text:
    Julius A. Baumgrass, etc., Executors, etc., v. Emily Brickell.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887.)

    1. Practice—Parties—Who necessary—Will—Construction.
    Where real property was left by testator to a cerlaiu person “ to be by her owned and enjoyed the same as if I (the testator) had never owned it during her life-time; after her death whatever may be left is to be divided among my eight children in eight equal parts ” Held, that said eight children must be made parties to an action brought to decide whether the said legatee had a right to dispose of the real property or only a life estate therein.
    2. Same—Submission op controversy — When improper—Code Civ. Pro., § 1279—Minors.
    If the heirs at law were all of full age and willing to unite in a submission, a proper submission of the controversy might be executed, under Code Civil Procedure, section 1297. If any of them are minors, no submission could be made

      Mr. Baldwin, for pl’ff.
   Boardman, J.

This is a controversy submitted without action under sections 1279, etc., of the Code of Civil Procedure.

The plaintiffs, as executors, do not seem to have anything to do with the controversy, but it is alleged that Ophelia Baumgrass (executrix and plaintiff) individually has a question in controversy with the defendant. Her claim seems to us the only one embraced in this submission.

The controversy arises on the following facts : William Baumgrass died July 4, 1885, at Syracuse, N. Y., leaving the said Ophelia Baumgrass his widow and eight children. He left a will, in and by which he gave and bequeathed to Ophelia Baumgrass all his real and personal property, “ to-be by her owned and enjoyed the same as if I (the testator) had never owned it, during her life time; after her death, whatever may be left, is to be divided among my eight children in eight equal parts,” naming the children and appointing the- plaintiffs his executors, but no power is given them to sell real estate. The will was duly admitted to probate. In October, 1886, Ophelia Baumgrass made a contract with the defendant to sell to her for $4,500 a house and lot, of which the testator died seized and possessed. A small portion of the purchase price has been paid. Ophelia believes she has title to and a right of disposition of the house and lot, but the defendant entertains doubts as to her title and refuses to complete the contract and accept her conveyance, on the ground that said Ophelia has only a life estate in such land.

The question so presented cannot be determined in favor of Ophelia, without at the same time holding and deciding that the eight children of the testator have no title to or interest in such real estate. Before that can be done, the-children must be made parties to the action or submission. They have a right to be heard upon that question, and a-judgment in a proceeding to which they were not made parties would not bind them. For this reason this submission cannot be sustained. The necessary parties to the controversy are not before the court. Wood v. Squires (60 N. Y., 191), Trustees of Hobart College v. Fitzhugh (27 id., 130), especially at bottom of page 133, ei seq.; Wavle v. Tuttle (11 N. Y. W. Dig., 186, 3d Dep’t)

If the heirs are all of full age and willing to unite in a submission,, a proper submission might be executed. Whether they are all of full age does not appear. If any of them are minors no submission .can be made. Fisher v. Stilsou, 9 Abb. Pr. Rep., 33.

The submission must be dismissed, without costs to either parfcy.

Hardin and Follett, JJ., concur.


source: Caselaw Access Project

author: Hardin, P. J.

license: Public Domain

text:
    Sophia Suiter, Resp’t, v New York, Lake Erie and Western Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887 )

    Negligence—Railroad—Contributory negligence
    The plaintiff, just at dusk, who was traveling on the street of a certain village, approached the crossing of the defendant’s tracks About the time she ai rived at the crossing there was a train passing westwardly, and also a train passing eastwardly. She, in common with numerous other • people on foot, stood on the south side of the railway crossing until the last car of the train going eastwardly uncovered the crossing. She then started to cross, together with a friend, and was struck and injured by a hand car, which was following the train, but which had no light and gave no signal of its approach There were no lights near the crossing, and the approaching-hand car could not be seen prior to the entry of the plaintiff apon the track to make the crossing Held, that the question whether the plaintiff was guilty of negligence which contributed to the injury or not was properly submitted to the jury.
    Action for alleged negligence. Verdict for the plaintiff for $1,800 at the trial at the' circuit. Motion for a nefv trial on case and exceptions heard at special term and denied. Appeal from judgment and from order.
    On the evening of the 10th of October, 1884, the plaintiff was traveling on Fulton street, in the village of Waverly, on foot, passing northerly, and approached the crossing of the defendant’s tracks. About the time she arrived at the crossing there was a train passing westwardly and also a train passing eastwardly. She, in common with numerous other people on foot, stood on the south side of the railway-crossing until the last car of the train, which was the one ■ going eastwardly, uncovered the crossing. She was in the immediate company of Mrs. Dimmick. They started to cross together. Plaintiff was a little in advance, and Mrs. Dimmick testifies:
    “Plaintiff walked a little faster as we started to cross; could not tell just what time it was; was getting quite dusk; so dark that the lights in the town were lighted * * * we stopped at the crossing to wait; it was a very long freight train; it was going middling slow * * * we waited until the train passeij, I looked up both ways; couldn’t say whether she did or not; I didn't see anything in the way, but it was quite dusk, and she started a few steps ahead of me; and after she was on the track I heard, I thought, some one halloa, but couldn’t hear what they said, and cast my eye down and saw that close to me (saw a hand-car) and sprang back; then it came between her and me; the men were standing up on this car propelling it, and as soon as that was out of the way I crossed over and found her lying there out near the switch-house; she had been dragged the width of the road; I did not see any lights on the hand-car; didn’t see any signals; there could not have been much time elapse between the passage of the caboose and the hand-car or we would have had time to get across; if was following pretty close I should think; quite close; when the last car got to us it was going quite fast; when we first saw it it. was going middling slow, but going so far. it had got going middling fast; it looked to me the hand-car was going pretty fast; it was so close it seemed that way to me; there was some persons there to cross: did not recognize any of them; there was no light on the hand-car that I saw; when the freight train was passing we stood as near as we dared to; we were standing near the east-bound track * * * I heard some one halloa, but it was after Mrs. Suiter was on the track; I was a little in the rear * * * as soon as the caboose passed by she and me started right across; after looking, I never cross there without looking both ways; she started a little ahead of me; she was nicely on the track and I was a step or two back of the track when I first saw the hand-car; think she must have been over the first rail; not over the second when I saw her, I did not see her at the time the car touched her; coiddn’t see then because the men were in the way, and I was looking the other way; I saw the car coming close to me; that was the reason I slopped * * * heard some one halloa just as I was going to step on the track myself; that is what caused me to turn my head; the fact that I heard the halloaing, and that led me to look, and when I looked I saw the hand car; Mrs. Suiter had gone on ahead of me 36 * * it was quite dark there; after the train had passed there was nothing there to interfere with my looking up and down the track, with the exception there was a good many folks around, standing along by the fence there; just as soon as the freight train passed then the rush commenced across the street both ways.”
    The plaintiff, in giving her version of the manner in which, and circumstances surroundingthe injuries received hy her, testified, among other things, viz.:
    “ It was near seven o’clock, I cannot tell exactly what time it was, but it-was dusk; I had been to see a sick son of mine across the Erie track; Mrs Dim-mick was with me; it was seven o'clock in the evening; I had been over there and it was getting dusk, and I was in a huny, and there were two trains went along on the Erie, and I think I stood there as much as fifteén or twenty minutes waiting for them, and there were folks on both sides liushing back and forwards to get across, and I went with them, with the rest, and I had got across the track, as I thought, when this car caught me; but where it caught me I could not say, but the last I knew after it caught me I felt my head dragged over the coal cinders, and it was full of cinders, and this side was cut open, and my hat was torn off my head * * * there were no lights on this car (meaning the hand-car which followed the east bound freight train); I had no warning from anybody; my hearing is good, I wish my eyesight was as good as my hearing; it was so dark they had lit the lignts around the depot there; there were-no lights where I was * * * I am near sixty-six; I could not say how fast the hand-car was running at that time; I know it caught me; I was previously well acquainted with the crossing, and I think it is constantly traveled * * * the track crosses the highway on a level, as near as I can tell, Mrs. Dimmick was with me when I started * * * I did not venture across until I saw an opening, and saw others starting to go, when the rest started to go I started; should think there was forty or fifty on that side ready to go across when I went; I didn’t look to see anyone hut the one that was with me; there was no street light at the crossing; on either side as I saw; there was one there, but none lit; there was one lit by the depot * * * the crossing was not lit; there was no light there; I started with the rest of the company; some ahead and some behind, Mrs. Dimmick was by my side when we started to cross-she walked by my side until we got most across; I did not hear anyone halloa to me to get out of the way; I heard folks halloa and yell justas always around the depot; did not hear anybody near the crossing halloa to get out of the way, the haqd car was going east I think; I did not see it at all until it caught me; didn’t see it then, for I didn’t know what it was; didn’t see it afterward; I saw the shadow of something that caught me from that one light; I was over all the tracks pretty much when that caught me; I think I had stepped off the last rail when that caught me; the last rail of the north track, as near as I can tell; had got to the last rail of the last track when this shadow came upon me.”
    Dr. Handen testified, viz.;
    “ At this crossing the tracks ran at right angles with Fulton street.” And, also, viz.: “ Thirty feet from the south rail you could not see far either way. within ten feet could see south some distance; don’t know how far you could see north.” Also, viz,: “Assuming a person was standing near a train, he could not see anything west if that train was passing until the caboose got very •near him.”
    Warford testified that he was standing on the east side of Fulton street at the time of the accident, and as soon as that train went by I slipped across, and there was something went by with a whiz just after I crossed, and I got a glimpse of something I supposed to be a hand car. I know it was in rapid motion.” “I did not see it coming; it was dusk at that time. I didn’t see it until this noise of something passing me very swift, and which seemed to be a hand car, as I turned around.”
    At the close of the plaintiff’s evidence, the defendant .asked for a non-suit; “ on the ground that no evidence of negligence on the par|i of the defendant had been shown; and, second, that the plaintiff was herself guilty of contributory negligence, which should defeat the action at this point,” and at the close of the entire evidence the defendant asked the court to direct a verdict upon the whole evidence. Befusals were had, and exceptions taken.

      D. C. Robinson, for app’lt; <7. B. Floyd, for resp’t.
   Hardin, P. J.

In charging the jury the trial judge, said, viz.: “The defendant was required in running its car over this road to exercise ordinary care and prudence. If it did exercise ordinary care and prudence then the plaintiff in this action cannot recover, and that ends the case. If you shall find that this defendant in operating its cars there under the circumstances used ordinary care and prudence, then the defendant in this action is entitled to a verdict at your hands. If, however, you should find that the defendant was negligent in running its car over this street "at that time in the manner in which it was done, you would then come to a second question in the case, which is whether the negligence of the defendant caused the injury of which the plaintiff complains. If you shall find that it did not cause that injury, of course that ends the case and your verdict must be for the defendant.”

Also, ‘ ‘ If you find that the defendant was negligent, and that negligence caused the injury of which the plaintiff complains, then you would come to a third question in the case, which is, was the plaintiff free from negligence which contributed to produce her injury? If you should find that the plaintiff was negligent in the slightest degree, and that that negligence contributed to produce the injury of which she now complains, the defendant would then be entitled to a verdict at your hands, so that the question of plaintiff’s negligence "is also a very material question in the case.”

Also, “Now, the plaintiff, as she approached this crossing, was bound, and it was her duty to use her eyes and ears, and to look and to listen to see if she could discover whether there was an approaching train or not, or whether there was any car passing at that time. If she-could not do that—if she did not look and listen, and her omission to do so contributed to this injury, then she could not recover in this action.”

We think the charge was quite -as favorable upon the-latter proposition as the defendant was entitled to have from the court. It will be observed that it leaves out of view a • circumstance of considerable importance upon the-testimony pertaining to the accident, to wit: “That it was dusk, and no lights' were near the crossing; that Mrs. Dimmick testifies that she looked and did not see the approaching hand-car, prior to the entry of the plaintiff upon the track to make the crossing.

If it was so dark, or if the obstructions were such, or the location of the hand-car at the instant that the plaint - iff entered the track for the purpose of crossing was such that if the plaintiff had looked she would have seen nothing, then it might have been found as a fact by the jury that her omission to look, if she did omit, at the instant of entering upon the track, ■would not have given her any information. Then her omission to look did not contribute to the injuries which she received.

The burden was upon the plaintiff to satisfy the jury that that was no contributory negligence (Hale v. Smith, 78 N. Y., 483), and “the absence of contributory negligence is a part of the plaintiff’s case. The burden of satisfying the jury upon that point rests upon him.”

We think it would be doing violence to the evidence offered upon the trial, and now in review, to say that there was no evidence bearing upon the question of whether or no the plaintiff was free from contributory negligence. ■ Upon all the facts and circumstances disclosed by the evidence we think that question properly belonged to the province of the jury.

The case is unlike Hart v. The Hudson River Bridge Co. (84 N. Y., 62), for in that case the court said: “As the evidence stood there was no proof either way, and it was by no means clear, in the absence of evidence, that the deceased was not chargeable with contributory negligence.”

We think the observations of Miller, J., in that case are applicable to the one in hand, where he says, viz.: “Oases may arise where proof of the facts, of itself, shows, that there was no contributory negligence, but where there is no proof as to what actually did take place at the time, and the proof is such as to render it uncertain in regard to that subject, it cannot be said that an absence of negligence is established within the rule referred to. In such a case no inference can legitimately be drawn in favor of the plaintiff within the rule stated in Powell v. Powell, (71 N. Y., 73).

We think under the peculiar circumstances of the case before us, the question of whether or no the plaintiff was guilty of negligence which contributed to the injury or not, was properly submitted to the jury.

Our attention is called to Spaulding v Jarvis (33 Hun, 622), which we think does not aid appellant’s contention. In that case the plaintiff " supposed he had passed so far beyond the track of the street railroad that the passing car would not reach or touch his carriage. He was mistaken,” and the injury which the plaintiff received was “due as well to the plaintiff’s fault as to the negligence of the defendant.”

We think a case was presented for submission to the jury within the rule laid down in Stack v. The N. Y. C. and H. R. R. Co. (74 N. Y., 469). In speaking of the alleged negligence of the plaintiff, Church, C. J., said, viz.: It depends upon all the circumstances, the situation and acts of the plaintiff, the character of the crossing, the situation of the road and the facility for seeing and hearing; wind and weather, the construction of the evidence and credibility of witnesses. It is difficult to conceive of a question of fact more appropriate for the consideration of a jury than this. It is a question in which men may differ * * * There is room, to say the least, for a difference of opinion, and a verdict either way would not be set aside as against evi - dence. See also Hart v. The Hudson River Bridge Co., 80 N. Y., 622; Jones v. The New York Central, 28 Hun, 366.”

We think error was committed in receiving evidence on the speed of the hand car, from the fact that it carried no light nor signal to warn its approach.

We think those circumstances were not magnified or improperly commented upon by the learned judge. We see no error in his opinion delivered at special term upon that subject, and we are entirely satisfied with the conclusion reached at the trial and at the special term.

We must, therefore, allow the verdict to stand.

Judgment and order affirmed, with costs.

Boardmah and Follett, JJ., concur.


author: Eollett, J.

text:
    Joab L. Clift, Resp’t, v. Mary E. Moses, Impleaded With Others, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887.)

    1. Will—Construction of—Insolvent testator—Rents—Who entitled to.
    The heir, and. at law, the devisee of an insolvent decedent is entitled, as against the personal representatives or creditors, to receive and retain as his own rents and profits arising from realty between the date of decedent’s death and the date of the sale, of [the real estate for .the payment of the decedent’s debts

      3. Same—When executor entitled to rents—1 Rev. Stat. , 729, § 56
    If the will absolutely converts the realty into personalty at the testator’s death, the executor and not the devisee is entitled to its possession, and to recover the rents and profits, notwithstanding 1 Rev. Stat., 729, § 56.
    3. Same—Liability of devisee for testator’s debts—Code Civ. Pro., § 1843.
    By Code Civ. Pro., § 1843, a devisee is liable for the testator’s debts to the extent of property received by him, but beyond this he does not become personally liable by merely accepting of the devise and of the rents and profits thereof, though the devise is charged with the debts, unless the will charges the devisee with the duty of personally paying the debts, or unless the devise is upon the condition that the devisee pays the debts
    4. Same—When realty converted into personalty .
    Where the will does not contain an imperative direction for the sale of the realty or for treating it as personalty, a conversion is not affected unless it clearly appears that it was the intention of the testator to effect a conversion Authority conferred upon executors to mortgage or sell solely for the purpose of paying debts does not work a conversion of the realty into personalty as of the date of the testator's death.
    5. Real estate when treated as personalty.
    When the owner legally directs that upon the happening of an event, or at a time specified, his land shall be converted into and treated as money, the courts of equity hold that upon the happening of the event, or the arrival of the time, the land becomes money and is subject to the rules of law governing money and ceases to be subject to the rules of law applicable to real estate
    6. Same—When grantees take subject to liens.
    Grantees of land subject to specific liens enumerated in the grant are not personally bound to pay the liens, though they form part of the consideration for the grant.
    April 9, 1878, Charles Pardee died, leaving a last will and testament, of which the following is a copy:
    “I, Charles Pardee, of Skaneateles, county of Onondaga, being of sound mind and memory, do make, publish and declare this to be my last will and testament in manner following. I do order and direct my executor" hereinafter named, to pay all my just debts and funeral expenses as soon after my decease as can conveniently be done. I give and bequeath unto my adopted (laughter, Mary B Moses, wife of Lucian Moses, the household furniture and whatever may be in the house and used as house-keeping articles. I give and bequeath unto Amos R Pardee my gold watch. I give and bequeath to Eliza Bronson, widow of Henry G Bronson, deceased, one hundred dollars; to Mrs. Sarah Greenman, one hundred dollars; to Mrs. Triphina Austin, if living at my decease, one hundred dollars. I do give unto my daughter, Mary E. Moses, the rest and residue of my estate, real and personal, making her residuary legatee of this, my last will and testament. I do hereby nominate and appoint, Bcnoni Lee and Mary E. Moses, my executor and executrix, of this, my last will and testament, revoking all former wills by me made I give and devise to my ex ecutor and executrix all my real and personal property of every kind, in trust, for the purpose of paying my debts and legacies named in this, my last will, giving them power to sell, mortgage or convey any and all real estate for the purposes above named in this, my last will
    “ In witness whereof, I, the said Charles Pardee, have hereunto set my hand and seal this 19th day of September, 1876.
    “C. PARDEE [l. b.].’*
    July 17, 1878, the will was probated, and the executor and executrix nominated therein having renounced, letters of administration, with the will annexed, were issued to Jacob Dewitt, who qualified and thereafter acted as administrator until October 1, 1880, when he died, and November 1, 1880, letters of administration with the will annexed were issued to Sidney Smith, one of the defendants, who has, since that date, acted as such administrator. November 18, 1879, De Witt was appointed as trustee under the will, to execute the power in trust, and November 8, 1880, Smith was appointed a trustee vice De Witt, who had died.
    July 1, 1881, the power of sale contained in the will was executed, and the testator’s real estate sold for the purpose of paying his debts. Between April 9, 1878 (the date of the testator’s death), and July 1, 1881 (the date of sale of the real estate), Mary E. Moses (the devisee named in the will), was in possession of the testator’s real estate and collected rents therefrom amounting to $7,221.92. The estate is conceded to be insolvent. The administrator refused to sue for the recovery of the sum so collected, and the plaintiff, one of the creditors of the estate, brought this action to recover the sum for distribution among the creditors. The administrator and all of the creditors of the estate are joined as defendants with Mrs. Moses, but she alone defends. The case was tried at special term, where it was held that Mrs. Moses was liable to pay over the rents collected, and a judgment was entered directing her to pay them to the administrator for distribution among the creditors, from which judgment she appeals.

      William G. Tracy, for resp’t; Louis Marshall, for app’lt.
   Eollett, J.

The heir, and at law, the devisee, of an insolvent decedent is entitled, as against the personal representatives or creditors, to receive and retain as his own rents and profits arising from realty between the date of the decedent’s death and the date of the sale of the real estate for the payment of the decedent’s debts. Gibson v. Farley, 16 Mass., 280; Boynton v. Petersborough and Shirley R. R. Co., 4 Cush., 467; Newcomb v. Stebbins, 9 Met., 540; Lobdell v. Hayes, 12 Gray, 236; Towle v. Swasey, 106 Mass., 100; Campbell v. Johnson, 1 Sandf. Ch., 148; 2 Will. Ex. (6 Am. ed.), 893; Schouler Ex. & Adm., § 216. This rule is too firmly established to be questioned in this court.

“§ 56. A devise of lands to executors or other trustees, to be sold or mortgaged, where the trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees; but the trust shall be valid as a power, and the lands shall descend to the heirs or pass to the devisees of the testator, subject to the execution of the power.” 1 R. S., 729.

Upon the assumption that this case is within this section, it was held at special term, and it is now conceded by the counsel lor both parties, that the title to the testator’s real estate, upon his death, vested in Mary E. Moses, the devisee, subject to be divested by the execution of the power of sale, and until it was executed, she alone was entitled to the possession of the realty,.and entitled to collect the rents. If the concession expresses the rule of law applicable to this case, it defeats the plaintiff’s right to re cover. Her right must have been a personal one, for it is difficult to see how she was entitled to receive or recover the rents as a trustee for the personal representatives, or for the testator’s creditors; and not being in any sense a wrong-doer in receiving the rents, she cannot be held liable as a trustee in invitwm.

It is illogical to say that rents which were hers alone, and which she alone could have recovered by action, can be recovered of her unless by virtue of some promise, expressed or implied, or by virtue of some statute. Lent v. Howard (89 N. Y., 169), is not an authority for the position that rents which a devisee or heir is entitled to collect before the execution of a power of sale may be recovered of him by the executor. On the contrary, the case holds that the executor’s right to the rents arose from the fact that the realty was, by the will, converted into personalty at the testator’s death. The executors, and not the heir or devisee, in that case, received the rents and profits, and it was held that they must account for them as assets upon the theory that they arose from personalty.

No case has been cited holding that when realty is by a will absolutely^ converted into money at the testator’s death, the heir or residuary devisee is entitled to possession and to the- rents until the land is actually conveyed under the power in the will.

We are not considering cases in which the time for the conversion is postponed until some period after the testator’s death, or of the rights of heirs, or of the devisees to the intermediate rents in such cases.

When the owner legally directs that upon the happening of an event, or at a time specified, his land shall be converted into and treated as money, the courts of equity, by a convenient fiction, hold that upon the happening oí the event, or the arrival of the time, the land becomes money and is subject to the rules of law governing money, and ceases to be subject to the rules of law applicable to real estate.

If the will absolutely converted the realty into personalty at the testator’s death, the executor, and not the devisee, was entitled to its possession, and to recover the rents and profits, notwithstanding the section of the statute quoted.

Disregarding the effect of this concession, we are led to examine the plaintiff’s claim that the judgment is sustainable upon both, or upon either of the following grounds:

First. That the devisee having accepted the devise and taken the rents, the law implies a promise or liability on her part to pay all the testator’s debts.

Second. That, under the will, the realty was, at the testator’s death, absolutely converted into personalty, and the rents, as well as the principal, are assets, and applicable to the payment of the testator’s debts.

Can the judgment be supported on the first ground ? That the will does not expressly charge Mary E. Moses with the duty of personally paying the testator’s debts, and that the devise to her is not, in terms, upon the condition that she shall pay his debts, is so obvious that it cannot be made plainer by discussion.

As bearing upon this ground of liability, the question whether the will charges the testator’s debts upon his real estate, was much debated by counsel upon the argument.

Had the testator’s estate been solvent, and but partly disposed of by the will, or had the estate been divided by the will between several persons, it might be important to determine whether he intended to charge his real estate, or some part of it, with the payment of his debts; but as the estate is insolvent, and there is no conflict between those named as beneficiaries, it seems wholly unnecessary to consider this question, for, under the statutes, the debts are charged and become a general lien upon the whole estate and the burden upon the realty, or the personal liability of the devisee for the testator’s debts would not be increased, though the debts were by the will specifically charged upon the realty.

By statute (Code C. P., § 1843), a devisee is liable for the testator’s debts to the extent of property received by him, hut beyond this he does not become personally liable by merely accepting of the devise and of the rents and profits thereof, though the devise is charged with the debts, unless the will charges the devisee with the duty of personally paying the debts, or unless the devise is upon the condition that the devisee pays the debts. Cronkhite v. Cronkhite, 1 T. & C., 266; Wheeler v. Lester, 1 Bradf., 213, 293; Pom. on Eq. Juris., § 1246, note; 2 Redf. on Wills (3d ed ), 304. The position that when a testator expressly charges all of his property with the payment of his debts and then devises and bequeathes the residuum, that the residuary legatee and devisee becomes personally Hable to pay aH the testator’s debts by simply taking possession of the realty and enjoying the use thereof until it is appHed to the payment of the debts, is without support in reason or in authority.

Neither can the devisee in such a case be compeHed to account for the rents, issues or profits received from the-realty. See authorities cited in support of the first proposition in this opinion.

Grantees of lands-subject to specific hens enumerated in the grant are not personally bound to pay the liens, though they form part of the consideration for the grant. Belmont v. Coman, 22 N. Y., 438; Binsse v. Paige, 1 Abb. Ct. App. Dec., 138; 1 Keyes, 87.

Persons who are vested with the legal title to, and by' virtue thereof are in possession of real estate charged with, specific hens, are not accountable for the use enjoyed, or for the rents collected before the title is divested by a sale. If creditors wish to cut off the right to enjoy the use and rents, which is incident to possession under a legal title, they must intercept the rents and profits, while enforcing their hens, by the aid of a receiver. In such cases creditors cannot lie by until after the title is divested and then compel its late owner to pay over the rents which he has received, or the profits earned by his management and care of the property. Hollenbeck v. Donnell, 94 N. Y , 347; Hamilton v. Austin, 36 Hun, 143; Jones on Mort., §§ 670, 1120, 1659.

We know of no authorities holding that the rights of creditors having general hens are superior in these respects to those of creditors having specific hens.

The conclusion of law, that under the wih Mrs. Moses became personally liable to pay ah of the testator’s debts by receiving the rents cannot be sustained, and her exception to this conclusion is valid.

Was the realty converted by the wih into personalty at-the testator’s death ?

When a testator directs that his real estate must be sold and converted into money for ah purposes it is cahed 1 ‘ a conversion out and out.” 3 Redf. on Wills (3d ed.), 140. This wih does not direct that the real estate shah be sold, but simply empowers the testator’s executors to mortgage or seh, not for ah purposes, but solely for the purpose of paying his debts and legacies, and a technical conversion-out and out is not effected. But the more important question is : Was the realty converted into personalty by the wih for the purpose of paying debts and legacies ? The wih not containing an imperative direction for the sale of the realty, or for treating it as personalty, a conversion is not effected unless it clearly appears that it' was the intention of the testator to effect a conversion.

It cannot be contended that the testator intended a conversion of his real estate for the purpose of paying pecuniary legacies aggregating but $300. Nor does it appear that the testator contemplated a sale of ah his real estate for the purpose of paying his debts, as his executors are expressly authorized to mortgage his realty for this purpose. We are unable to conclude from the provisions of the will that it was the clear intent of the testator to effect a conversion.

But a single fact outside of the will is relied on for the purpose of aiding the court to infer an intention to effect a conversion, which is, that after the testator’s death, which occurred eighteen months after the date of the will, he was found to be insolvent. From this fact the trial court found that the testator was “probably” insolvent when he executed the will. The court did not find that the testator knew that he was insolvent when he executed it, and there is no evidence to support such a finding unless it should be inferred from the situation in which the estate was found after his death. If he was insolvent when he made the will, but was unaware of it, it affords no guide to his intention, and so we are left to gather the testator’s intention from the will.

To effect a conversion of reality into personalty, in the absence of a direction that a sale must be made in any event, it must clearly appear that the testator intended a conversion. White v. Howard, 46 N. Y., 144-162; In the Matter of the Will of Fox, 52 N. Y., 530-587; affirmed 94 U. S., 315; Hobson v. Hale, 95 N. Y., 588. In Hood v. Hood (85 N. Y., 561), and in Lent v. Howard (89 N. Y., 169), power to sell was conferred upon the executors, who were directed, after paying debts and legacies, to invest the residum in securities for specific purposes, which could not have been accomplished without a conversion of the realty into personalty, and it was held that the testators must have necessarily intended a conversion. In Moncrief v. Ross (50 N. Y., 431), and Fisher v. Banta (66 N. Y., 468), a sale of the realty was directed. In Dodge v. Pond (28 Barb., 121; 23 N. Y., 69), after paying the debts, about a million and a half of dollars were devised and bequeathed; and the residuum, about two hundred and fifty thousand dollars, was directed to be divided into as many parts as the testator should have children and grand-children living at a certain time after his death, or upon the happening of a certain event.

The testator’s real estate was situated in five different states. At the time of his death, he had five children and twenty-two grand-children, and when the time for distribution arrived the number of his grand-children had increased. It was held in the supreme court that the circumstances justified the conclusion that the conversion was intended. This, however, was not the principal question involved, and in the court of appeals (where the judgment was modified), it was remarked that it was not very material to determine whether the realty was converted into personalty, and then the opinion was expressed that a conversion was intended.

In Hobson v. Hall (supra), the court of appeals analyzed and discussed at considerable length the leading English and American cases turning upon the question of conversion, and if we correctly understand that case, it is decisive against the position of the plaintiff that a conversion was affected. We have been cited to no case holding that authority conferred upon executors to mortgage or sell solely for the purpose of paying debts (which is the affect of this power, as the legacies amount to but $300), works a conversion of the realty into personalty as of the date of the testator’s death.

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

Hardin, P. J., and Boardman, J., concur.


text:
    Michael Haley, Resp’t, v. Reuben Steves, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887.)

    1. Adverse Possession—What proof necessary.
    To support the defense of adverse possession, or the right to recover in reliance upon it for twenty years, it is only needful that the party seeking to make out an adverse possession for twenty years should show that it was under claim of title. It need not be under a specific title. Having shown those facts, the Statute of Limitations enables them to assert and maintain such title and ownership.
    2. Witness—Credibility of
    A judge is not bound to believe a thing merely because the witness swears to it, but he should test the evidence as other men of discernment would test it, believing what he is convinced is true, and disregarding what he is convinced is false. Following Fuller v. Fuller, 4 Cent. Rep., 1027 (N. J.).
    Appeal from a judgment in ejectment for 31-100 acres of land in Camillus, entered upon the decision of the circuit judge, before whom the issue was tried, without a jury, in Onondaga county.

      John C. Hunt and I). C. Greenfield, for app’lt; Waldo E. Gilbert, for resp’t.
   Hardin, P. J.

Defendant gave evidence tending to show ownership of the premises in question, and thereby tending to show that the plaintiff and his grantor had not possessed them for twenty years or more before the defendant entered into possession thereof, shortly before this action was brought.

But the plaintiff, on the other hand, showed possession in Eierdon and wife, and a surrender of possession _ to plaintiff, and that the actual, open, notorious and visible possession of Eierdon and plaintiff had continued for twenty years or more prior to the 15th of April, 1884, when the defendant took possession of the premises away from the plaintiff.

See the evidence of Eitzgerald and others offered by plaintiff in reply to the evidence of the defendant.

The conflict as to possession was such that the findings of the trial judge must be accepted as fairly determining the conflict, and passing upon the reasonableness of the evidence on either side of the question, as well as upon the credibility of the respective witnesses.

To support the defense of adverse possession or the right to recover in reliance upon it for twenty years, it is only needful that the party seeking to make out an adverse possession for twenty years, should show that it was under claim of title. It need not be under a specific title, as where a deed is challenged for champerty (32 N. Y., 170).

It was incumbent upon the plaintiff to show that he and his grantors had held adversely under claim of title, -and, having shown these facts, the statute of limitations enabled them to assert and maintain such title and ownership as the law declares to exist after twenty years of possession under a °claim of title. Thompson v. Burhans, 61 N. Y., 52; Hopkins v. Mason, 61 Barb., 469; sections 369 to 371, Code Civ. Pro.

The facts found by the trial judge bring the case within the law and give repose to the ownership of the plaintiff thus established. If the plaintiff was only mortgagee in possession under the arrangement shown to have been made with the Rierdons, he was entitled to maintain such possession. Chapman v. The D. L. and W. R. R. Co., 3 Lansing, 261.

The agreement by parol to surrender possession, and the actual surrender of possession, were competent as evidence and valid. Hiller, Justice, said in the case last cited, that while the verbal understanding of itself would be invalid, yet the possession which was the main thing to be accomplished was an execution of the oral agreement.

The evidence was sufficient to show that J. R. Steves (father of defendant) conveyed to Qúinby by deed dated December 1, 1849, and that the premises had been occupied for more than twenty years adverse to any title the defendant had acquired in them. Evidently the trial court did not believe that the Rierdons occupied the premises in question by license from Steves, and hence the effect of such a license need not be considered here.

“A judge is not bound to believe a thing merely because the witness swears to it, but he should test the evidence as other men of discernment would test, believing what he is convinced is true, and disregarding what he is convinced is false.” Fuller v. Fuller, 4 Cent. Rep., 1027, N. J.; Fordham v. Smith, 46 N. Y., 683.

Appellant’s counsel asserts in his brief that a general assertion of ownership irrespective of any specific title is insufficient and refers us to Swettenham v. Leary (18 Hun, 284). Judge Talcott’s remark in that case was that such a possession was not sufficient “under the statute of Champerty,” and he adds, “Otherwise it seems in respect to adverse possession for the purposes of the statute of limitations,” and cites Crary v. Goodman (22 N. Y., 170.

In Bedell v. Shaw (59 N. Y., 50), it was said that to the extent of the claim, will the presumption of the law go in favor of the claimaiit and no further ? If he asserts-only a claim for years, and that is consistent with his possession, the law will not, upon the mere fact of his possession, adjudge him to be in under a higher right or larger estate. • Ricard v. Williams, 7 Wheat., 59.

Nothing was held by the trial judge, and nothing has been said in the foregoing opinion inconsistent with the doctrine as laid down in Bedell v. Shaw (supra). We find no error in the trial and decision below.

Judgment affimed, with costs.

Boardman and Fqllett, JJ., concur.


author: Boardman, J.

text:
    Mary Maloney, App’lt, v. Nancy Cronin, etc., Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887.)

    1. Partition of real estate—One action only—Code Civ. Pro., § 1537.
    Whether the devisee of land is in or out of possession of the land devised, section 1537, Code Civil Procedure, authorizes in a single action the determination of the validity of the devise, and if that be found void, a partition of the premises among those entitled to share therein. The party named as devisee, and his grantee, if there be any, are necessary parties as to the validity of the devise, and the grantee as to the partition.
    3, Same—Old rule changed.
    The old rule denying to a party partition of lands held adversely, was intentionally changed by the Code of Civil Procedure, § 1537, where such adverse holding and possession was under a devise valid on its face, but in fact void.
    3 Grantee of devisee—How title to land sustained.
    The grantees of a devisee must, to sustain their title to land devised against the attack of the heirs at law, sustain the validity of the devise. The probate of the will is not conclusive. When the will or devise fails, their title under it fails, notwithstanding their good faith.
    Appeal from a judgment of the special term dismissing the complaint in an action brought to partition certain land.

      Edward Lewis, for app’lt; Williams & McCabe, for resp’t.
   Boardman, J.

Two issues only were presented by the pleadings:

First. Whether the devise of the lands, which are the subject of the action, 'to Nancy Cronin, defendant, was valid.

Second. Whether the defendants Prior were purchasers from Nancy Cronin, the devisee of such lands in good faith for value and without notice of the invalidity of the devise. The jury found the devise to be void and that Prior was a bona fide purchaser and in the possession of the lands under a deed good in form given by Nancy Cronin.

On these facts, conceded to be true for the purposes of the present appeal, the plaintiff claimed a judgment for partition of the lands between herself as one of the heirs-at-law of Mary Maloney, deceased, and the other heirs-at-law. This claim was resisted by the defendants upon the. sole ground that partition cannot be had under section 1537 of the Code, where the apparent devisee, Nancy Cronin, is not in possession, but the Priors are in possession holding adversely as bona fide purchasers from said Nancy. The learned judge with some hesitation sustained the defendant’s claim, and dismissed the complaint. The statute under which this action was brought is comparatively new and no authority is cited covering the precise point in controversy. Chapter 238 of the Laws of 1853 first gave such a right of action and that was repealed in 1880, when section 1537 was incorporated in the Code in its stead. Under the act of 1853 it was held by the court of appeals, Judge Miller speaking for the court, that “An action of partition can be maintained to determine the' validity of any devise or will of real estate notwithstanding an adverse possession. The action is somewhat in the nature of an ejectment; but issues of fact are to be made up and tried by a jury, and when the legal title is established a partition or a sale may be granted upon application to the court, as the relief demanded after the main subject of the controversy has been determined by a jury. It does not appear whether that action was brought against the apparent devisee or his grantee. In the present case the Priors took the title of Nancy Cronin as heir-at-law although her title as devisee was worthless. The Priors were therefore tenants in common with the plaintiff the moment the devise was declared void. If the devise was void they could acquire no title under it. To sustain their entire title to the lands under Nancy Cronin’s deed, they must sustain the validity of the devise against the attack of the heir-at-law. The probate of the will is not conclusive. Matter of Gourand, 95 N. Y., 256. When the will or devise fails their title under it fails notwithstanding their good faith. So when the devise is overthrown the Priors’ title under it is gone and they remain grantees of the share of Nancy Cronin as one of the heirs-at-law. Such possession of course is not adverse lo. the plaintiff. The grantee stands in the place of the devisee and can have no greater rights. There can be no good reason why the heir may not have the same relief against the grantee as against the devisee. The intent of the law was to give a direct and prompt mode of determining the rights of the parties. -. Of what use then to require an action of ejectment to establish title, and afterwards an action of partition to ascertain the rights of the parties and make division ? That seems to us precisely what the legislature intended to obviate by this new form of action. If Nancy Cronin had not been one of the heirs, the position and claim of Prior might possibly have had more force. By the section 1537, whether in or out of possession, the action lies, “notwithstanding an apparent devise thereof to another by the decedent and possession under such devise.” That seems to authorize in a single action the determination of the validity of the devise, and if that be found void, a partition of the premises among those entitled to share therein. Nancy Cronin was a necessary party to test the devise. Prior was a necessary party both as to the devise and partition.

We conclude that the old rule denying to a party partition of lands held adversely was intentionally changed where such adverse holding and possession was under a devise valid on its face, but in fact void. The purpose of the law, if as stated, cannot and ought not to be thwarted by a transfer of the devisee’s apparent title to a party whose title and possession is no other or better than the devisee’s.

For these reasons, we think the judgment should be reversed. No appeal has been taken from the order denying a new trial upon the issues settled and passed upon by the jury, and hence the verdict upon those issues must stand. The case must then go back to the special term, with directions to take such further action as is required by law and the practice of the court preliminary to a final judgment of partition among the owners of the premises in controversy. If, in the setting aside the deed from Nancy Maloney (now Cronin) to Prior and the mortgage from the Priors to the executor any equities are involved requiring protection, the court at special term will provide for the same.

The judgment is reversed and the proceedings are sent back to the special term for such further action as may be necessary in order to effect partition or sale of the premises. The appellant shall have costs of this appeal against the respondents.

Hardest, P. J., and Follett, J., concur.


author: Follett, J.

text:
    Moses Gaylord and Caroline Gaylord, App’ts, v. Lydia Gaylord et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887.)

    Contracts—Oral contracts affecting estates in the future—How PROVED
    Alleged oral dispositions of estates to take effect in the future, or after death, will not be found or supported, unless established by abundant evidence of the most satisfactory and convincing character,

      A. L. Wales, for app’lt; W. L. Edmister, for resp’ts.
   Follett, J.

Appeal from a judgment dismissing a complaint entered upon the decision of a special term.

Not a ruling on the trial is excepted to by the appellant. The only exceptions presented for consideration are those taken to the court’s findings and refusals to find facts, of, which there are eighty-one.

The issue of fact, the decision of which controls this case, is: Was it agreed between the plaintiffs, or either of them, and Osman Gaylord, that said plaintiffs, or either of them, should have the farm in consideration of their work thereon and their care of Osman Gaylord and his wife?—was decided in favor of the defendants.

With this decision, this court is content. The evidence is entirely insufficient to justify a finding that such an agreement was made.

Alleged oral dispositions of estates to take effect in the future, or after death, should not be found or supported unless established by abundant evidence of the most satisfactory and convincing character. Shakespear v. Markham, 10 Hun, 311; affirmed, 73 N. Y., 400. Each of the appellant’s eighty requests to find facts was specifically and correctly passed upon by the trial court. '

The judgment is affirmed, with costs.

Hardin, P. J., and Boardman, J., concur.


author: Rollins, S.

text:
    In the Estate of Frederick B. Noyes, deceased.

      (Surrogate’s Court of New York County,

      Filed. December 7, 1886.)

    Will—Construction of—Legacy—Interest on legacy—When and in WHAT MANNER ALLOWED
    The will of the testator contained the provision following : “I direct my executors to cause my seat in the New York Stock Exchange to be sold as soon after my decease as possible, and also to collect and receive the amount of insurance upon my life from the New York Stock Exchange, and out of the proceeds thereof and out of the proceeds of my estate to pay_ the sum of §20,000 to my beloved aunt, Miss Elizabeth Cot-tam.” By his reference to life insurance, the testator admitted that he had in mind a certain gratuity which the New York Stock Exchange would be bound to pay at his death, in accordance with one of the articles of its constitution,' As the testator died unmarried, that gratuity was, by virtue of such constitution, payable to his next of kin. This next of kin was Elizabeth Cottam, the very person named as legatee under the provision of the will above quoted. Miss Cottam collected from the stock exchange the sum of $10,000 on account of such gratuity, less four cent discount for payment in advance of the time when the gratuity would have become legally payable. Held, That under these circumstances and others more fully disclosed in the opinion below, the executors were entitled to treat the legatee’s receipt of the $10,000 from the stock exchange as a payment pro tanto on account of her $20,000 legacy. Held, further, That the legatee is entitled to legal interest upon the remaining $10,000 from one year after the death of the testator until her claim shall be fully discharged, and that on any payments hitherto made by the executors they are entitled to credit for legal interest from the time of such payments until such discharge.
   Rollins, S.

The second article of the will of this testator, who died in February, 1885, is in words following :

“I direct my executors to cause my seat in the New York Stock Exchange to be sold as soon after my decease as possible, and also to collect and receive the amount of insurance upon my life from the New York Stock Exchange, and out of the proceeds thereof, and out of the proceeds of my estate, to pay the sum of $20,000 to my beloved aunt, Miss Elizabeth Cottam, of Chatham Four Corners, Columbia county, state of New York. I direct that this legacy be paid as speedily as the law will permit.”

After making certain other dispositive provisions, the testator by the eleventh article of his will gives the rest, residue and remainder of his estate to his two executors in lieu of all fees, charges and commissions.

The executors have paid to Miss Cottam the sum of '$10,000, and for reasons which I shall proceed to state they .insist that this payment should be taken as m full satisfaction of her legacy.

It will be noted that the testator has referred to his life insurance in the New York Stock Exchange as one of the sources from which the moneys for discharging his bequest to Miss Cottam should be or might be derived by his executors. But the fact is that his life had not been insured by the stock exchange on the day when he executed his will, nor was such insurance effected at any time thereafter.

The evidence is conclusive that, by his reference in the second article of his will to the proceeds of insurance upon his life, he had in mind a sum of money which by reason ■of his membership in the stock exchange, and by virtue of the twenty-fourth article of the constitution of that body, would „ become payable within a year after his death, in accordance with a certain scheme by such article provided.

The scheme is as follows: Whenever a member of the exchange dies there is levied and assessed against every surviving member the sum of ten dollars, and the faith óf the exchange is pledged to pay within one year after proof of the deceased member’s death the sum of $10,000, or so much of that sum as shall be yielded by such levy and assessment, as a “gratuity” from, the surviving members of the exchange to the person or persons specified in a subsequent section of said twenty-fourth article. Such subsequent section declares who shall be the beneficiary or beneficiaries of this gratuity. In the event that the deceased member shall leave no wife or child him surviving (and such was the situation of the testator) the gratuity is declared to be payable to his next of kin.

Now, it so happened that at the death of this testator his sole surviving next of kin was his aunt, Miss Cottam, the very person who is named as a legatee under the second article of his will. As such next of kin she became at once entitled to receive from the stock exchange the gratuity in such case provided. And on June 29, 1885, she was in fact paid by that body the sum of $10,000, less four per cent discount from that date to February 17, 1886, on which last named day the moneys collected from surviving members of such exchange would have become payable under its constitution. The executors insist that by reason of this payment their liability to Miss Cottam as legatee was reduced from $20,000 to $10,000. Is this contention sound?

That the moneys obtained by Miss Cottam from the stock exchange constituted no part of the testator’s estate is a proposition not open to dispute. The rules of that body are carefully framed so as to guard against any such construction. The right of Miss Cottam to receive “the gratuity ” was utterly independent of any claims which she had or has under this will. It was a right springing from her kinship to the testator, and from that alone. It must, nevertheless, be borne in mind that the testator has undertaken, by the provisions of his will, to deal with this gratuity fund as if it would constitute at his death a portion of the assets of his estate, and that his testamentary dispositions are made in evident contemplation that such fund would come to the hands of his legal representatives, and would, like other assets, be devoted by them to the payment of debts and the satisfaction of legacies. He expressly directs his executors “to collect and receive the amount of insurance on my” (his) “life from the New York Stock Exchange.” By no form of words could he have more conclusively indicated that he regarded the gratuity fund which would become payable at his death as a part of his posthumous estate. He instructs the executors to pay Miss Cottam her legacy of $20,000 out of the moneys collected from such gratuity, which he miscalls his life insurance, and out of the proceeds of the sale of his seat in the stock exchange, and out of the proceeds of his estate in general.

It is claimed by the executors that although Miss Cot-tam’s legacy is thus charged not only upon the proceeds of the so-called life insurance but upon the proceeds of all the testator’s possessions, the testator intended, and has made Ms intention manifest, that the legatee should receive from the aggregate of these proceeds the sum of $20,000 and no more, and that having already received from the stock exchange the gratuity of $10,000 she must be deemed to have elected to take that gratuity as pro tanto a discharge of the $20,000 legacy.

The familiar doctrine of election as applied to wills may be thus stated: A beneficiary who chooses to accept the-bounty of a testator must do so upon such terms and condi.tions as the testator has seen fit to impose. He cannot insist that provisions in his favor shall be enforced, and that, those to his prejudice shall be ignored or set at naught.

“No man,” said the master of the rolls, in Whistler v. Webster (2 Ves., 367), “shall claim any benefit under a will without, as far as he is able, conforming and giving effect to everything contained in it whereby any disposition is made showing an intention that such a thing shall take place, without reference to the circumstance whether the testator had any knowledge of the extent of his power or • not. * * Whether he thought he had the right, or knowing the extent of his authority, intended by arbitrary exertion of power to exceed it, no person taking under the will shall disappoint it. If a testator disposes of the estate of A., to whom he gives some interest by his will, A. shall not take that unless he gives up his own estate to that, amount.”

In Thellusson v. Woodford(13 Ves., 220), Lord Chancellor Erskine gave.this exposition or the principle of election in its application to wills: “If a testator, intending to dispose of his property, and making all his arrangements under the impression that he has the power to dispose of all that is the subject of his will, mixes in his disposition property that belongs to another person, or property as to which another person has a right to defeat his disposition, giving to that person an interest by his will, that person shall not be permitted to defeat the disposition, where it is in his power, and yet take under the will. The reason is the implied condition that there must be an election; for though the mistake of the testator cannot affect the property of another person, yet that person shall not take the testator’s property unless in the manner intended by the testator.”

‘ ‘ The foundation of the doctrme ” (i. e., the doctrine of election), says the learned author of the note to Dillon v. Parker (1 Swan, 395), “ is the intention of the maker of the instrument; and its characteristic in its application to these cases, is that by equitable arrangement effect is given to a donation of that which is not the property of the donor; a vahd gift in terms absolute being qualified by reference to a distinct clause, which, though inoperative as a conveyance, affords authentic evidence of intention. The intention being assumed, the conscience of the donee is affected by the condition, not express, but implied, annexed to the benefit proposed to him. To accept the benefit, while he declines the burthen, is to defraud the design of the donor.”

Now, it seems to me that this principle of election, which is very clearly enunciated in Havens v. Sackett (15 N. Y., 365), must control the disposition of the case at bar.

True, the will before me does not in express terms give to ■ some person other than Hiss Cottam the proceeds of the “life insurance” or gratuity fund; but nevertheless these two things are manifest:

First, The testator’s intention to dispose of his entire estate through the instrumentality of his will, and,

Second, His intention to include, among the assets of the estate thus disposed of, the stock exchange gratuity.

Both these purposes are as plainly written on the face of the will as they would have been‘if the testator had inserted in that instrument a schedule of his possessions, distinctly and expressly specifying therein his so called “life insurance,” and had in terms bequeathed such life insurance to some person other than his a,unt.

The ground on which courts have proceeded'in compelling an election is that purposes of substantial justice require the carrying into effect of the full intention of the testator.

It was incumoent upon Miss Cottam, therefore, if she accepted the benefits of the testator’s will, to “conform and give effect to ” all its provisions.

By one of those provisions the executors were directed to “collect and receive’’the life insurance. It was in the power of Miss Cottam to enable them to carry out this direction by giving them an assignment or power of attorney. If the gratuity fmid had thus come into the hands of the executors, and if out of that fund and out of the proceeds of sale of the testator’s seat, in the stock exchange, and out of the proceeds of the estate generally, they had paid the legatee $20,000, they would thereby have fully satisfied the bequest nrovided for in the second clause of the of the will.

Now, Miss Cottam nas ejected to collect the gratuity fund for her own use. Equity will, therefore, appropriate so much of the $20,000 legacy bequeathed to her by the will as shall satisfy the persons whom she has disappointed by the assertion of her rights.

It is true, as her counsel insist that if the testator had left a widow, or if some person other than herself were his only surviving next of kin, she could justly have claimed the full sum of $20,000 from the estate, notwithstanding the failure and inability of the executors to collect the gratuity as directed by the will- but in the event supposed, Miss Cottam would have been powerless to aid the executors in carrying out the testator’s instructions, and no claim, therefore, could justly be made that her legacy should be cut down because of the persistence of some other person in maintaining his rights. Here on the other hand, the property not belonging to the decedent which he has seen fit to treat as his own, is the property of the legatee herself.

That the view I have taken of the question under discussion will serve to effectuate the actual intention of the testator, appears probable from another consideration.

The agreement of the stock exchange does not bind that body to pay upon the death of a member the full sum of $10,000,- but to pay that sum or so much thereof as shall be yielded by levy and assessment upon surviving members. If at the time when testator’s next of kin became entitled to the gratuity in question, that body had succeeded in collecting from its members but $7,500, the payment of that sum only could have enforced by the person entitled In that event the executors would have been required to make up the remaining $12,500 out of the estate. This possibility that the stock exchange insurance might fall short of $10,000 may well have furnished the reason for the somewhat peculiar phraseology of the second article of the will. The testator was fixed in his determination that his aunt should receive the full sum of $20,000. If he had simply given her $10,000 in addition to the “life insurance,” his purpose might have been defeated. By assuming the amount to become due from the exchange as a part of his estate, he made sure that any deficiency in that particular fund would be supplied from other assets

There remains to be considered the question what sum, if any, should be paid Miss Cottam by way of interest.

That a general pecuniary legacy, given without a designation by the testator of the time for its payment, does not begin to bear interest until a year after the testator’s death, is as well settled as any doctrine of law. Bradner v. Faulkner, 12 N. Y., 472; Wheeler v. Ruthven, 74 N. Y., 428; Brown v. Knapp 79 N. Y., 136; Kerr v. Douyherty, 17 Hun, 341; s. c., affirmed 79 N. Y., 327; Vernet v. Williams, 3 Dem., 349.

Section 43, title 3, chapter 6, part 2, R. S., (3 Banks [7th ed.], 2300), declares “that no legacies shall be paid by any executor until after the expiration of one year from the time of granting letters testamentary unless the same are directed by the will to be sooner paid. ”

In commenting upon this provision and the rule of the ecclesiastical and common law cqurts to which it gives legislative sanction, Andrews, J. says, in Wheeler v. Ruthven (supra): 1 ‘ The rule that a legacy is payable one year after the testator’s death only applies in the absence of a direction in the will controlling the general practice estab- , lished by the courts, or of other decisive direction in the instrument, as interpreted in the light of the surrounding circumstances, of a different intention on the part of the testator. This will is to govern where it speaks upon the subject, and the time of payment may be accelerated or postponed at the will of the testator. But the rule does not yield to doubtful indications in the will of an intention of the testator at variance with it.”

Now, there are only two expressions in the will of this testator that can be claimed to evince in the slightest degree a desire on his part that the legacy in question should be paid within the year following his death.

One of those expressions is contained in the tenth article; “It is my intention,” he there says, “that if my estate shall not realize a sufficient amount to pay all the legacies herein provided for, the legacy to my aunt first herein named shall be paid in full without scaling or reduction.”

That this provision exalts the claims of Miss Cottam above those of the' other beneficiaries under the will is indisputable; but it gives no direction and makes no suggestion to the executors as regards the time when the legacy thus preferred shall become payable.

The expression upon which counsel for the objector mainly relies is the following at the close of the second article of the will: “I direct that this legacy be paid as speedily as the law will permit.”

The law upon this subject has been already quoted. Unless a legacy is directed by the will to be sooner satisfied, the statute expressly forbids its payment until the lapse of a year from the grant of letters testamentary.

I am compelled to hold, therefore, that Miss Cottom’s legacy did not become payable until February 19, 1886. She is entitled, however, to interest on $10,000 from November 21. 1885, one year after the death of the testator. Dustan v. Carter, 3 Dem., 149.

She can claim no interest whatever on the remaining $10,000, as by her agreement with the stock exchange, to which the executors were not parties, she received in June, 1885, the sum of $9,746,68 in discharge of an obligation for $10,000 which that body was not bound to meet until a year from the testator’s death.

The executors are entitled to precisely the same credit in this regard as they could have claimed if they had themselves similarly anticipated the payment of $10,000, parcel of the $20,000 legacy. •

On November 21, 1885, interest would have begun to run on the remaining $10,000 but for the fact that the executors had advanced the legatees $200 on April 2, 1885.

They are entitled to a credit of $7.63 for legal interest on such $200 up to November 21, 1885.

The legatee is allowed interest on $9,792.37 from November 21, 1885, to the time when her claim shall be fully discharged, and from March 11, 1886, up to the time of such discharge interest will be allowed the executors on their $9,800 payment.

If the legatee should be paid to-day (December 1, 1886 i she would be entitled, as I make it, to $176.23.


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    In the Estate of Isaac Van Dyke, deceased.

      (Surrogate's Court of New York County,

      Filed December 15, 1886)

    1. Statute of Limitations—Six years limitation—8 R S. (3d ed ), page 394, REPEALED BY CODE OF" PROCEDURE, § 91—PRESERVED IN CODE Civ. Pro., § 382.
    The six years limitation prescribed by 2 R. S. (3d ed.), page 394, foi the bringing of actions, was kept alive after its repeal by Code of Procedure, § 91, and is still preserved in Code Civil Procedure, § 382, now in force.
    2 Same—Code Civ Pro., § 382—With certain exceptions made applicable by Code Civ. Pro., chap 4, tit. 3, § 414, to all civil actions • AND SPECIAL PROCEEDINGS.
    The rules of limitation contained in Code Civ. Pro., § 382, are, save in certain cases, by Code Civ. Pro., chap. 4, tit. 3, § 414, made applicable to all civil actions and special proceedings. It is immaterial whether the cause of action may have arisen before or after the enactment of Code Civil Procedure, chap. 4, so that'rights to relief already extinguished are not thereby revived.
    3. Same—Applicable to proceedings under Code Civ. Pro., § 2606.
    This limitation of the period for the commencement of an action is applicable to a proceeding brought by one of the next of kin of a decedent under the authority of Code Civ. Pro., § 2606, for an order compelling an accounting from the representative of the estate of a party since deceased, who was the administrator of this decedent’s estate.
    4. Same—Limitation—When demand necessary to perfect cause op ACTION.
    Code Civ. Pro., § 410, postpones the commencement of the time within which an action or special proceeding can be instituted in cases where a demand is necessary to entitle a person to maintain such action or proceeding until the time when the right to make such demand is complete.
    5. Same—Actions to recover legacy, etc.—2 R. S., part 2, chap. 6, tit. 5, § 9.
    Until the adoption of the second part of Code Civil Procedure, it was provided by section 9, title 5, chap. 6, part 2, R. S., that an action or special proceeding to recover a legacy or distributive share would not lie until after reasonable demand for payment, and such demand could not be made until the expiration of a year from the granting of letters'testamentary or letters of administration.
    8. Same—Code Civ. Pro., § 1819, substituted foe.
    It is provided by Code ( ivil Procedure, § 1819, that if, after the expiration of one year from the granting of letters testamentary or letters of administration, an executor or administrator refuses upon derpand to pay a legacy or distributive share, the person entitled thereto may maintain such action against him as the case requires. But, for the purpose of computing the time within which such an action must be commenced, the cause of action is deemed to accrue when the executor’s or administrator’s account is judicially settled, and not before. This is a substitute for section 9, title 5, chap. 6, part 2, R. S.
    7. Same—What cases excepted from operation of Code Civ. Pro., § 1819—Code Civ. Pro., § 3352—Laws 1880, chap. 245, § 3, sued. 2.
    The effect of Code Civ. Pro., § 8352, and Laws 1880, chap. 245, § 3, subd. 2, is to exempt from the operation of Code Civ. Pro., § 1819, those cases, and only those, in which the Statute of Limitations had accrued before it became law.
    8. Same—Limitations—Code Crv. Pro., §§ 1819, 2606

      Held, That in a case under Code Civ. Pro , § 2606, which arose after the enactment of § 1819, the next of kin might compel an accounting, the final account of the administrator not having been judicially settled, although the ordinary period limited for the commencement of an action had elapsed, in addition to the year computed from the granting of letter of administration. •

      Wm. S. Hall, for Erna Hyde, petitioner; Alexander MelTiado, for Lillie Sims, petitioner; Edward G. Black, for James 0. Van Dyke, adm’r, etc., of Michael Van Dyke, dec’d, resp’t.
   Rollins, S.

This is a proceeding brought by one of the next of kin of Isaac Van Dyke, deceased, under section 2606 of the Code of Civil Procedure, for an order compelling an accounting from the representative of the estate of Michael M. Van Dyke, deceased, who was in his life-time the administrator of the estate of this decedent.

Isaac Van Dyke died on August 18, 1874. Letters of administration upon his estate were issued to Michael M. Van Dyke on September 15, 1874. On September 11, 1885, Michael died, leaving a will which was thereafter admitted to probate, and an estate whereof this respondent was, on October 26, 1885, appointed administrator c. t. a.

The petition by which the present proceeding was se„ on foot was filed on September 16, 1886. The respondent insists by his answer that the petitioner’s claim has not been capable of enforcement since September 15, 1881, seven years after the issuance of letters to this decedent’s administrator.

That the statute limiting the period for the commencement of an “action” for obtaining the relief here sought, <or other relief of kindred character, is applicable to such a proceeding as the one at bar is well settled. McCartee v. Camel, 1 Barb. Ch., 455, 465; Clark v. Ford, 1 Abb. Ct. of App. Dec., 359; Mead v. Jenkins, 95 N. Y., 31; Carman v.. Brown, 4 Dem., 96; Warren, v. Paff, 4 Brad., 260; Martin v. Gage, 9 N. Y., 398; Clock V. Chedeagne, 10 Hun, 97; Cole v. Terpenning, 25 Hun, 482; Smith v. Remington, 42. Barb., 75; Am. Bible Society v. Hebard, 51 Barb., 552, 570; Loder v. Hatfield, 71 N. Y., 92; House v. Agate, 3 Redf. 307; Drake v. Wilkie, 30 Hun, 537; Butler v. Johnson, 41 Hun, 206; Foster v. Town, 2 Dem., 333.

The six years limitation prescribed by section 18, title 2,, chapter 4, part 3, of the Revised Statutes (vol. 2 [3d ed.], page 394), was kept alive after the repeal of that section by section 91 of the old Code of Procedure, and is still preserved in section 382 of the Code now in force.

This limitation applies to “actions” for obtaining payment of a legacy or a distributive share, and applies also to proceedings instituted in this court by the legatee of a tester or the next of kin of an intestate for a like purpose, or for compelling an executor or administrator to account. See cases cited [supra).

By section 414, tit. 3, chap. 4 of the Code of Civil Procedure the rules of limitation prescribed by section 382 are-made applicable (save in certain cases not necessary to be here specified) to all civil actions and special proceedings. It does not matter when the cause of action may have arisen or accrued, whether after or before the enactment of chapter 4 of the Code, except only that where before such enactment the right to relief had already become extinguished, it is not revived.

Section 410 of chap. 4, when read in the light of the definition of the word “action,” employed in section 414, postpones the commencement of the time within which an action or special proceeding can be instituted, in cases, where a demand is necessary to entitle a person to maintain such action or proceeding, until the time when the right to make such demand is complete. It was provided by section 9, tit. 5, chap. 6, part 2 of the Revised Statutes, 3 Banks (6th ed), 1232 (and this provision continued in. force until the adoption of the second part of the Code of' Civil Procedure), that an action or proceeding to recover a. legacy or distributive share would not he until after reasonable demand for payment; and such demand could not be made until the expiration of a year from the granting of letters testamentary or letters of administration.

Whether we look therefore to section 410 ante or to section 9 ante, as applicable to the matter now under discussion, it is clear that, but for a Code provision not yet referred to, if the administrator of this decedent had been living on September 16, 1886, the date of the filing of this petition, and if on that day, which was more than one year plus six years after such administrator had obtained his letters, a proceeding had been brought against him similar in character to the present, he could have successfully interposed the shield of the statute of limitations.

His right to the protection of that statute if it accrued at. all did not accrue, however, until September 15, 1881. Now on September 1, 1880, section-1819 of the Code of Civil Procedure became law. That section declares that “if after the expiration of one year from the granting of letters testamentary or letters of administration, an executor or administrator refuses upon demand to pay a legacyor distributive share, the person entitled thereto may maintain such an action against him as the case requires. But for the purpose of computing the time within which such an action must be commenced, the cause of action is deemed to accrue when the executor’s or administrator’s account is judicially settled, and not before.” This section is a substitute for section 9, title 5, chapter 6, part 2, Revised Statutes, to which I have before referred.

In view of the provisions of section 1819 and of the authorities above cited establishing the applicability to proceedings in this court of the rule of limitations applied in like cases in actions, I cannot doubt that as this decedent’s administrator never rendered any account of his trust, the petitioner could have maintained against him a proceeding like the present as well after as before September 15, 1881. This right subsisted at the time of the administrator’s death, and is now, under section 2606 of the Code, enforcible against his representative. This conclusion is supported by section 3352, whose provisions are, in substance, identical with those of subdivision 2, section 3, chapter 245, of the Laws of 1880. The effect of both those enactments is to exempt from the operation of section 1819 those cases, and those cases only, in which the right to interpose the statute of limitations had accrued before section 1819 became law. United States Life Insurance Co. v. Jordan, 5 Redf. 207; People v. French, 31 Hun, 617; Acker v. Acker, 81 N. Y,, 143; Butler v. Johnson, supra.

The respondent must account.


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    In the estate of James Griffith Henry, deceased.

      (Surrogate’s Court of New York County,

      Filed December 18, 1886.)

    1. Wills—Contest of probate—Allowance for stenographer’s minutes—Code Civ Pro., § 2258, sued. 3; £§ 2541, 2542, 2543.
    The unsuccessful petitioner for the revocation of probate of a will applied for allowance out of the assets of the estate for his expenses for stenographer’s minutes. It is provided by Codé Civ. Pro., § 2558, subd. 3, that in probate controversies the surrogate may order a copy of the stenographer’s minutes to be furnished to the contestant’s counsel and charge the expenses thereof to the estate if he shall be satisfied that the contest is made in good faith. Held, that in consideration of antecedent opinions expressed, and of this provision, allowance should be made to the petitioner out of the assets of the estate for any reasonable and proper expenses incurred by him in obtaining a copy of such “minutes” as are referred to in Code Civ. Pro., §§ 2541, 2542, 2543.
    2. Same—Relate to minutes oe testimony taken on tbial.

      Held, that these sections related exclusively to minutes of testimony taken in the course of the actual trial of a proceeding in the surrogate’s conrt.
    3. Same—Does not include deposition not used on tbial, etc.

      Held, that such allowance should not include expenses for a stenogra- " piher’s report of the examination of a person de bene esse where the deposition was not read in evidence at the trial nor returned in the manner provided for by Code Civil Procedure, § 880, nor the way paved for its introduction by proof of the death of the deponent, or her absence from the jurisdiction of the court or her inability to attend the trial by reason of her confinement in prison, or jail, or because of her insanity, sickness or other infirmity.

      T. H. Churchill, for proponent; Richards & Heald, for contestants.
   Rollins, S.

The unsuccessful petitioner for the revocation of the probate of this testator’s will asks by his present application that he be allowed out of the assets of the estate the sum of $203.42 “as and for his expenses for stenographer’s minutes.”

Subdivision 3 of section 2558 of the Code of Civil Procedure, provides that in probate controversies “the surrogate may order a copy of the stenographer’s' minutes to be furnished to the contestant’s counsel and charge the expense thereof to the estate if he shall be satisfied that the contest is made in good faith.” _

_ In view of this provision, and of the opinion expressed in my memorandum of October 4, 1886, I should feel bound to allow the petitioner out of the assets of the estate for any reasonable and proper expenses incurred by him in obtaining a copy of such “ minutes” as are referred to in sections 2541, 2542 and 2543 of the Code; and of such only. Those sections relate exclusively to minutes of testimony taken in the course of the actual trial of a proceeding in the surrogate’s court.

Now, it is not disputed that $174.12 of the $202.42 disbursed by the moving party herein was expended by him for a stenographer’s report of the examination de bene esse of one Catharine Moore. That deposition was not read in evidence at the trial, and was not returned in the manner provided for by section 880 of the Code. Nor was the way paved for its introduction in evidence by proof that the deponent had died, or that she was absent from the state or was unable to attend the trial by reason of her confinement in prison or jail or because of insanity, sickness or other infirmity.

For these reasons it is plain that to the extent of $174.12 the application of the moving party must be denied. I have some doubt whether he is not precluded by the stipulation of February 24, 1886, from claiming reimbursement for the sum of $28.30 paid the stenographer for a copy of the testimony actually taken at the trial; but I have concluded to allow him that amount of the assets of the estate.


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    Estate of William Winsor, lately a minor.

      Surrogate’s Court, New York County,

      Filed December 19, 1886.)

    Guardian—When mother being guardian entitled to charge for MAINTENANCE OF CHILD
    The mother of petitioner, who was his guardian, had limited resources. Held, That in absence of any facts indicating a purpose on her part to relieve her son and his estate from liability to reimburse her for sums expended for his benefit, she was entitled to an allowance for his maintenance from the death of his father.

      John A. Mapes, for guardian; H. F. Andrews, for Wm. Winsor.
   Rollins, S.

Richmond Winsor, the father of this petitioner, died intestate in the year 1863, leaving a small estate, whereof his widow, Josephine Winsor the petitioner’s mother, was appointed administratrix.

On November 2, 1885, a decree was entered in this court, whereby the account of Mrs. Winsor, as such administratrix, was judicially "settled and determined. That account showed that on May 1, 1886, she paid over to herself, as her son William’s general guardian, his share and interest in his father’s .estate, then amounting to $1,909.94.

William attained his majority on May 13, 1883, and on November 24, 1885, filed a petition praying that his guardian be cited to account. An account was filed by her on December 11, 1885.

Objections were subsequently interposed thereto, and the issues thus raised were submitted to a referee, whose report is now before me on a motion for its confirmation."

First. The guardian stands charged in her account with the above named sum of $1,909.94, and with $1,238.88 interest in addition, in all with $3,148.82. By his second objection, the petitioner claims that this statement is not an accurate statement of the moneys received by the guardian for his benefit. The referee has overruled this objection and the petitioner has excepted. This exception must be sustained.

The evidence establishes to my satisfaction that the moneys which came to the hands of the guardian from her husband’s estate have ever since remained intact; that with the accumulations thereon they amounted, at the time of their reinvestment in 1882 or 1883, to $3,666.66; that with such amount, together with the interest which the new investment has yielded from January 1, 1883, to the date when the decree herein shall be entered, the respondent must by such decree be held chargeable.

_ In view, however, of the limited extent of her resources since the death of her husband, the unremunerative results of the business in which she has been engaged for her own support and that of her son, and the absence of any facts indicating a purpose on her part to relieve the petitioner and his estate from liability to reimburse her for sums expended for his benefit, she is, in my judgment, justly entitled to an allowance for past maintenance. Matter of Bostwick, 4 Johns. Ch., 100; Wilkes v. Rogers, 6 Johns., 566; Matter of Kane, 2 Barb. Ch., 375, 381; Marring v. Coles, 2 Brad., 349; Bruin v. Knott, 9 Jur., 979; Voessing v. Voessing, 4 Red., 360; Brown v. Bedford, 4 Deni., 304, 310; Furman v. Van Sise, 56 N. Y., 435; Beardsley v. Hotchkiss, 96 id., 201, 219; Hyland v. Baxter, 98 id., 610, 614.

The credit claimed by her in this regard is not, under all the circumstances, unreasonable. It is, therefore, allowed.

So also is the amount which the referee in his third finding has held to be chargeable against the petitioner for moneys advanced him by his guardian. The latter should be charged with the sum for which the referee in his fourth finding has found the petitioner entitled to credit.

The report of the referee, with such modifications as I have indicated, is confirmed.


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    In the estate of Samuel Willets, deceased.

      (Surrogate's Court of New York County,

      Filed December 21, 1886.)

    Trustees—Accounting of—Objection to.
    The executors of a will were directed by a decree entered determining their accounts to pay themselves as trustees a sum stated as a fund to produce the several annuities provided for in the will. The will provided that that fund and the unappropriated income thereof should, on the decease of the annuitants as they should respectively die, be divided * * * and that for the purposes of the trust the trustees should only retain a sum sufficient to produce the required amount for the remaining annuitants. Upon the presentation of the account of the trustees for judicial settlement it was claimed by parties objecting thereto that the income yielded by the fund in the hands of the trustees was much in excess of the sum necessary to feed the annuitants and that a portion of it therefore should be returned to the residuary estate, and it was asked that a reference be ordered to ascertain what portion might be so returned without jeoparding the claims of the annuitants. Held, that though it might be that if a smaller fund than that in the hands of the accounting parties would be sufficient to secure the annuities that such remedy would properly be applied, yet any inquiry in that regard should be had in a proceeding instituted for that purpose.

      Wilson M. Powell, for trustees; George H. Foster, for ■contestant.
   Rollins, S.

This testator’s executors were directed, by a decree entered in April, 1885, whereby their accounts were settled and determined, to “pay to themselves as trustees the sum of $400,000, as a fund to produce the sevei’al annuities provided for in said will.” This direction they obeyed on May 1, 1865, and on January thirtieth of the present year they filed their account as trustees of the fund in question. The will provides that that fund, and the unappropriated income thereof, shall, on the decease of the annuitants, as they shall respectfully die, be divided among the grandchildren of the testator who shall be living at the time of the death of the annuitants respectively; and that for the purposes of this trust the trustees shall only retain a sum “ sufficient to produce the required amount for the remaining annuitants.”

The will of Mr. Willets consisted of three testamentary papers. One of the articles of the first of these instruments directs a division of the residuary estate into six shares, and the payment of the income of' such shares respectively to •the testator’s six grandchildren so long as they shall respectively live, and the division of the principal of each of said shares, at the time of the death of the grandchild to whom such share had theretofore yielded income, among his or her lawful issue.

As to one of these grandchildren, Mrs Aurelia W. Leavitt, and as to her issue, the foregoing provision was revoked by a codicil; but I have heretofore determined that though Mrs. Leavitt is thus expressly excluded from sharing in the income of the residue, she will be, so long as she shall live and so long as any portion of the annuity fund shall remain in the hands of the trustee, entitled equally with the testator’s other grandchildren to a portion of the surplus of that fund and of its income, as such surplus shall from time to time arise and become distributable by reason of the death of an annuitant. See Frame v. Willetts (4 Dem., 368).

To the account now before the surrogate several objections have been filed in behalf of the residuary cestuis que trustent. None of these objections, however, are now insisted upon except this: It is claiméd that the income yielded by the $400,000 fund is much in excess of the sum necessary to feed the annuitants, and that a portion of that fund theretofore should be returned to the residuary estate. Counsel for the objectors asks that a reference be ordered to ascertain what portion may be thus returned without jeoparding the claims of the annuitants.

This is a matter which cannot, it seems to me, be properly considered in the proceeding now before the court. It does not concern the correctness of the account for whose judicial settlement and determination this proceeding was brought, The objection in question does not point out any error in that account. It neither seeks to charge the trustees with amounts claimed to have been omitted by them nor to falsify items with which they ask to be credited.

If it can be shown to the court in a proper proceeding that a smaller fund than that now in the hands of the accounting parties would be amply sufficient to secure the annuities, it may be that these objectors will be found entitled to the relief which they here seek, but any inquiry that may be had in this regard should be had in a proceeding instituted for that express purpose.