author: Bartlett, J.

text:
    Henry Corse, as Trustee, etc., App’lt, v. John Corse et al., as Trustees, etc., Resp’ts.

      (Court of Appeals,

      Filed February 5, 1895.)

    1. Executors and trustees—Lease.
    Where the executors and trustees under a will are authorized to receive the rents and profits of the residuary estate, the power to lease is clearly implied, and any lease, made in good faith, will he binding on all the parties interested.
    3. Same.
    _ Though the testator directed his executors and trustees to divide his residuary estate into several equal parts and constituted one of his sons a trustee for certain purposes connected with his share, the signature of the latter to the lease was neither necessary nor proper, before such division was made.
    Appeal from judgment of the general term of the supreme . court in the first judicial department, entered upon an order which affirmed a judgment in favor of defendants entered upon an order dismissing the complaint on trial at special term.

      William C. Reddy, for app’lt; George G. Blanke, for resp’ts.

       Affirming 55 St. Rep. 461.

   Bartlett, J.

— This action was brought by Henry Corse, Jr., the appellant, and his four sisters (none of whom join in this appeal), to set aside a lease executed by the executors and trustees under the will oi their deceased father, Henry Corse, to the defendant Jacob Appell, upon the grounds:

1. It was not the act of all the trustees under the will.

2. It was not the act of the appellant as trustee of a share under the codicil.

3. It was improvidently made.

The complaint was dismissed at special term and the general term, first department, affirmed the judgment.

As we do not deem it necessary to pass on all the questions disposed of by the learned general term, we will state the grounds upon which we affirm the judgment.

The testator directed his executors and trustees to divide his residuary estate into eight equal parts or shares, being one share for the use of each of his eight children during their respective lives, and at the death of a child that particular share was disposed of in a manner not material to be considered at this time.

By a codicil executed several years after the will he modified his original scheme so far as the same affected his son Henry, who> is the plaintiff and appellant herein, and directed that the income of that share, or so much thereof as should be necessary, should be applied to the education and support of Henry’s children during his life.

Henry was then constituted a trustee for certain purposes connected with his share, and at his death the principal was to be divided equally among his children.

The testator recommended in his will that his property should be kept together so long as possible, but added that his suggestion should not be “ construed as a direction or restriction.’

The testator died May 15th, 1882, and the lease in question was. executed September 24, 1891, the term being ten years from May 1st, 1893; the tenant, John Appell, had been the lessee of the. premises since 1869.

At the time this lease was made- no actual division had been made of the residuary estate into eight shares as directed by the will.

The will named the widow and three of the testator’s children,, John, Samuel and Catharine, as executors and trustees.

The widow died before the execution of the lease ; the instrument was originally executed by John and Samuel only, but. Catharine subsequently, as one of the plaintiffs, abandoned this suit and ratified the acts of John and Samuel in executing the lease.

This disposes of the first objection to the lease, that it was not. executed by all of the trustees under the will. The third objection, that the lease was improvidently made, was disposed of below as a question of fact upon conflicting evidence, and nothing is. presented for our consideration.

This leaves the single question whether the provisions of the codicil constituted°the plaintiff, Henry Corse, such a trustee of the corpus of the undivided estate, or any part thereof, as would render his signature to the lease necessary in order to make it valid in the hands of the defendant, Jacob Appell.

As the executors and trustees under the will are authorized to receive the rents and income of the residuary estate, the power to lease is clearly implied, and any lease made in good faith would be valid and binding on all the parties in interest.

As there had been no actual division of the estate into shares at the time of executing the lease, it follows that a subsequent creation of the shares by the executors and trustees would be subject to any lease or leases made in the due course of administering the estate.

Until such a division of the estate is made there is no definite share or interest upon which the provisions of the codicil can operate, and it follows that even under the most favorable construction of the will and codicil in the interest of the appellant his signature to the lease was neither necessary nor proper.

In the view we take of the case it is unnecessary to determine the rights of the appellant under the codicil as to his particular share; the question is not now presented. It does not yet appear. what property will constitute that share.

Whatever remedies may be open to the appellant, in order to carry out the intent of the testator as expressed in the codicil to his will, it is clear that the judgment appealed from should be affirmed, with costs.

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Thomas. J. Deegan et al., Individually, etc., Resp’ts, v. Charles Wade, Impleaded, etc., App’lt.

      (Court of Appeals,

      Filed February 5, 1895.)

    1. Will—Suspension of power of alienation.
    The absolute ownership and power of alienation is not suspended merely because the executor may require a period of time, not measured by lives, in which to execute the power of sale bv a conversion of the land into money. Such result is accomplished only in a case where there are no persons in being by whom an absolute estate in possession can be conveyed.
    8. Same.
    The grantees of a life estate, with a power to alien in fee by. will, can convey in fee by deed, though the instrument, creating the life estate and the power, attempted to restrain and prohibit any conveyance by deed.
    Appeal from judgment of the general term of the supreme court, in the first judicial department, entered upon an order which modified and affirmed as modified a judgment entered upon the report of a referee construing the will of Patrick Wade,' deceased, and passing upon the accounts of the temporary administrator and the executors of a deceased executor.

      J. F. C. Blackhurst, for appl’t; Louis V. Booraem and Charles L. Pashley, for resp’ts.

      Affirming 58 St. Rep. 155.

   O’Brien, J.

The testator, Patrick Wade, died October 17th, 1890, leaving a will of real and personal property. Pending a •contest as to the validity of the will before the surrogate, a temporary administrator was appointed. The will was subsequently admitted to probate and the executor named therein qualified and took possession of the estate. He died on the 14th of November, 1891, and the plaintiffs (who are children and legatees or devisees under the will of Wade) were appointed administrators with the will annexed and brought this action. The purpose of the action is two-fold. . The temporary administrator and the executors of the deceased executor were required to account, and a judicial construction of certain provisions of the will was sought. The .special term rendered judgment upon all the questions after a report of a referee. In so far as the judgment related to the accounting, a slight modification was made in favor of the defendants at the general- term, and no one interested in that question has appealed to this court" The modification was obviously correct for the reasons stated in the opinion below. The only appeal to this court is by the infant defendant, Charles Wade, who is interested in the construction to be given to' two provisions of the will devising real estate.

By the third clause of the will the testator devised to the executor a piece of real estate on Franklin street in the city of New York, and directed him “to sell the same at public auction at the city of New York to the highest bidder, at some convenient day and place during the spring months of 1891, and to make, execute and deliver good and sufficient deed or deeds of conveyance for the same to the purchaser at such sale.” The executor was' then to pay over or invest the proceeds for the benefit of certain of the legatees named in the will. This was one of the trusts authorized by-the statute since it was to sell lands for the benefit of legatees. The only objection made to it is that it violates the statute against perpetuities, in that it fixed a time for the sale, so as to suspend the power of alienation for a period not measured by lives. It is obvious that the direction as to the time to sell was .advisory, and, as the learned court below remarked, was intended to facilitate the sale and not to limit or restrain the power of absolute disposition. The executor had the right to the ordinary period of administration, and this direction amounted to nothing more than a request that the sale be made at an earlier day. The .absolute ownership and power of alienation is not suspended merely because the executor may require a period of time not measured by lives in which to execute the power of sale by a conversion of the land into money. That result is accomplished only in a case where there are no persons in being by whom an absolute estate in 1 possession can be conveyed. Roberts v. Corning, 89 N. Y. 288 ; Hope v. Brewer, 136 id 126; 48 St. Rep. 834.

The executor was at all times competent to convey, and the request that the sale be made a few months after the testator’s death was no restraint upon the exercise of that power.

By the fourth clause of the will the testator devised his lot No. 228 Mott street, in the city of New York, “ free and- clear of all incumbrances, with the two houses thereon erected, to my son, Charles Wade, for the term of his natural life, with full power to devise, but with no power to grant or convey the s^me, and, if he shall die intestate, then with remainder over to his heirs; and I devise and direct my executor, hereinafter named, to collect and receive the rents and profits of said number 228 Mott street until my said son shall arrive at the age of twenty-one years, and, after paying the taxes, assessments and the expenses of necessary repairs on the said house, then to apply the balance of said income primarily to the support, education and maintenance of my said son; and, if there shall be any surplus, to add the same yearly to the other moneys invested for him under the provisions of the will; and, when he shall arrive at the age of-twenty-one years, to-pay to him the whole of the accumulated sum, with the interest"

' With respect to this clause the question is, -what estate vested in the devisee, whether an estate for life merely or in fee, and it is governed by the following provision's of the statute concerning powers (1 R. S. 732, 733):

“ § 81. Where an absolute power of disposition, not accompanied by any trust, shall be given to the owner of a particular-estate, for life Or for years, .such estate shall be changed into a fee absolute in respect to the rights of creditors and purchasers, but subject to any future estate limited thereon, in case the power-should not be executed, or the lands should not be sold for the satisfaction of debts.
“ § 82. Where a like power of disposition shall be given to any person to whom no particular estate is limited, such person shall also take a fee, subject to any future estate limited thereon, but absolute in respect to creditors and purchasers.
“ § 83. In all cases where such power of disposition is given,, and no remainder is limited on the estate of the grantee of the property, such grantee shall be entitled to an absolute fee.
“ § 84. Where a general and beneficial power to devise the inheritance shall be given to a tenant for life or for years, such tenant shall be deemed to possess an absolute power of disposition within the meaning and subject to the provisions of the three last, preceeding sections.”

In Hume v. Randall, 141 N. Y. 499 ; 57 St. Rep. 587, we held that where a grantee of an estate for life takes also a power to-alien in fee to any person by will, and no person other than the grantee of the power has, by the terms of its creation, any interest, in its execution, the power is a general beneficial one : Cutting v. Cutting, 86 N. Y. 522, and, further, that the grantees of the life-estate, with such a power, could convey in fee by deed, although the instrument creating the life estate and the power attempted to-restrain and prohibit any conveyance by deed. That case cannot, be distinguished in principle from this. Here, the devisee had a life estate with power to alien by will. He had the right to the rents and profits, and the estate went in fee to his heirs in case he died intestate. When such powers and incidents attach to a life estate in lands, it is necessarily transmuted into an absolute fee by the terms and the general policy of the statute, and an attempt to restrain the power to convey by deed is inoperative. It was the evident purpose in enacting § 81, above quoted, and the three following sections, to annihilate all limitations and restrictions upon the power of disposition in cases where a life estate with power to alien in fee by will had been granted or devised, exceptas therein specially provided. Where the beneficial interest and general ownership was conferred by the grant or devise, the statute renders inoperative all restrictions inconsistent with the same.

The judgment appealed from should, therefore, be affirmed, but without costs in this court to either party.

All concur.

Judgment affirmed.


text:
    Joseph Bird, as Receiver, etc., Resp’t, v. Adaline M. Merklee, et al., Resp’ts, et al., App’lt.

      (Court of Appeals,

      Filed February 5, 1895.)

    Trusts—Gifts to corporations.
    Gifts to religious and charitable corporations, to aid in carrying out the purpose for which they are organized, whether by expending the principal of a bequest, or the income of a bequest to be invested in perpetuity, do not create a trust in apy legal sense or offend against the statute of perpetuities, and are not to be judged by any of the well-known rules pertaining to the law of trusts as applied to private individuals.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order which reversed a judgment construing the will of George F. Merklee, deceased, entered, upon a decision of the court on trial at special term.

      Lemuel Skidmore, for app’lts, Methodist E. Churches; William D. Udell, for app’lt, Jane Street Church; Fernando Solinger, for app’lt, African M. Church ; James Otis Hoyt, for receiver ; T. W. Tyng, for resp’ts, Ludwig et al.; S. St. J. McCutchen, for resp’ts, Merklee.

      Reversing 57 St. Rep. 836.

   Bartlett, J.

This is an action to construe item 20 in the last will and testament of George F. Merklee, deceased, which reads as follows: .

' .“Item 20.—If after all the legacies are paid in full there should be anything left of my estate, the same to be divided and paid to the Methodist Episcopal Churches, in the Ninth ward of the city of. New York, according to the number of members, to buy coal for the poor of said churches.”

The general term of the first department reversed the judgment of the special term adjudging this to be a valid bequest to the churches named, and held that a trust was sought to be created which was void, as the beneficiaries were unascertained and indefinite.

We are unable to agree with the learned general term, and are of opinion that the testator contemplated no trust, but made a valid bequest to the churches.

This court in Wetmore v. Parker, 52 N. Y. 450, held that a be quest, similar in its essential features to the one at bar, did not create a trust.

In that case the testator gave $25,000 to the Utica Orphan Asylum, to be perpetually invested by the trustees or managers in a certain manner, and the interest and income to be expended for the support and maintenance of the asylum.

This bequest was claimed to be invalid upon the ground that it created a perpetuity in violation of the statute prohibiting the suspension of the absolute ownership of personal property beyond two lives in being.

After disposing of this objection and holding that the provisions of the statute against perpetuities did not apply to such a bequest, Church, Oh. J., writing the opinion of the court, uses this language : “ The income only of the permanent endowment of such an institution can be used with safety to its very existence. Any other course would frustrate, and, sooner or later, destroy its usefulness.

“ No mortmain law, restrictive as they have sometimes been, ever prevented the donors from making their gifts in such terms as would preserve the principal from dissipation. It does not create a trust in any sense, as that term is applied to property. The corporation uses the property in accordance with the laws of its creation for its own purposes, and the dictation of the manner of its use, within the law, by the donor, does not affect its ownership or make it a trustee. A person may transform himself into a trustee for another, but he cannot be a trustee for himself.”

In the case before us there is nothing in the language employed by the testator that indicates an intention to create a trust.

In the first place, he seems to have been in doubt as to his estate resulting in a residue after carrying out the provisions of his will. His language is: “If, after all the legacies are paid in full,' there should be anything left of my estate, the same to be divided and paid to the Methodist Episcopal Churches of the Ninth ward of the city of New York, according to the number of members, to buy coal for the poor of said churches.”

We have here a direct and simple gift made in terms that exclude any idea of trust. There is not even a direction to invest. the principal and expénd the income.

It is admitted that the churches designated are duly incorporated and have the power to take.

The validity of. such a gift has not been legally open to question in this state since the case of Williams v. Williams, 8 N. Y. 925, where a bequest to the trustees of the Presbyterian Church and congregation in the village of Huntington, in trust for the support of the minister of that church, from the income of an invested fund, was sustained as a valid bequest.

It was there held that the provisions of the Revised Statutes against perpetuities do not affect the property given in perpetuity to religious or charitable institutions.

While this case has been disapproved as to another bequest involving.the existence of the English system of charitable uses in this state, its decision sustaining the bequest referred to has not only never been questioned, but has been expressly approved in subsequent oases in this court. Vide, Wetmore v. Parker, 52 N. Y. 457 : Holland v. Alcock, 108 id. 337; 14 St. Rep. 761.

In Holland v. Alcock, 108 N. Y. 337; 14 St. Rep. 761, Judge Rapallo, after commenting upon the present condition of the law on this subject, says: “Under this system, many doubtful and obscure questions disappear and give place to the more simple inquiry whether the grantor or devisor of a fund designed for charity is competent to give, and whether the organized body is endowed by law with capacity to receive and to hold and administer the gift.”

In the case at bar both these questions must be answered in the affirmative.

It is not denied that the gift of money to buy coal for the poor of the churches named is directly within the provisions of the various statutes defining the powers and objects of the corporations interested.

They are empowered to acquire real and personal property in a limited amount, for the use of the church, or other pious uses, and they are permitted to employ such property, among other objects, for the relief of the poor.

The fact that the testator has designated the purpose for which thisllegacy must be used does not indicate a desire upon his part to create a trust. If it were necessary in order to sustain the bequest these words of designation by the testator might be treated as merely precatory, but we think it was entirely competent for him to apply his bounty to the whole or any one or more of the various purposes for which the corporations are authorized to hold property. ‘This is fully reasoned by Judge Denio in Williams v. Williams, 8 N. Y. at bottom page 530.

The fundamental error in this case, in the court below, and in cases that are frequently coming to the attention of this .court, is the failure to recognize the. fact that gifts to religious and charitable corporations to aid in carrying out the purposes for which they are organized, whether by expending the principal of a bequest, or the income of a bequest to be invested in perpetuity, do not create a trust in any legal sense, do not offend against the statute of perpetuities, are not to be judged by any of the well-known rules pertaining to the law of trusts as applied to private individuals.

It would be impossible at this late day to add anything to the learned discussion of the foremost judges and counsel in this state in a legal contest which assailed the case of Williams v. Williams, 8 N. Y. 525, in so far as it sustained the English doctrine of trusts for charitable uses and resulted in establishing that the doctrine had no place in our jurisprudence, but that a system created by the statute law of the state of organized corporate bodies with power to administer public charities, and legal capacity to receive and hold property for that purpose, was intended to take its place. Holland v. Alcock, 108 N. Y. 312; 14 St. Rep. 761.

Gifts to these corporations can .be made without invoking the aid of trusts.

The mortmain policy of this state is very simple, and is illustrated in the charters of our religious corporations. The amount of property which they make take and hold in mortmain is restricted ; but their ownership is absolute and only qualified by their artificial nature. Wetmore v. Parker, 52 N. Y. 458.

The respondents urged that the case of Fosdick v. Town of Hempstead, 125 N. Y. 581; 35 St. Rep. 863. is an authority sustaining the views of the general term.

The point decided in that case leads to no such conclusion, and the decision is in harmony with the views we here express. In that case a bequest to the town, in trust, in perpetuity, for the benefit of the poor of the town, not confined' to those for ■ whose support it was under a statutory liability, was held invalid for want of an ascertained- beneficiary. It was further held that, in the absence of a special grant of power by statute, a town cannot act as trustee of property given for charitable purposes.

Judge Peckham, after a review of many of the authorities beginning with the Williams case, uses this language: “ It is this circumstance that the gift in this case.is.not for corporate purposes, which takes it out of the principle upon which the cases cited were decided.

“The cases of Wetmore v. Parker, 52 N. Y. 459; Le Couteulx v. City of Buffalo, 33 id. 333 ; Vail v. Long Island Railroad Co., 106 id. 283; 8 St. Rep. 700, were all instances of a gift to a corporation having power to take for the "purposes that the gift was intended, and hence a direction accompanying the gift that it was to be used only for a corporate purpose, or that the income only was to be used, did not create a trust.

“ It was simply saying that the gift was for the purpose of aiding the corporation in the discharge of some of its corporate functions.”

The judgment appealed from should be reversed and the judgment of the special term affirmed, with one bill of costs to the defendant churches.

All concur.

Judgment accordingly.


author: Haight, J.

text:
    Daniel McCampbell, Resp’t, v. The Cunard Steamship Company (Limited), App’lt.

      (Court of Appeals,

      Filed February 5, 1895.)

    1. Master and Servant—Appliances.
    The master is not liable for an injury to an employee in unloading a steamer at the dock, where he furnished suitable appliances for securing the mouthpiece to the skid, and the injury occurred because the mouthpiece was not properly secured by experienced co-servants.
    2. Same.
    The question is not affected by the fact that the servant was not present, when the skid and mouthpiece were rigged.
    Appeal from judgment of the general term of the supreme court- in the second judicial department, entered upon an order which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.

      Frank D. Sturges, for app’lt; George William Hart, for resp’t.

      Reversing 58 St. Rep. 870.

   Haight, J.

This action was brought to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant company. The plaintiff was an experienced longshoreman. On the 23d day of August, 1883, he entered the employment of the defendant at pier 40, North river, in the city of New York, to assist in the unloading of the company’s steamship "Gallia.” He with another employee was directed to take a four-wheeled truck and transfer drums of caustic soda from the deck of the vessel to the dock. The ship arrived the evening before and had been moored to the doclr. Longshoremen in the employ of the company then rigged the gangways. A skid, variously estimated from twenty to twenty-eight feet in length, and seven feet wide, was placed in position with one end upon the deck of the vessel and the other upon the dock. It was secured to the side of the ship by means of ring bolts and upon the dock it was attached to a mouthpiece, so called, tapering to an edge, by lanyards tied through rings so as to allow the skid and mouthpiece to move backwards and forwards upon the dock, following the movements of the vessel produced by the action of the water. At the time of the accident the tide was high and the deck of the vessel in consequence was six or seven feet above the dock. The plaintiff and his associate took the truck, drew it up the skid on to the vessel, and placed it in position. Two drums of soda were then raised from the holdof the vessel by means of a winch and placed on the truck. A piece of dunnage wood, tapered at one end, was then placed under the forward drum of soda as a chock to keep them from rolling, and two other pieces of wood were placed through the spokes of the hind wheels to act as brakes in going down to the dock. The plaintiff then started down the skid, drawing the truck after him. When he was about half way down, some one cried out, and he glanced back; saw that the chock was slipping off and the drums rolling forward. He then started to run ; but the front wheels of the truck dropped into an opening between the end of the skid and the mouthpiece five or six inches in width, causing a sudden jerk of the handle of the truck, which threw him down, and the drums of soda fell upon his foot, crushing it. Neither party had before noticed that the mouthpiece was not securely tied to the skid. It was in apparent position when the plaintiff and his associate drew the truck up on to the vessel; and had it been in place when the plaintiff was running down the skid, presumably, he would have escaped in-i'11'T-

At the conclusion of the evidence the defendant moved for a. dismissal of the complaint on the grounds: First. “ That no negligence on the part of the defendant has- been shown.” Second. “ That if the plaintiff was injured through the fact that the mouthpiece had become separated from the skid during the operation of the work, either because it was not originally securely fastened, or was not fastened tightly after it had become loosened,. then it is the fault of a fellow-servant and not of the company.” Third. “That the risk was open and obvious, and .the ■ plaintiff accepted the risk when he entered into the service.” Fourth. “ That there was no. notice of this defect in the skid and mouthpiece which had been brought home to the defendant,” etc. The motion was denied and an exception taken.

The court, in its charge to the jury, limited, its consideration, upon the question of negligence, to the sufficiency. of the skid and mouthpiece and the character of the opening betweeen them. .It was then requested by the defendant to charge that “if the defendant furnished suitable appliances for securing the mouthpiece to the skid, and the injury occurred because the mouthpiece was not properly secured, the plaintiff cannot recover.” And again : “If the defendant’s employees who rigged the .skid and mouthpiece were fellow-servants of the plaintiff, and if the injury was occasioned by their negligence alone, the plaintiff cannot recover.” Both of these requests were refused and an exception was taken to each refusal.

We think the exceptions alluded to were well taken. The most that can be claimed by the plaintiff is that the mouthpiece was improperly tied to the skid. There is no. other complaint made with reference to the skid, the mouthpiece or the appliance furnished for fastening them together. They were of the kind and character in common use. They were open, visible appliances, of simple construction, the use of which was well known and understood by the plaintiff. They were tied together by the employees of the defendant, who were shown to be experienced longshoremen ; and if, as claimed, this work was improperly done, it was the negligent act of the co-employees of the plaintiff. ' . ■

The fact that the plaintiff was not present at. the time the skid and mouthpiece were rigged does not affect the question. In Hogan v. Smith, 125 N. Y. 774 ; 85 St. Rep. 870, the plaintiff’s intestate, a longshoreman, was engaged in loading a vessel with flour. In the square of the hatch and above the hold the workmen had laid plank and built upon it with bags of flour what is called a “ stool,” upon which four men stood and received the flour lowered tó them in slings, and then delivered it to other men, who stowed it away. It was customary for the longshoremen to extend the planks upon which the “ stool ” was constructed to some distance outside of it, but that precaution had been omitted, and the deceased was struck by one of the descending loads and killed by falling into the hold. If the plank had been, laid in the usual manner his life would have been saved. The plank, had been placed in position by' other workmen before the deceased commenced his labor. It was held a recovery could not be sustained. Finch, J., in delivering the opinion of the court, said : If it be true that the deceased commenced his labor after the “stool” had been built, and without knowledge of the omitted plank and the consequent possibility of danger, that simply tends to free him. from the charge of contributory negligence, but does not alter the relation of the master to the servants and their work. The neglect was a continuing one. ' It became such as to Hogan when he began his work, and at that moment the duty to close the opening by laying additional plank was that of the servants and not of the master. No negligence on the part of the latter was shown.” See, also, Hudson v. Ocean Steamship Co. of Savannah,. 110 N. Y. 625 ; 16 St. Rep. 416 ; Cregan v. Marston, 126 N. Y. 568-571; 38 St. Rep. 428; Filbert v. D. & H. C. Co., 121 N. Y. 207; 30 St. Rep. 494; Hussey v. Coger, 112 N. Y. 614; 21 St. Rep. 848.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

All concur.

Judgment reversed.


text:
    In the Matter of the Petition of Edmund E. Murphy, as , Executor, etc.

      (Court of Appeals,

      Filed February 5, 1895.)

    1. Will—After-born child.
    The birth of a child, after the making of a will, does not operate to revoke it, but merely renders it inoperative as to that portion of the estate which, if her patent had died intestate, would have been distributed to her as the next of kin.
    2. Same—Executor.
    In such case, letters testamentary are properly issued to the person, named as executor in the will, and he, as such, has a right to receive and administer the personal estate.
    Appeal from order of the general term of the supreme court in the first judicial department, which affirmed a decree of the surrogate’s court for the county of Hew York, directing the payment to the petitioner, as executor of Elsie S. Murphy, deceased,, of a legacy given by the last will and testament of Edmund A. Smith, deceased.

      Treadwell Cleveland, for app’lt; Frank D. Sturges, for resp’t.

       Affirming 64 St. Rep.

   Haight, J.

The order appealed from directs the trustee to pay to the petitioner the legacy belonging to his testatrix, under the will of Edmund A. Smith, deceased, or that she pay over to him the sum of $100,000, on account of the principal of such legacy, or deliver to him securities equivalent to that sum.

Edmund A. Smith died on the 24th day of February, 1876, leaving a last will and testament which has been duly admitted to probate by the surrogate’s court of the county of Hew York, in which, among other things, by the fifth clause thereof it is provided : “ I give and bequeath in trust to my executors, hereinafter named, all the rest, residue and remainder of my estate upon the following trusts, to wit.” Then follow subdivisions of the clause in which trust estates are created for different persons, naming them. By the fourth subdivision he provides : “ I direct my ex--editors, after providing for the' above bequests, to divide all the rest, residue and remainder of my estate equally between my said wife and children, share and share alike, the principal of each child, however, not to be paid until they respectively arrive at the age of thirty years, the interest arising therefrom to accumulate during their minority, and, on their attaining the age of twenty-one years, the interest arising therefrom, that is, from said principal and accumulation, to be paid to said children until they respectively arrive at the age of thirty years.”

Elsie S. Smith was the daughter of the testator, and, as such, became entitled to one-fifth of the residuary estate as above provided for. On October 28th, 1891, she married Edmund E. Murphy, the petitioner, and thereafter died, September 27th, 1892, at the age of twenty-two years, leaving the petitioner, her husband, and an infant daughter, Elsie J. Murphy, her surviving. She also left a last will and testament, in which she devised and bequeathed all of her property to her husband, appointing him sole executor of her estate. Her will was dated October 28th, 1891, and contained no provision for any child or children that should thereafter be born to her. Her daughter was born September 4th, 1892:

The residuary estate, under the will of Edmund A. Smith, deceased, bequeathed to his children, amounts, in personal property, to about the sum of $700,000.

While certain trusts were created by the fifth clause of the will, we are of the opinion that no trust was created as to the residue and remainder specified in the fourth subdivision thereof and the the amount thereof vested in the widow and children of the testator with a postponement of the payment, as to the children, until they should arrive at the age of thirty years. It is quite apparent that this provision of.the will-was, intended solely for the .benefit •of the testator’s children, and- the postponement of the payment was intended for their benefit and not for the estate. It consequently follows that, upon the death of the daughter Elsie S., the ;share belonging to her immediately passed to her next of kin, or her legatees under her last will and testament So far there appears to be no controversy as to the rights of the parties.

It is contended, however, that two-thirds of the estate of Mrs. Murphy passed to her infant daughter Elsie J., and was not subject to administration. But we are unable to adopt this view. The statute provides that: “ Whenever a testator shall have a ■child born after the making of a last will, either in the lifetime or after the death of such testator, and shall die leaving such child, so after-born, unprovided for by any settlement, and neither provided for, nor in any way mentioned in such will, every such ■child shall succeed to the same portion of such parent’s real and personal estate as would have descended or been distributed to ■such child, if such parent had died intestate, and shall be entitled to recover the same portion from the devisees and legatees, in proportion to and out of the parts devised and bequeathed to them by such will.” 2 R. S. 65 § 49, as amended, Laws 1869, chap. 22. Elsie J. was an after-born child, and, under the-provisions of

this statute, became entitled to two-thirds of the personal estate left by her deceased mother. The personal estate, however, left by her mother was subject to administration. Her debts had to first be paid, and only that which remained would pass to her next of kin under the statute; so that Elsie J. would take only two-thirds of that which remained after discharging the obligations resting upon her mother’s estate. The birth of Elsie J., after the making of the will does not operate to revoke it. It merely renders it inoperative as to that portion of the estate which, if her mother had died intestate, would have been distributed to her as the next of kin. In other respects the will remains valid. By it the petitioner becomes the sole executor, and is entitled to the other third of the testatrix’s personal estate. Smith v. Robertson, 89 N. Y. 555-558; Luce v. Burchard, 78 Hun, 537; 60 St. Rep. 770; In the Matter of Gall, 5 Demarest, 374; 7 St. Rep. 760. The other clauses not being, affected, it follows that letters testamentary were properly issued to the petitioner, and that as such executor he has the right to administer the personal estate. Although in name there is a difference between executor and administrator yet, in fact and in law, they are really the same, for each has control of the personal estate and the distribution thereof. Robins v. McClure, 100 N. Y. 328-340. If the estate had been real, instead of personal, it would have descended directly to Elsie J., as heir at law, but being personal it passed to the personal representative of the deceased for administration, and then for distribution under the statute and the will, so far as it remains in force.

It has been intimated that in no event should this fund be paid ■over to the petitioner, without requiring him to give bonds to account therefor to the infant; but, so far as this question is concerned, it rests upon the'Sound discretion of-the courts below. •.. It does not appear from the record before us that the petitioner is insolvent, or that he is in other respects an improper person to have the care and custody of this fund. True, it is a -large sum, and the courts having the charge thereof should proceed with the utmost caution;' and should it be made to appear that the petitioner is insolvent, or in other respects an improper person to have the care or management of this fund, the surrogate’s court might still, in the exercise of the discretion vested in it, impose, as a condition for granting the order, that proper security be given.

The order appealed from should be affirmed, with costs.

All concur.

Order affirmed.


author: Andrews, Ch. J.

text:
    George W. Stamp, Resp’t, v. Augustus W. Franklin, as Executor, etc., App’lt.

      (Court of Appeals,

      Filed February 5, 1895.)

    1. Former adjudication—Husband and wife.
    An adjudication, in an action in which a wife is a party without her husband, does not bind him in a subsequent action for the same matter, to which he is a party.

      2. Same—Estoppel.
    The fact that the husband was a witness for his wife in the former litigation, in which she failed, creates no equitable estoppel.
    3. Husband and wipe—Contract between them.
    An authority given by the husband that payment for board may be made to his wife does not vest in her a legal title to the claim.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order which denied a motion for a new trial and ordered judgment in favor of plaintiff upon verdict directed by the court.

      William H. Smith, for app’lt; William T. Morris, for resp’t.

       Affirming 58 St. Rep. 608.

   Andrews, Ch. J.

This action was brought to recover for board furnished defendant’s testatrix from November 5, 1884, to January 10,1889, and on the conclusion of the evidence the trial judge-directed a verdict for plaintiff for the sum of $1,145.25, the value of the board at the rate of seventy-five cents a day. The complaint alleged that the plaintiff furnished the board at the request of the testatrix, and that thereafter he assigned the demand therefor to his wife, who re-assigned the same to the plaintiff. The answer contained a general denial of the complaint and also set up a former judgment in an action brought-by Edna M. Stamp,, the wife of the plaintiff, against the defendant, in bar of the action.. On the trial the court permitted the plaintiff to amend the complaint by striking out the allegations of assignment and re- assignment, and thereafter the action stood as an ordinary action to recover a demand for board furnished by him to the defendant’s testatrix. It appears that the plaintiff and his wife, in 1884, at the request of the testatrix, took up their residence in the house of Mrs. Douglass, the testatrix, and old and infirm lady, and thereafter she was furnished with board, and the plaintiff’s wife, during several years and until the death of the testatrix, took care of her, preparing her meals and rendering her such other service as her condition required. The plaintiff paid rent during the time.

The facts in respect to the former judgment are briefly these: In 1889, after the death of the testatrix, Edna M. Stamp, the wife of the plaintiff, brought an action against the executor for the board so furnished and for the services rendered, alleging in her complaint an indebtedness of the testatrix therefor of $8,119, and further alleging that she was a married woman and that by special agreement made between herself and her husband before the rendition of the services and the furnishing of the board, she was given by him her own time and whatever the board of Mrs. Douglass might be worth, and that she was thereby entitled to the claim therefor in her own right. The executor put in an answer denying the complaint. On the trial of the wife’s action, the plaintiff in this action (the husband) was a witness in her behalf to establish her claim. The wife recovered in her action, and was awarded by the referee the sum of $2,631.05, which included the sum of $1,445.25, for the board of Mrs. Douglass between the dates mentioned. On appeal, the general term modified the judgment by striking out the award for board, leaving the judgment to stand for the balance, and both parties acquiesced in the modification, and the judgment, as modified, was paid by the executor. The general term, in disallowing the claim for board, proceeded on the ground that presumptively it was furnished by the husband, and that there was no satisfactory evidence that the claim therefor belonged to the wife. Under these circumstances, it is plain that the prior judgment was no bar to the maintenance of this action. The plaintiff was not a party to the former action, and moreover the judgment, as finally rendered therein, was consistent with the claim in this action that the claim for board was a demand existing in favor of the husband. The judgment did not pass against the wife upon the ground that there was no indebtedness for board, but on the ground that the wife had not shown that the claim was enforcible in her favor. Even if the wife had been defeated in her action on the merits, the adjudication would not bind the husband, or bar his subsequent action to recover the claim in his own right, as the original creditor. Husband and wife are for most purposes distinct persons at law, and an adjudication in an action to which a wife is a party alone, without her husband, neither binds him in a subsequent action, to which he is a party, nor can he avail himself of the benefit of the adjudication on the ground merely that he was the husband. If, in respect to the subject-matter of the wife’s action, there was a privity between the husband and wife, he would be bound under the circumstances as a former judgment binds other persons, and not otherwise. Privity implies a relationship by succession or representation between the party to the second action and the party to the prior action in respect to the right adjudicated in the first action. When this exists the party in the second action is barred by an adjudication upon the right made in the first action. (Bigelow on Estoppel, 142 et ■seq.) There may be cases not coming within the strict rule of estoppel by judgment, where a person not a party will be bound. The husband was a witness for the wife in her action and by his testimony sought to establish her claim to the ownership of the demand for board. If the wife had finally prevailed upon this contention and recovered judgment for the board bill, there would be strong reason for holding him estopped in equity from subsequently asserting an independent right to recover the same demand, in repudiation of his own act and conduct in a former suit. It would be not only an imposition upon the court, but a detriment to the defendant if he could be permitted subsequently to recover again the same demand which he had aided his wife to establish in the first action. But in the former litigation the plaintiff failed, and the fact that the husband was a witness for his wife in that suit could create no equitable estoppel, because there was no injury. The mere fact that a person was a witness in a former litigation, does not bind him by the result of that litigation, nor does it in law conclude him from changing his testimony or making even an inconsistent claim in a subsequent action to which he is a party, and much less does it conclude him where the subsequent action is inconsistent with the judgment in the former one. (See Bigelow on Estoppel, 135, and cases cited in note.) We think the defense of a former adjudication was not sustained. The judge on the conclusion of the evidence directed a verdict for the plaintiff. Bach party asked a direction in his favor, and the motion on-the part of the defendant having been denied, he asked to go to the jury upon the questions whether the plaintiff was the owner of the claim for board, and whether he had not by agreement with his wife consented that the claim for board should belong to her. The defendant on the former trial defeated a recovery by the wife for the board bill, on the ground that presumptively the demand belonged to the husband. In the present action he seeks to defeat a recovery by the husband on the ground that it belonged to the wife. The defendant did not plead that the plaintiff was not the real party in interest, nor that the claim belonged to the wife. Savage v. Corn Ex. Co., 4 Bosw. 1; affd., 36 N. Y. 655 ; Smith v. Hall, 67 id. 48. But, moreover, we think there was not sufficient evidence to have justified the jury, if- the question had been submitted to them, in finding the claim belonged to the wife and not to the husband. There can be no reasonable doubt that the husband furnished the board. The most, we think, which the evidence tends to establish is that the husband authorized payment therefor to be made to the wife. This did not vest in her the legal title to the claim, .assuming that under the statute of 1860 an agreement by the husband that the title to the board money should vest in her would be valid. See Coleman v. Burr, 93 N. Y. 31.

There was no legal error committed on the trial and the judgment should, therefore, be affirmed.

All concur, except Haight,. J., not sitting. Judgment affirmed.


author: Per Curiam.

text:
    The People ex rel. David L. Follett and Alton B. Parker, Resp’t, v. Ashbel P. Fitch, as Comptroller of the City of New York, App’lt.

      (New York Superior Court, General Term,

      Filed February 12, 1895.)

    Judges—Increase of salary.
    Section 1109 of the Consolidation Act, as amended in 1893, does not violate the provisions of the State Constitution, forbidding an increase of salary to certain judicial officers.
    Appeal from order granting a writ of mandamus.

      William H. Clark, Attorney for app’lt; Root & Clarke, Attorneys for Relators and Resp’ts.
   Per Curiam.

The legislative enactments relied upon by the relators do not offend the provisions of the state constitution forbidding an increase of salary to certain judicial officers. (Consol. Act. 1882, sec. 1109, as amended by L. 1893, chap. 104 ; Const., art. 6, sec. 12.) The compensation allowed by these legislative acts is by express language limited to “expenses and disbursments” incurred by such officers while acting in the district to which they have been transferred: and they were in force when the present constitution became operative.

The order appealed from was properly made, and must be affirmed, with costs.

Concurred in by Sedgwick, C. J., McAdam & Beekman, J. J.


author: Gaynor, J.

text:
    Thomas J. McCahill et al., Pl’ffs., v. Annie L. McCahill et al., Def’ts.

      (Supreme Court, Westchester Special Term,

      Filed February, 1895)

    Trusts—Creation .
    A father, having a contract of purchase of real estate, concluded, because of his bad health, to have it conveyed directly to his wife for the use of herself and their two infant children during her life, and to go to the children upon her death. She orally acquiesced in such intention. The conveyance, however, was made to her absolutely, and she after-wards claimed to be absolute owner. Held, that the children could maintain an action against her to establish, a trust in their favor, and establish their interest.

      W. F. Fiero and H. Dykman for app’lts; M. J. Keough for def’ts.
   Gaynor, J.

The defendants are husband and wife, and the parents of the two plaintiffs, who are minors, and the only children of the defendants. The husband and father had a contract of purchase of the real estate in question in 1881. His health becoming bad, and his tenure of life endangered, he decided not to take the conveyance to himself, but to have the property conveyed directly to his wife for the use of herself and the two children as a home during her life, and to go to the children upon her death. He communicated his intention to his wife, and she orally acquiesced in and accepted it. The children were then only six and four years old respectively. The mother in thus agreeing to take a conveyance of the property for them must in law be deemed as representing and acting for them, and as the transaction was to be beneficial to them, their acceptance of it, and of the trust relation she assumed, must in view of their infancy, be conclusively presumed. Spencer v. Carr, 45 N. Y., 406. The property was thereafter conveyed directly to the wife by the owner with whom the husband had the contract. The interest of the children was not expressed in the deed of conveyance, it being in form absolutely to the wife.

Before the conveyance the husband spent $7,000, and after it. $20,000, in improving the property. Thereafter the wife abandoned the husband and children, leaving them in posession of the property in question, which had been made upon its purchase the family home, and continued as such. This action was brought by the children to have their rights and interests, and the rights and interests of the mother in the property declared, the immediate provocation for it being her attempt to sell and convey it as absolute owner. I see no reason why the plaintiffs may not prevail. The statute rule 1 R S., p. 728 §§ 51,52, that where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust-shall result in favor of the person by whom such payment shall be made, but that the title shall vest in the person named as alienee, subject only to the rights of the creditors of the person so paying the money, has no application to the facts of this case. The purpose of this enactment was to abrogate the common law rule, which was the reverse, and afforded a way for a debtor to practice fraud against his creditors by having real estate paid for by him conveyed directly by the seller to another instead of to himself to be held for him upon a secret trust. The enactment was levelled at such frauds, and intended to prevent them in future, and the courts have not extended it beyond such cases. Siemon v. Austin, 33 Barb., 9; Siemon v. Schurck, 29 N. Y., 598; Foote v. Bryant, 47 N. Y., 544; Gilbert v. Gilbert, 2 Abb. Ct. App. Dec., 256; Reitz v. Reitz, 80 N. Y., 538. Mr. Perry in his work on Trusts accurately states the result of the cases in this state as follows (§142): “The statute of New York has been strictly construed, and therefore if A. makes a purchase, and pays the money, and takes the title in the name of B., upon a paroi trust for C., it is not within the statute; and C. may enforce the trust as against B.” The statute has been understood and interpreted from the begin - ing as .applicable only to the person creating the inhibited trust in his own favor, and as not inhibiting the making of such a trust’ for another (Lalor, p. 161).. Indeed, the statute itself plainly, and' in so many words, inhibits such a trust “in favor of the person by whom such payment shall be made”, only. To this extent only does it go. It prevents resulting trusts in the one case mentioned, namely, in favor of a person who pays for real property but has the title conveyed to another. It does not affect other resulting trusts or implied trusts at all. The revisers in their notes leave no room to question this, for they say: “as to implied trusts, they cannot be abolished, as their existence is necessary to the prevention of fraud. An important change is however proposed, in preventing a secret, resulting trust from being created by the act' of the party claiming its benefit.”

Common law rules must govern the case, except as modified by the statute. If the one who actually pays the money causes the property to be conveyed to another for the benefit of or upon a trust not for himself but for a third person, the case specified in the statute does not arise at all. But if we were to consider the payment as made by the children, they would not be bound by the absolute character of the conveyance, for it must be deemed as taken in that form without their consent or knowledge, they being infants; and the next section of the statute (§ 53) modifies the provision against secret trusts which we have been considering, by providing that it shall not extend to cases “ where the alienee named in the conveyance shall have taken the same as an absolute conveyance in his own name without the consent or knowledge of the person paying the consideration." The consent and knowledge of their father in that respect was not theirs. Gilbert v. Gilbert, supra.

The principles governing this case are plainly perceived when it is brought to mind that the mother had assumed a trust relation toward the children, and that the solution and disposition of this case lies in that relation, and not in the relation between the father and the children. Having assented to the taking of a conveyance of the property for the children, the relation to them which she thus took upon herself required that she should not take and continue to hold an absolute conveyance to herself; and that she has done so, either intentionally or by mistake, does not baffle equity, but makes for it a plain case.

Nor does the statute of frauds stand in the way of the plaintiffs. It seems to be sufficient that it is not pleaded. Crane v. Powell, 139 N. Y. 379; 54 St. Rep. 659. But that statute only covers cases of contracts; and moreover it is provided therein that it shall not be construed “ to prevent any trust from arising or being extinguished by implication or operation of law” (§ 7). It does not cover the cases where equity has always implied a trust from the proved relation and acts of the parties, often accompanied by their oral declarations and agreements as material facts, in order-to prevent frauds. The trust in such cases, though proved by oral testimony, does not rest upon oral agreements, but upon the relation of the parties and their acts. Perry, §§ 134, 137; Foote v. Bryant, 47 N. Y. 550. This case cannot be distinguished in principle from the ordinary case of an agent purchasing land with funds of his principal, or of one standing in a fiduciary relation using trust funds for the same purpose, and taking the title to himself, Perry, § 127; Day v. Roth, 18 N. Y. 448; Haak v. Weicken, 118 N. Y. 74; 27 St. Rep. 875, while, for instance, it is distinguishable from the case of an agent purchasing land in his own name and paying for it with his own money, though he had orally agreed to buy it for his principal; for the trust in such a case rests upon the agreement of agency, and it cannot be proved by reason of the statute of frauds, it not being in writing. Levy v. Brush, 45 N. Y. 589; Perry, § 135. Such cases make clear the distinction between establishing a trust by a paroi agreement, and declaring a trust to exist by implication of law from the acts and relation of the parties in order to prevent fraud. Here the father paid his -own money, it is true, but he invested it for the children, and it is the same in the consideration .of equity as though he had first made a gift of it to them.

Judgment for plaintiffs.


author: Dykman, J.

text:
    John W. Macy, as Trustee, etc., App’lt, v. David T. Williams et al., as Executors, etc., Resp’ts. (Two cases).

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Trust—Creation.
    The fact that a deposit in bank was made in trust for another is not conclusive as to the creation of a trust, but the surrounding circumstances may be shown as bearing upon the intent.
    Appeal from a judgment dismissing the complaint.

      Charles N. Judson, for app’lt; Woodward & Buckley, for resp’ts.
   Dykman, J.

These are appeals from the judgments entered in the above-entitled actions upon the report of a referee dismissing the complaint of the plaintiff in each case, with costs, and also from three orders granting an extra allowance to the defendants. The complaint in each case alleges that the testator of the defendant Benjamin L. Guion had in his possession large sums of money, upward of $10,000 in the M. A. Guion Case, and upward of $10,000 in the Hildrick Case ; that Guion died, leaving such trust incomplete and unperformed; that the plaintiff had been appointed trustee in the place and stead of B. L. Guion by order of the supreme court,—and prayed that the defendants, as executors of Guion, account for the trust funds held by him during his lifetime, and pay the same to the plaintiff: The answer in both cases-contains a general denial, and alleges payment of all moneys and property in Guion’s hands as a part of the alleged trust, and also that the plaintiff is not the real party in interest. The answer also sets up the six-years statute of limitations in both cases and the ten-years statute in the M. A. Guion Case. On the trial in the M. A. Guion Case it was proved by the plaintiff that B. L. Guión opened an account in the Manhattan Savings Institution bn the 5th day of June, 1867, in form B. L. Guion for M. A. Guion, and made various deposits therein, amounting in all, with interest, to $9,395.27, that Guión drew out of said account all of said nioneysin different amounts on different days; and the plaintiff claims the whole amount of the account, with interest on the amount of each draft from the date thereof. The plaintiff further proved that B. L. Guion opened an account in the East River Savings Institution on the 4th day of January, 1870, in form B. L. Guion in trust for M. A. Guion, and made various deposits therein; that such account was closed on the 2d day of April, 1877, and the balance of the account, amounting to $19.29, was transferred to a new account opened by B. L. Guion on that day in the same bank, in form B. B. Guion in trust for M. A. Guion ; that Guion drew out of those foregoing accounts the sum of $23,111.78 in different accounts on different days; and the plain tiff claims the whole of those amounts, with interest.. The plaintiff further proved that B. L. Guion opened an account in the Dry Dock Savings Institution on the 3d day of April, 1877, in form B. L. Guion in trust for M. A. Guion, and made various deposits therein; that Guion drew out from that account the sum. of $6,056.01 in different amounts, on different days.; and. plaintiff claims the whole of those amounts.. Oh the 16th day of July, 1883, B. L. Guion opened an account in the New York Bank, in the form of B. L. Guion in trust for M. A. Guion, and made deposits therein to the amount of $2,597.04, no part of which was withdrawn by him. The plaintiff further proved that Guion had collected dividends on stocks which he held in trust for M. A. Guion amounting to $9,112.50, which plaintiff claims, with interest. The plaintiff further proved that B, B, Guion had received a check from Williams and Guion for $2,502.91, drawn to the order of M. A. Guion, but did not claim to recover this amount. The whole dmount of the claim of the plaintiff in that action is upward of $100,000. After the death of B. B. Guión, the East River, Dry Dock, and New York Bank books were found in Mr, Guion’s safe, and were delivered to or taken possession of by M. A. Guion, and the amounts remaining undrawn at Guion’s death were after-wards drawn out by her, namely, $1,972.48 from the East Eiver Bank, $797.59 from the Dry Dock Bank, and $2,597 from the Mew York Bank, making in all, $5,367.21. The plaintiff’s proof on the trial in the A. E. Hildrick Case was that B. L. Guion opened an account in the Dry Dock Savings Institution on the 3d day of July, 1879, in form B. L. Guion in trust for A. E. Hildrick, and made various deposits therein; that Guión drew out of that account the sum of $1,045 in different amounts on different days, and the plaintiff claims to recover the whole of that amount. The plaintiff further proved that B. L. Guion opened an account in the East River Savings Institution on the 22d day of December, 1879, in form B. L. Guion in trust for A. E. Hildrick, and made various deposits therein, and Guion drew out of that account the sum of $1,850 in different amounts on different days, which the plaintiff claims to recover. On the 4th day of January, 1886, Guion opened an account in the New York Bank, in form B. L. Guion in trust for A. E. Hildrick, and deposited therein $500, no part of which was withdrawn by him. After Mr. Guion’s death, these three books were found in Mr. Guion’s safe, and were delivered to or taken possession of by Mrs. J. B. Hildrick, the mother of A. E. Hildrick ; and the amounts remaining and not drawn out at Guion’s death were afterwards drawn out by A. E. Hildrick, $174.44 from the East River Bank, $597.50 from the New York Bank, $387.04 from the Dry Dock Bank,—in all, $1,158.98. The plaintiff produced no evidence of any declaration of trust respecting any of the savings bank books, other than the form of the bank books themselves. There is nothing to indicate Mr. Guion’s intention in opening the accounts in the way he did, and the plaintiff’s only evidence of the existence of the trust is the bank books, in form “ in trust.” Neither M. A. Guion nor A. E. Hildrick knew of these bank accounts until after Guion's death, and the books had not been delivered to them or to any one else, but had always remained in Guion’s possession. All the money deposited in the savings bank belonged to M. A. Guion.

In the case of Martin v. Funk, 75 N. Y. 134, it was decided by the court of appeals that such a deposit, unexplained, constituted a trust; but in the same case it was said :

“ It is not necessary to decide that surrounding circumstances may not be shown to vary or explain the apparent character of the acts, and the intent with which they were done.”

In the subsequent case of Mabie v. Bailey, 95 N. Y. 206, Judge Andrews says, in delivering the opinion of the court of appeals:

“ The court in Martin v. Funk left undecided the point whether, in respect to such a transaction, surrounding circumstances may not be shown to vary or explain the apparent character of the acts, and the intent with which they were done. If it was now necessary to decide that point, I should incline to the opinion that the character of such a transaction, as creating a trust, is not conclusively established by the mere fact of the deposit, so as to preclude evidence of contemporaneous facts and circumstances constituting the res gestee, to show that the real motive of the depositor was not to create a trust, but to accomplish some independent and different purpose, Inconsistent with the intention to divest himself of the beneficial.ownership of the fund.”

While, therefore, the opening of the account by Guion in the different banks in the names he did constitutes a trust without explanation, it becomes necessary to ascertain whether the facts and circumstances surrounding the transaction disclose a motive on the part of Guion to create a trust in favor of the several persons named in the bank books as beneficiaries, or whether his real motive was to accomplish an independent and different purpose, inconsistent with the intention to divest himself of the ownership of the property. A preliminary statement of certain facts and circumstances will conduce to a better understanding of the situation: B. L. Guion died in March, 1887, leaving a last will and testament, and the defendants in these actions qualified as executors thereof. In June, 1887, the executors opened the safe of Guion in the Stuyvesant Safe Deposit Company, and, among other property found there, there were eighteen savings-bank books,—one in the name of B. L. Guion personally ; two, Mrs. J. D. Hildrick; four, Mrs. J. D. Hildrick, in form “ in trust for her two children, Alfred E. and Elenor Hildrick ”; two, B. L. Guion, in form in trust for M. A. Guion ; three, B. L. Guion, in form in trust for A. E. Hildrick; three, B. L. Guion, in form in trust for E. Hildrick; one, B. L. Guion, in form in trust for H. Hunt; one, B. L. Guion, in form in trust for Mary G. Hunt; one, B. L. Guion, in form in trust for Isaac M. Hunt. Mrs. Guion took possession of the two books in form in trust for herself, Mrs. Hildrick .took possession of the twelve books in her own name individually, or in form in trust for her children, and Isaac M. Hunt took the books in form in trust for himself and Mary G. Hunt and H. Hunt, who were his sisters. Benjamin L. Guion, the defendant’s testator, died in March, 1887, at the age of 82 years. For upward of 20 years before his death he had not been engaged in business other than investing and taking care of his money, and stock speculations. He lived on the income of his money without any business. He deposited his money in savings banks, in almost all cases- in form in trust for other persons related to him by blood or marriage. At least 27 of the accounts opened by Guion in form in trust were so opened by Guion without the knowledge or consent of the persons whose name Guion used, and the moneys belonged to Guion in each case. He treated the accounts absolutely as. his own, withdrawing funds from each account, and making new deposits therein from time to time, and in most cases closing the accounts. The persons whose names Guion used never saw or heard of the accounts until after his death, and some of them not until the books were offered in evidence on the trial. The total amount of deposits made by Guion, with interest, amounts to $80,000 in the accounts in form in trust, and only $26,000 in his personal account. B. L. Guion opened three accounts in the Dry Dock Bank about the year 1860 or 1861—one in form B. L. Guion in trust for Mary G. Hunt, one in form B. L. Guion in trust for-Harriet H. Hunt, and one in form B. L. Guion in trust for. Annie. Guion. At the time he opened these accounts he delivered the bank books to the beneficiaries, and at the same time stated to them that he had opened the account for them ; that he had made a deposit for them ; that he did not need the money himself, the money having come from his mother’s estate ; and he never after-wards made” deposits in or drafts from said accounts. B. L. Guion, on the 23d day of May, 1872, opened an account in' the Seamen’s Bank, in form B. L. Guion in trust for B. G. Williams, .and delivered the book to him, and never thereafter exercised any control over the account These acts are very significant. They show the line of conduct adopted by Guion when he intended to create a trust. He-did not retain the bank books in his possession, but delivered them to the beneficiaries, and informed them that the account was open for them. He neither deposited in that account thereafter nor drew any money therefrom. In all the other accounts he continued his deposits and withdrawals, closed up many of the accounts, and surrendered the bank books to the banks, without communicating with any of the persons whose names he used. He treated the money and the books as his own. It is inconceivable that Guion intended to divest himself of the beneficial ownership of his property, as he’ was dependent upon his income for the support of himself and his wife, and was not in business for upward of 20 years before his death. To hold that his intention was to create trusts by the deposits in the savings banks is to hold that he deliberately not only stripped himself of all means of support, but also rendered himself liable for much more money than he ever had. Yet Guion is conceded by all to have been a man of sound business and financial ability, good sense, high moral character, and unquestioned integrity. The memorandum found in Guion’s safe after his death, to the effect that the bank books belonged to those in whose names they stood, falls far short of repelling the natural inference to be drawn from all the other facts and circumstances in the case. In the case of Beaver v. Beaver, 117 N. Y., at page 430, 27 St. Rep. 405, Judge Andrews, in delivering the opinion of the court of appeals, said this:

“We cannot close our eyes to the well-known practice of persons depositing in savings banks to the credit of real or fictitious persons. It is attributable to various reasons connected with taxation, rules of the bank limiting the amount which any one individual may keep on deposit, the desire to obtain higher rates of interest where there is discrimination based on the amount of deposits, and the desire on the part of many persons to veil or conceal from others knowledge of their pecuniary condition. In most cases where a deposit of this character is made as a gift there are contemporaneous facts or subsequent declarations by which the intention can be established independent of the form of the deposit. We are inclined to think that to infer a gift from the form of the deposit alone would'in the great majority of cases, especially where the deposit was of any considerable amount, impute an intention which never existed, and defeat the real purpose of the depositor.’’

The foregoing remarks are peculiarly applicable to this case, and in our view the facts and circumstances disclosed repel the presumption of any intention to create a trust. We think the referee reached a correct conclusion, and the judgments in both cases should be affirmed, with costs.

The three orders for additional allowance should0 be affirmed, with $10 costs in one case only, besides disbursements.

All concur.


text:
    In the Matter of the Proceeding to Lay out a Highway at Tappan, in the Town of Orangetown, Rockland County.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Highways—Commissioners’ report—Confirmation.
    An order of the county judge laying out a highway will be confirmed, where there is no regularity in the proceedings and the record satiffies the , general term that the highway is necessary and the damages awarded to ' the contestants are sufficient.
    Motion for a confirmation of an order laying out a highway.

      A. & A. X. Fallon (Frank Comisky, of counsel), for petitioners ; F. H. Ernst, for German Masonic Ass’n.
   Dykman, J.

This is an application under § 90, chap. 568, of the Laws of 1890, for an order confirming an order of the county court of Rockland county to lay out a highway at Tappan, in the town of Orangetown, in that county. On the 6th day óf June, 1893, the petitioners applied to the commissioners of highways of the town of Orangetown to lay out the highway mentioned in the petition set out in'the record before us. Before 30 days thereafter, the petitioners, by duly-verified petition, applied to the county court for an order appointing three commissioners to determine upon the necessity of such highway, and, in case they found such highway necessary, to assess the damages by reason of the laying out thereof. The county court appointed the commissioners, who made.and took the oath of office required by law. Due notice was. given of the time and place of meeting. The commission was attended by the parties interested and by the commissioners of highways of the town of Orangetown. They personally examined the highway proposed to be laid out, and they were attended by representatives of the German Masonic Home, the respondents in this proceeding, who appeared personally and by counsel,' and took testimony, and reduced the same to writing, on the question of damages. The commissioners then reported to the court that the highway should be laid out, but the county court declined to confirm the report, holding that, under the strict construction of the statute, the commissioners should first certify that the highway was necessary. The county judge therefore sent the matter back for a further hearing before the same commissioners, who appointed a time and place of hearing, and both questions, that of necessity of the highway and damages to the German Masonic Temple Association, were fully litigated. The commissioners then made a unanimous report to the court, finding that the highway was necessary, and fixing the damages to the German Masonic Temple Association. The commissioners of highways of the town of Orangetown certified to the ■county court that, in their opinion, the highway was necessary. On such certificate and proofs, the county judge made an order bearing date April 30, 1894, laying out such highway. That order is, under the section above quoted, now presented to this court for confirmation. There is no irregularity in the proceedings, and our examination of the records satisfies us that the public highway in question was necessary, and that the damages awarded to the contestants were sufficient. More than three-fourths of the property through which the proposed road will pass has either been dedicated to the town for such purposes, or the owners waive their claims for damages, and consent to its construction. It is already constructed by private subscription for three-fourths of its entire length. The road, as laid out, avoids two dangerous railroad crossings at grade, which in all cases is very desirable.

The order applied for should be granted.

All concur.


text:
    Nicholas Powers, Resp’t, v. Prudential Insurance Company of America, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Insurance- Life -Forfeiture—Waiver.
    Payment of premiums, as a matter of law, will constitute a waiver of a forfeiture and a revival of the policy, if received as premiums on the policy, but not, if received only as an application to revive the policy.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Magner & Hughes (Thomas F. Magner, of counsel), for app’lt; Edward V. Dooley (Chas. J. Patterson, of counsel), for resp’t.
   Dykman, J.

This action was brought upon a policy of insurance upon the life of the plaintiff’s intestate, Sarah Powers, deceased. The defense interposed was that the policy had lapsed and become null and void by reason of the nonpayment of the premiums thereon. The cause was tried at the circuit before a jury, and the plaintiff recovered a verdict The defendant has appealed from the judgment entered upon the verdict, and from the order denying the motion for a new trial upon the minutes of the court The rendition of the verdict is sufficient to justify the assumption by this court that the jury found the facts involved in favor of the plaintiff. Inasmuch, therefore, as the evidence presented to the jury fully justified the inference that the forfeiture of the policy had been waived by the company, we discover no reason for interference with the judgment Upon the question of the forfeiture the trial judge charged the jury that, if the company received the payment of the premiums which were in arrears as premiums upon the policy, such payment, as a matter of law, would constitute a waiver of the forfeiture and a revival of the policy; but, if such payment was only received as an application to revive the policy, then it was not revived. The trial judge further charged the jury that, “ in determining the authority of agents, their instructions were not necessarily controlling; that if you instruct your agent to-do one thing, or to exercise only a limited authority, and then knowingly and habitually suffer him to exercise greater authority, you are bound by the authority you allow him to exercise, your instructions to the contrary notwithstanding.” Those instructions contained a fair exposition, of the law, and as the verdict rendered by the jury was supported by evidence, we detect no reason for interference.

The judgment and order denying the motion for a new trial. should be affirmed, with costs.

All concur.


author: Brown, P. J.

text:
    John E. Norcross, as Receiver, etc., Resp’t, v. Henry S. Hollinsworth, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    1. Supplementary proceedings—Receiver.
    A receiver, in supplementary proceedings, of a sheriff cannot maintain an action upon the bond of his undersheriff, where the sheriff has not made good the undersheriff’s default.
    2. Same.
    Such receiver takes no title to property acquired, after his appointment, by the judgment debtor.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.

      Fernando Solinger, for app’lt; M. L. Towns, for resp’t.
   Brown, P. J.

The plaintiff was appointed receiver of the property and effects of Lewis R. Stegman by an order of a judge of the city court of Brooklyn, dated April 15, 1884. At that date Stegman was sheriff of Kings county. Francis S. Hodgkinson had been duly appointed undersheriff by Stegman, and on the 5th day of. January, 1882, the defendant and Hodgkinson executed- and delivered to Stegman a bond in the penalty of $10,000, conditioned for the faithful discharge by Hodgkinson of the-duties of undersheriff, and the payment and discharge by him of all liabilities incurred by said Stegman by and through any act of said Hodgkinson as such undersheriff. Subsequent to the appointment of the plaintiff as receiver, a judgment of foreclosure and'sale was executed by Hodgkinson. The judgment directed the sale of certain real estate in Kings county by the sheriff, and that after the payment of the amount due upon the mortgage, together with certain taxes and assessments and costs, he should deposit the surplus with the treasurer of Kings "county within five-days after receiving the same. Hodgkinson received the money on the sale of the real estate in June, 1885, and, after making the payments directed by the judgment, there remained a surplus of about $3,000, which, after demand, he failed to deposit with the county treasurer or pay over to the sheriff. This action was brought upon the bond given by Hodgkinson and the defendant to the sheriff, and the claim is for the surplus arising ffom the foreclosure sale.

At the close of the evidence the defendant moved to dismiss the complaint upon the grounds, among others, that the plaintiff had no title to the cause of action. This objection, we think, was well taken, and is fatal to the judgment. There is no allegation in the complaint that the sheriff had paid the surplus to. the county treasurer, nor was there any .proof of that fact. Hodgkinson was bound to pay over the money to the sheriff upon his demand, but the sheriff's right to receive the money was an official right, and not one that belonged to him as an individual. He had not been compelled to pay over the surplus money ; hence he had suffered no actual damage by reason of Hodgkinson’s defalcation, butsuch liability flowed from their official relations. It'follows that the money sought to be recovered in this action was not Stegman’s property. While he had a right to receive it, his receipt of it would be as sheriff, and he would have been bound, immediately upon its receipt, to have deposited it with the county treasurer as directed by the foreclosure judgment The plaintiff represents Stegman’s; creditors, and he has title to such property as Stegman possessed individually at the date of the appointment. He had no title and no right to receive trust funds which Stegman was entitled to receive as sheriff. But if it could be shown that Stegman had made good Hodgkinson’s default, and had a right of action upon the bond in suit for damages sustained, which would belong to him individually, and would be applicable to the payment of his debts, the plaintiff could not recover upon the evidence now before us. The judgment of foreclosure under which the sale was made bj Hodgkinson was granted nearly three months after plaintiff was appointed receiver, and the cause of- action arising from the failure to comply with its direction as to the surplus money did not arise until June, 1885. The receiver took title to such property as Stegman possessed or was entitled to at the date of the order appointing him. He takes no title to after-acquired property, and cannot, therefore, claim or enforce any rights which became vested in the-debtor subsequent to the order appointing him receiver Dubois v. Cassidy, 75 N. Y. 298; Campbell v. Genet, 2 Hilt. 290; Thorn v. Fellows, 5 Week. Dig. 473; Masten v. Amerman, 51 Hun, 244; 21 St. Rep. 222; Columbian Inst. v. Cregan, 11 Civ. Proc. Rep. 87; 3 St. Rep. 287. The claim asserted in this suit was property Stegman acquired after plaintiff’s appointment, and which consequently never vested in him as receiver. For this reason the motion to-dismiss should have been granted.

The j udgment must be reversed and a new trial granted, costs to abide the event.

All concur.


text:
    Mortimer S. Brown, App’lt, v. James H. Symes, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Accord and satisfaction—Part payment.
    The acceptance of a check for part of the amount, which was sent in “full settlement ” of a disputed claim, and the collection and retention of the money, constitute an accord and satisfaction of such claim;
    Appeal from a judgment, dismissing the complaint.

      Theodore B. Gates, for app’lt; Smith & White (Albridge C. Smith, of counsel), for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon .a. dismissal of the complaint upon the trial at the circuit. It appeared from the testimony introduced by the plaintiff upon the trial that, the, plaintiff made a claim against the defendant.for $110, for. money loaned. The claim was disputed by .the defendant, who insisted that he had paid the loan, Finally the defendant wrote a letter to the plaintiff, in which hé'sáid," among other .things ;

“ I do not concede, however, that this claim,is a just one ; but rather than devote my time, which I-cannot, spare at' present, to tracing up the proofs, I have decided to send, you inclosed check for .$110, and will, expect in return a receipt in full;"

The check reads as follows:

“ Guttenberg, Hudson, Co., July 6, 1893.
“First National Bank of Hoboken, New. Jersey : Pay. to ■order of M. S. Brown, as full settlement of claim against me, one hundred and ten %„ dollars.
“$110. James H. Symes.”

The plaintiff retained the check, collected the. money upon it and then brought this suit

The acceptance of the check under the circumstances stated, and the collection and retention of the money, constituted an accord .and satisfaction of the plaintiff’s claim. Fuller v. Kemp, 138 N. ■Y. 231; 52 St Rep. 342. As the judgment must be affirmed upon the ground stated, we do not examine the other questions presented by the appellant The judgment should be affirmed with costs.

All concur.


text:
    In the Matter of the Proceeding by the Seaside and Brooklyn Bridge Elevated Railway Company, Resp’t, to Acquire Title to Lands. South Reformed Dutch Church, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)
    Damages—Elevated railway.
    A church, in front of which an elevated railroad is constructed, cannot recover damages for noise made in its operation.
    Appeal from an order confirming an award.

      Robert H. McGrath (John D. Pray, of counsel), for app’lt; Wingate, Cullen & Miller (Geo. W. Wingate, of counsel), for resp’t.
   Dykman, J.

This is an appeal from an order confirming an award of commissioners to appraise the compensation to be paid to the South Beformed Dutch. Church for the property and easements taken therefrom. The commissioners awarded the sum of $1,500 as the compensation which ought justly to be made to the church for the privileges, easements, and property in Third avenue in front of and adjacent to the property of the church, or which are appurtenant thereto, which will be taken and affected by the construction and operation of the elevated railroad in Third avenue. In making such award the commissioners recognized the right of the church in Third avenue to the center thereof, but made no allowance on account of the noise produced by the operation of the elevated railroad. The church raises serious objections to the award on account of its size, but it is by no means so palpably insufficient as to justify our interference upon that ground. The reluctance of appellate courts to interfere with the awards of commissioners upon mere questions of damage has been so often stated, and the reasons for such hesitation, have been so fully explained, that a repetition of them has ceased to be profitable or necessary. Our views are expressed in Re Staten Island R. T. Co., 47 Hun, 396; 14 St. Rep. 924. The commissioners have violated no legal principle in making their award, unless their failure to make an allowance for the noise was erroneous, and we must therefore proceed to the examination of that question.

It is unquestionably true that the noise and confusion produced by the passing trains on the elevated railroad interfere seriously with the preaching and other religious services in the church, but the difficulty seems to be radical and without remedy. Noise is incident to all public streets, and is not a diversion of them from the purposes for which they are opened. This church had an easement in Third avenue of light, air, and access, but had no easement for quietude. Such an easement would be inconsistent with the rights of the public in the street The constitutional right to compensation extends only to property or proprietary rights taken for public use, and does not include compensation for disturbance by noise or annoyance of any kind which is incidental to the construction and operation of the railroad. A property owner is entitled to pay for what is taken from him, and to remuneration for incidental damages. In re New York El. R. Co., 36 Hun, 434, and cases there cited. The measure of the right is this : Compensation for the property actually taken, and for the reduction in value of the residue bv reason of such appropriation. Henderson v. Railroad Co., 78 N. Y. 423. Depreciation of the property by the construction of the road is to be included, of course, but not the disturbance from noise. Briesen v. Railroad Co., 31 Hun, 112; Railroad Co. v. Dayton, 10 Abb. Pr. (N. S.) 183; In re New York El. R. Co., supra. The case of In re Utica, G. & S. Y. R. Go., 56 Barb. 456, which laid down a rule somewhat different from the current authorities, is now disapproved. In re New York El. R, Co., supra. This view of the rule of damages gives cogency to-the conclusion we reached in the examination of the question upon principle. It has been said that the elevated railroad companies are liable for the noise of their trains in actions for the recovery of damages only, upon the ground that they are trespassers,, and responsible for all the injuries resulting from their wrongful act. That rule, however, has no application in condemnation proceedings, where no wrong is involved, and the sole inquiry has respect to the compensation to be awarded to an owner w hose-property is to be rightfully appropriated under the right of eminent domain. Bischoff v. Railroad Co., 138 N. Y. 262 ; 52 St.. Rep. 374; American Bank-Note Co. v. New York El. R. Co., 129 N. Y. 258; 41 St. Rep. 531. The rule is well stated by Judge Andrews in the opinion in Bischoff's Case, as follows:

“ The principles governing the award of damages in cases like this have come to be quite.well understood. The property,rights of an abutting owner consist of easements of light, air and access. There are no easements of privacy or quiet, or other easements than those mentioned, for which compensation can be claimed. In ascertaining past damages,, the question of noise may enter as an element into the award, but not in ascertaining the compensation to be paid for the future appropriation of the street for railroad uses.”

It is contended by the appellant that this case is beyond the control of these authorities, because the title of the church extends to the center of the avenue; but we have found no authority for any such distinction. It has been steadily held since the decision of the Story Case, 90 N. Y. 122, that an abutting owner, by reason of his location, has an easement for the purposes of air, light, and access from such street, and that such rights are “property,” within the meaning of the constitution. Such rights are independent of any ownership in the streets, and they exist to the same extent whether the title of the owner extends to the center or the side of the street. The abutting owner whose title terminates at the side of a street, has a right to the use and enjoyment of all the light and air supplied by the street, and the owner whose title extends to the center can have no more, because there is no more to be had. Both sorts of owners are entitled to all the air and light which comes to their premises over the street, and neither can receive any more from that quarter. Neither is there any difference between the two kinds of owners in respect to their rights of access. The abutting owner is entitled to the use of the street, where his title extends only to-the side of the street, in as full and ample a manner as he would have if he owned the middle. The right of access and the right to light and air from public streets and thoroughfares are rights which pertain to real property, and they can neither be enlarged nor diminished by any legal rights in the soil of the streets, nor by the want of such rights. Light and air come from the heavens above, and they are both free. There can be no property rights in either, except in connection with real property, and such rights are independent of any rights in the land over which they are received. Riparian proprietors on the banks of navigable waters have a right of access to the water, and yet they have no ownership in the land under water.

In our view, the order should be affirmed, with $10 costs and disbursements. All concur.