text:
    Thomas H. Greer, Individually and as Ex’r, Resp’t, v. Alden Chester, Ex’r and Trustee, Imp’ld, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    1. Will—Trusts—Legal, separated prom illegal.
    A testatrix devised her residuary estate to a trustee to pay the income-to her husband' for life and after his death to pay one-half of it to her grandson and to accumulate the other half during the grandson’s life; and upon the death of the grandson she devised the whole to charities.’ The directions as to accumulation and the bequests to charities were conceded to be void. Held, that the valid trusts could be separated from the invalid and should be sustained, and that the trusts in favor of the husband and the grandson as to one-half of the income were valid; and that the testatrix died intestate as to the part directed to be accumulated during the life of the grandson.
    '2. Same—Intestacy.
    The estate, subject to the two trusts, passed to the heir-at-law, next of kin and husband according to the laws of descent and distribution.
    Appeal by the defendant Alden Chester as executor of and "trustee under the last will and testament of Anna L. Greer, de•ceased, from parts of a judgment entered in the Albany county ■clerk’s office on the 7th day of October, 1891, in favor of the plaintiff.

      Robert G. Scherer, for app’lt; James J. Farren {D. Cady Her■riclc, of counsel), for resp’t.
   Putnam, J.

The action was brought to obtain a construction -of the will of Anna L. Greer, deceased. Certain provisions therein are conceded to be void by the parties and were so held-by the court below.

The question in the case arises out of the ninth clause in the will, which the trial court held invalid and which, as far as necessary to set out, is as follows, viz.:

“ Ninth. I give, devise and bequeath all the rest, residue and remainder of all my property ana estates, real and personal, of whatever name, nature or kind, to Alden Chester, of the city of Albany, N. Y., in trust nevertheless to receive the interest, in-come, rents, issues and profits thereof, and after paying thereout .all taxes and assessments, cost of repairs, and insurance, and all •expenses and commissions for the management of said trust, to pay the balance of said interest, income, rents, issues and profits, quarterly, to my said husband, Thomas H. Greer, for and during the term of his natural life, and from and after the death of. my .said husband, to pay one-half of the said balance of said interest, income, rents, issues and profits, quarterly to my said grandson Thomas Day Greer, during the term of his natural life, and the ■other one-half thereof to be added to the principal of my estate.’’

The will then provides for or contemplates an accumulation of ■oné-half of the income of the testatrix’ estate, specified in said ninth clause, after the death of plaintiff, until the death of her grandson, Thomas Day Greer, when the whole estate is devised to certain charitable and benevolent corporations. The direction for the accumulation is conceded to be unlawful, and also the devise to such benevolent corporations, the will not having been executed two months prior to the death of the testatrix.

After the bequest or devise to the defendant, Alden Chester, as trustee, to pay over the income of all her said estate to her husbánd, Thomas H. Greer, for life, and after his death one-half of said income to her grandson, Thomas Day Greer, the residue or remainder of the estate of the testatrix was in fact undisposed of, the direction for the accumulation and the devise to said charitable associations being void.

The plaintiff, the husband of the testatrix, and the defendant, Thomas Day Greer, are the only heirs and next of kin.

The special term held the ninth clause of the will invalid. And as to the property therein bequeathed and devised to said defendant, Alden Chester, in trust, that testatrix died intestate, and adjudged that such property should be divided between the husband and grandchild, one-third to the former and two-thirds to the latter. In effect, the court below held that the legal portion of the will in the ninth clause could not be separated from the illegal .parts of the will therein or subsequent thereto, and that hence the whole was void. Knox v. Jones, 47 N. Y., 390.

The doctrine is well established that “ where several trusts are created by will, which are independent of each other and each complete in itself, some of which are legal and others illegal, and the legal can be separated from the illegal and upheld without doing injustice or defeating what the testator might in the emergency be presumed to wish, the illegal trusts may be cut off and the legal permitted to stand. Kennedy v. Hoy, 105 N. Y., 134; 6 St. Rep., 787; Van Schuyver v. Mulford, 59 N. Y., 426; Underwood v. Curtis, 127 N. Y., 542; 40 St. Rep., 255.

The bequest to the defendant Chester, as trustee, to pay over the rents and income to the plaintiff for life, and after his death to pay one-half of said income to the defendant, his grandson, is legal and does not violate any statutory provisions. Being lawful, the intent of the testatrix should be carried out and effect given to such provisions of the will if said lawful provisions can be separated from the parts of the will that are unlawful, without defeating what the testatrix might under the circumstances be presumed to wish. See Van Schuyver v. Mulford, ut supra.

The lawful provisions in the will so contained in the ninth clause bequeathing to defendant Chester property upon the trust to pay over the income to plaintiff for life are plainly separable from the subsequent unlawful provisions within the cases above cited. There seems to be no connection between said lawful bequest and the unlawful provisions of the instrument. As before stated, the will is the same as if, after the bequest for the benefit of her husband and grandson, testatrix had failed to devise or bequeath the residue and remainder of her estate. The bequest for the benefit of the plaintiff being lawful, the intent of the testator should be carried out. See Manice v. Manice, 43 N. Y., 384.

This bequest being lawful and not inconsistent with other portions of the will, or with the presumed intentions of the testatrix, there seems no difficulty in giving it effect.

But it is claimed by plaintiff that the remainder of the estate of deceased not being disposed of by the will, after the life interest of the plaintiff, he became, from the death of the testatrix, seized of a one-third interest in the remainder of the personal estate left by deceased, and that as to that part of the personal estate, being entitled to the income and also the owner of the remainder .as next of kin, he should receive the same divested of the trust. There are certain cases cited by the plaintiff holding that where •all the objects and purposes of the trust have been accomplished the court can terminate it, all the- parties beneficially interested ■desiring its termination. Sears v. Choate, 146 Mass., 398; Inches v. Hill, 106 id., 575.

This is not such a case, however. The intent of the testatrix was that defendant Chester, as trustee, should hold all the property described in the ninth clause of her will for the life of plaintiff, ■and pay over to him the rents and profits for that period. It is .an active trust. Besides the defendant, Thomas Day Greer, has .an interest in the carrying out of the trust and does not consent to the termination of the trust as to any part of the trust estate. See Asche v. Asche, 113 N. Y., 232; 22 St. Rep., 799; Asche v. Asche, 47 Hun, 285; 13 St. Rep., 419; Asche v. Asche, 18 Abb. N. C., 82.

The personal estate of testatrix being left, after the life interest •of plaintiff therein has expired, undisposed of, probably on her •death the husband acquired an interest in' one-third of the same, subject to the trust. As held in Asche v. Asche, 113 N. Y., 232; 22 St. Rep., 799, by such acquisition the plaintiff acquired a future estate dependent upon the precedent estate of the trustee, which he cannot enjoy in possession. He might devise it, but he cannot possess an estate conditioned upon his own death. It follows that the ninth clause, as far as it devises or bequeaths to the defendant, Alden Chester, the residue of the estate of the testatrix in trust to manage and control and pay the income to the plaintiff for the period of his natural life, should be deemed and held valid, and the intent of the testatrix as therein stated should be carried out.

But the ninth clause, in addition, provides that the trust of one-half of the estate, shall continue during the life of the defendant, ’Thopias Day Greer, also. This is valid, as is shown in the opinion of Judge Learned.

Decree modified in accordance with these opinions. Costs of both parties on appeal to be paid out of estate.

Learned, P. J.

The provision is, “from and after the death •of my said husband to pay one-half of the said balance of said interest, income, rents, issues and profits quarterly to my said grandson, Thomas Day Greer, during the term of his natural life.” 'This devise and bequest in trust is valid, as it does not extend beyond two lives in being.

Thó further clause, “And the other one-half thereof to be added to the principal of my estate,” is invalid. So it is conceded are the bequests and devises after the death of the husband and grand.son to certain societies.

Assuming then that as to the one-half of the estate after the trust life estate for the husband, and as to the other half after the trust life estate for the grandson the testatrix was intestate, the" grandson would take this undisposed of property as heir at law. and next of kin excepting such personal as must go to the husband. Hut I see no reason why this inheritance and succession should affect the valid trust estate for his life. Suppose, as might be the •case, that he were not the only next of kin and heir at law, would not the trust for his life remain undisturbed, notwithstanding the failure of these other provisions ?

The testatrix contemplated giving to a trustee an estate for life in one-half of her property for Thomas Day Greer. This estate went to the trustee. Thomas Day Greer had no estate therein legal or equitable. 1 R. S., 729, § 60. Why then should the failure of the intentions of the testatrix in other respects defeat this provision? She may have thought it best to protect the grandson as to the income of half of the estate against loss or improvidence. We need not defeat that intention because he inherits and succeeds to property which she had intended should go elsewhere.

There is nothing inconsistent in the fact that the trustee should have an estate in trust for the life of the beneficiary Thomas Day Greer, and that the beneficiary should have the remainder in fee. There is no merger. 1 R. S., m.p. 727, §§ 47 and 48. He is not the owner of a particular estate as mentioned in 1 R. S., 782, § 81. He can dispose of the remainder in the half of the estate in which he has a beneficial interest, subject to the trust. 1R. S., 729, § 61.

But notwithstanding this, the object of the testatrix (as we may .suppose) viz., to secure the incometo the grandson for life against the risks of business or improvidence, should be carried out. 1 R. S., 730, § 63.

When a valid devise in trust is plainly given and can be carried into effect although other parts of the will fail, we should not •endeavor to ascertain what the testatrix might have done if she had known that these other parts of the will were invalid. So far as her will is valid it should be performed. In that way we shall come nearer to giving her wishes effect.

I think, therefore, that the judgment should be modified by declaring the two trusts above mentioned to be valid, and that subject to these two trust estates in the trustee the property of the deceased went to her heir at law and next of kin, and husband, according to the laws of descent and distribution.

Mayham, J., concurs.


source: Caselaw Access Project

author: Kellogg, J.

license: Public Domain

text:
    Mary E. Herdman, Adm’rx, App’lt, v. The New York, Lake Erie & Western Railroad Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    Hegligence—Contributory.
    A train was moving from twenty to forty miles an hour and was 900 feet from a station, the name of which had not been announced to the passengers in the car. Plaintiff's intestate left the car and went out on the platform and in some manner fell from it and was killed. Held, that there could be no recovery. That as it was light, as the deceased was familiar with the station and knew that the train had not reached it, it was negligence in him to go from a place of safety to an unguarded and oscillating platform.
    Appeal from judgment entered on dismissal of complaint.

      ■John W. Lyon, for app’lt; Lewis & Carr, for resp’t.
   Kellogg, J.

This action is brought to recover upon a cause of action given by a statute of the state of Pennsylvania, alleged and admitted to be in all respects similar to the statute of this state, for the death of plaintiff’s intestate through the negligence of defendant.

At the close of plaintiff’s case the trial court, on motion of defendant, directed a dismissal of the complaint for failure to present evidence sufficient to warrant a verdict determining that the deceased was free from negligence and the cause of the accident was attributable to any negligence on the part of the defendant.

The deceased was a passenger on defendant’s passenger train. When near the station Shohola, Penn., and about 900 feet away, the deceased stepped off or fell off the rear platform of the smoker and was killed.

Just how the accident occurred does not clearly appear. Whether the deceased deliberately stepped off the train or accidentally fell off,- aided by .the motion of the train, the evidence does not disclose. •

The train at the time was moving at its usual rate of speed, from twenty to forty miles an hour. A passenger, named Lawrence, in the coach in the rear of the smoker at the time, says : “ He was coming out of the smoking car and came across on the front end of the car that I was on. I was on the next car to the smoker, and he disappeared.” Another witness named Everly standing at his shop, about five hundred feet distant, says : “ He was standing on the rear platform of the smoking car when I saw him first. Next I saw him fall and drag. * * * He had hold of the railing and was dragged three or four rods I think.” The only other witness who speaks of the occurrence is Timothy Welch, the conductor of the train, plaintiff’s witness, and he gives perhaps the only evidence which conveys any impression of just what did occur. He says: “ When I first saw Herdman (deceased) he was on the steps of the smoking car fixing himself to get off. He was preparing to get off when I first saw him. When I first saw him he had hold of the railing and was letting himself down as I was coming out of the ladies’ car door, and I halooed to him and sprang to him at the same time, and before I could get to him his feet had got on the ground, and the result was he was dragged. I reached to catch him, and my brakeman went down on the steps of the ladies’ car and we reached to catch him, and before we could catch him he had let go. * * * I had not seen anything of the man before that, after I left the smoker, until I saw him then. I saw him in the smoker when I took up the tickets. He was in the third or fourth seat from the front end of the "car on the right hand side. The car is forty-five to sixty feet long. * * * There had been no announcement of the-station Shohola in the smoking car up to the time I-saw the man upon the steps.”

One witness testified that the station had been announced in-the ladies’ car before the accident. No one testifies to contradict the conductor that no announcement had been made in the smoker.

Some effort was made by plaintiff to show that the track was out of repair. The workmen were seen a few days before the accident in this neighborhood removing cinders between the ties and replacing stone ballast. The evidence on this subject wholly fails to convey the impression that the track was not in good condition or that the motion of the car was unusual or unsafe, or that there was any defect in the track or road bed which contributed •or could contribute to the accident, the fall of plaintiff’s intestate, or his death.

The deceased was familiar with this train, the road and this station. The accident occurred on Saturday evening while it was light. During the week every morning he took this train at this station, and returned on this train to this station every evening. He could see from his seat in the front end of the smoker that the train was approaching Shohola station. He knew it had not slackened its speed. He knew abundant time would be afforded him to alight when the station was reached. Instead of waiting for the train to stop, he voluntarily walked back through the car, and if what plaintiff’s witness, the conductor, says is truthful, he deliberately undertook to alight 900 feet away from the station from a train moving at the rate of twenty to forty miles an hour.

Even if the theory were accepted that while standing on the platform of the car the deceased from the motion of the car lost his balance and fell, still the deceased could not be regarded as free from contributory negligence.' He left a place of safety provided by defendant, and took his dangerous position voluntarily. He was driven by no necessity; he had full knowledge of the situation, full knowledge that the defendant •could afford him no protection beyond what was plainly to be seen. Ho court has yet gone so far as to hold that such acts under such •circumstances do not constitute negligence per se. To leave it to a jury to say that such acts under such circumstances do not constitute negligence would be to throw away the best understood legal standing, and substitute in its place any whim which might chance to flit through the minds or run in the emotions of uninstructed and unbridled jurors. Ho man in possession of ordinary faculties; familiar with the oscillating motion of cars from frequent riding thereon, as was this deceased, need be notified that it is extremely dangerous to stand upon the platform at the end of a car without side guards or railing, and he knows without being told that only in the emergency of there being no other place provided is standing in such a place even excusable while a train is moving twenty ■or forty miles an hour.

The plaintiff contends that this train was short of brakemen; that the defendant should have provided one more brakeman. It is difficult to see how another brakeman could have prevented the .accident even if there had been another on the train.

It is not part of the duties of a brakeman to prevent men from standing on the platforms of the car, nor to catch them when they jump off or fall off ; and this deceased had no right to expect that this defendant had provided for him such a body guard. The duties of brakemen are to stand at the front and rear end of a moving train, as appears by the rules plaintiff offered m evidence.

It is only where the injury can be reasonably traced to lack of sufficient help that such lack can be claimed as negligence. The same is true of the roadbed and rules of a railroad company.

The plaintiff contends that it should have been left to the jury to say whether the deceased heard the announcement in the car in rear of the smoker of “ Shohola Station.” It would have been a great stretch of faith to believe from the evidence that he did hear such announcement, but even if he did' we do not see how that could absolve him from the charge of negligence. He did not stand in the position of a stranger. It was light outside. He could see. He was familiar, from recent daily riding on this train to this station, with the fact that the train was accustomed to. stop for passengers to alight He knew the train had not arrived at the station, had not slackened its speed even, and was running at a very rapid rate. Even if he had heard the announcement, he could not have interpreted it, in the light of his knowledge, tornean that he must at once thrust himself upon the unprotected end platform of the car.

v We are of opinion that no error was committed by the trial court during the trial, and that the dismissal of the complaint was-proper.

Judgment should be affirmed, with costs.

Mayham, J., concurs.


author: Learned, P. J.

text:
    Richard Bishop, Adm’r, Resp’t, v. Helen E. Hendrick, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    Gift—Estoppel.
    A testatrix in feeble health made a will upon the day before her death. In this will one Hendrick was given a house and its contents. Upon the-probate of the will Hendrick appeared and supported it. The will was-denied probate upon the ground that the testatrix had not testamentary capacity. Subsequently Hendrick claimed all the property by a deed of gift. It appeared that this deed of gift, although prepared four months, before the death of the testatrix,' was only delivered to Hendrick a few hours before the will was executed. Held, that while the fact that. Hendrick supported the will and claimed under it did not absolutely estop her from thereafter claiming under the deed, her silence relative-to the deed was very strong evidence against her, and that a judgment holding the testatrix incapable to make a gift would not be disturbed.
    Appeal from judgment in favor of plaintiff, entered on the report of a referee.

      Louis Hasbrouch, {Daniel Magone and Thomas Sprait, of counsel), for app’lt; John 0.‘ Keeler {Leslie W. Bussell, of counsel), for resp’t.
   Learned, P. J.

This is an appeal from a judgment on report of a referee. The action was brought to recover certain personal property in defendant’s possession, consisting of notes, mortgages, and furniture and other property which formerly belonged to Clara B. Hopkins, now deceased, plaintiff’s intestate. The defend. ant claims this property by alleged gift from said Clara, and the validity of such alleged gift is the question in dispute.

On Wednesday, the 25th day of March, 1885, in the evening, said Clara signed with her mark a paper purporting to be her will. She died the next day about noon. In March, 1886, it was decided by the surrogate that the deceased was not at the time of making the aforesaid instrument competent to make a will, and plaintiff was appointed administrator.

The alleged will, thus held to be invalid, gave to defendant the house and lot in which deceased lived, with all the household furniture, pictures, keepsakes and ornaments. It gave several other bequests and devises, and then the residue to deceased’s lawful heirs and next of kin. The defendant appeared by counsel on the hearing before the surrogate in support of the alleged will.

The claim of the defendant now made is upon a deed dated November 8, 1884, alleged to have been executed by said Clara to defendant conveying the homestead in Richville and also a lot -of ten acres in Richville, “ and all and singular my goods, chattels and'personal estate of every name and nature and demand whatsoever thereunto belonging to the said Clara B. Hopkins at and immediately before the time of her decease.” The consideration expressed is $1,000 and other good causes. The paper is signed and sealed, not witnessed or acknowledged. This alleged instrument seems to have remained in the possession of the deceased, not delivered, until the morning of March 25, 1885, the day on which the deceased executed the aforesaid invalid intrhment purporting to be her will. On that morning there is some evidence by a son of defendant that the deceased took a folded paper and ■delivered it to the defendant and said: “And the house and what there is here, and here is your title,” passing the papers to her. The same witness testifies that at the same time the deceased delivered to his mother a box of securities.

The deceased was buried the following .Sunday. The next ■day the alleged will aforesaid was read at deceased’s house by Louis A. Scott, named therein as executor, in the presence of the relatives, among them the defendant. He told defendant to take •care of everything the best she could, that he would have the will admitted to probate as soon as he could. She said to the persons there that she wanted the will read, as they might think it strange that she stayed there ; that is, at the house. Some one answered that was all right, as she could do so better than any other of them. The defendant made no objection to the will, and subsequently took an active part in supporting the alleged will by her counsel. She did not then assert the title under the alleged deed. After the decision adverse to the will, and in March, 1886, she notified the Gfouverneur Bank that she claimed money on deposit pursuant to a gift to her by deceased. She also notified Scott that by gift from deceased she was the owner of certain Texas securities. In neither of these notices did she state any particulars as to such alleged gift. When this- present action was commenced, she averred in her answer that the deceased, prior to her death, gave the defendant all of the personal property demanded, without alleging time or place or mode of gift.. On the trial in 1890 this alleged deed appears to have been produced for the first time.

The learned referee found as a fact that, at the time of the attempted gift on the 25th of March, the deceased was incompetent to make such a gift, and not capable of understanding,, finding or controlling her mind. The appellant insists that this-guiding is erroneous. Mow it has been decided on a hearing of all parties that at the time of executing the alleged will, which, was on the evening of the same day, she was incompetent to-make her will. She was then, in fact, too weak even to sign her name. Of course it is possible that one who was incompetent to make a will in the evening might have been competent at nine or eleven o’clock in the morning. This would evidently be true if a Sudden attack of illness had seized a person in the afternoon who» had previously been in vigorous health. But Mrs. Hopkins was' a feeble old woman of about sixty-nine. She was in bed and not dressed that morning; said that she was feeling much worse- and was afraid she was not going to get up again: that she would not be there to sit by the window and see the view any longer. And she asked a son of defendant to attend to the digging of her grave. This was the first time he had seen her in bed. So» that the weakness under which she was suffering in the evening had, at least, commenced at the time of the alleged gift.

The defendant refers to certain acts of the deceased done during the day and some remarks of her as to her funeral, etc., which the defendant thinks show sufficient mental capacity to validate-the alleged gift. The act was the requesting one Bosworth to buy a silk handkerchief for each of four boys who were going-away from the village. But these remarks as to her funeral and these trivial presents do not go far to show capacity to deliver a deed of all her property. For we must bear in mind that the-deceased for four months, while so far as appears she was well and strong and had her mental powers, had kept this deed without, delivering it. And it is only when she is feeble and expecting to-die that she is said to have handed it to defendant. Furthermore-a few hours afterwards she goes through the form of executing a will, when, if the deed was valid, she had nothing to devise or bequeath. She even devises specifically to one Ada Walker the-ten acres specifically conveyed to defendant by the deed.

We are then satisfied that, with the decision as to the will standing unreversed, the referee correctly held as a matter of fact, upon the proof that the deceased was incompetent to make a gift at the time alleged. We have no reason on an examination of all the evidence in this case to hold otherwise on this question of fact. We recognize of course the better opportunity which the-referee had for deciding such a question on hearing the testimony of witnesses in open court.

This practically decides the case. But there are some other-points which should be considered. The plaintiff urges with great force that by the conduct of the - defendant in appearing as-legatee and devisee. under the will in support thereof upon the proceedings for probate before the surrogate, without asserting her alleged claim as donee by the deed, the defendant elected to take under the will and could not thereafter (when the will had been declared void), assert a claim under the deed. Caulfield v. Sullivan, 85 N. Y., 158, 159; Chamberlain v. Chamberlain, 43 id., 424, 443. As it is sometimes stated with rather peculiar language: No one is allowed to disappoint a will under which he takes a benefit.”

We are not willing to say that, as an absolute estoppel, the defendant was bound by these acts. She never accepted anything under the will. She urged before the surrogate that the deceased was competent to make the will. That position was in harmony with the claim that deceased was competent to deliver the deed. The question before the surrogate was not whether the deceased had much, or little, or no property. It was only as to her competence. A person claiming that a deceased has given him certain property cannot be thereby prevented from establishing the competency of the deceased to make a will, by the peril of forfeiting the property claimed through the gift. It is true that, in the present case, the alleged gift embraced the whole of deceased’s property, and therefore left nothing for testamentary disposition. Still, we think, that if the defendant preferred to permit the more equitable distribution of property made by the will, if that should be found valid, she was not absolutely estopped afterwards from asserting her claim by gift.

If the will were proved, letters testamentary would issue; if not, then letters of administration. In either case she could contest with the personal representative, and the devisee or heir, her right to the real or personal property. If she had produced the deed of gift on the hearing, that would not have affected the question then in issue, except that it might have discredited the capacity of the deceased. And that the defendant did not desire to do in any view of the matter.

But while we cannot hold that she was absolutely estopped, on the other hand, we think that her silence and concealment of her alleged rights are very strong evidence against her. If she believed, from the time of the alleged delivery of the deed, that she was the owner of all the property of the deceased, it is hardly to be thought that she would have accepted from the executor the custody for him of the personal property in the house; or that she would never have notified the legatees and devisees and executors -of the uselessness of their contest over the will; or that on the decision of the surrogate, she would have neglected to produce the paper under which she now claims.

This view becomes stronger when we consider that this alleged gift was in its effect a testamentary disposition. The alleged delivery was in view of the near death of the deceased. And as to the personal property, at least, it purported to give what the deceased should have “ at and immediately before the time of her decease.” Therefore the defendant was the more required to assert her rights as soon as possible.

We consider therefore the conduct of the defendant in these respects as tending very strongly to contradict the claim that this-deed and the box of securities were delivered to her as testified by her son. A transaction of this kind, so important, alleged to-have takent place at the bedside of an old woman, in the near approach of death, in the presence only of interested relatives, needs-strong evidence for its support. The statute places special safeguards around the execution of a will. And a transaction which is practically testamentary should be carefully scrutinized by the-courts. Kenney v. Public Admr., 2 Brad., 320; Delmotte v. Taylor, 1 Redf., 417.

It may not be very important to refer to the preparation of this-deed of gift, except as it may tend to throw light on the question whether, when delivered, it was the valid act of the deceased. Ye-refer to it briefly. Mrs. Blanchard, a sister of defendant’s husband, residing in East Hampton, Mass., visited at Richville in November, 1884. She testifies that she then made a call on deceased,, that deceased asked her to do some, writing for her, and procured pen, ink and paper. The witness says that the deceased dictated from a paper in her hand and that she wrote at her dictation; that deceased attached her seal and signed her name. Until this visit to Richville the witness had not seen deceased for eleven years. The witness did not mention this to any one until some one of the defendant’s family wrote after deceased’s death to-inquire if the witness had ever done any writing for her. Without adverting to the cross-examination of this witness, it is enough to say that if she gives the correct account of the preparation' of this deed, it is evident that the deceased took no advice from those-whom she was accustomed to consult; also, that the fluent use of technical legal phrases is remarkable.

A question has been raised whether there was such a delivery of the personal property (which is what is now in question) as to make a valid gift. We consider it unnecessary to decide that point, in the view we have already expressed. These views also render it-unnecessary to consider certain objections to evidence made by the defense.

Judgment affirmed, with costs.

Mayham and Kellogg, JJ., concur.


text:
    In the Matter of the Accounts of the Executors and Trustees of Nicholas S. Vedder, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    1. Legacy—Intebest—In loco pabentis.
    The will of a testator, after certain specific bequests, gave to his widow f or life the “income and profits” of the residue of his estate. Among other bequests he gave $5,000 to F. A. Mann and $3,000 to M. Mann. By a codicil he revoked these bequests and gave their sum to his adopted daughter Ida, to be paid her upon the death of the widow. The testator died in 1879. In 1875 he and his wife had formally adopted Ida, then four years old. She lived with him until his death and with his widow until 1890, when the widow died. Held, that as the whole income was given to-the widow, the legacy to Ida could not be deemed to have been given her for maintenance, and that she was not entitled to interest thereon during her minority.

      2. Executors and administrators—Profits—Premium on securities.
    The executors sold certain securities at an advance. Held, that the widow was not entitled to this premium as “ income and profits.”
    3. Same—Res adjudicata.
    The executors had, before the accounting in question, brought an action for the construction of the will, although there was nothing in the-will in the nature of a trust justifying such an action. To it the present appellants were parties. In it the court held that there was a conversion of the real into personal; that certain bequests to charities were void so far as they exceeded one-half of the testator's estate, and as to such excess the court held that it passed to the next of kin. The will gave the executors, a power of sale but did not direct its exercise. The executors sold and turned the real into personal. Upon an application by the appellants, claiming as heirs-at-law, for their share of the proceeds of the realty, Held, that so much of said “ excess” as was real property vested, subject to the life estate of the widow, at once in them as heirs-at-law, and that they were not concluded by the judgment which declared a conversion and that the excess went to the next of kin.
    Appeal from final decree made on settlement of the accounts of the executors and trustees of Nicholas S. Yedder, deceased.

      Seymour Van Santvoord, for app’lt, Ida A. Yedder; Sale & Bulkley (.Matthew Hale, of counsel), for app’lts, Brooks et al; McClellan & McClellan (Robert H. McClellan, of counsel), for app’lt,. Simon F. Mann, ex’r; Townsend, Roche & Nason (.Martin I Townsend, of counsel), for resp’t, Otis Gr. Clark, ex’r; King & King-(Edwin A. King, of counsel), for resp’t, Troy Orphan Asylum; John H Peck, for resp’ts, Trustees of Troy Annual Conference ;• Sanders & Myers (W.T.L. Sanders, of counsel), for resp’ts, John E. Gary et al.; Horatio C. Glen, for resp’ts, Catharine M. Phillipset al.

       Modifying 40 St. Rep., 119.

   Learned, P. J.

This matter comes here by appeal from an accounting before the surrogate. There are three separate appeals,. and five separate respondents.

Ida A Yedder appeals and claims interest on a legacy of $8,000 left to her.

Willard EL Brooks and others appeal. They claim certain interests in real estate as heirs at law, not next of kin, which estate has been sold.

Simon F. Mann, executor of the widow (who afterwards married one Hartshorn), and who was entitled to income, appeals, claiming the benefit of a certain increase in securities, and also as-to the application of the costs.

Some of the respondents oppose all of these appeals; others all but that of Willard EL Brooks and others.

First as to the appeal of Ida S. Yedder.

The deceased died in 1879. By his will, executed July 25, 1867, he gave his wife a life estate; and after her death certain legacies, among them: Fourth, to Fanny A. Mann, $5,000 ; Ninth,, to Martha Mann $3,000, with a contingent bequest to others.

By a codicil, executed June 5, 1875, he cancelled these two bequests, describing them, and then declared, “ and in place and stead thereof I give and bequeath the sum of eight thousand dollars, being the sum of said two former bequests, to my daughter Ida A. Yedder.”

On the 11th of September, 1875, the testator and his wife executed an indenture with the American Female Guardian Society, by virtue of which said Ida was apprenticed to them till she was eighteen. It was stated, however, therein that it was intended that said Ida should be taken as far as practicable into the family as an adopted child; she was then four years old. She was treated as an adopted child, during the life of the testator. From his death down to the death of his widow, June 8, 1890, Ida was educated and supported by the widow as a daughter, and in correspondence with the situation in life of the said widow.

It is not shown that Ida had any estate of her own except this legacy. •

She now claims that it is presumed that the legacy was given for maintenance, and therefore that it draws interest from testator’s death.

The question in such cases is what did the testator intend, ascertained by what he said and the surrounding circumstances. When courts say that the testator must have been presumed to mean what he did not say, they are groping in the dark and making, instead of construing, a will.

This testator need not have given any legacy to Ida. He was at liberty also to say when the legacy which he did give should be paid. He was not obliged to say that she should have the interest meantime. And he did not say so. On the contrary he gave all the income and profits of his estate to his widow (excepting such property as he had previously bequeathed to her absolutely). Therefore he could not have intended that any of the income should be paid to Ida for maintenance. For if interest on the legacy was to be paid to her for maintenance it would have to be paid every year. It would be absurd to say that for the purpose of said maintenance an accumulation of interest should be paid to Ida, after the death of the widow. But the interest on the legacy should not be paid to Ida every year, because all the interest on the whole estate was to be paid to the widow. It is practically the same as if the will had directed the executors to set apart $8,000; to pay the interest thereon to the widow during her life and at her death to pay the principal to Ida. It would hardly be .presumed under such a bequest that the testator intended to give to Ida that which he had expressly given to the widow, viz.: the interest. In the present case the testator gave to the widow for life all the income, including that arising from the $8,000 ultimately bequeathed to Ida. Thus he shut out the construction for which Ida contends.

Let us suppose that the testator had given the income of his whole estate to his widow for life and after her death the whole estate to Ida. According to the argument urged on us, as the testator stood in the place of a parent to Ida, the legacy was for maintenance. Therefore she must have the interest on the bequest from his death. Hence the widow would have no income whatever. That is but pressing the' rule contended for to its legitimate result. If Ida can deprive the widow of a part, why not of the whole income ? For it is the right to interest, not to principal, which is asserted.

Again, by the will two legacies were to be given to the testatator’s wife’s sisters, amounting to $8,000. Certainly these legacies did not carry interest, even by the most violent presumption which could be indulged in. And, therefore, unquestionably there was under the will no deduction to be made from the income of the widow to pay interest on these legacies. The codicil only cancels these legacies and gives “ the sum of said two former bequests ” to Ida. Hence she would not receive any more than those legacies; and clearly would not be entitled to interest

Again, although the codicil is dated a short time prior to the indenture of adoption, yet the codicil speaks of Ida as “my adopted daughter.” It is reasonable to suppose that the arrangement carried out by the indenture had already been made, at least verbally. And at any rate, long before the* will and codicil took effect, the indenture of nominal apprenticeship, but practical adoption, had been executed by the testator, and by his wife. He had a right then to expect that Ida, who must have been about eight at his death, would, at least till she was eighteen, the age-mentioned in the indenture, be cared for by the widow, who was herself a party to the indenture. Van Bramer v. Hoffman, 2 John. Cas., 200. Such expectations, if he had them, were fully realized. Ida must have been nineteen at the death of the widow. And up to that time she had been maintained and educated as a. daughter.

If a father gives his property to his widow for her life, with remainder to his children, it must be supposed that the children, would be supported by the widow. And that is the thought: which the testator must have had in this case.

These views leave us no reason to doubt what the testator in fact intended. It is' urged, however, on behalf of Ida, that an established rule of construction compels us to disregard his plain intention and to assume that he meant something else. As is said in Thorn v. Garner, 113 N. Y., at 202; 22 St. Rep., 692, there are “ certain facts which the courts have agreed are equivalent to an express direction to pay interest, because from such facts the courts will presume an. intention to have it paid.” In Bradner v. Faulkner, 12 N. Y., 472, it was said that, in the absence of express direction, the intent of the testator to authorize-the payment of interest should clearly appear.

The case of Cooke v. Meeker, 36 N. Y., 15, held that where the-testator gave a sum of money to a trustee in trust to invest in bond and mortgage and apply the income to the use of his granddaughter during her natural life, the granddaughter was entitled to the interest from the testator’s death. That is a case quite different from, the present. The legacy was expressly for use during life. The opinion contains numerous English cases on this'point. In Brown v. Knapp, 79 N. Y., 136, the will was as follows: “ I give, devise and bequeath to my grandson * * * the sum of $3,000, and direct my executor * * * to pay to-him the same when he shall attain the age of twenty-one years.” 'There was a gift over if he should die before twenty-one. The residue after legacies was given to his son. It was held that this legacy carried interest; the grandson being about seven at the testator’s death. Here there was a distinct setting apart of $8,000, no provision as to what should be done with the income, and the time of paying over was at maturity. It was inferred that the infant was to have the benefit during his minority.

In Keating v. Bruns, 3 Dem., 234, property was given to trustees to pay the income to an adopted daughter. It was held that she ought to have the income during the year succeeding the testator’s death. The will provided for the disposition of the principal fund after the death of the beneficiary. But it does not appear that the income was disposed of in any way except for the use of the beneficiary.

In Neder v. Zimmer, 6 Dem., 180, the gift was of money in a savings bank to three children, each to have his share when he arrived at twenty-one. It was held that the children were severally entitled to the interest.

How, without citing other cases, it will be seen that the principle seems to be applied when it is in harmony with, or not in violation of, the provisions of the will. The cases cited were unlike the present, and we think that the principle does not apply. Lyon v. Indust. Ass’n, 52 Hun, 359; 24 St. Rep., 443. The surrogate was right.

The next question we consider is that presented by the executor of the widow. The personal securities held by the executors of the testator were sold by them after the death of the widow. A premium of $8,659.83 was received therefor in excess of the premium at which securities had been charged in the previous decree of 1882. Her executor claims this as income to which the widow is entitled.

The will rather tautologically gives the wife “ the income of all my other estate, both real and personal,” and again in the same item, “the profits of all my other estate, both real and personal.” But there is no difference in the meaning of the words. In the next item he gives, after his wife’s death, “ the income and profits of $10,000 to Alida Yan Guysling, during her life, ” using thus the same language. Then he disposes of the whole of his estate. This use of the words “ income and profits,” is only due to the lawyer like fondness for using several words where one is sufficient. If the executors had not sold the real estate, and if the real estate had increased in value during the widow’s life, she would not have been entitled to the increase. So with personal property. This question is carefully discussed and fully settled in Matter of Gerrry, 103 N. Y., 445; 3 St. Rep., 688. We think that the use of the word “profits,” in these items of the will, has no additional meaning to the words construed in that case. The decision of the surrogate was correct.

The remaining question is that on the appeal of Willard K. Brooks and others, grandnephews and a grandniece of the testator. It has been held in an action in this court that the gifts, after the death of the widow, to the Troy Orphan Asylum and the Troy ■Conference under the statutes of the state were void so far as they ■exceed one-half the testator’s estate, and that as to such portion the deceased died intestate except as to the widow’s life estate. Laws 1860, chapter 360. Mo dispute is made as to the law in this respect. These appellants claim nothing as to the personal •estate. 2 R S., p. 96, § 75. But they claim as heirs at law their share of the real. 1 R. S., 752, §§ 8, 9.

The personal estate was enough to pay all the legacies including the half to which the aforesaid corporations are entitled.

There was in the will an authority, but not a direction, to sell real estate. Mor is the purpose of such authority expressed in the will. It could only be for the purposes of the will. Wood v. Cone, 7 Paige, 471. There was no purpose of the will for which ■such sale was needed. There was, therefore, no conversion of the real into personal property. A discretionary power produces no such effect. White v. Howard, 46 N. Y., 162: Chamberlain v. Chamberlain, 43 id., 431; Chamberlain v. Taylor, 105 id., 186; 7 St. Rep., 517.

The real estate (subject to the life interest therein of the widow), so far as it was undisposed of, vested at once in the heirs .at law. The gift of the income to the widow gave her a life ■estate in the land. 1 R. S., m. p. 727, § 47. She was not the mere beneficiary of a trust in respect to the land, but had the estate. And the undisposed-of remainder vested in the heirs at law. It may be doubted whether the power of sale existed in respect to this land as to which the testator made no devise. 1 R. S., m. p. 734, § 102; 730, § 67; Chamberlain v. Taylor, ut supra. It is not necessary to decide that question here; since .these heirs at law, by coming in and claiming a share of the avails, ■practically ratify the sale, of the executors. But we are satisfied that these heirs are entitled to their share of the avails unless they are deprived thereof by a previous decision of the court. An action was heretofore brought by the executors for the construction of the will To that action these heirs at law were parties. In the judgment entered in that action, June 11, 1880, it was, among other things, adjudged that the will provided for the •conversion of the real into personal property, and that the whole ■estate must be considered and treated as personal property. The next of kin of the testator now claim that that judgment establishes their right to this undisposed-of share of the estate and estops these heirs from their legal rights.

Mow that action was solely for the instruction and aid of theexecutors. So far as this share of the real estate was concerned, they had no duties under the will, for it was not disposed of thereby. We have seen that it is even doubtful whether this power of sale extended so far.

In Rathbone v. Hooney, 58 N. Y., 463, there had been a foreclosure to which one Mrs. Brown was a party defendant. Mrs. Brown held an interest in the estate as trustee for Maria Rathbone’s life, and also for her in her own right as remainderman, and she had executed a mortgage. Her own estate she could mortgage; the trust estate she could not. It was held that,, though the judgment in foreclosure cut off her own estate, it did. not cut off the trust estate. The court said that “that judgment, was final for its own proper purpose and object, and no further ; ” and that Mrs. Brown “ was not bound to set up her claim as trustee when made a party to the foreclosure in the absence of any averment in the complaint in respect to the interest or claim that it was subject to the mortgage.”

The proper object of such a suit has been passed upon, Bailey v. Briggs, 56 N. Y., 407; Dill v. Wisner, 88 id., 153, and lately by this general term, in Avery v. Mabey, 42 St. Rep., 74. It can be maintained when the executors have some duty in the way of a trust. As to the real estate now in question the executor had none.

And it will be seen that the judgment is general in its terms,, stating that the “ excess ” over one-half of the gross amount of the estate goes to the next of kin. It is not questioned that this-is correct as to the personal property. And nothing appears in. that judgment as to the amount of either real or personal.

There is no doubt as to the rule of res adjudicaia. The only-question is whether, in such an action as that above mentioned, brought for the construction of the will in respect to the duties-of the executors, these heirs at law are bound by the statement that the “ excess ” goes to the next of kin. On the whole consideration of the question we are of opinion that they are not.

Some question is made as to the discretion of the surrogate in-charging executors’ fees and expenses of accounting. He directed' that these items should not be charged against the portion of the estate in which the Troy Orphan Asylum and the Troy Conference were entitled to share, but against that portion in which-the widow and next of kin are entitled to share. As we have taken the view that the avails of the real estate go to the next of kin, there must be a modification of the surrogate’s decree after an ascertainment by him of the amount of those avails. This may-render a new adjustment of costs necessary, since the heirs have-not been heard upon that point. We think it best, therefore, to-say nothing upon the question of costs. The decree must be affirmed, except so far as it adjudged that the avails of .the real estate be distributed among the next of kin, in which respect it must be reversed and the matter sent back to the surrogate to-ascertain the amount of such avails and to provide for the payment thereof among the heirs. The question of the charging the costs and executors’ fees will, of course, be open to such readj ustment as the surrogate may make in view of these new interests.

The appellants, Brooks and others, will be entitled to costs of this appeal against the next of kin and the executor of the-widow.

The respondents, the Troy Orphan Asylum, the Troy Conference and executors, will be entitled to costs of this appeal against Ida A. Tedder.

The respondent, Clark, executor, will be entitled to costs of “this appeal out of the estate.

This order may be settled before Mayham, J.

Mayham and Putnam, JJ., concur.


author: Van Brunt, P. J.

text:
    The People, Resp’ts, v. Henry J. McGonegal, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Juey—Bias.
    Where the evidence shows that notwithstanding the impression which a report in a newspaper may have made upon a juror’s mind, he can and will decide the case according to the evidence and be governed by the evidence alone, the mere fact that he states that the impression which he received from such accounts would remain in his mind until he heard the evidence in the case in no way disqualifies him.
    :2. Same—Challenge.
    It is not necessary that all the challenges of the People should be exhausted before the defendant can be called on to challenge. All that § 385 of the Code requires is that the People shall exercise their right to challenge as to any one of the classes of challenge before defendant can be called on to exercise his right as to such class.
    ■3. Abobtion—Accomplice.
    The mere fact that a person went to defendant’s with the deceased does not in any way make such person an accomplice, even though she knew of the deceased being pregnant.
    ■4. Same.
    Defendant was applied to by deceased, who informed him that an abortion had been attempted on her, and refused to do anything for her, but subsequently promised, if she wanted him, to do the best he could; subsequently he was called and the landlady of deceased told him he must take her away, which he did in the night, and attended her until she died, when he removed her body in the night to an undertaker’s and gave a false certificate of death, and afterwards asked a person to write a letter purporting to come from deceased. Held, that the question of defendant’s guilt was one for the jury.
    3. Same—Bebden op pbooe.
    In order to escape from the crime of abortion the burden of showing that it was necessary to preserve life is upon the defendant; it is not for the People to prove the negative.
    <3. Tbial—Chabge.
    The court is not bound to rehearse the whole of the testimony to the jury in its charge, and it is not error simply to refer to such portions of the testimony as will illustrate the questions of law which it is necessary to present to them.
    Appeal from judgment of the court of general sessions convicting the defendant of the crime of manslaughter in the first degree.

      G. W. Brooke, for app’lt; B. S. Weeks, for resp’ts.
   Van Brunt, P. J.

The defendant herein was indicted for the crime of manslaughter in the first degree for having committed an .abortion upon one Annie Goodwin, in consequence of which she died.

The jury hSwing convicted the defendant, from the judgment thereupon entered this appeal is taken, and in support thereof the appellant urges various grounds upon the consideration of the court.

The first is that a motion to adjourn the trial of the defendant, was improperly denied.

Second. That in the formation of the jury improper persons-were impanelled contrary to the provisions of law.'

Third. That it was error to deny the defendant’s motion to advise an acquittal at the close of the case for the prosecution.

Fourth. Because of alleged errors in rulings as to the admission, and exclusion of evidence.

Fifth. Because of errors in the charge of the court.

And sixth: Upon the ground that the verdict was against the-weight of evidence.

In respect to the motion to adjourn, it is sufficient to say that, no legal ground for any such adjournment was presented to the court. The cause had been set down for trial at the time at. which it was called, and there was nothing presented upon the-papers which tended to show but that if the defendant’s counsel was not ready for the trial he might have been ready had due-diligence been used. The papers contained a mere statement of" counsel that they had been unable to get ready, with a very meagre statement of facts tending to support this assertion. The-absence of alleged papers which it is claimed, being in the hands-of the assistant district attorney, were not within-the reach of the. defendant, does not seem to have been of great materiality in, view of the fact that the full record of the proceedings before the coroner was in their possession.

In respect to the errors which it is alleged were made in theimpanelling of the jury, it will not be necessary to refer to the-numerous instances which are cited upon the defendant’s points,, because the principles which are applicable to one seem to control the disposition of all. The proceedings in reference to the impanelling of the juror Miller seem to present the question in as strong a form as any of the others, and the objections relating to his case will be specially considered.

When the said juror was called he was challenged by the People for bias, and upon examination by the district attorney he-stated that he could, fairly and impartially, without any bias, try this case between the People on one side and the defendant on the other, upon the evidence which would be submitted.

Upon being examined by the defendant’s counsel he stated' that he read certain newspapers and that he recollected reading-about this case, and that it had been stated in the papers that. Annie Goodwin had been killed by the criminal malpractice of the defendant McGonegal, and he thinks he read ,the whole proceedings, and that if he read the whole proceedings he read that the body was found and brought to the coroner. He was then asked whether he read the proceedings before the coroner. He answered “Yes, sir.”

“- Q. And that helped you to form the opinion you have now,, didn’t it? A. Yes, sir; just as. much as any other article I read in the paper.

“ Q. As to the guilt or innocence of the prisoner ? A. Yes.”

Then upon examination by the district attorney, the juj-or stated that he did not read anything that he knew to be evidence in the case; what he read he supposed to be an account in the newspapers of the occurrence, and that he did not recollect that he was aware that he was reading the testimony of witnesses under oath. And he again stated that, notwithstanding thd impression or opinion that he had formed, he could still fairly decide the case according to the evidence and be governed by the evidence only.

Upon recross-examination he stated that it would take evidence to remove the impression from his mind, but if he went into the jury box he could determine the issue involved in this action upon the evidence produced in court uninfluenced by any opinion he then had. He stated that he thought he had read the whole of the proceedings from beginning to end, but whether he read the proceedings before the coroner he could not exactly say, and that when he said he had read it from beginning to end, he meant that he had read whatever was in the newspapers that he saw just like any other article, and he repeated that he could not say that he was aware when reading the report of the proceedings at the inquest that he was reading the testimony of sworn witnesses; that he had read them as newspaper reports. And after having been examined and reexamined upon this subject, and having stated again and again that he could go into the jury box and determiné the guilt or innocence of the defendant upon the evidence produced in court and upon that alone, uninfluenced by any impression he then had, the court after seeing the juror and hearing his testimony, and in the light of his statement as to his condition of mind, held him to be a competent juror and overruled the challenge.

In this we think there was no error. The facts in reference to this juror as shown by the record distinguish it in important particulars from the cases of Greenfield and McQuade.

In those cases the juror had read what purported to be verbatim accounts of proceedings in court upon the trial of the defendant, and upon reading that evidence had formed an opinion, and it was claimed that having read the evidence in the case and formed an opinion the presumption was that the juror would necessarily form the same opinion upon hearing the same evidence repeated in court.

But in the case at bar, the juror expressly states that he did not understand that he was reading the testimony of witnesses under oath before the coroner; that he thought they were simply newspaper accounts of the proceedings; and he repeats again and again that notwithstanding the opinion or impression he might have he would be governed by the evidence only, and would find a verdict according to the evidence produced upon the trial 'in court.

But it is claimed that the witness said that he would carry the opinion which he had formed into the jury box, and that that would remain until evidence was produced to remove it. That necessarily would be the condition of mind of any juror who had ever formed any impression or opinion in respect to the case. Until he heard, something more about the case undoubtedly the same impression would remain. Although the juror may have an impression or opinion derived from newspaper accounts when he comes into the jury box and is sworn as a juror and hears the evidence in the case, if he is an honest and fair minded man he would naturally find his verdict according to the evidence which he hears from the lips of witnesses, rather than upon the impressions derived from the statements of reporters contained in newspapers. And where the evidence shows that notwithstanding the impression which a report in a newspaper may have made upon his mind, he can and will decide the case according to the evidence and be governed by the evidence alone, the mere fact that he states that the impression which he received from such accounts would remain in his mind until he heard the evidence in the case in no way disqualifies him.

The idea that a juror by simply taking the oath can banish from his mind an impression which has been therein formed in regard to a fact from reading what is supposed to be a recital of it is absolutely without foundation. And this is recognized by the provisions of the Code, which make a juror eligible where the court is satisfied that, notwithstanding the impression or opinion, the juror will find a verdict according to the evidence, and the evidence alone.

Upon an 'examination of the record we have been unable to find any reason to suppose that any but fair and impartial jurors ■ were impanelled.

It is further urged, however, that the People should have exhausted all their challenges, and that it was error after the People had challenged for bias, and withdrawn that challenge, and the defendant had challenged for bias, and examined the juror; to allow the prosecution to peremptorily challenge such juror, it being ■claimed that all the challenges of the People should be exhausted before the defendant should be required to make any challenge. We find nothing in the act which sanctions any such practice. It is true that § 385 of the Code states that challenges to an individual juror must be taken first by the People, and then by the defendant. But it is apparent that this applies to the different classes of challenge which are enumerated in the next section, which provides that challenges of either party must be taken first to the panel, second, to the individual juror for general disqualification, third, to the individual juror for implied bias, fourth, to the individual juror for actual bias, and, fifth, peremptory.

All that was intended by this provision was to require the People to exercise their right to challenge as to any one of these classes before the defendant could be called upon to exercise his right as to such class.

The same question was raised in the case of The People v. Carolin, 115 N. Y., 658; 24 St. Rep., 595, and it was not thought of sufficient importance by the court of appeals to notice it in their opinions.

It is urged that there was not sufficient evidence by the prosecution showing that the crime charged in the indictment had been committed; and that the only evidence of the fact of abortion was derived from a partial autopsy hastily made under circumstances of great public excitement, and with an evident predetermination to find nothing else; and that even if such a crime had been committed, there was no evidence connecting the defendant with the commission of the alleged crime, he having had m> opportunity; and that from the evidence in the case at the close of the prosecution, the only conclusion which could be drawn was that it was the act of the deceased herself, or of some other person. And in this connection it is urged that the whole case for the prosecution, so far as it in the slightest degree tends to connect the defendant with the commission of this crime, rests upon the uncorroborated testimony of an accomplice of the defendant, one Sadie Traphagen; and that as no conviction can be had upon the testimony of an accomplice unless corroborated by such other evidence as tends to connect the defendant therewith, the court should have directed an acquittal.

There is no evidence whatever that Sadie Traphagen was an accomplice in the commission of this abortion. The mere fact that she went to the defendant’s with the deceased does not in any way make her an accomplice, even though she knew of the deceased being pregnant. There was nothing to show that this witness knew that the deceased was to have an abortion committed, nor that she accompanied the deceased to the defendant’s for that purpose. But even if she were to be considered as an accomplice, there are facts and circumstances established by the evidence of other witnesses which certainly tend to connect the defendant with the commission of this crime, if any crime were committed.

The Penal Code, § 181, provides that no person can be convicted of murder or manslaughter unless the death of the person alleged to have been killed, and the fact of the killing by the defendant, as alleged, are each established as independent facts, the former by direct proof, and the latter beyond a reasonable doubt. In other words, the death of the person alleged must be established by positive evidence, but the fact of killing by the defendant may be proved by circumstantial evidence; but the evidence must be of such a character as to establish the guilt of the defendant beyond a reasonable doubt. In the case at bar, the death of the person who was alleged to have been killed is established by positive evidence. The body was recognized by those who were familiar with her, and positively identified. The next step is the question as to whether the defendant was responsible for her death, and this is established by circumstantial evidence..

The evidence shows that the deceased visited the defendant on the 2d of July ; that she then informed him of her condition and he evidently inferred that she was applying to him to be relieved therefrom, because his reply to her, as he states it, was that he would not do anything for her in that respect; that then the deceased intimated to him that she had been doing something towards that end herself, and he sent her away with the statement that she must go home and take care of herself, and that he would treat her, if she wanted him, to the best of his ability, and that on the same day the deceased removed from the house at which she had been staying with the witness Traphagen, to a Mrs. Collins, and on the 4th of July she was there taken sick and the defendant went to see her. He stated that he did not recognize the deceased as having called upon him before; that he did not make any particular examination of her, but was met at the threshold of his visit with a demand by Mrs. Collins that the deceased should be removed, that if there Was anything wrong about her she could not stay in that house, and she did not stay, but was removed by the defendant at about eleven o’clock that night, when she was taken to a Mrs. Shaw’s, at 117 East One Hundred and Eifth street, the deceased having told defendant after he had gotten her into his wagon that she had nowhere to go. The defendant committed her to the charge of Mrs. Shaw and visited her there until her death on the succeeding 12th of July.

It does not clearly appear when the defendant first recognized his patient as the person who had visited him at his home on the 2d of July. It appears, according to his testimony, that during all this time of his attendance upon her he was treating her for rheumatism; and that he made no examination to ascertain whether what had been done as the witness says by the deceased had had any results or not.

Although it does not appear distinctly when he first recognized the deceased as his former visitor, it is to be inferred from the nature of the defendant’s testimony that such recognition took place early after the visit to Mrs. Collins and her removal by the defendant to Mrs. Shaw-’s.

The defendant then knew from the statement which had been made to him by the deceased, according to his own testimony, that she was pregnant, and had been attempting to commit an abortion, and yet, if his story is to be believed, he made not the slight- . est investigation into her condition, or as to whether those attempts at an abortion had been followed by any result, and withal knowing that the symptoms of peritonitis and rheumatism were to some extent identical. Upon the death of the deceased in the middle of the night, the defendant removed her body to the undertaker’s, gave a certificate of death which contained many false statements, and the decased was buried. It further appears from the testimony of the witness Traphagen that a few days subsequently, upon two occasions, the defendant came to her for the purpose of getting her to write or sign a letter purporting to come from the deceased, in which the deceased should apparently say that she was doing nicely with an old friend of her's, working every day and Sunday, and would be at home in a month or two, not to wrorry.

About ten days after her decease her body was exhumed and an autopsy had which showed, as was testified to by the physicians making it, that death was caused by peritonitis resulting from an abortion which had been committed upon the deceased.

Upon the part of the defendant expert evidence was offered tending to show that from the examination made by the physicians, as testified to by them, it was' impossible that they could state that death had been produced by an abortion.

It would appear upon a consideration of the features of this case that it was eminently one for the jury. The defendant admits that the deceased told him she was pregnant and that an abortion had been attempted, and promised, according to his own story, to attend her in case she wanted him, and to do the best he could for her. When called upon to visit her at Mrs. Collins’, although he pretends not to have recognized her at that time, he expresses no astonishment when he is informed by Mrs. Collins that he must take her away, and in the middle of the night he removes her to Mrs. Shaw’s and attends her there until her death, and then, in the night again, removes her body to the undertaker’s and gives a certificate of death which certainly contained false and erroneous statements calculated to prevent the establishment of the identity of the deceased; and during all this time, according to his own statement, he made no examination whatever of the deceased to ascertain what the effect of this attempt at an abortion had been. The reasons given by the defendant for his certainly somewhat extraordinary actions were for the consideration of the jury, and they might well determine that his conduct was caused by a consciousness of guilt and a fear of detection.

But it is urged that the prosecution failed to prove that even if an abortion was committed that the same was not necessary to preserve the life of the deceased, and consequently the defendant was not guilty. A reading of the section of the Code under which the indictment was found shows with reasonable clearness that if a defendant seeks to excuse himself from the charge of having committed an abortion it is necessary that he establish the fact that the same was necessary to preserve the life of the deceased. The commission of an abortion is made manslaughter in the first degree, unless the same was necessary to preserve the life of the deceased. In order to escape from thé crime the burden is upon the defendant to establish the exception. It is not for the People to prove the negative. This seems to be the plain language of the Code, and it is in consonance with the ordinary rules governing evidence.

We have examined the large number of exceptions taken to the admission and exclusion of evidence, and find no error has been committed by the court which in any way prejudiced the defendant. A large number of the exceptions to the exclusion of testimony were entirely overcome by the fact that the evidence sought to be introduced by the question excluded had either been previously introduced or similar questions were subsequently answered.

Meither do we find any errors committed by the court in its charge to the jury. The principal criticism upon this point is that the court in its charge stated that it would call the attention of the jury to such evidence as it deemed material, and that no presentation of all the evidence.-was made by the court to the jury, but only of such portions as it deemed material.

We are not aware that the court is bound to rehearse the whole of the testimony to the jury in its charge, or that it is error simply to refer to such portions of the testimony as-will illustrate the questions of law which it is necessary to present to the jury.

The court committed no error certainly in calling attention to the section of the Code which defined the crime of which the defendant was convicted, although it might be true that there was no evidence that the defendant had made use of all the means which were there designated.

The point that the requests to charge were all, except the first, substantially refused, is notrborne out by the record. It appears, so far as these requests entitled the defendant to have them charged, they were included in the charge of the court. Most of the requests involved a direction to acquit, or that the jury must be satisfied beyond question of the fact that the defendant was instrumental in causing the death of the deceased. Such is not the rule of law, and it would have been error to submit any such proposition to the jury.

The court distinctly submitted to the jury as to whether they were satisfied from the evidence beyond a reasonable doubt that the defendant had committed the abortion. After having submitted this proposition to the jury it should not be required to reiterate the proposition and say that the evidence must fix, to a moral certainty, the guilt upon the accused and no one else. And after having charged the jury that the circumstances must be of such a character that they point to guilt to the exclusion of any other reasonable hypothesis, it was certainly no error to refuse to charge a request containing precisely the same proposition.

The presentation of the case to the jury by the charge of the court seems to have protected all the rights of the defendant, and to have placed before the jury the fact that before they could convict, the evidence, being circumstantial, must point indubitably towards the guilt of the defendant

There seems, therefore, from the record to have been no error committed which was prejudicial to the defendant.

But we cannot allow to pass without comment the manner in which this case upon appeal has been prepared, nearly fifty pages of the record consisting of the speeches of the counsel to the court which form no part of the record, and should not have been certified to this court as part thereof.

The conviction should be affirmed.

Andrews, J., concurs.


author: Daniels, J. Lambert, J.

text:
    The People ex rel. John P. Leo, App’lt, v. John T. Camp, Colonel, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    National guard—Officer of disbanded company—Mandamus.
    Relator was captain of a company which was disbanded. His name was dropped from the roll of captains of his regiment, and he sought by mandamus to have it restored and for recognition as a supernumerary officer. It appeared that he had not taken the necessary steps for enrollment as a supernumerary officer, but demanded recognition as an active officer. Held, that the colonel of the regiment had no power to restore his name to the active list, and that under the circumstances the mandamus was properly refused.

      Appeal from an order denying an application for peremptory writ of mandamus for the restoration by respondent of appellant to the list of captains in the Twenty-second Eegiment, N. Gf. S. 1ST. Y., and for recognition as supernumerary officer of said regiment.

      Asa B. Gardiner and Wm. G. Reddy, for app’lt; Almet F. Jenks and Wm. W. Ladd, Jr., for resp’t.
   Daniels, J.

The application-is made by John P. Leo, as captain of Company I, of the Twenty-second regiment of the National Guard of the state of New York. The company had been previously disbanded by an order of the governor acting in his capacity of commander-in-chief. This order was authorized by § 1 of chap. 332 of the Laws of 1888. His power to make the order was considered and sustained in the denial of a previous application made in behalf of the captain for a writ of certiorari to review the action of the commander-in-chief, and the order denying that application was affirmed by the general term.

A state of facts quite similar to those then made to appear has been presented in support of the application for the writ of mandamus. In support of the application the applicant states that he has been deprived of his office, and that due demand had been made of the commanding officer of the regiment for his restoration to that office, which had been unjustly and unlawfully refused. And the writ has been applied for commanding the respondent, the colonel of the regiment, his successors, subordinates and assistants, to restore the name of the petitioner to the roll of officers of the regiment, and to recognize him in the performance of the functions of his office as captain therein, and permit him to exercise the powers, duties and privileges of captain in the, regiment. The colonel of the regiment had no power to comply with this demand even though it was made as that is stated to have been done by the applicant. For as the company had been lawfully disbanded and the other companies comprising the regiment each had its own captain, the colonel did not have the power, if he had the inclination, to make this official restoration of the applicant.

That he had been removed or was intended to be removed from his office, has not been established as a fact. All that has been done has been to comply with the order of the commander-in-chief, to disband and muster out the company, and that still left the applicant in his office, but necessarily only as a supernumerary. He has his office, without a command. The affidavit of the colonel used in answer to the application discloses this as the situation of the applicant. He says :

No demand was ever made upon me by the above named relator to recognize him as a supernumerary officer, nor to accord him any privileges or rights as such. The demand made upon me was to recognize the relator as an officer on active duty and to accord him the rights and privileges of such an officer as distinct from those of a supernumerary officer. I refused to agree to such demand in obedience to the order of the governor, commander-in chief, making the relator a supernumerary officer, a copy of which order is attached to the affidavit verified herein by me, March 23, 1891, and is known and described as special order, Mo. 99, general headquarters, series 1890, and dated October 10, 1890. The relator has not been refused by me any of his rights as a supernumerary officer.” And as there seems to be no reason for doubting the correctness of this statement, the conclusion follows, that the applicant has not been deprived of any of his legal rights. What has taken place has been done under the authority of the law, and that can in no respect be changed by the writ of mandamus. Mo case has been maintained which will justify the issuing of this writ, and the order should be affirmed, with ten dollars costs and the disbursements.

Lambert, J.

The relator was commissioned as captain in the Twenty-second regiment of infantry, M. O. S. M. Y., in March, 1885, and thereafter assigned as captain of company “I,” of said regiment, and so continued until October, 1890, when the governor, as commander-in-chief of the military and naval forces of the state of Mew York, disbanded said company. Upon a former appeal from an order denying the relator’s application for a writ of certiorari to review the action of the governor in disbanding Company “ I ” of the said regiment, on the ground that it was ultra vires and unconstitutional, it was decided by this court that the action of the governor did not offend any of the provisions of the constitution of the state, and that his action was not reviewable by the courts. It was further held that the relator was a commissioned officer, as provided for by article 11 of the constitution, and could not be, as against his consent, deprived of his said office except as in the manner therein provided, and that the only legal effect of the order made by the governor was to relieve him from command of Company “I,” and did not deprive him of the office of captain of the Twenty-second regiment, thereby leaving the law to fix his status in the military service of the state, which is conceded by the relator to be that of a supernumerary officer as distinguished from an officer engaged in active service ; and such were the terms of the order disbanding Company “I.” It is there stated: “The commissioned officers rendered supernumerary.” It follows that the relator is entitled to such recognition by the respondent as that of a supernumerary officer, and no more.

The principal charge made by the relator against the respondent, and alleged to result in serious consequences to him, is that he struck his name from the roster of the Twenty-second regiment without right or authority of law, and has since deprived him of his office and appurtenances thereto. Having become a supernumerary officer, we see no good reason why his name should be kept on the roll with the officers in the discharge of active duties, and he does not cite us to any rule, or regulation under the military law of the state, or statute, requiring his name to be so kept, either by the respondent or any other person, and we believe none such exist, and it is manifest that there is no sensible reason for such regulation or practice. Section 44 of the Military Code, as amended by chapter 332 of the Laws of 1888, and regulation Mo. 24, 'provide for the only system of enrollment of supernumerary officers to which our attention has been ■called, and professedly the relator has not complied with these provisions and requirements, and cannot claim the privileges there provided.

In the printed points submitted on behalf of the relator it is ■claimed that the relator did not comply with the provisions of the statute referred to, and of the rules relating to enrollment of supernumerary officers, for the express purpose that he did not wish to be relieved from military duty as by the statute provided. It is, therefore, made plain that the respondent and ■officers of the Twenty-second regiment were under no duty or obligation to the relator to continue his name as a commissioned officer of the Twenty-second regiment upon its roster; if .so, then there is no cause to complain, as no regulation or statute was violated by dropping his name from the roster.

The only other grievance sought to be redressed by the means to be afforded by this application is that the respondent has refused to permit the relator to exercise any of the functions, powers and privileges vested in him by virtue of his commission as captain in the Twenty-second regiment. It is claimed that as a supernumerary, officer the relator in his official capacity has the right to act as a member of the board of officers of the Twenty-second regiment, to vote at elections for field officers, to’appear at drills and parades provided for by statute and receive compensation therefor, and perform other duties and functions conferred upon commissioned officers under the constitution of the state.

It is unnecessary to investigate the legality of these claims, for the reason that it is not made to appear by legal evidence that he has been deprived of the right to exercise the functions of his ■office or discharge any duty imposed upon him by law as a commissioned officer in the military service of the state. The allegation “ that the respondent has refused to permit him to exercise ■any of the functions, powers and privileges vested in him by virtue of his commission as captain in the Twenty-second regiment,” is but the statement. of a conclusion. It does not appear that at any time or place the relator presented himself for- the discharge of any duty or the exercise of any function conferred upon him by law that was denied him by the relator or any other person. Even in the absence of any denial of the conclusions contained in the moving papers, the court would be required for want of proof to deny the relator’s application. The respondent makes oath that no demand was ever made upon him by the relator to recognize him as a supernumerary officer nor to accord any privileges or rights as such.

This application was properly disposed of by the special term, and the order denying the writ of mandamus should be affirmed, with ten dollars costs and disbursements.


author: Daniels, J. Ingraham, J.

text:
    Edward O. Babcock, Resp’t, v. Millard R. Jones et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Fraudulent conveyance.
    Where property is conveyed or transferred with intent to prevent its-appropriation by creditors to the payment of their debts, such intent will invalidate the instruments of conveyance or transfer, even where there is a corresponding indebtedness intended to be satisfied by such conveyance, or transfer.
    2. Same—Injunction pendente lite.
    The defendant Jones was indebted to plaintiff and shortly before judgment was obtained made a conveyance and transfer of all his property, consisting of real estate, jewelry and office furniture, to his wife, to whom he was liable for moneys received by him as her guardian; but the facts-shown tended to prove that such transfers were intended-to prevent seizure of the pioperty under execution. Held, that the facts disclosed a. proper case for the issuance of an injunction to restrain the wife from disposing of the personal property pendente lite.

    Appeal from an order continuing an injunction.

      Jerome Buck, for app’lts; William B. JE Uison, for resp’t
   Daniels, J.

Near the time when the judgments were recovered against the defendant Millard R. Jones, and apparently in the expectation of their early recovery, he conveyed and transferred all his available property to his wife, Clara H. Jones.. These-conveyances and transfers were alleged, in support of the action, to be fraudulent against the plaintiff as a judgment creditor,, whose executions against property upon the judgments had been returned unsatisfied. The facts concerning the disposition of the-debtor’s property indirectly, and directly, to his wife are disclosed by his examination in supplementary proceedings and also by his affidavit and the affidavit of his wife used in resisting-the motion to continue the injunction, and while they prove the fact to be that he, as the guardian of his wife, had become liable to her for a much larger amount than the value of all the property conveyed and transferred to her, there is still evidence tending" to establish the conclusion that the property, in part at. least, was conveyed and transferred to her to prevent its appropriation by creditors to the payment of their debts, and- that intent, even where there is a corresponding indebtedness intended to be-satisfied by the conveyance and transfer of the property, will invalidate as to creditors the instruments affected by the intent, which may be made and delivered. Billings v. Russell, 101 N. Y., 226.

To discover the existence of this unlawful intent, the transactions between the husband and wife are required to be closely watched and carefully scrutinized. Manchester v. Tibbetts, 121 N. Y., 219-222; 30 St. Rep., 721. And the facts indicating the existence of such an intention, in this instance, are that the judgment debtor intended to transfer and convey to his wife all hi» available property, which in part consisted of his personal jewelry or ornaments, and his office furniture, which furniture never passed into the possession of his wife. These acts, including the transfer of the jewelry and the office furniture, appear, as the case has been now presented, to have been actuated more by the design to avoid their seizure under execution than to satisfy or extinguish the indebtedness which existed in favor of his wife from his use and consumption of her property which had been entrusted to him as her guardian.

It is not necessary that this intent to hinder, delay or defraud creditors shall be proved by direct evidence, but it is sufficient that it may be inferred from circumstances tending to establish the correctness of that conclusion; and these circumstances have an unmistakable tendency in that direction, sufficiently so to require the continuation of the injunction, so far as it restrains the disposition of the personal property or its proceeds, received in dhis manner by the debtor’s wife.

It is not intended, however, to be held that this evidence will ¡conclusively establish the existence of a fraudulent intention. All that it is necessary now to hold is, that as the facts have been made to appear, it sufficiently indicates that intention to justify the continuance of the injunction restraining the disposition of the personal property.

But as to the real estate brought into controversy in the action, the title to which has become vested in the debtor’s wife, the injunction was needless, for there the creditors’ rights are amply provided for by the statute in permitting the complaint to be filed, together with a notice of the pendency of the action, containing a description of the property. So far as the injunction relates to the real estate it should be modified by vacating that part of it, but as to the personal property, including the proceeds •of any property which may have been sold or otherwise converted "by the defendant, Clara H. Jones, the injunction should be continued, and as so modified the order should be affirmed, without nosts of this appeal to either party.

Yah Brunt, P. J., concurs in result

Ingraham, J.

I concur in the conclusion arrived at by Mr. Justice Daniels, on the ground that, under the circumstances disclosed, an injunction to restrain the defendant, Clara H. Jones, from disposing of the personal property received by her from her husband until the trial of the action was not an improper exercise of the discretion of the court at special term. I do not wish to be understood, however, as holding that upon the facts presented the court would be justified in granting a judgment which would direct the application of the property in question to the payment of the judgment referred to in the complaint.