law, as it is to be presumed it had, would give them this extent of value. But the court could not presume them to be worth more than that sum. In making the allowance such a presumption seems to have been indulged in favor of this defendant, and upon the strength and effect of it, at least sixty dollars more was allowed to her by way of additional costs, than was permitted by subdivision 2 of section 3253 of the Code of Civil Procedure. This allowance should be reduced to the sum of twenty dollars, and with that modification the judgment should be affirmed, without costs to either party.

Davis, P. J., and Brady, J., concurred.

Judgment modified as directed in opinion, and affirmed as modified, without costs.


author: Churchill, J".:

text:
    WILLIAM E. THORN, Appellant and Respondent, v. HARRIET H. GARNER and FRANCES M. ISELIN, Respondents and Appellants.

      Interest — when allowed on a legacy to a son of the testator, from the time of the latter’s death — an executor will he compelled to pay compound interest only in cases of gross delinquency.

    Thomas Garner, Sr., died October 16, 1867, leaving two sons, Thomas and William T., and three daughters. By his will he gave to his “son Thomas the sum of one million dollars, to be paid him within eighteen months ” after the testator’s decease. His son AVilliam T. qualified and acted as his sole executor. Thomas, the son, came of age on October 9,1859, was married on June 6,1861, and died on March S3,1869, leaving a widow and a daughter, who are defendants in this action. He left a will, by which he appointed his brother W illiam T. and the plaintiff his executors; both of whom qualified. In 1871 William T., and the plaintiff, as such executors, applied to the surrogate for a final settlement of their accounts, the defendants, the widow and daughter, having notice thereof, but not appearing, except that a special guardian was appointed for the daughter. On April fourth a decree was entered, settling the executor’s accounts, in which the legacy of $1,000,000 was credited as paid at the end of eighteen months from the death of the testator, without interest.

      William T. Garner having died in 1876, the plaintiff brought this action for an accounting for his proceedings subsequent to the settlement in 1871, and to obtain leave to resign and have a successor appointed. A stipulation was made in this action allowing the question as to the right to receive interest upon the $1,000,00(. from the death of the testator to be considered, notwith. standing the accounting of 1871.

      Reid, that as the evidence showed Thomas Garner, Jr., to have been in feeble health, wholly dependent upon his father for the m eans of support of himself, wife and child, and that his father had, from the t ime Thomas became of age, until the time of the father’s death, regularly furnished him the money necessary .for his support, it must be presumed that the testator intended that Thomas’ legacy should draw interest from the time of his death.
    That the plaintiff should be charged with simple interest only on the additional amount found to be due from him at the time of the former accounting, and not with compound interest.
    Appeals by the plaintiff, and by the defendants above named, from parts of a judgment entered on the rejiort of a referee.

      H. A. Nelson, for the plaintiff, appellant and respondent.

      Joseph H. Choate, Duncan Smith and J. JEoarts Tracy, for the defendants, respondents and appellants.
   Churchill, J".:

Thomas Garner, Sr., died October 16, 1867, leaving a large real and personal estate, considerably exceeding $5,000,000 in value, lie left two sons, Thomas Garner, J r., and William T. Garner, and three daughters. He left a will dated April 12, 1866, by which he made provision for each of his children. That for his son, Thomas Garner, Jr., was as follows :

11 Sixth. I give and bequeath to my son Thomas, the sum of $1,000,000, to be paid him within eighteen months after my decease.”

He made his son, William T. Garner, his residuary legatee, thereby giving him a share of the estate considerably exceeding that of any other child. He appointed his two sons, one of his sons-in-law, and the plaintiff in this action, executors. William T. Garner alone qualified and acted as executor of his father’s will. The personal estate proved sufficient to pay all the legacies of the will and debts of the testator, and to leave a considerable sum for the residuary legatee.

Thomas Garner, Jr., came of age October 9, 1859; he was married June 6, 1860; his only child, Frances M. Iselin, one of the defendants, was born July 3, 1861, and he died March 23, 1869, leaving a widow, the defendant, Harriet H. Garner, and their child above named. He left a will dated November 12,1867, appointing as executors and trustees of his estate his brother, William T. Garner, with the plaintiff, both of whom, soon after his death, qualified and entered upon their duties as such.

In the early part of 1871, William T. Garner, with the plaintiff, applied to the Surrogate of New York for a final settlement of their accounts as such executors, of which the defendants, Harriet H. Garner and her daughter, then an infant, had notice. No appearance for the widow or her daughter appears to have been made, except that a special guardian was appointed for the infant. April 4, 1871, a decree was made by the Surrogate, adjudging the balance in the hands of the executors to be $840,861.37, and directing them, after paying commissions and the expenses of the accounting, to hold and invest the same as directed by the will, which was done by them.

The account, as presented and allowed, credited the legacy of $1,000,000 under the will of Thomas Garner, Sr., as having been paid April 15,1869, or at the end of eighteen months from the death of the testator, and included no interest upon the legacy for any part of that period. It included an item of $177,754.03, charged as cash paid by the executors to Garner & Co. for moneys advanced by Garner & Co. to Thomas Garner, Jr., during his life and before the legacy of $1,000,000 was paid.

Garner & Go. was composed of William T. Garner and a nominal partner, who received a salary for his services and had no interest in the property or profits of the firm, and the moneys advanced by Garner & Co. to Thomas Garner, Jr., were in fact paid by William T. Garner, who, as executor of his father’s will at the time when such moneys were paid to Thomas Garner, Jr., and also at the time when said legacy was credited as paid, had in his hands ample funds from which to pay the interest upon said legacy, if Thomas Garner, Jr., was entitled to interest thereon from his father’s death.

William T, Garner died July 20, 1876, and the plaintiff has ever since been sole executor and trustee under the will of Thomas Garner, Jr. This action is brought by the plaintiff to obtain permission to resign those positions, and for the appointment of a new executor and trustee, for an accounting subsequent to that before the surrogate in 1871, and for his discharge from further responsibility or accountability for the estate of Thomas Garner, Jr.

A previous action by the defendants, Harriet H. Garner and her daughter, against the plaintiff was brought soon after the death of William T. Garner, asking, with other relief, for the removal of the plaintiff as trustee and the appointment of a new trustee, for an accounting, and particularly that he be required to pay and make good the said sum of $177,754.03, as having been improperly allowed upon the accounting before the surrogate.

That action was discontinued upon a stipulation providing that a proceeding should be commenced by the plaintiff to obtain the results sought in this action, and that upon the accounting to be had in that proceeding the decree made by the surrogate, above referred to, should be final, conclusive and binding upon the parties, except as to certain items, the adjustment of which was agreed upon in the stipulation, and also except as to “ certain moneys, amounting in the aggregate to one hundred and seventy-seven thousand seven hundred and fifty-four dollars and three cents, which were paid by Garner & Oo. on drafts of Thomas Garner, Jr., deceased, and for his account between the death of Thomas Garner, Sr., and the death of Thomas Garner, Jr., the question being not as to the fact that the money was paid to and for the account of Thomas Garner, Jr., but as to whether such payments are properly chargeable against the legacy left by the said Thomas Garner, Sr., to the said Thomas Garner, Jr.” This action is not the proceeding contemplated when the stipulation was made, but is in the same direction, and the stipulation is conceded on both sides to be binding upon the parties to it in the' accounting had in this action.

This action was referred, and the referee by his report has found that Thomas Garner, Jr., was entitled to interest upon his legacy from his father’s death, and that the payments of cash in the item of $177,754.03 should be treated as made by William T. Garner on account of that interest, to the extent of it, and the excess only treated as a payment on the principal of the legacy, and he has readjusted the account to conform to those findings. By such readjustment he finds the sum of $109,860.54 to have been on deposit with Garner & Co., in the hands or under the control of the executors of Thomas Garner, Jr., and uninvested on the 31st day of January, 1871, beyond the amount accounted for in the accounting before the surrogate, and he allows simple interest upon that amount from that date.

The plaintiff insists that interest was improperly allowed by the referee upon the legacy of $1,000,000, from the death of Thomas Garner, Sr., and also that certain sums paid to "William 3L Thorne as attorney for the executors of Thomas Garner, Jr., were allowed only in part.

The defendants, Harriet H. Garner and Frances M. Iselin, insist that compound and not simple interest should have been allowed upon the sum of $109,860.54, above mentioned.

These are the principal questions raised by the appeals, and the only ones necessary to be considered.

Ordinarily, a legacy is not payable until the time fixed by the will for its payment; or, if no time be fixed, until the period fixed by the statute has expired ; and until payable it draws no interest.

To this general rule there are several exceptions, the most important of which is the case of' a legacy left by a parent to a child, for whose maintenance no other provision is made, and who, unless interest be allowed, is without income intermediate the death of the testator and the legacy becoming due. In such case the legacy ‘draws interest from the death of the testator. (Green v. Belcher, 1 Atk., 505 ; Heath v. Perry, 3 id., 101; Hearle v. Greenbank, 3 id., 695, 716; King v. Talbot, 40 N. Y., 76; Brown v. Knapp, 79 id., 136; Redfield’s Surrogate Courts, 601.)

The rule is thus stated by Lord Hardwieke (1 Atk., 507, A. D. 1737): “ It being a constant rule in equity, that whenever a legacy is given by a father to a child, as a provision for such a child, though the legacy be payable at a future day, yet the child has an immediate right to the interest of the money.”

And again (3 Atk., 102): How far a legatee, who is not entitled to the payment of his legacy immediately, shall have interest in the meantime, depends upon particular circumstances. * * * But all these cases are subject to this exception if it is in the case of a child; for then, let a testator, give it how he will, either at twenty-one or at marriage, or payable at twenty-one, or payable at marriage, and the child has no other provision, the court will give interest by way of maintenance, for they will not presume the father inofficious or so unnatural as to leave a child destitute.” And this was a rule coming down from a much earlier period. (In re George, 22 (Moak’s) Eng. Rep., 507, 510.)

This rule is recognized and made to include one not a child, but to whom the testator stood in loco parenPisi, in Brown v. Knapp (supra), where it is said (p. 142): This rule is based upon the presumption that the testator, in such case, must have intended that the legatee should, in the meantime, be maintained at his expense, thus discharging his moral obligation, or carrying out his benevolent design. It is not needed for the application of this rule that the testator must have been under a legal obligation, at the time of his death, to support the legatee. Such obligation of a testator to support his own child continues only during his life. * * * The duty of a testator, in this case, to provide for and support this infant grandchild, was almost, if not quite, as strong as that of supporting his own children, and it must be presumed that he meant to discharge that duty. * * * This legacy, therefore, carried interest from the death of the testator.”

It is said that the rule is limited to legacies to infants. Most of the cases in which the question has arisen have been those of legacies to infants, and the language used in stating the rule has frequently been limited accordingly. But the moral obligation of a parent to make provision for the support of a dependent child includes adult as well as infant children, and is certainly as great in the case of such adult child as in that of one not a child, but to whom the testator has assumed the place of a parent. This moral or natural obligation is frequently referred to as the foundation of this rule, and upon it rests the provisions of the Revised Statutes, which makes the parent liable for the support of an indigent child, whether adult or infant. (In re Rouse's Estate, 9 Hare, 649, 653; Brinkerhoof v. Merselis. 24 N. J. [Law], 680; 1 R. S., 614, § 1; 2 Kent’s Com., 190.) A legacy given to an infant child by a will which makes other provision for its support, is held not to come within the rule, showing that the presumption of the intention of the testator upon which the rule rests, depends upon the fact that the child is dependent and not otherwise provided for, and not nnon the fact of infancy.

The case of Bradner v. Faulkner (12 N. Y., 472), is cited as settling this question favorably to the plaintiff. In that case, the testator gave to one of his two daughters (both adult and married) a farm valued at $15,060 and a legacy of $16,000; to the other, a farm valued at $31,060. The will declared it to be the intent of the testator to give his daughters equal advantages in the disposition of his property. The surrogate allowed interest upon the legacy from the father’s death. This was affirmed at General Term, but reversed by the Court .of Appeals. The latter court said that the predominant intention of the testator was to give equality of benefit to his daughters, and, considering the various provisions of the will in the light of that intent, held interest upon the legacy to have been improperly allowed. That the interest was necessary to the maintenance of the legatee was not claimed. Indeed, the contrary appeared, since she had a husband, presumably able to maintain her; and, also, the will gave her a valuable farm, to the possession of which she would be entitled immediately upon her father’s death. The question involved here is not hinted at in the opinion of the court.

In this case the evidence showed Thomas Garner, Jr., to have been in feeble health; that he was wholly dependent upon his father for the means of support of himself, wife and child; that he had no other source of income ; and that from the time he became of age until his father’s death, his father had regularly each year furnished him the money necessary for his support. The amount so furnished in 1864 was $3,012,91; in 1865, $8,088.35 ; in 1866, $9,336.48 ; and in 1867 to October 16, the date of his father’s death, $10,526.48. From the regular increase of these annual amounts the father must have understood, at the time of making his will and at the time of his death, that his son was dependent upon him, and that that dependence was not diminishing. The legacy was a provision for his son’s maintenance. Unless interest be allowed, the son was without income intermediate the death of the testator and the payment of the legacy. The case furnishes the strongest ground for presuming the testator to-have intended that his son’s legacy should draw interest from his death, and the judgment in that respect should be affirmed. It is claimed for the plaintiff that the surrogate’s decree on the accounting of the executors of Thomas Garner, Jr,, made April 4, 1871, prevents the recovery by the defendants of interest on the legacy from the death of the testator. The stipulation made by the plaintiff with the defendants, in consideration of which they discontinued the action commenced by them in the Superior Court, furnishes an answer to this claim.

Had the question raised here been raised before the surrogate, and interest on the legacy of $1,000,000 been allowed by him from the death of the testator, the payments of cash included in the item of $177,754.03 would undoubtedly have been held first to apply in payment of that interest, and to that extent to have been extinguished, and the remainder only to apply in payment of the principal of the legacy, and the same result would have been arrived at as to the balance due at the time of that accounting as has been arrived at by the referee in this action. But the stipulation waá obviously intended and understood by the parties as giving to the defendants the right to raise every question as to the allowance of that item or any part of it (except the fact of payment), which might have been raised on the hearing before the surrogate, and it was so treated on the trial of this case. Besides, the interest upon this legacy, if legally allowable, must, under the facts of this case, be regarded as assets in the hands or under the control of the executors of Thomas Garner, Jr., at the time- of rendering their account in 1871, and not having been |included in that account the decree is not conclusive against the claim now made by the defendants. (Brown v. Brown, 53 Barb., 217; President, etc., Bank of Poughkeepsie v. Hasbrouck, 6 N. Y., 216, 221; Wurts v. Jenkins, 11 Barb., 546.)

The plaintiff complains that part of the sums paid William K. Thorne for legal services, and charged to the estate of Thomas Garner, Jr., were disallowed by the referee. The charges were for services in keeping down taxation on the Garner estate. The whole amount of taxes on personal property paid for that estate, as well as these charges for legal services, were charged against the estate of Thomas Garner, Jr., and his sister Anna James Garner, who was also left a legacy of $1,000,000 by her father’s will. Upon the trial of this action it was stipulated by the parties that but one-fourth of the taxes so paid should be allowed against the estate of Thomas Garner, Jr., and the referee has adopted the same rule as to the sums paid for the legal services of William K. Thorne. This, upon the evidence, is quite as favorable to the plaintiff as he had a right to expect.

As to the claim of the defendants, Harriet H. Garner and Frances M. Iselin, that the plaintiff should have been charged with compound interest upon the sum of $109,860.51, with which the executors of Thomas Garner, Jr., were held to be chargeable, and which had remained uninvested from January, 1871, the referee was justified in rejecting it. Compound interest is allowed in cases of gross delinquency, or as a penalty for negligence or wrong-doing, or for some clear violation of a trust. For mere neglect to invest, simple interest is generally imposed. (Clarkson v. De Peyster, Hopk., 424, 427; Hannahs v. Hannahs, 68 N. Y., 610; Utica Ins. Co. v. Lynch, 11 Paige, 520; Barney v. Saunders, 16 How. [U. S. Rep.], 535, 512.)

In this case there is no evidence to show that the executors of Thomas Garner, Jr., supposed themselves chargeable with interest on this legacy until the question was raised in this action, or that they did not believe, in good faith, that they had invested for the benefit of their cestuis que trust, as directed by the surrogate, the whole trust fund, with the care of which they were charged. There is no uniform rule of redress in cases of this kind, but each calls for the exercise of the judicial discretion of the court, and in this case that judicial discretion was jiroperly exercised.

The judgment should be, in all respects, affirmed, without costs of the appeal to either party.

Daniels and Barrett, JJ., concurred.

Judgment affirmed, without costs.


text:
    In the Matter of the Probate of the Last Will, etc., of WINIFRED AUSTIN, Deceased.

      Evidence — admissibility of the testimony of counsel as to communications had with a deceased person whose will he drew — Code of Oivil Procedure, secs. 835, 836.
    Upon a hearing in a Surrogate’s Court of an application for the probate of a ■ will, which was resisted on the ground of undue influence, the counsel of the testatrix, by whom the will and codicils were prepared under her direction, and who superintended, as such counsel, their execution and publication, was called as a witness to show what transpired between the testatrix and himself, when he was called upon to prepare the will and codicils, in the process of their preparation and publication.

      Held, that an objection to his testimony, as inadmissible under sections 835 and 836 of the Code of Civil Procedure, was properly overruled as without merit. That if this were not so it should not defeat the probate of the will in this case, because, even if the testimony of the counsel, so far as objected to, were eliminated from the ease, there would still be evidence remaining which would not justify a finding that the will and codicils were made by the decedent under what the law recognizes to be undue influence.
    Appeal from tbe decree of the Surrogate’s Court, admitting to probate the will and three codicils thereto of Winifred Austin.

      W. S. Logan and George Bliss, for tlie appellants.

      Henry S. Sprague and Theodore W. Dwight, for the respondent.

      Jmnes J. Thompson, guardian ad litem, for defendants.
   Davis, P. J.:

Tbe decree of tbe surrogate admits to probate the will of the decedent and three codicils thereto. Mrs. Austin, the testatrix, was the widow of William Anstinj and by tbe will of lier husband she was the devisee and legatee in trust -of all his property, real and personal, for her own use during her life, with power by her last will and testament to appoint and divide tbe same amongst tbeir four sons and Jane Oakes, their daughter, and the children of a deceased son, in such shares and proportions as she might direct. The wills and codicils in controversy dispose of the corpus of the trust amongst the children and grandchildren, and also the property of the testatrix derived and saved from the income of the trust in her favor, etc. The due and proper publication of the will and codicils by Mrs. Austin was fully established, and no evidence was given on the part of tlie contestants controverting her testamentary capacity. It was, however, asserted, and is still insisted on their part, that her will and codicil were induced by and resulted from undue influence exerted and used over her by her daughter, Mrs. Oakes, and the children of Mrs. Oakes, who are the chief objects of her bounty under such will and codicils. Upon this question the contestants held the affirmative. It was for them to show, by satisfactory evidence, that the will and codicils were so far the result of undue influence that, in judgment of law, they are to be regarded not as the will and codicils of Mrs. Austin, but of the persons who had wrongfully subdued and controlled her mind and its volition to their own purposes and objects. It does appear, on the face of those instruments, that Mrs. Oakes and her family receive a large and apparently excessive share of the property of which they make disposition; but that is by no means enough to affect the validity of the gifts. The will stands for the reason; and courts cannot, out of their real or supposed superior testamentary capacity, undertake to rectify or disturb any apparent or fancied inequalities or injustice. The intention of the testatrix controls as expressed by the will until it can be shown that what is expressed was not her intention, but the unlawful design and intention of another. The learned surrogate has examined this question in an opinion of great clearness and force, and has reached the conclusion that the contestants have not within the established rule governing such cases, shown that the will and codicil, or either of them, are the result of the alleged undue influence. He had the opportunity to see the witnesses and their demeanor on the stand, and hear their testimony and observe their manner in giving it, as well as the degree of intelligence and the animus with which it was given. With those advantages he reached the same conclusion to which the printed record of their testimony as sent up to us leads our minds; and under such circumstances our duty is properly performed by affirming his conclusions upon the opinion pronounced by him, and for the reasons he assigns.

There is but a single question of law presented by the return which, in our judgment, requires any comment.

It is enacted by section 835 of the Code of Civil Procedure that “ an attorney or counselor-at-law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment; ” and section 836 declares that “ the last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by the person confessing, the patient or the client.”

There is no doubt, says the learned judge who delivered the opinion in Westover v. The Ætna Insurance Company (99 N. Y., 56), that “ whenever the evidence comes within the purview of the statutes it is absolutely prohibited and may be objected to by any one, unless it be waived by the person for whose benefit and protection the statutes were enacted.”

Mr. Underhill, the counsel of Mrs. Austin, by whom the will and codicils were prepared under her direction, and who superintended, as such counsel, their execution and publication, was called as a witness to show what transpired between the testatrix and himself when he was called upon to prepare the will and codicils, and in the process of their preparation and publication. His testimony was objected to as prohibited by the section of the Code above quoted. The objection was overruled and the testimony was taken by the surrogate. It is contended- by the appellants that the evidence of the attorney and counsel, so far as it was objected to, was “ within the purview of the statutes as construed by the court of last resort.”

The object of the new section was chiefly to declare the effect of a waiver of the statutory rule and by whom such waiver might be made. Section 835 of the Code was not intended to do more than classify, by codification, the well-known rule of the common law. (See 1 Throop Code, notes to sec. 835 ; Hebbard v. Haughian, 70 N. Y., 54 ; Armstrong v. The People, 70 id., 38.)

Communications by a testator to an attorney, or solicitor, or employee, to prepare a will, with reference to the will and its trusts, are not privileged. This has been settled in many cases. (Russell v. Jackson, 15 Jur., 1117; Nourse v. Fisk, 1 Ves., 342; Duke of Bedford v. The Marquess of Abercorn, 1 Myl. and Cr., 312; Blackburn v. Crawfords, 3 Wall. [U. S. Rep.], 199.)

It will be unfortunate for testators if the communications they make to counsel, for the purpose of enabling the latter to draft their wills, are held to be so far within the provisions of the Code now under consideration, as to prevent their use on behalf of the executors to sustain their wills. The object of the privilege is to make sacred that class of communications made by clients to attorneys or counsel for the purpose of enabling them to give advice, with full and correct knowledge relating to the transactions upon which such advice is sought in suits and actions civil and criminal, a disclosure of which might be prejudicial to the client or his interests.

If the construction of the statute claimed by the contestants were allowed, it is not perceived how any will could be proved by the attorney who drew it and supervised its publication, for he could not open his mouth as a witness without disclosing something in the nature of a communication made to him by his client. The Code does not place such a weapon for the defeat of wills in the hands of any one seeking to overthrow a will propounded for probate which presumably it was the intention of the testator should be sustained by the testimony of his counsel and adviser who prepared it.

We think there is no merit in the objection ; but if it were well taken, it should not defeat the probate of the will in this case, because the testimony of the counsel, so far as objected to, may be eliminated from the case, and still the evidence remaining would not justify a finding that the will and codicils were made by the decedent under what the law recognizes to be undue influence.

The decree should be affirmed, but, under all the circumstances, without costs of the appeal.

Brady and Daniels, JIT., concurred.

Order affirmed, without costs.


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    EDWARD C. PERKINS, as General Guardian of the Estate of EMILY L. MIDDLETON, an Infant, Plaintiff, v. JOHN STIMMEL and JAMES McCREARY, Defendants.

      Action against sureties upon a general guardian’s bond — as to whether it should be brought in the name of the infant or of the gua/rdian — when an action will lie against the sureties on the bond before an accounting has been had by the guardian.

    This action was brought by the plaintiff, as general guardian of the estate of an infant, against the sureties, upon a bond given by a former guardian of the same infant, upon his appointment by the Surrogate’s Court. Upon the trial the defendants objected to the maintenance of the action by the plaintiff, upon the ground that it should have been brought in the name of the infant, by the plaintiff as her guardian.

      Held, that in view of the conflict of authority, as to the right of the plaintiff to maintain the action as general guardian of the infant, the court would hold that the suit was properly brought, but would allow the plaintiff, if he so elected, to change the title so as to make the action one by the infant, by the plaintiff as his general guardian.
    The guardian, who was the principal in the bond, died on October 23, 1884, intestate, the public administrator of the city of New York being appointed to administer upon his estate. He found no assets, except six dollars and forty cents and an old desk containing a quantity of stationery and papers, and none of the assets belonging to the infant. On January 3,1884, the guardian had filed his sworn account with the surrogate, showing $12,137.40 to be then in his hands; and it was proved that, in September, 1884, he converted twenty-five shares of the Mercantile Trust Company stock, valued in his inventory at $3,500, by transferring it from himself, as guardian, to himself as an individual, and thereafter selling it.

      Held, that an objection that the action would not lie against the defendants, as sureties, without an accounting before the surrogate was properly overruled.
    That, although an accounting is one of the conditions of the bond, for a breach of which the sureties are liable, yet it is not the only condition, the primary condition being that the guardian “will, in all things, faithfully discharge the trust reposed in him,” the breach of which condition, in this case, justified the bringing of the action.
    That, while the courts will require an accounting by the guardian, when that will be necessary or availing to establish the extent of the sureties’ liabilities, and when it is practicable to have one, yet, where it is a proceeding of no use or advantage to the sureties, and can only result in subjecting them to the burden of a double litigation, it will not be required.
    Motion for a new trial on exceptions directed to be heard at the General Term in the first instance, after a verdict had been directed in favor of the plaintiff.

      R. H. Davis and E. P.' Wilder, for the defendants.

      John G. Gray, for the plaintiff.
   Davis, P. J.:

This case bristles with objections and exceptions bnt they are mostly of a technical and unimportant character and need only the most cursory notice. The action is upon a bond given by a guardian upon his appointment by the Surrogate’s Court, and many of the exceptions relate to its form and to the manner in which it was drawn, and its penalty inserted and its date omitted, etc., on and before the filing of it in the Surrogate’s Court. The omission of the date is of no importance. The time of delivery determines the date, and the delivery and filing of such a bond in the Surrogate’s Court controls the question of date where it is not inserted, and also where it is, when the question of date becomes important. A clerk of the Surrogate’s Court filled out the bond, and, in doing so, inserted the penalty at double the valuation of the infant’s property as stated in the petition. It is insisted for this reason, that the surrogate did not “fix the amount of the bond,” as required by the statute. This objection is a non sequilar. It does not follow because the scrivener filled in the penalty in the blank, that the surrogate did not fix it. The bond was afterwards duly filed, and upon it and the other proceedings in the case, the surrogate in due form ordered and issued the letters of guardianship, in which he recites that “such guardian has duly executed and delivered a bond pursuant to law for the faithful discharge of his duty, and- we being satisfied of the sufficiency of such bond,” etc., do constitute and appoint him such guardian. This sufficiently answers all objections to the bond, so far as they relate to its execution, filing and penalty. Nearly or quite all the other objections touching the bond itself, and the proceedings preliminary to the letters, may be answered in the same way.

There are two questions raised by the exceptions more serious in their nature. The first is whether the suit upon the bond should have been brought in the name of the infant by the plaintiff as her guardian instead of by the plaintiff as guardian of the estate of the infant. There is no doubt, under the authorities, that the action might properly have been brought in the name of the infant by her guardian. (Code, §§ 449, 468, 469, 470; Segelken v. Meyer, 94 N. Y., 47; Buerman v. N. Y. Produce Exchange, Daily Reg., 1886, p. 785; Bradley v. Amsdon, 10 Paige, 235.)

Probably that would have been the better practice. But there are authorities which, allow the suit in its present form on such a bond. (Thomas v. Bennett, 56 Barb., 197; Hauenstein v. Kull, 59 How. Pr., 24; Coakley v. Mahar, 36 Hun, 157.) The question has no substantial merit. The cause of action is precisely the same in either case, and the object and result are the same if a recovery be had. The guardian in fact recovers as such in either action, and takes the property as guardian, and is bound to account to the infant for the judgment and its proceeds. The question could have been raised at the beginning of the suit by demurrer as well as at the end of a trial. When raised at the trial it ought not to be fatal. Every element is present by which the formal change can be made by amendment if necessary, and the interests of justice demand it. Nobody has been misled to his prejudice, and no good reason exists why the amendment should not be ordered even now if the plaintifE elects to make it. In such a case as this, although the bond is in form to the infant, it becomes on default an asset of her estate, which her guardian is entitled to possess and control, sue for and recover, and is bound eventually to account for. On recovery as has already been said he takes the proceeds as his in his relation as. guardian, and is entitled to keep and defend possession, and to invest and conti’ol and finally account for the same. There is no sound reason why he may not sue in his capacity of guardian the question being precisely the same and the result the same as when he sues in the infant’s name by himself as guardian. In the conflict of authority, we shall hold the suit properly brought as it is, but with leave however if plaintifE elect to do so, to change the title by a transposition of names, which seems to be all that is necessary.

The other, and still more difficult question is, whether an action will lie on the bond against these defendants, who werp sureties, without an accounting before the surrogate. The guardian, who was the principal in the bond, is dead. He died intestate, and the public, administrator of the city of New York was appointed to administer upon his estate. He was able to find nothing but six dollars and forty-one cents and an old desk containing a quantity of stationery and papers. He found none of the assets belonging to the infant. To have called the public administrator to an account would have been an idle expense, and there was no one else to account. The guardian died about the 23d of October, 1884, as the pleadings admit. He filed his sworn account with the surrogate January 3, 1884, showing $12,137.40 then in his hands. It was proved that, in September, 1884, he converted twenty-five shares of the Mercantile Trust Company, valued in his inventory at $3,500, by transferring them from himself, as guardian, to himself as an individual, and selling them afterwards. To require an accounting under such circumsl^inces would be a futile and idle ceremony, a vain thing, and vain things are condemned by legal maxims. Yet, if the language of the bond demands it, the law must respect the demand. An accounting is one of the conditions of the bond, for a breach of which the sureties are liable; but it is not the only condition; the primary condition is that the guardian “will in all things faithfully discharge the trust reposed in him.” This condition was broken in this ease, and so broken that the performance of the other conditions are rendered nugatory by the misconduct of the guardian. Whore such a state of things clearly appears, to require the infant to demand and compel a legal accounting before the surrogate or some other court, which, it plainly appears, will result in no benefit to her or to the sureties, seems not merely unnecessary but unreasonable and unjust. The conditions of the bond are divisible, and unless all must be broken before the sureties can be sued, then it is enough that the primary one is broken in such form as to show that the others are of no value. In Girvin v. Hickman (21 Hun, 316), in a somewhat similar case, it was held that an accounting before suit brought on the bond was not necessary, and the court, after reviewing the cases, said : “ It is obvious, from the cases, that an accounting by the guardian is not always a prerequisite to an action against the sureties upon the bond, and there are many special circumstances in which it may be dispensed with. * * * But, if the case is

such that the extent of the guardian’s liability appears without an' accounting, why should an accounting be required before suit against the sureties ?”

And Chancellor Walworth, in Cuddebach v. Kent (5 Paige, 98), said: “ The prosecution of a suit against him alone, in the first instance, would, therefore, be worse than useless as respects the sureties, and would subject them to the expense of a double litigation.”

The upshot of the authorities seems to be that the court will require an accounting by the guardian where that will be necessary or availing to establish the extent of the sureties liability, and is practicable to be had; but where it is a proceeding of no use or advantage to the sureties, and can only result in subjecting them to the burden of a double litigation, it will not be required. This is equivalent to hdlding that the conditions of the bond are independent and divisible, and may be so treated in the class of cases referred to.

We think, therefore, as there seems to be no substantial reason why the amount of the verdict is not correct, judgment should be ordered for the plaintiff on the verdict.

JBjradt and Daniels, J"J., concurred.

Judgment ordered for plaintiff on verdict.


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    THOMAS J. MADGE, Appellant, v. JOSEPH A. MADGE, Respondent.
    vidence— admissibility of the confession of a defendant in an action for adultery — a decree will be granted when all just reason to believe that collusion exists is removed.

    In actions for divorce on the ground of adultery, the confessions of the defendant are always admissible in evidence, but to avoid the danger of collusion, the court, before granting the decree, will require such corroboration of the confessions as to remove all just suspicion of collusion. When that is satisfactorily done the confessions become a sufficient basis for a judgment for divorce.
    In this case, in which the Special Term denied a motion for a decree of divorce, on the ground that the confessions of the defendant were not sufficiently corroborated, the General Term, after considering the evidence, reversed the order of the Special Term, holding that there was undoubted proof that the confessions were made; that they were clear and distinct; that they were sincere and not collusive, and that they were corroborated by the correspondence by letter of the guilty parties.

      Appeal from an order of the Special Term denying a motion to confirm the report of a referee and for an order for judgment thereon, for the plaintiff, in an action for divorce.

      Olm, Hives & Montgomery, for the appellants.
   Davis, P. J.:

The summons and complaint in this case were duly served on the defendant, under an order of publication, in the Island of Cuba, where she has resided for several years. The complaint charges adultery committed by the defendant with one Dr. Francesco Magdalena, at Baracoa, in the Island of Cuba, while she was on a visit to that Island in June, 1881. The parties were then residents of this State residing in Brooklyn, where the plaintiff carried on business. They were married at Baracoa in June, 1879, where the defendant’s parents then lived and still live.

After the return of the defendant from her visit to Baracoa, the plaintiff intercepted letters addressed to her from Baracoa, which aroused suspicions of his wife’s unfaithfulness. Several letters of that character came into his possession before he charged her with her misconduct. She then confessed her guilt, and the plaintiff ceased to cohabit with her. She afterwards wrote to him a full confession of her guilt, stating the same in detail, and acknowledging his right to a divorce, but throwing herself upon his mercy. The plaintiff refused to condone or pardon her crime, and shortly afterwards she returned to her parents in Cuba, the plaintiff remaining and still residing in Brooklyn. When this action was commenced, the papers for service therein were delivered to one George W. Way man, captain of the steamer Saxon, a vessel plying between New York and Cuba, who was personally well acquainted with the defendant. To him were also given the written confession of defendant, and the various letters that had passed between the defendant and Dr. Magdalena. Captain Wyman visited the defendant at the residence of her parents in Baracoa and served the papers in the action; and in a long interview with her, in the presence of her friends, exhibited to her the various letters and other matters as 'well as her written confession. She acknowledged to him their authenticity, and stated that her confession was true and further in substance, that she was willing to make every atonement to her husband in her power, and to aid him in procuring a divorce to which he was entitled. She also made and gave to Captain Wyman an additional written confession acknowledging her guilt as stated in her former confession. There were several other circumstances proved tending to show the correspondence of the guilty parties and its criminal nature. Tlie plaintiff was fully examined, and denied all collusion between himself and his wife, and gave proof of such other facts as may under the rules be proved by the testimony of a plaintiff in such an action. The Special Term denied the decree of divorce on the ground that the confessions of the defendant wei*e not sufficiently corroborated. In this determination we think the learned justice erred. The confessions of the defendant in subh an action are always admissible in evidence, but to avoid the danger of collusion the court before granting the decree, will require such corroboration of the confessions as to remove all just suspicion of collusion. When that is satisfactorily given, the confessions become a sufficient basis for a judgment ot divorce. In this case the competency of the confessions is undoubted. The circumstances under which they were made tended strongly to remove all suspicion of collusion. The plaintiff had already separated himself from his wife on suspicion of her infidelity caused by the letters he had intercepted. Those letters aroused just suspicion. He had presented them to her and she acknowledged them as letters addressed to her by her paramour; and afterwards she voluntarily wrote and sent to him a confession in detail of her guilt. Her conduct was manifestly governed by a deep sense of contrition for her offense, and a hope that her husband might pardon and restore her to his confidence.

Long after her return to her parents in Cuba, on being served with the papers commencing the action, she repeated her confession and acknowledged the genuineness of the correspondence between herself and Dr. Magdalena. The correspondence itself was abundantly corroboratory of her confession. It is impossible to read it without being satisfied that the relations of the writers had been too intimate to admit belief of innocence. The genuineness of some of the letters was sufficiently proved also, by the fact that they were intercepted after their arrival and before delivery to her, and that they bore the foreign postage stamp marks indicating whence they had been sent. These facts coupled with her admission that they were written by Dr. Magdalena were sufficient to admit them in evidence against her. Her own letters were not only acknowledged by her as genuine, but her handwriting was distinctly proved by a witness familiar with it. The letters being thus admissible, their contents became evidence highly corroboratory of the truth of her confessions.

The rule in such case is well stated by Gibson, O. J., in Matchin v. Matchin (6 Penn., 332), in these words: It is a rule of policy however not to found a sentence of divorce on confession alone. Tet, where it is full, confidential, reluctant, free from suspicion of collusion, and corroborated by circumstances, it is ranked with the safest proofs.”

There are a number of cases in the books in which confessions have been taken as sufficient evidence, “ where,” as said by Bishop (vol. 2, § 248), the circumstances are such as to repel all suspicion of collusion, and leave in the hands of the court no doubt of the truth of the confessions.”

In Billings v. Billings (11 Pick., 461) there was no other evidence but a letter written by the husband who had been living for fourteen years in another State to his wife, which stated that he had lived with another woman, by whom he had children, but expressing penitence and a desire to be reconciled to his wife. The court held that the circumstances repelled collusion, and granted the decree on the confession of the letter alone.

In Tucker v. Tucker (11 Jurist [Eng.], 893), the confession of the wife was confirmed by letters received by her from her paramour, and by declarations made by her at a subsequent period. Dr. Lushington held the proof of guilt sufficient and granted the decree. Williams v. Williams (Law Pep. [1 P. and D.], 29), Le Marchant v. Le Marchant (45 Law Jour. [P. and D.], 43), are strong cases showing under what circumstances admissions or confessions in writing may be sufficient.

There is in the case before us undoubted proof that the confessions were made, that they were clear and distinct, and that they were sincere and not collusive, and they are corroborated by the correspondence by letters of the guilty parties. We think the court should have confirmed the report of the referee, and granted judgment for the plaintifE.

Tbe order must, therefore, be reversed, and judgment of divorce awarded.

Brady and Daniels, JJ., concurred.

Order reversed, and judgment of divorce awarded.