author: Daniels, J.; Beady, J.:

text:
    JOHN A. GRAY, Respondent, v. SAMUEL W. GREEN, HENRY A. BURR and GILBERT W. THOMAS, Appellants.

      Absolute assignment of securities, given to be used as collateral to a loom — rights of pa/i'ty talcing such assignment with knowledge of the facts.

    The plaintiff recovered a judgment upon a contract against the defendant Green for $71,979.23, from which judgment on appeal was taken and security given. Plaintiff, desiring to raise money, agreed with one Thomas that the latter should raise $15,000 for him, for three years, at ten per cent per annum, and gave to him his note for $19,500, due in three years, indorsing upon the back of it that the assignment of the contract and judgment were received, but held only as security for the payment of the note. The assignments of the contract and judgment were to be in the same form, but Thomas, by whose order they were made, procured them to be assigned directly and absolutely to him, he representing that he could effect a loan with a person named by him for the required amount. This representation was false, and he never used the note or assignments to procure a loan from any person. Instead of so doing he entered into an agreement with Green, and one of the sureties to the undertaking given on the appeal, by which he sold the judgment to them for $21,000, and satisfied it of record. Green and the surety had notice of the fact that Thomas was only authorized to pledge the contract and judgment for a loan of $15,000. This action was brought by the plaintiff to have the transaction declared usurious and void, and to have the assignment and satisfaction of the judgment set aside.

      Held, that as no loan had, in fact, been made, the transaction could not be usurious.
    That as plaintiff had failed to return the $15,000 he could not demand that the assignment and satisfaction be set aside on the ground of fraud; but that as Green and the surety knew that Thomas had no other authority than to make a loan of $15,000, and assign the contract and judgment as collateral thereto, they could only hold the contract and judgment as a security for a loan of that amount, and that plaintiff was entitled to redeem them on repaying to them that amount.
    Appeal from judgment in favor of tbe plaintiff, entered on tbe trial of this action at tbe Special Term.

      E. JST. Dickerson, for tbe appellants.

      Clarkson PT. Potter, for tbe respondent.
   Daniels, J.;

On tbe 9tb of April, 1874, tbe plaintiff recovered a judgment upon a contract against the defendant Green, for $71,979.23. Being in straitened circumstances be desired to obtain a loan of money on tbe security of tbe judgment and contract. For that purpose be employed tbe defendant Thomas, to act as bis agent, and an understanding was -formed between them, that Thomas should effect a loan of $15,000 for three years at ten per cent interest. For that purpose tbe plaintiff made and delivered to Thomas bis note for tbe sum of $19,500, due in three years, and indorsed upon tbe back of it, a statement declaring that tbe assignment of the contract and judgment were received and held only as security for tbe payment of tbe note. Tbe assignments themselves were intended to express tbe same thing, but as Thomas, to whose order tbe note was made payable, procured them to be drawn, they were made directly to him, and absolute in form. He represented to the plaintiff that he conld effect the loan from r-person residing in Jersey City, at the rate of interest and for the périod of time included, in their understanding. But as the facts were found upon evidence justifying the conclusion of the learned justice presiding at the 'trial, that representation was entirely unfounded. The defendant Thomas, had no arrangement with the person- mentioned by him for the loan of the money, and no expectation or design of obtaining the money from him. And neither the note nor the assignment were in any form used in procuring a loan of money from the person referred to, or any other person. For that reason the conclusion that the transaction was a usurious one ought not to be sustained. There can be no usury where there is no loan.

The facts found by, and stated in the decision of, the learned justice, show that the defendant Thomas, entered into a negotiation with the other defendant’s counsel for a sale of the judgment recovered by the plaintiff, to the defendant Burr, who was a surety for the defendant Green, upon an appeal taken from it to the General Term. And under the authority of the defendants Green and Burr, an agreement was made to pay the defendant .Thomas, $21,000 for an absolute assignment of the contract and judgment, and a discharge of the judgment of record. And it was to carry out that agreement, that Thomas induced the plaintiff to make the note and execute the assignments delivered by him. The note was not required, and was not used for any other purpose than to afford a pretext for the acquisition of the assignments of the judgment and the contract. And the latter were made and delivered'upon the supposition on the part of the plaintiff, created by the fraudulent representations of Thomas, that they were necessary and were only to be used by him in obtaining the contemplated loan of money. They were not so used, and no intention existed on the part of Thomas to use them in any form for the purpose of effecting a loan. But they were taken by him, and to himself to enable him to consummate the arrangement he had made to assign the contract and the judgment, and discharge the latter of record for the sum he was to receive from the defendant Burr, being $21,000. It was the plaintiff alone who expected a loan would be made upon the papers; neither Thomas, 7ior the other defendants. nor their counsel intended any thing of that kind. Their design on the other hand was to obtain the absolute title to the judgment and contract, and the discharge of the judgment from the records. And it was to carry that into execution that the $21,000 was furnished and paid by the defendant Burr, to the defendant Thomas. For that consideration the latter assigned the contract and judgment and satisfied the judgment of record. And it was a portion of the money so received that Thomas paid over to the plaintiff.

That payment, it is true, was made as the loan the plaintiff proposed to make on the security of the assignment of the contract and judgment, at a usurious rate of interest, when in fact no such loan had been made or interest reserved. As to the nature and character of the transaction the plaintiff was fraudulently deceived throughout by the misrepresentations of Thomas, whom he had employed as his agent. The agreement between the plaintiff and his agent, it is true, was for a loan to be affected at an unlawful rate of interest; but the agent wholly failed to procure it at that or any other rate of interest. What he did was to take an absolute assignment of the contract and judgment to himself, and. then make a sale of them in his own name to Burr, for $21,000, fifteen of which he formally delivered to the plaintiff.

Even if it be assumed, as the learned justice presiding at the trial has found, the fact that the counsel acting for Burr, or that himself and Green, had reason to believe that Thomas was perpetrating a fraud upon the plaintiff in making the absolute assignments which he did, and discharging the judgment, that would not transform the transaction' into the one the plaintiff intended it should be. But if it was characterized by bad faith on the part of the defendants Burr and Green, as it was found from the evidence to have been, they thereby became participants in and parties to the fraud committed by the defendant Thomas. And for that the plaintiff would be entitled to such redress as the law was able to afford him.

To avail himself of its remedies, he prosecuted his action in the form required for a rescission of the transaction, and for that purpose it was speedily instituted after the discovery of the imposition. But an insuperable obstacle in the way of maintaining it for that relief arises out of tbe omission of tbe plaintiff, either to restore or to offer to restore tbe fruits of tbe fraudulent transaction. He could not bold and enjoy tbem, as it appears be did, and at tbe same time rescind wbat bad been done to obtain tbe money. To tbe extent of tbe sum paid to bim be bad certainly been benefited by wliat bad been done. And -bis own agent appropriated tbe residue of tlie money advanced. For that reason before be could rescind tbe transfer, and repossess bimself of tbe contract and judgment, tbe law required him either to return, or offer to return wbat bad been received by bim from tbe other party to tbe transfer. He could not retain that, and in that manner benefit bimself by tbe result of tbe fraud, and still repudiate tbe process through which it bad been obtained.

This principle has become exceedingly well settled. (Curtiss v. Howell, 39 N. Y., 211, 215 ; Cobb v. Hatfield, 46 id., 533.) And as tbe plaintiff wholly failed to comply with wbat it required from bim, be did not place bimself in a condition to secure relief in that form, while tbe judgment awarded it to bim. In that respect as well as tbe other, relating to tbe claim of usury, it was erroneous and cannot be sustained.

But it was found by tbe learned justice as a fact, that both tbe defendants Burr and Green, and tbe counsel acting for tbem, bad knowledge that tbe defendant Thomas bad been employed by tbe plaintiff only to procure a loan of $15,000 for bim upon tbe judgment and contract. And tbe evidence was sufficient to warrant tbe belief that their counsel at least was aware of tbe existence of that fact. He represented these two 'defendants in tbe transaction, and notice of it to bim was legally speaking notice to them. And with sucb knowledge they could not deal with tlie defendant Thomas, and still bind tbe plaintiff in any different manner than that in which they knew bim to be empowered to act. To tbem, that was the utmost limit of tbe authority which Thomas bad received for tbe disposition of tbe judgment, and tbe contract. And while it is true no loan was in fact made, yet, as tbe plaintiff received the sum of $15,000 from bis agent Thomas, supposing it to be tbe loan be was to make, tbe transfer of tbe judgment and contract may equitably be sustained as a security in favor of Burr to that extent. Thomas was authorized to hypothecate tbem subject to tbat restraint, but no farther. And so far as he endeavored tD exceed this, in the formal disposition which was made, he acted without authority. And as the purchaser was chargeable with knowledge of that want of authority he can only be equitably protected tc the extent to which the power of disposition had been given. And that can properly be done because of the advance made as the consideration of the assignment.

The amount paid was entirely inadequate as the price of the securities received. And that circumstance also will warrant the court upon the other facts found in converting the transfer into a redeemable security. (Boyd v. Dunlap, 1 Johns. Ch., 478; Dunn v. Chambers, 4 Barb., 376.)

The excess paid to the plaintiff’s agent was beyond his authority to receive, and as the plaintiff had no benefit from it, but its payment was a fraud upon him, he should not be prejudiced by that portion of the transaction. As he intended only to effect a loan of $15,000 through the intervention of the defendant Thomas, and tbe other defendants were found to have had notice of that, and the plaintiff received no more than that, the transaction, though in forn an absolute sale, can only be maintained as security for that amouni of money. And to that extent it is just and equitable, that it should be sustained. For that reason the judgment should be so modified as to allow the plaintiff to redeem by the payment, within a reasonable time, to be for that purpose designated, of the $15,000 received by Thomas under his authority, and afterwards delivered to him, with interest from that time. And as no offer to redeem has been made by the plaintiff he should also be required to pay the costs of the defendants Burr and Green in this action.

Davis, P. J., concurred.

Beady, J.:

I think if any money is to be restored the whole sum paid should be refunded, and not a part only; otherwise I concur.

Judgment modified as directed in opinion.


source: Caselaw Access Project

author:
Davis, P. J.:
      u VaN Yoest, J.:

license: Public Domain

text:
    SAMUEL NEWELL, Executor, etc., of ELIZABETH M. WALTER, Deceased, and with SAMUEL TREAT, sole surviving trustee under her will, Respondents, v. GEORGE H. NICHOLS AND JOHN T. MURPHY, Executors, etc., of CHARLES W. WALTER, Deceased, AUGUSTA STINDE and others, impleaded with JOSEPH RIDGWAY, and others, Appellants.

      Death of several persons in one disaster — presumption as to survivorship — tur den of proof.

    Elizabeth. M. Walter died in 1870, leaving her husband and two children, _a son and daughter, her surviving, and a last will, by which she devised all her property to trustees therein named in trust to sell and invest the proceeds so as to make three funds, one of $80,000 and the other two of $15,000 each ; the income of one of the funds of $15,000 to be paid to the daughter during her life, the principal to be paid at her death to the heirs of her body then living, and in default of such heirs, to whom she might appoint by will, and in default of appointment, to the heirs of the body of the testatrix then living, and in default of such heirs, the remainder over to certain persons therein ilamed The trust as to the other $15,000 for the benefit of the son was the same. The income of the $80,000 fund to be paid to the husband, and, upon his death, the principal to be paid to the heirs of the body of the testatrix then living, and in default of such heirs, then the remainder to go to certain persons ■ before named.
    The father and two children sailed in the Schiller and were lost in its wreck, there being no evidence of any survivorship. In an action brought for the construction of the will, and the determination of the persons entitled to the trust estate, held,

    That there was no presumption of law arising from age or sex as to the survivor-ship among persons whose death is occasioned by one and the same cause; nor is there any presumption that they all died at the same time, but the burden of proof is upon the one asserting the affirmative.
    That, under the will, the title to the estate vested in the trustees immediately on the death of the testatrix and so remained until the death of the children and husband, and that no title or legal interest therein vested in the husband or children.
    That as the legal title was not in the children, they had nothing, if they perished in the same moment, to transmit, and that in order to authorize the next of kin or heirs at law of either child to take, the survivorship of such child must be proved.
    That upon the happening of the contingency contemplated by the will, that is upon the death of the children without issue and without heirs of the body of tlie testatrix tlien living, tlie estate of the trustees terminated, and the remainder vested in possession in those to whom it was limited.
    That the remainder-men made out a case when they proved the loss of the issue of the body of the testatrix by the same disaster, as, under such circumstances, without proof of survivorship, the default contemplated had occurred.
    The will gave the remainder “to the children or heirs of Frederick A. Ridgway, Moses Ridgway, John Gunn and Henry Gunn.” Held, that the devise was to the children or heirs of each of these persons, and that the devisees took per stirpes and not per capita.

    Appeal from a judgment entered on tlie trial of -this action at tbe Special Term.
    Elizabetli M. Walter, died October Y, 18Y0, leaving a last will and testament of wliicli tlie following are tlie material portions:
    “ Fourth.. I give, devise and bequeath, to my said husband, Charles W. Walter, and my friends, Samuel Treat, of St. Louis, Missouri, and Samuel Newell, of Clifton, New Jersey, and to the survivor of them, and to their successors in this trust, all of my estate, real, personal and mixed, not hereinbefore disposed of, in fee simple, and of absolute property, in trust, however, for the following purposes, to wit: With power to the survivor or survivors of said trustees to appoint a successor or successors in place of any of them who may 'die during the continuance of this trust. First, to set apart, sell, mortgage, convey, lease or otherwise dispose of the same as by them may be deemed advisable, and to invest the proceeds thereof ■ and reinvest said proceeds so as to make two funds of $15,000 each, and one fund of $30,000 to be held by them in trust as aforesaid, the income of one of said funds of $15,000 to be paid by said trustees, semi-annually, to my beloved daughter, Mary R. Walter, as a memorial of her aunt Clara, during her natural life, for her sole and separate use, the principal of said fund to be paid at her death to the heirs of her body then living; and in default of such heirs living, to whom she may appoint by her last will and testament, discharged of all further trust, and in default of said heirs of her body living at the time of her death, or of said appointment, the remainder over to the heirs of my body then living, and in default of heirs of my body living at the time of her death the remainder over to the children or heirs of Frederick A. Ridgway of Ithaca, New York, Moses Ridgway, of West Newbury, Massachusetts, John Gunn and Henry Gunn, the last two being brothers of my mother, dischajged of all further trust.” Then followed the same provisions as to the other fund of $15,000, in favor of her son.
    “And the income of the said fund of $30,000 to be paid by said trustees, semi-annually, to my beloved husband, Charles W. Walter, during his natural life, the principal of said fund to be paid at his death to the heirs of my body then living; and in default of heirs of my body living at the time of his death, the remainder over to the children or heirs of Frederick- A. Eidgway, of Ithaca, New •York, Moses Eidgway, of West Newbury, Massachusetts, John Gunn and Henry Gunn, the last two being brothers of my mother.
    And it is my will that that portion of my estate hereby bequeathed and devised to said trustees, in trust, which shall not be by them used to create said three funds respectively; two of $15,000 each, and one of $30,000, shall be held by them, in trust, for the following purposes : to sell, mortgage, lease, convey, or otherwise dispose of the same, as by them may be deemed advisable, and to invest the proceeds .thereof, and reinvest such proceeds, so as to make two equal funds, each of said funds to be held by them in trust as aforesaid; the income of one of said funds to be paid to my beloved daughter, Mary E. Walter,'during her natural life, and the principal of said fund to be paid at her death to the heirs of her body then living; and in default of such heirs of her body living at the time of her death, then the income of said fund to be equally divided between my other children during the life of my said son, Joseph E. Walter, and at his death the principal to be paid to the heirs of my body then living, and in default of heirs of my body then living, to the children or heirs of Frederick A. Eidgway, of Ithaca, New York, Moses Eidgway, of West Newbury, Massachusetts, John Gunn and Henry Gunn, the last two being brothers of my mother.” Then followed a similar provision as to the other fund.
    “ It is my will that my friend, Mrs. Louisa Bartlett, wife of Edmund Bartlett, of Newburyport, Massachusetts, shall have $3,000 out of that part of my estate which, by the foregoing provisions of my will, would, in the event of a failure of issue of my body, go to my collateral relatives, the Eidgways and Gunns above named.”
    At the time of Mrs. Walter’s death she left her surviving, her husband, Charles W. Walter, and two infant children, Mary E. Walter and Joseph E. Walter. In 1814, Mrs. Eidgway, the mother of Mrs. Walter, Charles W. Walter, the husband and the two children, Joseph E. and MaryR., embarked in the steamship “Schiller,” and were drowned when that vessel was wrecked. There was no evidence to show which, if any, of those persons survived. This action was brought to obtain a judicial construction of the will and to determine the rights of the several parties mentioned therein.

      George O. Genet and others, for the appellants.
    The direction in the will of Mrs. Walter to her executors to sell the real estate for a division between her two children being positive, the estate is, in that respect, to be regarded as personal estate to be disposed of by, the laws of this State, which was the domicil of the testatrix, without regard to the location of the property. (Phelps v. Pond, 23 N. Y., 69; Makings v. Cromwell, 1 Seld., 136 ; Hosford v. Nichols, 1 Paige, 226; Nicholson v. Leamitt, 4 Sandf., 276; Andrews v. Harriott, 4 Cow., 508, 527, note; Hatch v. Bassett, 52 N. Y., 361; Gutter v. Damenport, 1 Pick., 81; Holmes v. Remsen, 4 Johns. Oh., 462; Storey’s Conflict of Raws, § 424, and cases in note, §§ 428, 445.) TJpon the death of Mrs. Walter the whole estate at once vested in her two children, one-half in each, whether under the will or under the statute, subject only to the execution of the trusts or powers contained in the will, whatever they may be. (White v. Howard, 52 Barb., 294; S. C., 46 N. Y., 144; Boynton v. Hoyt, 1 Den., 57; Langr. Ropke, 5 Sand., 363 ; 2 E. S., 729, §§ 56, 58; Hatch v. Bassett, 52 N. Y., 361, 362; 1 E. S., 729, 730, §§ 60, 61, 62; Lefevre v. Befevre, 59 N. Y., 446.) The law favors the construction which is in favor of the heir of the testator. {Quinn v. Hardenbrooh, 54 N. Y., 86.) The rule is peremptory that the heir shall not be disinherited unless by plain and cogent inference arising from the will. {Doe v. Ding, 2 M. & S., 445; Van Kleelc v. Dxitch Church, 20 Wend., 457, 471.) The trust estate terminated at the death of each beneficiary. (1 E. S., 730, § 67; Harris v. Clark, 3 Seld., 259; Savage v. Burnham, 17 N. Y., 574; Everett v. Everett, 29 id., 71; De Barrante v. Gott, 6 Barb., 493.) The whole estate being vested in the children, subject only to the trusts, it remains so vested until those who claim under the contingent remainders prove the happening of the events which entitle them, or any of them, to the whole or any portions of the estate. The law presumes things that exist to be right until the contrary is proved. The burden of evidence is on the claimants, who, in this case, are the Bidgway family. It is incumbent upon the claimants to show their title by proof that all the contingencies have happened which were a condition precedent to their right'. They must therefore prove, to obtain either half, that one child died before the other, and which one died the first, so as to show that when one died there were no heirs of the body of testatrix living to inherit; also that Walter survived the children. In this case there is no presumption of law, either that they perished at the same moment or that either survived the other, and, in the absence of the proof, the court will not attempt to pass the estate through the will, but will adjudge an intestacy after the trust life estate in the two children provided for in the will. (Wing v. Angrave, 8 H. of L., 183; Underwood v. Wing, 4 DeG., M. & G., 661; In Green’s Settlement, 1 Law B. E<p, 288; Ta/ylor v. Dvplock, 2 Pliillimore, 261; Burnett v. Tug* well, 31 Beav., 232 ; Boughton v. Randall, Oro. Eliz., 503; Galvin v. Kings, Proc. 1, Hagg. E. B., 92 ; Scheyer’s Case, id., 748; Moehring v. Mitchell, 1 Barb. Oh., 264; Goye v. Leach, 8 Mete. [Mass.], 371.) Should this view of the law be overruled, then the executors of Walter are entitled to an account, and to receive from the estate of Mrs. Walter the income due on the trust fund of $30,000 from the time of Mrs. Walter's death to his own, at seven per cent, whether it was set apart to him or not. Where the object of a trust is to raise an annuity for support, the interest is payable from the death of the testator. ( Willimison v. WilUmnson, 6 Paige, 304; Le Terrier v. Bul/wer, 2 Sim., 18 ; Goolc v. Meeker, 36 N. Y., 15 ; 34 How., 115; Bevlwis Estate, 1 Tucker, 460; 2 B. S., 97, § 79, as amended ; Sess. Laws 1867, chap. 782, § 11.)

      B. Roelker, for the heirs of John and Henry Gunn, ‘ respondents.
    In the event that several persons die in the same disaster, and there is no evidence that one survived the others, the Ameri-. can and English authorities recognize no artificial presumption arising from age, sex or physical condition, but all are taken to have died at the same instant, and there is no transfer of rights or property from the one so dying to any of his companions in the disaster. When, therefore, a party, on whom the burden lies of proving the survivorship of one individual over another, has no evidence beyond the assumption that from age or sex the one individual must be taken to have struggled longer against death, he cannot succeed. All English cases bearing on this subject are collected in W. M. Best on Law of Evidence (vol. 2, p. 187), 1st Am. ed., by II. J. Wood (pp. 72F-727, § 410). (Treatise on Evidence, by John Pitt Taylor [London, 1873], vol. 1, p. 201, § 159; Greenl. on Ev., vol. 1 [13th ed.], p. 38, § 30, note 2; Goye v. Leach, 8 Mete., 371; Smith v. Groom, 7 Fla., 81-180 ; Pell v. Ball, 1 Oheves Eq., 99; Moehring v. Mitchell, 1 Barb. Ch., 264; 3 Hagg. Eccl. B., 748 [1831]; Durant v. Friend, 5 DeG. & S., 343; Wright v. Netherwood, or Wright v. Sarmuda [Prerog. Easter Term, 1793], Notes of Evan’s Ed. of Salic, 593; Mason v. Mason, 1 Men vale Ch., 308 [1836] ; In the Goods of Robert Murray, 1 Curteis, 596; Saterthwaite v. Powell, id., chap. 705; Austrian Civil Code, § 25 ; Prussian Civil Code; Civil Code of Holland, § 878; Underwood v. Wing, 16 Beav., 459; S. C., 31 L and Eq. B., 293 ; S. C., on appeal before the lord chancellor, 4 DeG., M. & G., 633 ; and in the House of Lords in 1860, under the name of Wing v. Angrrne, 8 II. of L., 183.) The devise in the will to the heirs of the Bidgways and Gunns was a contingent and executory or conditional limitation, which took effect when the precedent limitation failed. In the case at bar, but for the subsequent limitation to the Bidgways and Gunns, the property bequeathed would have passed to the residuary legatees or heirs at law. But that limitation does not fail, because the precedent estate did not take effect. Where a devise is limited to take effect upon a condition, or a contingency annexed to a preceding estate, if that preceding estate should not arise, the remainder over will, nevertheless, take place, the first estate being considered only as a preceding limitation, and not as a preceding condition, to give effect to the subsequent limitation. (Norris v. Beyea, 13 N. Y., 287; Avelyn v Ward, 1 Yes., Sr., 419; Warren v. Rudal, 4 ICay & Johnst., 603; Jones v. Westcomb, Prec. Ch., 316 ; Foster v. Goolc, 3 Brown Ch., 286; Murray v. Jones, 2 Yes. & B., 313 ; Pearsall v. Simpsons, 15 Yes., 29.) The will of the testatrix provides that the executors and trustees shall have the power to sell and convey, or otherwise dispose of the same, and to invest the proceeds so as to make the two funds of $15,000 each, and one for $30,000; this provision creates an equitable conversion of the real estate into a personal estate from the time of the death of the testatrix. (Stagg v. Jackson, 1 Oomst., 206; Graham v. Livvngston, T Hun, 11 ; Kinnie v. Royers, 42 N. Y., 531; Skinner v. Quinn, 43 id., 100 ; Crittenden v. Fairchild, 41 id., 289 ; Dodge v. Pool, 23 id., 69; AsKby v. Palmer, 1 Hoffman, 219 ; 1 Jar. on Wills, 52S ; 2 Story Eq., § 191, pp. 1212-1214.) The provisions of the Revised Statutes in relation to uses and trusts do not refer to personal property. (Genet v. Beehmcm, 26 N. Y., 41.) Trusts in personal estate are subject to no statutory restrictions ; in other words, the legislature has never attempted to define and enumerate the lawful occasions for creating such trusts. They stand, therefore, as at common law, subject only to the statutory rule against the snsjiension of ownership for more than two lives. (Qilma/n v. Redington, 24 N. Y., 12; see, also, Manice v. Manice, 43 id., 380 ; and in Brown v. Harris, 25 Barb., 134.)

      Wm. Fullerton, for administrators, with the will annexed, of Mary Ridgway deceased, respondents.

      George-C. Blanhe, ior guardian ad litem of infant children of Frederick A. B. Ridgway, respondent.

      Henry Arden, for children of Moses Ridgway and guardian ad litem for Susie and Joseph R. Gunn and others, respondents.
   Davis, P. J.:

This case received at the hands of the learned judge before whom it was tried at Special Term, a most elaborate and careful consideration. In disposing of it he pronounced the following opinion:

u VaN Yoest, J.:

Whether the remainder over to the children or heirs of Frederick A. Ridgway, Moses Ridgway and John and Henry Gunn, has become wholly legally vested in them in possession depends upon the determination of the question, as to whether or not, there was any survivorship between the two children, the mother and husband of the testatrix, who were drowned with the sinking of the steamship ‘.Schiller.’

If they all died in tbe same moment, then neither the children nor the testatrix left heirs of their bodies living, and the remainders in question in their entirety, by the express terms of the will, vest in the children or heirs of the persons above named.

Questions of doubt and perplexity have often arisen with regard to the title to property and the distribution of estates where several persons, upon the survivorship of one of whom the question rested, have perished in the same calamity, such as a shipwreck or battle, and where there was no evidence as to who died first.

The civil law considex’s questions of this nature and has enunciated cei’tain rules deduced from probabilities arising from the age and difference of sex of the parties. If the persons pei’ishing were under fifteen, the eldest was presumed to survive. If all were above sixty the youngest was presumed to have survived. The French Code recognizes presumptions of survivorship growing out of the ages and sex of persons pei’ishing in a common disaster. (Kent’s Com. vol. 2, p. 435 and notes; Best on Evidence, vol. 2, § 410, and Creenleaf on Evidence, vol. 1, § 29, where the references to the French and civil law are collected.)

The Code of Louisiana following the civil law, has adopted fixed rules upon this subject. (Civil Code of Louisiana, §§ 930-933.)

By the law of India, where relatives perish thus together, it is presumed that they all died at the same moment and the property of each passes to his living heirs without any portion of it vesting in his companions in misfortune. (Baillies’ Law of Inheritance, 172.)

By the Civil Code of Holland (§ 878), in the absence of evidence, the presumption is, that all persons die together at the same moment, and. that there is no transmission or succession from one in favor of the other.

The English Common Law has never adopted these provisions. It requires the survivorship of two or more persons to be established by facts and not by any arbitrary rule or prescribed presumption.

It would seem to be unsafe to rely upon any presumption arising, either from age or sex with regard to survivorship of persons exposed to a common peril by the sinking of a ship. It is true; that one might, by strength and powers of endurance survive the other, but the strongest might perish first. Experience in such cases shows that no rule can be unalterably adopted to determine survivorship. ( Vide the numerous cases cited in Beck’s Medical Jurisprudence), on the “ presumption of survivorship,” which the author considers an “ intricate ” question.

These cases show the inherent difficulty of reaching any rule upon this subject, in the entire absence of evidence, although in the end the learned author is inclined to the conclusion, that the pi’ovisions of the French Code, with some modifications, appear to. be best adapted for administering equitably in the majority of cases that may occur. (Beck’s Medical Jurisprudence, vol. 1 [12th ed.], chap. 10, p. 642.) •

The subject was considered in The King v. Dr. Hay (1 W. Bl., 640; S. C., 4 Burr, 2295).

General Stanwix, his second wife, and a daughter by a former wife, perished in a vessel lost at sea. No account of the manner of the perishing was ever received. Application was made for the granting of letters of administration of the effects of the General to his nephew and next of kin, on an allegation that there were no living children, wife or other relative in the same or any nearer degree. The maternal uncle and next of kin to the daughter claimed the effects under a notion of the civil law, that where parent and child perish together and the manner of death is unknown, the child shall be presumed to survive the parent. The court sustained the nephew’s claim, upon the ground of its being for the administration only and not for the distribution of the estate.

An interesting argument in support of the claims of the contestants is found in Fearne’s Posthumous Works (page 38, note); Wright v. Samada (2 Salk., 593; S. C., 2 Phillimore, 266, note C), one Netkerwood made a will, leaving his wife his residuary legatee. He gave her also, his real estate for life, and appointed Samada his executor. His wife died leaving three children by him. In 1779 he married the sister of his first wife, and had issue, one son. In 1791, Netherwood, his wife and son -were lost in a vessel that had foundered at sea.

Probate of the will was granted to Samada who was afterwards called upon to prove it, or show cause why the probate should not be revoked, and administration granted to the next of kin of the deceased as having died intestate.

It was claimed on tbe. bebalf of the next of kin of the father and husband, that the subsequent marriage and birth of the child revoked the will, and that the presumption was, that the husband and father survived.

Sir "William: WyNNE said: £I always thought it the most natural presumption that all died together, and that none could transmit rights to another. Then what are the circumstances at his death ? He had neither wife nor children. Therefore there is nothing to raise the implication of revocation at that time. Therefore, taking into consideration, that there was no wife or child at his death, I pronounce for the will.’ (Doe v. Nepean, 5 B. & Ad., 91, 92.)

In Taylor v. Diplock (2 Phillimore, 261), Taylor and his wife perished in a vessel wrecked in Falmouth harbor. The husband, left a will constituting his wife executrix and residuary legatee. A question arose whether the relatives of the husband or wife were entitled to the residue. The brothers and sisters of the husband on the one side, and the mother of the wife on the other side, prayed administration with the will annexed.

The counsel for the next of kin of the husband claimed that the burthen is thrown on the adverse party, to show that there ever was a moment of time in which the property vested in the wife. Sir JohN Nicoll held, that the burthen was on the person claiming derivatively from the residuary legatee, the wife, to show that the testator left a residuary legatee; that the next of kin of the .residuary legatee is to show that the wife survived the husband. In commenting upon the evidence, the court stated: There is no evidence direct as to this point; some inferences have been deduced.' It is stated that the two bodies were found together. This tends to show, that they were in the same situation at the time of death. Upon the whole, I am not satisfied that proof is adduced that the wife survived. Takingdt to be that both died together the administration is due to the representatives of the husband. I assume they both perished in the same moment, and therefore I grant the administration to the representatives of the husband. I am not deciding that the husband survived the wife.’

In Colvin v. Procurator General (1 Hagg. Ecc. R., 92), administration of the goods of an intestate drowned together with his wife and only ebild, was granted to a creditor of tbe bnsband on tbe presumption that tbe husband survived, tbe debt being large and tbe property small. ,

In the Matter of the goods of Henry Selwyn (3 Hagg. Ecc. R., 748), tbe husband and wife having been drowned together, tbe court, tbe wife’s next of bin not opposing, granted probate in common form of tbe husband’s will to tbe executors substituted in tbe event of her dying in bis lifetime, tbe will naming her executrix if living at bis decease.

Per Curiam: Instances have occurred, where, under similar circumstances, tbe question has been, which of tbe two survived \ but in tbe absence of clear evidence it has generally been taken that both died in tbe same moment.’ Taylor v. Diplock (supra), was cited in support of this conclusion.

In the Matter of the goods of Robert Murray (1 Curteis, 596), a husband, bis wife and child having perished together, administration was granted of tbe husband as having died a widower. Tbe husband left a will in which be bad bequeathed tbe whole of bis property to bis wife. Tbe court, on motion, granted administration with tbe will annexed to tbe next of kin of tbe husband, there being nothing to show that the wife survived, tbe next of bin of tbe wife consenting.

In Satterthwaite v. Powell (1 Curteis, 705), where husband and wife were drowned by tbe same accident, it was held that tbe presumption is that they died at tbe same time, and that in order to entitle tbe next of bin of tbe husband to tbe wife’s property it must be shown that be survived her.

Sir Hbebeet JeNNer said: The principle has been frequently acted upon, that when a man dies possessed of property that tbe right to that property passes to bis next of kin, unless it be shown to have passed to another by survivorship. Here tbe next of bin of tbe husband claim tbe property which was vested in tbe wife. ' That claim must be made out. Tbe parties must be presumed to have died at tbe same time, and there being nothing to show that tbe husband survived tbe wife, tbe administration must pass to her next of bin.’

In Mann v. Mann (1 Merin., 308), an issue was directed to try whether tbe son was living at tbe death of tbe testator, bis father. the father and son baying been shipwrecked, and haying perished together, it being held that there was no legal presumption of survivorship. (Durant v. Friend, 5 De Gex & S., 343.)

But by far the fullest consideration has been given to the subject in Underwood v. Wing (19 Beavan, 459), and on appeal before the chancellor and two law judges (- 4De Gex. M. & G., 633). Mr. Underwood devised his real and personal estate to the defendant W ing, his heirs, etc., etc., in trust for his wife, her heirs, etc., etc., absolutely. But the will provided that, in case the wife died in her husband’s lifetime then he directed that his real and personal estate should be held by his trustee upon trust for such of his children as, being sons or a son, should attain the age of twenty-one years, and being a daughter should attain that age, to be equally divided among them, share and share alike; and in case all his children should die under twenty-one, then the property was given to William Wing. The testator appointed his wife and Wing executrix and executor.

Mrs. Underwood devised and bequeathed all her estate, real and personal, to her husband, his heirs, etc., etc., absolutely; and her will proceeded in these words : (Subject to the estates and interests of my children therein, under and by virtue of the will of John Tully, deceased); and in case my said husband shall die in my lifetime, then I devise, bequeath and appoint the said hereditaments,’ etc., etc., £unto and to the use of William Wing, his heirs,’ etc., etc. The testatrix appointed her husband and Wing executors.

Underwood, his wife and then* three children embarked on a ship for Australia, which foundered at sea, and, with the exception of one sailor, all on board, including Mr. and Mrs. Underwood and their two sons, were washed into the ocean by the same wave. The daughter survived, but perished a short time afterward. All the children died under twetity-one, unmarried.

Wing proved the wills of Mr. and Mrs. Underwood.

The plaintiff obtained letters of administration of the daughter, the surviving child.

Plaintiff insisted that Mr. and Mrs. Underwood died simultaneously, and that the event had not happened on which Mrs. Underwood had bequeathed her property to Mr. Wing; and that Mrs. Underwood died intestate as to ber interest in ber separate property, and it belonged to tbe plaintiff as administrator of tbe surviving daughter.

Plaintiff also contended tbat tbe limitations and bequests in tbe will of Mrs. Underwood, for tbe benefit of Wing, were wholly contingent and dependent upon tbe event which, it was insisted, bad not happened — of Mrs. Underwood dying in tbe lifetime of ber husband; and tbat, under tbe circumstances, tbe clear residue of Mr. Underwood’s personal estate belonged to tbe estate of bis daughter, as bis sole next of kin surviving him. It was claimed, on tbe behalf of tbe defendant Wing, tbat Mr. Underwood survived bis wife, and tbat ber property passed, in tbe first instance, to tbe husband, and afterward passed, together with tbe husband’s property, to tbe defendant Wing.

Tbe Master of tbe Nolls, among other tilings, said: * All tbe reported cases concur in this, tbat in such a state of things, it is impossible for tbe court to come to any conclusion as to which died first.

‘ Tbe result is, tbat it being impossible, in the absence of any evidence on tbe subject, to come to tbe conclusion tbat one died before tbe other, no decision can be formed on tbe assumption tbat cither was tbe survivor.

My opinion is tbat I must consider tbat there is no evidence to show me who is tbe survivor, and tbe conclusion of law is tbat I cannot found any decision on tbe assumption tbat either was tbe survivor. Tbe result is, tbat I think tbe defendant lias not made out tbat tbe contingency has arisen on which bis title depends, and I must make a decree accordingly.’

Upon appeal, tbe judgment of tbe Master of tbe Nolls was affirmed.

It was there decided tbat tbe question of survivorship is tbe subject of evidence to be produced before tbe tribunal which is to decide upon it, and which is to determine it, as any other fact, and tbat there was no evidence to show whether tbe husband or tbe wife was tbe survivor.

Tbe Chancellor, Lord CraNWOR;th, on tbe appeal, in considering the question as to upon whom the burden of proof rests, said : ‘ I think tbe principle once being admitted, tbat the prima facie title is in the nest of kin, that it must rest on the person who claims the property, under a bequest giving it to him in that particular event. It is not for the next of kin to show'that the wife did not die in her husband’s lifetime ; but that the person who claims under the disposition must show, not that probably it might be one way or the other, but that that state of circumstances did in fact occur which entitles him, according to the language of the will, to say that the wife did die in her husband’s lifetime.’

And in Wing v. Angrave (8 H. L. Cases, 183) after full examination the judgment in Underwood v. Wing was approved, and the principle of the decision distinctly affirmed.

I have been thus careful to examine and collect together these cases from the English courts, so as to deduce the rule of law applicable to cases of this character. And I conclude that they establish that there is no presumption of law, arising from age or sex,' as to the survivorship among persons whose death is occasioned by one and the same cause; nor is there any presumption that they all died at the same time, and that the burden of proof is on the one asserting the affirmative.

The result is well stated by Mr. Best, in his Principles of Evidence : ‘ When, therefore, a party on whom lies the onus of proving the survivorship of one individual over another, has no other evidence than the assumption that from age or sex one individual must have struggled longer against death than his companion, he cannot succeed. But, on the other hand, it is not correct to suppose that the law presumes both to have perished at the same moment. This would be essentially an artificial presumption against manifest probability.’

And the American cases, limited in number, are substantially to the same effect. (Coye v. Leach, 8 Metc., 371; Smith v. Croom, 7 Florida, 81, 180; Pell v. Ball, 1 Chevy [Eq.], 99 ; Robinson v. Gallier, 2 Wood C. C. R., 178; Southern Law Rev., vol. 11 [N. S., 1876-77, p.594]; N. Y. Legal Observer, vol. 3 [1845], p. 269.)

In the case of Moehring v. Mitchell (1 Barb. Ch., 270), the only' LÑTew York case to which I have been referred, or which I have been able to find on this subject, the chancellor says, upon a certain contingency: ‘ It would have been unnecessary, perhaps, to inquire whether there is any legal presumption that the husband survived the wife when they have both perished by the same disaster, and when there is no extrinsic evidence to guide the judgment of the court upon this matter of fact; ” but in the case before him, he said it was unnecessary “ to inquire whether it must be presumed that the husband survived his wife.”

The Chancellor cites the cases of Taylor v. Diplock, Alvin v. The King’s Procurator, and Selwin’s case (supra), as favoring a legal presumption in such a case in favor of the survivorship of the husband, upon the presumed ground, “ that the greater strength of the male would probably enable him to sustain life the longest in such a calamity.”

But a close examination of those cases shows that their disposition did not turn upon any such legal presumption, but, in reality, upon a failure of satisfactory evidence to establish a survivorship in fact. And as far as Sillick v. Booth (1 Young & Col., 117) favors any presumption of survivorship arising from age or sex, it must be considered as overruled by Underwood v. Wing, and Wing v. Angrave (supra) which embraces the most thorough and satisfactory examination of this question.

In the case at bar, there being no legal presumption of survivor-ship, no rights could have been transmitted by one child to the other, nor to his or her heirs or next of kin, and under the authorities above cited, the burthen of establishing a survivorship rests upon the party who claims any portion of the estate through such fact. The real contention in this case, as developed on the trial and in the argument of the counsel for the respective parties, involves the principal sum of the three trust funds directed to be invested for the children and husband of the testatrix.

Those claiming as next of kin and heirs of the two children of the testatrix, as well as those claiming to stand in the same relation, to the testati i.x herself are before the court. The personal representatives, next of kin and heirs at law of the two children on the one hand, and on the other, the children of Frederick A. Bidgway and Moses Bidgway and the hems of John and Henry Gunn, make claims radically conflicting.

The claim of the latter is under the will of the testatrix, by which the remainder over in default of heirs of the bodies of the children and of the testatrix living at the time of the death of the children respectively is devised and bequeathed to them.

The claim of the heirs and personal representatives of the two children of the testatrix is interposed in opposition to the will, and upon the supposed ground of intestacy as to the property in question upon the deaths of the two children. And here they arc met by those claiming as heirs at law and next of kin of the testatrix herself, who in such event affirmatively claim the estate.

If the claim of the heirs at law and personal representatives of either of the two children be founded upon the notion, that oné child left the other surviving as the living heir of the body of the testatrix, and as such, entitled to the share held in trust for the life of the deceased child, the onus of proving the fact of such survivorship would doubtless rest upon the party affirming such fact.

But the claim made by the representatives of the two children and their heirs at law is, that upon the death of the testatrix the whole estate embraced in the trust descended to and vested in the two children as her sole heirs at law, and remained so vested, subject to the execution of the trusts or powers created and imposed for the life of each, which estate for life terminated at the death of the children, and that the burthen is cast upon the remainder-men to prove the happening of the events or contingencies, or the existence of the defaults which entitle them or any of them to the whole or any part of the estate. In other words, that it is cast upon them to prove, not an affirmative fact of survivorship, but rather a negative, that there was, in fact, as to the children, no survivorship.

For if there was no survivorship, if both children perished in the same moment, then there was no living heir remaining of the body of the testatrix. This involves a construction of the will.

It seems reasonably clear, under the provisions of the will, that it was not the intention of the testatrix to vest the substance of her gifts in her children or her husband, but in the issue of her children, and in default of issue in those whom the children should appoint, and in default of such appointment and of heirs of liei body, in those in whose favor the remainder over was limited.

Not only by the express terms of the will, but also by a neces sary implication, arising from tbe duties imposed. Tbe title to tbe estate in question vested in tbe trustees and must needs continue in them until tbe purposes of tbe trust were accomplished, and that at least so long as tbe children lived. No title or interest in law vested in tbe cestuis que trust, tbe children and husband of tbe testatrix. They acquired equities under tbe will, but no legal estate in tbe property itself. (1 R. S., 729, § 60 ; Amory v. Lord, 5 Seld,, 403 ; Knox v. Jones, 47 N. Y., 396.)

To bold that tbe title to this property vested in tbe beneficiaries would, I think, be in manifest opposition to tbe intention of tbe testatrix.

From tbe death of tbe testatrix tbe legal title was in tbe trustees and so remained until tbe death of tbe children and husband, and the heirs at law and personal representatives or next of kin of tbe children take nothing under tbe will unless one child died in tbe lifetime of tbe other, in which event tbe personal representatives of tbe surviving child would administer, under tbe statute, its share in tbe personal estate to which it was entitled as tbe only living heir of tbe body of tbe testatrix, and tbe heirs at law of tbe survivor would succeed to its share of tbe real estate.

But tbe burden of proving such survivorship, as already stated, must rest upon those who affirm tbe fact and claim thereunder.

Tbe trust was active and legal in its inception and purposes, as was tbe disposition over of tbe remainder, and on tbe happening of tbe contingencies contemplated, that is, upon tbe death of tbe children without issue and without heirs of tbe body of tbe testatrix then living, tbe estate in tbe trustees was ended and tbe remainder over vested in possession in those in whose favor it was limited.

In tbe cases of Underwood v. Wing, and Wing v. Angrave (supra), one of tbe conditions upon which tbe estate over was given to Wing was, that Mrs. Underwood should die in tbe lifetime of her husband. This was considered to be a condition precedent to tbe consummation and vesting of tbe gift. In that case a child (tbe daughter) survived, for a brief period, her parents and brothers. Failing tbe gift over, she, as next of kin and heir at law, became legally invested with tbe estate. She bad tbe prima facie right to tbe property, and claim was made by her legal representatives. The daughter’s right to the property was absolute, unless the property was conveyed away by the will. Hence, it was incumbent upon those claiming under the will, to show that the condition upon which the estate was given to Wing, namely, the death of the wife in the lifetime of her husband, had occurred. In the case at bar, the gift over is a contingent estate in remainder, depending upon the ultimate event of there being no heirs of the body of the testatrix at the death of her children (1 Rev. Stat., 723, §§ 9, 10, 11, 13; Powers v. Bergen, 6 N. Y., 360; Leslie v Marshall, 31 Barb., 560), and is construed to bo a conditional limitation. A remainder may be limited on a contingency, which, in case it should happen wall operate to abridge or determine the precedent estate, and every such remainder shall be construed a conditional limitation and shall have the same effect as such limitation would, have by law. (1 Rev. Stat., 125, § 27.)

And á conditional limitation carries the estate over to the persons to whom it is limited upon the happening of the contingency. (4 Kent’s Com., 127; Washburne onEeal Property, vol. 11, pp. 20, 22, and cases cited.)

If, upon failure of that upon which the estate is made to depend, no matter how expressed, the land is to go to a 'third person, this is a limitation over and not a condition.

It was an inflexible -rule of the common law that the remainder must vest at the moment — if not sooner vested — of the determination of the precedent estate, or else it could not vest at all. (Camphell v. Rawdon, 18 N. Y., 418.) Such estates were liable to be defeated by circumstances subsequent to their creation, but the validity of the limitation is never questioned. (Id.) But for the subsequent limitation to the Bidgways and Gunns the property would have passed to the residuary legatees or heirs at law. But that I imitation does not fail because the precedent estate did not take effect.

Where a devise is limited to take effect upon a condition or contingency annexed to a preceding estate, if that preceding estate should not arise the remainder over will take place — the first estate being considered as a preceding limitation and not as a preceding condition. (Norris v. Beyea, 13 N. Y., 287 ; Warren v. Rudall, 4 Ray & Johnson, 603; S. C., Law Journal [1859, N. S.], vol. 28, part 1, p. 70; Buckworth v. Thirkell, 3 Bos. & Pull., 652; note.]

As when a testator meant to dispose of all his property and uses the words “ if the legatee should not survive,” held to mean if the preceding legacy should from any cause fail.” (Avelyn v. Ward, 1 Vesey, Sr, 419; Rickman v. Morgan, 2 Brown’s Ch. Cas., 396 ; Jones v. Westcombe, 1 Eq. Abbt., 245 ; Foster v. Cook, 3 Brown’s Ch., 347; Doo v. Brabant, 3 Bro. C. C., 397; Taylor v. Taylor, A. & R., 386; Jackson ex dem. Beach v. Durland, 2 Johns. Cases, 314.)

The disposition made by the will of the property during the lives of the children being legal, in whom could the estate vest under the facts when liberated from the trust by the death of the children, other than those to whom the remainder was limited ? No one can lawfully claim in opposition to the remainder-men, except through one of the children as a survivor. Eor unless one child survived there was no living heir of the body of the testratrix. There can be no new stock of descent except through a surviving child, and in order to lay the foundation for such claim the fact must be proven by the person claiming. There can be no presumption of such survivorship.

In the case of Underwood v. Wing, there was a child who survived, who, as heir or next of kin, had theprima facie right, and through whom her legal representative and next of kin claimed.

Here there is no evidence of the existence of a surviving heir of the body of the testatrix through whom his or her legal representatives or next of kin may claim through a prima facie right. Who are the heirs or next of kin in whom the legal estate can vest, to the exclusion of those, in whose favor the remainder is limited ? And of whom are they such heirs or next of kin — the son, or the daughter? They might be 'such as well of the son as the daughter.

It is the merest speculation or conjecture as to whether there was a survivorship at all, and both cannot be entitled. Nor is the necessity of proving a survivorship wholly obviated through an attempted solution of the difficulty by adjudging an intestacy as to the remainder at the death of the children. In such condition the obstacle is not overcome, but only postponed. The legal title was not in the children, and they had nothing, if they perished in the same moment, to transmit.

In the case of White v. Howard (infra) it was held that a remainder in four-sixths of the real estate of the testator, contingent upon the death of his daugher leaving no descendants her surviving, was not embraced in the trust created by the testator, as the devisees were incapable of taking, and the remainder was undisposed of by the will. The daughter was the sole heir. She became seized at the death of the testator of this remainder as the heir of her father ; and being so seized, upon her death the estate went to her heirs. But it is obvious that this result was reached only through the original invalidity of the devise over, the devisees, four charitable societies, being incapable by law of taking by devise. Bat in the case we are considering there is no inherent invalidity in the gift, as the remainder-men are capable of taking.

But if it be adjudged that from the difficulty only in carrying it into effect, and not from any invalidity on the part of the persons to take the remainder, the testamentary disposition must fail, then the next of kin and heirs at law of the surviving child would, in the first instance, take. But if the life estate was terminated by the death of both in the same instant — they being not seized or possessed of the estate — then the heirs at law and next of kin of the testatrix take.

But they can only take on the contingency which limits the remainder to the children and heirs of the Bidgways and Gunns ; and such adjudication, while it would clearly defeat the intention of the testatrix, would work needless injustice.

In Wright v. Samada, Taylor v. Diplock, and Satterthwaite v. Powell (supra), the effect of the decisions is to cast the burden of proof upon the next of kin who derive title through a survivorship of one out of several lost in a common calamity, to prove the fact.

The intention of the testatrix is clear. She desired that her property should go, in the first place, to her direct descendants, heirs of her body, and only when there was no such descendants, it should go to her collateral blood relatives designated by her.

Those who claim affirmatively that at the respective deaths of the two children there were heirs of the body of the testatrix, through whom they are entitled to succeed, must show it.

Those to whom the remainder is devised and bequeathed make out a case to entitle them to the estate, when they prove the loss of the issue of the body of the testatrix by the same disaster, as under such circumstances, without proof of survivorship, the default contemplated has occurred — the limitation to the heirs of the body of the testatrix has failed, and the remainder over to the Kidgways and Gunns must be held to have taken effect.

The question whether the real estate, by the provisions of the will, was equitably converted into personal, was argued on the hearing.

To constitute a conversion of real estate into personal, in the absence of an actual sale, it must be made the duty and be obligatory upon the trustees to sell in any event; amere discretionary power of selling produces no such effect. ( White v. Howard, 46 N. Y., 144, 162.) I do not find in the will any such absolute duty or obligation to sell. The direction is to set apart, sell, mortgage, lease or otherwise dispose of same, as by the trustees might be deemed advisable They doubtless had the power to sell, but were not obliged to do so, if in theii' judgment the purposes of the will could be accomplished by setting apart, mortgaging or leasing. And not having been sold there is no equitable conversion of the real estate, and the property must be viewed as it was at the death of the testatrix. (Harris v. Clarck, 3 Selden, 242.) But under the views above expressed, I do not see that it changes the result, whether the property was equitably converted or not.

By the expression in the will, “ to the children or heirs of Frederick A. Bidgway, Moses Bidgway, John Gunn and Henry Gunn,” is meant to the children or heirs of each of those persons. Any other construction would be contrary to the evident intention of the testatrix, especially so in view of the fact in evidence, that John Gunn had been dead several years when the will was executed. The devisees take per stirpes, and not per capita; and one-fourth part óf the estate in remainder belongs to the children or heirs of each of the persons above named. (2 Kent’s Com., 425 ; Bool v. Mix, 17 Wend., 119; Fissel's Appeal, 27 Penn. Stat. R., 55 ; Bassett v. Granger, 100 Mass., 348.)

The legacies of $5,000 to Alfred Baumgarten and of $3,000 to Mrs. Louisa Bartlett are valid, and should be paid, if not already satisfied, before any distribution of the estate between the persons to whom the remainder is given.

The silverware belonging to Mrs. Walter, and in tbe possession of tbe executors, under ber husband’s will, should be delivered to her surviving executors, to be disposed of by them as a portion of ber estate. Tbe case shows that tbe trustees did not sell tbe real estate, or create, by a conversion of tbe property of tbe testatrix, tbe investments contemplated by ber for ber children and bus-band. Their efforts to sell tbe real estate to this end, proved unavailing. There is no proof of any negligence on their part in this matter, and it is urged, on their behalf, that tbe whole estate was not of a sufficient value to raise tbe amounts.

Tbe rule is3 without doubt, that where trustees, under a will are directed to make investments to a specific amount out of property and funds sufficient for tbe purpose — tbe income of which is directed to be paid to persons designated, that such persons are entitled to legal interest on tbe amount directed to be invested. Sometimes, howevei’, tbe rate is adjusted at five or six per cent. But if tbe estate was insufficient to raise tbe funds for such investment, such rule is not applicable.

No investment having been specifically made, and tbe character of tbe estate as it came into tbe bands of tbe trustees not having been materially changed, tbe income of tbe whole estate, after payment of debts and specific legacies, should be passed to tbe credit of tbe cestui que trust up to tbe time of their death, to an amount equal to six per centum per annum upon tbe sum directed to be invested, from tbe death of tbe testatrix. But if insufficient to pay such amount, I do not think that tbe deficiency should be made a charge upon or be paid out of tbe corpus of the estate. Tbe value and condition of tbe estate does not justify any such direction.

If correct in tbe viéw above expressed, tbe power of sale with which tbe executors were clothed, cannot now be exercised, as tbe realty lias passed over to those to whom tbe remainder was given. Tbe power to sell was given only to raise tbe moneys, out of -which tbe investmeuts directed were to be made. But as that exigency now no longer exists, tbe cestui que trust being dead, there is no occasion for tbe exercise of tbe power.

Nor is any conveyance from tbe trustees necessary, as their estate terminated with tbe death of tbe father and children. A reference is needed to pass npon and settle the accounts of the executors and trustees, to the end that they may be relieved of future duty and care, and the estate closed. Which reference may extend, if it be desired, to an inquiry as to the nature and value of the estate at the death of the testatrix, and as to what, if any, part thereof has been sold or otherwise disposed of, and as to its present value and condition, and the income received therefrom and the charge thereon.

The particulars of the reference to be settled by the judgment to be entered therein.”

Our examination has led us to the same conclusions reached by Mr. Justice Yan Yorst, both upon the law and facts of the case. The questions involved are intricate and interesting. The opinion above quoted discusses them with marked clearness and ability, and exhibits the most commendable care and research.

We are not disposed to impair its value to the profession by entering upon any new or further discussion, but content ourselves with adopting it as a full and satisfactory expression of the views of this court.

The judgment appealed from should be affirmed, but under the circumstances of the case the costs of the appeal on both sides should be paid out of the fund.

Ordered accordingly.

Daniels and Bradt, JJ., concurred.

Judgment affirmed, with costs of appeal on both sides to be paid out of the fund.


author: Davis, P. J.:

text:
    JOHN DUNLOP, Plaintiff, v. THE PATERSON FIRE INSURANCE COMPANY, Defendant. JAMES JACKSON, Receiver of the PATERSON FIRE INSURANCE COMPANY, Appellant, v. THE CHEESBOROUGH MANUFACTURING COMPANY and others, Respondents.

      Foreign corporation — attachment of property of — effect of appointment of receiver in another State — Money deposited with court — attachment of.

    The property of a foreign corporation, actually within this State, is liable to attachment in a suit brought by a creditor here, although a receiver of the corporation has been appointed in another State.
    The title acquired by a receiver subsequently appointed in this State, is subject to any lien that may have been acquired by an attaching creditor.
    Money deposited with the clerk of a court, in lieu of a bond on appeal, is liable to attachment in another action brought against such depositor, such attachment binding the reversionary or contingent interest of the depositor therein.
    Appeal from an order made at Special Term denying a motion to set aside a levy on certain moneys, made under two attachments issued against the Paterson Fire Insurance Company, one in an action by the Cheesborough Manufacturing Company, the other in an action brought by one Schneider, and denying leave to the receiver, appointed in the first above-entitled action, to come in to the actions in which such attachments were issued, for the purpose of moving to set aside the attachment and order of publication granted therein.
    The attachments were issued against the insurance company (a foreign corporation), and a levy made thereunder on the sum of $2,000, deposited by the insurance company with the clerk of the City Court of Brooklyn, as security upon an appeal in an action in which the insurance company was appellant. At this time a receiver of the goods, etc., of the insurance company had been appointed in the State of New Jersey. The plaintiff in the second action was, after such levy, appointed receiver of the insurance company in the State of New York.

      Preston ¡Stevenson, for the receiver, appellant.
    This application is regularly made. A receiver seeking relief against any person interfering with the discharge of his official duties must apply originally in the action in which he was appointed, and persons praying relief against him must apply in the same manner. (Bich v. Loutrel, 18 How., 121; In re Gutba Percha Co., 17 id., 549; Steele v. Stwrges, 5 Abb., 442; Biggs v. Whitney, 15 id., 388; Diclterson v. Van Time, 1 Sandf., 724; Vincent v. Pmdter, 7 Paige, 65; Albany City Bank v. Schermerhorn, 10 id., 263; De Groot v. Ja/y, 30 Barb., 483;. Winfield v. Bacon, 24 id., 160; In re Harmony Ins. Oo., 45 N. Y., 310 ; Binn v. Astor Ins. Co., 59 id., 145; T. & S. Practice, vol. 1, p. 766, et seg.; Bussell v. E\ Anglian Bailway Co., 3 Mac. & G., 112, et seg.) The fund upon which the sheriff of Kings county claims to have made a levy is not attachable. It is in custodia legis. Any interference with it, other, than by the jurisdiction under which it is first secured, and in the same proceeding, is absolutely void and of no effect. (Taylor et al. v. Carryl, 20 How. [U. S.], 583, citing English and American cases, especially at page 594, et seg., per McLean, J., and at page 607, et seg., per Taney, Ch. J.; Freeman v. Howe et al., 24 id., 450, and cases cited.) The clerk of the City Court of Brooklyn has given no certificate, nor will he do so. Can he be attached as for a contempt of this court ? ( William v. Benedict, 8 How. [U. S.], 107; Hagan v. Bacas, 10 Peters, 400; Peale v. Phipps, 14 How. [U. S.], 374; Peck v. Jermess, 7 id., 612; Payne v. Drewe, 4 East, 523.) The principle contended for has been expressly decided in this State in the case of sheriffs attempting to levy upon the proceeds of executions in their hands, in behalf of creditors of the execution creditor. (Muscot v. Wooboorth, 14 How., 477; Baker v. Kemworthy, 41 N. Y., 215; Wait’s Practice, vol. 2, p. 161; see, also, Drake on Attachment [4th ed.], § 251, and cases cited in note 3, also § 503, et seg.; Crane v. Freese, 1 Har. [N. J.], 305 ; Shinn v. Zimmerman, 3 Zab. [N. J.], 150.) Numerous authorities upon the precise case at bar, i. e., money in court or in the hands of clerks, have determined the point beyond dispute in favor of the appellant here. (Wait’s Practice, supra; Orary’s Special Proc. [5th ed.], vol. 1, p. 112; Drake on Attachment [4th ed.], §§ 251, 492, et seg., 509, et seg., and cases cited; and especially Alston v. Clay, 2 Haywood [N. C.], 171; Hunt v. Stevens, 3 Iredell [N. O.], 365; 7 Gill & Johns. [Ct. App., Md.], 421; 1 Humphreys [Tenn.], 132; 3 Hill [S. CL], 12; 1 Murphey [N. CL], 48; Sargeant on Attachment, 89; Locke on Attachment, 33, 44.)

      Ooudert Bros., for .the respondent.
   Davis, P. J.:

The attachment of the Cheesborough Manufacturing Company was sued out and levied before the appellant was appointed receiver of the property of the Paterson Fire Insurance Company in this State. At that time the property of the insurance company, actually within this State, was liable' to attachment at the suit of creditors here, notwithstanding a receiver had been appointed in New Jersey.

The property levied on by virtue of the attachment was the sum of $2,000, then in the hands of the clerk of the City Court of Brooklyn, in lieu of a bond on appeal by the insurance company from a judgment recovered against it in that court to the General Term of the same court.

In a certain sense the money was in custodia legis, and the attachment could not affect the possession of the clerk, nor divert the money in any wise from the special objects and purposes for which it was deposited. But, for other purposes, the title of the money remained in the insurance company, and in the event of two contingencies its rights thereto would be as complete as before the deposit: First, if the judgment should be reversed, the money would belong wholly to the insurance company, and could be withdrawn by the depositor; second, in case of. an affirmance, the residue of the money, if any, after satisfying the judgment and all costs, would belong absolutely to the company, and could also be withdrawn.

No attempt was made to interfere with the possession or control of the clerk. The effort was merely to secure, by the- attachment, whatever rights, reversionary or otherwise, the insurance company had therein. Those rights were property, and we see no sound reason why they should not be attachable at the suit of a creditor. The service of the attachment and notice thereof upon the clerk vas not a contempt of the City Court, as an attempt to take the money from the clerk might be, but it was analogous to an attachment upon moneys in the hands of any other depositary who has a lien or claim which entitles him to keep the possession as against the owner and the attaching creditor. In all snch cases the levy ot the attachment is good to the extent of the real interest of the creditor as it then exists or may subsequently be ascertained.

When the receiver was subsequently appointed in this State the title or interest which he took, was and is subject to the prior lien acquired by the attaching creditor. We see no reason, therefore, for setting aside the levy of the attachment.

The application, to be allowed to come in and move to set aside the attachment and order of publication, was not based on very meritorious grounds. It was not an absolute right, but the mction was addressed to the discretion of the court. We think the discretion was not abused, and that the order should be affirmed, with costa and disbursements.

Beady and Ingalls, JJ., concurred.

Order affirmed, with ten dollars costs and disbursemewta.


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    SANFORD E. GEE, Appellant, v. THE CHASE MANUFACTURING COMPANY, Respondent.

      Bill of 'pm'tieulwrs — office of.

    The office of a hill of particulars is merely to limit the generality of a complaint and to prevent surprise upon, the trial, and not to furnish evidence for tha opposite party; and where an order directing a hill to he furnished seems calculated to enable the defendant to seek out evidence to meet the claim, rathe? than to ascertain the items of which it is composed, it should he reversed.
    Appeal from an order'requiring the plaintiff to furnish a further and more detailed statement of four items of an account for services and disbursements, and staying the action until such further statement was furnished.
    The action was begun December 12,1816. A bill of particulars was demanded and served. A further bill was demanded and served. Defendant still required a further bill. The plaintiff notified defendant’s attorneys he could not give any further statement. Thereupon a motion was made which resulted in the order now appealed from.
    Plaintiff was a traveling salesman for the defendant. He made two journeys to Europe for the defendant. The account sued upon is for the expenses of these journeys, and for commissions. The items which were required to be further itemized were the following: “ Expenses in London for board, room, fire, etc., six
    months, currency.............................. $1,100 00
    “ Expenses to Germany and return................ £58 0 0
    “ Expenses, railroad fares and hotel hills, in traveling from London to Birmingham, Manchester, Leeds,
    West Hartlepool, Liverpool, New Haven and return, at different times, about........................ 100 0 0
    “ Sundry expenses on both trips for cab fares, city railroad fares, office expenses, stationery, postage, labor in setting up and repairing and cartage of machines, oil, pipe, meals, fees, etc., about.................. 150 0 0”
    The order required that the plaintiff herein serve upon the attorneys for the defendant a further bill of particulars, specifying with respect to the items in the bill of particulars heretofore served: “ Expenses in London for b.oard, room, fire, etc., six months, currency, §1,100; ” the particular months during which said expenses were incurred in London; when and with whom plaintiff boarded and roomed, and at what rate per diem or per week, or how.
    And specifying with respect to the item in said bill of particulars: “ Expenses, railroad fares and hotel bills, in traveling from London to Birmingham, Manchester, Leeds, West Hartlepool, Liverpool, New Haven and return, at different dates, about £100;” in what year and what months plaintiff incurred the alleged expenses; the names of the hotels at which he stopped in each of the places named, and the dates, as nearly as possible; also the amount paid for railroad fares, and the amount paid for hotel bills.
    And specifying with respect to the item in said bill of particulars : “ Sundry expenses on both trips for cabs, fares, city railroad fares, office expenses, stationery, postage, labor in setting up, repairing and cartage of machines, oil, pipe, meals, fare, etc., about £150;” how much of said amount was expended on the first trip mentioned therein, and how much on the second trip; also, how much rent was paid for office and at what date such rent was paid; how much for other office expenses, and how much for setting up, repairing, etc. Each to be stated separately.
    And, further, specifying with respect to the item in said bill of particulars: “ Expenses to Germany and return, £58; ” the date when plaintiff visited Germany; the length of time he remained there; the amount paid for passage, and the amount expended for other expenses.

      Edward Patterson, for the appellant.

      Matthews, Husted <& Foley, for the respondent.
   Davis, P. J.:

We think the items objected to in the bill already furnished were too general and ought to have been made more definite and certain in some particulars. But the order made by the court below seems to us to be too stringent, and to carry the statement required beyond the true office of the bill of particulars. As was said by Robertson, C. J., in Drake v. Thayer (5 Robertson’s Superior Court Reports, 701): “The office of such a supplemental statement as a bill of particulars is merely to limit the generality of a complaint, and to prevent surprise on the trial, but not to furnish evidence.” The order made in this case goes into details with all the particularity of ft cross-examination, and its object seems to be to enable the defendant, by such an examination of the plaintiff, to seek out evidence to meet the claim rather than to ascertain the items of which it is composed.

In respect to the first item it was proper to require that the plaintiff should state the particular months during which his expenses were incurred in London, and .there is no difficulty in the plaintiff furnishing that statement. But that he should be required to go further, and state every person with whom he boarded or roomed while in London, and the rate at which he paid per day or per week for his board, is to go beyond the legitimate object of a bill of particulars.

And so as to the second item, it was proper that the year and months in which the plaintiff incurred his alleged expenses should be stated, and the amount, so far as practicable, paid for hotel bills and for railroad fares, but it was requiring more than seems to us proper that he should be compelled to specify the name of every hotel at which he stopped in each of the places named, and the dates at which he was at such hotel.

And so as to the third item it was proper that he should state the amount expended on his first trip, and how much on the second trip, and that he should state what amount was paid out for office expenses, giving the date of the several items, so far as practicable.

And so as to the fourth item, it was proper that the time when the plaintiff visited Germany should be given, and the period during which the expenses charged were incurred, but it was going too far to require him to set down each particular item of such expenses as specified in the order.

The order below should be modified to conform with the suggestions above named, and as modified, affirmed without costs to either party of this appeal.

Bradt, J., concurred.

Present — Davis, P. J., and Bradt, J.

Order modified as suggested in opinion, and affirmed as modified, without costs.


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    JANE QUINN, Respondent, v. REUBEN W. VAN PELT, Appellant.

      Removal of action to Supreme Court — § 269 of the Code of Civil Procedure— change of place of trial — when disallowed.

    By the change of phraseology in section 269 of the Code of Civil Procedure — providing that “the Supreme Court may, by an order made at any time after the joinder of an issue of fact, and before the trial thereof, remove to itself an action or a special proceeding pending in a Superior City Court for the purpose of changing the place of trial or hearing thereof,” etc. — it was not intended to change the former practice, but merely to include within its provisions other courts than those mentioned in the former statute.

      Tlxe power thereby conferred should not be exercised in a case where the court, under its established practice, would not change the place of trial if the action were already pending in the Supreme Court.
    The settled practice of this court would not permit (except under most extraordinary circumstances) the change of the place of trial, for the mere convenience of witnesses, after the lapse of seven years from the joining of issue, and after a trial had been had in the action, and subsequent proceedings therein had resulted in the ordering of a new trial by the Court of Appeals.
    Appeal from an order denying a motion made by tlie defendant to remove this cause from the Superior Court of the city of New York to the Supreme Court in the county of Westchester, “ on the i round of the convenience of witnesses, and that the ends of justice may be promoted.”
    The action was brought on July 10, 1871, to recover damages for the misconduct of the defendant, as an attorney and counselor at law. The case was tried in April, 1872, and the trial resulted in a verdict for plaintiff, and a judgment was entered thereon for $4,605.15. An appeal was taken, and the judgment affirmed on June 30, 1873, by the General Term of the Superior court. (See case reported in 36 Jones & Spencer, 279.)
    An appeal was then taken to the Court of Appeals, and on April 28, 1874, the court reversed the judgment and granted a new trial. (Reported in 56 N. Y., 417.) The case was again put on the calendar of the Superior Court and noticed for trial.
    The motion to remove the cause and change the pláce of trial was not made until October 17, 1877.

      P. W. Van Pelt, appellant, in person.
    It is obvious, from the clear phraseology of sections 269 and 272 of the new Code, that it was the intention of the legislature to give a party the right to make such motion to remove, at any time between the joinder of an issue and the trial, with equal advantage; that is, the motion can be made immediately after the joining of issue, and immediately before the trial. Diligence in making the motion after the joining of issue is no longer an element in the case. These sections supersede the corresponding provisions of the Code of Procedure (section 33), and also supersede Rule 59 of the Supreme Court, and any other rule or practice in conflict therewith.

      James M. Smith, for the respondent.
    The only difference between section 269 of Code of Civil Procedure and subdivision 2 of section 33 of the old Code is, that under the new Code the Supreme Court has now the power to remove from all city courts; before, that power only extended to the Court of' Common Pleas and Superior Court of the city of New Tort. (Throop’s notes to section 33 of new Code; Campbell v. Butler, 4 Abb., 55.)
   Davis, P. J.:

The order in this case is appealable. The action had been pending several years in the Superior Court. A trial had been had in that court, and the judgment rendered upon the verdict had been reversed by the Court of Appeals and a new trial ordered.

It is urged that the new Code (sec. 269) has so far changed the practice that the defendant stands precisely as though no trial had ever been had. The court below thought that the long delay in making the motion, and the fact that a trial had already been had, were, under the established practice of the court, facts sufficient to defeat the motion. We concur in that view. The change made in the phraseology of the Code was not intended to make any change in the practice, but merely to include other courts than those mentioned in the former statute. The language of the Code shows that the power to remove is only given for the purpose of changing the place of trial. The power should not, therefore, be exercised in a case where the court, under its established practice, would not change the place of trial if the suit were already pending in this court. The settled practice of this court would not permit (except under most extraordinary circumstances) the change of the place of trial, for the mere convenience of witnesses, after the lapse of seven years from the joining of issue, and after one trial had been had, and subsequent proceedings had resulted in the ordering of a new trial by the court of last resort.

We think the order should be affirmed, with ten dollars costs, besides disbursements to abide event.

Brady, J., concurred.

Present — Davis, P. J., and Brady, J.

Order affirmed, with ten dollars costs, besides disbursements to abide the event.


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    WILLIAM CAMPBELL, Appellant, v. ANNIE LOUISE CAMPBELL, Respondent.

      Action for diwce — permission to discontinue — when denied.

    In an action for divorce on the ground of adultery where counter-charges of adultery hy plaintiff are set up in the answer and denied, the defendant has a right to have the question as to the plaintiff’s adultery thus raised by the answer tried, and the plaintiff will not be allowed to discontinue.
    Appeal by plaintiff from an order denying a motion for- leave to discontinue this action, brought for a divorce on the ground of adultery.

      Wm. Fullerton and James F. Gha/ndder, for the appellant.

      M T. Ga/mer and Miles Beach, for the respondent.
   Davis, P. J.:

The plaintiff brought his action for divorce for adultery. The defendant answered, denying the charges of adultery and setting up, by way of counter-claim, certain alleged adulteries of plaintiff for which she demanded affirmative relief, to wit, a decree of divorce in her favor, and alimony and provisions for her support. The plaintiff replied, denying the alleged counter-claim.

Pending a reference to fix an allowance for expenses and alimony pendente lite, the plaintiff moved for leave to discontinue the action. The Special Term denied the motion but allowed him to file a stipu lation, if he chose so to do, with the referee, that he would give no evidence on the trial to establish the allegations of adultery in his complaint, to be considered by the referee in fixing alimony and expenses. There are two reasons why the decision of the court below was correct: First, the question was one of discretion under all the circumstances, and we thinls the discretion was properly exercised ; second, the answer of defendant was in the nature of a cross-bill, and the issue joined thereon was one which she had a right to have tried for the purpose of obtaining her affirmative relief. The rule gave her the right to interpose such answer. (Rule 81 2 R. S., 145, § 42; Leslie v. Leslie, 11 Abb. [N. S.], 311; 17 Abb. Rep., 48.)

The defendant had, we think, a right to bring the issue joined by the reply to her answer setting up the alleged adulteries of her husband as a ground of affirmative relief, to a trial and decision, and could not, at the option of the plaintiff, be thrown out of court and compelled to resort to a new action. There is no good reason why this right should not exist, and many why it should. The proceedings in this class of actions are, to a certain extent, sui generis. And where the pleadings present issues of this kind, and in the form presented in this* case, each party is an actor, and cannot be deprived without his or her consent of the right to pursue affirmative relief.

The order should, therefore, be affirmed, with ten dollars costs, besides disbursements.

Brady, J., concurred in affirming the order.

Present — Davis, P. J., and Brady, J.

Order affirmed, with ten dollars costs and disbursements.


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    JOHN M. BURKE, Respondent, v. OSSIAN D. ASHLEY, Appellant.

      Section 162 of the Code — what instrument sufficient to set forth a ccmse of action under.

    Under section 162 of the Code — providing that, in an action or defense founded upon an instrument for the payment of money only, it shall he sufficient for a party to give a copy of the instrument, and to state that there is due to him thereon, from the adverse party, a specified sum which he claims — it is not necessary that the instrument should contain an express promise to pay; it is enough that it he one from the production of which, and proof of its execution, the law implies such a promise.
    Appeal from an order granting a judgment on the ground of the frivolousness of the demurrer to the complaint.

      The amended complaint in this action alleged that the defendant with others named, made a certain promissory note or instrument in writing, of which, the following is a copy:
    “New York, Jcm’y 11, 1870.
    “We, the undersigned, Ossian D. Ashley, of New York, William Wetherbee and Gavin H. Watson, both of Brooklyn, N. Y., for value received, do hereby jointly and severally acknowledge ourselves to be indebted to John M. Burke, of New York, in the sum of fifty thousand dollars, lawful money of the United States.
    “O. D. ASHLEY,
    “WM. WETHERBEE, “GAYIN H. WATSON,
    “ Witness, Erank S. Parsells,
    “ Witness, M. B. Yan Zandt,”
    and duly delivered the same to the plaintiff; that plaintiff is now the lawful owner and holder of the same, and that there is now due to the plaintiff from defendant a specified sum which he claims. The defendant demurred to this complaint, cn the ground that it did not state facts sufficient to constitute a cause of action. The plaintiff then moved for judgment on the demurrer, as frivolous, and the Special Term granted the motion.

      James 0. Garter, for the appellant.
    The complaint in this suit cannot be maintained, unless the instrument set forth in it creates an obligation to pay the money sought to be recovered, or, in other words, unless the instrument is a promissory note, for it cannot be pretended that it creates an obligation in any other form. Plainly, it is not a promissory note. The following are instances where the ■fio-called due bills have been held to be promissory notes, because containing words of equivalent import to “promise:” Ellis v. Mason (7 Dowl. P. 0., 598); Green v. Davies (4 B. & 0., 235); Morris v. Lee (2 Ld. Raym., 1396); Oasborne v. Dutton (Selw. N. P., 395); Ellison v. GoTlvngridge (9 0. B., 570); Kimball v. Huntington (10 Wend., 675); FramJdvn v. March (6 N. II., 364) Ca/rver v. Ha/yes (47 Me., 257). But this instrument contains no words expressing or importing a promise. The instrument is nothing but a naked confession of indebtedness, and its utmost capacity is to support, as evidence, an allegation of indebtedness. The following authorities clearly show that no instrument can be held to be a promissory note which does not contain an express promise to pay money, or words of negotiability, which are regarded as equivalent to promissory words: Cwrrier v. Lockwood (40 Conn.); Bayley on Bills (5); Byles on Bills (10); 1 Parsons’ Notes and Bills (24); Fisher v.Leslie (1 Esp., 426); Melanottey. Teasdale (13 .M. & W., 216); Israel v. Israel (1 Camp., 499); Tompkins v. Ashby (6 B. & C., 541) ; Childers v. Boulnois (D. & R. N. P. C., 8); Horne v. Redfearne (4 Bing. [N. C.], 433); Gould v. Coombs (14 L. J. C. P., 115); Read v. Wheeler (2 Yerg., 50); Gray v. Bow-den (23 Pick., 282); Davis v. Allen (3 N. Y., 168); Sibree v. Tripp (15 M. & W., 23); Smith v. Allen (5 Day, 331); Bowles v. Lmnbert (54 111., 231). The complaint cannot be defended under section 162 of the Code. The “ instruments in writing” mentioned in . this section are those which create, like a bond, note or bill of exchange, the obligation sought to be enforced. (Alder v. Bloomingdale, 1 Duer, 601; Andrews v. The Astor Bank, 2 id., 629 ; Spear v. Downing, 22 How. Pr., 30; Prindle v. Caruthers, 15 N. Y., 425.)

      F. F. Marbury, for the respondent.
    Complaint set forth a good cause of action under section 162 of the Code. (Alder v. Bloomingdale, 1 Duer, 601; Moak’sYan Santvoord’s PL, 111-182; Chappell v. Bissell, 10 How. Pr., 215 ; Conkli/ng v. Granddil, 1 Keyes, 231; Prindle v. Caruthers, 15 N. Y., 429 ; Butchers and Drovers’ Bk. v. Jacobson, 15 Abb. Pr., 218.) The demurrer admits the indebtedness, and that it is due and unpaid. The objection that the paper is not a promissory note within the Statute of Ann, even if it were well founded, is not at all decisive or important. But this instrument is a promissory note. (Kimball v. Huntington, 10 Wend., 615; Edwards on Bills, 125; Russell v. Whipple, 2 Cow., 536 ; Fleming v. Burge, 6 Ala., 313 ; Jacguen v. Warren, 40 111., 459.) An express promise to pay is not necessary. (Russell v. Whipple, supra j Ki/mball v. Huntington, suprai) Am acknowledgment of indebtedness, on its face, implies a promise to pay to the plaintiff. (Kimball v. Huntington, supra¡ Chitty on Bills, 41, 324, 334, and cases cited.) A covenant to pay will be implied from the mere acknowledgment of an existing indebtedness. (Thayer v. Mwrsh, 11 Hun, 503; Elder v. Rouse, 15 Wend., 219.)
   Davis, P. J.:

The complaint in this case was drawn under section 162 of the former Code. It sets forth m Iméc verba the instrument on which the action is brought by giving a copy thereof, and alleges the amount claimed to be-due thereon. We think the instrument set forth is one which' could be pleaded in the form allowed by that section of the Code. It is not necessary that the instrument should contain an express promise to pay. It is enough that it be one from which upon the production and proof of the execution of the instrument, the law implies a promise.

The order below was correct and should be affirmed with costs and disbursements.

The defendants may, however, answer over, on the payment costs of this court and of the court below, to be adjusted within twenty days after service of a copy of the order to be entered hereon.

Brady and Ingalls, JJ., concurred.

Order affirmed with costs and disbursements, with leave to defendant to answer over on payment of costs of this court and of the court below, to be adjusted within twenty days after service of a copy of the order to be entered hereon.