author: Brown, J.:

text:
    GERTRUDE B. MURRAY, Appellant, v. THE NEW YORK LIFE INSURANCE COMPANY, Respondent.

      PoMcy of Ufe insurance — condition avoiding it in case the assured dies in consequence of a violation of law — construction of such a provision — submission of specific questions to the jury — when a generral verdict is good although the jury a/t'e unable to a/nswerr the specific questions so submitted.

    In an action upon a policy of life insurance it appeared that the assured and his brother made a violent and unlawful attack' upon one Berdell in a railroad-depot. The brother held Berdell from behind while the assured beat him on the head and face with a raw-hide, inflicting deep and painful wounds from which the blood flowed freely. In the struggle Berdell drew a pistol from his pocket. At about the same instant the assured ceased to sti ike him, jumped over a lunch counter and attempted to pass through a doorway which lead out of the depot. As he did so he turned his face towards Berdell and at the same instant the pistol was discharged, the ball striking the assured in the forehead and inflicting a wound from which he died in a few days. The fight from its commencement to the shooting lasted about thirty seconds. Upon the trial of this action Berdell testified that he did not intentionally shoot the assured; that in the struggle his hand was drawn towards his pistol pocket; that he drew the weapon without the intention of shooting anyone, and that it was discharged accidentally.
    The defense was that the policy was avoided by a breach of a condition contained therein providing that if the assured “ should die in or in consequence of the violation of the laws of any nation, State or province, then, and in any such case,” the policy should be null and void.

      Held, that a jury might, from the circumstances of the case, find that the shoot,ing was a natural consequence of the assured’s unlawful assault, and that a verdict finding that to be the fact would not be disturbed by an appellate court. ,
    That it was immaterial whether the death was caused accidentally or was the result of an intention to kill on the part of the one inflicting the wound. So long as there was a violation of the law on the part of the assured, and death as its result, it was immaterial in what manner the death was produced, excepting that there must be a direct connection between the criminal act and the death.
    The judge, in the course of his charge, said that it was not necessary for the jury to-find that the assured lost his life “ under such circumstances as would protect the party taking it'under the law, that is, in self-defense,” and “that if they found that Berdell discharged the pistol in the heat of passion,, naturally excited by the combined attack made upon him by the Murrays, the plaintifi cannot recover.”

      Held, no error.
    In submitting the case to the jury the judge requested them to find specifically whether Berdell fired the fatal shot intentionally; whether he was justified in firing for his self-defense, and whether Murray had abandoned the combat when he was shot. The jury found a general verdict for the defendant and stated they were unable to answer the questions.

      Held, that it was not essential that the jury should agree on any of these questions in order to arrive at a verdict for the defendant, and that the general verdict was regular.

      Ebersole v. Nmihern Central Baib'oad (23 Hun, 114) distinguished.
    Appeal from a judgment in favor of tbe defendant, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      8. W. Fullerton, for the appellant.

      Joseph H. Ohoate, for the respondent.
   Brown, J.:

This action was brought by the plaintiff upon two policies of insurance, issued by the defendant upon the life of Wisner Murray, the plaintiff’s husband. Each policy contained a condition that if the assured should die in, or in consequence of the violation1 of the laws of any nation, State or province, then, and in any such case,” the policy should be null and void.

On the 13th day of July, 1876, the assured and his brother A. S. Murray, Jr., made a violent and unlawful assault upon Robert- BT. Berdell, in the depot of the Erie Railway Company at Ooshen, N. Y. A. S. Murray, Jr., held Berdell from behind, while the assured beat him on the head and face with a raw-hide, inflicting deep and painful wounds from which the blood flowed freely.

In the struggle Berdell drew a pistol from his pocket. At about the same instant the assured ceased to strike Berdell and retreated towards a lunch counter, over which he jumped, and attempted to pass through a doorway leading out of the depot. As he did so, he turned his face towards Berdell and at the same instant the pistol was discharged, the ball striking Murray in the forehead, inflicting a wound of which he died several days thereafter. There was evidence that at the time he turned and faced Berdell, Murray had a pistol in his hand which he pointed towards Berdell; it was found by his side where he fell. The fight, from its commencement to the shooting of Murray, lasted about thirty seconds. Upon the trial Berdell testified in substance that he did not shoot Murray intentionally; that in the struggle his hand was drawn towards his pistol pocket, that he drew the weapon without the intention of shooting anyone; and that it was discharged accidentally during the struggle. It is conceded that Murray’s assault upon Berdell was such a violation of law as to bring it within the terms of the policy, and that if his death was the natural consequence of such violation of the law that the company is relieved from its contract, but the point is now made by the appellant, that as Berdell’s testimony of the accidental discharge of the' pistol was uncontradicted, that the shooting of Murray cannot be said to have been the natural consequence of the assault, and, therefore, does not fall within the condition of the policies.- In other words, that upon this etidence it cannot be said that the assured, who accidentally received a wound which caused his death, died in or in consequence of a violation of the law.

I cannot assent to this proposition. It assumes that the condition is to be read as if it provided against the killing of the assured by some means intended to take his life. The condition is that if he should die while engaged in the violation of the law, or in consequence of such violation, the policy should -be void. So that, if while engaged in the perpetration of a criminal act he should, as a direct result of such act, lose his life, the policy would be clearly void, and it would be immaterial whether the death was caused accidentally or as a result of an intention to kill on the part of the one inflicting the wound. If Berdell had thrown Murray upon the ground, and in so doing his head had struck against some substance which inflicted a wound causing death; or if while engaged in a personal struggle with Berdell, and as a result of that struggle the pistol had been accidentally discharged in Berdell’s pocket and Murray had been killed, or if Berdell had thrown Murray from him upon the ground and he had fallen under the wheels of the cars and been killed, I think in either event the policy would have been void as the assumed would, in such cases, have died while engaged in the violation of law; that is, that the assault which he had made upon Berdell would, in the cases cited, have been the direct and proximate cause of his death, and it would be immaterial what Berdell’s intention was at the time the death wound was inflicted.

So long as there hvas a violation of the law upon the part of the assured, and death as its result, it is immaterial in what manner it was produced, excepting that' there should be in each ease a direct connection between the criminal act and the death of the assured. The assured in company with his brother had made a violent assault upon Berdell, who while struggling with the brother drew the pistol from his pocket. Wisner Murray may or may not have ceased his attack. Certainly, if the testimony as to his drawing and pointing his own pistol at Berdell was to be believed, he had not done so. In the struggle the pistol is discharged and the assured was killed. Had the insurance been upon the life of A. S. Murray, Jr., and had he been killed, could it have made any difference whether the pistol was discharged accidentally or with intent to hit some one ? It seems to me that it would not; and that in that case no one would undertake to say that he did not die while engaged in the violation of the law. It can make no difference that the assured had withdrawn a few feet from the scene of the fight at the time of the firing of the pistol. He was either still engaged as an active party in the assault, in which case he died while violating the law ; or if he had withdrawn from the fight, then the firing of the pistol was the direct result of a struggle which he had himself precipitated, and his death was the direct and natural consequence of the assault.

But I do not think that it can be said that the evidence as to the accidental firing of the pistol was uncontradicted to the extent that the court could have disposed of the question as one of law. It is true Berdell so testified, and that no witness did, as no witness could, contradict his statement as to his own intention in discharging the pistol.

It may be remarked, in passing, that this point seems to have been an after-thought on the part of counsel; it was not made on the trial, and no motion or request was made to take the case from tne consideration of the jury.

The jury were not bound to. believe Berdell’s statement. There were doubtless reasons which might induce him to give to the shooting the coloring that he did. There were Gertainly facts and circumstances surrounding the transaction which would lead to other conclusions; and when facts depend upon the credibility of witnesses or upon inferences to be drawn from the circumstances proved, about which honest men might differ, then it is the right of parties to have the question submitted -to the jury. Now it certainly was not a conclusive inference from Berdell’s testimony that the shooting was accidental; perhaps it was not “ intentional ” in the ordinary meaning of that word. Berdell may not have been cognizant at the time of the determination in his mind to kill or wound his assailant; but that being violently and suddenly attacked, assailed with blows calculated to inflict great personal injury, if not to endanger his life, struggling to free himself from his assailants, maddened by repeated assaults and blinded by the blood flówing from his wounds, he suddenly drew his pistol and shot his assailant, was a view of the transaction fairly to be inferred from all the evidence in the case. Whether the act of drawing and discharging the pistol was impulse or intention was wholly immaterial. It certainly was the result of the will power of the man prompted by the strongest impulse of his nature, that of self-preservation.

However it may have happened it was a fair inference, and one which might well be drawn from the whole testimony, that the shooting was the natural and legitimate outcome • and consequence of the violent assault made upon him, and it was for the jury to draw the inference and determine the facts. None of the reported cases present the precise point which the appellant raises in the present action. The cases are, however, somewhat analogous, and so far as they go support our views.

In the Cluff cases reported (Cluff v. Mutual Benefit Life Insurance Company, 95 Mass. [13 Allen], 308; S. C., 99 id., 317, and Bradley v. Mutual Benefit life Insurance Company, 45 N. Y., 422) there was no question but that Cpx when he shot Cluff intended to kill him. /

In these cases the condition of the policy was that it should be void, if the assured should die “ in' the known violation of any law,” etc. / ■

Cluff had undertaken to takq. 'Cox’s horse from him in payment of a debt; while attempting' to cut the reins Cox ordered him to desist, which he did, gqmg towards the head of the horse to unloose the li-nes from the- harness. It was a matter of dispute on the testimony whether there was a conflict between Cox and Cluff or not. Cox went awdy about three rods and then turned and shot Cluff, who died iilstantly. On the first trial in the Massachusetts court a verdict was directed for the plaintiff. The Supreme Court reversed the ju/3'gment, saying: If it had been found by the jury that the insured, when he was shot, was engaged in a criminal violation of law;,' known to him to be so, and that such violation of law might ha/ve been reasonably expected to expose him to violence, which might endanger life, the court are of the opinion that defense /Anight have been sustained.”

Upon substantially the same evidence this ease came before our courts. Upon the trial the complaint was dismissed. The Court of Appeals, however (45 N. Y., 432), reversed this ruling, holding that the case should have been submitted to the jury to determine whether “ the death of Cluff was caused by a known violation of law on his part, and whether the act of Cox which produced the death was a natural, reasonable or legitimate consequence of the acts of Cluff.”

' It will be observed that the rulings of the trial courts of Massachussetts and New York were in direct opposition to each other. One holding that there was no violation of law on Cluff’s part, and the other that he died in the violation of the law.' The appellate courts in each instance reversed these rulings, holding that in neither case could the question be determined as one of law, but should bave been\submitted to the jury. We think that in this action it would have been error for the court to have directed a verdict, and that the cai?e wifi properly disposed of by submitting it ’ to the consideration of the' jury, and we find no grounds for disturbing their verdict. \

N o errors were committed in that part of the learned judge’s charge to which exceptions are taken. . He followed very closely the principles which had beeiu laid down by the courts in construing the conditions of the policy sued on in the cases I have cited, and in saying to the jury that 'it Was not necessary for them to find that Murray lost his life “ under' such circumstances as would protect the party taking it under the law, that is, in self-defeiise,” etc., and “ that if they found that Berdell discharged the pistol in the heat of passion, naturally excited by the combined attack made upon him by the Murrays, the plaintiffs cannot recover,” we think he correctly stated the law.

The question was, did' Murray die in or in consequence oí the criminal assault which he made upon Berdell % This question was to be determined without reference to the question whether Berdell, in taking Murray’s life, had also committed a crime. It might 'very well be that if Berdelí had been indicted, and tried for the killing .of Murray, a jury might have said that he was not justified in killing him, and yet such a verdict would not be inconsistent with the fact'. that Murray died in consequence of his violation of law.

In the case of Bradley v. Mutual Benefit Life insurance Company (45 N. Y., 430), Judge Rappalo says: “ The proximate and not the remote cause must be regarded. The immediate cause of death was the shooting; and if Oluff so conducted himself that the shooting was a natural, reasonable and legitimate consequence of his acts, then it may be said that they caused the shooting. But if Cox fired with intent to kill, and his act was wholly beyond the scope of lawful resistance to the trespass of Cluff, and the provocation given by the latter was totally inadequate to excite or justify the character of violence which was used, and if the circumstances of the killing were such that rational men would attribute it to wanton malice rather than to endeavor to resist aggression, or even to natural indignation ; then, although the deceased was in 'the wrong in the first instance, his wrong was but a remote and not á proximate cause of the death, and other causes for which he was not responsible intervened.Some analogy is afforded by the common law rules in respect to acts-of provocation which will reduce a homicide from murder to manslaughter.” “ Here it was not even left to the jury to say whether the killing was in the heat of passion.”

At page 432: “It would hardly be contended that if one should intentionally and deliberately kill another in consequence of some slight violation of a civil right, such as walking across his land without his permission, or other trivial trespass, the case would fail within the proviso, for no one would hesitate to say that in the case supposed the unlawful act of the deceased was a totally inadequate cause for the killing, yet between such an act as that and one which would in law justify the killing of the offender there are an infinity of supposable cases involving different degrees of provocation which cannot be measured so as to determine as a matter of law their adequacy to produce a fatal result.”

If, therefore, Murray’s acts were such as to produce in Berdell a high degree of passion, and while in such state he shot and killed Murray, clearly his death was the -natural consequence of the assault. We think the charge as a whole was correct and that the exceptions are not well taken.

In submitting the case to the jury the learned judge requested them to answer specifically three questions: 1st. Hid Berdell fire the shot which killed Murray intentionally ? 2d. Was the killing of Murray justified on the ground that it was done by Berdell for his lawful self-defense? 3d. At the time Murray was shot had he abandoned the combat ? The jury rendéred a general verdict for the defendant and stated they were unable to answer the questions. The verdict was received under the plaintiff’s objection and exception, and it is now claimed that it was error to receive the verdict unless those specific questions were answered. In submitting these questions to the jury the learned judge stated that he did not consider them at all necessary to a verdict, and we think that it was not essential that the jury should agree on any of them in order to arrive at a verdict for the defendant. In the view of the case I have taken it was certainly immaterial whether Berdell shot Murray intentionally or accidentally. If the assault was the cause of the shooting, then, whether the shot was fired accidentally or otherwise, the case fell within the proviso. Neither was it material whether •Berdell shot Murray in self-defense; and the judge had already instructed the jury that if he shot ■ him in the heat of passion that the plaintiff could not recover. So it was also immaterial whether Murray had abandoned the combat at the time he was shot. If Berdell killed him “ in the heat of passion,” excited by the attack made upon him, and it was done immediately after Murray had abandoned the combat, then the case fell within the proviso. The jury, therefore, might well have disagreed upon .all three of .these questions and yet have all reached the conclusion that the death occurred while engaged in the violation of law, or as a natural consequence of such violation. That was the common ground upon which they had to stand to render the verdict for the defendant; and they might well all reach that conclusion, although some should think the shooting accidental and others intentional; some that it was done in self-defense, others that it was done in the heat of passion ; some that he had abandoned the combat and others that he had turned to renew the assault upon Berdell with his pistol.

The case of Ebersole v. Northern Central Railway Company (23 Hun, 114) is not in point. There it was an essential element in the plaintiff’s case to show that he was free from contributory negligence. That was the main defense to the case and the jury rendered a verdict for the plaintiff, saying that they could not agree on that question. Until they did agree upon it the plaintiff was not entitled to a verdict. The jury had, therefore, failed to perform their duties and the court properly set the verdict aside.

In this case, however, an agreement on any of the questions submitted was not essential to the defense and the verdict was properly received.

The judgment should be affirmed, with costs.

Pkatt, J., concurred; Dykman, J., dissented.

Judgment and order denying new trial affirmed, with costs.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    ELLEN NICHOLS, Respondent, v. THE BROOKLYN CITY RAILROAD COMPANY, Appellant.

      SMdence in an action for injuries caused by defendant's negligence — decla/i'aiion of plaintiff as to pains — when admissible to characterize and explain his acts.

    This action was brought by the plaintiff to recover damages for a personal injury alleged to have been occasioned by the defendant’s negligence. Upon the trial a girl, who had slept with the plaintiff some three months after the injury, was allowed to testify that the plaintiff would sit on the edge of the bed and complain of pain in her arm and shoulder.

      Held, that the plaintiff’s declaration was properly admitted as tending to characterize and explain her act in so sitting upon the bed. (Pratt, J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages for injuries sustained by the plaintiff while leaving one of the defendant’s cars.

      Winchester Britton, for the appellant.'

      Charles J. Patterson, for the respondent.
   Barnard, P. J.:

No error is presented by this appeal sufficient to call for a reversal of the judgment. The plaintiff was injured in consequence of the negligence of the defendant. She was rendered incapable of labor for some four months; has nearly lost the use of one eye; suffers constant pain day and night, and for four weeks coughed and spit blood. The -jury have assessed the damages at $1,900. It is not so large as to .suggest any passion or prejudice. An appellate court cannot say it is beyond a moderate compensation. The plaintiff was a witness upon the trial and testified to the pain with which she was afflicted. She produced one Kate Creahan, a girl who had slept with her some three months after the injury at the house of a Mrs. King. This girl testified that the plaintiff would sit on the side of the bed, and that while so sitting she complained of pain in her arm and shoulder. The testimony of the fact of sitting upon the side of the bed had no relevancy without the expression of pain which characterized the act. It was part of the act, and as such admissible to characterize and explain it. (Swift v. Massachusetts Mutual Life Ins. Co., 63 N. Y., 186.) The evidence of the declaration was admissible to explain the act and ascribe a cause for it. The judgment therefore must be affirmed, with costs.

Dykman, J., concurred.

Pratt, J., dissented on question of admissibility of evidence of declarations.

Judgment and order denying new trial affirmed, with costs.


text:
    JOHN J. BERGEN, as Treasurer of the Police Board of the Town of New Lots, Relator, Appellant, v. JOHN K. POWELL, Respondent.

      Removal from office whore the km affixes no term therreto — by whom the power is to be exercised — 1878, chap. 305— Const.,-art. 10, sec. 3.
    Chapter 305 of 1878 created the police district of the town of New Lots, in Kings county, and conferred the powers and duties connected with and incident to the police government and discipline thereof upon a board of three commissioners, to be appointed within thirty days after the passage of the act by the supervisor of the town, the president of the excise commission and the justices of the peace of the said town then in office having the shortest term to serve. In case of a vacancy in the office of police commissioner the successor or successors of such commissioner or commissioners was to be appoinfed by the supervisors. The act did not fix the duration of the office of the police commissioners.

      Held, that the officers who were required by the act to appoint the police commissioners had no power after having made such appointment to remove any commissioner from his office.
    Section 3 of article 10 of the Constitution, providing that “when the duration of any office is not provided by this Constitution it may be declared by law, and if not so declared such office shall be held during the pleasure of the authority making the appointment.” has no application to the case.
    Appeal from an order made at a Special Term denying a motion to compel a delivery of books and papers.
    The board of.police commissioners of the town of New Lots was created by chapter 305 of the Laws of 1878, sections one and two of which are as follows:
    “1. The town of New Lots, in the county of Kings, shall constitute a police district, which shall be known as and called 1 the police district of the town of New Lots.’
    “ 2. The powers and duties connected with and incident to the police government and discipline of said district shall be, as hereinafter more especially provided for, vested in and exercised by a board of commissioners, consisting of three persons residing in said town of New Lots, who shall, within thirty days after the passage of this act, he appointed by the supervisor of said town, the president of the excise commission of said town and the justices of the peace of said town now in office having the shortest term to serve, or a majority of them, who shall be known and act as a police board in and for said district, and shall have the general charge, supervision and control of the police force of said district, and in case of a vacancy in said office of police commissioner or commissioners, occurring by death or otherwise, the successor or successors of such •commissioner or commissioners shall be appointed by the supervisor of said town.”
    TJnder this law Richard Pickering, Peter Sutter and John K. Powell (respondent) were duly appointed commissioners, and were .serving as such up to and on February 17, 1883. The two latter were of the first three commissioners who were appointed in 1878 upon the passage of said act. Pickering was appointed to fill the vacancy caused hy the deatli of one of the original three commissioners.
    On February 17, 1883, the supervisor of the town and Charles Gertum, the justice of the peace of the town, then having the shortest term to serve, assumed to remove said Sutter and Powell from office. Said supervisor and justice so acted without notice to any one to act with them, except that they served a notice on the president of the excise commissioners of the town to meet and act with them, but the same was served upon him outside of the town.
    Immediately, upon such pretended removal of Sutter and Powell, the said supervisor alone assumed to appoint the appellant and one Kiendl to succeed them. Sutter and this respondent refusing to vacate their offices, appellant moved the court in this proceeding to compel respondent to deliver to him the moneys, books, papers, etc., in respondent’s possession, as treasurer of said board. From the order denying that application this appeal was taken.

      A. Simis, Jr., for the relator, appellant.

      Wm. J. Gaynor, for the respondent.
   Barnard, P. J.:

The constitutional provisions in respect to the duration of the' terms of public officers, where the law affixes no limit, does not apply to the case under consideration. The legislature designates a supervisor of a town, a president of an excise commission and a justice of the peace, they having the shortest time to serve, as an appointing board of three police commissioners. This appointment was to be made in thirty days after the passage of the act. The power of the appointment was not continuous. When a vacancy thereafter happened it was to be filled by the supervisor of the town alone. Section 3 of article 10 of the Constitution provides that “ when the duration of any office is not provided by this Constitution it may be declared by lawand if not so declared such office shall be held during the pleasure of the authority making the appointment.”

The majority of the board which assumed to act has no power to appoint, and does not claim to have. It only makes a vacancy for the supervisor to fill. The authority making the appointment was intended to cover a case of a continuous authority to appoint. It is a grave question whether the then persons •who made the appointment of the original commissioners can be placed under the words “the authority making‘the appointment.” The legislature designated them for a single instance to appoint three persons. It was not intended to give a permanent power of removal to one board and of appointment to another.

The case of The People v. The Comptroller (20 Wend., 595) was one where the -appointment was continuous. (Chap. 82, Laws 1836, § 4.) The board of police are not now, and were not at the time of removal of the commissioner, the authority making the appointment.

The order should be affirmed, with costs and disbursements.

Pratt, J., concurred.

Present — Barnard, P. J., Dykman and Pratt, JJ.'

Order denying mcmdanvus affirmed, with costs and disbursements»


author: Pratt, J.:

text:
    In the Matter of the Probate of the Will of WILLIAM GOLDER, Deceased.

      Will — construction af á provision giving to the testator* s widow “ the amount due her by law."

    A testator left-a will which provided, among other things, as follows: “ I desire my executors hereinafter appointed, to pay all my just debts and funeral charges ;. then, after my widow shall be paid and receive the amount due her by law, I give and bequeath to Sarah Elizabeth, wife of Jacob Henry Foster, the sum of one hundred dollars, and to Abraham James G-older the like sum of one hundred dollars. (The reason these two receive less than my other children is that their mother has a considerable property).” He then gave a legacy to a granddaughter and the residue of his estate to two sons. It did not appear that the testator was indebted to his wife in any sum at the time of his decease.

      Held, that it was the intention of the testator to leave to his widow a legacy, the amount of which was to be fixed by law, and that she was entitled to receive the same proportion of his property that she would have received had he died intestate.
    Appeal from so much of a decree of the surrogate of Queens county admitting a will to probate, as construed a claube relating to the testator’s widow adversely to the claims made by her.
    The testator William Golder, died, leaving him surviving a widow, four children and a granddaughter. The will provided as follows:

      “First. As soon as convenient after my decease, I desire my executors hereinafter appointed, to pay all my just debts and funeral charges ; then, after my widow shall be paid and receive the amount due her by law, I give and bequeath to Sarah Elizabeth, wife of Jacob Henry Foster, the sum of one hundred dollars, and to Abraham James Golder the like sum of one hundred dollars. (The reason these two receive less than my other children is that their mother has a considerable property.)' I further give and bequeath to Anna Farrington, my granddaughter and daughter of Thomas Farrington, the sum of one thousand dollars, and the balance of - my estate, real and personal, I give to my two sons by my first wife,. William Henry and Michael Benjamin, to be equally divided between them, share and share alike ; all of which I give to them and their heirs forever.”

      Henry A. Monfort, for Elizabeth Golder, widow, appellant.

      John J. Armstrong, for the proponents, respondents.
   Pratt, J.:

The will in question contains the following provisions: “ First. As soon as convenient after my decease, I desire my executors hereinafter appointed to pay all my just debts and funeral charges; then after my widow shall be paid and receive the amount due her by law, I give and bequeath, etc. ”

There is no evidence showing that the testator was indebted to his wife in any sum at the time of his decease. The presumption is therefore that he did not owe her anything. ' It is evident that the testator in the clause of the will relating to his widow does not refer' to the payment of a debt, for the payment of all his debts is provided for in the preceding clause.

If it had been his purpose that she should have only her dower and articles set apart for her by the statute, he would doubtless have made no reference to her. These he could not deprive her of, and it would have been well therefore for him to have devised and bequeathed them to her. Besides, if he had intended that his widow should receive nothing but her dower and chattels he would have employed other language than that used. He would have spoken of his widow being “ paid ” her dower or chattels ; or the amount ” of her dower or chattels. He must therefore have had some other purpose in view.

It will be observed that his wife is the first object of the testator’s care “ after ” the widow shall be paid, etc., “ then ” he bequeaths to others, showing that he had her in view as an object of bounty. Furthermore, if she was to receive only her dower and the few chattels the statute allows her, why did he postpone the payment of all the legacies until after these were set apart to her ? They formed no part of his estate and there could be no reasonable purpose in delaying its distribution.

It is clear therefore that the testator intended to bequeath something to his widow. Having arrived at this conclusion, it follows from the language “ the amount due her by law,” used by him, that it was his purpose that she should be paid the same proportion of his property that she would have received if he had died intestate. He intended to bequeath to her a legacy the amount of which he left the law to fix. This construction is sustained by the authorities: Stineman’s Appeal (34 Penn. St., 394); Adamson v. Ayers (5 N. J. Eq., 349); Kelly v. Reynolds (33 Am. R., 418); Druce v. Denison (6 Ves., 385.)

It follows from these views that the decree of the surrogate, so far as it construes the will in question, must he reversed and the widow declared entitled to receive the same share o£ the testator’s estate as if he had died intestate.

Present — Rarnard, P. J., Dykman and Pratt, JJ.

So ordered.


author: Peatt, J.:

text:
    JACKSON S. SCHULTZ, Respondent, v. PHILIP D. COOKINGHAM, as Committee, etc., Appellant, and Others.

      Committee of a lunatic — by whom, upon the lunatic’s decease, the committee ma/y be compelled to account.

    The executors or administrators of a deceased lunatic are alone entitled to bring an action for an accounting against his committee, and unless they refuse to perform their duty in this respect, an action therefore cannot be brought by the next of kin of the lunatic.
    Appeals from an order made at a Special Term overruling a demurrer interposed to the complaint and directing a judgment to be entered thereon, and also from an order restraining Cookingham from taking or continuing any proceedings for an accounting as the committee of the estate of Jerusha Lam oree, deceased.
    The action was brought by one of the next of kin of a deceased lunatic against his committee, his administrator and others, to compelan accounting by the committee. A demurrer was interposed by the committee upon the grounds that the court did not have jurisdiction over the person of the defendant or the subject, of the action; that the plaintiff had not legal capacity to sue, and that the' complaint did not state facts sufficient to constitute a cause of action.

      M. A. Fowler, for the appellant.

      Thompson, Weeks & Lown, for the respondent.
   Peatt, J.:

Section 2344 of the Code of Civil Procedure provides that where a person of whose property a committee has been appointed dice during his inco'mpetency, the property of the decedent must be administered and disposed of as if a committee had not been appointed.

The defendants Morgan L. Tail and Morgan L. Smith having been appointed as administrators of the estate of the deceased .lunatic, are therefore alone entitled to bring an action for.an accounting against the committee; and unless they refuse to perform their duty in this respect the plaintiff, as next of kin of the deceased lunatic, is not entitled to do so. (Woodin v. Bagley, 13 Wend., 453; Beecher v. Crouse, 19 id., 306; Western R. R. Co. v. Nolan, 48 N. Y., 513; Jenkins v. Freyer, 4 Paige, 47.)

There is no allegation in the complaint of such refusal, or of any fact showing that the administrators are disqualified for -any reason to bring such action or proceed with the accounting.

The order appealed from must therefore be reversed, with costs.

Present — Dykman and Peatt, JJ.

Barnaed, P. J., not sitting.

Order granting injunction and judgment overruling, demurrer by defendant reversed, with costs.


text:
    JAMES R. WOOD and JOSEPH K. MERRITT, as Surviving Executors and Trustees, etc., of JAMES ROWE, Deceased, Respondents, v. ANNE C. FLYNN, Appellant, Impleaded with NATHANIEL JARVIS, Jr., and LOOMIS L. WHITE, as Executors and Trustees, etc., of FRANCIS W. WORTH, Deceased, and Others.

      Revival of action 'upon a motion — Code of Civil Procedure, sea. 757 — power of the court to continue the proceedings and order that evidence already hea/rd and taken stand good in the cause as revived.

    Where the court, upon a motion made under section 757 of the Code of Civil Procedure, orders an action brought by a sole surviving executor, who has since died, to be revived, and an administrator with the will annexed to be substituted in the place of the deceased executor, it may direct that his name be substituted in the record and pleading, and that the pleadings, proceedings, and evidence already had and taken, stand as the pleadings, proceedings and evidence in the cause so revived.

      Appeal by the defendant Anne C. Flynn from an order.made at Special Term, which “ ordered that the said Austin Abbott, as administrator with the will annexed, and as trustee as aforesaid, be and he is hereby substituted as plaintiff in this action, in place of James E. Wood and Joseph K. Merritt, two of the trustees appointed in and by the will of the said James Eowe, who are now deceased, and that this action be continued in the name of the said Austin Abbott, as administrator, with the will annexed, and trustee as-aforesaid, as sole plaintiff in said action.

      “ It is further ordered that the name of Austin Abbott, as aforesaid, be substituted in the place and stead of James E. Wood and Joseph K. Merritt, now deceased, upon the record herein, and the pleadings herein, and the proceedings and evidence already had and taken in the cause, stand as the pleadings, proceedings and evidence in the cause hereby revived and continued as aforesaid.”

      James Otis Hoyt, for the appellant Flynn.

      William Ives Washburn, for the respondents.
   Pratt, J.:

This order substitutes Mr. Abbott administrator with will annexed in place of plaintiffs who were sole surviving executors under the wiR of James Eowe deceased, and practically orders that the suit proceed in his name as plaintiff from the point to which it had progressed at plaintiff’s death. It seems that plaintiff and Worth were the executors of the will. The complaint alleges that at a sale óf real estate belonging to the testator, Worth bought one parcel in his own name for the benefit of the estate. If this was true, he of course held this title in trust. He died while thus holding it After his death the surviving executor sued to declare and enforce that trust. The survivor then died and Mr. Abbott was appointed administrator with the will annexed. It is conceded that the present appointment is in his behalf. It asks that he be substituted in place of the plaintiff who brought the action. This was his plain duty. The court may, and in a proper case must order the substitution and continuance upon motion under section 757 of the Code of Civil Procedure.

This section provides a summary remedy in such cases and seems to have been intende4 to direct the continuance of the action upon the original pleadings in the name of the substituted party, plaintiff or defendant, or as the case may be. There would seem no occasion for supplemental issues, because the whole business by this section is to be entertained on motion. It was intended that if any reason for supplemental issues existed, it should be disclosed on the motion. No such cause was shown and none is now pretended.

The order should be affirmed, with costs and disbursements.

Present — Barnard, P. J., and Pratt, J.; Dykman, J., not sitting.

Order affirmed, with costs and disbursements.


text:
    EDGAR B. TAYLOR, as Administrator, etc., of JAMES COLLINGWOOD, Deceased, Respondent, v. EDWARD POST and MARIE A. POST, Appellants, Impleaded with Others.

      Mortgage given to a film to secure advances — a successor to the firm is not entitled to the benefit of it— a verbal agreement that it shall have.the benefit of it is void — when payments to the new firm wiU not diseha/rge debts due to the old one — when a reconveyances to a husband of property which has been theretofore conveyed by a husband and wife by'way of mortgage, will restore the wife’s right of dower as against a mortgage given back by the husband to the grantor.

    The firm of Collingwood, Mellard & Co., had business relations with one Post, and sold goods to him on credit. Post and his wife executed and delivered a ■ deed of certain real estate to Collingwood, to be held hy him as a mortgage for the benefit of his firm, to secure any amount that might he or become due to it from Post. Subsequently Collingwood reeonveyed the premises to Post, who gave hack to him a bond and mortgage for $4,000, to secure his existing anu future indebtedness to the said firm. His wife did not join in this mortgage. Subsequently Collingwood died. Thereafter the surviving partner Mellard, and one Taylor as trustee of Collingwood, continued the business of the old firm under the old name, subsequently taking in new partners, viz.: Taylor individually, one Aekerly and one Brooks. The new firm used the hooks of the old one and continued the accounts therein, without settling or in any way altering the same. It did not appear that the assets of the old firm were formally transferred to the new, or that the latter was appointed to act as the agent of the former.
    Post continued to deal with the new firm under the verbal agreement that the mortgage should stand as a security for Ms ijew obligations. At the time of Collingwood’s death he owed the old firm $5,539.30. He bought $8,518.14 worth of goods from the new firm and paid to it the sum of $7,846.30. It did not' appear that any account had been rendered to Mm, showing the application made by the new firm of these payments.
    An action having been brought by Taylor as administrator of Collingwood, to foreclose the mortgage;

      Held, that the new firm was not a continuation of, or the successo to the old firm in such a sense as to entitle it to the benefit of the mortgage given to the-old firnj.
    That the verbal agreement to extend the obligation of the mortgage, so as to include the debts incurred to the new firm, was invalid and of no effect.
    That the payments Made to the new firm did not operate to discharge the debts due to the old firm and should not be applied thereon.
    That the mortgage was a valid security for the debts due to the old firm at the time of Oollingwood’s death, to an amount not exceeding the face of the mortgage, $4,000, with interest thereon.
    That the reconveyance of the land from Collingwood tó Post, and the acceptance of the mortgage released and restored to Post’s wife, her inchoate right of dower in the land, and that her right thereto was not affected by or subject to the said mortgage given to Collingwood at the time of his conveyance to Post;
    The mortgage given by Post to Collingwood recited that it was a purchase-money mortgage.

      Held, that as it appeared that it was not in fact a purchase-money mortgage, the-wife's right to dower was not affected by such reeital.
    Appeal from a judgment of foreclosure and sale, entered upon tbe trial of this action by the court without a jury. The action was brought to foreclose what purported to be a purchase-money mortgage given by the defendant Edward Post (but not signed by Maria A. Post his wife). At the time the mortgage was given the premises described therein were conveyed to Edward Post — they having been previously conveyed by Post and wife by an absolute deed to be held, however^ as a mortgage by the party subsequently conveying them to Post.

      Guy G. II. Gorliss, for the appellants.

      Thompson, Weeks <& Town, for the respondent.
   Pratt, J.:

The essential facts of this case are these: Collingwood, Mellard' & Co., were dealing with Post and extending credit to him. In order to secure the firm Post and his wife delivered a deed to Collingwood covering the premises in question, which was intended as-a mortgage for the benefit of Collingwood’s firm. Afterwards Collingwood reconveyed the premises to Post, who gave back to Collingwood as trustee a bond and mortgage for $4,000 to secure his existing and future indebtedness to the firm. The case contains no evidence, only findings. Collingwood died while holding this bond and mortgage. The action is to foreclose that mortgage and is brought by Taylor, as Collingwood’s administrator, but it is conceded he has the right to maintain the action if the mortgage is in fact a lien. The surviving partner Mellard, and Taylor, as trustee of Collingwood, seem to have continued the business of the old firm under the old firm name, and to have taken in new partners. They continued the account upon the books without drawing any distinction between the transactions before and after Collingwood’s death, and appear to have ignored their duties to Collingwood’s heirs and representatives and the creditors of the old firm. I take it to be clear that the surviving partner did not deal as a surviving partner, but individually, because the findings clearly indicate that a new firm was formed after Collingwood’s death. True, the new firm was composed of Mellard, the survivor, and the trustee of Collingwood’s estate, together with one Ackerly, but it is clear that it was Nevertheless a new jb'in. After that other new members were admitted into this new firm, viz., Taylor, individually, and one Brooks. Then this new firm continued to deal with Post on credit, and they undertook to make an agreement that this mortgage should stand as security for his indebtedness to the new firm. The findings treat these changes in the new firm as constituting new and successive copartnerships.

The findings indicate that Post continued to.deal with the new firm, under the understanding that the old mortgage should stand as a security for his new obligations. After Collingwood’s death, Post bought $8,518.14 worth of goods from the new firm and made payments which were entered to his credit generally upon the said books amounting to $7,846.20, and the questions may be therefore stated as follows : 1st. Was the arrangement to extend this old mortgage so as to cover the new indebtedness, a valid agreement giving a lien for the new dealings. 2d. Ought the $7,846.20 of payments made by Post to the new firms to be applied upon the $8,518.14 of his purchases from the new firms or upon the $5,529.30 which, was due to the old firm at Collingwood’s death. 3d. Did Collingwood’s reconveyance to Post release Mrs. Post’s' right of dower so that it is not covered by this mortgage.

First, then, as to the parol agreement to extend the mortgage so as to cover credits given by the new firm to Post. It seems that this firm, relying upon the good faith of Post and the supposed validity of such agreement, continued to sell goods to him upon credit-and to receive payment upon account.

Upon one side this contract has been executed by the delivery of the goods and giving of credit, and a repudiation of it by the defendants operates as a fraud upon the rights of his creditors. Yet it is an agreement which the law prohibits and cannot therefore be enforced. It must be accepted as settled, that a mere verbal agreement to extend a mortgage to cover new advances and obligations not within the original agreement is invalid. (Stoddard v. Hart, 23 N. Y., 556; Hubbell v. Blakeslee, 8 Hun, 603; Bank of Utica v. Finch, 3 Barb. Ch. R., 293.)

This mortgage was originally given to secure existing and future indebtednesses of Post to the firm of Collingwood, Mellard & Co.. It was valid for that purpose only, and it could not by parol be made to cover or stand as security for any new indebtedness of Post to tho new firms. (Townsend v. Empire Stone Dressing Co., 6 Duer, 208 to 219.)

The second question is the one of the most difficulty and importance in the case. .1 conclude that' the transactions between Post and the new firms were wholly independent of those with the old firm. In the first place it is apparent from the papers that the surviving partner and Collingwood’s trustee did not discharge their duties either to Collingwood’s estate or to the creditors of 'the old firm. Collingwood died intestate. Hence, there was no authority to continue the joint property of the old firm subject to the risks of general trade.

There is no evidence that any such power was desirable from the copartnership agreement. That instrument is not before us, and I can presume nothing of its terms. Hence, it was the plain duty of the surviving partner immediately upon Collingwood’s death to wind up the affairs, and to keep its assets separate and distinct from any general new business. So, too, Taylor was guilty of legal wrong in carrying over tlie old assets into the now firm. He would have been liable to Collingwood’s heirs and individual creditors for any loss or misadventure of the new business. So, too, he did a, wrong in entering into the new firm as a trustee. Any heir or creditor of Oollingwood might have secured' the appointment of a receiver of his share of the copartnership assets of the old firm and compelled both Taylor and Mellard to render án account for their conduct. So, too, could any creditor of the old firm have obtained similar relief. The continued use of the copartnership assets in any such way would have been enjoined irrespective of the question of the solvency or insolvency of the wrong doers. The new mass of property, composed as it was in fact of the old and trust property mingled with their new and individual purchases, would have been liable to distribution under the statute and thus have prevented restitution, etc. (See Hooley v. Gieve, 9 Abb. N. C., 8.) It is in view of this state of affairs that the defendant claims that the account of the old and new firms was one continuous account. In one sense it was, but it could not.have been in any legal sense. It was continuous only in the sense that the entries in the books relating to the new transactions have been written in the same books as if in continuation of the old account. It was a continuous account only on paper. It lacked every element of a continuous account in the eye of the law. It was between different parties. Suppose that Post had made no payments and the new firm had sued Post for the entire sum,- i.- e., the $5,529.30 due the old firm at Collingwood’s death, and the $8,518.14 to the new firm, we should then have had an action by Mellard, Taylor as administrator, Taylor individually, and Brooks, alleging that they as copartners owned the entire debt.

It is plain upon the facts stated in the findings no such action could have been maintained. Nor did Mellard either as survivor or individually, so far as it appears, ever transfer any interest in the old firm for the new firms.

But again the findings do not show that the payments, viz.: $7,846.20, were made to Mellard as survivor. They were made to the new firms, i. e., Mellard acting individually and not as survivor at all; Taylor individually ; Taylor as administrator, when he had no right to act in either capacity as affecting the old debt, and Brooks individually, who never had any interest in the old debt. It is plain that these parties to the old debt never intended to receive these payments in any such capacity as would discharge the old debt. Even if they had done so, it is more than doubtful if it would have been a good payment to discharge the old debt. Under those circumstances it is impossible to. say that the law would raise a presumption that any of the payments should be applied on the old debt. Post must have known of Collingwood’s death, and was therefore bound to know the reciprocal rights and duties of these parties quite as well as any of them.

But the findings seem to settle the point about these payments. They state that the payments were made to the new firms, and no right is shown the new firms, or either of them, whether as owners by assignment or as agents or otherwise, to receive a paynient of the old debt. If they had no right to receive such payment, how can it be said that any act of theirs could discharge the debt. But it was the intent of all parties at all times that this mortgage should.be a valuable and available asset held in trust for the firm.

I cannot see that this bare fact that the new firms used the old books and continued the account therein, can have the effect claimed by the defendants. It does not appear even that any account stated was ever given to Post, wherein the credits were made to discharge the old indebtedness. All that the members of the new firms did was to credit the payments made by Post, in the account kept in their books. The sales made by the new firms constituted an entirely new and separate indebtedness, and the credits were made in the same account.

Here, then, were two distinct matters between different and distinct parties, one a debt due the survivor of the old firm, and a current account with the new firm. All the embarrassment in this case arises out of the facts that the new firms used the same name as the old and took the property and books and continued in the same business as the old firm, and from the further facts that Mellard and Taylor became members of the new firm. If the books and property of the old firm had been sold to a person who had carried on the business, trusted and received payments from Post and kept his accounts in the old books, it could not for a moment be claimed that any such payment could be applied to extinguish the old debt. Yet, in contemplation of law, the transactions here are of precisely similar import. The rule undoubtedly is in case of an open current account, the items of which do not form distinct debts but are blended together in (one account, that in the absense of any application by the debtor or by special agreement, the payments shall be applied as they are made to the charges in the order of time in which they accure.

‘ The defendants claim that this rule will apply to accounts with a partnership, of which there is some change in the members, provided the account goes on as one continuous • open and current account.” This is true in some cases, to wit, whfere a person purchases an interest of a partner in a firm and takes his place therein and continues the account without interruption. (Coleman v. Lansing, 65 Barb., 55.)

■ But I can find no case in this State holding the doctrine as applicable to a case where a partnership has been dissolved by the death of one of the partners, and an entirely new firm has been formed. The leading case upon this precise point is Pemberton v. Oakes (4 Russell’s Rep., 154), decided by Chancellor Lyndhurst, in 1827. A reference to that case will show that it must be distinguished from the present case. Harding, Oakes and Wellington carried on business under articles of copartnership, wherein, among, -other things, it was^ agreed that if Harding should die before the expiration of the copartnership term he should have the power by will to dispose of his interest in the firm, and the persons to whom it should be given. should in effect enter the partnership and carry on the business. Harding died before the expiration of the copartnership term, leaving a will providing for such an arrangement, and the parties to whom the interest was given entered the firm and continued the business. It will readily be perceived that this was a case of a new member taking the whole'interest of a retiring member without substantial change, and subject to all the burthens and relations incident to that interest.

In the present case no one purchased or took by gift or otherwise the interest of Collingwood in the old firm; nobody but Mellard in the new firm could receive money upon the old account, and' he could only do so as surviving partner, and he did not receive any payment, for tlie findings show that all tlie payments were made to the new firms.

If the case of Pemberton v. Oakes is invoked except to apply the principle to a case of change of members by a new member succeeding to the interest tíf a retiring member in a continuous copartnership, its authority may well be doubted.

The chancellor seemed to rely for authority upon Clayton's case (1 Mer., 585) and Bodenham v. Purchas (2 B. & Ald., 39)., Neither of these cases establish any such principle. In Clayton’s case the transactions were with the surviving partners.

The other case was decided upon another point not material here to be noticed. In Regard to the case of Pemberton v. Oakes, Collyer in his note on Partnership (Perkins edition of 1848, § 635) says: “It may be doubted upon a perusal of the case of Pemberton v. Oakes whether the observations of those counsel, who argued against the reduction of the debt in the manner above stated, were satisfactorily answered by the learned judge, and in the recent case of Jones v. Maund (3 You. & Coll., 347, in which however- the case of Pemberton v. Oakes was not brought to the attention of the court) Lord Abinger, C. B., made a decision which is at variance with that of Lord Lyndhuest.”

It cannot therefore be regarded as a binding authority at the present time in England. But even admitting it was correctly decided, it is not decisive of the present case for the reasons already stated. We do not think the fact of the new firm keeping their accounts in the old books is controlling, inasmuch as it does not appear that any balance was ever struck or account stated therein; especially in view of the fact that both parties intended that the mortgage should continue as a valid security to pay past indebtedness. The numerous authorities cited by the appellant upon the doctrines applicable to payments we do not regard as in point upon the question at issue. If these views are correct it follows that the mortgage is still a valid security for the payment of the indebtedness due the old firm at the time of the death of Collingwood.

We also think Marie A. Post is entitled to an inchoate right of dower in the entire fee of the mortgaged premises.

It is true she signed the original deed and released her dower to Collingwood, but the findings show that the deed was given as security and was intended as a mortgage and in fact was a mortgage, except in form. The legal estate therefore remained in Post, subject to her right of dower notwithstanding the form of the instrument. (Odell v. Montross, 68 N. Y., 503; Horn v. Keteltas, 46 id., 605; Carr v. Carr, 52 id., 258; Murray v. Walker, 31 id., 399.) Collingwood then must be regarded merely as a mortgagee, and when he gave a deed to Post it was not a conveyance of the legal estate, for he did -not own that, but it was a method for exchanging the mortgage he then had, for one that the wife had not signed. It was nothing less than a satisfaction of it to perfect the arrangement of exchange. It being in the form of a deed, it was necessary that the satisfaction should be-in like form to make the record in the registry complete.

As soon as this arrangement was perfected the deed or first mortgage was canceled or superseded by the mortgage in su-it which she did not sign, and her inchoate right of dower was restored t,o her free and clear of any incumbrance. (Elmendorf v. Lockwood, 57 N. Y., 325; Hammond v. Pennock, 61 id., 145; Malloney v. Horan, 49 id., 111.) Reference is made to numerous cases to show that in other' states the rule is that a- deed from the holder of an equitable mortgage to the owner of the fee operates as a satisfaction of the mortgage. (Hunt v. Hunt, 14 Pick., 374; Cole v. Edgerly, 48 Me., 112; Collamer v. Langdon, 29 Vt., 32.) Also, that in this State such a transaction operates as an assignment of the mortgage interests in the premises or as a cancellation by the mortgagee. (Miner v. Beekman, 50 N. Y., 344; Winslow v. Clark, 47 id., 261; Bostwick v. Frankfield, 74 id., 214; Millard v. McMullin, 5 Hun, 572.) But it is unnecessary to discuss whether the deed-mortgage was assigned, satisfied or merged. So far as .Mrs.- Post’s rights are concerned it was canceled. • It no longer stands in the way of her claim to dowér in the whole fee. The plaintiff, moreover, claims that the mortgage in suit purports to be a “ purchase-money mortgage,” and, therefore, she having signed the first deed, dower cannot be claimed. The answer to this consists in the fact that it was not a purchase-money mortgage. It was properly shown upon the trial, and found as a matter of fact, that it was given to secure past and future indebtedness, precisely the same as the previous, deed-mortgage had been given,-for which it was given in exchange. Again, it was not the premises or fee of the land that Collingwood was selling to Post, for Post already had that, and Mrs. Post held her dower in it subject to the deed-mortgage, but he was canceling his mortgage and taking a new one in stead. There was nothing therefore in the transaction upon which the words “ purchase-money ” in the new mortgage could have any legal bearing or effect. The conclusion seems irresistible from reason as well as authority, that Mrs. Post is entitled to an inchoate right of dower in the whole premises. We are also of the opinion that the claim of the plaintiff must be confined to the amount stated in the mortgage trust, $4,000 and interest. The decree may be amended accordingly, and judgment of affirmance entered thereon, without costs to either party in this court.

Present — Barnard, P. J., Dykman and Pratt, JJ.

Judgment modified in accordance with opinion of Justice Pratt.


author: Pratt, L:

text:
    ELIZABETH LYON, Respondent, v. WILLIAM E. LYON, Appellant.

      Place of trial — is to be determined by the residence and not the domicil of the parties — Code of Qvoil Procedure, sec. 984 — Sight of the wife to home a domicil apart from her husband.

    This action was brought by the plaintiff against the defendant, her husband, to recover money alleged to have been received by him for her. At the time of the commencement of the action the defendant was, and for many years previous thereto he had been a resident of the county of Kings. The plaintiff was at that time, and since July, 1881, had been a resident of Middletown, Orange county, living apart from her husband under an agreement of separation. She claimed to have left him on account of his cruelty and ill-usage.

      Held, that an application to change the place of trial from the county of Orange to the county of Kings, made by the husband, upon the ground that his domicil, and therefore that of his wife, was there fixed, was properly denied.
    The distinction between residence and domicil is recognized by the Code of Civil Procedure, and it is the residence and not the domicil of the parties which determines the place at which the action should be tried.
    Appeal from au order made at a Special Term, denying a motion to change the place of trial of this action. The action was brought by the plaintiff to recover, her interest in her father’s estate, which she claimed to have intrusted to the defendant, her husband, for safe keeping.

      Charles H. Woodbury, for the appellant.

      WilUam Vcmamee, for the respondent.
   Pratt, L:

This is an appeal from an order denying a motion to change the place of trial of the action from' Orange to Kings county. The plaintiff and defendant are husband and wife. The defendant is a resident of Kings county and claims that the domicil of his wife is there also. Section 984 of the Code, which regulates the place of trial of actions in the cases to which this belongs, provides that the residence of the parties controls.

The cases make a distinction between residence and domicil; the domicil of a person may be in one place and his residence in another. (Frost v. Brisbin, 19 Wend., 11; Bouvier’s Law Dict., tit., “Residence.”) The section of the Code referred to makes the residence of the parties the controlling fact in fixing the place of trial. This means actual residence and not necessarily the -domicil of one of the parties. (Vence v. Vence, 15 How. Pr., 497.)

The respondent was, at the commencement of this action, and has been since July, 1881, a resident of Middletown, Orange county, living apart from her husband under an agreement of separation. She was, there fore,-correct in her practice in laying the venue of her action in Orange county.

It appears that the defendant committed an assault and battery upon his wife which resulted in the separation referred to. This course on his part justified her in leaving his home and establishing a separate domicil. Folger, J., in Hunt v. Hunt (72 N. Y., 217 [242]), in speaking of the legal presumption that the domicil of husband and wife are the same, says: “ There are, however, exceptions to the rule * * * so that in certain cases a married woman may have a domicil in another jurisdiction than that of her husband. This is so * * * when the conduct of the husband has been such as to entitle the wife to an absolute or limited divorce. She may acquire a separate domicil whenever it is necessary for .her to do so.”

It is clear; therefore, that the plaintiff not only resided but was domiciled in Orange county at the commencement of this action.

The order appealed from should therefore be affirmed, with costs and disbursements.

Present — Barnard, P. J., Dykman and Pratt, JJ.

Order refusing to change place of trial affirmed, with costs and disbursements.


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    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. HUGH THOMPSON, Appellant.

      Navigable waters within the State — power of the State to grant an exclume right to raise oysters therein — it may exercise this right through town officers —1808, chap. 784.
    Chapter 784 of 1868 authorized any inhabitant of'the towns of Gravesend and Flatlands, upon complying with the terms of the act, to plant oysters under the public waters within, their respective towns, and to have the exclusive right, in the oysters so planted and the exclusive use of the beds. Such privilege was not to be exercised, however, without the written permit of the justice of the peace and the supervisor of the respective towns, which permits were to be issued in the^manner and form prescribed by the act. Any person other than the one named in the permit, who should take any oysters from such beds or disturb the same, was made liable to a penalty of fifty dollars, to be recovered by the holder of the permit, and to be adjudged guilty of a misdemeanor and punished by fine or imprisonment, or both. The beds were within the territories of the respective towns, but the said towns had no exclusive right to the fisheries within the waters over them, which formed a part of the navigable tide waters within the State of New York.
    Upon an appeal by the defendant from a judgment convicting him of a violation of the act:

      Beld, that the State had the power to grant to the inhabitants of the towns the exclusive right to use the said lands and the waters over the same; for -the purpose of planting oysters therein and removing them therefrom.
    That its right so to do might, if necessary, be sustained as the lawful exercise of its police power.
    That it might properly exercise this power through the town officials, as was done in this case.
    That the act was valid and the conviction should be sustained.

      Appeal from á judgment of the Court of Sessions of Kings county, convicting the defendant of a violation of chapter 734 of 1868, and sentencing him to pay a fine of twenty-five dollars. The act provided that it should be lawful for any inhabitant of the towns of Gravesend and Flatlands in Kings county, who should have been such inhabitant for the six months’ immediately preceding, upon complying with the terms of the act, to plant oysters under the public waters within their respective towns, and to have the exclusive property in the oysters so planted and the exclusive use of such oyster beds. The act further provided that such privilege should not be exercised without the written permit of the .justice of the peace and the supervisor of the respective towns, and prescribed the-conditions upon which, and the manner and form in which the permits should be issued. Any person who took any oysters from such bed or disturbed the same, was made liable to a 'penalty of fifty dollars, to be recovered by the person to whom such a permit had been given, or his legal representatives, and to be adjudged guilty of a misdemeanor and punished, therefore, by fine or imprisonment, or both.

      Morris <& Pearsall, for the appellant.

      Isaac 8. Gatlin, district attorney, for the respondent.
   Pratt, J.:

The defendant was indicted for a misdemeanor under chapter 734 of the Laws of 1868, in that he had taken oysters from and disturbed oysters from a certain oyster bed in Pumpkin Patch channel, a part of Jamaica bay, which oysters had been planted by. one "Freeland, to whom a license by the authorities of the town of Flat-lands had been granted. The defense was that the oyster bed was a part of the public domain, being a part of the tide-waters of Jamaica bay; that defendant was raking for clams upon a natural clam hed which existed at that point, that he had the right there to rake for clams in the public waters, and that the disturbance of the oysters was a necessary incident of his right to'rake for clams. It is conceded that the object of the proceeding is to determine the validity and force of tire license under the act of 1868, and the rights of the licensee as against the public.

It was admitted that this oyster bed was within the town of Flat-lands, and hence within the territory of the State of New York. It is not pretended that the town of Flatlands ever obtained any exclusive right to the fisheries within the waters which lie within its territories. There was no evidence of any grant to the town, and no presumptive right is claimed in its behalf. The case therefore shows that these waters were a part of the navigable tide-water within this State. Assuming the power, could the State exercise it, through the supervisor and justices of the peace of the town. We think the first question must be answered in the affimative.

The opinion of the late Ch. J. Church, with the concurrence of all his associates (see Trustees of the Town of Brookhaven v. Strong, 60 N. Y., 56), indicates very clearly that at common law the king had the right to grant to an individual or to the inhabitants of a town the lands under water and the exclusive right to fish in the waters flowing over the same. We fail to see why the State has not exercised the same right as the king could have exercised in this respect. We find no prohibition or limitation upon that power. The State might have ceded the entire land and water to the town or to individuals, subject only.to the superior right to use the navigable waters for the purposes of commerce and navigation. (Rogers v. Jones, 1 Wend., 237; approved 60 N. Y., 65.) It is only where it undertakes to grant the exclusive right to fisheries disconnected with any right upon or connected with the soil or in disregard of the rights of owners of the- soil, that there appears to be any invasion of private right. Even in that case it is the private right either of the owner of the soil under or adjacent to the waters which is disregarded or invaded. Why may not the State, as the owner of the soil and waters, subject to the public right of commerce and navigation, grant away the whole or any part of its own aquatic domain ? If it may grant the land and the water, why may it not grant the land without the water or its right in the water without the land. This would seem especially plain for the purposes of planting trees, erecting or extending docks, etc., and why .not for planting that kind of product which although classed as fish is nevertheless a resident and dependent upon the soil almost as much as grain sown upon agricultural lands. We cannot find the precise points decided of an original grant by the State, but it is quite plain tbat the State has steadily since its organization made analogous grants of land, under water and ratified old claims of that nature. The authority'for such acts is too old to be questioned. If these views are correct, it would seem to follow that the State might exercise the power of leasing these lands and its right in the waters, especially for purposes which chiefly affect the soil under the water. It could certainly authorize dumping earth at any particular point and raising an island. It could authorize the occupation of bars or such other acts as might develop them, why not authorize the use of the bottom for substantial submarine agriculture with the incidental rights of penetrating the waters to reap the crop. Another view of the subject is that it is simply the exercise of police power.

We come then to the second question: Could the State properly exercise this power through the town officials? We fail to discover any restriction or limitation on this subject. There was no delegation of the power to determine whether or not the land and waters should be so used, but merely the selection of officers through and by whom the State should attest the fact that it had leased and the qualification of the lands for the purposes of the lease, i. e., the extent in acreage and whether or not there was a natural oyster bed.

Besides these the State is really by this act following a policy for the promotion of the public good and the benefit of all its inhabitants. It is encouraging oyster culture, affording special inducements to those who will engage in the industry upon the public domain. It protect^ them from annoyance and intrusion by others upon the special field of their operations — the bottom. It is simply a police regulation, at most an exercise of police power. Any other reasoning would lead to the conclusion that the public interest in fish culture for the purposes of food was wholly subservient to the individual right of each citizen to the m.ere pastime of catching the fish. The method by which the State shall develop its resources, especially upon the public domain, must be a matter within the discretion of the representatives of her'people, the legislature. We fail to see why the State should not select these town officers to exercise this right quite as readily as it could have selected new officers for that purpose.

Who would deny that the State through its own constabulary might protect its lessees and licensees in the limitations upon fishing, quite as properly as it can limit tbe methods of taking fish or game at particular seasons of the year. Tbe State might well prefer to encourage tbe planting of oysters, rather than to preserve natural clam beds, and that is an essential feature of tbe bed in question.

We think tbe Act in question was clearly within tbe powers of tbe legislature and that it is valid. If these views are correct it follows that tbe judgment and conviction must be affirmed.

Present — Barnard, P. J., Dykman and Pratt, JJ.

Conviction and judgment affirmed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWARD N. DOUGLASS, Appellant, v. CHARLES NAEHR, a Police Justice, etc., Respondent.

      Husband and wife — duty of the former as to supporting the latter — 1871, chap. 395, as amended by chap. 171 of 1S82.
    In. order to authorize the making of an order requiring a husband to pay a specific sum of money weekly, for the support of his wife or children, as provided in chapter 395 of 1871, as amended by chapter 171. of 1882, it must be shown that the husband has, without just cause, neglected or refused to perform the duties and obligations towards his wife and child which are imposed upon him by the existing law, and that by reason thereof the burden of supporting his wife and children will be thrown upon the public.
    It was not intended by the said acts to give the wife any new or additional remedy or right, either directly or indirectly; it was the public and not the wife that was to be protected by these acts.
    Certiorari to review proceediugs bad before a police justice of tbe city of Brooklyn, upon a complaint made by tbe relator’s wife charging bim with abandoning and refusing to support ber and ber children.

      Charles J. Patterson, for tbe appellant.

      A. Simis, Jr., for tbe respondent.
   Pratt, J.:

Tbe relator has been adjudged a disorderly person, in that be abandoned, neglected and refused to support bis wife, within tbe meaning of chapter 395, Laws of 1871, as amended by chapter 171 Laws of 1882.

This statute relates to the county of Kings. Its material provisions are as follows : “All persons who abandon or threaten to run away and leave their wives and children or either of them without adequate support, a burden on the public, or who shall leave them in danger of becoming a burden on the public, or who shall neglect to provide for them according to their means, against whom a warrant shall be issued" upon a complaint made upon oath to any justice of the peace or police justice in the county of Kings, shall be brought before the justice of the peace or police jiistice who issued said warrant, and if it shall appear by the confession of the offender or by competent testimony that the person so charged is guilty, the justice of the peace or police justice before whom the said offender is brought shall make an order in which he shall specify the sum of money to be paid weekly by said person .for the support of the wife or children, or either.”

It seems that while the relator and his wife were living together in New York city, a quarrel arose and that she left him and came to reside with their daughter in Brooklyn, where she has ever since lived. He remained in New York for a time and then went to New Jersey. He contributed to her support to some extent from time to time, and finally came to Brooklyn where he now resides. She at last complained to the commissioners of charities, one of whom presented this charge against the relator.

The judgment recites that the conviction was in part upon his own confession as well as upon the evidence, but the proceedings upon the trial are all returned under the certiorari and the question arises whether or not this charge was fairly established by the proofs.

It is obvious that the wife had the opinion that the relator had been unfaithful to her, and that • she had determined to live with him no more. Before leaving New York he offered to provide a separate house for her in that city, but this she refused.

The extent of the relator’s means was not very clearly shown, but he had offered to do something by way of contributing to her support after he came to live in Brooklyn.

The determination of the questions of fact raised by the relator involves a careful consideration of the object of the statute and the nature and degree of pi oof required in the proceedings undei it. The statute was designed to protect the public against the burden of supporting a wife and children when the husband, without just cause, neglected or refused to perform his legal obligations in that regard. It was not intended to give the wife any new remedy either directly or indirectly. (Bayne v. People, 14 Hun, 181.) Interpreted literally, it might seem to warrant a conviction when the husband, possessed of proper means for any cause refused to support his wife. We do not think, however, such could have been the legislative intent. It authorizes a criminal proceeding and declares that to be a crime which was not theretofore punishable as an offense. It must therefore be strictly construed with reference to the'object in view and the general policy of the law-existing at the time it was passed.

We do not think it imposed any new duty upon a husband towards his wife. It simply declares that unreasonable neglect or refusal to perform certain existing obligations, in cases where such conduct will result in imposing a burden upon the public, shall be punishable as a crime. Any other view would result in a most serious disturbance of the reciprocal rights and duties which are founded upon the marital relation.

The wife is entitled to reasonable support by the husband. It is her duty as well as right, to live with him in such proper place as he provides. He is entitled to determine not only the place, but their style of living, and it is her plain duty to follow him where-ever his interest, necessity or reasonable wish may lead.

It is only when he neglects or refuses to properly provide, or maltreats her, or is guilty of infidelity to her, that she is justified in refusing her submission to his reasonable requirements in this respect.

These are general fundamental rules, they are of such importance to the public weal that courts will most jealously guard and enforce them; every piece of new legislation affecting them has always received strict construction even as between the parties directly interested. It is our duty to construe this act in aid rather than in hostility to these rules. In this view it is difficult to find in this act vnything more than authority for a criminal proceeding against the husband, who so unreasonably neglects or refuses to perform existing legal obligations towards his 'wife, that she has become or is likely to become a public burden. Neither was this statute intended to apply to a case where a wife capriciously and without cause, refuses to accept reasonable provision for her support at the place which the husband may have selected, even though she is liable to become a public burden.

The questions here must be tested, not alone by the measure of the relator’s pecuniary ability, but by the conduct of the wife and his disposition to recognize his pecuniary obligations to her.

Is her want of support due to his refusal to provide for her or to her unwillingness to perform the duties of a wife and live with him \ She testified that she was unwilling to live with him.

This refusal was not justified by any legal proof, in the case, of infidelity or cruelty upon his part. If there is any foundation for the suggestion that relator has committed adultery, the wife has an . ample remedy in a suit for divorce and alimony.

When we look into the case for proof of á refusal to provide, we find nothing but an original demand for a separate maintenance on the part of the wife. This part of the case is bare of that certainty of demonstration that overcomes all 'reasonable doubt, which distinguishes the criminal from a civil proceeding.

A careful reading of the case cannot fail to impress upon the mind the belief that the conviction was obtained through an erroneous view of the object and scope of the statute.

According to our view of the statute, there is an utter failure to make out a case to warrant a conviction of the ofíense charged.

The judgment should be reversed.

Present — Barnard, P. J., Dykman and Pratt, JJ.

Conviction and judgment reversed.


author: Pratt, J.

text:
    In the Matter of the Petition of JOHN McARDLE, an Imprisoned Debtor, to be Discharged from Imprisonment.

      Order in proceedings for the discharge of an imprisoned debtor — when it does not involve a substantial right so as to be appealable.

    Appeal from an order of the County Court of Kings county, overruling certain objections filed by a creditor, to the jurisdiction of the court over proceedings instituted by the petitioner, an imprisoned debtor, to procure his discharge from imprisonment.
    The court at General Term said : “ It is not necessary to pass upon the various objections raised by the appellant, in this matter, as we think the order appealed from did not affect a substantial right. (Code of Civil Pro., §§ 1312 and 190 [note].) The matter is still pending before the county judge, who may yet dismiss the proceeding upon a final hearing. The appellant has as yet suffered no injury, and until some order is entered affecting a substantial right, he is not in a position to appeal.
    Appeal dismissed, with ten dollars costs and disbursements.

      H. G. Place, for L. L. McCullough, creditor, appellant.

      Bobert Jolmstone, for McArdle, respondent.
   Opinion by

Pratt, J.

Present — Barnard, P. J., Dykman and Pratt, JJ.

Appeal from County Court dismissed, with ten dollars costs and disbursements.


author: Dykman, J.;

text:
    THE NEW YORK ELEVATED RAILROAD COMPANY, Appellant, v. JOHN T. HAROLD, JONATHAN T. DEYO and MARY E. BARBER, Respondents.

      Costs — extra allowance — a demwrrm' is a defense within the mecming of section 3253 of the Code of Civil Procedure.

    Appeal from a judgment in favor of the defendants, entered upon an order sustaining a demurrer to the complaint interposed by the defendants, and from an order granting an extra allowance to the defendants.
    The court at General Term, after holding that the demurrer was .properly sustained, said : ‘‘We incline to the opinion that a demurrer is a defense within the meaning of section 3253 of the Code, and that the order granting an additional allowance should be affirmed, with costs "and disbursements.”

      John U. Bergen and David Dudley Field, for the appellant.

      Chauncey Shaffer, for the respondents Harold and Barber.

      A. H. Dailey, for the respondent Deyo.
   Opinion by

Dykman, J.;

Barnard, P. J., and Pratt, J. concurred.

Judgment affirmed, with costs, including the order granting extra allowance.


author: Barnard, P. J.;

text:
    DANIEL J. NOYES, Respondent, v. JACOB F. WYCKOFF, Appellant.

      Chattel mortgage — a tender of the amount secured thereby, made by one who purchases the chattels subject to tKe payment of the mortgage, is ineffectual to discharge the lien.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to recover damages for the conversion of a quantity of iron ore. The defendant justified the taking under a chattel mortgage given by a former owner, and the plaintiff claimed under a bill of sale subsequently executed by tbe mortgagor. The plaintiff claimed that the lien of the mortgage was destroyed by a tender made by him.
    With reference to this the court at General Term said: “ The conversion rests upon a subsequent tender by the owner of the mortgage equity. Mrs. Fitzgerald gave the mortgage and it was collateral to the note. The plaintiff bought the equity with full knowledge of the mortgage and in express terms subject to it. liis tender fails for two reasons : First. The mortgage is a part of the consideration, and the property was taken subject to its payment, although there was no express covenant to pay the mortgage debt in the bill of sale. Second. A stranger to the title cannot make a tender and destroy the lien. A tender leaves the debt. Mrs. Fitzger-’ aid must pay her note if this tender is good. A tender by the owner of the equity is not good as against the interests of the mortgagee. (Harris v. Jex, 66 Barb., 232.) A chattel or personal mortgage differs in its structure and effect entirely from a mortgage upon real estate. The real estate mortgage is only a lien and conveys no title whatever. The personal mortgage transfers the title at once subject to a defeasance by the performance of the condition annexed. A tender before or after due, by the owner of the equity, would not destroy the lien. There is strictly speaking no. lien. There is a transfer of title; and only by keeping the tender good can the property be held free of the mortgage.”
    The judgment should be reversed, and a new trial granted, costs to abide event and order of reference vacated.

      William T. Butler, for the appellant.

      John L. Hill, for the respondent.
   Opinion by

Barnard, P. J.;

DyeMAn, J., concurred; Pratt, J., dissented.

Judgment reversed, and new trial granted, costs to abide event, order of reference vacated. , •


text:
    ELIZABETH LUHRS, Appellant, v. STEPHEN O. COMMORS, Respondent.

      Summary proceedings ft»' holding oren' after expiration of term — return of precept— it cannot be made returnable the day after it was issued — Code of Ovoil Procedure, sec. 3238.— Voluntary appearance — what is not sufficient to confer jurisdiction on the justice.

    Appeal from a judgment of the County Oourt of Kings county, reversing a judgment of a justice of the peace.
    This was a summary proceeding for the removal of a tenant. The premises were rented to the defendant by the plaintiff on the 17th day of February, 1882, for the term of one month, and by the month from that time. On the 17th day of June, 1882, she caused notice to be served on him, requiring him to remove on the 17th day of July, 1882. On that day she procured a summons for his removal, returnable July 18, 1882.
    ' The court at General Term said : “ The statute is, {the precept must be returnable not less'than three nor more than five days after it is issued, except that where the proceeding is taken upon the ground that a tenant continues in possession of demised premises after the expiration of his term without the.permission of his landlord, and the application is made on the day of the expiration of the lease, or on the next day thereafter, the precept may, in the discretion of the judge or justice, be made returnable on the day. on which it is issued at any time after twelve o’clock noon, and before six o'clock in the afternoon.’ (Code, § 2238.) It will be seen, therefore, that it was competent for the justice to make the precept in this proceeding returnable on the day on which it was issued, or not less than three nor more than five days thereafter, but not the next day. These statutory proceedings are quite technical and the statutes must be strictly pursued. There is no authority for such a summons as that issued in this case. The petition presented to the magistrate was sufficient to bestow jurisdiction of the subject, but it required a regular precept properly served, or a voluntary appearance, to confer jurisdiction of the person. The summons issued was irregular and insufficient and could not form the basis of any judicial proceeding. Neither was there any appearance to give jurisdiction over the person. The return of the justice states that ‘ the defendant,' without offering to put in a written answer, should use a physician’s certificate that defendant’s wife was sick. I told him-if lie wanted to have an adjournment or a trial of the matter he must file a written and sworn answer, which he failed to do, and he then immediately left the court room.’ He did nothing more than enter the court room, show the certificate to the magistrate, aud leave the room without uttering a word. This was not an appearance in the action, and so no jurisdiction was obtained of the person of the defendant.”
    The judgment of the County Court should be affirmed, with costs.

      A. II. Dailey, for the appellant.

      Morris c& Pearsall, for the respondent.
   Opinion by

Dykman, J.;

Barnard, P.' J., concurred; Pratt, J., dissenting.

Judgment of County Court affirmed, with costs.


text:
    ELIZABETH W. BLAKE and Others, Executors, etc., Appellants, v. ELIZABETH W. BLAKE and Others, Respondents.

      Will —when persons noting as executors and as trustees are entitled to double commissions— when a formal decree transferring the property to them as trustees is unnecessary— expenses and management of the trust — when they must be wholly borne by the tenants for life.

    Appeal from a decree of the surrogate of Richmond county, rendered upon an accounting of the plaintiffs and appellants.
    Two questions were presented by the.appeal. Anson Blake died in May, 1868, leaving a last will and' testament by which lie bequeathed certain legacies payable at once and absolutely. By the tenth clause of the will he devised and bequeathed to his executor all the rest, residue and the remainder of my estate real and personal,’’ in trust to divide the same into five parts “ as equal in value as may be.” The executors were directed to receive the rents, issues and profits of the residuary estate “ so to be divided as aforesaid,” and after paying thereout ah costs, charges and expenses of management and all taxes, to apply the net income and profits of one of said shares to each one of five designated children of testator. Ten per cent of the net income was to be annually reserved for charitable purposes, to be distributed in accordance with a scheme of the testator to be carried out by the executors, and if no designation of a charitable purpose was made under the plan devised in the will, then the executors other than his wife and son were to dispose of this fund.
    The children of the testator were authorized to dispose of their shares by will, and if they did not'the share went to the children of deceased children, and if there were none, then to the surviving children and the children of deceased children to take parents’ share.
    The testator’s will was proven in June, 1868. There has never been any separation of the estate into the five equal shares, but the estate has been kept in one, body, and the income divided and distributed as if the estate had been so divided.
    The executors were further authorized to sell the residuary estate, to reinvest the proceeds, to buy in property mortgaged, to execute conveyances, to keep the estate insured, to pay taxes and assessments and expenses out of the income, to keep accurate accounts and to render a copy annually to each of the children and the widow.
    There have been repeated settlements of the estate before the surrogate of" Richmond county. These settlements, while they establish the amount in the executors’ hands and legalized the charges made against the same, left the residue still in the executors’ hands for management under the will and according to its provisions. One of the children is now dead and one-fiftli of this residue is payable to the children of the deceased child. The executors claim commissions as trustees in addition to the commissions which they have received in full as executors upon the whole estate.
    The court at General Term said: “ The case seems to be different from the case of Hall v. Hall (78 N. Y., 535). In that case the testator gave Margaret J. Hall, his daughter, her share of the estate, payable at the age of twenty-one. The executors during the minority of this daughter were to apply the income to her suppoi’t and pay over at its termination. This was one of the common incidents of the office of an executor. It is true that certain trust duties and responsibilities were incident to it, but it is usual and, so far as I can discover, has never been considered a case for a double commission. The present ease is a very different one. The executors are to divide an estate, the absolute title to which at its creation is vested in no one absolutely. Certain persons háve a life estate, and beyond that whatever of a present fee there may be, it is liable to be divested by death before the time for the distribution comes. In the meantime a rigid trust in and over it is created, certain charges are to .be made out of income and the net proceeds annually distributed. The ordinary administration has been completed, and the amount of.the residue duly determined by judicial decree. If if was necessary that an actual separation be established and a direction that the executors hold the residue as trustees, it seems that a final accounting as executors whereby the trust estate or the residue was fixed and determined does show this. There was no need of a clause in the decree that the executors should hold the same as trustees. This result followed the decree. The actual division of the estate into five parts is not necessary to initiate the trust. It was for the mutual benefit of all that the estate was kept together, and no one objected at the settlements that there was no actual division. Legally it is divided. The shares are separate and each gets his proper income therefrom. »Ve think therefore that the executors are entitled to fees as trustees. The duties imposed on the executors are separable from those imposed upon them as trustees. (Hurlbwt v. Durcmt, 88 N. Y., 121.) The second question is whether the expenses of management of the entire estate are chargeable solely against the income. This seems to be plain from the words of the will, “ all costs* charges and expenses attending the management of my estate and all taxes and assessments ” are to be paid “ thereout,” that is, out of the rents and income. The “ net ” income is to go to the children. This is the language of the tenth clause. The testator is still more emphatic in the eleventh clause: “I direct them” (the executors) “ to keep all the perishable part of my estate insured * * * to make all proper repairs, and pay all taxes, assessments, rates, costs, charges and expenses properly.chargeable or charged on my estate out of the income of said estate. ” The Jackson children' are therefore entitled to the fifth, without, bearing any part of the expense of management. That must all fall upon the life estate.
    The decree of the surrogate must therefore be modified accordingly, with costs.

      Charles II. Glover, for the appellants.

      Homer A. Nelson, for the respondent Mary M. Martindale.

      A. C. Miller, for infant defendants, Jacksons, respondents.

      John M. Bowers, for infant defendants Daniel E. Moran.

      Anson B. Moran and Farley Clark, respondents.
   Opinion by

Barnard, P. J.;

Dvkman and Pratt, JJ. concurred.

Decree of surrogate modified in accordance with opinion; order to be settled by Justice' Barnard.