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    Elizabeth Fletcher, Adm’rx, App’lt, v. Oliver P. Hurd, Individually and as Ex’r, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed May 8, 1891.)

    Executoks and administbatobs—Compensation.
    A bequest of the residue of an estate “to my executors, to be divided equally between them, in lieu of compensation for their services in the execution of their trust,” is one to the executors in their character as such, and one who fails to apply for letters, although such failure is induced by objections raised by the co-executor or heirs, in the absence of any agreement with such co-executor, fraud or duress, is not entitled to share in such bequest.

      Appeal from a j udgment entered in Schuyler county on the oth November, 1890, upon the decision of the court at special term dismissing the complaint, with costs.
    Action to compel the defendant to account and to pay to the plaintiff one-half of the amount covered by the residuary bequest in the will of James H. Dailey.
    On the 3d day of March, 1878, James H. Dailey, then being a resident of the town of Hector, in the county of Schuyler, died, leaving a last will and testament, which was duly admitted to probate on the 25th May, 1878, and letters testamentary issued to the defendant, one of the executors therein named. The will is dated August 28, 1876. The testator, after providing for the payment of his debts and funeral expenses, gave $5,000 “ to my executors, Oliver P. Hurd and Charles H. Fletcher, hereinafter mentioned and appointed, in trust for the support of my wife,” with directions to them to pay to her the net income semi-annually during her natural life, and in case in the sound discretion of his executors she should need more than the income for her comfortable support and maintenance, then they were directed to pay her such portion of the principal as she in their judgment should from time to time need for such support This was given to the wife in lieu of dower. She was also given certain articles of furniture. At her death the balance remaining of the $5,000, after providing for the funeral expenses of the wife, was given to certain nieces and a nephew. He also gave to his brother, George D. Dailey, $5,000, and to Ellen Dailey a house and lot and $4,000 and certain items of personal property. Then came the following clauses:
    “ Seventh. All the rest, residue and remainder of my estate, after suitable headstones are placed at my grave, not to exceed in value the sum of $200, I give and bequeath to my said executors, to be divided equally between them, in lieu of compensation for their services in the execution of their trust.
    “ Eighth. I hereby nominate and appoint said Oliver P. Hurd and Charles H. Fletcher executors of this my last will and testament.”
    On the day the will was admitted to probate, George D. Dailey caused to be filed with the surrogate his affidavit, stating his intention to file objections against granting letters testamentary to Charles H. Fletcher, and that he was advised and believed that there was just and substantial objections thereto. Fletcher did not qualify or act as executor or trustee and never performed any services as such. It is found by the special term that Fletcher was willing to act as executor and trustee, that the defendant made opposition to his qualifying as such, and “that by reason of such opposition and the opposition of George D. Dailey aforesaid,, the said Fletcher was induced not to qualify as said executor and trustee.”
    The defendant has not filed any inventory of the estate, or any account as executor and trustee, and he has never had any judicial settlement of his accounts. Fletcher died at Denver, in the state of Colorado, on or about the 9th December, 1879, then being a resident of that place. On the 21st November, 1889, the plaintiff was appointed administratrix of his estate by the surrogate of Schuyler county.
    The court at special term decided that by the terms of the will the residue was given to the executors as and for compensation for services as executors and trustees, and that Fletcher, having failed to qualify, was not entitled to any part of it, and that plaintiff had no interest in the estate and was not entitled to an accounting.

      W. G. Bishop and I. W. Cole, for app’lt; C. M. Woodward and O. P. Hurd, for resp’t.
   Merwin, J.

The plaintiff in her complaint alleged, and at the close of the trial requested the court to find, in substance, that just before the probate of the will it was agreed between Fletcher and the defendant that Fletcher should not qualify, but that defendant should perform all the duties of executor and trustee, and Fletcher should have one-half the residue, just the same as if he qualified and acted, and that by reason of this agreement Fletcher failed to qualify.

This the court refused to find. The appellant claims that in this refusal the court erred. Upon this subject the main evidence on the part of the plaintiff was that of the witness Cole, who testified to overhearing a conversation, or part of one, between the defendant and Fletcher, and that afterwards on several occasions the defendant admitted the existence of such an agreement This is denied by the defendant, and there is evidence on the part of .defendant that Fletcher sometime after the probate stated that he had no interest in the estate. The relations between the witness Cole and the defendant were somewhat. peculiar, and the weight to be given to the evidence of Cole was for the trial court to determine There was' no such preponderance m favor of the existence of such an agreement as would call upon this court to interfere

The appellant lays great stress upon the circumstance that the residuary fund was and is a large one. That the case does not show. The plaintiff, in her complaint, alleges that there is due the estate of her intestate the sum of $10,000, or thereabouts. This is in terms denied in the answer. Upon the trial it was conceded by the defendant that there was something over and above the legacies. The amount was not stated or proved. The defendant, upon the examination of the plaintiff, testified that an inventory was made but not filed. He was not asked what the amount was.

„ We must, therefore, assume that the court correctly declined to find the existence of any agreement between defendant and Fletcher. That being so, the plaintiff must stand upon the terms of the will, supplemented by the finding of the court as to the circumstances under which Fletcher failed to qualify.

The residuary bequest is “to my said executors, to be divided equally between them, in lieu of compensation for their services in the execution of their trust.” This bequest is to the executors in their character as such, Morris v. Kent, 2 Edw. Ch., 177, and it stands as compensation for services, which they would not be in a position to perform until they qualified. If both qualify, then the expression, ‘‘to be divided equally between them,” regulates the manner of division. There was no severance before qualification. If only one qualifies, and the other is not in a position to perform any duties and does not perform any, can it be said that the testator in that event intended, by the use of the expression above quoted, to provide that the one not so qualifying should still have the one-half ? That would convert a bequest in compensation for services into an absolute individual gift. There is nothing in the will that indicates that such was the intention. Knight v. Gould, 2 Mylne & Keen, 295.

There is no evidence of the amount of the estate at the time the will was made. We cannot assume that the residue was supposed to be any more than fairly to compensate the party or parties who should actually perform the duties. The will imposed certain duties and provided compensation for such duties. The benefit is to be received by the party bearing the burden.

But it is urged that the rule, that a legacy to an executor as such cannot be taken unless he qualifies, does not apply to a bequest of a residue, and the case of Griffiths v. Pruen, 11 Simons, 202, is mainly relied on for this proposition. In that case the bequest was as follows: “ To my friend Mr. Thomas Griffiths, who is likewise my executor, any sum then appearing, after the contents of this my will are fully complied with and fulfilled.” Very clearly that was not a case where the gift was to executors as such as compensation for official duties. In Scofield v. St. John, 65 How., 292, a legacy was given to each executor in addition to commissions. There was no question between co-executors.

In Knight v. Gould, supra, them was a bequest of a residue “ to my executors hereinafter named, to enable them to pay my debts, legacies, funeral and testamentary charges, and also to recompense them for their trouble, equally between them.” This was followed by the appointment of three persons as executors. It was held that, the bequest was to those persons as a class in their official character, and that, therefore, one having died in the lifetime of the testator, the whole residue vested in the two survivors. It was there said by Lord Chancellor Broughman that whoever performed the duty of executors was to have the residue, and that the words “ equally between them ” applied only to those who performed the duty.

It is further claimed that the defendant, by reason of the circumstances attending the failure of Fletcher to qualify, is estopped from saying that the plaintiff is not entitled to Fletcher’s share because of failure to qualify. Upon this question we must assume, as found in the court below, that Fletcher was willing to act, that the defendant made opposition to his qualifying and that by reason of such opposition and the opposition of the legatee, George D. Dailey, Fletcher was induced not to qualify. The opposition was apparently based on the unfitness of Fletcher to become executor, at least without giving security. ¡No fraud or duress on the part of defendant is found. It is not shown that the opposition was not well founded. If Fletcher was not a proper man for executor, it was the duty of the defendant to oppose his appointment and see to it that the trust estate was properly protected. That .the defendant on this line did anything more than his duty is not shown. If he did not, there is no basis for saying that there was any duress. McPherson v. Cox, 86 N. Y., 473 ; Scudder v. Burrows, 7 N. Y. State Rep., 613. The failure of Fletcher to apply for letters must be deemed to have been his voluntary act, and there would be no foundation for applying the doctrine of estoppel.

Many authorities are cited by the counsel for the appellant on the question of waiver of conditions in the performance of contracts. They do not apply here. There is no contract here between the defendant and Fletcher. The defendant and the legatees had a right to object to the issuing of letters to Fletcher. Upon the validity of those objections it was for the surrogate’s court to decide. The failure of Fletcher to apply, after such objection was made, amounted to an acquiescence for the time being in the validity of the objection, and, in the absence of any agreement between him and. defendant, or any fraud or duress, he would have no right to say that he could receive compensation as executor the same as if letters had been issued to him.

It follows that the special term correctly decided that the plaintiff had no right to compel the defendant to account and had no claim against defendant for any share of the residue of the estate.

Judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


source: Caselaw Access Project

author: Merwin, J.

license: Public Domain

text:
    Anna B. Haulenbeek et al., Ex'rs, App’lts, v. Daniel McGibbon, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed May 8, 1891.)

    Evidence—Privileged communications—Attorneys.
    In an action upon a promissory note against the alleged endorser where-the defense was forgery, a lawyer who was attorney for the owner of the note at its date, testified that in any conversation he had with defendant, he was acting in a double capacity and that relations to a certain extent of counsel and client existed; that in his further efEorts to procure a settlement he went to New York, the expenses being paid by the owner of the note and defendant; that what he did was done with the knowledge of both parties and had refused to act as attorney on either side; that defendant looked on him as a mutual friend and he considered he was acting in the same capacity as if drawing a contract for two persons. Held, the relation of attorney and client did not exist and that statements made by defendant to the witness in reference to the endorsement were not privileged.
    Appeal from an order of the Broome special term, entered in Delaware county, September 10, 1890, denying the plaintiffs’ motion for a new trial made upon a case and exceptions and upon the ground of newly discovered evidence.
    The action is upon a note dated September 8, 1884, for $2,000,. made by Nathan 0. Wood and endorsed, as it is alleged, by the defendant, and is payable at Delaware County Bank one year after date. The answer denies the endorsement and alleges that it is a forgery. The case was tried at the Delaware circuit February, 1887, and a verdict rendered for the defendant. The note was delivered to Mrs. C. F. White and by her transferred to James H. White, in whose name the action was brought. Since the trial he has died, and the plaintiffs have been substituted in his place.

      John B. Gleason, for app’lts; Edwin D. Wagner, for resp’ts.
   Merwin, J.

Upon the trial of this action, Samuel H. Fancher was called as a witness for the plaintiff, and testified that he was a lawyer, and was at the date of the note acting as attorney for Mrs. 0. F. White in reference to a claim she had against Wood, the maker ; that after some negotiation, the note, bearing as was-supposed the genuine endorsement of the defendant, was taken in settlement of the claim and delivered to Mrs. White; that about the time the note became due, it was sent to the Walton Bank for collection,-’ and, as the witness thinks, delivered by him to Mr. Mead, an officer of the bank ; that the witness had the note in his possession, and McGibbon, the defendant, saw it there. Tho witness was then asked the question; “ While the note was in your possession, did you have a conversation with Mr. McGibbon in relation to the note?” The witness then stated that in any conversation he had with McGibbon, he was in his judgment ach ing in a double capacity, and that the relations, to a certain extent,, of counsel and client existed; that in his further acting in the matter he was endeavoring to procure a settlement between the parties; that he went to New York to see Mr. and Mrs. White upon three occasions afterwards, and two of the times the plaintiff paid his expenses, and at one time the defendant paid a part of his expenses , that he rendered an account to Mr. White for all the services that were rendered, by which he received a sum of not much more than enough to cover his expenses; that he was not retained by McGibbon as his counsel in any way; was notretained by either side; declined to have anything to do with either side; that so far as he did anything, he did it with the full knowledge of both parties, and refused to have anything to do as attorney upon either side of the case; that McGibbon asked to have the note sent up to the office, and he (McGibbon) looked upon him (the witness) as a sort of mutual friend in the matter, and he came there and talked freely upon the matter; that to a certain extent he considered he was acting in the same capacity as he would if he was drawing a contract for two persons, that McGibbon did not ask him to act as his attorney, but he paid a portion of his expenses going to New York afterwards to see about a settlement. It does not appear that he went at defendant's request. The witness then stated that he had a conversation with Mr. McGibbon in reference to his endorsement upon the back of the note, and was asked to state such conversation. To this the defendant objected that it was a conversation with the witness as his counsel and was privileged. The objection was sustained, and- plaintiff excepted.

By § 835 of Code Civil Procedure, it is provided that “ an attorney or counsellor at law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment.” Before this section can apply in any case, a contract relation of attorney and client must exist, based upon an employment by the client. Earl, J., in Renihan v. Dennin, 103 N. Y., 579; 4 N. Y. State Rep., 261. It is not enough that the communication be confidential, the fact of professional employment must also exist. Rochester City Bank v. Suydam, 5 How, Pr., 258. The privilege does not apply to cases where the party applied to, though an attorney, refuses to act as such, and is, therefore, only applied to as a friend. 1 Gr. Ev., § 244; Greenough v. Gaskell, 1 My. & K., 104; Beeson v. Beeson, 9 Penn. St., 301.

In the present case it distinctly appears that the relation of attorney and client did not exist between the witness and the defendant, the witness was not retained by either side, expressly declined to have anything to do with either. At most, so far as the defendant was concerned, he was in the position of a friend. We think that a case for the application of the rule of privilege was not made out and the evidence was improperly rejected. It is very clear that it was material. It follows that there must be a new trial.

Order reversed and new trial granted, costs to abide the event.

Hardin, P. J., concurs.


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    Henry B. Walker et al., Ex’rs, Resp’ts, v. Delos Steers et al., Resp’ts. Frederick A. Saville et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 8, 1891.)

    1. Will—Revocation by inconsistent contract.
    Testator bequeathed to one S., who was his son-in-law and partner, an undivided interest in certain patents in consideration of carrying on the business of manufacturing and selling machinery under the same for ten years and accounting for one-half the profits thereof to a certain church, at the end of which period S. to become absolute owner of said patents and business. Thereafter testator and S. entered into new articles of partnership, to continue five years, by which S. was given a one-third interest in the patents, the profits to be divided in certain proportions, and providing that in case of the death of either before the expiration of the five years the business was to be continued by the survivor until the close of the term, with a similar division of profits, the firm name, good will and patents to then become the sole property of the survivor, provided that if S. was the survivor he should pay to the estate of testator a certain royalty on sales for a further period of fives years. Held, that the provisions of the contract were wholly inconsistent with the terms and nature of the bequest and revoked the same.
    2. Partnership—Continuation of business on death of partner.
    A provision in articles of copartnership for the continuation of the busi- . ness, in case of the death of one of the partners, by the survivor until the expiration of the prescribed term, is valid.
    Appeal from certain portions of a judgment entered m Otsego county on the 10th November, 1890, upon the report of a referee.

      This action is brought for the construction of the will of Schuyler B. Steers, who died at Cooperstown, Otsego county, December 13, 1889, where he then resided. The will is dated July 15, 1886, and was duly admitted to probate by the surrogate of Otsego county on December 28, 1889.
    In this will the testator, after providing for the payment of debts and funeral expenses, gave to his wife $50,000 and all his household furniture, horses, carriages and pictures, except his saddle-horse Daniel Boone. He then gave certain specific legacies to the amount of about $42,000. Then in the tenth clause of the will, after a bequest to his late son-in-law, the appellant Saville, of his saddle horse and his one share in the Hew Orleans Cotton Exchange, there came the following provision: “ I also give and bequeath to said Frederick A. Saville an equal undivided half interest in the new Mor-se cotton compress patents, dated May 28, 1878, May 23, 1882, and October 18, 1882. Also an equal undivided half interest in the Stewart and Steer and S. B. Steers’ patents for bale ejectors, and the S. B. Steers and L. C. Terry’s bale headers patents, together with all the compress patterns, tackle, etc. This bequest is in consideration that the said Saville will carry on the business of making and selling machinery under these patents for ten years after my decease, and that he will, after all the expenses of said business is paid, pay over and account at the beginning of each year for one-half the net avails and profits of the past year to the pastor and trustees of The First Presbyterian Church of Hew Orleans to found a fund to be kept invested by them, the income of which to be used by them to assist in the education of young men having the profession of a minister in view, or for city missionary work. And at the end of said ten years the said Saville to become the absolute owner of the patents and the business of making and selling them. And I further will and direct that no compensation shall be paid the said Saville for his time and services during said ten years, except his half of the profits.”
    Then after giving to Saville a legacy of $10,000, and providing for the transfer to him of certain bonds given to his daughter on her marriage, and a legacy to another party of $5,000, there came the following:
    “ Twelfth. I give and bequeath unto my beloved and good wife, Kate Clarke Steers,, all the rest, residue, and remainder of my property in trust, nevertheless, and to and for the following purposes, the same to be used to establish an institution in ornear the village of Cooperstown, to be called the Mary and Edward Steers Home, the object to be to provide a home for worthy, indigent persons, of one or both sexes, the style and character of such home to be decided and fixed upon by my beloved wife, together with my executors and the trustees of the Presbyterian church in Cooperstown. The building to be erected, and the residue of the money to be invested as an endowment fund for the support of said home.”
    He then appointed the plaintiffs executors, of whom Saville is one, and authorized them to sell real estate.

      The wife of the testator died on the 1st June, 1888, so that the testator at his death left no widow, or child, or descendant of a child. His daughter, who was the wife of Saville, died before the will was made.
    At the time of making the will, the testator and Saville were copartners in business, at New Orleans, in the state of Louisiana, under the firm name of S. B. Steers & Co. The business of the firm at that time was selling and operating cotton compresses, manufactured under the patents mentioned in the tenth clause of the will, and also doing business as cotton warehousemen. Steers had a two-thirds interest, and Saville a one-third interest in the business, and the patterns used in manufacturing compresses, and the tackle and machinery used in putting them up, were owned by the firm in the same ratio.
    This partnership continued till the 14th June, 1889, at which date the parties executed under their hands and seals and duly acknowledged articles of agreement, “ for the governing of their copartnership business and relations,” whereby they agreed to become copartners “ under the firm name of S. B. Steers & Co., in the business of manufacturing and selling the Morse cotton compressor and its attachments, of operating compresses and warehouses for the compressing and storing of cotton, and of transacting all kinds of business heretofore conducted by the firm, said copartnership to commence and date as of May 1, 1889, and include all business transacted since that time, and to continue for the full term of five years.” To that end, they thereby contributed to the copartnership the existing assets of the firm of S. B. Steers & Co., and assumed their existing liabilities, and also contributed their and each of their interests in and to the Morse cotton compressor patents owned by them or either of them as said firm or individually, such assets and liabilities so contributed and assumed to be held, owned and borne in proportion of two-thirds to Steers and one-third to Saville, each agreeing to devote their time and energies to the business as far as they were able, and share and divide the profits and losses thereof as follows: For the first two years in the proportion of two-thirds to Steers and one-third to Saville and thereafter equally. The agreement also provided that, “ In case of the death of either copartner before the time hereinbefore limited for the termination of the copartnership, the firm business shall notwithstanding be continued by the survivor until said full term of five years shall have expired, the profits and losses of said full term to be shared and divided between said survivor and the estate of said deceasde copartner in the proportion and on the basis above agreed, so that the estate of said deceased copartner shall receive the same benefit from the business as though said copartner had lived. But at the expiration of said five years the interest of said deceased co-partner shall cease and wholly determine, and all assets, profits and losses then existing, save only the firm name, good will and said patents, shall be divided between said survivor and the estate of said deceased copartner in the proportion and on the basis above agreed, that is to say, all assets, profits and losses, in whatever form existing, being earned or made prior to the expiration, of the first two years of the copartnership, shall be divided in the proportion of two-thirds to the said Schuyler B. Steers or his estate, and one-third to the said Frederick A. Saville or bis estate, and all assets, profits and losses, in whatever form existing or applied, earned and made after the expiration of said first two years shall be divided equally. The firm name, good will and said patents, shall not be sold or divided, but shall be and become the sole property of the survivor, who may thereafter continue the business for his own benefit in the firm name. But in case said Frederick A. Saville shall be such survivor and shall continue the business, then it is further agreed that for a further period of five years he shall pay to the estate of Schuyler B. Steers a royalty of $3,000 for every compress sold. This agreement shall bind the heirs and representatives of the respective parties.”
    The value of the estate left by the deceased after the payment of debts and expenses is about the sum of $100,000, consisting of both real and personal, the personal not being sufficient to pay the legacies and was not at the date of the will, which fact was known to the testator. It is not found what was the amount of property invested by Steers in the firm. There is evidence that his interest was estimated at $20,000 to $30,000. The firm was •somewhat embarrassed financially on June 14, 1889, to the knowledge of both parties. Prior to that date and after the date of the will, Saville had acquired a one-third interest in the real estate used in the business.
    The referee, among other things, decided that all that part of the tenth clause which provided for a continuance of the partnership business after the death of the testator and the payment of a portion of the avails to the New Orleans church, including the bequest of the patents, patterns, tackle, etc., and the business of making and selling as therein described, was revoked by the provisions of the contract of June 14, 1889, and all the rights which Saville has acquired in and to said business and property are such as arise out of the provisions of that contract, excepting the interest therein which was theretofore vested in him independent of the provisions of the will; that Saville, as surviving partner, is •entitled to retain in bis hands and under his control all the assets and property of the firm for the purpose of discharging its liabilities and performing its obligations, and, if be fulfils the terms of the contract, will be entitled to the benefit of the provisions in his favor, but cannot as survivor create any debt or obligation for which the separate estate of the testator can be made liable; that the bequest in the twelfth clause is void for indefiniteness and uncertainty in regard to the beneficiaries of the proposed trust and the manner of its execution, and is also inoperative by reason of the death of the sole trustee.
    Saville and the First Presbyterian Church of New Orleans, its pastor and trustees appeal

      Charles T. Brewer, for app’lts; James A. Lynes, for resp’ts.
   Merwin, J.

The contention of the appellants is, that the decision of the referee, so far as he holds that the tenth clause of the.will is revoked by the contract of June 14, 1889, is erroneous. The theory of the respondents is, that the provisions of the contract are wholly inconsistent with that part of the will, and, therefore, amount to a revocation within § 48 of title 1, chapter 6, part. 2 of the Revised Statutes. 4 R. S., 8th ed., 2549. The theo'ry of the appellants is, that the contract is not wholly inconsistent, and also that it is not a valid instrument The real question, in substance, is, whether the New Orleans church shall, under the will,, share in the future avails of the business, or whether, under the-contract, they shall be paid to the estate generally and be distributed as general assets, thus, in effect, benefiting the residuary legatee, or, if the residuary bequest is invalid, then going to the-next of kin.

By § 47 of the title above referred to, it is provided that a conveyance, settlement, deed or other act of a testator, by which, his estate or interest in property, previously devised or bequeathed by him, shall be altered, but not wholly divested, shall not be deemed a revocation of the devise or bequest of such property, but such devise or bequest shall pass to the devisee or legatee the actual estate or interest of the testator which would otherwise descend to his heirs or pass to his next of kin, unless in the instrument by which such alteration is made the intention to revoke is declared.

Section 48 is as follows: “ But if the provisions of the instrument by which such alteration is made are wholly inconsistent with the terms and nature of such previous devise or bequest,, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition be not performed or such contingency do not happen.” So-that in the present case, although the testator was not wholly divested of his interest in the property, still the contract, if valid, would operate as a revocation, if its provisions were wholly inconsistent with the terms and nature of theabequest.

The testator, at the time of making the will, was the entire owner of the patents there referred to. A partnership then existed between him and Saville that was engaged in selling and. operating cotton compressors manufactured under the patents. The testator had a two-thirds interest in the business and Saville a one-third, and the patterns, tackle and machinery were owned by the firm in the same proportion. This partnership was formed, in September, 1885, but whether for any definite time does not. appear. By the will Saville is given an undivided half of the-patents, patterns, tackle, etc., in consideration that he will carry on the business of making and selling machinery under the patents-for ten years after the testator’s decease, and pay annually to the New Orleans church one-half of the net avails and profits, Saville, at the end of the ten years, to become the absolute owner of the patents and the business of making and selling them.

By the contract, the partnership was to continue for the definite period of five years from May 1, 1889. By its terms Saville became the owner of one-third of the patents. The profits and losses were to be divided for the first two years in the proportion of two-thirds to Steers and one-third to Saville and thereafter equally.

In case of death of either before the expiration of the five years the firm business was to be continued by the survivor to the end of the term, the profits and losses to be divided in the same proportion as if both had lived, and at the close of the term there was to be a division in the same proportion of all the assets, profits and losses then existing except that the firm name, good will and patents should become the sole property of the survivor, and he might thereafter continue the business for his own benefit in the firm name. If, however, Saville was the survivor, and should continue the business, it was agreed that he should pay the estate of Steers a royalty of $3,000 for every compress sold.

Both the will and the contract related to the business of making and selling machinery under the same patents. The will provided for a ten years term and the final ownership by Saville of the patents and the business. The contract, in the contingency of Saville being the survivor, provided for the same result at the end of five years, with a provision on his part to pay the estate of Steers a royalty for a further period of five years. The will provided for the payment by Saville of one-half the net profits to the New Orleans Church for the ten years; the contract provided for the payment to Steers or his estaté of two-thirds the profits for two years and one-half for the balance of the time. The contract •covered the whole subject The continuance and closing up of the business, the division of the assets and profits, and the final ownership of the patents, were all provided for. The patents expired in 1898, before the termination of the operation of the contract. Nothing was, therefore, left for the will to act upon. It may, therefore, be well said that the provisions of the contract are wholly inconsistent with the terms and nature of the bequest There would seem to be no doubt about the intention of Steers. The situation had materially changed after the date of the will. There was a change in the ownership, and the firm had become financially embarrassed. Very clearly the design of Steers was that the contract should take the place of the provision of the will. The estate is entitled to have the contract, if valid, carried out Saville himself is in the attitude of claiming benefits under it

It is not claimed that the New Orleans Church can take the proceeds under the contract. See Beck v. McGillis, 9 Barb., 59, and cases there cited; McNaughton v. McNaughton, 34 N. Y., 203.

It is further claimed by the appellants that the contract, so far as it provides for the continuance of the business by the survivor with a division of the profits and losses for the full term, is void. This question is not raised in the answers of the appellants or by any request for findings. We will, however, assume that the question is before us. The cases of Ross v. Hardin, 79 N. Y., 84; Nat. Bank of Newburgh v. Bigler, 83 id., 52, and Stewart v. Robinson, 115 id., 328; 26 N. Y. State Rep., 117, are cited on the subject. It is not claimed that either of these cases decide the question. At most they suggest some doubts. In the Boss; case the action was brought to recover the value of services rendered by plaintiff, at the request of defendant’s intestate, in the-care of certain property intermediate the death and the appointment of an administrator. Church, Ch. J., in the opinion, says: “It is very clear, I think, that a person cannot by a contract supersede or contravene the laws in respect to the. management and devolution of property in cases of intestacy.. The statute has provided a mode of doing this by will, but the requirements of the statute must be complied with.” He, however, sees no reason why a party may not make a valid contract-for the care of his property from his death to the appointment of an administrator. This question however was not passed upon, the plaintiff being beaten upon another ground. In the Bank of Newburgh case, it was held that a surviving partner had no authority to bind the estate of the deceased partner. by new accommodation endorsements or by renewal of old endorsements-of that character made in the lifetime of the deceased, although there was a provision in the articles of partnership that the survivor should continue to carry on the business for the benefit of both parties for a specified time after the death, it being said that the authority thus conferred, if held to be operative, would not be sufficient In the Stewart case there was a provision like the one-in the present case, and the question was whether the estate generally of the deceased was liable for new debts contz-acted by the-survivor. It was held not, it being said not necessary to determine the question raised by the respondents that the agreement was not valid for any purpose.

In the Matter of Laney, 50 Hun, 15 ; 18 N. Y. State Rep., 463,. the agreement was that in case of the death of any of the parties before the expiration of the term, which was seven years, the co-partnership should not be dissolved, but be continued by the survivor under the same firm name to the expiration of the term and' the share of the deceased partner in the profits be paid to his representative. One of the partners died in about two years. In an accounting by his administrator, who was also one of the survivors, it was expressly held that the agreement was valid and the-account was settled on that basis. It was said that under the agreement it was the duty of the survivors to continue the business for the benefit of the estate of the deceased as well as for their own benefit during the time fixed by the ai'ticles, and that by virtue of its prescribed contribution to the capital stock, the estato is entitled to its share of the profits according to the provisións of the contract This case was affirmed by the court of appeals without opinion. 119 N. Y., 607 ; 28 N. Y. State Rep., 977. In Scholefield v. Eichelberger, 7 Peters 594, it is said that there is no doubt that the liability of a deceased partner as well as his interest in the profits of a concern may by contract be extended beyond his death. This doctrine Judge Story endorses in Burwell v. Mandeville's Ex'r 2 How., 576. In Wild v. Davenport, 48 N. J. Law, 137, it was-held that a stipulation in partnership articles that upon the death of a partner his capital shall remain in the business until the expiration of the prescribed term is binding as well upon the estate of the deceased as upon the surviving partner. Many other cases are to the same effect Gratz v. Bayard, 11 Sergeant & Rawle, 41. McNeish v. Hulless Oat Co., 57 Vt., 316 ; Goodburn v. Stevens, 5 Gill, 22. And so are the text books. Story on Part., § 319 a; Parsons on Part., 2d ed., 469; Lindley on Part., 866.

We must, therefore, assume, I think, that the parties had a right to make the contract in question and that it is operative unless there is something in the further objection by the appellants that the contract attempts to create an illegal suspension of the absolute ownership of personal property, and also an unlawful accumulation “of the interest, income or profit of personal property,” in violation of the provisions óf title 4, chapter 4, part 2 of the Revised Statutes. 4 R. S., 8th ed., 2516. We are referred to no case which sustains the proposition that the statute referred to applies to an ordinary contract for a partnership, or for the continuance of the business of a partnership by a survivor to the end of a term. While all the partners are alive, they have full control, and there- is no suspension of absolute ownership. Upon the death of one, the survivors become the legal owners of the assets, take them, not as trustees, but as survivors holding the legal title, subject to the equitable right of the representatives of the deceased partner to have the assets applied according to the terms of the partnership. Williams v. Whedon, 109 N. Y, 333; 15 N. Y. State Rep., 265. So that in the present case there was no suspension of absolute ownership. The survivor, either alone or in connection with the representatives of the. deceased, could transfer the absolute title. Inalienability can only exist when there are-no persons in being who can convey a title. Wetmore v. Parker, 52 N. Y., 459, 460. See, also, Garvey v. McDevitt, 72 N. Y., 563; Murray v. Murray, 7 N. Y. State Rep., 394. The power to convey at any time existed; the time when to convey depended upon the exigencies of the business.

Nor was there any direction for the accumulation “ of the interest, income or profit of personal property,” within the statute. There was nothing to prevent the division of profits, if any were earned, before the expiration of the term. It was, therefore, within the control of the survivor and the representatives of the deceased. There might never be any profits to divide. If there were any, it would hardly be proper to call them the profits of personal property. They would be the profits of the business and depend very largely on the skill and energy of the partner in charge. In fact, in this case, the main elements apparently would be the skill of the survivor on the one hand and the value of the patents on the other.

It follows that the contract was valid. No other questions are presented by the appellants. The judgment should be affirmed.

Judgment affirmed, with-costs.

Hardin, P. J., and Martin, J., concur.


author: Ruger, Ch. J.

text:
    Ann Lee, Administratrix, Resp’t, v. The Vacuum Oil Co., App’lt.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Attorney and client—Settlement op case.
    Plaintiff recovered a judgment of §6,000 for the negligent killing of her husband, and, while an appeal was pending in this court, she applied to defendant for a settlement of the action, and the latter agreed to pay her $4,500. Of this $1,000 was to he in cash, and $8,500 to be deposited in a Safe Deposit Company, to he drawn by her after she procured a release from her attorneys of all claims. Immediate notice was given her attorneys, who several months after made claim for $3,000. Plaintiff offered to pay them all advances and disbursements, and $1,500, which they refused, and made this motion on affidavits imputing fraud and misrepresentation by defendants, service of notice of their attorneys’ lien, a stipulation by plaintiff to give them one-third of the recovery above costs, etc. No offer was made by plaintiff to return the $1,000, which had been received and spent by her. Defendant offered to rescind the agreement if plaintiff would repay the $1,000, and restore defendant to the position it occupied before the settlement. Held, that the offer embraced all the relief to which plaintiff was then entitled, and upon her neglect to accept it her motion should have been denied.
    2. Same—Attorney’s lien.
    The existence of a lien in favor of the attorneys does not confer a right on them to stand in the way of a settlement of an action which is desired by the parties, and which does not prejudice any right of the attorneys.
    3. Same.
    The client still remains the lawful owner of the cause of action, and is not bound to continue the litigation for the benefit of his attorneys when he judges it prudent to stop, provided he is willing and able to satisfy his attorney’s just claims.
    4. Same—Laches.
    The attorneys being informed of the terms of the agreement in August, raised no objections to it until four months afterward. Held, that their laches, in making an attempt to rescind it, furnished a sufficient reason why the motion should be denied.
    Appeal from order of supreme court, general term, fifth department, affirming an order of special term vacating the satisfaction of a judgment given upon a settlement of a cause of action in a suit to recover damages for the negligent killing of plaintiff’s intestate.

      Theodore Bacon, for app’lt; John Van Voorhis, for resp’t.
   Ruger, Ch. J.

This is an appeal from an order of the general term, substantially affirming an order of the special term, which vacated the satisfaction of a judgment given upon a settlement of the cause of action in a suit to recover damages for the negligent killing of the plaintiff’s intestate by the defendant.' The motion was originally made on behalf of the plaintiff and also her attorneys, and the satisfaction of the judgment was vacated by the special term absolutely, so far- as the attorneys were concerned, and as to the plaintiff, upon the condition that she should, within ten days, repay to the defendant the sum of $1,000 received by her on the settlement of .the action and release all claims to the further sum of $3,500, which had been deposited with the Eochester Safe & Deposit Company to her credit, as security for the costs and claims of her attorneys.

Both the defendant and the plaintiff appealed from this order. The defendant from that part which vacated the judgment absolutely so far as the plaintiff’s attorneys were concerned; and the plaintiff from so much thereof as imposed a condition upon her right to have the judgment vacated absolutely as to herself. The general term affirmed the order, upon defendant’s appeal, and modified that part of it which required the plaintiff to restore, within ten days, the sum of $1,000 to defendant, by providing in lieu thereof, that sum should be deducted from the existing judgment, or any final judgment which should be recovered in the action. From this order the defendant appeals to this court.

The undisputed facts show that the action was prosecuted bj the plaintiff as administratrix to recover damages for the death of her husband, occasioned by the alleged negligence of the defendant, and resulted in a judgment for the plaintiff, in June, 1887, of about $6,000 damages and costs. This judgment, on appeal to the general term, was affirmed in that court and the defendant appealed from that affirmance to this court. In August, 1890, while this latter appeal was pending, the plaintiff applied to the defendant for a settlement of the action, and, after some negotiation, an agreement was reached between the parties whereby the defendant agreed to pay the plaintiff the sum of $4,500, $1,-000 in cash, and the further sum of $3,500 to be deposited to the plaintiff’s credit in the Bochester Safe & Deposit Company, to be drawn by her after procuring and delivering to the defendant a release by her attorneys of all claims against such judgment, or the cause of action represented thereby. Immediate notice of this settlement was given to the plaintiff’s attorneys by the defendant, and they were also notified to present a statement of their claims on such judgment and cause of action to defendant. After several months delay such a statement was made and presented, whereby it appeared that such attorneys made claims for costs, counsel fees and money loaned, aggregating about $3,000. Under the instructions of the plaintiff the defendant declined to pay this sum, but offered to pay any advances made by them, together with $1,500, in addition thereto, and their disbursements. This offer was declined, whereupon this motion was made. It was founded upon an affidavit of one of plaintiff’s attorneys, giving a statement of the proceedings in the action and a history of his firm’s transactions with the plaintiff; and an affidavit of the plaintiff, dated December 9, 1890, imputing fraud and misrepresentation to the defendant in effecting the settlement, and giving what purported to be a history of the negotiation for such settlement. Proof was also made of the service of notice by plaintiff’s attorneys on defendant, on January, 1889, of the existence of a lien in their favor on several causes of action against the defendant, including that of the plaintiff’s and upon any verdicts, reports, decisions or judgments rendered, or to be rendered therein, for their services as attorneys for the plaintiffs therein, and forbidding any settlement of such actions, or any payments thereon, except to said attorneys or to their order.

A copy of a stipulation signed by the plaintiff, entitled in the action and dated June 13, 1888, was also read on the hearing to the effect that her attorneys were entitled to have one-third of the recovery in such action, over and above the taxable costs and disbursements, and that no settlement should be made without their consent. No offer to return to the defendant the money received by the plaintiff on the settlement was ever made by the plaintiff or her attorneys, nor was any willingness expressed by them to release the money deposited with the Trust & Deposit Company, as security for the claims of plaintiff’s attorneys, from the conditions upon which it was held by such company. On the contrary, the proofs show that the plaintiff has expended all of the moneys received by her and has no property from which she can raise money to restore the amount paid to her by the defendant on the contract of settlement.

The defendant produced a number of affidavits made by its president, secretary, attorneys and others, containing proof tending to show that its conduct, in respect to the settlement of the action, was fair and honorable, and offering to rescind the settlement and to cancel the discharge of the judgment upon the return of -the money paid by them to the plaintiff. An affidavit made by the plaintiff on December 31,1890, retracting all statements contained in her moving affidavit, tending to show any misrepresentation or unfair practice on the part of the defendant or its officers or agents in effecting said settlement, was also presented to the court.

' We have carefully read the evidence presented on the hearing intended to support the charge that the settlement was induced by fraud or misrepresentation on the part of the defendant and its agents, practiced upon the. plaintiff, and we are of the opinion that it fails to sustain such a charge. If there were statements in the plaintiff’s original affidavit which tended to support such a charge, they were wholly retracted by the subsequent affidavit made by her, and left the case, substantially, destitute of any proof upon which an imputation of fraud could justly be predicated.

The defendant, on the argument of the original motion, voluntarily offered to rescind the agreement for a settlement and to cancel the satisfaction of the judgment, if the plaintiff would restore the defendant to the position which it occupied before the settlement was made. This offer was unnoticed by the plaintiff’s attorneys, and the argument of the motion proceeded. We think this offer embraced all of the relief to which the plaintiff was then entitled, and . upon the neglect of the plaintiff to accept it her motion should have been denied.

We may, for the purpose of this discussion, assume that the plaintiff showed a case for rescission upon the condition that she restored the money received by her on the settlement. This condition, however, could not be disregarded, and without restoration no rescission could lawfully be had. The rule is elementary that a party cannot rescind a contract for fraud without acting promptly on discovery of the fraud and restoring whatever has been received upon it. Masson v. Bovet, 1 Den., 69.

This principle was applied in the case of Gould v. The Cayuga Co. Nat. Bank, 86 N. Y., 75, where it was said that, “ One who seeks to rescind, a compromise of a disputed claim on the ground of fraud, must promptly, on the discovery of the fraud, restore, or offer to restore to the other party, whatever he has received by virtue of it, if of any value.”

The excuse made by the plaintiff’s attorneys that it was impossible for her to repay the money received on settlement, because she had spent it, is too groundless to require discussion. At least, the plaintiff’s attorneys could have joined their client in releasing the moneys deposited from the operation of their lien; but they expressed no willingness to do even this, and the motion was pressed regardless of the principle requiring restoration to be made. The substitute for a restoration ordered by the general" term was totally inadequate to satisfy the requirements of the rule. It depended, if a new trial was had, upon the contingency of a final judgment for the plaintiff; and in case the defendant succeeded on such new trial it left the money paid in the possession of the plaintiff, and its loss by the defendant unavoidable.

We are, therefore, of the opinion, that the plaintiff failed to show a case entitling her to a rescission and a cancellation of the satisfaction of judgment. •

It is claimed, however, that the plaintiff’s attorneys stand in a better position in regard to relief from the satisfaction of the judgment than the plaintiff does, by reason of their alleged lien for costs and agreed compensation, and that they, having moved on their own behalf, are entitled to rescind the contract, although such relief be denied to the plaintiff.

We are of the opinion that the exigence of such a lien in favor of the attorneys does not confer a right on them to stand in the way of a settlement of an action which is desired by the parties and which does not prejudice any right of the attorneys. We do not think that such an agreement deprives a party of the right to control the management of his own case, and to determine when the litigation shall cease, and how far it shall be extended. The client still remains the lawful owner of the cause of action and is not bound to continue the litigation for the benefit of his attorneys when he judges it prudent to stop, provided lie is willing and able to satisfy his attorneys’ just claims. In fact the lien, under the agreement, was intended for and operates only as a security for the attorney’s legal claims, and, unless those are prejudiced by the client’s contract, she has unrestricted control of the subject of the action and the terms upon which a settlement shall be effected. Pulver v. Harris, 52 N. Y, 73 ; Coughlin v. N. Y. C. & H. R. R. R. Co., 71 id., 448.

If it were permitted to the plaintiff’s attorneys to continue the action for any purpose, it could be done only at their own expense and for the sole purpose of collecting their claims against the plaintiff. Randall v. Van Wagenen, 115 N. Y., 532; 26 N.Y. State Rep., 438. The right of recovery in such a case would be limited by the extent of their lien, and we are unable to see how they would be benefited by being permitted to prosecute such an action. They now have recourse to an ample fund, provided by the settlement, for the payment of their lawful charges against the plaintiff; but if they are compelled to try their cause again, they can get no more than their lawful charges in any event and may possibly be defeated, in which event they would lose their entire claim.

It seems to us that the plaintiff’s attorneys have no grievance to complain of, or injuries to be redressed by the courts. The provision of an ample fund created by the parties, to secure the attorneys’ claims, is a complete refutation of the theory that the settlement was intended to defraud them, and their case is thus placed outside of the authorities holding that settlements made for such purposes will be set aside. Randall v. Van Wagenen, supra.

We know of no case which authorizes an attorney to continue a litigation for his own benefit at the expense of his client after sufficient provision for the satisfaction of his just claims is made by the parties.

The laches of the attorneys in making an attempt to rescind the agreement of settlement, would also seem to furnish sufficient reason why the motion in question should be denied. They were informed of the terms of the agreement qf settlement in August, immediately after it was made, and raised no objection thereto until nearly four months after that time. In the meantime the plaintiff had expended the money received by her on the settlement, and had become unable to return that sum to the defendant. The attorneys had also treated with the defendant in regard to the payment of their claims against the plaintiff, and manifested no dissatisfaction with the settlement until after they found that their charges against the plaintiff were to be subjected to discussion and investigation. We do not think that they acted with that promptness which" the rule governing the rescission of contracts requires.

We are, therefore, of the opinion that the orders of the general and special terms should be reversed and the motion denied. This proceeding having been instituted by the plaintiff’s attorneys for their own benefit, they should be charged with the costs of their unsuccessful efforts.

The fact that the judgment in the original action cannot, on account of errors in the record, be supported in this court, affords an additional reason why the settlement of the action heretofore made should in the interest of all parties be held to be a valid contract.

The orders of the general and special terms should, therefore, be reversed and the motion denied, with costs in all courts to be paid by plaintiff’s attorneys.

All concur.


author: Per Curiam.

text:
    Ann Lee, as Adm’rx, Resp’t, v. The Vacuum Oil Company, App’lt.

      (Court of Appeals,

      Filed June 2, 1891.)

      William F. Cogswell, for app’lt; John Van Voorhis, for resp’t.

       See 26 N. Y. State Rep., 814.

   Per Curiam.

The court, in another proceeding in this action, having held that the judgment appealed from was settled and extinguished by the agreement of the parties, have concluded to dismiss the appeal in this action without costs to either party.

Appeal dismissed without costs.

All concur.


text:
    George McArthur, as Committee, Resp’t, v. Henry Gordon et al., App’lts.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Trust—Declaration of trust.
    Miss McD., in 1876, executed a will, by which she devised all her property, consisting of a $3,000 farm, in trust, to her executors for the benefit of her son Ebenezer, a harmless lunatic, with remainder to the Rev. Henry Gordon. In 1874 she had given a warranty deed of the premises to Gordon, which was recorded in the same year. She died in March, 1876. Soon after Gordon recorded an instrument, stating that he considered that he held the real estate for the support of Ebenezer during life, “ all the rents, after deducting necessary expenses, of said real estate, or if said real estate should be sold, the proper maintenance in board and clothing should be first lien upon said real estate during the life of Ebenezer.” Held, that the declaration of trust constituted a valid and enforcible trust, and imposed upon its creator the obligations and duties of a trustee, to be discharged in accordance with the meaning and effect of the language used therein by him.
    2. Same.
    In giving construction to such an instrument, regard may he had to the situation of the parties and the surrounding circumstances as well as the language of the instrument, for the purpose of arriving at the intent of the author in making it, where that intent is not clearly expressed.
    3. Same.
    The trust was irrevocable and cannot be limited or affected by any subsequent acts or contracts of the trustee with a stranger to the parties named in the instrument.
    4. Same,
    In January, 1877, Gordon sold the farm to Davis for $400, upon the condition that he would provide and furnish Ebenezer during life with clothing, food and lodging, etc., which was to be a lien on the premises. Held, that so far as any interest in the real estate is concerned, the rights and liabilities of Gordon and Davis, after the purchase by Davis, were coextensive, Davis having purchased not only with constructive as well as actual notice of the liabilities imposed upon the land by the terms of the trust, but also under a positive condition that he should hold title subject to the obligation of discharging the duties imposed by its provisions upon the trustee.
    5. Same.
    Gordon did not by contracting with a third party to discharge his obligations to Ebenezer relieve himself from the duty of seeing that such obligations were performed.
    6. Same.
    It is quite immaterial, so far as the liabilities of Gordon and Davis to the beneficiary are concerned, what the nature of the subsequent contract between Gordon and Davis was and whether the same should be reformed or not.
    7. Same.
    The trust deed constituted the rents and profits of the farm or the interest upon the purchase price, if sold, a trust fund for the support of Ebenezer, and it was the duty of the trustee thereunder to exercise a supervision over his care and comfort and apply such proceeds to his use, so far as they were necessary, wherever he might, within reasonable limits, be cared for and supported.
    8. Same—Damages.
    The evidence showed that there was a substantial agreement between the interested parties that $100 a year was deemed a satisfactory sum to pay towards Ebenezer’s maintenance. Held, that that sum was the measure of damages and should be considered a lien upon the land in question, (Earl, J., dissents.)
    Appeal from judgment of the supreme court, general term, third department, modifying and affirming a judgment in favor of the plaintiff entered upon the decision of the court upon the trial before the Washington county special term.

      D. M. Westfall, for app’lts; Matthew Hale, for resp’t.

       Affirming 21 N. Y. State Rep., 659; see 35 id., 386; 86 id,, 329.

   Ruger, Ch. J.

This action is brought on behalf of Ebenezer Larmouth, a lunatic, against the defendant Gordon and his grantee, upon a declaration of trust executed by Gordon for the benefit of said Larmouth, to enforce the trust and recover the rents and profits of the trust property claimed to have been misappropriated by the defendants. The complaint proceeded upon the theory that the defendants had neglected to execute the duties of the trust and had appropriated to their own use the income of the trust property, instead of applying it to the maintenance and support of its beneficiary, as provided by the trust.

This case has been the occasion of some difference of opinion in the court as to the proper construction to be given to the declaration of trust, and now comes before us upon a reargument This disagreement has arisen as much, I think, from the divergent views taken of the facts by the various members of the court, as from any difference between us as to the rules of law applicable to them. A more elaborate statement of the leading facts as they appear from the findings of the trial court, as well as from the undisputed evidence, will tend more, I think, to dissipate misconception and harmonize our views than any other mode of treating the cáse. Stated in their chronological order they are as follows : In the year 1876, one Ellis McDoual, an unmarried woman, of the age of ninety years, owned and resided upon a farm of about forty-five acres in the town of Jackson, Washington county, having no other property of any material value. Her only son, then of the age of about sixty-six years, a harmless lunatic, resided with her and had so lived with her on the farm for many years. The farm was worth about $3,000, and its annual rental value, exclusive of taxes, was about $175. In the year 1873 Miss McDouall executed a will by which she devised all her property, both real and personal, in trust, to her executors to receive the rents and profits thereof and apply them to 'the use of her son, Ebenezer Larmouth, during his natural life, with remainder to her pastor and friend, the Rev. Henry Gordon.

On October 16, 1874, Miss McDoual executed and delivered to Gordon a warranty deed of such premises for the consideration, expressed in the deed, “of one dollar and other valuable consideration to her duly paid,” which deed was duly recorded October 22, 1874, in the clerk’s office of Washington county. Miss McDoual died March 3, 1876, having lived upon and retained possession of the farm until that time and leaving her son in possession thereof. On April 19, 1876, Gordon executed an instrument in writing which he caused to be recorded in the clerk’s office of Washington county, reading as follows:

“ Know all men by these presents, that because of certain real estate duly conveyed to me by Ellis McDoual, late of the town of Jackson, Washington county, Mew York, I, Henry Gordon of Coila, Washington county, Mew York, do, of my own free will and accord, hereby consider myself, heirs, executors or administrators, holden and firmly bound to appropriate or cause to be appropriated, for the comfortable support of Ebenezer Larmouth during his life, all the rents, after deducting necessary expenses, of said real estate, or if said real estate should be sold, the proper maintenance in board and clothing should be first lien upon said real estate during the life of said Ebenezer Larmouth. The subscriber to this bond distinctly asserts that its obligations on him are limited to the rents of said real estate, or to the interest on the purchase money, should said real estate be sold.
“Signed with my hand and seal this 19th day of April, 1876.
“ Henry Gordon, [l. s.] ”

Miss McDoual never owned or conveyed to Henry Gordon any other real estate than this farm. Gordon preached Miss McDoual’s funeral sermon, immediately after her death, and referring to her son, stated “ that ample means have been provided for his support and welfare,” and concluded by saying, “the friends may rest assured that her wishes will be faithfully carried out.” The first year after Miss McDoual’s death, the executor of her will took possession of the farm and rented it to one Green for $150 a year. During this time Larmouth occupied the house on the farm alone and was boarded by Green, who was allowed twenty shillings a week therefor, to be applied upon the rent of the land. Mo special complaint is made by the plaintiff but that the income of the farm was for this year substantially applied to the' support of Larmouth.

In January, 1877, Henry Gordon executed and delivered to one Kobert Davis a warranty deed of the farm for the consideration of $400, which was secured by a mortgage upon the farm, and upon the condition also that Davis “ would provide and furnish Ebenezer Larmouth” during his natural life “suitable clothing, food, lodging and necessary medical attendance and medicine,” which Davis thereby covenanted to provide. It was further provided by this deed that “ the support and maintenance of the said Larmouth as aforesaid shall constitute and remain an indefeasible lien upon the premises hereby conveyed during the natural life of said Larmouth.” Immediately after this conveyance the defendant Davis leased about an acre and a quarter of the land with the buildings on the premises to one Plunkitt in consideration that Plunkitt should board Larmouth, and do his washing and mending, “ if the said Larmouth would consent to stay on the-farm with Plunkitt, and, in case he did not, that Plunkitt should pay forty dollars a year for the privileges enjoyed by him.” Davis occupied and cultivated the remainder of the premises, and received payment of the rent agreed to be paid by Plunkitt; Larmouth having refused to live in Plunldtt’s family. Plunkitt was assisted in taking possession of the house by Davis, his servants, and the executor of Miss McDoual’s will; and met with some-, opposition from Larmouth, who forbade them from coming upon the premises, and claimed to own the farm and the property in the house, and asserted that they were attempting to rob him of his patrimony. Larmouth’s bed and furniture were then forcibly taken from the room which he was accustomed to occupy, and packed in another part of the house, and he refused to remain and live with Plunkitt. It appears that Larmouth was a Presbyterian of Scottish descent, and Plunkitt an Irish Catholic, with a family consisting of a wife and three children, and Larmouth, being asked to stay with Plunkitt, said he didn’t want to live-with an Irishman. He had been subjected to a personal assault at the hands of a servant of Davis on the premises previously. Larmouth then left the house with McArthur, and has ever since continued to make it his home at McArthur’s, and has lived with and been practically supported by him. He has during all this time, up to the trial, been irrational, poor, needy and dependent, and frequently sick, and practically unable to support or take care of himself He has never received any attention or support from either Gordon or Davis, and all applications to them for aid have been uniformly neglected or evaded.

Applications have been frequently made to them for assistance* and the payment of bills for medical attendance and other necessaries, but they were met by Gordon, after he sold to Davis, with the declaration “that he had got through with it; ” and by Davis-with a refusal to pay for anything he did not himself order. Plunkitt remained in possession of the property rented by him for two years, after which Davis moved into the house and occupied it with the farm, and has continued to do so and to receive-the rents and profits thereof to the time of the trial. Davis has-never paid anything for the property except the sum of twenty-four dollars annually to Gordon as interest upon the bond and mortgage, which sum Gordon has appropriated to his own use.

There are certain propositions involved in this controversy, concerning which there is no difference of opinion in the court, and among them are the following:

First. That the declaration of April 18, 1876, constituted a valid and enforcible trust, and imposed upon its creator the obligations and duties of a trustee, to be discharged in accordance with the meaning and effect of the language used therein by him.

Second. That, in giving a construction to such instrument regard may be had to the situation of the parties and the surrounding circumstances, as well as the language of the instrument, for the purpose of arriving at the intent of the author in making it, where that intent was not clearly expressed.

Third. That this trust was irrevocable aud cannot be limited or affected by any subsequent acts or contracts of the trustee with a stranger to the parties named in the instrument.

Fourth. That so far as any interest in the real estate is concerned, the rights and liabilities of Gordon and Davis, after the purchase by Davis, were co-extensive, Davis having purchased,not only with constructive as well as actual notice of the liabilities imposed upon the land by the terms of the trust, but also under -a positive condition 0that he should hold the title subject to the obligation of discharging the duties imposed by its provisions upon the trustee.

Fifth. That Gordon did not, by contracting with a third party to discharge his obligations to Larmouth, relieve himself from the duty of seeing that such obligations were performed.

Sixth. That it is quite immaterial, so far as the liabilities of Gordon and Davis to the beneficiary of the trust are concerned, what the nature of the subsequent contract between Gordon and Davis was and whether the same should be reformed or not.

Assuming the correctness of these propositions, there are left for consideration the following questions :

First. Whether the provisions in the declaration of trust, relating to Larmouth’s support and maintenance, are limited to support to be furnished on the premises therein referred to, or constitute -a general obligation to appropriate the rents and profits of the -trust property to his support wherever it might be needed.

Second. Whether an active duty on the part of Gordon was incurred by the obligations of the trust, to exercise care and supervision over the person and wants of the beneficiary and to provide for them to the extent of such rents and profits wherever such care and supervision might be necessary and reasonable.

Third. What is the measure of the liability incurred by Gor-don, and how far has he made himself responsible by his neglect -to appropriate the income of the trust property to the support of Larmouth.

It seems to be well established by the authorities that under a .-general obligation to maintain and support another, where no place is specified, the beneficiary may, as a general rule, live wherever he chooses, provided his choice does not involve needless expenses. Wilder v. Whittemore, 15 Mass., 262; Stillwell v. Pease, 4 N. J. Eq., 74; Proctor v. Proctor, 141 Mass., 165; Conkey v. Everett, 11 Gray, 95 ; Pettee v. Case, 2 Allen, 546; Powell v. Jewett, 69 Me., 293.

This rule is, undoubtedly, subject to exceptions in cases where • there is great inadeqacy of consideration, or family arrangements are made involving the support of some of its members by others who have been accustomed to live together, or the circumstances of the case and the language of the instrument indicate an intention that support shall be furnished in a particular manner, at a particular place, or by particular persons. In such cases the courts have sometimes construed similar contracts as meaning that support could be required only at the place or by the persons indicated, even though that was not made an express requirement of the agreement. Such were the cases of McKillip v. McKillip, 8 Barb., 552; Pool v. Pool, 1 Hill, 580, and others of like character.

We have, however, been unable to find, among the numerous cases referred to, any which are at all applicable to the circumstances of this particular case. • Whether we regard the language of the instrument, or the circumstances surrounding the parties, we find nothing which constitutes this case an exception to the general rule. The trust deed, unconditionally, devotes the net rents of the trust property to the support of the beneficiary so far as they are necessary for that purpose, without reference to his-place of abode, and implies that the trustee shall collect and appropriate them, from time to time, as they are needed by the beneficiary. There is nothing in the circumstances of the parties indicating an intention to limit the requirements of the beneficiary to a living upon the trust property. The creator of the trust evidently had no intention of making Larmouth a member of his family. He was, apparently, an aged clergyman, living at a distance from his benefactress, and was unadapted by occupation, character and pursuits from receiving an uninviting and irrational person into his family, or of exercising personal supervision over the life, manners and occupation of such a person. He was in nowise related to his benefactress or her son, and had no apparent intention of changing his mode of life, or engaging in the unaccustomed business of farming at a distance from the field of his-accustomed labors. He certainly manifested no intention of permitting any member of Barmouth's family to live on the premises, and he had not then determined to farm out his support to strangers who were offensive or otherwise to his religious and social feelings. No one was then living on the farm, and none, therefore, who could receive and take care of Barmouth at that place, and it is obvious that the trustee had not then any person or family in view who could have had any interest in supporting him on the farm. The beneficiary, while not violent or dangerous, was unmanageable and insensible to the dictates of reason or propriety, and could be managed or controlled only by persuasion or force.

It was at all times conjectural whether he would be satisfied with any provision, whether reasonable or not, which should be made for him, and in case he was not, it was obvious that other means would have to be adopted by the author of the trust in order to make its object and purpose effective. When the trust was declared, it is apparent that Gordon had no settled plan as to the disposition he intended to make of the property or the mode in which the duties of the trust were to be discharged. By the deed of trust, he devoted all the rents of the farm unconditionally to the support of Barmputh, so far as they should be necessary,, and in case he sold the farm, he provided that the interest on-the purchase price should be the limit of his liability under the-trust deed. These amounts were capable of definite ascertainment, and were not subject to the uncertainty which would attend an obligation to support and maintain alone. It must then. have appeared to Gordon a matter of comparative indifference whether these rents or interest should be expended upon the farm or were paid to those who would apply them to the support of Larmoruth. Indeed, the language ofthe trust furnishes irrefutable evidence that Gordon contemplated the sale of the property and the application of the interest money derived from the purchase price to the support of Larmouth, wherever he might be, and it furnishes no answer to this view that the obligations of the trust were made a lien upon the farm. It was not till a year later that Gordon concluded to realize his interest in the farm, and he then considered it worth about one-seventh of the value of the property, leaving at least six-sevenths to accomplish the purposes of the trust.' The theory that, under the terms of the trust deed, Larmouth would be obligated to take his support upon the trust property seems to have been an afterthought, as it was neither expressed in the trust deed, claimed on the trial, presented by finding or exception, or raised-in the points of defendant’s counsel in this court, until the reargument of the case. The main drift of the defendant’s contention, heretofore, has been that under the terms of the deed from Gordon to Davis, if reformed as Davis desired it should be, he could not be held liable to furnish support except upon the property purchased.

We are, therefore, of the opinion that the trust deed constituted the rents and profits of the farm, or the interest upon its purchase price, a trust fund for the support of Larmouth, and that it was the duty of the trustee thereunder to exercise a supervision over his care and comfort and apply such proceeds to his use, so far as they were necessary, wherever he might, within reasonable limits, be cared for and supported. These duties were assumed for an ample consideration by Davis upon his purchase, and as between Gordon and Davis he became primarily liable to discharge them. It is obvious from the undisputed evidence in the case that both Davis and Gordon have been grossly derelict and blameable in the performance of their duties. The series of proceedings by which substituted performances of the duties of the trust were attempted.to be made, which culminated in the obligation of Plunkitt to devote forty dollars a year to that purpose, illustrate the indifferent and improvident manner in which this trust has been neglected by the trustee. Ho consideration whatever seems to have been given to the wishes of Larmouth, or regard manifested for his welfare, health or comfort, but an unconscientious struggle was entered upon by the substituted agencies to find the minimum sum to which the obligations of the trust might be reduced. Gordon thought the rents and profits of about six-sevenths of the farm were sufficient for the purpose, but Davis was of the opinion that less than a quarter of the amount was necessary, and Plunkitt undertook to make a profit even at that price. Larmouth was thus turned over to strangers, whose only interest in him was to see how cheaply he could be made to live, or if his living could not be made so disagreeable that he would abandon all claims to support from the defendant. We are of the opinion that even if the obligations of the trust had required Larmouth to.take his support upon the farm, no adequate or sufficient provision was then made for him; and much more was this the case if he had the right to live elsewhere, as no provision whatever was made for such a contingency.

Having reached the conclusion that the duties of the trust have been wholly neglected by those charged with their performance, it follows that they are liable in this action for such damages as have been incurred by Larmouth on account of their default to the extent of the rents and profits of the land, or the sum which, with reasonable care and prudence in its management, it would have yielded from the time the trustee took possession in March, 1877. Such damages could not, however, have been extended beyond the sum which was required for the reasonable and comfortable support of the beneficiary; but to this extent they were applicable, even if it required the whole of such rents and profits. The evidence on the subject of the amount required for the support of Larmouth is somewhat indefinite, and the trial court made no finding on the subject.

There is evidence furnished by the testimony of the principal parties to the action which shows a practical agreement as to the sum which ought to be paid for the purposes of the trust. Davis expressly swears that he was willing and offered to pay the sum of 8100 annually to the relatives of Larmouth, and the plaintiff, although denying that such offer -had been made, leaves his evidence open to the inference that if he had understood the offer to have been made he would certainly have accepted it. William Larmon, a relative and representative of Larmouth’s, testifies that 'lie had a conversation with Davis in which he asked him to pay a hundred dollars a year for Larmouth’s support, but Davis refused to do so. We think there was a substantial agreement between the interested parties that $100 a year was deemed a satisfactory sum to pay towards Larmouth’s maintenance.

In view of the desire of the parties, manifested on the argument, that a final judgment should be made in the case, we have concluded to give effect to the apparent concurrence of the parties on the trial as to the amount which should be paid for the annual support of Larmouth. It is certainly desirable that a controversy which has extended over a long period of time should be ended, and some relief should be afforded to the helpless and indigent beneficiary before his death, which, in the ordinary course of nature, must soon occur, if this can be consistently done.

We are, therefore, of the opinion that the judgment should be modified so as to provide for the payment of $100 a year, with interest on such annual payments, with costs of the action to plaintiff in all the courts; the payments to commence with March 6, 1878. That these sums having by the trust been made a lien upon the land should be primarily charged upon it, and in case there should be a deficiency on the sale thereof to meet the charges, that such deficiency should be adjudged to be paid by the defendant Robert Davis, and in case of his inability to pay it, then upon the defendant Gordon.

The judgment is, therefore, affirmed as modified, with costs in all the courts.

All concur, except Earl, J., dissenting, and Gray, J., not voting.


author: Bradley, J.

text:
    Sarah E. Phillips, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)
    1. Trial—Recalling jury.
    Where a correction is sought to he made, not of a charge, hut of a refusal to submit certain propositions requested by defendant’s counsel to the jury, and they are recalled and charged fully in compliance with the request, it must be assumed that the instructions embraced in them are received by the jury as effectually as if the court had not previously declined to so charge them, and the error in the refusal is cured by the subsequent compliance.
    2. ¡Negligence—Breaking of rein, when not contributory negligence.
    Upon the trial of an action for damages for personal injuries suffered by plaintiff, it was shown that she was crossing defendant’s track in a wagon drawn by a horse driven by her father, that the gate at the further side in being lowered came in collision with the horse in his passage under it, and he proceeded to run and in restrainihg him the rein broke, and plaintiff was thrown out. The court was requested to charge "that if the proximate cause of the injury of the plaintiff was the breaking of a defective rein, plaintiff is not entitled to recover.” Held, that inasmuch as the evidence shows that the breaking of the rein was caused by the ineffectual effort of the driver to restrain his frightened horse, in consequence of the lowering of the gate, and there was no evidence of any defect in the rein, no error was committed in refusing to so charge.
    Appeal from judgment entered upon order of the general term of the supreme court in the third judicial department, affirming judgment entered on a verdict in favor of the plaintiff.
    The action was brought to recover damages for personal injuries suffered by the plaintiff, and alleged to have been occasioned by the negligence of the defendant.
    In April, 1886, the plaintiff in a wagon drawn by a horse driven by Sebastian Putnam,' her father, was going easterly, crossing the defendant’s railroad tracks on State street in the city of Schenectady; the horse became frightened and unmanageable, and the plaintiff was thrown from the wagon and injured. There was a gate in the street on each side of the railroad operated by the company to prevent travellers entering upon the tracks on the approach and passage there of its engines and trains. The wagon passed through the west gate without interruption; and the defendant’s servant proceeded to lower the eastern gate while the wagon was on the track; and the difficulty occurred at. that gate. Immediately on passing under it one of the lines or reins broke; the horse turned suddenly and upset the wagon, causing the injury.

      S. W. Jackson, for app’lt; D. M. Chadsey, for resp’t.
   Bradley, J.

The case as represented by the record, although a close one upon the evidence, presented questions of fact for the jury. The motion for nonsuit was properly denied.

The defendant’s counsel requested the court to charge the jury " that it was the duty of the defendant to give notice of the approach of its engines to travellers on the public streets approaching its tracks.” The court in declining to so charge remarked that it was a very proper thing for the company to do. Exception was taken, and the court was 'also requested to charge that if the plaintiff should be held entitled to recover the jury must not allow her any damages for or on account of any inability to labor in the past or present, although such inability may have been caused by the injuries in question. This the court declined to charge, and the defendant exeepted.

The last request was founded on the fact, which had appeared, that the plaintiff was a married woman. To obviate those exceptions the jury, by the request and consent of the plaintiff’s counsel, were, soon after their retirement, for consultation, recalled into court by the justice presiding and charged, and both of such propositions were submitted to them as the defendant’s counsel had requested. The counsel of the parties were then present; and it was legitimately within the power of the court to recall the jury and further charge them or to correct any supposed error in the charge as made or in refusal to charge. But erroneous instructions can be effectually cured only by their withdrawal in terms so explicit and unequivocal as to preclude the inference that the jury may have been influenced by them. Chapman v. Erie R’y Co., 55 N. Y., 579; Greener. White, 37 id, 405.

In the present case the correction sought to be made was not of the charge, but was in the refusal to submit to the jury certain propositions, and when they were charged fully in compliance with the requests of the defendant’s counsel it must be assumed that the instructions embraced in them were received by the jury as effectually as if the court had not previously declined to so -charge them. It is not seen that the effect of the charge, as made in those respects, may have been qualified by the consent -of the plaintiff’s counsel to the correction.

Assuming, therefore, that there was error in the refusal, it was cured by the subsequent compliance with the requests. The court was requested and declined to charge “ that if the proximate cause of the injury of the plaintiff was the breaking of a defective rein, the plaintiff is not entitled to recover; ” and exception was taken by the defendant’s counsel. 'It may be assumed that the plaintiff would have escaped injury if the rein had not broken. No evidence appears that it was defective unless the inference may have arisen from the fact that it did break. The witnesses differed materially in their evidence of the circumstances attending the passage of the horse and wagon from the tracks of the railroad through the east gate.

There was, however, evidence on the part of the plaintiff that at that particular. time the gate was being lowered; and that it came in collision with the horse in his passage under it. These questions were submitted to the jury without exception. And the court charged the jury to the effect that unless it did collide with or hit the horse the plaintiff was not entitled to recover. This, therefore, was treated as an important question of fact in the case. And the conclusion was warranted by the evidence that the horse was from that cause frightened, and proceeded to run; that the driver applied his strength to the reins to check the speed of the horse, hold and manage him; and that in the emergency one of the reins gave way. The jury specifically found that the gate was then being lowered, and did hit the horse; and it may be assumed that they also found that this rendered the horse unmanageable, and caused the situation from which resulted the calamity, although the immediate cause may have been the inability of the driver to control the course of the horse occasioned by the breaking of the rein, thus causing or permitting him to make so short a turn as to upset the wagon and throw the plaintiff out of it. The facts so found may have been a proximate cause of the injury ; and it may be that they produced a condition which required strong reins for protection against the injury which followed. This was not, therefore, necessarily attributable solely to the breaking of the rein, which may have been one of two proximate causes, and in that view, if the latter occurred without fault of the plaintiff, she would not be denied the right of recovery. Ring v. City of Cohoes, 77 N. Y., 83. There is no support for imputation of negligence to the plaintiff. She was a mere passenger with the driver of the horse, and if any fault was attributable to him she was not charged with it. Robinson v. N. Y. C. & H. R. R. R. Co., 66 N. Y., 11; Dyer v. E. Ry. Co., 71 id., 228.

It is difficult to disconnect the breaking of one of the lines used to control the horse from the situation which, in view of the facts specially found, caused the unusual strain upon them for the management of the animal, and without the application of those facts there was in the view of the court nothing to charge the defendant' with negligence and liability. If, however, the breaking of the rein whether defective or not was the sole proximate cause of the injury the plaintiff could not recover. But the conclusion of the proposition which the court was requested to charge, was made dependent upon the fact that the rein was found to have been defective, and for that reason not adequate to the use which the situation produced by the causes before mentioned required. It may be assumed that if the request had been to charge that if the breaking of it was the only proximate cause of the injury the plaintiff could not recover, the court would have so instruced' the jury. And treating the import of the proposition which the court was requested to submit to the jury, such as to direct their attention to the sole proximate cause of the calamity, the question arises whether there was any support for the suggestion that the rein was defective. The break was concededly a fresh one; and so far as appeared by the evidence the rein was in good condition. There was no opportunity to impute negligence to the driver for using the lines in driving the horse; and the breaking of it may be accounted for by the strength applied in suddenly jerking upon the line to control the horse on the occasion. It may be that reins larger and stronger could have been procured, but that did not characterize this one as defective. The evidence did not warrant the conclusion that the rein which broke was defective.

No question is raised by any exception to the charge as made. And in view of the facts specially found by the jury, no other question requires consideration.

The judgment should be affirmed.

All concur.

       Affirming 25 N. Y. State Rep., 91.