text:
    Emma M. Morgan, Resp’t, v. Daniel W. Powers et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Landlord and tenant—Notice to quit.
    The giving of a second notice to quit by a landlord to a tenant at will, after the expiration of a prior notice to quit, waives his right to proceed under the first notice.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court

      Henry G. Danforth, for app’lts; P. Chamberlain, Jr., for resp’t.
   Lewis, J.

The defendant Daniel W. Powers, in the year 1885, erected upon land then owned by his wife, on Prince street, in the city of Rochester, a dwelling house, and his son William C. Powers, by the consent of his father, commenced living in the house with his family, consisting of his wife and infant child. The plaintiff, who is the stepmother of Mrs. William C. Powers, became a member of their family, and continued to live there until the 16th day of August, 1893. William C. Powers left his home and family in June, 1892, and, so far as appears, has never returned. The family seems to have occupied the house with the understanding that no rent was to be paid, and none was paid. The defendant Powers became the owner of the premises in the month of February, 1893 ; and on the 24th day of June, thereafter, he caused to be served upon the occupants of the house a written notice, as follows:

“ To Mr. William C. Powers, to Mrs. William 0. Powers, to Mrs. Emma Morgan: You are directed to leave the house No. 6 Prince street, in the city of Rochester, on or before Monday, the third day of-July next.
“ Dated June 24, 1893.
“Yours, etc., D. W. Powers, Owner of House.”

Mrs. William C. Powers, with her mother and child, continued in possession of the premises, paying no attention to the notice. Thereafter, and on the seventh day of August, 1893, the defendant Powers caused to be served npon the occupants óf the house a second notice, of which the following is a copy:

“ To Mr. William C. Powers, Mrs. William C. Powers (alias Del Powers), Mrs. Emma Morgan : You will please take notice that you are requested to. surrender and deliver up to me possession of the house and premises No. 6 Prince street, in the city of Rochester, N. Y., and to remove therefrom, on or before the 9th day of September, 1893, at 12 o’clock noon.

“Dated Rochester, N. Y, August 7, 1893. D. W. Powers.”

On the 16th day of August, while Mrs. Powers and the plaintiff were temporarily absent from the house, the defendant Charles Dare unlocked the front door of the. house, by means of a key which had been delivered to him by the defendant Powers; and, by his direction, he took possession of the house, and locked the doors. The plaintiff and Mrs. William C. Powers returned to the house, and, being refused admission, they attempted to break in the doors, and the plaintiff finally entered the house through a window, by means of a ladder. The defendants Dare, King, and Heath, by direction of the defendant Powers, forcibly removed the plaintiff from the house, and, in so doing, injured her person to some extent; and thereupon she brought this action against the defendants, and recovered a verdict of $2,500 damages ; and from the judgment entered upon the verdict, and from the order denying.the defendant’s motion for a new trial, this appeal was taken.

The trial court instructed the jury that the defendants had no light to take possession of the house at the time they did, and he further instructed them that the only question for their consideration was one of damages ; and, if this direction was correct, the judgment, we think, should be affirmed. The appellants contend that the damages, in any event, are excessive. If the defendants were wrongdoers in entering the house and ejecting the plaintiff therefrom, the damages found by the jury cannot be said to be so excessive as to warrant us in setting the verdict aside. The evidence as to the extent'of force used to eject the plaintiff and the injuries actually sustained by her was very conflicting. The plaintiff’s evidence tended to show that she was very severely and seriously injured; that, in consequence of her injuries, she was confined to-her bed for a number of weeks ; and that her injuries were likely to be permanent. The defendants King, Heath, and Dare gave a very different account of the transaction. Their evidence tended to show that the plaintiff was removed from the house carefully, and that her injuries were slight, and resulted solely from her struggles iu resisting their attempts to remove h«r from the house. The jury believed the plaintiff’s account of the transaction.

The serious question is as to the effect .of the second notice. Mrs. Powers was in possession of the house as a tenant at will or by sufferance of the defendant Powers. She had the right to remain there until her tenancy was determined by a notice to surrender possession. It could be terminated by the landlord’s.giving a written notice of one month, requiring her to remove. At the expiration of the month’s notice, the landlord had the right to re-enter or maintain ejectment, or proceed in the manner prescribed by law to remove the occupants from the possession of the house. 4 Rev. St. (8th Ed) p. 2457, § 9. The first notice was informal, as it required the occupants to vacate the premises on the 3d day of July following the notice, on the 24th of June. Notwithstanding such defect, had the defendant Powers allowed a month to expire after service of the notice, he would have been in a position to re-enter or obtain possession of his premises. If a time be specified in a notice served upon a tenant which elapses within less than a month from the time of service of the notice, it will not vitiate the notice. It is sufficient if the tenant has 30 days’ notice in writing of the intention of the landlord to terminate the tenancy. Burns v. Bryant, 31 N. Y. 453. The landlord here gave the second notice on the 7th of August, calling upon the tenant to surrender possession on the 9th of September following; and, before the expiration of that notice, he re-entered the house, availing himself of the absence of the occupants. The manner in which he re-entered was not forcible. Bliss v. Johnson, 73 N. Y. 534.

So we come to*the question whether the tenancy was, in effect, terminated at the time of the re-entry, and the decision of that question depends upon the effect to be given to the second notice. It cannot admit of much doubt that the defendant Powers, at the time of giving the second notice, had concluded that the first one was defective. There does not seem to be any reason for serving the second notice, except upon the hypothesis that the first one was considered fatally defective, and that it could not be used as the basis of dispossessing the occupant. He evidently afterwards concluded that he had a right to re enter after the expiration of one month from the time of giving the first notice. Did the defendant waive his rights to proceed under the first notice by giving the subsequent one? It has been held that giving a subsequent notice after the expiration of the first is, in effect, an admission that a tenancy still subsists, and is a waiver of the first notice. Tayl. Landl. & Ten. § 485 ; Brierly v. Palmer, 16 East, 53. Upon receiving the second notice, the tenant unquestionably had the right to suppose that the landlord had waived the first notice, and that the tenancy would continue until the time fixed in the last notice, and act accordingly. There cannot be any doubt as to the intent of the landlord in giving the second notice, and it was properly construed by the court. It is a case where the land- ' lord mistook his legal rights, and, in forcibly removing the plaintiff from the house, the defendants became trespassers, and were liable to her for such damage as she sustained by reason of their assault. The judgment and order appealed from should be affirmed. All concur.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    The People ex rel. Victoria A. Green, App’lt, v. Ira W. Hall et al., as Assessors, etc., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)
    Taxes—Reduction.
    The application of a taxpayer to reduce an assessment may be denied on his refusal to answer a question, touching the value and amount of his personal estate.
    Appeal from an order, denying an application to reduce an assessment

      Eli Soule, for app’lt; A. M. Burrell and Frank H. Robinson, for resp’ts.
   Haight, J.

In May, 1894, the relator was by the defendants assessed for real estate $2,075, and for personal property $2,000. Her alleged grievance relates to the assessment for personal property. She appeared before the assessors, May 29th, and claimed that she was not assessable for such property, and subscribed and verified by her oath answers to a list of questions furnished to her by them. Her statement so made was to the effect that she had no assessable personal property exceeding $3. This was not satisfactory to the assessors, and, pursuant to their request, she came before them again on May 31st and was further examined on oath as to what disposition she had made of the‘proceeds of some mortgages which she had owned some years before, and, among other things, she answered : “ I can’t or I won’t answer where I invested money received on mortgages.” In her petition she states that she soon thereafter examined her papers, refreshed her recollection about the past transactions, and on June 4th caused application to be made to the assessors for a further hearing, which was denied. The reason given for the declination in their return to the writ is that they had completed their duties “and the petitioner had had a full and ample hearing.” It is urged on the part of the relator (1) that the prayer of the petitioner should have been granted; (2) that, at all events, the writ should nothave been quashed. The statute provides that, when a person shall apply for the reduction of his assessment, it shall be the duty of the assessors to examine him under oath touching the valne of his property, and thereupon fix the value thereof at such sum as they may deem just; but if he shall refuse to answer any question as to the value of his property, or the amount thereof, or to present sufficient supplementary evidence under oath to justify reduction, the assessors shall not reduce the value. Laws 1857, c. 536, § 5. The burden is with the petitioner to make it appear that the relief sought should be granted by the assessors. People ex rel. Osgood v. Tax Com'rs, 99 N. Y. 154. The duty of making determination is judicial in character, and in its exercise the assessors are not to act capriciously or arbitrarily, nor to be controlled by suspicion or belief founded on hearsay, or their views derived from it, but should be governed by the evidence. People ex rel. Raplee v. Reddy, 43 Barb. 539 ; People ex rel. Douglas v. Dykes, 45 St. Rep. 621; People ex rel. American L. T. Co. v. Howland, 61 Barb. 273 ; People ex rel. Glens Falls Ins. Co. v. Ferguson, 38 N. Y. 89, 92 ; People ex rel. Mann v. Peterson, 16 Wkly. Dig. 70. There may, however, be cases where the value is ascertained upon an assumed basis of estimate. Then, in determining whether the conclusion of value is correctly represented by the evidence, the assessors may properly and should exercise their knowledge and judgment upon the subject. People ex rel. Westchester F. Ins. Co. v. Davenport, 91 N. Y. 574; People ex rel. American C. & D. Co. v. Wemple, 129 N. Y. 558; 42 St. Rep. 400. This case in its nature is such that it is not supposed that they had any actual knowledge of the extent or amount of the personal property owned by the relator at the time in question; and if they had accepted, without further examination, the proof furnished by her on the first day of her appearance before them, the assessors would have fairly been required to reduce the assessment of the relator’s personal property. In re Corwin, 135 N. Y. 245; 48 St. Rep. 238. But, when she again appeared at their request, they sought to further examine her under oath as to the disposition she had, made of the proceeds of personal property previously owned by her. This was pertinent only as it might bear upon the value of her Assessable personal property at the time of the assessment. For that purpose they were justified in making reasonable inquiry on the subject. This evidently was one object in view and intended by the statute before mentioned, as amended in 1857; and by it, as has been observed, it was provided that, if the applicant for reduction refuses to answer any question as to the value or amount of his property, the assessors shall not reduce it. The value there referred to is the assessable value, and, with a view to ascertaining it, some freedom of inquiry is allowable, and the extent of it must mainly be left to the judgment and discretion of the assessors. Vose v. Willard, 47 Barb. 320; People ex rel. Mercer v. Maynard, 7 Misc. Rep. 295; 57 St. Rep. 546. It is the duty of persons to submit to the assessment of their assessable property, and to pay their due proportion of the taxes for the support of the institutions, governmental and educational. It is by that means that the system for public protection of persons and property is provided and sustained; and, while the assessors cannot be permitted to exercise inquisitorial power to gratify curiosity or to serve a purpose not legitimately in view, the circumstances which may justify the extension of an examination beyond the ordinary inquiries are for them, acting in good faith, to determine. It cannot well be said that in their examination of the relator they exceeded the bounds of propriety, and, as she refused to answer a question asked her touching the value or amount of her personal estate, the assessors were permitted to treat her evidence as insufficient to require the reduction of the assessment. But the inference is permitted that she was unable to answer such question ; and as she sought the opportunity to make a further statement and; supply the omission in her examination, and it was denied to her by the assessors for the reason stated in their return to the writ, the relator may by the court properly have been permitted to add further evidence on the hearing. Laws 1880, c. 269, § 4 ; People ex rel. Ulster, etc., R. R. Co. v. Smith, 24 Hun, 66. It is very likely that such direction may have been given by the court if it had been asked for. But, as it does not appear by the record that any such request was there made, the court on this review is not deemed called upon to award a rehearing at the special term for such purpose. The quashing of the writ added nothing substantial to the denial of the prayer of the petitioner. The order should-be affirmed, without costs of this appeal to either party.

All concur.


author: Dwight, P. J.

text:
    Simon Schrank, Resp’t, v. Rochester Railway Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Highway—Obstbuction.
    The evidence was held sufficient to establish that defendant, by the use of its snowplow, obstructed the highway with snow, and to sustain a finding that such obstruction was an actionable nuisance.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.

      Theo. Bacon, for app’lt; P. Chamberlain, Jr., for resp’t.
   Dwight, P. J.

The action was to recover damages for a bodily injury sustained by the plaintiff on or near the track of the defendant’s electric street'railway, in the city of Rochester. This injury the plaintiff ascribes to negligence on the part of the defendant, in two particulars : (1) In the operation of a snowplow on its tracks, by which that machine was brought into collision with the sleigh which the plaintiff was driving on the street; and (2) in the disposition of the snow removed from its tracks in such a manner as to obstruct the highway, and render it unsafe for the passage of teams and vehicles.

The weight of the evidence was altogether against the theory of negligence on the part of the defendant in the first of the particulars mentioned. The plaintiff was hauling coal with a single horse, and a long box on bob sleds, to the Union Brewery, on the east side of North Clinton.street. He came out of Morrill street onto North Clinton street, about 100 feet south of the brewery, and turned to the north, o,n the east side of the street, intending to cross the track a little further north. As he did so,'a snowplow of the defendant, propelled by an electric motor, came from the north. It was in plain sight of the plaintiff, and needed no signal to give warning of its approach. It was under complete control of the operator, and was running slowly when it was met by the plaintiff’s sleigh, as was shown by the fact that it was stopped while it and the sleigh were still alongside of each other. The plaintiff’s horse was frightened by the appearance of the machine, and became somewhat unmanageable. There was a bank of snow on the side of the street, with a side sloping towards the track, most of which had been thrown up by the snowplow on previous occasions, and which had become solid and icy on the slope. There was a horse, with a cutter attached, tied in front of the store, on the corner, and in his attempt to pass the snowplow the plaintiff was obliged to drive outside the cutter. In doing so, his sleigh, which was loaded with coal, went sideways down the slope of the bank, and was thrown either against the projecting wing of the snowplow, or against the rail of the track, with such force as to break the runner of the hind bob, and to throw the plaintiff from his seat. His leg was caught by some part of the sleigh, and he was dragged and sustained the serious injury which is the subject of this action. The evidence from which this narrative is drawn affords, we think, no support for the allegation of negligence in the running of the snowplow at the time of the accident, and with that remark we leave this branch of the case.

The other branch, of the case was presented in a different aspect. There was, unquestionably, evidence which tended to show that the defendant, by the use of its snowplow, in removing snow from its track, from time to time, previous to the date of the accident, had created an obstruction in the highway at the point where the accident occurred, which was more or less dangerous to passengers on the street, and that the casualty in question was caused by that obstruction. Indeed, we think the evidence in support of the proposition stated may be said to have been substantially undisputed. The open question, if any, was whether the obstruction so created constituted an objectionable nuisance, —was it one, the creation of which might, by the exercise of reasonable care, have been avoided ? And this question, was treated, from first to last, by court and by counsel, as a question of fact, for the jury. If there was involved in it any questions of law, for the court, that question was not raised. There was no request to take the question from the jury, no exception to any instruction under which it was submitted to the jury, nor request for any other or further instruction on the subject. Undoubtedly, there was evidence which must go to the tribunal, whichever it was, by which the question was to be decided, and by common consent that tribunal was the jury. The motion for a new trial was solely upon the ground that the verdict was without evidence, or against the weight of evidence. But upon the question submitted by the court, with the consent, as we have seen, of the defendant, it cannot, we think, be said that the evidence was insufficient to justify the verdict in favor of the plaintiff. No other question is raised by this appeal, and the judgment must be affirmed.

Judgment and order appealed from affirmed.

All concur.


text:
    Walter G. Smith, as Assignee, etc., App’lt, v. George R. C. Smith, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Contracts—Dependent covenants.
    Where the promises in a contract are mutually dependent, neither party can maintain an action thereon without alleging and proving tender of performance on his part.
    1 Appeal from an interlocutory judgment, sustaining a demurrer to the complaint.

      G. C. Sawyer, for app’lt; Chas. O. Tappan, for resp’t.
   Dwight, P. J.

The action was to recover the second installment of the purchase price of lands sold by the plaintiffs assignor to the defendant, by a contract in writing, which is set out in the complaint. The contract price was $22,000, of which the first installment, of $500, was paid down, and the second installment, of $3,500, for which the action was brought, was to be paid “on or ‘before the 1st day of November, 1893.” The contract then stipulates the mode of payment and security for the payment of the balance of the purchase price, and further provides as follows:

“ When the second payment of said purchase money, to wit, three thousand five hundred dollars ($3,500), to be paid on or before November 1st, 1893, is paid, then the party of the first part is to execute a deed of said premises, and the remainder of said purchase money is to be secured as hereinbefore mentioned.”

The defendant demurred to the complaint as not stating facts sufficient to constitute a cause of action, and the demurrer was allowed, on the ground that it was necessary, under the contract set out in the complaint, to allege the tender of a deed before action brought. We think the holding was correct, and that the demurrer was well taken.

There has been a good deal of discussion by the courts, and some not altogether consistent exposition, of the doctrine of dependent and independent covenant's; but the question commonly resolves itself into one of construction of the contract, viz. as to whether the acts which constitute -each the consideration of the other are intended to be concurrent, or whether either is intended to precede, and its performance, to be a condition precedent of the other. In the former case the promises are mutually dependent, and neither party can maintain an action thereon without alleging and proving tender of performance on his part. In the latter case it is only the party charged with the first act that must perform or tender performance before he can enforce the obligation of- the other party. Morris v. Sliter, 1 Denio, 59; Kirtz v. Peck, 113 N. Y. 222 ; 22 St. Rep. 783. In this case we think the contract by its terms plainly imports that the promised payment of the second installment and the delivery of the deed were intended to be concurrent acts.. The language is: “When the second payment * * * is paid, then the party of the first part is to execute a deed,” etc. We think that the,word “ when” in this case means at the time when, and that the payment and delivery of the deed were intended to be concurrent acts. But there is more of the provision, it is also provided that, at the same time, the security agreed to be given for the payment of the remainder of the purchase money shall be given to the plaintiff. These provisions seem to us to indicate the intention of the parties that at one time, viz., at the time of the payment of the second installment of the purchase money, the whole matter resting in contract should be closed up, the deed should be given on the one hand, and the securities executed or transferred on the other hand, and that the contract should then and there be fully performed. If such is not the import of the agreement, then no time whatever is fixed for the important transactions which remained, except an indefinite time after payment of the second installment.

In the case of Beecher v. Conradt, 13 N. Y. 108, the covenant to convey was upon the express condition that “ the party of the second part do well and faithfully perform the covenants hereinafter mentioned, and to be performed on his part,” which were to pay the purchase price of the land in five equal annual payments, with interest annually. It was held (opinion by Gardner, J.), that these covenants were originally independent, and that the plaintiff’s vendor might have brought the action for either installment, as it became due, without alleging tender of a deed ; but that, having waited until the whole purchase price was due, the covenants became mutual conditions, and that no part of the purchase price could be recovered without tender of the deed. “ The defendant, if he would obtain his deed, must pay all; and the plaintiff, if he would recover, must show such performance as would entitle him to all the unpaid consideration.” The principle of this case was applied in the case of Eddy v. Davis, 116 N. Y. 247; 26 St. Rep. 701, where the purchase price of $1,600 was to be paid in annual installments, and the plaintiff was to give a deed “on receiving the sum of $800, at the times and in the manner above mentioned.” In that case action was brought to recover certain unpaid installments after the whole of the $800 had become due, and, consequently, after the time when, if the whole of that sum had been paid, the defendant would have been entitled to his deed. It was held in accordance with the doctrine of Beecher v. Conradt, supra, that while plaintiff might have maintained his action to recover any one or more, less than all, of the installments making up the $800, as they fell due, without alleging tender of a deed, having waited until the whole $800 was due, on payment of which the deed was to be delivered, he could not maintain his action for that sum without tender of the deed. We think the principle involved in those cases applies to the case in hand. Here the deed was to be given when the $3,500 was paid; and the action, necessarily, could not be brought until after the time when the defendant, if he paid the installment, was entitled to his deed. The two covenants were therefore concurrent and mutually dependent, and neither could be enforced without performance or tender of performance of the other. We think the demurrer, was properly allowed, and that the interlocutory judgment must be affirmed. All concur.

Interlocutory judgment appealed from affirmed, with costs, and final judgment ordered thereon for the defendant, unless the plaintiff serve an amended complaint in 20 days, and pay the costs of the demurrer and of this appeal.


author: Truax, J.

text:
    Trustees of Amherst College et al., Pl’ffs, v. Thomas G. Ritch et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed December 28, 1894.)
    Trusts—Promise by legatee.
    Legatees, to whom property is bequeathed absolutely in reliance upon their promise to apply it to certain purposes, may, as trustees ex maleficio be compelled by the beneficiaries to carry out testator’s intent.
    Action to procure an adjudication that all of the residuary estate was received and is held by the defendants in trust for plaintiff and others.

      Putney & Bishop (Elihu Root, of counsel), for plaintiffs ; Arnoux, Ritch & Woodford (Thos. G. Ritch, of counsel), of defendants.
   Truax, J.

On the 16th of October, 1884, Daniel B. Fayer-weather made his last will and testament. After making various provisions for relatives, friends, and certain charitable institutions, he, in the ninth clause of his will, bequeathed $2,100,000, in varying amounts, to plaintiffs and the 15 other institutions of learning mentioned in that clause, and gave to his executors power and - authority, in their discretion, to withhold or reduce the amounts given to any of said institutions in case the conditions and circumstances of any of said instiutions should be so changed as to render it inexpedient to pay all or any portion of said legacies to' such institution. The rest, residue, and remainder of his estate, both real and personal, he gave, devised, and bequeathed, by the tenth clause of his will, to his executors, in trust, to convert the same into cash, and to divide the same equally among the institutions mentioned in the ninth clause of his will, share and share, alike. He nominated and appointed the defendants Ritch and Bulkley executors of his will and trustees of his said estate. The will was drawn by the defendant Ritch, who was a lawyer. At the time Mr. Fayerweather executed said will, he gave ,to the defendant Ritch the following paper:

“New York, October 6, 1884.
“This certifies that I have executed my will of this date, having been advised by my counsel of the provisions and restrictions of the law of this state relative to benevolent corporation. I trust my heirs will permit the provisions of this my will to be carried into effect. D. B. Fayerweather.”

On the 13th day of December, 1884, Mr. Fayerweather executed a codicil to his said last will and testament, by which he revoked the tenth clause thereof, and by which he gave, devised, and bequeathed all the rest and residue of his estate to said Bulkley and Bitch, “to them and their heirs, forever.” At the time he executed the said codicil, he gave to the said Bitch an envelope addressed, “Mess. J. L. Bulkley and T. G. Bitch. To be opened in case of my death," which envelope contained a paper in his own handwriting, of which the following is a copy:

“New York, December the 11, 1884.
“Private Memorandum.
“I have made Messrs. Bulkley and Bitch my residuary legatees, in the confidence that thereby my intentions as expressed in my will shall be carried into effect, and without litigations on the part of any person or persons interested. In the case of my death, I trust that they will take such steps, by will or otherwise, as will protect my estate against the contingency of the death of either before my estate is settled and distributed.
D. B. Fayerweather.”

Both the codicil and memorandum were prepared by or under the direction of Mr. Bitch after consultation with Mr. Fayerweather. On the said 13th day of December, both of them were handed to Mr. Bitch for safe-keeping. On the 7th of January, 1888, Mr. Fayerweather made a second codicil to his will, by which he made certain bequests, and then nominated and appointed the defendant Vaughan as an executor of his will and trustee of his estate, in addition to said Bulkley and Bitch, with the same powers and authority in every respect that were conferred on said Bulkley and Bitch, and also ratified and confirmed his said will and the first codicil thereto, except as therein modified. The codicil was also prepared by or under the direction of Mr. Bitch. On or about the 22d day of March, 1889, Mr. Fayer-weather executed another codicil, dated March 19, 1889, but this codicil made, as far as this case is concerned, no. material change in the will or the other codicils. Mr. Bitch had a number of interviews with Mr. Fayerweather shortly prior to the execution of this codicil. At these interviews, Mr. Bitch produced the memorandum of December 11, 1884, and the envelope in which it ’was contained. At the time of -the execution of this codicil, Mr. Fayerweather made the following memorandum:

“Private Memorandum.

“Having made inquiries with regard to Hampton and Lincoln Universities, it is my judgment that the bequest to them should be withheld. I think the bequest to Cornell University should not exceed $100,000. If the Northwestern University of Evans-ton, Illinois, is a prosperous condition, I would recommend that $100,000 be given to it. If the following persons are in my employ at the time of my death, I suggest that they receive the following sums: Bogers and Clark, $500 each ; Gould, Campbell, and Stone, $300 each ; and Carpenter $250; also James, who now opens and closes the store, $100 each ; John Dickson, $200. I also wish that $1,000 be given Miss Joyce immediately after my de-. crease, in addition to the provisions made for her bv my will.

“Mch. 22,1889. D. B. Fayerweather.

This memorandum was also given to Mr. Bitch for safe-keeping. On the 3d of November, 1890, Mr. Fayerweather wrote to Mr. Ritch,. requesting the latter to bring him the balance of the copy of his will; and, on or about the 7th of November, Mr. Ritch gave Mr. Fayer-weather copies of the second and third codicils. On the 10th of November, 1890, Mr. Vaughan had an interview with Mr. Fayer-weather. At that interview Mr. Fayerweather produced a copy of the will and of the codicil thereto, and Mr. Vaughan, at Mr. Fayer-weather’s request, read these papers aloud to him, and there was a. discussion between them about the effect of the residuary devise contained in the codicils. Mr.Vaughan was ignorant of the three-private memoranda hereinbefore referred to, but knew that Mr. Fayerweather wanted his property to go to certain institutions. As d result of the conversation between Mr. Fayerweather and Mr. Vaughan, Mr. Vaughan went to his own lawyer, who drafted another codicil to Mr. Fayerweather’s will. This draft was taken by Mr. Vaughan to Mr. Fayerweather, who read and approved of it. On the 11th of November this codicil was executed by Mr. Fayer-weather, and was put into the hands of Mr. Vaughan. It was, however, afterwards destroyed, at the request of Mr. Fayerweather. It revoked the devise of the residuary estate to Messrs. Bulkley and Ritch, and restored the tenth paragraph of the will. On the 13th of November, 1890, Mr.Vaughan had another interview with Mr. Fayerweather. At this interview two letters were prepared and signed by Mr. Fayerweather, and given to Mr. Vaughan to deliver to Mr. Ritch. In one of the letters Mr. Fayerweather asked Mr. Ritch to deliver to Mr. Vaughan his original will and, the first, second, and third codicils thereto. This letter was delivered on the same day by Mr. Vaughan to Mr. Ritch, and Mr.. Ritch gave to Mr. Vaughan the original will and the first, second,, and third codicils. The other letter is as follows :

“11 East 57th Street, N. Y. City, November 13, 1890.

“Mr. Thomas Gr. Ritch—Sir: I have examined my original will, and the first, second, and third codicils thereto, handed by you to Mr. "Vaughan at my request. By the tenth article of my vill, I left my residuary estate to my executors in trust, to be equally divided among certain corporations and institutions. By the first codicil it seems that I revoked the tenth article of my will, and then made the following disposition of my residuary estate: ‘All the rest and residue of my estate, of whatsoever char-^ acter and wheresoever situated the same may be, of which I shall die possessed and remaining after the provisions of the first nine-paragraphs of my will have been fully complied with and carried into effect, I give, devise, and bequeath to Justus L. Bulkley and Thomas Gr. Ritch, named in the eleventh paragraph of my said will, to them and their heirs, forever.’ Please advise me at once in writing what is the effect of this clause, and to whom and how would my residuary estate go in case of my death, supposing the first codicil to remain in force.
“ Yours, truly, . D. B. Fayerweather.”

In answer to this request, Mr. Ritch dictated to his typewriter,. while Mr. Vaughan was present, an answer, which he read to Vaughan. This answer is as follows:

“18 Wall Street, New York, November 14, 1890.

“D. B. Fayerweather, Esq. —Dear Sir: The intention of the change in question was to enable Messrs. Bulldey and myself to carry out the intentions of the will as modified by the various private memoranda in my possession. Neither Mr. Bulldey nor myself would have any moral right to treat any portion of your estate otherwise than as we know would conform to your wishes. I suggest that I call on you with these, and, if still approved by you, that they be left in a sealed package with Miss Joyce, or- any one named by you. The legal effect of the clause in question is to vest the title to the residuary estate in Messrs. Bulldey and myself: but, as I have said, neither Mr. Bulkley nor I would wish to derive any personal benefit under this codicil.
“ Yours, truly, Thomas Gr. Ritch.”

Upon reading this letter, Mr. Vaughan asked what these private memoranda were ; and thereupon Mr. Ritch had copies of the threememoranda prepared, and handed them to Mr.Vaughan, who took them away with the letter. On the same day Mr. Ritch wrote a letter to Miss Joyce, in which, among other things, he said he would like to have Miss Joyce say to Mr. Fayerweather that he (Mr. Ritch) would execute any paper or say anything in her presence, or in that of any one else, that would enable him to feel that his-wishes would be carried out to the letter, and that the will and codicils provide carefully for the institutions in which he was interested, and for the relatives and friends to whom he was attached. This letter was read by Miss Joyce to Mr. Fayerweather on the evening of that day, and was on the next morning handed to Mr. Vaughan, who then read it. On the 15th of November, Mr. Vaughan again saw Mr. Fayerweather, and conversed about making another codicil to Mr. Fayerweather’s will. At this time Mr. Vaughan had present Mr. Ritch’s letter of November 14th and the-three said private memoranda. Certain immaterial changes were made on the memorandum of March 22, 1889, and certain other memoranda were made on the envelope containing the letter of Mr. Ritch to Miss Joyce, as follows:

“ Clause about Miss Joyce, about the men with him. More institutions to benefit. Mrs. Beardsley, amount $100,000 in bonds. Strike out about servants in his employ.”

As a result of the conversations between Mr. Fayerweather and Mr.Vaughan, Mr.Vaughan had an interview with Mr. Ritch at his office, and gave instructions to have another codicil to Mr. Fayer-weather’s will prepared. This was done, and Mr. Vaughan and two gentlemen connected with Mr. Ritch’s firm returned to Mr. Fayerweather’s house, and the following codicil was then and there executed:

“I, Daniel B. Fayerweather, of the city of New York, having made and executed my last will and testament, dated October 6, 1884, and codicils thereto, dated December 13, 1884, January 7, 1888, and March 19, 1889, do hereby make, publish, and declare this fourth codicil to and as a part of my said last will: First. In all respects, except as hereinafter modified, I ratify and confirm my said will and the codicils thereto. Second I hereby confirm the revocation of the tenth paragraph of my said will. Third. 1 hereby amend and change the third paragraph of the codicil dated and made December 13, 1884, so as to read as follows: 1 All the rest and residue of my estate, of whatsoever character and wheresoever situated the same may be, of which I shall die possessed, and remaining, after all the specific legacies in my said will and the several codicils thereto have been paid and all the provisions of said will and codicils have been fully complied with and carried into effect, I give, devise, and bequeath to Justus L. Bulkley, Thomas Gr. Bitch, and Henry B. Yaughan, to them and their heirs, forever.”

Mr. Fayerweather died on the same day, leaving his widow and three nieces him surviving. On the 5th of December, 1890, proceedings to probate the will of Mr. Fayerweather were commenced. Waivers of citation and consent to the probate of the will and codicils were executed by the widow and the next of kin. The waiver and consent were subsequently withdrawn, and on the 15th of December, 1890, objections to the probate of the will and codicils were filed by the widow, and on the 21st of December, 1891, objections to the probate of the fourth codicil were filed by the next of kin. The objections were to the effect that the will and codicils were not executed as required by law; that the testator was not of sound and disposing mind and memory ; and that the will and codicils were procured by undue influence and fraud. The will was admitted to probate on the 25th of February, 1891. On the 5th of March, 1891, a settlement was agreed upon between, the executors, the widow, and the next of kin, by which all objections to the probate of the will and four codicils were withdrawn, and by which they consented to the probate of the same. Said widow and next of kin also agreed not to bring any suit for the construction of the said will and codicils, or to set aside the will and codicils, or either of them, and not to make any claim upon the said Bulkley, Bitch, and Yaughan, or either of them, or against their heirs or personal representatives, or against the said Bulkley, Bitch, and Yaughan, as executors or as residuary legatees, other than for the amounts left to the said widow and next of kin by the will and codicil aforesaid, and by a certain instrumeut dated the 5th day of May, 1891. And they further agreed that upon the payment to them, respectively, of the several amounts mentioned in said last mentioned instrument, they would severally execute a general release of all claims except those arising under the will and codicil, both to the executors and to the donees mentioned in the said instrument of March 5, 1891, and to the said Bulkley, Bitch, and Yaughan individually. At the same time all of the plaintiffs, except the University of Bochester, and all of the other colleges and institutions mentioned in the ninth paragraph of Mr. Fayerweather’s will, executed a paper, wherein it was recited that a contest had been proceeding in the court of the surrogate of the county of New York against the probate of the last will and testament and four codicils thereto propounded by the executors of Daniel B. Fayerweather, deceased, and certain other proceedings had been threatened concerning the construction and validity of the will; that the undersigned are legatees named in said will, and it is to their interest to have the said controversy settled and the threatened controversy abandoned; that a settlement of all the controversies had been previously agreed to, whereby the widow and next of kin have agreed to accept the sum of $310,000, and in consideration thereof to consent to the probate of the will and codicils as propounded, and to release the estate of said Fayerweather from all claims except those to which the said widow and next of kin are respectively entitled by the provisions of the will and codicils aforesaid; “ and that in consideration- of the foregoing, and to enable the provisions of the said settlement to be carried out, it is agreed by the undersigned that the said sum ■of $310,000, and all expenses connected with the said litigation, be paid by the executors of the last will and testament of Daniel B. Fayerweather, deceased, prior to and in preference to the payment to the undersigned, respectively, of the amount of the legacies in the will mentioned; and that each for ourselves agree that our respective legacies shall be postponed to the payment of the amount above mentioned and all the expenses above mentioned.” The codicil were admitted to probate by the consent of the widow and next of kin, and a final decree was entered on March 24, 1891. Thereafter the widow and next of kin executed and delivered the releases they had agreed to deliver, as hereinbefore stated. On the 24th of February, 1894, the said Ritch. Bulldey, and Vaughan executed an instrument, known as the “deed of gift,” by which they make specific gifts of various sums of money to individuals, to 10 hospitals, and to 21 colleges, among which are 7 of the institutions named by Mr. Fayerweather, and by which any surplus of the residuary estate is directed to be divided into ten equal parts, and to be divided in certain proportions among certain of the defendants. The various persons, institutions, and colleges named in this instrument have been made parties to this action.

This action is brought by the plaintiffs for the purpose of having it decreed that all of the residuary estate left by the said Daniel B.- Fayerweather, and devised and bequeathed to the defendants Thomas Gr. Ritch, Justus L. Bulldey, and Henry B. Vaughan, was received and is held by them in trust for the plaintiff's and the several other institutions named in the ninth paragraph of the will of said Fayerweather, for the purpose of carrying out the intentions of the said Fayerweather as expressed in the tenth paragraph of said will, except as modified by the private memoranda hereinbefore set forth. Mrs. Fayerweather is dead, but her personal representatives are parties defendant to this action, as are also the next of kin of Mr. Fayerweather. They ask that the release executed by them be set aside, and that the residuary estate above referred to be given to them. The donees in the deed of gift are also' parties to the action, and ask that the provisions of the deed of trust be carried out. I shall first determine whether the claim of the plaintiffs can be maintained.

The earliest reported case bearing upon the subject in'question is Rokkwood's Case, Cro. Eliz. 164. Rookwood had three sons. He intended to charge his lands with £4 per annum to each of his two youngest sons for their lives; but the eldest son. desired him not to charge the land, and promised to pay to the two youngest sons the £4 per annum, to which the two youngest sons, being present, agreed. The older son did not pay after the death of the father, and the younger sons brought an assumpsit. The whole court held clearly that it was well brought, and that it was a good consideration, for otherwise the land had been charged with the rent.

In Dutton v. Pool, 1 Vent. 318, the plaintiff declared that his wife’s father, being seized of certain lands now descended to the defendant, and being about to cut £1,000 worth of timber off from the lands to raise a portion for his daughter, the defendant promised to the father, in consideration that he would forbear to sell the timber, that he would pay the daughter £1,000. Judgment of nonsuit was reversed by the full bench.

In Chamberlaine v. Chamberlaine, Freem. Ch. 34, a testator having settled lands upon his son for life, having discoursed about altering his will for fear there should not be enough beside to pay certain legacies to his daughters, was told by the son that he would pay them if the assets were deficient, but afterwards, pretending that the lands devised to him fell short of the legacies, filed his bill to have a sum alleged to be equal to the deficiency raised out of other parts of the estate; and it was decreed that, after suffering his father to die in peace on a promise which had prevented him from altering his will, he should pay them himself, and the lord chancellor said it was the constant course of his court to make such decrees upon promises made that the testator would not alter his will. This was in 1679.

Thynn v. Thynn, 1 Vern. 296, was as follows: A man made his will, and his wife executrix. The son afterward prevailed on his mother to get the father to make a new will, and to name him executor, but promising to be a trustee only for his mother. A trust was decreed for the mother, notwithstanding the statute of frauds and perjuries. And to the same effect is Devenish v. Baines, Free. Ch. 3.

In Olham v. Litchford (1705) Freem. Ch. 284, the case was that the testator was making his will, and, among other things, was directing a gift to the plaintiff to be inserted in his will; and the defendant, being present, desired him not to put it in his will, but said, as he was a Christian, he would take care to see it paid; and thereupon it was omitted in the will. But the lord keeper decreed that the defendant should pay it, and the ground he went upon was that this was a fraud upon the testator and the (proposed) legatee.

A case is reported in 2 Eq. Cas. Abr. 46, as follows: The father purchased land for him and his heirs, and, when he was on his death-bed, sends for his eldest son, and tells him that these lands. were brought with the second son’s money, and that he intended to give them to him; whereupon the eldest son promised that he should enjoy them accordingly. The father dies. Lord Keeper Wright and the master of the rolls held that the eldest son ought to have these lands; because of the statute of frauds there ought to have been a declaration of the use or trust in writing. But Oowper, Ch., was of another opinion, because of the fraud in this case, in that the eldest son promised the father upon his deathbed that the other should enjoy the lands, so he took this to be a case out of the statute.

In Drakeford v. Wilks, 3 Atk. 539, it was held that if a legatee promises a testator that, in consideration of a disposition in her favor, she will do an act in favor of a third person, she who undertakes to do the act must perform.

The facts in Reech v. Kennegal, 1 Ves. Sr. 123, are as follows: J. Kennegal, having made his will, deposited it in the hands of one of his nephews, whom he made executor and residuary legatee, with the manifest intention of reconsidering it, which he after-wards does, in the presence of the minister of the parish. William, another nephew, being then there, mentions the testator’s intention to leave him £100, which the testator allows, and desires his executor to pay, who undertakes it, but saying that there would be no occasion to alter the will for that purpose, for he would pay it, and give his bond or note if insisted upon. But the testator is satisfied with that, and dies the next day. It is argued that there was no element of fraud, nothing but a promise that chancery would not enforce. Hardwicks, Ch., said:

“ The question, then, is whether this is a case of fraud, strengthened by the promise of the defendant; and I am of the opinion that it is. It has been taken as if the fraud must be on the person who might have a remedy at law, but this court considers it as a fraud also upon the testator, for whom none can have remedy but a person coming here for payment. There is a breach of promise, but attended also with fraud upon the testator, as well as the plaintiff, by representing as if there was no occasion to alter the will, and comes within the proper jurisdiction of this court as imposition.”

In Barrow v. Greenough, 3 Ves. 152, the testator requested the executor and residuary legatee to make certain payments in excess of the amounts named in the will. The residuary legatee promised to do as desired, but requested the testator to make a new will. He refused to do so, saying that he would leave the same to the defendant’s generosity. The court said:

“ The question is whether by reposing that trust in the defendant the testator was not prevented from making a new will. The defendant had no intention of fraud, but he ought to have told the testator that, if he did not put it in his will, he would not do it. Instead of that he promised to do it, upon which the testator refuses to make a new will, and says he leaves it to his generosity; that is, he leaves it to his conscience. I shall make him perform.”

In Crook v. Brooking, 2 Vern. 50, 106, Mallock bequeathed £1, 500 to Simon and Joseph Snow, to be disposed of on such secret trust as he had privately revealed to Simon. After Mallock's death, Simon, 'in a letter to Joseph, stated what the secret trust was. It was held that both the trust was well and sufficiently declared by the letter, and that both trustees were bound,

In Mestaer v. Gillespie, 11 Ves. 638, Lord Chancellor Bldont held that a devisee who prevents his testator from changing a legacy by undertaking to pay it is bound in equity, though not in law, to pay the legacy; and that if a tenant in tail is prevented from completing a recovery by the fraud of a person whose wife is entitled in remainder, equity will treat the estate, even as against the wife, who was innocent 'of fraud, as if the recovery had been suffered.

In Chamberlain v. Agar, 2 Ves. & B. 259, relief was granted upon the ground of fraud in not performing a promise relying on which the testator forbore to bequeath.

In Smith v. Atterson, 1 Russ. 206, the master of the rolls (Lord Clifford) held that where a testator bequeathes a legacy to A. and B. in trust for certain purposes, which the will says have been fully explained to them, and on the same day A. and B. signed,a paper writing to the effect that the’bequest is upon trust for six persons, whose names are stated, and after their signatures some lines are added in the handwriting of the testator, by which the seventh person (an unborn child) is admitted to share in legacy, the paper-writing was a valid declaration of trust.

In Podmore v. Gunning, 5 Sim. 485, it was alleged that Sir T. Staines, desiring to provide for two natural daughters, made a will leaving his residuary estate to his wife, “ having a perfect confidence that she would act up to those views which I have communicated to her in the ultimate disposal of my property after her decease.” Previous to the execution of the will, the testator remarked to his wife, “ My wish is that the Podmores [meaning the plaintiffs] shall have my property after your death, provided upon inquiry you find that they are respectable,” to which she answered, “You may depend on me.” The wife made a will, in which she provided for the natural daughters of her husband, and afterwards remarried. Upon her death her second husband took out letters of administration upon her estate, it appearing that the will had been destroyed by him. When the case was brought to trial, the plaintiffs failed. See 7 Sim. 644. The court said that, if the plaintiffs had proved their case, they would have been entitled to the relief which they asked; but that they had so completely failed in proving it that- their bill.must be dismissed.

In Tee v. Ferris, 2 Kay & J. 357, the testator devised real and personal property to F. and the plaintiff, as tenants in common, and by a memorandum of even date addressed to them, and signed by him, expressed his confidence that they would appropriate the property to charitable objects. This memorandum was read to F. on the day of testator’s death, after which he executed another codicil. Held, that F., by silently listening to the reading of this memorandum, became chargeable with the trust. It was also held that the trust failed as to so much only as was invalid under the mortmain act; and that, the devisees being tenants in common, those who were not informed of the intention of the testator before his death took their distributive shares free from the trust.

In Attorney General v. Dillon, 18 Ir. Ch. 127. it was held, where the testator left all his estate to a legatee absolutely, and the legatee promised to apply it to charitable uses, that it was a valid trust.

In Norris v. Frazier, (1873) L. B. 15 Eq., 318, the testator gave her residuary estate to trustees for the benefit of a married woman. The plaintiff filed a bill, alleging that the married woman and her husband both promised the testator at his request on his deathbed to make plaintiff an allowance of £800 a year. The wife testified that she assented, and the husband testified that he would not swear that he did not assent. Held, that a trust in plaintiff’s favor was established.

In Sidgreaves v. Brewer, 15 Ch. Div. 594, the codicil gave all the testatrix’s estate to a legatee. “ to be applied as I have requested him to do.” The testatrix, at the same time she executed the codicil, stated to the legatee the persons to whom and amounts for which she wished him to distribute the estate. This was held to create a valid trust in favor of the beneficiaries named.

In Boyes v. Carritt (1884) 26 Ch. Div. 531, it was held that the testator must impose a trust, and the legatee must accept, in order that the trust may be enforced ; but the acceptance may be implied from the legatee’s absence. *

It was held in Re King's Estate (1888) 21 Ir. Law R. 273,that if a testator, at or before the execution of his will, communicate to a person to whom he proposes to give a legacy that the legacy is given upon trust, to be applied in a particular way, and if the legatee expressly or tacitly consent to take the legacy on these terms, the court of chancery will not permit him to be guilty of a fraud, but will compel the execution of the trust so communicated ; and that, if the bequest be to two or more legatees, a valid trust is created if the communication be made to any one of them before or at the time of the execution of the will.

In Bedilian v. Seaton, 3 Wall. Jr. 279, Fed. Gas. Ho. 1,218, one Seaton was about making a will leaving his property to his natural daughter, when one of his brothers said that he should make his mind easy, and give himself no trouble about that; that the daughter should have it all, every cent of it. Ho will was executed. The brothers refused to give the daughter the property. Judge Greer said, if the property had been devised to John and James, the brothers, under a paroi agreement by them that they would hold it in trust for Harriet, the daughter, the case would be like that of Hoge v. Hoge, 1 Watts, 163, and numerous others, in which equity treats the fraudulent procurer of the legal title as a trustee ex maleficio.

It was said in Hoge v. Hoge, supra, that every part of a will must be in writing, and a naked paroi declaration of trust in respect of lands devised is void. “ The trust insisted on here, how- „ ever, owes its validity not to the will or declaration of the testator, but to the fraud of the devisee. It belongs to a class in which the trust arises ex maleficio, and in which equity turns a fraudulent procurer of the legal title into a trustee to get at him, and there is nothing in reason or authority to forbid the raising of such a trust from the surreptitious procurement of a devise.”

In Gaullaher v. Gaullaher, 5 Watts, 200, following Hoge v. Hoge, supra, it was held that a moral obligation is sufficient to sustain such a promise.

In Jones v. McKee, 3 Pa. St. 496; Church v. Roland, 64 Pa. St. 432, and Headley v. Renner, 129 Pa. St. 542, 18 Atl. 549, it was held, in substance, that, if one promise a testator that he will give a legacy to a third person, such promise creates a valid trust which will be enforced.

In Schultz's Appeal, 80 Pa. St. 396, a testator wished to leave his estate to charitable uses. The Pennsylvania statute provides:

“That no estate, real or personal, shall thereafter be bequeathed, ■devised or conveyed to any body politic or to any person in trust for religious or charitable uses, except the same be done by deed ■or will attested by two credible and at the time disinterested witnesses at least one calendar month before the death of the testator ■or alienor, and all dispositions of property contrary hereto shall be void and go to the residuary legatee or devisee, next of kin or heirs, according to law.”

The testator was advised that bequests of charity would be void if he should die within 30 days, but that he might make an absolute bequest of his property to á person in whom he trusted, and he might be informed of his wishes. The testator made a bequest to one Yeakle. The bequest was held good as against the next of kin. The devisee was not a party to the making of the will, and was not informed of the devise in his favor until after the death of the testator. The court said (Sharswood, J.):

“It is urged that this whole plan is nothing but a contrivance to evade the statute. No doubt, such was the • intention of the testator. It is said that it is a fraud upon the law, and that the bequest ought therefore be declared void. But that overlooks the fact that the absolute property in the subject of this bequest has vested in the legatee, and that he is entirely innocent of any complicity in the fraud of the testator. If the statute is practically repealed by this construction, it is evident that it must be for the legislature to devise and apply a remedy, not the judiciary, whose province is not jus dare, but jus dicere."

In Re Hoffner's Estate, 161 Pa. St. 331, A., owning property, said to B. he would will it to B. provided the latter would promise upon his death to will it to a certain church, designating thé church. B. promised to do it. A. thereupon willed the property to B. under that promise. B. intended to carry it out and tried to do so. He made a will willing it to the church, but he died in less than a month after the will was made; so that the will was void. The court said that the intention of these parties was to give the property to the church ; we will follow out their intention; and, although we have to say the will is void, a constructive trust has arisen in favor of the church, and we will compel the heir of this testator to convey according to that trust.

In Williams v. Vreeland, 82 N. J. Eq. 135; affirmed Id. 734, it was held that the ground upon which such a trust is set up is simply that of fraud practiced by the party on whom the trust is said to be fastened, and nothing short of this can ever be held sufficient. For the prevention of fraud, the trust is ingrafted on the gift by admitting paroi testimony in order to prevent the donee from appropriating property to a purpose different from that for which he undertook to hold it. It was held in this case, in order to maintain it, two facts must concur: First, that the testator gave a legacy to the legatee in order that he might take it not wholly for his own benefit, but also as trustee for complainants; secondly, that the testator’s mind and intention were made known before his death to the legatee, and the legacy was accepted by him on this footing. And to the same effect is Carver v. Todd, 48 N. J. Eq. 102. In Olliffe v. Wells, 130 Mass. 221, Gray, C. J., said:

“Where a trust not declared in the will is established by a court of chancery against the devisee, it is by reason of the obligation resting upon the conscience of the devisee, and not as a valid testamentary disposition by the deceased. When the request is outright upon its face, the setting up of a trust, while it diminishes the rights of the devisee, does not impair any right of the heirs or next of kin in any aspect of the case; for, if the trust were not set up, the whole property would go to the devisee by force of the devise. If the trust set up is a lawful one, it inures to the benefit of the cestui que trust; and, if the trust set up is unlawful, the heirs or next of kin take by way of resulting trust.”

In Gilpatrick v. Gliddon, 81 Me. 137, it was held that:

“When one obtains the legal title to real or personal estate, either by will or otherwise, under circumstances which render it unconscientious for him to retain it for his own benefit while in fact another is entitled to it, or to some interest in it, equity secures to the latter his right; not by disregarding the farmer’s legal title, but by imposing on him the duty of holding and using his title for the real beneficiary. * * * Equity does not interfere with the will; that remains unchallenged. * * * We do not mean, however,, that it is essential to the upholding of such a trust that a devisee should have been an active agent in procuring the devise to be made in his favor; for the great current of English authority during the last two centuries, as well as .that of this country, holds that if, either before or after making the will, the testator makes known to the devisee his desire that the property shall be disposed of in a certain legal manner other than that mentioned in the will, and that he relies upon the devisee to carry it into effect, and the latter, by any words or acts calculated to, and which he knows do in fact, cause the testator to believe that the devisee fully assents thereto, and in consequence thereof the devise is made, but after the decease of the testator the devisee refuses to perform his agreement, equity will decree a trust, and convert the devisee into a trustee, whether when he gave his assent he intended to defraud or not, the final refusal having the effect of consummating the fraud.”

In Dowd v. Tucker, 41 Conn. 197, the testatrix upon her deathbed desired to change her will, and give certain real estate to a niece, and had a codicil prepared for that purpose. By the will all the property was given to one Tucker, and, before signing the codicil, she wished to secure his consent to the change. After stating her purpose to him, he replied that she was weak, and need not trouble herself to sign a codicil, but that he would deed the property to the niece, and carry out her wishes. Trusting in his promise, she did not change her will. After her death, Tucker refused to convey to the niece. On a bill in equity brought to compel him to convey, it was held that he took the property under a trust for her, which a court of equity would enforce. To the same general effect is Buckingham v. Clark, 61 Conn. 204.

In Gaither v. Gaither, 3 Md. Ch. 158, it was held that if an heir or personal representative or devisee, whose interest would be prejudiced by the insertion of a provision in a will in favor of some third person, induces the testator to omit such provision by assurances, either by words or silent assent, that his wishes shall be executed as if the provision were made, such assurance will raise a trust which will be enforced in equity on the ground of fraud.

In Ragsdale v. Ragsdale, 68 Miss. 92, it was heldthat where one has prepared a will naming his son as devisee of certain land, and afterwards, in his last illness, when proposing to give by codicil a half interest therein to another son, the devisee named actively interferes, and by assurances that he will convey to his brother the half interest, together with other conduct and representations, prevents the making of the codicil, he will, after the testator’s death, be held a trustee of a half interest in the land for his brother; and that, while an oral promise to hold land in trust for another person is void, thus to interfere and prevent a testator from making a provision for another, whereby a bounty intended for such other is intercepted, is a fraud from which a trust arises by operation of law, not within the statute of frauds or wills.

In Larmon v. Knight (Ill. Supp.) 29 N. E. 1116; 30 N. E. 318, where a married woman on her deathbed, on her husband’s promise that he would redeem certain property in which she had an equity of redemption, and hold the property for the benefit of her children, conveyed the interest in the property to her husband, it was held that he became a trustee for the children, and it was not necessary to show that he expressed any purpose not to perform his promise. The fact that he did not comply with his promise was presumptive evidence that he did not intend tó do so when it was given.

In Barrell v. Hanrick, 42 Ala. 60, the testator bequeathed to Edward Hanrick his whole estate, and afterwards made a codicil making two specific legacies. Plaintiff, a resident of Hew Jersey, a brother of testator, brought suit against Hanrick’s legal representatives, alleging that the will was executed during the war of the Confederacy; that, under the laws of the Confederate States, a citizen of Hew Jersey was regarded as' an alien enemy ; that the bequest was made to Hanrick for the use of plaintiff, that it might not be sequestrated. The court held that this was a valid trust of real property, not prohibited by statute.

In a case in Tennessee (McLellan v. McLean, 2 Head. 684) the testator made an absolute bequest of his property to his wife. It was shown that the will was made upon an agreement with the wife that the property should be divided upon her death equally between her relatives and his. She subsequently made a will leaving more of the property to her relatives than to his. It was held that the trust could be established by paroi, and that, being so established, it would be enforced against the beneficiary under the wife’s will. And in Richardson v. Adams, 10 Yeag. 273, a similar promise in reference to personal property was enforced.

In Bennett v. Harper, 36 W. Ya. 546, the testator devised a farm of 600 acres to the complainant, one of his daughters, which farm he had previously given to the husband of another of his daughters by a voluntary deed, said husband having during the life of the testator been made aware of the contests of his will, and that, in order for it to be effective to bestow any benefit upon the plaintiff, it would be necessary for him to surrender the former voluntary donation, and that the will was made upon that condition. It was held that the said voluntary donee inter vivas having assented to such condition, or having lain by and acquiesced without objection or remonstrance, thereby securing to himself and wife the whole property designed by the testator to be divided between his two daughters, this conduct was such as to render him a trustee for the complainant to the extent of the interest she would have taken under her father’s will.

In Towles v. Burton, Rich. Eq. Oas. 146, it was held that a trust may be established by paroi in an absolute bequest by showing that the legatee received it upon a promise made to the testator to provide for a third person out of it.

In Hooker v. Axford, 33 Mich. 453, plaintiff’s wife was the owner of property which she wished to leave to her husband free from the claims of his creditors. She sent her husband to consult one of the defendants, an attorney, who advised that the wife devise the property to him and Axford on an oral understanding that he would hold it for plaintiff’s benefit. The wife did so. Ax-ford knew nothing of the arrangement. The plaintiff brought a bill to enforce the trust so arising. The attorney admitted the allegation, and expressed his willingness to convey. Axford claimed the legal title. It was held that the promise of the attorney raised a trust which would be enforced against Axford as well as against the person who made the promise. Cooley, C. J., said :

“The will then must be regarded as made as it was, because Crocker, who was an attorney at law, advised that it should be. If lie had given the advice intending to appropriate the property, this would have been a gross fraud and a gross breach of confidence. It would be equally a fraud if, having given the advice honestly, he should afterwards conclude dishonestly to retain the lands, and, this being his position, the party who under his advice is associated with him is in the like position. It would be a fraud in Axford to appropriate that which only by the advice of Crocker, given for another person’s benefit, is brought within his reach. The fraud on Mrs. Hooker’s estate would be exactly the same whether one or the other of the nominal beneficiaries repudiates the trust.”

In Spicer v. Spicer, 16 Abb. Pr. (N. S.) 112, the plaintiff sued the defendant to recover a sum claimed to be due under the following circumstances: Plaintiff married one John, a brother of defendant She had a previous husband then living. John proposed to make a will in favor of the plaintiff. The defendant said he could propose a better plan, and that, if John would convey his interest in the property to him, he would pay plaintiff a sum equal to her dower. John dying, the defendant refused to complete his agreement. The court held that he must.

In Williams v. Fitch, 18 N. Y. 546, the father of the testatrix had in his hands a sum of money which he held as trustee for testatrix, which he agreed to hold as trustee for the nephew of the testatrix in consideration that she would not make a will leaving the property to her nephew. It was held that, after the death of the testatrix, the father held the funds in trust for the nephew.

In Moyer v. Moyer, 21 Hun, 67, a father conveyed land to his son upon his agreement to hold the land for the benefit of the grantor’s widow and infant children. It was held that the grantee held as trustee.

The most important case on this point, however, is O’Hara v. Dudley, 95 N. Y. 408. The testatrix in that case gave the bulk of her estate to three persons, who were her lawyer, her doctor, and her priest. It was not intended by her to give to the persons named any beneficial interest, but her design was to devote the property to certain charitable purposes. This, she was advised by one of the legatees, could not be done by express provision in her will, but only by an absolute gift to individuals, to whose honor she could confide the execution of her purpose. She signed a letter of instructions contemporaneous with the will, addressed to the legatees and devisees, stating the reason for the gift, and dictating the purpose to which it should be put. The will was executed in reliance upon a promise of the legatees to apply the fund faithfully and honorably to the uses specified by the testatrix. In an action to establish a trust it was held that the gift could not be sustained as an absolute one to the persons named as legatees, as this would be a fraud upon the testatrix ; that the secret trust attempted to be created could not be enforced, nor would equity permit it to be carried out, as it was in violation of the statute against perpetuities; but equity would impose a trust upon the fund for the benefit of the heirs and next of kin. Judge Finch stated, in writing the opinion of the court in this case :

“ Equity acts in such case, not because of a trust declared by the testator, but because of the fraud of the legatee. For him not to carry out the promise by which alone he procured the devise and bequest is to perpetrate a fraud upon the devisor which equity will not endure.” The doctrine of this case in this respect was affirmed in Re Keleman, 126 N. Y. 73; 36 St. Rep. 390.

There is a class of cases in which the courts have refused to enforce a trust created dehors the will, where the trust was created for the purpose of evading statutes like the mortmain statutes. The first statute relating to mortmain is contained in the second great charter of King Henry III. (chapter 43). The charter provided that:

“It shall not from henceforth be lawful for any to give his lands to any religious house and to take the same land again to hold of the said house ; nor shall it be lawful to any house of religion to take' lands of any and to lease the same to him from whom they were received. Therefore, if any from henceforth do give his land to any religious house and thereupon be convict, his gift shall be utterly void, and the land shall accrue to the lord of the fee.”

This provision was continued in the third gréat charter of King Henry III. (chapter 36); and also in the first great charter of King Edward I, granted October 12, 1297, in the twenty-fifth year of his reign ; in “ Statute de Religiosis ” (7 Edw. I. St. 2); Westm. II. (13 Edw. I. St. 1, c. 22); “ Statute Quia Emptores ” (18 Edw. I. c. 3); and the statute of amortizing lands (34 Edw. I. St. 3; 18 Edw. III. St. 3, c. 3; 15 Rich. II. c. 5; 23 Hen. VIII. c. 10, §§ 2-5; 7 and 8 Wm. III. c. 37, §§ 1, 2; and 9 Geo. II. c. 36), commonly known as the-“ Mortmain Act.” See, also, 2 Bl. Comm. 268. Magna Charta and the statutes above referred to were little more than a restoration of the common law as it existed in the time of the Saxons, about 60 years before the reign of William 1, at which period it was essential to procure a license from the king and the intermediate lord before estates could be alienated to any community by which rents and services should be entirely lost; and, if no such license were obtained, the king or other lord might enter upon the land so alienated in mortmain as a forfeiture. Thompson’s Historical Essay on the Magna Charta, p. 260. The last statute (9 Geo. II. c. 36) provides that no lands or tenements or money to be laid out thereon shall be given for or charged with any charitable uses whatsoever, unless a deed indented, executed in the presence of two witnesses, twelve calendar months before the death of the donor, and enrolled in the court of chancery within six months after its execution (except stocks in the public funds, which may be transferred within six months previous to the donor’s death), and unless such gift be made to take effect immediately, and be without power of revocation, and that all other gifts shall be void.

This statute was before the court in Boson v. Statham, 1 Eden, 508, upon the following state of facts : There was a devise by will, attested by three witnesses, to A, B., and 0., and the heirs of the survivor. The bill stated that it was upon a secret trust for a charity, declared by an instrument executed at the same time as the will, and attested by two witnesses only, which was admitted by the answer. And it was held by Lord Keeper Henley that the devise was void under the statute of mortmain. And in Edwards v. Pike, 1 Eden, 267, the same lord keeper held a devise to be void, it being proved to be upon a secret trust for a charity.

The doctrine of those cases was followed by Lord Chancellor Eldon in Stickland v. Aldridge, 9 Ves. 516. In that case there was an attempt to avoid the statute of mortmain (9 Creo. II. c. 36). Lord Eldon said:

“It would be a strong proposition that the providence of the legislature, having attempted expressly to prevent a disposition of land for purposes of this sort, was so short as to be baffled by such a transaction as is stated by this bill. The statute was neve'r ' permitted to be a cover for fraud upon the private rights of individuals, and, though within the intention it cannot be said a trust is declared under these circumstances, it is clear a trust would be created upon the principle on which this court acts as to fraud. In the ordinary case of an estate suffered to descend, the owner being informed by the heir that, if the estate is permitted to descend, he will make a provision for the mother, wife, or other person, there is no doubt this court would compel the heir to discover whether he did make such promise. * * * It would be singular if the court would protect individuals, and would not act to prevent a fraud upon itself.”

It was held in Gore v. Clarke, in the supreme court of South Carolina, reported 16 S. E. 614, that a devise intended to evade the provisions of a statute limiting the amount of property that can be given to a woman with whom testator had lived in adultery, or to his illegitimate children, although it is on the face of the will an absolute gift to a stranger, will not be .upheld merely because the devisee had no notice during the testator’s lifetime of the secret trust intended., A statute of South Carolina declares null and void any gift, devise, or any other devise whereby a person intends that more than one-quarter of his estate shall go to bis illegitimate children. It will be noticed that in cases like Gore v. Clarke, Boson v. Statham, and Tee v. Ferris, supra, the thing that the testator attempted to accomplish by creating the secret trust was something prohibited by law ; while that which Mr. Fayer-weather sought to accomplish, namely, a gift of money to literary institutions, is not prohibited by law. And there is no public policy outside of the statutes (of 1848 and 1860) which condemns testamentary gifts to such institutions. Hollis v. Drew Theological Seminary, 95 N. Y. 166.

He could have given his estate or any portion thereof to the institutions named in the ninth paragraph of his will during bis lifetime,, and the gift would have been valid. He could have given it to them on his deathbed, as he gave the $100,000 in bonds to Mrs. Beardsley, and the gift would have been valid. The only thing that the law prohibited him from doing was willing more than one-half of his estate to such institutions. But, if the testator had the right to give more than one-half of his„ estate to such institutions during his lifetime, he had a right to give it to a devisee upon the promise of the devisee that, after the testator’s death, he, the devisee, would divide the estate in the manner the testator Wished; for the courts have held that, but for the promise, the testator himself might have done what the devisee promised to do. Chamberlaine v. Chamberlaine, Reech v. Kennegal, Barrow v. Green ough, supra. “ In these cases,” said Kay, J., in Re Boyes (Bayes v. Carritt, 26 Ch. Div. 531), “ the court has' compelled discovery and performance of the promise, treating it as a trust binding the conscience of the donee, on the ground that otherwise fraud would be committed, because it is to be presumed that, if it had not been for such promise, the testator would have made * * * the gift.” See, also, Williams v. Fitch and Dowd v. Tucker. That this trust is not a testamentary trust—that is, is not a trust created by will, was decided in Olliffe v. Wells, supra. It seems clear to me that, if this trust was not created by will it ‘does not come within the prohibition of the statutes of 1860, and that it is a valid trust, and should be carried out by the residuary legatees.

It is, however, contended by the defendant Bulkley that he made no promise to the testator, and did not in fact know of the secret trust until after the death of the testator, and that, therefore, as to him there was no trust. This contention cannot be maintained. O'Hara v. Dudley and Hooker v. Axford, supra. What was the trust on which the defendants Bulkley, Bitch and Vaughan held the residuary estate ? It was to carry out the intentions expressed in the will of Mr. Fayerweather. The only expression of the intention of the testator in regard to the residuary estate is contained in the tenth paragraph of his will, and is to the effect that all his residuary estate shall be divided among the several corporations mentioned in the ninth paragraph of his will, share and share alike. That intention never was changed ; on the other hand he reiterated it by the codicil of November 11, 1890. That intention the said defendants are in duty bound to carry out. I am of the opinion that the testator did not change bis intentions in regard to the institutions mentioned in the ninth clause of his will by the memorandum of March 22, 1839. That memorandum mentioned three of the institutions, Hampton, Lincoln, and Cornell Universities named, and one, the Northwestern, not named, in the ninth clause. In it the testator says that, in his judgment, the bequests to Lincoln and Hampton Universities should be withheld, and the bequest of $200,000 to Cornell University should be reduced to $100,000. It is well settled that a testator cannot change his will by a paper not executed with all the formalities of the statute relating to wills. Addlington v. Cann, 3 Atk. 141; Johnson v. Ball, 5 De Gex & S. 85 ; Lomax v. Ripley, 3 Smale & G. 48 ; Tee v. Ferris, supra ; Juniper v. Batchellor, 19 Law T. (N. S.) 200; In re King's Estate, 21 Ir. Law R. 273 ; Thomas v. Thomas (Ind. Sup.) 9 N. E. 457; Mann v. Mann, 14 Johns. 1; Tole v. Hardy, 6 Cow. 333 ; Booth v. Baptist Church, 126 N. Y. 2 48; 37 St. Rep. 79, and cases there cited.

In Williams v. Freeman, 83 N. Y. 561, there was memorandum made by the testator. Judge Rapallo, in writing the opinion of the court, used this language:

“ The memorandum forms no part of the will, and is not attested in such manner as to form a testamentary declaration. It is merely a paroi declaration of the testator, * * * and comes under the head of extrinsic evidence. * * * The declarations of a testator can never.be resorted to for the purpose of contra-dieting, or even explaining, the instructions expressed in the will.”

The memorandum' of March 22d, as far as it relates to the Northwestern University, in view of the pleadings and the action of the residuary legatees, acts as an extension of the trust upon which those legatees took the residuary estate. But, in any event, the Northwestern University is entitled to take, because the legatees mentioned in the ninth clause of the will, who are the only persons, in the view that I have taken of the law of this case, interested in its not taking, consent to its taking.

. It is claimed' by the defendants that the paper (Exhibit 10) executed bv the institutions mentioned in the ninth paragraph of the will operated as a ratification of the deed of gift. I cannot give such effect to that paper. The only agreement on the part of those institutions contained in that paper is that the sum of $310,000 and certain expenses should be paid prior to the payment of the legacies to them; and, in the view I have taken of the law of the case, that payment was made from the fund that belonged to those institutions alone. None of the donees in the deed of gift were injured by the execution of Exhibit 10. Nor does the fact that the executors and trustees had a discretion under the ninth paragraph of the will change the aspect of affairs. That discretion was to be exercised only in case the conditions and circumstances of any of the said institutions should be so changed that it was not expedient to pay to such institution all or any portion of its legacy. That discretion was not an arbitrary one. It was to be exercised only if there were grounds for its exercise, and, there being no such ground shown in the evidence, the executors and trustees had no right to refuse to pay any legacy to any one of said institutions. Nor are the plaintiffs barred from maintaining this action by reason of the proceedings in the surrogate’s court for the a-sessment of the inheritance tax. In re Ullmann, 137 N. Y. 403, 407; 51 St. Rep. 1,

The view that I have taken of the facts and the law of this case renders it unnecessary forme to consider the very interesting questions of law propounded by the learned counsel for the defendants Reynolds, Achter, and Fayerweather. I have said that thedefendants Ritch, Bulkley, and Yaughan were trustees ex maleficio. I do-not mean to be understood as saying that either one of said defendants committed any actual fraud against the testator. I have no doubt they did what they thought they had a right to do. There is nothing in the evidence showing that all of Mr. Ritch’s acts in regard tó the testator were not free from fraud. I do not give effect to the deed of gift, because I am of the opinion, on the evidence, that Mr. Fayerweather did not change his intentions as expressed in his will and codicils and the private memoranda.

Judgment is ordered directing that the said residuary estate devised and bequeathed to the defendants Thomas Gf. Ritch, Justus L. Bulkley, and Henry B. Yaughan was received and is held by them in trust for the plaintiff herein and the several institutions named in the ninth paragraph of the will, and for the Northwestern University in the sum of $100,000; that said residuary estate now in their possession, except that part thereof necessary to provide for the payments mentioned in the third paragraph of the plaintiff's prayer for relief, is now held by the said defendants in trust for the plaintiffs and the said several other institutions, upon the trust stated in the tenth paragraph of the will; that the said defendants be enjoined from distributing the residuary estate under the deed of gift; that they account for the moneys received by them under said last will and testament and codicils before Charles W. Dayton, who is hereby appointed referee to take and state their accounts; and that they have the costs of this action.


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    Seneca H. Gage, App’lt, v. Tirzah M. Gage et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Trusts—Resulting.
    The rule that' where a grant is made to one," and the consideration is paid by another person, no trust shall result, does not apply when an express trust has been created, or where equities have arisen by the agreement of parties.
    Appeal from a judgment, entered on an order, dismissing the complaint on the opening of the trial.

      George E. Towne, for app’lt; J. G. Record and C. A. Dolson, for resp’ts.
   Haight, J.

This action was brought to set aside a conveyance of real estate by the defendant Tirzah M. Gage to the defendant Esther C. Sawyer, and for a conveyance of an undivided one-half interest therein to the plaintiff. The complaint, in substance, alleges that the plaintiff and defendant Tirzah M. Gage were husband and wife; that on the 10th day of January, 1883, they purchased the real estate in question, the title of which was taken in the name of the defendant Tirzah M. Gage, under the express agreement that the two should live upon the farm, work the same, and together pay the purchase price thereof, and, after the same had been fully paid for, the defendant Tirzah M. should deed to the plaintiff an undivided one-half interest therein ; that pursuant to such agreement the title was taken in the name of Tirzah M., and the plaintiff fully performed the agreement upon his part in working the farm and paying therefor ; that, after it was paid for, the defendants conspired together to defeat the plaintiff of his rights and interests in the farm, and in order to do so the defendant Tirzah M. conveyed the same to defendant Sawyer without, any consideration whatever. The trial court appears to have been of the opinion that the complaint failed to state a cause of action. Our examination of the case leads to a different conclusion. Section 51 of the statute of uses and trusts provides that “ where a. grant for a valuable consideration shall be made to one person, and a consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made, but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.” The next section has reference to creditors, and. has no bearing upon the question under consideration. We do not understand the provisions of this statute to have any applica tian to a case where an express trust has been created, or- where equities have arisen by the agreement of parties; but that it only has reference to a case in which there exists no express trust or equities other than the payment of the consideration by a person other than the one who takes the title. No trust shall result from that act alone. Bearing in mind this distinction, no great conflict will be found in the authorities. In Robbins v. Robbins, 89 N. Y. 251, it was held that the statute to which we have referred cannot be invoked to cover a fraud; that when the alienee, in accordance with his agreement to hold title to the land for the use and benefit of the real owner, sells the land as directed by such owner, the trust assumed by the alienee is executed, and his duty as trustee is discharged, and the purchase money vests at once in the real owner. In Carr v. Carr, 52 N. Y. 251-261, Allen, J., in delivering the opinion of the court, referring to the statute under consideration, says:

“ This statute can no more be used to perpetrate a fraud or defeat actual equities than can the statute of frauds. They both stand in this respect upon the same footing. It is true that the purchase money was, in substance and effect, paid by Daniel H. Carr, and the conveyance was made with his assent to the plaintiff. Had the case stopped here, the plaintiff’s claim would be valid; but a part of the purchase money was borrowed of the plaintiff, and the grant was made to him to secure the repayment of that advance, and under an agreement that upon its repayment the property should be conveyed to the rightful owner; and the agreement has been acted upon and partially performed by Daniel D. Carr, and it would be a gross fraud to permit the plaintiff now to take shelter behind the statute of uses and trusts, and deprive the confiding owner of his just rights. There is something more than a naked grant to one upon the payment of a consideration by another. The claim of the defendant is not of a resulting trust within the statute, but depends upon other and extrinsic equities.”

In Robertson v. Sayre, 25 St. Rep. 449 ; id 134 N. Y. 97 ; 45 St. Rep. 588; Garfield v. Hatmaker, 15 N. Y. 475; and Everrett v. Everrett, 48 N. Y. 218,—there does not appear to have been any agreement between the parties creating an actual trust, or other equities aside from the bare payment of the consideration money. The case of Gould v. Gould, 20 St. Rep. 674, may be in apparent conflict; but in that case the distinction here pointed out does not appear to have been called to the attention of the court or considered by it. Here, as we have seen, the complaint alleges that the payment of the consideration money was made by the plaintiff under an express agreement that an undivided one-half of the premises should be conveyed to him as soon as the purchase price was paid, and that it was under this arrangement and agreement that the plaintiff consented to the deeding of the premises to the defendant Tirzah M.-; and to permit her now, after full perform-anee on the part of the plaintiff, to violate her agreement and deprive him of his interest, would, in the language of the authority-cited, be permitting her to invoke the statute to cover her fraud. The judgment should be reversed, and a new trial ordered, with costs to abide the final award of costs.

All concur.


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    Lewis Richards, App’lt, v. Lewis B. Ross, Resp’t.

      Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Sale—Proof.
    Evidence that defendant selected the harness, ascertained the price, ordered it changed so as fit the team and, after the harness was delivered to a third person, said that it was all right and that the plaintiff would get his pay, is sufficient to establish a sale of the harness to defendant.
    Appeal from a judgment, reversing a judgment rendered in a justice’s court.

      W S. Moore, for app’lt; George L. Bachman, for resp’t.
   Haight, J.

This action was brought to recover the sum of $24, the purchare price of a harness alleged to have been sold by the plaintiff to the defendant. The justice rendered judgment for the plaintiff, but the county court reversed it upon the ground that the evidence submitted by the plaintiff was not sufficient to sustain the judgment. The question thus presented involves a careful examination of the evidence. The plaintiff testified that about the 18th of November last—

Mr Ross came into my store, and said he had sold the big team of horses to Mr. Hemingway, and he had to have a set of harness for them. He looked at two or three different sets of harness, and said this one would do if I would change it. ‘ Fix it up a little; it would be all right.’ I had the bill charged to Mr. °Ross. I did not know this stranger. Q. What further was said, if anything, at that time ? A. On the 24th, this stranger came along, and I let him have the harness. On the 17th or 18th of November, when Mr. Ross was there, I told him I had charged the harness to him. Q. What did you do there at that time about this harness ? A. I showed it to him. He said, 1 That will do. That is all right.’ Some of it had to be changed,—made larger; and I fixed it. Q. What further was said, if anything? A. I told him I had charged the harness to him. Q. Was anything said about the price? A. $24; yes, sir. Q. Have you now stated all that you remember of that conversation at that’time? A. At that time; yes, sir. Q. Was anything said about the time the harness would be ready, or when he would come for it ? A. About a week. Q. What did you do about it afterwards ? A. I changed the main strap three or four inches. It had to be made a little larger. Q. Did any one afterwards come for the harness? If so, when was it? A. It was on the 24th ; this stranger, Mr. Hemingway, came. He was alone. Q. What did he do with it? A. Carried the harness over to the public sheds,—Mr. William Baron’s sheds. Q. Is that all ? A. That is all. Q. Did you afterwards have a conversation with Mr. Ross about the payment for the harness ? A. Yes ; Mr. Ross came into my store about six or seven days after the 24th, and said the harness was all rigt, and that I would get my pay. Q. Has this harness ever been paid for? A. No, sir."

It appears to us that this evidence was sufficient to establish a sale. The defendant selected the harness, ascertained the price, ordered it changed so as to fit the team, and, after the harness was delivered, said that it was all right, and that the plaintiff would get his pay. The learned county judge characterized this testimony as “ absurd to purpose that the defendant would be buying harnesses for horses that he had sold.” We do not think this conclusion necessarily follows. The defendant said that he had to have a set of harness for them. We think the inference that, the harness was included in the sale with the horses is permissible.

It further appeared that the defendant had not sold his horsesto Hemingway; that the sale was not completed, and the horses never left the possession of the defendant; that, when Hemingway took the harness from the plaintiff’s shop, he took it to the defendant’s residence, where, it ever since has remained. True, the defendant’s son, who still resides at home with his father, claims to have purchased the harness from Hemingway, but the justice evidently did not believe this. This son had testified that he was with Hemingway when Hemingway purchased the harness ; that they went into the plaintiff’s place together ; that the plaintiff took down several harnesses, and showed Hemingway, until he came to one that suited him; that he then said he would fix the harness, so it would be all right, and have it ready within a week; and that nothing was said about the price. This was positively-denied by the plaintiff. The defendant Ross was sworn as a witness in his own behalf, but he carefully avoids denying the essential statements made by the plaintiff. He starts in his testimony by stating that he was not in the plaintiff’s store on or about the 17th or 18th of November, last, with one Hemingway. The plaintiff did not state that the defendant was in his store with Hemingway. The defendant then skips over that which was detailed by the plaintiff in reference to the selecting of the harness and the ordering of it, and next speaks of the bringing of the harness by Hemingway to his place. He does not deny the conversation in which the plaintiff told him that he had charged the harness to him, and that he said that it was all right, fie only denies that he said that he would pay for the harness, or that the plaintiff would get his pay therefore. It is therefore apparent that the justice had good reason for believing the testimony of the plaintiff to be correct.

The judgment of the county court appealed from should be reversed, and that of the justice affirmed, with costs in this and the county courts.

All concur.