author: Daniels, J.:

text:
    SAMUEL WATSON, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Obtaining money by false pretenses — what false representation on a sale wiU subject the seller to an indictment therefor — He is not relieved by the giving of a written warranty — or by the failure of the purchaser to examine as to the ti'uth of the representation — 3 B. 8. (5th ed.), 956, sec. 55.
    One who has induced another to purchase a horse from him, by falsely representing it to be kind and sound, when he knew the horse to be unsound and worthless, may be indicted and convicted under section 55 (3 B. S. [5th ed.], 956), of obtaining money by false pretenses.
    His liability to such indictment and conviction is not affected by the fact that, at the time of or immediately after the sale, be gave to the purchaser a written warranty of the horse; or by the fact that the purchaser could have discovered the unsoundness by putting the horse in motion.
    Writ of Error to tbe Court of General Sessions of the county of New York, to review a conviction of the prisoner of the offense of obtaining money by false pretenses.

      William F. Kintzing, for the plaintiff in error.

      Daniel G. Rollins, for the People.
   Daniels, J.:

The prisoner, aided by another person, was charged with having represented a horse, which was sold to the complaining witness, to behind and sound, when that was known not to be the fact, and the horse was unsound and worthless. The making of the representation was sufficiently established by the evidence which was given, to submit the point to the jury; and the question is whether, if in the event it proved to be true, the indictment could be legally predicated upon it. Cases have been relied upon in behalf of the prisoner which are supposed to maintain the legal proposition that such a representation, though false and inducing the person to whom it may be made to part with his money or his property, will not support an indictment. Rut these cases arose under the common law, which only rendered frauds indictable when they were perpetrated either by means of a conspiracy or a false token. (The King v. Lara, 6 Durn. & E., 565.)

Reg. v. Pywell (1 Starkie, 402), is also a case of tbe same description. For that reason it was held in the first of these cases that a delivery of the purchaser’s check upon a banker when he was without funds to meet it, for the purchase-price of property obtained, was not a criminal offense. But after the enactment of the statute (7 and 8 Geo. IY., chap. 29,. § 53) these cases ceased to be authority. And in Rex v. Jackson (3 Campbell, 370), which arose after the statute, a conviction was had under its provisions, for what had been held in Lara’s case was net a criminal offense. The ease of Reg. v. Keighley (7 Cox C. C., 217) also fails to sustain this position of the prisoner’s counsel, for the conviction was set aside simply because it could not be seen upon whát ground it had proceeded. The propriety of submitting such a case to a jury was in terms conceded by Pollock, C. B., in his opinion. The conviction was not disturbed because the facts charged did not create an indictable offense, but wholly and solely for the reason that the prisoner did not appear to have been rightly convicted under the indictment. In Reg. v. Levine (10 id., 374), the prosecution failed, because the evidence did not establish a false representation of any existing fact operating upon the mind of the buyer, and deceiving him in such a manner that he could not protect himself. Neither of these cases, nor any of the others cited for this purpose, sustain the proposition supposed to be supported by them. They could not properly have that effect, for the English statute was enacted in substantially the same terms as those contained in the statute existing in this State. They were both designed to correct the deficiencies of the common law, and to extend the protection which was found to be necessary against the artful devices and false representations of persons fraudulently endeavoring to obtain the property or money of others. Under these statutes all that has been required to secure a conviction is, that the prisoner, with intent to cheat or defraud another, shall designedly, either by color of a false token, or writing, or some other false pretense, obtain his signature, or obtain from him any money, personal property, or valuable thing. (3 B. S. [5th ed.], 956, § 55.)

These terms are broad and comprehensive, including every description of personal property, and certainly not excepting a transaction for the sale of a horse. What the law requires is, that there shall be some false representation, so far operating on the mind of the party to whom it may be made, as to induce him' to part with his money or his property, and one representation may be sufficient for that purpose, even though others may be alleged in the indictment. (Thomas v. People, 34 N. Y., 351.)

In The People v. Crissie (4 Denio, 525), the false representation was made concerning sheep appearing to be lame, and it was held to be sufficient within the terms of the statute to justify a conviction. No practical distinction can be drawn between that case'and the one now under consideration, for they were both equally within the terms of the statute. In the case of Scott v. People (62 Barb., 62), the conviction was set aside because the representation relied upon was not made in such a manner as to bring it within the terms made use of in the statute. Neither that nor any other authority entitled the prisoner to have this point withdrawn from the consideration of the jury.

About the time of, or immediately after the sale a written warranty of this horse was given to the purchaser, and for that reason, also, it has been insisted that the ease was excluded from the terms of the statute. But its language admits of no such construction. And there is nothing in the nature of such a warranty which would exonerate the prisoner from the consequences of an additional fraudulent representation concerning a materially existing fact. That was so held in Reg. v. West (27 S. J. Mag. Cases, 227), and Reg. v. Jennison (31 id., 146). In transactions of this nature it is very common for a binding warranty to be given, where the sale has . been brought about by means of a false representation sufficient to render it criminal under the terms of the statute. This was a case of that nature. The representation did relate to an existing fact, and it was so material in its character as to induce the purchaser to take the horse, when he would not otherwise have done so.

After that had been agreed upon, and the money had been paid, the horse was taken from the stable and found to be wind-broken and useless. Then he was told by one of these parties, in the presence of the other, that he had been sold, that the horse was not worth a dollar. An offer, however, was made to take him back for five dollars, which was finally increased to forty, but neither was accepted by the purchaser, who 'returned the horse to the stable and demanded his money. This statement was sufficient to justify the jury in concluding that the representation had been intentionally as well as falsely made. And it sustained, therefore, this additional element required by the statute to be made out by proof to bring the case within its provisions.

As it appeared that the unsoundness of the horse was capable of being discovered by putting him in motion, it has been further urged that the purchaser was bound to do that before he could rely upon the representation made and complete the purchase. In support of this proposition cases have been relied upon which sustained that principle in its application to what were known as cheats at common law, but they are not authority in those arising under this provision of the statute. It was, on the contrary, enacted to supply and correct the deficiencies of the common law, and in its enactment it has been made subject to no such' qualification. What is required, and all that is required to make out a case of this description is, that the false representation shall relate to some existing matter of fact and be attended with the effect of obtaining from the person to .whom it may be made money, personal property or other valuable things. What is necessary to make out the case as it has been defined is that the party shall be deceived to his prejudice or loss by means of a designedly false statement. After the enactment of this statute, and of others elsewhere of similar import, a disposition at first did exist to subject its execution to this restrictive principle of the common law. But such an administration of the act was attended with the effect of including within its protection only those who were so intelligent, experienced and sagacious as to be able to protect themselves, while it left the large class of confiding and credulous persons, who are disposed to believe to be true what may be plausibly represented to them, entirely at the mercy of fraudulent dealers. This could not have been the object of the legislature in making this change in the law, for it would be practically nullified by such a construction of its effect; and for that reason, upon further consideration, this conclusion was rejected as unsound and a rule of construction more consonent to the terms of the statute was adopted by the courts. Under that, whenever one person may designedly make to another a- false representation concerning some existing fact material to be considered in the transaction, and in that manner deceives the person to whom the representation may be made and obtains his money or his property from him, a case is presented which is within the terms of the statute. This was considered to be its just and proper construction by the chancellor in People v. Haynes (14 Wend., 547), but the case was disposed of finally, upon a different consideration. This point was not determined by the court. The People v. Williams (4 Hill, 9) is an authority which, so far as it deals with this subject, tends in a different direction; but the intimation contained in it has not since then been followed, for in the People v. Crissie (supra) the prisoner was convicted, although the purchaser might by an examination of the feet of the sheep have probably discovered that the representation made to him was not true. In the People v. Sully (5 Parker, 143) this precise point was presented for consideration, and it was held by the Superior Court of Buffalo, in view of the terms of this statute, in a very carefully considered opinion of Master, J., that the proposition was unsound. This case was then taken to the Court of Appeals where it was affirmed, although no report of it was made in the reports of the decisions of that court. This is a decisive authority against the position which, upon this part of the case, has been taken in behalf of the prisoner. In the People v. Hew York Oyer and Terminer (83 N. Y., 437, 449) substantially the same conclusion has been sustained, for it was there held that a conviction might be had when the pretenses relied upon were calculated to deceive. If they were capable of defrauding that it was held would be sufficient.

A similar deviation from the early decisions has taken place in the English courts, where it has been held to be enough that the pretense was made knowingly, with the intent to defraud; that it was false to the knowledge of the persons making it, and that money was obtained by him thereby. (Hamilton v. The Queen, 9 Ad. & E. [N. S.], 271, 278; Reg. v. Wickham, 10 Ad. & E., 34.)

This precise point was further considered in Reg. v. Woolley (19 Law Jour., M. C., 165), where, in the course of the decision, Parke, B., stated that formerly it was held to be necessary, in order to support an indictment, that the false pretense must be such as to impose on a person of sound mind, but that rule is altered. If a false pretense of an existing fact be used with the intent of imposing on the party, and does impose on him and the money is obtained by it,, it is a false pretense within the meaning of the statute.” (Id., ’167.)

Dennison’s Or. C.’, 559 : The tendency of thé courts to apply the rejected principle of the common law to the execution of the statute was also corrected in Pennsylvania in Com. v. Henry (10 Harris [22 Penn.], 256), which held that the representation was no less a false pretense, because the party imposed upon might, by common' prudence, have avoided the imposition.

Por that reason it is not necessary to examine the cases in that State preceding this decision and relied upon by the prisoner’s counsel.- The same principle was considered to be sound and adopted in In re Greenough (31 Vermt., 279, 290). By the construction which is now given .to statutory provisions of this nature, the case will be made out by proof of an intentional false representation concerning some existing fact, material to the transaction, when it is believed by the party to whom it may be addressed, when by means of such belief, he is induced to part with his money or his property. The case-against the prisoner was sufficiently made out to require the evidence produced in support of it to be submitted to the jury. And as that was the only point which was, in terms, presented in the prisoner’s behalf, it-follows that the conviction should be affirmed.

Davis, P. J., and Brady, J., concurred.

Conviction affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. NOAH CONTENT, Appellant, v. THE METROPOLITAN ELEVATED RAILWAY COMPANY and THE CENTRAL TRUST COMPANY OF NEW YORK, Respondents.

      Contract made between two corporations — stockholders of the companies cannot enforce the provisions in it— Power of the boa/t'd of dwectors.

    By the terms oí a lease, made May 20, 1879, by the Metropolitan Railway Company to the Manhattan Railway Company, the latter guaranteed an annual dividend of ten per cent on the capital stock of the former company, the guaranty to be performed by paying to the former company quarterly an amount sufficient to pay the said dividend. The Manhattan company also agreed to execute a guaranty to that effect upon the certificates of stock of the Metropolitan company, and to renew such guaranty upon all certificates issued in place of such as might be surrendered and canceled.
    Thereafter, and in October, 1881, an agreement was made by and between the two companies, reducing the amount to be contributed by the Manhattan company to a sum only sufficient to pay six per cent per annum, instead of ten per cent, upon the stock of the Metropolitan company.
    Thereafter the relator, who had purchased certificates of. the stock of the Metropolitan company, containing a guaranty of the Manhattan company for the payment of a sum equal to ten per cent on the capital stock of the former company, applied for a mandamus to compel the Metropolitan company to issue to him new certificates containing the same guaranty.

      Held,, that the lease and the agreements therein contained were made wholly and exclusively between the two companies.
    That the stockholders, being neither parties to the contract nor in privity with either of the parties thereto, had no rights therein, except such as the company issuing the stock might itself have.
    That the companies had power to modify and change the contract, as they might deem necessary and proper.
    That, in the absence of any evidence to the contrary, the boards of directors of the two companies had power to make such alterations.
    That the application for a mandamus should be denied.
    Appeal irom a judgment denying an application for a peremptory writ of mandamus, entered upon an order made upon a hearing had upon the return to an alternative writ.
    The relator was, on October 22, 1881, the owner of certificates of stock of the Metropolitan Railway Company, issued in June of that jear to other persons, and subsequently purchased by the relator. He surrendered tliem to the company, and sought to compel it to issue new certificates containing a guaranty similar to that contained in the certificates surrendered.

      Zabriskie and Nash, for the appellant.

      David Dudley Fields for the iespondents.
   Daniels, J.:

The writ was issued to require the Metropolitan Elevated Railway Company to issue, or cause to be issued, to the relator, certificates for 300 shares of its capital stock, containing a statement of the guaranty of the Manhattan Railway Company, of the same tenor and effect as that made upon the certificates for the same stock surrendered by him.

The statement desired to be obtained was provided for in a lease made by the Metropolitan Railway Company and the Manhattan Railway Company on the 20th of May, 1879.

The validity of this lease and the power to make it has not been drawn in question in'this case, and for that reason it wiíl be assumed to have been a legal and valid demise of the property and railway of the lessor.

By its terms the lessee, the Manhattan company, guaranteed an annual dividend of ten per cent on the capital stock of the lessor, - the Metropolitan Railway Company.

It was provided that this guaranty should be performed by the payment to the Metropolitan company of $650,000 in equal quarterly payments, and the Manhattan company should execute, in proper form, a guaranty to that effect upon the certificates of the stock of the Metropolitan company, and as such certificates were submitted for cancellation and reissue, it would, upon the request of the owner, renew such guaranty upon all such reissued certificates. It was also provided by another instrument made upon the same day, that the Manhattan company, in case if should elect to declare a dividend of more than ten per cent on its own capital stock, would pay to the Metropolitan company a sufficient sum to enable it to make as large a dividend, in excess of ten per cent, as should be declared on the stock of the Manhattan company.

By another agreement made on the 22d of October, 1881, the clause last mentioned was in terms released and discharged by the Metropolitan company, and by that agreement the annual amount to be contributed by the Manhattan company was so far reduced as to supply the means only for a dividend of six per cent upon the stock of the Metropolitan company. To this extent the latter company proposed to make a statement upon the certificates of stock to be reissued to the relator. The change by doing so would be from ten to six per cent. The relator declined to accept a statement of that nature, deeming himself entitled to the certificate mentioned in the original lease. And in support of his right ta such certificates reliance has been placed upon the authorities sustaining the principle that where one party makes a promise to another for the benefit of a third, the latter is at liberty to enforce such promise. But these cases maintain this proposition only so far as to entitle the party who is intended to be benefited by the promise to enforce it when it is to be performed directly with him. Such was the nature of the promise upon which Lawrence v. Fox (20 N. Y., 268), was decided. It was a promise by the defendant founded upon a consideration moving from the person to whom it was made to pay a sum of money directly to the plaintiff in the action. And for that reason it was held sufficient to entitle him to maintain the suit. Burr v. Beers (24 N. Y., 178), Hutchings v. Miner (46 id., 456), and Hand v. Kennedy (83 id., 149) are cases of the same description. In Garnsey v. Rogers (47 N. Y., 233) it was stated that the rule had not gone so far as to hold that every promise made by one person to another, from the performance of which a third would derive a benefit, as to give a right of action to a third party, he being neither privy to the contract or the consideration. To entitle such a party to an action, the contract must have been made for his benefit; he must be the party intended to be benefited. And it is added that all that Lawrence v. Fox decided was, that where one person loans money to another upon his promise to pay it to a third party to whom the lender is indebted, the person to whom the money is to be paid may maintain an action, without proving a promise to himself from the party receiving the money. (Id., 240.) The same point was also considered and held in Vrooman v. Turner (69 N. Y., 280, 284). In the cases of Kent v. Quicksilver Mining Co. (12 Hun, 53; 78 N. Y., 159), and Boardman v. Lake Shore, etc., Railway Company (84 N. Y., 157), the promise was made to pay the party owning the stock. That was its substance and effect certainly, and for that reason the party .designed to be included within the terms of the promise was allowed to enforce it by action. This principle seems to have been somewhat extended in Opdyke v. Pacific Railroad Company (3 Dillon, 55), but so far as it may have transcended the limits imposed upon it by the courts of this State, that authority manifestly cannot be followed. Hartman v. Greenhow (102 U. S. Rep., 672) in no manner sustains such an extension of this principle, for no more was decided by it than had previously on several occasions been held to be the law applicable to such agreements by the decisions made in this State.

The contract contained in the original lease upon which the relator’s application was based was not in any form made with the persons owning stock in the Metropolitan Railway Company. It was an agreement, on the contrary, wholly and exclusively between the corporations themselves.

The stock was referred to only for the purpose of indicating the sum to be paid, and the amount at which that would permit the dividends to be made by the Metropolitan Railway Company. And the statement, which it was provided should be made upon the certificates of the stock themselves, was to consist only of a statement of the effect of the agreement as it had been made between the Manhattan and the Metropolitan Elevated Railway Companies. When made as it was provided for, it would in no manner enlarge the obligations of either company, or the right of the owner of the stock, for the money which it-was provided should be paid, would still be paid over to the company itself, and constitute a fund in its hands out of which to make its dividends upon the stock. The contract was wholly and exclusively between the railway companies. It was to be wholly performed by what should afterwards transpire between these companies. The owners of the stock were neither parties to it nor in privity with either of such parties. Their rights were accordingly limited to what might be the legal obligations of the company itself issuing the stock, and they could in no form maintain. an action against the Manhattan Railway Company to recover for non-payment of dividends by the Metropolitan company, on the ground that the former had failed to pay over the stipulated sums to the latter. The statements indorsed on the face of the certificates issued by the Metropolitan company were in no sense contracts, but at most a notice of a condition of things respecting the property of the company and of the source from which they expected dividends to be derived. Their demands, whatever they might be, were wholly against that company. In this respect the article in the lease, relied upon in support of the relator’s application, materially differs from' the contracts which were made the foundation of the actions in the cases to which reference has been made. And this distinction renders the principle which they have established entirely inapplicable to the present controversy. The consequence is that as this contract was one existing wholly and solely between the corporations who were the parties to it, they could modify and change it as circumcumstances indicated that to be necessary or proper. The same power existed over it that corporations have over other contracts and demands, by whose terms they may be entitled to be benefited. When circumstances arise indicating an inability on the part of the other contracting party to fulfill the terms of the agreement, a compromise, or adjustment, on a basis dispensing with full and complete performance, is within the power of the corporation intended to be benefited by the obligation. And that power may always be exercised, where no restraint appears to have been imposed upon it, by the board of directors having the authority to manage the affairs of the corporation. No such restraint was made to appear in the present instance, and it was shown as a matter of fact that the directors of the two corporations had so far made use of this authority to change the original terms of the lease given for the property of the Metropolitan Railroad Company, as to make this reduction in the amount required to be paid for the use of the property by the Manhattan Railway Company. Before that was done an emergency had arisen which appeared to render such action necessary, for the Manhattan company had proved to be unable to meet the obligations which it had assumed, and for that reason all the property had- been placed in the hands of two receivers, and it had become entirely disabled from performing its obligations so far as it had undertaken to pay such a sum of money as would be sufficient to make a dividend of ten per cent upon the stock of the Metropolitan Railway Company. It was in that condition of its affairs that the companies were called upon to act, and from the consideration which was then given to the subject, this reduction in the amount expected to be realized was made. The management of-the affairs of these corporations may be assumed to have been vested in the directors, for that is the usual form of corporate charters existing under the laws of this State. No other object is to be attained by the choice of a board of directors, and when such a board is in existence the power'to manage the concerns of the corporation is deemed to be vested exclusively in it, and the corporations have no right to interfere with it. (McCullough v. Moss, 5 Denio, 567-575; Hoyt v. Thompson, 19 N. Y., 207.) And the power so vested in the board may be exercised by a majority of the members. (2 R. S. [6th ed.], 391, § 6.)

No reason appears for supposing that the directors of the companies were actuated by any improper motives in making this compromise or adjustment of their affairs. But in the emergency which had arisen their action seems to have been induced by the desire to do the best which the circumstances permitted to be accomplished. The agreément which was made was within the limits of the power confided to them, and it was warranted in the judgment which they were required to exercise, by the circumstances which existed. This result, that the adjustment should be sustained, follows from the authority possessed by them over subjects of this nature, and it was recently so held in Flagg v. Manhattan Company et al. by the United States Circuit Court; and the fact that the relator may have acquired title to his stock under a different expectation created by the clause relied upon in the original lease, or the statement made upon the certificates of the- stock purchased by him, in no manner abridged the exercise of this authority. He was chargeable with knowledge of the existence of the agreement under which the statement itself was made, and of the form in which this provision had been made a part of the lease. By consulting that he would have discovered that the obligation for the payment of the money was entirely to the Metropolitan company, and as a consequence of that fact it was subject to future control and modification,- as circumstances subsequently arising might indicate that to be advisable and proper. To that extent the law charges him with knowledge of the terms of the instrument, even if he did not in fact consult it, and of the power necessarily confided to the directors of the corporations over it. He consequently, although he has been disappointed in his expectations, has no legal right to complain of what has taken place, and must be held to be bound by the action of the directors to whose conduct and management the corporate affairs of the companies had been intrusted.

It has been conceded in the case that the proper proceeding to be taken by the relator for the assertion of his rights was that by way of mandamus.

For that reason, under this concession of the parties, the propriety of this remedy is uot, and will not be considered. What has been desired, and all that has been desired, is that the rights and obligations of the parties to the controversy shall be determined. It must, therefore, be held that the manner in which this controversy has been brought before the court was in all respects a proper one. It is not now disposed of upon any mere ground of discretion, but because the relator himself, upon the facts as they have been shown, has established no legal or equitable rights whatever to any relief. And in that view the case is one which can probably be reviewed by the Court of Appeals, notwithstanding what has been said in People ex rel. Lunney v. Campbell (72 N. Y., 497). The determination is a final judgment against the relator, adverse to the right asserted by him in the case, and for that reason subject, as such judgments usually are, to the review of an appellate tribunal. (Hartman v. Greenhow, 102 U. S., 672.)

The appeal which has been taken cannot be sustained, and the judgment should be affirmed, with costs.

Davis, P. J., and Bradt, J.,-concurred.

Judgment affirmed, with costs.


text:
    GEORGE W. RIGGS and JOSEPH K. RIGGS, as Executors, etc., of ELISHA RIGGS, Deceased, Appellants, v. SAMUEL W. CRAGG, as Administrator, etc., of MARY ALICE CRAGG, Deceased, Respondent. GEORGE W. RIGGS and JOSEPH K. RIGGS, as Trustees for MARY ALICE CRAGG, formerly MARY ALICE RIGGS, under the Last Will of ELISHA RIGGS, Deceased, Appellants, v. SAMUEL W. CRAGG, as Administrator, etc., of MARY ALICE CRAGG, Deceased, Respondent.

      Surrogate — when he has power to construe portions ofawill — 3 B. S. (fith ed.), 325, sec. 1, sub. 3 — 1867, -cha/p. 782 — When there is an-implied gift of the income accruing during the minority of a tenant for life — What moneys received by executors on the sale of assets should be regarded as income — when an executor will be held to have made a purchase for the benefit of the estate — Stock dividends, when they go to the tenant for life, and when to the remainderman — Interest on advances to children — When the court will not interfere with the allowances made by the surrogate to the parlies.

    Under the statutes (3 R. S. [6th ed.], 325, § 1, sub. 3; chap. 782 of 1867) conferring upon surrogates power to direct and control the conduct, and settle the accounts of executors, administrators and trustees, he may give a judicial construction to such portions of the will, under which the executors or trustees have acted, as may be necessary to enable him to make a final and complete settlement of the accounts presented.
    A testator, after making certain bequests, devised all the rest, residue and remainder of his estate to his six children, in equal portions, except the share of his daughter Mary Alice, which he devised and bequeathed to his executors, in trust for her separate use and benefit during her natural life, to invest and improve the same at their best discretion, and to pay to her from and after her arrival at the age of twenty-one years, or marriage, with the consent of her mother, if living, whichever event might happen first, upon her own separate receipt, the net interest, dividends or other periodical income thereof, and upon her death the capital to go to her issue, or in default of issue, to other persons. The executors were directed to pay her mother, for her maintenance, support and education, during her minority, the sum of $100 until she should attain the age of ten years, and thereafter not exceeding $800 a year.

      Held, that there was an implied gift toTVIary Alice of the income accruing during her minority, on the one-sixth of the estate devised to the executor in trust for her, and that upon her attaining the age of twenty-one years the accumulation of such income should be paid over to her and not added to the capital of the trust.
    Where, at the time of the decease of a testator, large sums of money were owing to him, to secure the payment of which loans he held stocks (notes having been also given for the interest which according to the terms of the loans would accrue upon them) so much of the interest as accrues after the death of the testator (although it is represented by such notes) is properly charged to his executors as income and not as principal.
    Where, after the testator’s death, the executors sell stock and interest certificates which had been issued thereon, and bonds, and no particular portion of the price is assigned for the accrued interest, it is proper to charge the executors with the interest accruing from the death of the testator to the time of the sale.
    Proceedings instituted by the executors against a debtor of the estate resulted in the sale of certain of his real estate, which was purchased by one of the executors and thereafter sold by him at a price greater than the principal of the debt, but less than the amount of the principal and accrued interest.

      Held, that the executors should be charged with the price, and that the excess over the principal should be considered as income of the estate.
    In this State stock dividends created by and declared from the surplus earnings of a company, are, as between a tenant for life and those interested in the remainder, treated.as income and.not as an. addition to the capital.
    . Where, however, the fund from which the stock dividend is declared has been created, not by the earnings of the company, but by a sale of a portion of its real estate, the dividend should be treated as capital and not as income.
    The question as to the charging of interest upon advancements made to children, considered.

      Semble, that when the allowances awarded to the parties by the surrogate, upon the settlement of an executor’s account, exceed the limit prescribed by section 3234 of the Code of Civil Procedure, but the accounting has been difficult and intricate, and involved an investigation extending over a period of several years, and the amounts involved are large, the court will not feel bound on appeal to modify the decree in that respect, when no objection thereto has been made by the parties.
    Appeals by the executors, and by the same persons as trustees, from two decrees of the surrogate of the county of New York, made upon the settlement of their accounts as executors, and also as trustees, under the will of Elisha Higgs, deceased. The will contained among others the following provisions:
    “JYmiA. — All the rest, residue and remainder of my property and estate, both real and personal, whatsoever and wheresoever and howsoever situated (all and singular my just debts and funeral and testamentary charges being first thereout wholly paid), I hereby give, devise and bequeath unto my six beloved children, that is to say, George Washington Riggs, Junior,. Lawrason Riggs, Elisha Riggs, Junior, Joseph K. Riggs, William H. Riggs and Mary Alice Riggs, and such other child or children, if any, as may be hereafter 'born to me, and to their respective heirs, executors, administrators and assigns, in equal portions, or share and share alike, except the said portion or share of my said daughter, Mary Alice Riggs, which I dispose of for her sole and separate use and benefit, whether married or unmarried, as follows, that is to say: I hereby give, devise and bequeath the same to my executors, hereinafter named, in trust for her separate use and benefit during her natural life, to invest and improve the same at their best discretion, and to pay to her from and after her arrival at the age of twenty-one years, or marriage with the consent of her mother, if living, whichever event may first happen, into her own hands, whether married or unmarried, and upon her own separate receipt, to be given from time to time, and not by way of anticipation, under her own hand, which alone shall be a competent discharge therefor, the net interest, dividends or other periodical income thereof, and at her decease I hereby give, devise'and bequeath the capital of her said share or portion to her issue or other descendants in equal portions, or share and share alike, agreeably to the statute of distribution, and law of descent of the place where she may be then domiciled, or where the real estate constituting a part of such portion or share may be situated; and should my said daughter not marry, or marry and have no issue that shall survive her, and should she survive her husband, then upon her decease I hereby give, devise and bequeath her share and portion in my residuaiy estate, both real and personal, to her surviving brothers and their issue, share and share alike, except that the issue of any deceased brother are to take by representation. Rut should my said daughter many, and her husband survive her and she leave no issue or other descendant, then and in that case I hereby give and bequeath to her surviving husband, during the residue of his natural life, an annuity of one thousand dollars, payable annually out of the income of the said share or portion of my said daughter, and the capital of the said share, subject to the said annuity, I hereby give, devise and bequeath unto my other children and the issue of each of them as may then be deceased, in equal portions, or share and share alike, such issue taking the same share as his, her or their deceased parent would have taken if living, and should I hereafter have any further female issue, I hereby give, devise and bequeath her or their share or shares, and dispose of and secure the same in the same way and manner as the said portion or share of, my said daughter, Mary Alice Riggs.”

      Austen G. Fox and Waldo Hutchins, for the appellants.

      Hu/nccun Smith, for the respondent.
   Daniels, J.:

The testator died on the third day of August, 1853, leaving a will and codicil, in which he nominated his widow and four of his sons as his executors. Of these the appellants are the only persons who .qualified, and. to them letters testamentary were issued by the surrogate. As such qualifying executors they also became trustees of that portion of the testator’s estate which was appropriated for the benefit of his infant daughter, Mary Alice Riggs. She was near the age of fourteen years at the time of her father’s decease, and intermarried writh the respondent in 1869. She died in March, 1870, intestate, leaving no children. After the issuing of letters testamentary to the appellants, they acted as the executors of the estate, and also as trustees of so much of it as was appropriated for the benefit of this daughter. After her decease the respondent, as her surviving husband, was appointed the administrator of her estate, and the proceedings resulting in the decrees from which the appeals have been taken, were instituted by him to obtain a settlement of the accounts of the appellants, both as executors and trustees. For the purpose of properly taking and stating a portion of these accounts, it became necessary that a construction should be placed upon so much of the will of the testator as was relied upon in support of part of the claim made upon this subject by the respondent. He claimed that the income of one-sixth of the testator’s estate, devised and bequeathed in trust for the benefit of his daughter Mary Alice, which accrued between the time of the testator’s decease and the attainment by her of the age of twenty-one years, became her individual property. The executors and trustees contested this proposition and insisted that such income, in the absence of any expressed direction concerning its disposition in the will, became a part of the capital of that portion of the estate, and it was accordingly added to it by them. In his determination the surrogate decided that,the position taken by the respondent was correct, and accordingly charged the appellants, as trustees of his wife’s estate, with income derived from it, from April, 1854, to June, I860, when this daughter arrived at the age of twenty-one years. This determination of the surrogate has been strenuously resisted for want of jurisdiction, and the point is still relied upon in favor of the appellants.

" No express authority is delegated by the statute to the surrogate, conferring upon him the power to construe a will of real and personal estate in a proceeding of this nature, but jurisdiction has in terms been given to him to direct and control the conduct and settle "the accounts of executors and administrators. (3 R. S. [6th ed.}, 325, § 1, sub. 3.) And like authority has been conferred upon him by chapter 782, Laws 1867, over the accounts of testamentary trustees. Under that act power has been given to him to compel them to render accounts of their proceedings in the same manner as executors were at the time of its enactment required to account. These provisions are, each of them, so broad and comprehensive as to confer jurisdiction upon the surrogate to make a complete and final- settlement of the accounts to which they refer. And while they have not provided in terms that the surrogate may construe the provisions of the will under which the executors or testamentary trustees may have derived their title, still that must have been intended to be included when a complete settlement of the accounts could not otherwise be made, for the exereise of such authority is indispensably requisite to the attainment of the object prescribed by the statute. And when that appears to be the case the power which it becomes necessary to exercise for the puipose of securing the end ultimately to be attained is as completely given as though it was specially enumerated in the statute, for it is necessarily to be implied from enactments’ made in that form. (Chipman v. Montgomery, 63 N. Y., 221.) The rule upon this subject is that “whenever a power is given by statute everything necessary to make it effectual or requisite to attain the end is implied,” and <l where the law requires a thing to be done it authorizes the performance of whatever may be- nécessary for executing its commands.” (Sedg. on Statutory, etc., Law, 92; 1 Kent [7th ed.], 513, marg. p. 464; Stief v. Hart, 1 Comst., 20, 30.) The ease now presented is therefore distinguishable from Tucker v. Tucker (4 Keyes, 136), and also from Bevan v. Cooper (72 N. Y., 318), for in neither of them were provisions of this or any similar nature presented for the consideration of the court. And the exercise of jurisdiction of this nature in such proceedings as these has long received the unquestioned sanction of the court of last resort in this State. It must accordingly now be held that the surrogate was vested with the authority to construe this portion of the testatoFs will, so far as that was necessary to make settlements of the accounts of the appellants as the executors and trustees of this estate.

At the time of the decease of the testator he left him surviving his widow and six children. And after providing for her proper support and directing the payment of his debts and certain legacies, he devised and bequeathed the rest, residue and remainder of his real and personal estate in equal portions to his six children. The one-sixth designed for the benefit of his daughter Mary Alice, he devised and bequeathed to his executors in trust for her separate use and benefit during her natural life, giving to her the net interest, dividends, or other periodical income thereof, and at her decease vesting the capital of this sixth in her issue, in case any should be left by her, and if she should leave no such issue, or other descendants, then her share was given in remainder to her surviving brothers and their issue, share and share alike.

During the minority of this daughter the testator directed his executors to pay to her mother for her support, education and maintenance, the sum of $400 a year until she attained the age of ten years, and after that a sum not exceeding $800 for the like purpose. No clearly express direction was given as to what should be the disposition of the income of this' sixth of his estate between the time of his decease and the time when Mary Alice should reach the age of twenty-one years. But it was not necessary that any positive direction should be given for the disposition of this income to render it the duty of the appellants to accumulate it for her during this period of time, for the statute has not prescribed any particular mode of expression for tlie purpose of sanctioning or permitting such an accumulation; it has merely provided that the accumulation of rents and profits of real estate and of the interest of money, the produce of stock, or other income, or profits, arising from personal property, may be directed by any will or deed sufficient to pass real estate, or in the case of'personal property, by any instrument sufficient in law to pass such property. (2 E. S. [6th ed.], 1103, § 37; id., 1167, § 3.)

And this direction will be as effectually given when it may be clearly implied from the provisions of a will, as it can be when express terms are made use of for the purpose of conveying it. "What the statute requires to be regarded is the substance, rather than the form of the provisions which may be made, and they are to be so construed as to carry into effect the intention of the testator himself. (Taggart v. Murray, 53 N. Y., 233.)

The only qualifications prescribed by the statute are, that the direction shall be contained in the instrument, will, or deed, and that the accumulation shall not extend beyond the period of the minority of the person for whose benefit it is to be made. Subject to the latter qualification, the direction will be valid whenever that may be discovered to have been the intention of the testator, as ' that has been disclosed by the language of his will. This construction appears to have received the approval of the chancellor in Craig v. Craig (3 Barb. Ch., 76, 92, 93). But the accumulation in that instance was not allowed, for the reason only that the beneficiary was not a minor.

In Dillaye v. Greenough (45 N. Y., 438) this principle of construction was considered by the court. In that case the will failed to direct in any form how the rents and profits should be disposed of after they were received. And it was said in the opinion that “in this silence of the instrument, if a trust is to be upheld, it must be for the court to say, from other facts, from circumstances not shown by the instrument or other writing, either that the rents and profits are to be applied to the use of a person, or to be accumulated for some purpose. And then to go further and without definite designation in the instrument itself, or in any other writing, to point out the person for whose use they are to be applied, or the purpose for which they are tó be accumulated, and to say in the last case whether the trust is to commence on the creation of the estate, or at a time subsequent thereto.” (Id., 444, 445.)

The case then before the court did not fail because of any impropriety in applying to it a principle of this nature, but for the sole reason that there was not sufficient presented to render the principle applicable. The principle” itself has the sanction also of other authorities, extending it so far as to sustain a devise of the testator’s property, when that may not have been expressed, if it can be clearly implied from the terms and provisions of his will. (Brewster v. Striker, 2 Comst., 19; Post v. Hover, 33 N. Y., 593.)

For that purpose it has been held that “ to devise an estate by implication there must be such a strong probability of an intention to give one that the contrary cannot be supposed. • Devises by implication are sustainable only upon the principle of carrying into effect the intention of the testator, and unless it appears upon an examination of the whole will that such must have been the intention there is no devise by implication.” (Id., 599.)

The circumstance justifying such a construction is the intention of the testator, and that is clearly as applicable to an accumulation of the income of his property, so far as it has been permitted by the statutes of the State, as it is to any devise or bequest which by construction may be held to be within or implied from the terms of his will. For in all instances alike, when that can be legally done, wills are required to be construed so as to carry into effect what may appear to be the intention of the testator. For that reason the principle sustained by these authorities is equally as applicable to a case of this description as those there receiving consideration.

By the will now in controversy the general intention by which the testator appears to have been actuated was to make a complete and entire disposition of his estate. No part of it or of its proceeds or income was designed in any event to be left undisposed of. And the income to be derived from the one-sixth in which the trust was created for the benefit of his daughter Mary Alice, up to the time when she should arrive at the age of twenty-one years, was not given to either one of the other beneficiaries under its provision. They were on the contrary vested with other portions of the estate, and vptli those only, in such terms as to exclude the income of this trust during this controverted period.

The direction of the testator included all the rest, residue and remainder of his property, and out of that each one of his children was provided with one-sixth, and no more, either directly or through the intervention of this trust. And the amounts which it was provided should be expended for the support, education and maintenance of this daughter during her minority was to be advanced by the executors of the estate, who were to keep a separate account of, and charge the child receiving such advances. In the cáse of Mary Alice, these advances were clearly not intended to be made from the capital of the one-sixth of the estate vested in the executors as trustees for her benefit. For that was intended by the preceding provisions of the will to be maintained intact by them during the period of her life, and after that to be all passed over to the persons entitled to this interest in remaind er. The advances consequently to be made on her account must have been intended to be derived from the income or profits of the estate, and to that extent its direction was a recognition of her right or title to such income or profits. The will further required them to invest and improve the share set apart for her benefit. This direction carnes with it the implication that the investment and improvement was designed for her benefit. And that presumption is very decidedly fortified by the circumstances already referred to — that the income from the investments .was not given to any other person, but the other children were provided with their shares in the testator’s property in such terms as to exclude the idea that they could claim any part of the proceeds of these investments. The will then contained the further direction to the executors that they should pay to her, from and after her arrival at the age of twenty-one years, or marriage with the consent of her mother, if living, whichever event may first happen, into her own hands, whether married or unmarried, and upon her own separate receipt to be given from time to time, and not by any way of anticipation, under her own hand, which alone shall be a competent discharge therefor, the net interest, dividends or other periodical income thereof.” This direction cannot reasonably be so restrained in its application as to apply it only to the interest, dividends or other periodical income accruing after Mary Alice attained the age of twenty-one years. If it should be, nothing whatever would have been payable to her on this account when she became twenty-one years of age. And if it should not be so construed, then it is equally as reasonable to include within it all the net interest, dividends or other periodical income which accrued from her share during the entire period of her minority. That she should have something from this source was the clearly expressed intention of the testator in giving this direction, and if she should have anything, no reason is disclosed by the terms made nse of for giving her less than the entire income of her share as it might have accrued during her minority. It has been urged that the term “ other periodical income thereof ” was intended to restrict her right to what might accrue within the limits of some fixed designated period, as that of a year or less than a year. But these terms, in the connection in which they have been used, neither require nor would they justify such a construction. They are rendered much more intelligible in applying them to the different periods of time which might appropriately be included within the term of the minority of this beneficiary, than by making any more restricted use of them. And the preceding phrase “ the net interest,” unqualified as it was used by the testator, can be harmonized with no other construction than that including all the interest arising out of the investment of this share of the testator’s estate. To construe the direction otherwise than as including the full amount realized from the investments required to be made, would render the conclusion inevitable that the testator had died intestate as to this portion of the estate, and that it was clearly not his purpose to do, for the intention is unmistakably evinced to effectually dispose of all his property by means of this will and the codicil afterward executed. The construction which it has been already intimated this particular direction should receive harmonizes with that general intent. And even if it is to be regarded as ambiguous in its meaning, it should still be so construed as to carry this general design of the testator into effect. That was the construction given to this portion of the will by the surrogate, and in this conclusion this court has ample reason for agreeing with him.

At the time of the decease of the testator large amounts of money were owing to him which he had loaned to other persons. These loans were secured by stock held by him; and notes had also been taken by him for the interest which, according to the terms of the loans, should accrue upon them. For so much of this interest as accrued after the decease of the testator the executors were charged in their accounts by the surrogate. This charge has been resisted as an improper one upon the ground that the notes for the interest constituted a part of the capital of the testator’s estate. It is plain that such would not have been their effect if the promises for the payment of the interest had been included in the formal "obligations taken for the return of the principal, for interest in the adjustment of accounts of this nature is properly considered as accruing proportionally from day to day, and such in fact is the manner of its accumulation. For that reason it has been made apportionable in accountings of this description. (Clapp v. Astor, 2 Edw. Ch., 379-383, 384; 2 Perry on Trusts [2d ed.], § 556.) And whether the interest is made to accrue by the terms of the obligation taken for the loan of the principal, or by the terms of another and separate instrument, can really constitute no difference in the application of this principle. The fund to accrue is still the same whether the promise for its payment be made in one form or the other. It is no more nor less than interest in either case, and so far as it has not accrued, but is prospective in' its nature, it is still interest to be earned, and as such it is the income derived from the principal on account of which it may have been reserved. To the extent of one-sixth of the interest accruing in this manner during the minority of this daughter she was clearly entitled under the terms of the testator’s ■ will. It was part of the income or interest derivable from the estate which the law in favor of such a claimant requires to, be computed from the decease of the testator. ( Van Blascom v. Dager, 31 N. J. Eq., 783; Weld v. Putnam, 70 Me., 209.) This principle includes all interest accruing to the estate after the decease of the testator, and it is distinguishable from dividends upon stocks forming a part of such an estate, for as the time within which they may accrue cannot so certainly be ascertained they are regarded as wholly coming into existence at the time when they may be declared, and for that reason incapable of apportionment between a life tenant and a remainderman. (Scholefield v. Redfern, 2 Drury & S., 173.) For that reason the authorities by which this rule has been made applicable to dividends can have no bearing whatever upon, the disposition which should be made of accruing installments of interest.

The testator was the owner of twenty-seven shares of the New York and Liverpool Steamship Company of $2,000 each. TJpon these shares interest certificates had been issued by the company and the executors sold both the shares themselves and the interest certificates for the sum of $75,401. In the accounting one-sixth of this interest was allowed in favor of the estate of Mary Alice so far as it accrued after the decease of the testator. In the sale which was made no particularly assignable amount of the price was stipulated for the interest certificates, but it is fairly presumable that they were included at such a valuation as justified the conclusion that the interest had in that manner actually been realized by the appellants. If that had not been the fact it was one which they might very easily have proved. In the absence-of such proof the presumption would be against them, and with the evidence given upon this subject would be sufficient to justify the allowance made upon this part of the account.

During their administration bonds were from time to time sold by them upon which interest was charged in the accounting substantially upon the same principle. The sales were made in a similar manner without any designated part of the purchase-price being assigned on account of interest. It was to be presumed, however, that the interest so far as it had accrued formed a part of the value given to the securities in their sale, and to the extent that it had accrued and was allowed in the accounts, the determination seems to have been warranted under the legal principles already mentioned.

The executors held a demand amounting to the sum of $15,000 against a debtor residing in Cincinnati. Legal proceedings were instituted for its recovery, which resulted in the sale, of real estate purchased by George ~W. Higgs, one of the executors. This was held for some time in this manner, and then it was sold upon terms producing $12,559.01 more than the principal of the indebtedness. At that time the interest which had accrued- was greater than this excess, and it was accordingly allowed in the accounting as income of the estate.

By the purchase which was made of this property by one of the executors, as the consideration for it was a debt due to the estate, the title to it was subjected to the same obligations as those which previously affected the indebtedness itself. Neither.of the executors eould purchase the property divested of the obligation previously created to account for it in the settlement of the estate, for persons sustaining such a relation of trust and confidence as these appellants surely did, are disabled from dealing with the trust property for their own exclusive use or benefit. (Colburn v. Morton, 36 How., 150, 160; Fulton v. Whitney, 5 Hun, 16.)

In. the hands of these executors the property consequently remained applicable to the principal, also to the interest of this indebtedness. And when it was finally sold and the proceeds received for it, it became the executors’ duty to divide and appropriate those proceeds first to the payment of the principal, and then to the interest arising upon the indebtedness. That was the disposition which was made by the decrees, and it must be held to have been well sustained both by principle and authority.

■ The testator was the owner of fourteen shares of $1,000 each in the Atlantic White Lead Company. These were sold by the executors previous to the accruing of a current dividend, but the sale was made under the terms that this dividend should actually be received by them. They retained the right to it by force of a positive stipulation securing it, and in performance of this obligation the sum of $1,361.35 was paid to them. That sum consequently was received substantially in the same manner that it would have been if they had continued to hold and own the stock until it actually became payable. Their obligation to account for it therefore was not obnoxious to the rule that dividends are not to be apportioned, for they received the entire amount as it would become payable, less the interest for the intervening period of time. The party to whom the stock was transferred was conversant with the affairs of the company and knew what the dividend was to be. And he paid that amount over after deducting from it the interest upon the money for the intervening period. This was therefore a dividend actually received by the executors constituting a part of the income of the estate. They were accordingly liable to account for it as such, and were, charged with only that proportion appertaining to this trust estate.

The testator was the owner of stock in the New York Gas-Light Company, and this company on the 20th day of October, 1862, declared a stock dividend of fifty dollars a share to be divided among the owners of the stock of the corporation. Under the resolution adopted for that purpose thirty-three of these shares was delivered. to these executors. They added them to the capital of the estate, and received dividends upon them until 1870, when the shares themselves were exchanged for sixty-six shares of the stock of the corporation, and these shares were also held by the executors as part of the capital of the estate. Dividends were afterwards paid to them upon such shares, and accounted for by them in their administration of the estate. .In the determination which was made by the surrogate these shares were regarded and applied as part of the income of the estate itself. And as a consequence of that determination a corresponding addition was made to the income of the trust created for the benefit of the testator’s daughter Mary Alice. Under the resolution which was adopted it was stated that the funds of the company had been accumulating for twenty years past, and that a special dividend of fifty dollars a share should be declared payable on and after the 1st of November, 1862. And by the succeeding portion of the resolution this payment was to be made in the shape of a stock dividend. When this accumulated fund was acquired, was not otherwise made to appear than by the statement of it contained in the resolution. An investigation was instituted for the purpose of ascertaining the fact, but no evidence could be obtained by means of it which warranted the conclusion that any assignable proportion of it had been earned before thé death of the testator. But if evidence of that nature had been given it could not very well liave produced any change in the-determination, for the reason already stated, that dividends are not apportionable, but are legally considered as accruing only from the time when they may be declared. This dividend was declared nine years after the estate had passed into the hands of the executors. And if it is to be considered as a dividend under the terms made use of by the testator in his will, the executors were properly required to account for it as a part of the income of the estate. By the rule prevailing in England, and which has been followed in the adjudications made upon the same subject in the State of Massachusetts, dividends made by the way of issuing additional shares of stock, are considered simply as augmentations of the capital of the company, and for that reason forming no part of the income of the estate receiving such stock, as between the life tenant and the remainderman, while dividends in money of an equal amount would be regarded as part of the income of the” estate. But in this and other States a different view of the effect of such a transaction has been adopted. When the stock is created, as this was, wholly by the surplus earnings of the company, it is considered practically the same in its effect as the payment of the money itself, and then it has restoration to the company as a consideration for the issuing of. the stock. In that view the stock becomes the simple equivalent of the surplus earnings of the company liable to be appropriately disposed óf as a dividend upon its capital.

This subject was carefully considered in the case of Clarkson v. Clarkson (18 Barb., 646), and the conclusion was there reached that stock dividends of this nature could not properly be distinguishable from a division of the surplus earnings of the company among the stockholders in money, and for that reason properly constituting a part of the income of the estate. The same view was followed in Simpson v. Moore (30 Barb., 637), and in the Estate of Woodruff (1 Tucker, 58). A late English adjudication upon this subject received the attention of the court in Hyatt v. Allen (56 N. Y., 553), and the occasion was made use of as as a proper one for disclaiming any intention on the part of the court to approve of the rule prevailing in England upon this subject.

The same point was examined in Earp’s appeal (28 Penn., 368), and the true rule to be adopted was considered to be that which had received the approbation of the Supreme Court of this State. A further examination of the same point arose in Wiltbanks appeal (64 Penn., 256), and it was disposed of in the same manner.

It was also examined in Van Doren v. Olden (19 N. J. Eq., 176), and in Lord v. Brooks (52 N. H., 72), and the determinations then made were adverse to the rule prevailing in England and in the State of Massachusetts. The weight of authority appears therefore to be decidedly with the determination made by the surrogate upon this - subject, and -that is to regard stock dividends, made in the manner in which these were declared, as simply another mode for the distribution of the surplus earnings of the company among its stockholders, instead of actually paying the money itself to them. As the term dividend is ordinarily employed and understood it may properly include dividends of this character, and they must therefore be held to have been within the contemplation of the testator at the time when he made the declaration of trust in his will in favor of his daughter; for that reason the income of her estate was entitled to be benefited, as it has been by' the accounting, by reason of the making of these stock dividends.

■ Other dividends of a similar character, though not particularly brought in question by the points made, were declared upon other stocks owned by the estate. They, of course, are included in what has already been said concerning the stock dividends of the gas company, and nothing further need be added for the purpose of disposing of this portion of the case.

: Objections were taken to the admissibility of entries upon corporate books, which were pertinent to the investigations required to be made for the completion of the accounting, and upon them the position is taken that the evidence was improperly received in the proceedings. But that precise objection was not presented when the evidence was offered, it was objected to only upon the ground that it was immaterial and irrelevant. These objections were not well founded for the evidence itself was both material and relevant, and the objections can consequently be of no service to the appellants. The appellants cannot be relieved from the payment of interest at the rate of seven per cent by reason of anything contained in chapter 538 of the Laws of 1879, for while these transactions were under their management the legal rate of interest was that of seven per cent, and it may be presumed, in the absence of proof showing their inability to obtain that rate, that the investments of the estate realized that amount. "What they were required to account for was the sums which they had secured in the management of the property committed to their care; and that may well be presumed, under the circumstances appearing, to have produced the rate of interest allowed by the surrogate.

In the decrees which were made, allowances were provided for the counsel of the respective contestants. These allowances exceed the amount mentioned in section 309 of the- Code of - Procedure, as it was amended by chapter 431, section 11 of the Laws of 1876, and now contained .in section 3254 of the Code of Civil Procedure. That limit has been considered a proper one to be observed by the surrogate in the exercise of a well regulated discretion, even though it may not in terms have been made positively obligatory upon him. (Down v. MoGourkey, 15 Hun, 444; Hurd v. Warren, 16 id., 622.) But as these accountings were difficult and intricate and involved investigations extending over a period of several years, and the amounts themselves in controversy were large and the objection taken to the allowance has not been insisted upon as a reason for modifying so much of the decrees as relate to them, they may not improperly be left as the surrogate himself has placed them.

It appeared that the testator made large advances during his lifetime to his sons upon which interest was claimed by the administrator of the estate of the daughter Mary Alice. -This interest, as it was computed, amounted to the sum of $20,959.18, but in the charges upon the testator’s books against the persons receiving these advances no additions of interest were made. Neither was there anything contained in them indicating his purpose to be that they should be charged with interest. By the terms of his will he directed a division of his estate to be made when his son Joseph should attain the age of twenty-three years, and that in making such division each child should be charged with all such charges as might stand against him or her on the books of the testator, and without any interest thereon down to the period fixed for making the division of the estate. This direction was prevented from taking effect by the circumstances that the testator’s son Joseph attained the age of twenty-three years before the time of his own decease. The division of the estate, consequently, could not take place as he himself provided for the event. No direction was given authorizing the addition of interest to these advances, before the time when the estate itself would be capable of being divided; and the direction which was given upon this subject appears to have been based upon the intention that interest should not be charged until after the arrival of the time when the estate itself could be divided. This

14 was a reasonable and proper direction, and it was probably intended to have the effect of protecting these advances against charges of interest down to the time when the division of the property ought actually to take place, and as there was no unreasonable delay in making that division, no ground for charges of interest upon these advances was established. The exclusion of this claim of interest was required by the circumstances appearing in the case, as well as the legal rule applicable to this subject. (Osgood v. Breed's Heirs, Id Mass., 356.)

Interest was also claimed upon advances made by the executors to the other children of the testator previous to the expiration of one year from the time when the will was proven. This interest, amounted to upward of $6,000. But no good reason appears for charging it against the executors. While they were not bound to make the advances within the time when that was done, they certainly were not prohibited from doing so ; and if in the judicious and careful management of the estate they deemed that to be proper, no good reason appears to justify charging them with interest upon the advances, because they deemed it prudent to exercise this authority.

A stock dividend of five per cent was declared by the New York Gas-Light Company, in October, 1853, which was received by the executors. But it appeared by the evidence that the fund out of which this dividend was made formed no part of the earnings of the company, but it was realized by a sale of its real estate on Canal, Centre and Hester streets, in the city of New York. This dividend accordingly was not governed by the legal principle indicating the appropriation-proper to be made of stock dividends declared out of surplus earnings; for it was really made from the proceeds of property constituting a part of the capital of the corporation, and which the directors considered themselves justified in declaring in the then financial condition of the corporation. It was not appropriately income received by the estate, but it was in the nature, so far as it extended, of a change in its capital. It was properly, therefore, so regarded by the executors, and it could not be carried into the accounts as the income of the estate. No other objections requiring further consideration have been taken to the decrees forming the subjects of these appeals, and as those which have been considered cannot be sustained, it follows that the decrees themselves should be affirmed.

Davis, P. J., and Bradt., J., concurred.

Decrees affirmed.