author: Daniels, J.

text:
    Leonhardt Hilsenbeck, App’lt, v. John M. Guhring, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.)

    Negligence—Owner op building.
    Plaintiff, while visiting his son-in-law, who resided, in the upper part of defendant’s premises, descended to use the common water closet, which was in a dark hall, and, opening the wrong door, fell into the cellar and was injured. There were three doors close together, opening, respectively, into the defendant’s saloon, the cellar stairs and the water closet, the key to the cellar being kept by defendant. There was a gas fixture in the hall, but it was riot lighted. Held, that it was defendant’s duty to observe care and attention in managing this part of the building, so as to avoid needless exposure of his tenants or their lawful visitors to the risk of accidents; that the questions of negligence and contributory negligence were for the jury to determine, and that it was error to dismiss thé complaint.
    Appeal from a judgment recovered on the dismissal of the complaint at the circuit, and from an order denying a motion for a new trial.

      Alfred & tedder, for app’lt; William J. Gaynor, for resp’t.
   Daniels, J.

The action was brought against the defendant as the owner and possessor of premises situated in the city Brooklyn and known as No.. 206 Calyer street, to recover damages for an injury sustained by the plaintiff on or about the 6th day of January, 1889. The building was in part occupied by the defendant as a restaurant and dwelling, and by other persons as tenants, to whom the defendant leased portions of it. On the upper floor the son-in-law of the plaintiff resided, whose family was visited by him on the day of the accident. This occurred about five o’clock in the afternoon. The plaintiff descended from the apartments occupied by his son-in-law to the first floor of the building to make use of the water closet, which was there maintained for the convenience of the occupants of the building. The stairs terminated in a hall, in which the water closet was located. The hall at the time was dark, receiving no other light than came from a window over the street door. And as the day was dark, this was insufficient to clear the darkness from the hall. There were three doors in the hall, one leading into the saloon, the next to the basement, and the third to the water closet. The evidence of the plaintiff is that he found the second door slightly open, and supposing that to be the door of the water closet passed through it and fell down the stairs into the basement below, and thereby sustained a fracture of his leg.

A gas jet was maintained in the hall, but it was not at the time lighted. And the evidence tended to establish the fact that the basement was used as a depository for wood and coal and other things for the use of the occupants of the building; that the defendant had in the saloon a key to the door through which the plaintiff passed when he fell into the basement, and that this door was at times locked and at others left unlocked. But the defendant, and the person in his employment in the saloon, were the individuals- who appear to have had the control and management of the door in the way of locking and unlocking it

Prior to the occurrence of this' accident the witness Scheffler, who was the plaintiff’s son-in-law, testified that he went to the water-closet at one time in the night and missed the door and caught the other door; and that he afterward informed the defendant that this door was open, and that he had tumbled himself on the top of an ash barrel that was standing on the platform, and that the defendant replied that his bar-tender had forgot to lock the door. This was about four or five weeks prior to the accident

From the fact that the plaintiff was visiting the family of his sondn-law it is to be presumed that he was lawfully in the building on this occasion, and that he had the right to use the water-closet as that was intended by him when he descended from the apartments he had been visiting. And from the position in which the water-closet was located, and its devotion to the uses and conveniences of the occupants of the building, it is also equally to be presumed that the hall, including this part of the building, was in the possession and control .of the defendant as distinguished from the tenants. It was accordingly his duty to observe care and attention in managing this part of the building so as to avoid the needless exposure of the tenants themselves, or of their lawful visitors, to the risk of accidents by passing through the unsecured door to the basement, instead of into the water-closet as that might at the time be designed. And the observance of that care when the hall was dark was no more than a reasonable or proper precaution on his part. This would no doubt have been satisfied either by the locking of the door leading to the basement or the lighting of the gas jet in the hall, which would have enabled persons to discover the location of the water-closet and avoid the mistake of passing, instead of that, through the door into the basement. The case was one which under the evidence raised a question of fact whether the defendant had observed that degree of care which the circumstances exhibited the propriety of observing for the protection or security of persons lawfully making use of this part of his building.

In this respecfthe case does not in principle differ from the rule which was applied for the disposition of Camp v. Wood, 76 N. Y., 92. There an attendant at a ball passed in the night time through a door opening upon a wooden platform built out from the second floor of the building. This was unguarded by any railing, or otherwise, and the plaintiff, supposing himSelf to be upon the street side, fell and was injured. And it was held by the court that there was that degree of omission to observe care on the part of the defendant as to justify the submission of the case to the jury. In Tousey v. Roberts, 114 N. Y., 312; 23 N. Y. State Rep., 223, an elevator door had been left open, through which the plaintiff passed, supposing the elevator at the time to be there; but; it was not there, and he fell and received a serious injury. And the court concluded this to be a case for the jury. And the same principle was applied to McRickard v. Flint, 114 N. Y., 222, 229; 23 N. Y. State Rep., 100, where in the daytime the party stepped into an elevator shaft through a partly opened door. The cases of Harris v. Perry, 89 N. Y., 308; Edwards v. N. Y., etc., R. R. Co., 98 id., 245, and Wolf v. Kilpatrick, 101 id., 146, materially differ from those just referred to, as well as from the present case, in their controlling facts. And no intimation is contained in either which will relieve the defendant from the obligation to ob-. serve that degree of care in the management of this part of his building which has already been mentioned. It is true, as was said in Wasson v. Pettit, 26 N. Y. State Rep., 919, that the defendant can only be held liable on the ground of negligence establishing the fact that he was guilty of some act of omission from which fault on his part could be reasonably inferred. But the evidence presented a case in which the jury might deduce this inference, and it was for them to consider and determine whether that conclusion should be adopted under the evidence given upon the trial.

Whether the plaintiff himself was negligent in passing through the hall and into the way leading to the basement was also, under the authorities to which reference has been made, a question for the jury to consider and determine. And the case of Gaffney v. Brown, 150 Mass., 479, does not justify the exclusion of that question from the jury. There the plaintiff in the day time passed into an open door leading from the dining-hall into a basement, and could easily, by the use of her powers of observation, have detected he! mistake in opening this door for the door leading from the dining-room.

The case of Wilkinson v. Fairrie, 1 Hurlstone & Coltman, 633, is very directly in point. There the plaintiff was passing through a dark hall and encountered a personal injury, but the court held him unable to maintain an action for damages for the want of care on his part. And if that were the only authority to be considered and followed, then the dismissal of the plaintiff’s complaint would necessarily be justified. But the principle applied in Camp v. Wood, Tousey v. Roberts, McRickard v. Flint, supra, is by no means so harsh or severe upon the person lawfully using the premises of another and sustaining an injury in this manner. Under the authority of these cases it was for thé jury to consider and decide whether the plaintiff was so far chargeable with negligence in endeavoring to reach the closet at the time through the darkened hallway as to prevent him from maintaining an action for the recovery of damages. Upon both branches of the case it was one for the jury, and the judgment, as well as the order, should be reversed, and a new trial directed, with costs to the plaintiff to abide the event of the action.

Van Brunt, P. J,., and Brady, J., concur.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    Michael F. Cusack, App’lt, v. Oliver B. Tweedy, Ind. and as Ex’r, Resp’t.

      (Court of Appeals,

      Filed March 17, 1891.)

    1. Deed—Delivery essential to validity of.
    No presumption of the delivery of a deed signed by only a part of the grantors can arise from an utterly unauthorized record shown to have originated in a mistake and made half a century after the original was drawn.
    2. Will-Power of sale.
    A testator by his will gave his residuary estate to his executors in trust to rent and invest and collect the rents, issues and profits and apply one-fourth of the same to the use of each of his four children for life, and at death to convey and pay the same to such child’s issue. By a subsequent clause it gave the executors power to sell the whole or any part of the estate in their discretion at any time or times, and in the meantime to collect and receive the rents of the whole of the real estate. Held, that the power of sale in the trustee subsisted beyond the death of one of the children, and that the executor’s deed gave good title, as the power was to be exercised for the purpose of distribution.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of special term dismissing complaint and decreeing specific performance of a contract for the sale of real property.

      Russell Benedict, for app’lt; Theodore Be Witt and George G. Be Witt, Jr., for resp’t.
   Finch, J.

The vendee objected to the title tendered by the vendor upon two grounds: one, that the complete title never vested in the latter’s • testator, and the other that, if it did, the executor’s power of sale did not cover and cut off a vested interest as to which the trust had terminated.

All the difficulty underlying the first objection rests upon an imperfect and incomplete deed which the executor caused to be recorded after a lapse of fifty years. Disregarding that, the title of the testator is complete and. perfect. It is conceded that, prior to April 15,1813, the premises were owned by George Thompson, who died seized and intestate, leaving six heirs at law, viz.: George Thompson, John G. Thompson, Elizabeth Pinkney, Dolly Lord, Magdalene Crook and Maria Burnham, each entitled to an undivided one-sixth of the property. On the 20th of September, 1815, the first four conveyed their interests to Mrs. Crook, the husbands and wives joining, and that deed was recorded early in the following October, and vested with her own share five-sixths of the estate in Mrs. Crook. Objection was made to this deed on the ground of an alleged prior conveyance, but the objection was overruled and the deed admitted in evidence. Mrs. Crook, thus owning five-sixths of the estate, conveyed an undivided half to Joseph S’. Lord in trust for Maria Burnham, who owned the remaining one-sixth. The deed was dated May 31, 1817, and recorded in 1865, or after an interval of almost fifty years. On February 5, 1825, Lord, the trustee, and Mrs. Burnham, the beneficiary, conveyed back their interest under the trust deed to Mrs. Crook, and that deed like its predecessor was recorded in 1865.

In January, 1825, Mrs. Crook acquired the outstanding one-sixth owned by Maria Burnham, and that deed was also recorded in 1865. On the same day of the acknowledgment of that deed by Mrs. Burnham, Mrs. Crook made her last will in which she recites her entire ownership of all the shares and of the whole property and devises it to Joseph H, Lord in trust to pay the rents and profits to Mrs. Burnham for her life, and then to her son John Francis Burnham for his life, with remainder in fee to Joseph FT. Lord. By the death of the two life tenants the unincumbered fee passed by his will. Lord died in 1857 and his executor, the defendant Tweedy, finding in Lord’s safe four unrecorded deeds caused them to be recorded in 1865. Two of them were the deed of trust and conveyance back, any record of which was needless; one was the deed of Mrs. Burnham which we know was delivered and became effectual because it is recited in Mrs. Crook’s will under which the Burnhams took and accepted their life estates ; and one was the incomplete deed which the courts below have held was never delivered and never became operative. That deed is dated September‘9, 1815, or just eleven' days before the conveyance of the same grantors to Mrs. Crook, and was to her and Maria Burnham. The wives of the two Thompsons were named as grantors and seals were left for their signatures, but they had not signed. There was a witness clause for their signatures and that remained unsigned. That deed never passed into the hands of the Burnhams. Maria knew of the actual conveyance made to Mrs. Crook alone, for she appears to have identified one of the grantors. It is quite evident from what followed that the original purpose of conveying to Mrs. Crook and Mrs. Burnham was abandoned through distrust of the latter’s husband and instead the conveyance was made to Mrs. Crook alone and she conveyed to Lord in trust for Mrs. Burnham. The imperfect and partly executed deed was found in the possession of Lord and any possibility of its delivery is excluded by the after action and conduct of the parties. Ho presumption of a delivery can arise from an utterly unauthorized record shown to have originated in a mistake and made half a century after its original was drawn. The deed made eleven days later, completely and perfectly executed by all parties and that to the knowledge of Mrs. Burnham herself, and the subsequent action of all such parties, removes every reasonable doubt. On the face of the papers themselves the earlier deed must be held, as the court below, have agreed, to have been undelivered and entirely inoperative. Its invalidity sufficiently appears on the face of the records themselves.

But assuming that a perfect title was established in Joseph H. Lord, a further question arises over the construction of his will. He gave the residue of his property to his executors in trust for the benefit of his four children; creating four separate and several trusts, each covering an undivided one-fourth of the residue. The trusts were to pay the income to each child for his or her life, and at his or her death to convey such share with any unapplied

rents to such child’s issue. Bach one of the separate trusts was for a single life, the termination of which by death ended the trust and vested a fee in possession in the remaindermen. After the creation of these trusts the ninth clause of the will provided as follows: “I hereby authorize and empower my said executors and the survivors and survivor of them, and such and whichever of them as shall act, at their or his discretion, from time to time and at any time or-times, to sell and dispose of the whole or any part or parts of my estate both real and personal, at public auction or private sale, in such manner, for such prices and upon such terms, and either for cash or on credit or partly for cash and partly on credit as they or he may approve, and upon any such sale or sales the same or any part thereof to convey and assure to the ¡Durchaser or purchasers, and in the meantime my said executors and the survivors and survivor, and such and whichever as shall act, are and is hereby authorized to collect and receive the rents of the whole and every part of my real estate.” The sole surviving executor is the present defendant who as such tendered a deed duly executed under and in pursuance of the authority of the will.' By the death of one of the daughters an undivided fourth of the estate had vested in her issue,' and the purchaser claims that the power of sale as to such one-fourth ended with the determination of the trust, while the executor claims that the power survived and would continue until all the trusts were ended. We have held on the one hand that such a power of sale when, general and unlimited and unrestricted does not become inconsistent with the devise of a vested estate in the same property, Crittenden v. Fairchild, 41 N. Y., 289; Kinnier v. Rogers, 42 id., 531; Skinner v. Quin, 43 id., 99, and on the other hand that where the power is in terms restricted and limited in point of time to the continuance of the respective trusts, the ending of the trust ends also the power. Bruner v. Meigs, 64 N. Y., 506.

It would be difficult to frame a power of sale more broad and unrestricted than the one before us. It covers not merely the residue embraced in the trust but the whole estate and is unlimited as to time. It necessarily falls under the authorities first cited, unless we can find in its terms some definite indication that all the purposes for which the power was given necessarily ended when any one of the four trusts terminated, and that the remainders were given not subject to the power but entirely freed from it. There seems to have been two purposes which the power was intended to accomplish, one to enable changes to be made in the capital of the estate with a view to the safety of investments and an increase of the earning power, and the other to facilitate an ultimate division without the expense and delay of a partition. Neither purpose was bounded by the limits of a single one of the trusts; each might remain unaccomplished though a single one of the trusts had fallen in.

Some intended limitation of the power, notwithstanding the broad terms in which it is expressed, is sought to be ar of the words “ and in the meantime said executors are authorized to collect and receive the rents of the whole and every part of my estate,” and the argument is that the power was to exist only while the right to receive rents remained This authority was either a repetition of the one already given, or was a new one and deemed necessary. In either view, I think it points to a situation after one or more trusts have ended, and was meant to justify the trustee holding as to an ended trust in the character of a tenant in common to retain the power of sale and receive rents until final severance and distribution.

Two cases in the English courts have rewarded the industry of the respondent’s counsel. Trower v. Knightley, 6 Madd., 134; Taite v. Swinstead, 26 Beav., 525. The last is especially satisfactory. Its fundamental idea is expressed in the phrase, ‘‘The power is unlimited and overrides the whole estate.” We are thus of opinion that the power subsisted beyond the death of Mrs. Tweedy, and that the executor’s deed was good. Having no doubt of the unsoundness of the objections to the title, we are prepared to concur with the majority of the general term.

Its judgment should be affirmed, with costs.

All concur.

       Affirming 32 N. V. State Rep., 201.


author: Andrews, J.

text:
    James H. Hooker, Resp’t, v. The City of Rochester, App’lt.

      (Court of Appeals,

      Filed March 17, 1891.)

    Appeal—Judgment—Failure to make findings.
    In an action for an injunction and damages specific issues were tried by a jury and judgment was directed to be entered for the amount of their verdict and for an injunction. Such judgment was entered on motion of plaintiff’s attorney at special term, defendant’s attorney objecting but not suggesting that there was further evidence or informality in the application. Held, that the failure of the judge to make a finding of fact and law was an irregularity merely, and that if defendant was entitled to any relief the remedy was by motion, not by appeal.'
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment upon verdict at circuit on issues framed in an action for maintaining a nuisance, and by which also the defendant was permanently enjoined from continuing such nuisance after October 1, 1889.

      Henry J. Sullivan, for app’lt; Eugene Van Voorhis, for resp’t

       Affirming 35 N. Y. State Rep., 408.

   Andrews, J.

There seems to be no reasonable ground for this appeal. This was an equitable action for an injunction and for damages. The right of the plaintiff to damages has been adjudicated by three several judgments in his favor, recovered prior to the present one, based upon the same wrong, the cases differing only in respect of the period for which damages were given for the nuisance complained of. The right to an injunction follows as a matter of course from the continuing character of the injury, and this also has been adjudicated in other actions by other parties similarly situated. Chapman v. City of Rochester, 110 N. Y., 273; 18 N. Y. State Rep., 133; Jackson v. Same, 35 id., 73.

The sole ground of the appeal is that it was irregular for the judge at special term to make an order for judgment for the dam* ages found by the jury, and for an injunction, without a trial of the question whether the plaintiff was entitled to equitable relief and a decision stating the findings of fact and law. There was but one issue of fact in the case and that was submitted to the jury and was found in favor of the plaintiff. The plaintiff’s attorney then moved at special term upon notice for judgment upon the verdict and for an injunction.

The defendant’s attorney on the hearing of the motion contented himself with objecting simply, without suggesting that there was further evidence in the case, or that there was any informality in the application. The order for judgment recites that it was made on the pleadings, the verdict and the evidence in the case, and the court', without making any special findings, ordered judgment in favor of the plaintiff for damages as found by the jury, and for an injunction, and pursuant thereto judgment was entered. The appeal is from the order and judgment. It must be assumed that the court adopted, as it had a right to do, the verdict of the jury upon the issue of fact There was then nothing left to be tried. The verdict covered the whole ground of controversy on the facts, and the right of the plaintiff to an injunction followed upon the adoption by the court of the finding of the jury. See Hammond v. Morgan, 101 N. Y., 179; Acker v. Leland, 109 id., 5; 14 N. Y. State Rep., 23. The correct practice was for the judge to have made a finding of fact and law; but this was an irregularity merely. The defendant’s counsel did not, so far as appears, object to the form of procedure, or make any request for a formal trial or findings. It would be the sheerest technicality to reverse the judgment or order for the reasons suggested. If the defendant was entitled to any relief, the remedy was by motion.

The judgment and order should be affirmed, with costs.

All concur.


text:
      In re Application of the New York, Lackawanna & Western R. Co. to acquire lands of Harriet A. Bennett et al.

      (Court of Appeals,

      Filed March 17, 1891.)

    Appeal—Stipulation.
    Respondents moved for the appointment of new commissioners of appraisal, based upon a certain order, but intermediate the making of the order and the notice of the motion they had obtained a judgment declaring the order a nullity. This point being raised on the motion by appellant, respondents stipulated that the judgment should be amended by striking out the provision declaring the order a nullity, and the motion was granted; but, on the railroad appealing, the general term dismissed the appeal on the ground that the appellant had obtained an advantage by the stipulation, which precluded it from appealing from the order. Held, error; that the stipulation was made for the benefit of respondents, and that they could not retain the judgment and at the same time avail themselves of a right under an order which that judgment annulled, and the appeal should have been heard on its merits.
    Appeal from judgment of supreme court, general term, fifth department, dismissing appeal on the groud that the appellants accepted a substantial concession mode as a condition for obtaining the order appealed from.

      John 6r. Milburn, for app’lts; Spencer Clinton, for resp’ts.
   Andrews, J.

The motion of the respondents for the appointment of new commissioners of appraisal, was based upon and assumed the validity of the order of July 11, 1888! But intermediate the making of that order and the giving notice of the motion the respondents had obtained a judgment of the superior court of Buffalo adjudging that -the order was a nullity, which judgment was in force when notice of the motion was given. It is manifest that the existence of this judgment was an unanswerable defense to the motion.

The respondents had no standing to insist upon the benefit of an order which by a judgment procured by them and upon which so far as appears they relied, had been declared to be void. This point was presented to the court by the appellant upon the preliminary hearing of the motion as an answer thereto. Thereupon the respondents stipulated that the judgment should be amended by striking out the provision therein declaring the order of July 11, 1888, to be a nullity, and also a provision based on that adjudication. This stipulation was given as a condition of the hearing of the motion, and, having been assented to by both sides, the hearing proceeded and resulted in the granting of the motion and an order appointing new commissioners. From this last order the railroad company appealed to to the general term, and upon motion there made by the respondents the court dismissed the appeal on the ground, that the appellant had obtained an advantage by the stipulation referred to, which precluded it from appealing from-the order. This appeal is from the order of dismissal.

We are unable to perceive any just basis for the action of the general term. The stipulation was made to remove an obstacle in the way of the respondents, which, unless removed, would necessarily defeat their motion. It was made for their benefit and in aid of their own purposes. The appellants objected to the hearing of the "motion, as they had a right to do, until this bar was taken out of the way. The respondents could have abandoned the motion and rested upon the judgment if they had chosen so to do. They could not retain the judgment and at the same time avail themselves of a right under an order which that judgment annulled. The advantage which accrued to the appellants from the modification of the judgment was incidental.

The respondents could not attain their purpose without giving the stipulation, and the effect of the stipulation of necessity relieved the appellants from those provisions in the judgment covered by the stipulation. The rule that a party cannot appeal from an order under which he has accepted a benefit has, we think, no application. The stipulation preceded the making of the order, and was a preliminary step to enable the respondents to have a hearing of the motion on the merits. They elected to abandon the judgment in their own interest and not i-n that of the appellants. The point that the appellant has foreclosed its right of appeal by appearing before the commissioners pending the appeal from the order and cross-examining witnesses, is not well taken. This was a reasonable precaution in view of the contingency of the affirmance of the order. The appellant might have applied for a stay of proceedings, but it was not bound to do so. Barker v. White, 58 N. Y., 204.

We tbink the order dismissing the appeal should be reversed, and the matter be remitted to the supreme court, to hear and determine the appeal from the order on the merits.

All concur.

       Reversing 35 N. Y. State Rep., 999.


author: Haight, J.

text:
    Dan H. Davis, Resp’t, v. John W. Gallagher et al., Adm’rs, App’lts.

      (Court of Appeals, Second Division,

      Filed March 17, 1891.)

    1. Evidence—Code Crv. Pro., § 829.
    Plaintiff, a stepson of defendants’ intestate, claimed for services rendered and grain; etc., furnished, and it was arranged that two neighbors, C. and N., should be called into arrange a settlement, and in their presence plaintiff made a full statement of matters involving personal transactions with deceased. Upon the trial of this action plaintiff, in his own behalf', and C. and N. were allowed to state what was said on said occasion, for the purpose of showing that defendants, by sitting by in silence, admitted plaintiff’s claim. Held, error, as the evidence was both hearsay and in violation of Code Civ. Pro., § 829.

      2. Same—Res gesta:.
    A declaration, in order to become res gestas, must be made- cotemporaneously with the event sought to be proved or else be so closely connected with it as to become a part thereof.
    Appeal from a judgment of the general term, fourth department, affirming a judgment entered upon the report of a referee.

      J. W. Shea, for app’lts; T. W. Skinner and G. G. Brown, for resp’t.

       Reversing 29 N. Y. State Rep., 882.

   Haight, J.

This action was brought to recover pay for services rendered by the plaintiff and his wife to the defendant’s intestate during his lifetime, and also for hay, com, beans, pasture, cow, etc., had by such intestate.

It appears that the plaintiff was a step-son of the deceased, and had lived in his family from the time he was eightyears of age; that a few days after letters of administration had been issued to the defendants the parties had a conversation in reference to the plaintiff’s claim and then arranged to call in two neighbors, Mr. Cal-kins and Mr. Mies to see if they could arrange a settlement; that on the following day there were present at the house of Mr.Price, Messrs. Calkins, Hiles, Gallagher and wife, Mrs. James L. Price, Miss Bumpus, Mr. Lewis Price and the plaintiff; that thereupon the plaintiff was called upon by Calkins to make a statement in reference to his claim and he did so, giving the extent of time that he had worked for the deceased after he became twenty-one years of age; the amount that such services were worth; the transactions in reference to the corn, hay, pasture, cow, etc., with an account of the services of his wife, and other matters involving personal transactions with the deceased.

Upon the trial of this action the plaintiff was called as a witness in his own.behalf and was permitted to state what had been said by him on the occasion referred to, under the objection and exception of the defendants. This evidence was allowed for the purpose of showing admissions by the defendants. It appears that they sat by in silence, making no objections except in reference to two or three items, and it is claimed that by maintaining silence they are deemed to have admitted that the statements and claims of the plaintiff were true and well founded. Calkins and .Niles were also called upon and allowed to give similar evidence in reference to the statements made by the plaintiff.

We do not regard this evidence competent. It is not only hearsay, but much of it is in violation of the provisions of § 829 of the Code of Civil Procedure. By permitting this class of evidence to be given the plaintiff was enabled to establish his claim against the estate of the deceased by showing what he had said on a former occasion when not under oath.

It is true that he seeks to justify this upon the theory that the defendants sat by, listened to it and made no objection; that Cal-kins had said to the defendants that they could make their objections as the plaintiff proceeded with his statement; but Gallagher testified that he had no prior knowledge of any of the items of the plaintiff’s claim against the estate. If he had no prior knowledge in reference to such claims he could not be expected to be in a condition to make objection to the statements made by Davis, and his remaining silent whilst the plaintiff was making his statement to the neighbors could hardly be construed into an admission that his claims were just But if we should construe the silence of the defendants as indicating an intention to admit the statements of the plaintiff, even then we think the evidence would be incompetent. Ordinarily an admission by one administrator is not binding upon his co-administrator as against the heirs or devisees of the deceased. Elwood v. Deifendorf, 5 Barb., 398-406; Hammon v. Huntley, 4 Cowen, 493; The Cayuga County Bank v. Bennett, 5 Hill, 236; Whiton v. Snyder, 88 N. Y., 299.

But there are cases in which the admissions or declarations of administrators and executors may be evidence, as for instance where they are made while engaged in the performance of a duty pertaining to the estate in a representative capacity, in which the declaration is pertinent and accompanies the act so as to constitute a part of the res gestae. Church v. Howard, 79 N. Y., 415-419.

The administrators were engaged in trying to settle a disputed claim against the estate. They may therefore be said to have.been acting in their representative capacity and in the discharge of their duty, but the claims of plaintiff under consideration related to past transactions with their intestate, and, as Gallagher has testified, pertaining to matters not within his personal knowledge. No admission, therefore, if made by him would constitute a part, of the res gestee.

Bes gestae is the transaction or subject matter. What was said and done at the time of the transaction out of which it is claimed the liability was incurred may be given in evidence as part of the res gestae, thereby showing the true character of the transaction. A declaration, in order to become res gestee-, must be made coteraporaneously with the event sought to be proved or else be so •closely connected with it as to become a part thereof.

It consequently follows that the judgment should be reversed, and a new trial granted, with costs to abide the event

All concur, except Follett, Ch. J., not voting, and Vann, J., not sitting.


author: Haight, J. Vann, J.,

text:
    Edward A. Durant, Jr., Resp’t, v. Henry R. Pierson, Survivor, et al., App’lts.

      (Court of Appeals, Second Division,

      Filed March 17, 1891.)

    Assignment fob benefit of creditors—Surviving partner.
    Where a person in good faith loans money to a surviving partner, and where the money is faithfully applied by such partner in satisfaction of the liabilities of the firm, the claim becomes one which in equity should be paid out of the assets of the firm; and in an accounting between the survivor with the personal representatives of the deceased partner, equity will recognize the right of the surviving partner to have the money so borrowed and applied by him repaid out of the assets of the firm, and an assignment so directing is not fraudulent.
    (VANN, J., dissents.)
    Appeal from a judgment of the general term, third department, affirming a judgment entered upon the report of a referee.

      Marcus T. Hun, for app’lts; Gr. L. Steelman, for resp’t; Abraham Lansing, for National Commercial Bank.

       Reversing 34 N. Y. State Rep., 194.

   Haight, J.

This action was brought to set aside an assignment made by the defendant Henry R. Pierson, as survivor of the late firm of Henry R. Pierson & Son, to the defendant Robert C. Pruyn for the benefit of creditors, upon the ground that it was fraudulent and void as against the creditors of the firm, for the reason that it directed the payment to the National Commercial Bank of the sum of $15,000.

The referee has found as facts that Henry R. Pierson, the elder, died on the 1st day of January, 1890, leaving the defendant Henry R. Pierson, his son, as the sole surviving member of the firm; that the firm kept an account with the National Commercial Bank of Albany in the name of Henry R. Pierson & Son, which was open and unsettled upon the books of the bank on the 9th day of January, 1890, at which time the defendant Pierson made application to the bank for the loan of $15,000; that upon making such loan there was credited upon the books of the bank to the firm the sum so loaned and a note was given therefor payable on demand, signed in the name of the firm by Henry R. Pierson, survivor ; that $10,150 thereof was subsequently drawn out of the bank by the checks of the defendant Henry R. Pierson, signed by him as survivor, and the same was applied and used in the payment of the debts of the firm. The referee further found as facts that the purpose of said defendant Heniy R. Pierson in applying for and obtaining such loan was to procure money with which to-pay the obligations of the firm which had matured or were about to mature, and that the bank understood such to be the purpose of the loan at the time of making the same; that the firm was in fact insolvent on the 1st day of January, 1890, at the time of the decease of the elder Pierson, but that such fact was not known to-either the defendant Pierson or the National Commercial Bank at the time the loan was made. He further found as a fact that in inserting in the assignment the direction to pay the National Commercial Bank of Albany from the firm property the amount of the note the defendant Pierson acted with intent to hinder, delay and defraud the creditors of the firm, but that at the time of making-such assignment the defendant Pierson believed that such note was a firm obligation, or an obligation which was legally enforceable against the property and assets of the firm, and that he, therefore, was not morally chargeable with wrong in directing its payment out of the property of the firm; that the appropriation by him of the money borrowed of the bank to the payment of the firm debts created a claim in his favor against the estate, which, before the assignment, could have been properly paid out of' the firm’s assets. As a conclusion of law he found that the debt created by the loan by the National Commercial Bank was the individual debt of the defendant Pierson, and not that of the firm; that the assignment was consequently fraudulent as to the plaintiff, and directed judgment accordingly.

If the debt created by the loan be the individual liability of the survivor, and one that the firm ought not to pay, and the firm be insolvent, the survivor had no right in his assignment to direct its payment out of the firm’s assets, and by so doing the assignment was rendered fraudulent as to the creditors of the firm. Wilson v. Robertson, 21 N. Y., 587; Menagh v. Whitwell, 52 id., 146; The Second National Bank of Oswego v. Burt, 93 id., 233— 245; Bulger v. Rosa, 119 id., 459-465; 29 N. Y. State Rep., 678.

It thus becomes important to determine whether the loan contracted by the survivor became a firm obligation, for the payment, of which its assets may justly be applied. As we have seen, the note given upon procuring such loan bore the name of the firm and that of Henry R. Pierson, as survivor, but at. the time that this note was given it was known to all of the parties concerned that the senior member of the firm had died.

The death of a partner puts an end to the copartnership, and there is no .longer any power or authority of the surviving partners to carry on for the future a partnership trade or business or to engage in new transactions, contracts or liabilities on account thereof. Story on Partnership, §§ 342, 343 ; Hall v. Lanning, 91 U. S., 160-170; Farr v. Morrill, 53 Hun, 31-35; 23 N. Y. State Rep., 532.

It is thus apparent that whilst the note in form would appear to create an obligation of the firm, it is at law unavailable as such, for the reason that there was no power in the survivor to make it. But it does not follow but that it is a claim which ought in justice and equity to be paid out of the firm’s assets. If it is, the preference in the assignment would not be void, for the law will not declare fraudulent that which equity adjudges right and proper. Denton v. Merrill, 43 Hun, 224-229; 5 N. Y. St. Rep., 387.

We must, therefore, consider whether there are equities which will support the claim of the bank to be paid out of such assets. It is apparent that the money borrowed from the bank by the survivor was for the purpose of paying the creditors of the firm the claims then matured and pressing. The amount of the loan was credited, upon the open account of the firm with the bank, and subsequently $10,000 thereof, or thereabouts, were drawn out by the survivor upon his check and used in the payment of the liabilities of the firm. At the time this loan was made it was not supposed by the officers of the bank or the surviving partner that the firm was insolvent, and no question is made but that both parties acted in good faith.

The question is therefore presented whether a surviving partner may in good faith borrow money for the express purpose of paying the debts of his firm, and by so applying the money borrowed create an equity for the satisfaction of which the assets of the firm may properly be devoted. As we have seen, the survivor became entitled to the assets, which he had the right to sell, mortgage and dispose of in order to pay the debts and close up the affairs of the copartnership. H he had the power to sell or mortgage, it would seem to follow that he had the power to borrow and pledge the assets for the repayment of the loan, and the amount borrowed having been faithfully applied in liquidation of the debts of the copartnership, equity will recognize the justness of the claim of the party making the loan. Gases may arise where the exercise of such authority may be highly expedient, if not necessary, for the preservation of the rights of creditors and persons interested in the distribution of the assets of the firm; as for instance, creditors may by levy expose the assets to a forced public sale.under circumstances which would work great sacrifice to the estate. In case a survivor should be insolvent, he might be able to raise money by a pledge to repay out of the partnership assets when he could not obtain it upon his own credit. We do not see that harm could result to the other creditors by permitting this to be done, for it would not increase the obligations of the firm nor lessen their share in the distribution of the assets in case the firm be insolvent. It.is not questioned but that the survivor had the right to turn out as a security or pledge the assets of the firm in payment for the money received by him. He could have sold the assets and repaid the money loaned at any time before executing the assignment, and without the taint of fraud.' It is not apparent how the rights of the parties are changed and the act of the survivor made fraudulent by doing that in the assignment which he had the right to do immediately before executing it.

The precise question involved in this case does not appear to have been passed upon in any reported case, so far as we have been able to discover, except in Haynes v. Brooks, 8 Civ. Pro., 106-113, where an assignment was made for the benefit of creditors by a surviving partner. In that case as in this the creditors had loaned money to the surviving partner to pay a note of the firm. Van Vorst, J., in commenting upon the transaction, said: If a firm obligation was retired by the use of the money loaned or advanced by Brown & Co., the surviving partner would have been entitled to be repaid out of the firm property. As the moneys of Brown & Co., in fact, paid a firm obligation, I see no objection to the subrogation of them in equity to the rights of the surviving partner or to the regarding of them as entitled to be repaid out of the firm assets. That works injustice to no one.” The learned judge concluded by ordering the complaint dismissed, thereby sustaining the validity of the assignment This case was affirmed in the general term, 42 Hun, 528; 4 N. Y. State Rep., 587, and in this court in 116 N. Y., 487; 27 N. Y. State Rep., 478. This question, however, was not considered in either of the appellate courts.

In the Matter of the Estate of Davis and Desauque, 5 Whart., 528, it was held that after the dissolution of a copartnership the partner authorized to settle the estate may borrow money on the credit of the firm for the purpose of paying its debts, and if the credit be given in good faith, though with a knowledge of the dissolution, and the money borrowed be faithfully applied in liquidation of the debts of the partnership, the creditor has a claim against the firm assets and is not to be considered as a creditor merely of the partner borrowing.

In the case of Prudhomme v. Henry & Laurans, 5 La. Ann., 700, it was held that where a liquidating partner after dissolution has borrowed money to pay the debts of the firm, the partnership "is liable so far as the evidence shows that the money was used for the benefit of the firm.

In the last two cases the partnerships were not insolvent, and the question arose as between the partners. The courts, however, recognized the claim of the lender as one which ought to be paid by the partnership.

In the case under consideration it is true that the partnership is insolvent, and the question arises as between the bank and creditors of the partnership, but the creditors have not been harmed or prejudiced by the action of the bank in loaning the money to the survivor, for the assets were increased in value to the amount of the loan and the money drawn out of the bank was applied in extinguishment of the claims of the creditors, thus reducing to that extent the liabilities of the firm.

When a partnership is dissolved by the death of a partner the survivor is entitled to the possession and control of the joint property for the purpose of closing its business, and to that end and for that purpose he may according to the settled principles of the law of partnership administer the affairs of the firm and by sale, mortgage or other reasonable disposition of the property make provision for meeting its obligations.. He may for that purpose borrow money and give a valid pledge of the copartnership property for its repayment. Williams v. Whedon, 109 N. Y., 333; 15 N. Y. State Rep., 265; Emerson v. Senter, 118 U. S., 3-8; Fitzpatrick v. Flannagan, 106 id., 648; Butchart v. Dresser, 4 De G., M. & G., 542; S. C., 10 Hare, 453; In re Clough, Bradford Commercial Banking Co. v. Cure, L. R., 31 Ch. Div., 326.

In Case v. Beauregard, 99 U. S., 119-124, Mr. Justice Strong in commenting upon the rights of partners in a suit involving the marshalling of the assets, says: “The right of each partner extends only to a share of what may remain after payment of the debts of the firm and the settlement of its accounts. Growing out of this right, or rather included in it, is the right to have the partnership property applied to the payment of the partnership debts in preference to those of any individual partner. This is an equity that partners have as between themselves and in certain circumstances it inures to the benefit of the creditors of the firm. The latter are said to have the privilege or preference, sometimes loosely denominated a lien, to have the debts due to them paid out of the assets of a firm in course of liquidation to the exclusion of the creditors of its several members. This equity is a derivative one. It is not held or enforceable in their own right. It is practically a subrogation to the equity of the individual partner, to he made effective only through him. Hence, if he is not in a condition to enforce it, the creditors of the firm can not be. Rice v. Barnard et al., 20 Vt., 479; Appeal of the York Co. Bank, 32 Pa. St., 446.

“But so long as the equity of the partner remains in him, so long as <he retains an interest in the firm assets as a partner, a court of equity will allow the creditors of the firm to avail themselves of his equity and enforce through it the application of those assets primarily to the payment of the debts due them whenever the property comes under its administration.”

In the case of Saunders v. Reilly, 105 N. Y., 12; 6 N. Y. State Rep., 452, it was held that a mere general creditor of a firm having no execution or attachment has no hen whatever upon its personal assets. That while firm creditors are entitled to a preference over creditors of the individual members of the firm in the payment of their debts out of the assets in the course of liquidation, their equity is not held or enforceable in their own right but is a derivative one, practically a subrogation of the equity of each individual partner to have the firm assets applied primarily to the payment of its debts, and where no such equity exists in favor of any member of the firm, the firm creditors have none, and therefore where a judgment is recovered against all the members of a firm upon a joint obligation hut not an indebtedness of the firm, the firm property may be levied upon and sold on execution issued on the judgment. See, also, Dimon v. Hazard, 32 N. Y., 65; Stanton v. Westover, 101 id., 265; Kirby v. Schoonmaker, 3 Barb. Ch., 46; Brown’s Ex'r v. Higginbotham, 27 Am. Dec., 618; Peyton v. Stratton, 7 Gratt, 380; Stebbins v. Willard, 53 Vt., 665.

It appears to us that the conclusion is warranted from the authorities referred to, that where a person in good faith loans money to a surviving partner and where the money is faithfully applied by such partner in satisfaction of the liabilities of the firm, the claim becomes one which in equity should be paid out of the assets of the firm; and in an accounting between the survivor with the personal representatives of the deceased partner, equity will recognize the right of the surviving partner to have the money so borrowed and applied by him repaid out of the assets of the firm, and an assignment so directing is not fraudulent

Attention is called to the fact that the deceased partner left a will making the survivor his sole devisee and legatee, and it is claimed that he left no individual debts. If this were so it is not apparent that it would affect the equities of the bank, but the evidence is silent upon the question as to whether or not the deceased left individual debts. The referee refused to so find, and we cannot assume that there were none.

It may also be claimed that the firm being insolvent the survivor has no equities to which the bank can be subrogated, for the reason that he is liable individually for the payment of the firm debts. But the bank is not asking for any relief by way of subrogation; it is only defending the provision already made for it in the assignment from the claim of fraud. Even though both the firm and the survivor were insolvent the survivor still had the right to have his contract recognized, and to say which of the creditors should be paid first and to so provide in his assignment. Williams v. Whedon, supra.

It follows that the judgment should be reversed and a new trial granted, with costs to abide the final award of costsl

Vann, J.,

dissents upon the ground that the note preferred in

the assignment as a firm debt was simply the individual debt of the surviving partner, who, as he did not bind the firm in creating the debt, could bind neither it nor its property by directing payment out of the firm assets.

All concur, except Yanet, J., dissenting, and Potter, J., not voting.


text:
    The People ex rel. Abram J. Miller, Resp’t, v. Hillyer Ryder, as County Treas’r, App’lt.

      (Court of Appeals, Second Division,

      Filed March 17, 1891.)

    1. Partition—Unknown heirs—Code Civ. Pro., § 841.
    Although § 841, Code Civil Procedure, raises the presumption that unknown heirs are dead after twenty-five years from the deposit of money with the county treasurer in partition proceedings, it only covers the unknown heirs that were presumed to be living at the time of depositing the money, and as heirs of such heirs may exist and under the provisions of the section they cannot be presumed to be dead, the county treasurer cannot be compelled to pay over such moneys under said section.
    3. Same—Code Civ. Pro., § 1583, unconstitutional.
    The provisions of § 1583, Code Civil Procedure, authorizing the court to divest the unknown heirs that may exist and who are not presumed to be dead of their interest in such moneys, and to vest other and different persons therewith, are unconstitutional as depriving persons of their property without due process of law,

      Appeal from an order of the general term, second department, affirming an order of the special term directing a peremptory writ of mandamus to issue to the defendant requiring him to pay over certain moneys in obedience to an order theretofore made in an action brought to partition real estate, in which Matilda Cree was plaintiff, and Cornelius Grriffen and others were defendants.

      Glayton Ryder, for app’lt; Abram J. Miller, relator, in person.

       Reversing 34 N. Y. State Rep., 333.

   Haight, J.

Lewis B. Grriffen died intestate seized of real estate in Putnam county. Subsequently, and in September, 1862, an action was brought for the partition thereof, and such proceedings were had thereon that in April, 1863, a judgment for the sale thereof was entered, and on or about the 19th day of December thereafter the same was sold, and the sum of $6,480, or one-fifth of the net proceeds of the sale, was brought into court and deposited with the treasurer of the county of Putnam as the share of the unknown heirs of Deborah Ann McCormick, a deceased sister of the said Lewis B. Grriffen. On the 8th of February, 1890, the relator and others presented a petition to the supreme court representing that more than twenty-five years had elapsed since the payment of the before-mentioned sum into court; that no claim had been made therefor; that due inquiry for such unknown heirs had been made, and none found, and prayed that such fund with the accumulations thereon may be distributed among the known heirs of Deborah Ann McCormick. Thereupon a decree was made by the court declaring that such unclaimed proceeds, with the accumulations of interest thereon, amounting to the sum of $18,000, was vested at the time of the payment into court of such proceeds in such known heirs. The decree further provided for the distribution of such proceeds among such heirs, specifying them by name, and the treasurer was directed to pay over such fund to the persons named. The treasurer having refused to make such payment, the mandamus in question was issued.

Section 1582 of the Code of Civil Procedure, as amended by chap. 39 of the Laws of 1889, provides as follows: “ Where a person has been made a defendant as an unknown person; or where the name of a defendant is unknown; or where the summons has been served upon a defendant without the state, or by publication, and he has not appeared in the action; the court must direct his portion to be invested in permanent securities, at interest, for his benefit, until claimed by him or his legal representatives. But after the lapse of twenty-five years from the time of the payment into court, or to the treasurer of any county,.of any portion of the proceeds of the sale of real property for unknown heirs, in any action of partition, without any claim therefor having been made by a person entitled thereto, and upon there being made and presented to the court, at a special term thereof, proof, by. petition or otherwise, showing to the satisfaction of the court that due inquiry for such unknown heirs has been made, and that no claim has been made for such portion of said proceeds by any person entitled thereto, the said court shall have power to decree that such unclaimed portion oí such proceeds was vested at the time of such payment in the known heirs of the common ancestor of such unknown heirs, and their heirs and assigns, and shall make an order in such action, directing the payment to them, or their assigns, of the respective shares or portions of, or interests in, such proceeds, to which they are entitled; and upon serving on the county treasurer a certified copy of such order, the treasurer shall so pay over and distribute the same, after deducting his lawful commissions, and shall thereupon be exempt from all liability on account thereof.”

And § 841, as amended by chap. 40 of the Laws of 1889, among other things, provides as follows: “And where in any action of partition, in this state, any portion of the proceeds of the sale of real property is, or has been, paid into court, or paid to the treasurer of any county, for any unknown heirs, and is unclaimed for twenty-five years, the lapse of twenty-five years after such payment raises the presumption of the death of such unknown heirs, and they are, and shall be presumed to be dead, in any action or proceeding for the purpose of distributing and paying over such proceeds.”

Undoubtedly these provisions of the Code should be construed together, and we do not question but that the legislature has the power to change rules of evidence as they have previously existed and to provide other and new remedies. People v. Turner, 117 N. Y., 227-233; 27 N. Y. State Rep., 158; Howard v. Moot, 64 N. Y., 262; Hand v. Ballou, 12 id., 541; Rexford v. Knight, 11 id., 308.

But laws of this character which were intended for retroactive operation should be strictly construed, especially in so far as they provide for the vesting of property.

At the time the money was brought into court under the decree in the partition action the presumption existed that there were unknown heirs then living of Deborah Ann McCormick. Under the provisions of § 841 it will be observed that such unknown heirs are presumed to be dead after the lapse of twenty-five years, but the provision only covers the unknown heirs that were presumed to be living at the time the money was paid to the treasurer. Heirs of such heirs may exist, and under the provisions they cannot be presumed to be dead. A pérson is presumed to be "living until the time fixed by the statute in which he shall be presumed to be dead. Lawson on Presumptive Evidence, 200.

The unknown heirs, therefore, who were presumed to be living 'at the time of the payment to the treasurer are presumed to have continued to live for twenty-five years thereafter, during which time many new heirs may have come into existence.

Under the provisions of § 1582 of the Code the court is given power to decree that such fund was vested at the time of such payment in the known heirs of the common ancestor, thus authorizing and empowering the court to divest the unknown heirs that may exist and who are not presumed to be dead, and to vest other and different persons therewith.

This would be violative of the constitutional provision which inhibits the deprivation of persons of their property without due process of law.

Had the legislature provided that after the lapse of twenty-five years it should be presumed that there were no unknown heirs living at the time the money was paid to the treasurer, a different question would have been presented.

The order appealed from should be reversed and the application for u mandamus denied, with costs in this court and the general term, together with fifty dollars costs in the special term to the ' defendant.

All concur.


author: Follett, Ch. J.

text:
    James Fraser et al., Ex’rs, Resp’ts and App’lts, v. The Trustees of the General Assembly of the United Presbyterian Church of North America, Imp’ld, App’lts and Resp’ts.

      (Court of Appeals, Second Division,

      Filed March 17, 1891.)

    1. Wills—Equitable convebsiow.
    When, a will expressly confers power upon the executors to convert real estate into money and it is evident that the testator contemplated that it must be done for the purpose of carrying the will into effect, and it appears that in no other way can the intent of the testator be effectuated, the realty will be deemed to have been converted into personalty.
    2. Same.
    Testator by his will after bequeathing a house and lot and the income of $4,000 to his wife for life, directed that $1,600 be paid in legacies three years after his wife’s death and gave his residuary estate to four legatees, among whom was defendant, a foreign corporation, not authorized to take real estate by the laws of this state. The executors were authorized and empowered to sell real estate. The personal estate was exhausted in the payment of debts so that the estate consisted of the said house and an equity of $6,500 in a farm. Meld, that testator must have intended that the farm should be .converted into money within three years after his death; and the legacies paid and the residue divided according to his directions, and the house and lot sold three years after his wife’s death and with the $4,000 disposed of in like manner.
    Appeal from a judgment of the general term of the supreme court in the fifth judicial department, which affirmed a judgment entered on a decision of a special term.
    February 26, 1880, John McNaughton duly executed his last will and testament, the material parts of which are as follows :
    “Item First. I give and bequeath to my wife, Margaret McNaughton, my house and lot in the village of Caledonia, and all my household furniture, to have and to hold the same to her for and during her natural lifetime.
    “ Item Second. I give in trust to my executors four thousand" dollars to.be securely invested, and the interest and income thereof paid to my wife, Margaret, semi-annually year by year, during her lifetime. The above legacy, and the provisions herein made for her, are to be taken and received by her in lieu of all right or claim of dower of any land or real estate of which I may die seized, nevertheless. These bequests revert at the death of my wife and fall back into the general fund of my estate.
    “ Item Third. I do hereby authorize and empower my executors, or a majority of them, as soon as convenient after the death of my wife, to sell and dispose of my real and personal estate of which I may die seized, on such terms as to the said executors or a majority of them shall seem just and proper,within three years-after my wife’s death.
    “ Item Fourth. I give and bequeath to the following named children of my sister, Janet McLaren, viz.: To John F. McLaren the sum of three hundred dollars, to be paid within three years from my death, without interest.
    “To William McLaren the sum of one hundred dollars, to be paid to him within three years from my decease, without interest.
    “ I give to my niece, Jane Atchinson, the sum of three hundred dollars, to be paid within three years of my decease, without interest.
    “Item Fifth. I give and bequeath to my niece, Margaret Sharp, the sum of three hundred dollars, to be paid within three years from my decease, without interest.
    “ Item Sixth. I give and bequeath to the following named children of my sister, Margery McKenzie, viz.: I give to Duncan McKenzie the sum of $3,000, to be paid within three years from my death, without interest.
    “I give to my niece, Margery McDougal, $300, to be paid within three years of my death, without interest. If they all survive at the time of the final distribution of my estate; but if they do not all survive at the time of such distribution, such surplus, if any, shall be paid equally to the survivors.
    “Item Seventh. If there is not a vault oh the lot where my wife Sybil’s body is interred, and where I direct my body shall be interred, I hereby require my executors to procure and erect a suitable vault upon said lot, of a capacity to receive two coffins, with a raised panel on the cover, with a suitable inscription engraved thereon, and all expenses incurred therefor I hereby authorize and direct my executors to pay.
    “ Item Eighth. I hereby authorize and empower my executors, or a majority of them, as soon as convenient after my decease, to sell and dispose of my real estate of which I may die seized on such terms as to the executors, or a majority of them, shall deem just and proper, within three years from my death, and until said real estate is sold I hereby authorize my executors to take charge and supervision over it, and the avails of the said real estate, together with such balance as shall remain of my personal property after all debts, charges, funeral expenses and legacies are paid off " as provided for, together with all expenses and charges of executing this will.
    “ Item Mine. I hereby direct to be divided equally between and paid to the following named societies:
    “ I do hereby give and bequeath to The American Bible Society, formed in Mew York in the year 1816, one-fourth part of the residue of my estate, to be applied to the charitable use and purpose of said society.
    “ Item Ten. I do hereby give in trust to the Trustees of the General Assembly of the United Presbyterian Church of North America the one-fourth part of the residue of my estate, to be appropriated by the said General Assembly to the foreign mission fund of the said church.
    “ Item Eleven. I also give in trust to the said General Assembly the one-fourth of the residue of my estate, to be appropriated by the said General Assembly to the Home Missionary Society fund of said church.

      “ Item Twelfth. I further give in trust to the said General Assembly the one-fourth part of the residue of my estate to be appropriated by the said General Assembly to the educational fund of said church, and a-uthorize my executors to pay over the same to them, or their treasurer for the time being, to be applied to the charitable use and purpose of said general assembly.
    “ And lastly, I do hereby nominate and appoint my friends, James Frazer, Esq., and William H. Walker, both of Caledonia, Livingston county, N. Y., and Daniel Stewart, of Wheatland, Monroe county, to be the executors of this my last .will and testament, hereby revoking all former wills by me made.”
    April 26, 1881, the testator died, leaving him surviving Margaret McNaugkton, his widow, and George H. Bristol and Larius F. Bristol, Jr., infant sons of a deceased daughter, his heirs and only heirs at law and next of kin.
    The nephews and nieces to whom legacies were bequeathed are living. The testator’s personal property was insufficient to pay his debts and the expenses of settling his estate. He died seized of a house and lot in the village of Caledonia (mentioned in the first item of the will) worth about $4,000 and of a farm of 117 acres in the same village worth about $9,000 but subject to a mortgage of about $2,600. This action was brought by the executors to obtain a construction of the will and to have the rights of the beneficiaries determined. The nephews and nieces to whom legacies are given by the fourth, fifth and sixth divisions of the will answer jointly admitting the allegations of the complaint. The heirs at law served through their guardian ad litem the usual answer of infants submitting their rights and interests to the court The American Bible Society and the Trustees of the General Assembly of the United Presbyterian Church of North America answered separately. No appeal is taken to this court except by the Trustees of the General Assembly of the United Presbyterian Church of North America.

      L. K Bangs, for pl’ffs; Joseph W. Taylor, for The United Presbyterian Church of North America; P. M. French, for George H. and Larius F. Bristol, Jr.
   Follett, Ch. J.

The only question presented by this appeal is whether the testator’s realty is converted by the will into personalty. The fee of the farm is not devised, nor is the fee of the house and lot, and both the death of the testator descended to his heirs-at-law, George H. Bristol and Larins F. Bristol, Jr., subject to the life estate of the widow in the house and lot, or to her dower right in both as she may have elected, and also subject to such legacies, if any, as are charged xipon the realty. It is evident from the face of the will that the testator did not intend to die intestate as to any part of his estate. In all of the divisions of his will, subsequent to the seventh, he speaks of the residue of his estate, which he disposes of as "such in those provisions. This will was executed just fourteen months before the testator’s death, and it is not asserted that his liabilities were increased or the amount or character of his estate changed within that period, and at his death his debts exceeded his personalty. He directed, by the second division, that there should be invested for the benefit of his widow $4,000, the interest upon which is to be paid to her semiannually during life; and he bequeathed to nephews and nieces legacies amounting to $1,600, making the aggregate amount of legacies $5,600, none of which can be paid without resorting to the real estate, which fact must have been as evident to the testator at the date of his will and at all times thereafter as it is now apparent to the court. Within the rule laid down in McCoon v. McCoon, 100 N. Y., 50, the legacies bequeathed in the second, fourth, fifth and sixth divisions of the will are a charge upon the realty and must be provided for out of the avails produced by a sale of it

It is apparent, we think, from the face of the will, taken in connection with the situation of the testator's estate, that he must have intended that his farm should be sold and converted into money within three years after his death and the legacies for the benefit of his widow, nephews and nieces provided for, and that one-fourth of the residue should be paid to The American Bible Society and three-fourths of it to the Trustees of the General Assembly of the United Presbyterian Church of ¡North America; and that within three years after the death of his widow the house and lot should be sold and the avails thereof, together with the $4,000 invested for her benefit, be paid in like proportions to those corporations.

When a will expressly confers power upon the. executors to convert real estate into money and it is evident that the testator contemplated that it must be done for the purpose of carrying the will into effect, and it appearing that in no other wav can the intent of the testator be effectuated, the realty will be deemed to have been converted into personalty. Hood v. Hood, 85 N. Y., 561; Lent v. Howard, 89 id., 169; Moncrief v. Ross, 50 id., 431; Fisher v. Banta, 66 id., 468; Clift v. Moses, 116 id., 144; 26 N. Y. State Rep., 405.

This -will does not, in express terms nor by implication, confer upon the executors power to determine whether or not a sale shall be made, but vests them with discretion when within specified periods both pieces shall be sold. ¡Nor can the inference be drawn from the will and the situation of the estate that he did not absolutely intend to require his executors to convert his realty into personalty for the purpose of carrying out his intentions, for, .as before stated, in no other way could he have anticipated that they could be carried into effect. The eighth and ninth divisions should be read as though separated by a comma and connected by the relative “ which,” it being clear that the testator in the ninth and subsequent divisions referred to the avails of his estate after payment of debts, charges, funeral expenses, legacies and expenses of administration mentioned in the eight divisions.

This case is not within the reason of Scholle v. Scholle, 113 N. Y., 261; 23 N. Y. State Rep., 171, in which every devise and legacy could be satisfied without a conversion of the realty into money, while in the case at bar none of them except the devise of the life estate in the house- and lot to the widow can be without a conversion. A conversion being absolutely indispensable to carry out the purposes of the testator and a power to convert being expressly given to his executors, it must be held that it was his intention that the realty should be sold for the purpose of carrying out the provisions of his will.

Tme judgment is modified as follows: (1.) The part which adjudges ; “ That under the said will there is no equitable conversion of any of the real estate into personal property,” is reversed, and it is adjudged that the realty of which the testator died seized is converted into personalty; (2) The part which adjudges “that the portion of the real estate of said John McNaughton mentioned in said items, numbers 10, 11 and 12 of his will, are not disposed of by said will but descend to his heirs-at-law,” is modified by adding thereto the words, “ subject to the power and duty of the executors to sell, and subject to the trusts declared in the 8th, 9th, 10th, 11th and 12th divisions of the will.” (3) It is adjudged to be the duty of the executors to sell the farm, and out of the avails pay the costs allowed in this action, and, subject to the claims of ■creditors, pay the legacies for the benefit of the widow, nephews and nieces, and one-fourth of the residue, subject to the limitation of chap. 360, Laws of 1860, to the American Bible Society, and three-fourths of the residue, subject to the limitation of that chapter, to the trustees of the General Assembly of the United Presbyterian Church of North America. (4) After the death of the widow the house and lot and household furniture must be sold and the avails thereof, together with the sum invested for her benefit, paid, subject to the limitation of chap. 360, Laws of 1860, in like proportions to said corporations, (5) That part of the judgment which awards to the guardian ad litem $68.38 costs against the trustees of the general assembly of the United Presbyterian ■Church of North America is reversed, and it is adjudged that said costs be paid to said guardian ad litem out of the estate. The trustees of the General Assembly of the United Presbyterian Church of North America are allowed taxable costs in the general term and in this court, payable out of the estate, and the guardian ad litem is allowed taxable costs in this court, payable out of the estate.

The judgment as so modified, is affirmed.

All concur.

       Modifying and affirming 33 N. Y. State Rep., 347.


text:
    Margaret Riordan, Adm’rx, App’lt, v. The Ocean Steamship Co. of Savannah, Georgia, Resp't.

      (Court of Appeals, Second Division,

      Filed March 17, 1891.)

    1. Negligence—Contributory.
    Plaintiff’s intestate was engaged in loading freight on one of defendant’s vessels. He, with three others, got upon an elevator used for that purpose to ascend from the hold for dinner. There was ample room for all the men to stand upon it and be clear of the hatch, but in some way Riordan was caught between the hatchway and the elevator and received injuries which resulted in his death. The court charged that “ if deceased was rightfully on the elevator at the time of his injury, in the absence of the testimony of an eye witness of the accident, the jury may assume that he received his injury in the performance of his duty and had not omitted the precautions which a prudent man would take in the presence of known danger.” Held, error.
    2. Same—Master and servant.
    A master is not charged with the duty of employing a servant to watch another servant when he is riding upon an elevator.
    Appeal from an order of the general term of the court of common pleas for the city and county of New York, reversing a judgment entered upon a verdict at the trial term of that court, and granting a new trial.

      George William Hart, Jr., for app’lt; William H. Cohen, for resp’t

       Affirming 32 N. Y. State Rep., 328.

   Haight, J.

This action was brought to recover damages for the death of the plaintiff’s intestate.

On the 81st day of January, 1888, Michael Riordan, the deceased, was engaged as a servant of the defendant in tiering up freight in the hold of the steamship “ Chattahoochee,” in the city of New York. The freight was let down into the hold by an elevator which was worked by a winch. The winch was set in motion and stopped by means of a lever operated by a man who stood by its side. He got his word to raise the elevator from the men in the hold who discharged the freight therefrom. In the hold there was a light, with a large reflector behind it, opposite the elevator. The elevator had just descended into the hold of the vessel with a load of freight as the call for dinner was given. The four men in the hold thereupon got upon the elevator and gave the word to hoist. The man at the winch pulled the lever but could not raise the elevator, for the reason that it was so heavily loaded. He thereupon told them to remove the freight. They then took off all the freight but two barrels, and three of them again got upon the elevator, and the deceased gave the word to hoist. The elevator commenced to ascend slowly and had gone a distance of about seven feet when a cry to stop was raised. Thereupon the elevator was immediately stopped by the winchman and Riordan was discovered to be caught between the elevator and the combing of the hatch. He was then released and with the elevator brought up to the deck of the vessel. His injuries were of that character that he soon, thereafter died. The deceased had been in the service of the defendant for over eight months. The platform of the elevator was about seven feet in length and five in width and with the two barrels on it there was ample room for all of the men to stand upon it and be clear of the hatch.

Two of the men who were with Riordan in the hold of the vessel at the time that he was caught were called as witnesses on the trial, and they testified that they could not tell what position he was in on the elevator, or where he was standing at the time that he was caught; that they were standing near the middle of the elevator, and the first that they noticed of him was after he was caught No evidence was given tending to show how he came to be outside of the edge of the platform of the elevator so as to be caught under the combing of the hatch. We are thus left in ignorance as to the cause of the accident.

The question of his contributory negligence had consequently become important, and was sharply litigated. Thereupon, and at the conclusion of the trial, the plaintiff requested the court to charge that “ if the deceased was rightfully on the elevator at the time of his injury, in the absence of the testimony of an eye witness of the accident, the jury may assume that he received his injury in the performance of his duty, and had not omitted the precautions which a prudent man would take in the presence of known danger.” This request was granted by the court, and an exception was taken by the defendant.

There is no question but that Riordan had the right to be upon the elevator; that he was in the employ of the defendant, and was injured whilst in the discharge of his duty as such employe. The vice in the charge is that the instruction authorized the jury to assume, in the absence of the testimony of an eye witness, that Riordan had not omitted the precautions which a prudent man would take in the presence of known danger, thus permitting the plaintiff to establish her cause of action without evidence. We do not understand such to be the law.

The plaintiff in support of his request relies upon the case of Galvin v. The Mayor, etc., 112 N. Y., 223; 20 N. Y. State Rep., 569. In that case the plaintiff’s intestate was engaged as driver of a cart delivering coal at the court-house. There was a heavy iron grating used to cover a hatchway in the sidewalk leading to the basement of the court-house through which the coal was delivered. The grating hung upon hinges, and was thrown back against the building, but was not fastened as it should have been. It fell upon him, causing his death. No person saw the grating at the instant it fell.

Evidence was offered and excluded by the trial court to show that by the known and established mode of doing the business the deceased was called upon in the performance of his duty to go into the basement through the hatchway to procure the signature of some official to a ticket showing.the delivery of a load of coal. It was held, Chief Judge Ruger delivering the opinion of the court, that 'this evidence was competent, and had it been received, the inference might have been properly drawn from the facts and circumstances surrounding the case that the deceased .was in the discharge of his duty in the place where he received his injuries and had not omitted the precautions a prudent man would take in the presence of known danger.

A very different question was there involved from the one here under consideration. In that case the grating was raised and not fastened as it should have been. It was left standing in a dangerous condition without the knowledge of the deceased. It was his duty to enter the basement and get a receipt for the delivery of his load of coal, and whilst in the discharge of this duty the grating fell upon him, causing his death. These are the inferences which might properly be drawn from the evidence had it not been excluded, and under these facts he had the right to suppose that the grating was securely fastened, and that he was not, therefore, guilty of contributory negligence. But whilst inferences may properly be drawn from the surrounding facts and circumstances, it does not follow that we may assume facts not proven. Between the two propositions, the one presented by the case referred to, and the other by the charge excepted to, there is .a wide difference. One is an inference drawn from facts; the other is an assumption without facts.

In the case of Dobbins v. Brown, 119 N. Y., 188; 28 N. Y. State Rep., 957, the same judge who delivered the opinion in the Galvin case, in commenting upon the latter case, says that “any inference that the accident happened in the manner suggested would, it seems to us, have been substituting conjecture for proof and violate the rule requiring proof always to be made the basis for a recovery;” and again, further commenting on the same case, he says: “ Whatever might have been the cause of death, it was for the plaintiff to show how it occurred. The burden of proof lay upon her to establish the liability of the defendants, and to do this she was bound to show affirmatively not only the absence of contributory negligence on the part of her intestate, but the negligence of the defendants with respect to some matter which caused the injury complained of.”

We are not permitted to guess or assume that the deceased was free from fault because he was injured or that every person will take care of himself from regard to his own life and safety, for the reason that human experience shows that persons exposed to danger will frequently forego ordinary precautions of safety. It is incumbent upon the plaintiff to show by a preponderance of evidence such facts and circumstances as will satisfy the minds of the jurors that the deceased exercised proper care and prudence and did not omit the precautions of a prudent man under the circumstances. The law demands proof and not mere surmises. Bond v. Smith, 113 N. Y., 378; 22 N. Y. State Rep., 666; Cordell v. The N. Y. C. & H. R. R. R. Co., 75 N. Y., 330; Reynolds v. The N. Y. C. &H. R. R. R. Co., 58 id., 248; Hoag v. N. Y. C. & H. R. R. R. Co., 111 id., 199; 19 N. Y. State Rep., 80.

It is claimed that the defendant was not prejudiced by the charge. That it was made at the close of the case and probably did not produce the slightest impression on the minds of the jurors. We can not, however, assume this to he so, for without the presumption there was no sufficient evidence to justify the verdict As we have already seen, it does not appear how or in what manner .Riordan came to be caught between the elevator and the hatch; whether or not he had exercised the precautions of a prudent man does not appear, and there are no sufficient facts from which it can be inferred. He had light so that he could see the elevator; there was plenty of room thereon on which he could select his own place to stand; as it was ascending to the deck of the vessel it was approaching the light of the noon-day; the elevator raised slowly at its ordinary speed; the apparatus was safe and in perfect order, and had he not in some unexplained manner got outside of the platform of the elevator he would not have been injured. It consequently follows that it was only by presuming that he had not omitted the precautions of a prudent man that the verdict upon this branch of the case could be sustained.

But again, there is no claim that there was any defect in the machinery or in the operation of' the elevator. It was in order, and the manner of its operation was well known and understood by the deceased. The only claim of negligence on the part of the defendant is-that it neglected to have a gangway-man to stand at the hatchway and give the signals for the winchman to raise and lower. It is not, however, claimed that the hoisting of the elevator was done at an improper time or that the starting was the proximate cause of the injury. On the contrary it affirmatively appears that Riordan himself gave the signal to hoist. It is not, therefore, apparent how the presence of a gangway-man would have prevented the accident unless he could have seen down the hatchway of the elevator and observed the position of Riordan in time to stop it before the injury was inflicted. We do not understand that the master is charged with the duty of employing a servant to watch another servant when he is riding upon an elevator. It does not, therefore, appear that the injury was the result of any negligence on the part of the defendant.

The order should be affirmed and judgment absolute ordered against the appellant upon the stipulation.

Order affirmed and judgment absolute rendered against the appellant, with costs.

All concur.