text:
    The Pittsfield National Bank, Resp’t, v. William H. Tailer, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    1. Assignment for creditors—Motion to remove assignee not inconsistent WITH ACTION TO SET ASIDE.
    A motion to remove an assignee, made after commencement of an action to set aside a general assignment as void, with a view to preserve the assets until a trial can he had, is not inconsistent with and does not debar the plaintiS from pursuing such action.
    2. Same—Omissions from schedules.
    An omission from the schedules of property which has no value is no evidence of fraud.
    8. Same.
    The assignors omitted from the schedules certain stock and insurance policies of greater value than all the other real assets. The stock was pledged as collateral to a bank, and in the schedule the debt to the bank was 'set • out and the statement made that there was no security. Held, that such a statement of facts, in the absence of the strongest and clearest proof to establish that it was unintentional and the result of an honest mistake or omission, requires that the assignment be set aside.
    . Appeal from judgment of the special term, setting aside an assignment for the benefit of creditors.
    The assignment in question was made by William H. Bayne and others, composing the firm of Boss, Campbell & Co., to the defendant Tailer as assignee.
    The following is the opinion at special term:
    O’Brien, J.—This action is brought to set aside a general assignment for the benefit of creditors upon the ground of fraud. The first question presented is as to plaintiff’s right to maintain the action. It appears that, subsequent to the commencement of the action, plaintiff moved for the removal of the assignee, and, as a consequence, it is claimed by the defendants that such a remedy being inconsistent with the position of one attacking the assignment as void, and the plaintiff having made its election, is now debarred from pursuing this action. This position is not tenable, for the reason that the action itself was brought for the purpose of setting aside the assignment as void, and the motion in this action for the removal of the assignee was made with a view to preserve the assets until a trial could be had. It may be true that a more consistent application would have been one for an injunction and a receivership, on the theory that the assignment was void; but the fact that plaintiff may have mistaken the remedy is not sufficient, unless it is coupled with circumstances showing that the remedy so selected is entirely inconsistent with the position of an attacking creditor. Such was not the attitude of the plaintiff, having throughout taken but one attitude, in opposition to the assignment, of which the motion upon which this contention is based is a clear evidence. The plaintiff not being barred, therefore, in prosecuting this action, it remains to determine whether the allegations of fraud have been sustained.
    The facts relied upon to show fraud can, with propriety, as shown by the evidence, be divided into three classes, namely: Those affecting transactions prior to the assignment; second, affecting the assignment itself; and, third, relating to the conditions subsequent to the assignment. In the first class might be placed the facts connected with the formation of the Powhattan Manufacturing Company, the Aramingo Mills, and the withdrawal of certain monthly amounts by Mrs. Campbell, one of the partners of Ross Campbell & Co. In the third class are the facts relating to the settlement by the assignee of certain claims against the insolvent debtor -firm, from which the plaintiff argues bad faith and fraud upon the other creditors in the making of such settlement by the assignee. These two classes may be disposed of together, for the reason that the same principles of law apply equally to both. “ The assignment, like every other instrument, is good or bad at the time of its making. If it is valid in its creation, no subsequent fraudulent or illegal acts of the party, can invalidate it; and if it is invalid, then no subsequent act can give it validity.” Bish. Insol. Debt., (2d ed.), 219. So in Shultz v. Hoagland, 85 N. Y., 464, it is said: “ The evidence must ascertain and establish the assignor’s intent at the time of the execution of the instrument.” Again: “ Such acts are, however, proper to be considered as characterizing the original intent.” Bish. Insol. Debt., 217, says: “In determining the, validity of an assignment made by a debtor, the intent of the assignor is the material consideration. Honesty of purpose in the assignee is not the test.” Again, at page 226: “Where the assignment has been honestly made for a lawful purpose, it cannot be defeated by proof that the assignee has abused his trust, misappropriated the property, or acted dishonestly in its disposal.” Most of these rules in the cases relate to acts subsequent to the assignment, but it must be clear that the same principle would apply to acts prior to the assignment. No doubt acts prior or subsequent, which tend to show the intent, may be resorted to; but in actions of this kind, to set aside the assignment itself upon the ground of fraud, the question finally to be determined is, did the fraud exist or was it in contemplation at the time of the making of the assignment ? Ho doubt the payment to Mrs. Campbell by an insolvent firm of $300 a month, as well as the fact showing the manner in which the assets of the firm of Ross Campbell & Co. were diverted for the purpose of enabling one of the defendants and his brother-in-law to form the Aramingo Mills, are evidence of an utter disregard on the part of the insolvent firm of the rights of creditors. These facts, while they show ’improvidence, waste, and a low0 standard of commercial morality, were too remote, and were initiated at a period too long prior to the assignment, to justify an inference upon these facts of the assignment itself being fraudulent. Having disposed, therefore, of the facts prior and subsequent to the assignment, it remains to consider the second class above enumerated, embracing facts tending to show fraud in the assignment. On March 24, 1890, Mr. Tailor’s co-defendants, as partners under the firm name of Ross Campbell & Co., made the assignment for the benefit of creditors which is attacked in this action. We may pass over the allegation of the complaint that the assignment is null and void upon its face, for the reason that having been drawn in seeming conformity with the requirements of the acts, and no great stress being placed upon any irregularities, it may be regarded as conceded by plaintiff that the assignment is not void upon its face.
    The remaining ground is the omitting by the assignors and assignee from the schedules of certain property of the insolvent debtors. It is conceded that at .the date of the assignment the insolvent firm were the owners of certain bonds, stock and insurance policies, which have been referred to in the "testimony as the Berkshire bonds, the Powhattan stock, and insurance policies. As to the Berkshire bonds, it having been shown that they were valueless, their omission from the schedules is no evidence of fraud, as held in tbe leading case on this subject. Shultz v. Hoagland, 85 N.Y., 464. “Proof of an intentional omission, from the schedules of property assigned, of items of valuable property, is sufficient to establish fraudulent intent. The omission, however, of an item shown to be entirely worthless is no evidence of fraud. So, also, if it is shown that the omission .was accidental and unintentional.”
    It remains to consider the Powhattan stock and the insurance. policies. It was conceded that both were valuable, and that both were omitted from the schedules which were filed on the 22d day •of April, 1890, thus leaving the interval between the 4th day of March, 1890, when the assignment was made, and this date, within which the assignors and assignee had the opportunity of determining what were and what were not the firm's assets. As to the Powhattan stock which was pledged to a bank as collateral security for a loan of $2,500, it was shown that its par value was $6,000, and one of the debtors testified that, at the time he instituted the assignment, the lowest price that the stock went and sold for was $100 per share, though, when subsequently examined in supplementary proceedings, he placed the value at from fifty dollars to sixty dollars per share. Concededly, therefore, here was a valuable asset of the firm, which had been pledged as security to secure the firm’s note of $2,500, and, although we find in the schedules that this note is set out fully, in that portion of the schedules referring to the indebtedness to the bank no suggestion is made, but, on the contrary, there appears opposite the interrogation as to what security the'bank held, the answers of the assignors and assignee, written out and sworn to, that the bank had none. The effect of this statement is sought to be avoided by an explanation that inasmuch as the bank held the stock as collateral security, and had some other claim against it, of just what nature is not fully explained, but which two of the defendants asserted amounted to $10,000 additional, they did not regard this asset as a valuable •one, and therefore inadvertently overlooked or neglected to insert it in the schedule. The studied omission of this asset of the firm, in the absence of any explanation, would raise, under the circumstances of this case, a presumption of fraud which requires for its rebuttal some satisfactory explanation. It will be noticed that the failure to insert in the schedule the fact that the bank, for its indebtedness of $2,500, was fully secured by the Powhattan stock, if intentional, would have been a two-fold fraud upon creditors, first by taking from them an asset, and by increasing the indebtedness to the extent of the bank’s claim, which, as shown upon the trial, was fully secured. The explanation is not satisfactory as to this stock, and it is less so when we come to consider the question of the policies of insurance. Here were policies worth, in the estimation of the defendant, from $12,000 to $20,000, about which nothing was said-until after the schedules were filed. The total amount of the real assets of this firm, as shown by the schedules, amounted to but $8,000, and yet the assignors would have us believe that under these conditions they overlooked assets, then in their possession and under their control, worth more than the entire real assets included in the schedules filed. ’ Every ' opportunity upon the trial was given, the subject being reverted to again and again, to show why these policies were omitted ; and between the assignors and the assignees a discrepancy is found, not only as to the time when the policies were referred to between them,* but also in their explanations as to the reasons seeking to excuse the omission from the schedules.
    It is asserted that there was no intention of reserving either the stock or policies to the assignor, but, if a contrary intention existed, the securities could not have been placed in a more advantageous position to accomplish this result. In other words, these securities were not only omitted from the schedules, but were held in such a way that, if the attention of creditors had not been attracted to them, they could have been appropriated for the benefit of the assignors. When we consider, therefore, the value of the securities thus omitted, as compared with the value of the real assets as scheduled, the situation in which they are found after the schedules are filed, a state of facts is presented which would require the strongest and clearest proof to establish that all this was unintentional, and the result of an honest mistake or omission. It is. unnecessary to go over in detail the testimony elicited on this subject. Sufficient for the purpose of this case to say that, in my opinion, the omission of the two items of the Powhattan stock and the insurance policies has not been explained, and should be held to be intentional. Such a conclusion upon the law relating to insolvent assignments entitles the plaintiff to a judgment in his favor setting the same aside. There should be judgment accordingly, with costs.

      Burnett & Whitney, for app’lt; John J. Adams, for resp’t.
   Per Curiam.

—Judgment affirmed, with costs and disbursements, on opinion of special term.

Van Brunt, P. J., and Patterson, J., concur.


source: Caselaw Access Project

author: Barrett, J. Van Brunt, P. J.

license: Public Domain

text:
    Emily O. Butler et al., Resp’ts, v. Andrew H. Green et al., Ex’rs, App’lts.

      (Supreme Court, General Term, First Department,

      Filed July 7, 1892.)

    Will—Trust for charitable uses—Conversion—Lands in other STATES GOVERNED BY THE LEX LOCI RBI SIT^l.
    Testator gave all Ms estate to Ms executors in trust during two lives in being, and at the termination of the trust gave to the parties theretofore receiving the income the estate out of which such income arose, in the same proportions in which they were entitled to said income. The executors were given power in their discretion to sell lands as they should deem advisable. The will con! ained provisions as to charitable uses which were invalid under our statute, but were valid under the laws of the states where some of the real estate was situated. Some of such real estate having been sold by the executors, and the proceeds brought into this state, Held, that there was no conversion under the will; that such proceeds retained the character of land, and were governed by the lev loci rel sitce, and that testator did not die intestate as to the fund in question.
    Appeal from a j udgment at special term.

      D. G. Rollins and Mornay Williams, for ex’rs other than W. O. Wheeler, app'lts; William Allen Butler and Willard Parker But
      ler, for pl’ffs-resp’ts; Frederic Jesup Stimson, for Mr. Wheeler, resp’t; Edward W. S. Johnston, for Alexander McKay Jones, resp’t; D. Seymour, for E. B. Sheldon, resp’t.
   Barrett, J.

—Although the record and briefs are quite voluminous, the practical question presented upon this appeal is in a narrow compass. That question is, has intestacy resulted as to certain moneys which the testator’s executors have derived from the sales of lands in the states of Illinois and Hew Jersey, which moneys have been brought into this state and here mingled with other moneys of the estate ?

Mr. Ogden died in this city, and as to the personal property of which he was then possessed the law of his domicile governs. All questions with regard to his real estate must, however, be determined by the lex loci rel sitce. It appears that Mr. Ogden in his will made certain provisions for charitable uses which are invalid under the laws of this State, but which are valid under the laws of Illinois and Hew Jersey. He left real and personal property in this state, and a large amount of real property in the states of Illinois and Hew Jersey. A part of the real property in these other states having been sold by the executors, under a discretionary power conferred upon them by the will, and the proceeds applicable to such charitable uses having been brought into this state and mingled here with other moneys of the estate, the plaintiffs claim that the lex loci rel sitce no longer governs, and that the law of the domicile should now act upon these moneys as personal property illegally bequeathed.

The solution of this question depends primarily upon the intention of the testator. Did he purpose that the attribute of his real property in Illinois and Hew Jersey should depend upon the will of his executors ? The presumption in general is that a testator does not intend the nature of the property to depend upon the option of the person through whom the conversion is to be effected. Williams on Executors, 6th eel, Perkin’s note, 763. We must therefore look at the entire will to see if this presumption is in the present instance rebutted. In the first place we find that the title to all this property is vested in the executors and trustees for certain trust purposes. They are to hold the property during a period not exceeding two specified lives in being. Upon the termination of these two lives, the testator “gives, devises and bequeaths” all the estate so vested in his executors and trustees to the beneficiaries under the trust. L Thus, these beneficiaries, even as to the property in this state, took a legal estate in the lands subject to the execution of the trust. 1 R. S., 729, § 61. The lands are devised to the trustees for trust purposes, and upon the termination of the trust they go to the beneficiaries. The intention so far would seem to be to preserve the legal characteristics of the property throughout the trust period, and upon its termination to turn over the corpus in its original character. The ultimate devise, although the testato knew that the property might during the trust term be varied fact, is specifically of the estate from which the executors trustees ■“ shall theretofore have received the rents, issues and profits.” Express authority is also given to the executors and trustees to hold, manage and take care of the devised property, to collect and receive the rents, issues and profits thereof, to lease any portion of the estate for any period not exceeding twenty-one years, to pay and discharge all taxes, assessments and mortgages thereon, to renew such mortgages, to keep the property in repair, and, with the consent of the testator’s wife, to improve and develop it. They are also authorized “ to sell and dispose from time to time, in their discretion, of such parts and parcels of the lands and premises, and of the other property devised and bequeathed to them, as they, or a majority of them, shall deem advisable.”

They are directed, by the third article of the will, to treat all the property so devised and bequeathed to them as divided into twenty shares or portions, and at least once in each year “ to use, apply and pay over the rents, issues, profits and income thereof and all net proceeds of sales made pursuant to the authority so given them, which they shall not deem advisable to re-invest and which may be available from time to time for distribution to legatees, to such legatees in certain specified proportions. Eighteen and one-half shares are given to individuals named and the remaining one and one half shares to such charitable uses as the executors and trustees may select, with the proviso that they may apply not exceeding one-half share out of this one and one-half shares, when not applied to charitable uses, to the use of all or any of the heirs who they may deem in need or worthy of and entitled to receive the same. They are, however, authorized to invest and re-invest the moneys arising from such sales, and, as above pointed out, they are only to distribute the proceeds of such sales in case they do not deem it advisable to re-invest them. The final disposition of the corpus of the estate upon the termination of the trust is provided for in the sixth article of the will. This follows the third article in all essential particulars. The language of the gift over is as follows :

“ I give, devise and bequeath all and singular the real and personal estate of which my said executors and trustees shall theretofore have received the rents, issues and profits, and all the rest, residue and remainder of my property and estate, whatsoever and wheresoever, not herein otherwise specifically devised or bequeathed, in, to and amongst the beneficiaries under the trusts created by this will, in such manner that the parties theretofore receiving the income only shall receive and become vested with the estate and property out of which such’ income arose in the same relative shares and proportions in which they were entitled to said income.”

The testator then proceeds in the eighth subdivision of this article to specify the shares. The four shares given as income to his wife in the.first subdivision of the third article he now gives in the first subdivision of this sixth article as principal to her heirs, or to “ such persons' and in such manner and proportions as he shall have devised and willed.”

In the second sub-division of this sixth article, the testator provides for the contingency of the vesting of six shares in his sister’s children during the lifetime of their mother. In the eighth subdivision he again refers to the charitable uses, and gives one and one-half shares of the corpus of the estate to such charitable uses as shall have been appointed by his executors and trustees, to receive and hold the same, and to such of his heirs, if any, as his said executors shall have designated in regard to the receipt of income from not exceeding one-half share.

It will thus be seen that the beneficiaries are substantially the same throughout, that the estate is vested in the same persons who are to be the recipients of the income during the trust term, that these persons talce vested remainders subject to the execution of the trust, that no words were used expressive of an intention to change the character of the real estate and that no such change was necessary to effectuate any of the puposes of the will. It is entirely clear that no equitable conversion was effected at the death of the testator. There is, in fact, no express direction in the will to sell at any time. Everything on that head is left to the discretion of the executors. They are to sell only if they deem a sale to be advisable. It is not a question of discretion with regard to time, place, amount or other conditions, but an absolute discretion with regard to the act. Nor was a conversion of the whole or any part of the real estate necessary to accomplish the purposes expressed in the will or to effectuate any of its provisions. It follows that no direction to sell can be implied. As was said by Finch, J., in Scholle v. Scholle. 113 N. Y., 261; 23 St. Rep., 171:

“ In the absence of an express direction to sell, one may not be implied unless the design of the testator is unequivocal, and the implication so strong as to leave no substantial doubt; and so, unless the exercise of the power is rendered necessary and essential by the scope of the will, the authority is simply discretionary and does not work a conversion.”

The real question is, whether upon the exercise by the executors and trustees of the discretion to sell, there resulted in law a change in the subject matter of the devise. It is true that when each piece of real estate was sold, there was, as a matter of fact, a physical conversion into money; and that money was to be distributed unless the executors chose to re-invest it. But while the beneficiaries were thus to receive money, it by no means follows that such distribution should be treated as a distribution of personalty under the will. There was here no possible reason why the testator should change the quality of the real estate or direct the distribution of its proceeds as personalty. There was no question between heirs at law and next of kin, no question as to who should take dependent upon the legal character ascribed to the property. Whether these proceeds be treated as real estate or as personal property, they go in precisely the same direction, and the only effect of treating them as personalty is to invalidate the gift of one and one-half shares to charitable uses. Thus the contention is that the testator gave his executors continuous power, at any time during the period of the trust term, to frustrate his own intentions and to bring about intestacy.- Such a construction should certainly not be given to the will if it can possibly be avoided. The general rule is that the doctrine of equitable conversion is invoked only to sustain a bequest; not to overturn it Another general rule is that nothing is regarded in equity as done but what ought to be done. 1 Story Eq. Jur., §§ 649, 790.

It has accordingly been held that the court will not declare an equitable conversion to have taken place by implication if the disposition of the fund would render the provision of the will void. Bonard's Will, 16 Abb., N. S., 128. See, also, note to Walker v. Denne, 2 Vesey, Jr., 170, where it is said that equity will not exert one of its most peculiar powers in impressing personal property with the character of land to bring it within the reach of escheat.

In our judgment, there is nothing in the will under consideration which would justify the extreme construction contended for by the respondents or which would work the result found by the special term. On the contrary, everything in this will points to the retention of the quality and character of the estate devised. There was, as already pointed out, no necessity for a conversion nor for a change in the subject matter of the devise. The executors might have retained every foot of land of which Mr. Ogden died seized until the termination of the two lives upon which the estate was limited. Under the will the beneficiaries, as we have seen, have vested remainders in the entire estate subject to the execution of the trust. If the property were not sold pending the trust term, they would at its termination certainly take the real estate in specie. If it were sold pending the trust term, the intention plainly was that they should take its representative in money. The character of the estate was not to be changed by the sale nor by its receipt in another form. Whether the corpus went to the beneficiaries in specie at the termination of the trust, or whether such corpus was in part anticipated by intermediate sales, the intent was clearly the same. It was to give these beneficiaries their substantial interest in the real estate. That substantial interest was not affected by the trust fee, nor was its character changed by intermediate variation in the corpus of the estate, even if such variation were accompanied by a provision for distribution prior to the termination of the trust If the executors had reinvested the proceeds of these sales, there cannot be a question but that, such reinvestment, although in bonds, would have formed part of the original trust estate and would in equity have remained land. Scholle v. Scholle, supra; Matter of McComb, 117 N. Y., 378; 27 St. Rep., 259.

9. The plaintiffs’ contention is necessarily reduced to this, that the mere incident of a failure on the executors’ part to re-invest effected a conversion into personalty and worked intestacy as to the money not re-invested. We cannot assent to such an extreme proposition. It is supported by nothing in the will itself expressive of such a purpose. It is, in fact, antagonistic to everything which we find in that' instrument and it is contrary to the well settled rule that when “land is devised as real ■ estate, and, either by the direction of the testator himself, or by operation of law, such real estate is converted into money for the purpose of better investment, or for any other puipose consistent with the design and purpose of the ultimate destination to which the real estate was appropriated, there the money is substituted for and stands in the place of the devised real estate. Holland v. Cruft, 3 Gray, 162; see also Matter of McComb, supra. We think the beneficiaries took the proceeds of the sales of lands in Illinois and Hew Jersey, not as a bequest of- personalty, but as a part of the devised estate. They took these proceeds just as they would ultimately have taken the subjects of re-investment had the proceeds of sales been re invested, and just as they would ultimately have taken the lands themselves had the power of sale not been exercised. See Wood v. Keyes, 8 Paige, 365; Matter of McComb, supra; Wright v. Trustees, Hoff., 202, 220; Grimwood v. Bartels, 46 L. J. Ch. Div., 788. And the same result follows as to such charitable uses as the executors and trustees may select and appoint

We have discussed this-question of conversion as though it were governed solely by the law of this state. That is, we have considered it so far as to determine whether the law of the domicil should act upon the moneys which have been brought into this state. We think, however, that the question is one which should more appropriately be determined by the law of Illinois and Hew Jersey. It is not only the title to real property which is governed by the lex loci rel sitce, but also the effect and construction of the instrument conveying it. Thus the , doctrine applies not merely to what is actually immovable, but to what may be deemed to partake of an immovable or real nature by the law of the locality. Servitudes, easements, rents and other incorporeal hereditaments and interests in and appurtenances to land come within the legal definition of land as subject to the lex loci rel sitce. Story on Conflict of Laws, § 464; Levy v. Levy, 33 N. Y., 97; Chapman v. Robertson, 6 Paige, 627.

- Whether a trust created by a will as to realty situated in another state is valid or not can only be determined by the courts of that state. Knox v. Jones, 47 N. Y., 389. This case holds that although real and personal property be given by the same clause in a will, and upon the same trust, they are severable, and that the validity of the bequests is to be determined by the law of the domicil, while the validity of the devises is to be determined by the lex loci rel sitce. It conclusively appears in the present case that the trust as to the lands in Illinois and Hew Jersey is valid under the laws of these states. And it is thus established that the testator died testate as to these lands. Whether the exercise of the discretionary power of sale given to the executors, and the further exercise of the option not to re-invest the proceeds, operated to change the subject matter of the devise depends upon the construction to be given to' the instrument which passed the title to the lands. The intention of the testator is to be gleaned from this instrument, that is from, the will, and the courts of the locality have jurisdiction to construe the instrument, and to determine all questions which may arise with regard to the title to the property and the rights, of the devisees with respect thereto. These questions should be determined by the courts of the locality, so long as the subject matter, whether in the form of real estate, or its money representative, is within its jurisdiction. Where, however, such money representative has been brought within the jurisdiction of the domicil, its courts should regard the laws of the locality, and determine the questions thrust upon them in accordance with such laws.

Now, it is doubtless the fact, that had these moneys remained in the states of Illinois and New Jersey no question could have arisen with respect to the validity of the trusts for charitable uses, and that the moneys in question would there have been treated as properly applicable to such uses. The trust is there valid, and its validity is not impaired by the sale of the real estate. It would be strange indeed were this condition of things to be completely reversed by the mere incident of a deposit of these moneys in one of the banks of this city without being ear-marked or otherwise identified as the proceeds of the sales of such Illinois and New Jersey real estate.

For that is apparently what it comes to. The attack on the trust commences at the point when the executors decided not to re-invest the proceeds of the sales and when these proceeds were brought into this state and mingled with other funds of the estate. The sequence of deduction in support of the judgment are substantially these: As the lex loci governed with respect to the real property in Illinois and New Jersey, the trust in those states was valid. As there was no conversion at the death of the testator, the lex loci still governed and the trust was still valid. As there was no conversion even by the mere act of sale, for the reason that the executors might have re-invested the proceeds, the lex loci continued to govern and the trust was still unaffected. But the moment it was decided not to re-invest such proceeds, they at once took on the character of personal property, the lex loci ceased to govern, the lex domicilii took its place, the trust for charitable uses became invalid and intestacy resulted with regard to the share applicable thereto.

We cannot think that this final sequence is sound, or that the lex loci should be set aside in this way or at this point. We have, in fact, no doubt that if the trust remains unaffected in Illinois and New Jersey by the election of the executors to distribute the proceeds of the sales, it remains unaffected here.

The respondents, while contending that our laws must operate upon the moneys within this state, also seem to claim somewhat inconsistently, that the validity of the trust, as affecting lands in other states and the effect of the physical conversion of such lands, can only be determined by the courts of those states; and they say that the special term properly refused to consider these latter questions. But the fact is otherwise. The special term did consider these questions and gave judgment in the plaintiffs’ favor as against the validity of the trusts in question. In the first, second, ■third, fourth and fifth paragraphs of the judgment, we find express references to “ the proceeds of sales of land wheresoever situated, and which proceeds are held by the executors and trustees of said will for distribution to charitable purposes.” The judgment is that the provisions of the will having in view the gift of one and one-half shares to such charitable uses as the executors and trustees should select, “so far as they embrace or attempt to dispose of these proceeds, are illegal and void ; ” and the executors are directed to account therefor and to distribute such proceeds as in case of intestacy.

The executors have not come into court asking affirmatively to have this trust validated. They are simply defending the trust funds in their hands against a direct attack upon the trust itself.

It is also claimed that the defense of the • executors as against this attack is not sufficiently specific, and that the finding of the learned justice that the trust in question was valid under the laws of Illinois and Hew Jersey is not supported by evidence. The respondents seem to have overlooked the eighth paragraph of the answer interposed by the executors, which expressly raises the question, and they have also overlooked the stipulation upon page 200 of the case, to the effect that “ counsel on either side may refer to any of the reports of judicial decisions in the courts of Hew Jersey,' Illinois, Michigan and Wisconsin in the same manner as if they were distinctly put in evidence.” These decisions were referred to below, and they are referred to again in the appellant’s points. And they abundantly justify the finding of the special term. We think the judgment was right with regard to property ■in this state; and that the provisions of the will as to charitable uses, and also as to , heirs whom the executors may deem needy or worthy of, and entitled to one-half share, are invalid so far as these provisions attempt to dispose of property, real or personal, in this state. As to this last question, that is, as to needy heirs, we need only say that we agree with the views presented by the respondents, and that we do not deem the question worthy of special consideration.

But as to the proceeds of sales of lands in other states, we think the j udgment should be modified by striking out all that is decreed with reference thereto. As to the one and one-half shares of the net rents of real property in Illinois and Hew Jersey, and of the net proceeds of the sales of lands in those states, the court should make no decree, but should suffer such shares to remain in the hands of the executors and trustees, that they may be applied by them in éase, during the continuance of the trust, they shall see fit to so apply them to the charitable purposes contemplated by the testator in the eighth subdivision of the third article of his ■will. And this result is not and cannot be affected by any act of ■the executors with regard to the deposit of such proceeds or the manner in which they are held.

The costs were charged upon the funds in the executors’ hands to the credit of the trust as to charitable uses. This was proper so far as' these funds were made up of the proceeds of sales of property in this state. But these funds, so far as they were made up of the proceeds of sales of Illinois and ¡New Jersey lands, should not be charged with such costs. It is not clear from the evidence whether the entire fund in question resulted from sales in these other states. The proper course, therefore, is to reverse the judgment as to these costs and allowances without prejudice to a further application therefor when the final judgment is rendered.

The judgment appealed from is interlocutory, and as now modified the reference ordered will necessarily proceed upon different principles and may result in a different judgment as to costs. Upon the coming in of the report either party may move for final judgment, and upon such motion apply for costs and allowances as they may be advised. The costs of this appeal may abide the event. That is, any party to whom costs are finally granted may have costs of this appeal payable in the same manner as the costs of the cause are directed by the final decree to be paid.

O’Brien, J., concurs.

Van Brunt, P. J.

—I concur in the opinion of Mr. Justice Barrett upon this appeal.

It seems to me that the question as to the validity of the provisions of a will must be determined by the conditions existing at the death of the testator; and that nothing that an executor can do subsequent to such death can either validate or invalidate the devises contained in the will. If there is a direction contained in the will that the real estate .shall be converted into personal property, the will is construed as though the .conversion had taken place as of the time of the death of the testator. But where the power of sale is simply discretionary in the executor’s no such rule applies, and the will must be construed as the estate existed at the time of the death of the testator. It certainly would be an anomalous condition of the law if an executor could, by changing under a discretionary power of sale real estate into money, defeat a devise contained in'a will.

It is the settled policy of the law to treat the property of a testator as being of the kind left by him until it reaches some person having an absolute power of disposition. Thus, where real estate in which infants have ^n interest is sold, the proceeds of the sale are treated as realty until the infant arrives at maturity, and thus has an absolute power of disposition.

It is certainly not the rule that where a person dies, leaving a will devising his personal property and real estate to his executors in trust, creating an intermediate estate, and giving his executors a discretionary power of sale, and upon the termination of the intermediate estate bequeathing his personal property in one direction and devising his real estate in another, if the executors exercise the power of sale in respect to the real estate, the devisees of what at the death of the testator was real estate are thereby deprived of the provision made of them in the will So in the cas at bar for the devise having been valid as to the real estate at the death of the testator, the power of sale being merely discretionary, it was not possible for the executors by the exercise of that power of sale to defeat the intention of the testator; more particularly0 so, as the proceeds of sale are expressly disposed of to the same beneficiaries as the real estate had been by the will.. I think, therefore, that it is clear that the proceeds of real estate under such circumstances must, for the purposes of distribution, and for the purpose of determining as to the validity of devises contained in the will, be treated as though the power of sale had never been exercised. If not, the executors, simply because the testator has given to them a discretionary power of sale, would be empowered to defeat absolutely devises which would otherwise have been valid. It seems to me that the mere statement of such a proposition indicates what the answer thereto must be. It is conceded substantially that if the proceeds of sale of the lands in Illinois and New Jersey were reinvested in lands in said states, that such proceeds retained the legal character of land and this court should not interfere with the disposition thereof. This being the case, the result of holding that by a sale the executor could defeat the devise, and by reinvesting the proceeds of sale he could reinstate the devise, would give the executor power to play battledore and shuttlecock with the trusts provided for by the testator. Whether the beneficiaries should take or not would depend upon his whim and not upon the provisions made by the testator in his will.


author: O’Brien, J. Van Brunt, P. J.

text:
    The People, Resp’ts, v. John H. D. Fanshawe, App’lt.

      (Supreme Court, General Term, First Department,

      Filed July 7, 1892.)

    1. Arson—Intent to destroy building.
    A person who wilfully and maliciously sets on fire in the night time a dwelling house, in which there is at the time a human being, is guilty of arson in the first degree, and, in order to sustain a conviction for such crime it is unnecessary to expressly set forth in the indictment or affirmatively prove at the trial an intent to destroy the.building. '
    2. Same—Penal Code, § 490.
    Section 490 of the Penal Code forms no part of the definition of the crime of arson, but has reference to another and distinct class of acts, viz.: Mon-willful as distinguished from wilful acts, which latter are the ones included in the other sections defining arson in its various degrees.
    3. Same—Indictment.
    Where an indictment for arson contains two counts, each charging the setting fire to the same building, but describing it as belonging to a different person, the indictment is not defective as charging two crimes, and it is not error to refuse to compel an election.
    4. Same—Jury.
    _ A challenge of a juror by the People is properly sustained where he intimates that he will follow his own view as to the weight to be given circumstantial evidence regardless of the instructions of the court.
    5. Evidence.
    A witness may state whether a bed which he saw appeared as if anybody had recently been sleeping in it. The ordinary objection to opinion evidence does not apply to such a question.

      6. Criminal law—Charge—Marshalling evidence.
    The trial judge has the right in a criminal cash to marshal the evidence ' to assist the jury, so long as he leaves the questions of fact entirely for . them to determine.
    - Appeal from judgment of court of general sessions convicting defendant of arson, and from orders denying motions for arrest of judgment and a new trial.

      Charles W. Brooke, for app’lt; Henry B. B. Stapler, for resp’ts.
   O’Brien, J.

—The great number of questions presented by the defendant appellant, including among others the contention that the verdict was against the law and against the evidence, and that the indictment itself was materially defective, will necessitate, not only an examination of the latter, but also a review of all the evidence in the voluminous record presented.

At the outset a statement of the facts, proven will be necessary, in order to make a disposition of the motion made by counsel for defendant, at the close of the case for the prosecution, to direct a verdict of acquittal upon the ground stated, “that where it appears beyond all reasonable doubt that the object of firing, setting fire to the premises, burning a building under circumstances which show beyond a reasonable doubt that there was no attempt to destroy it,” is not arson in the first degree, as defined by law. The authority for a motion of'this kind is said to be § 410 of.the Code of Criminal Procedure, which provides that “if at any time after the evidence on either side is closed, the court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant, and they must follow the advice.” That no injustice may be done the prisoner by summarizing the evidence ourselves, or taking the version presented by the district attorney as to what the evidence for the prosecution showed, we will confine ourselves to what, according to the counsel for the prisoner, such testimony proved to be.the facts presented upon the trial in support of the indictment.

Early in the morning of the 3d day oE February, 1888, between the hours of two and three o’clock in the morning eof said day, fire was discovered in the premises No. 50 East Twenty-ninth street, in the city of New York; said premises were situated on the southwest corner of Twenty-ninth street and Fourth avenue, and the fire was in the room occupied by the defendant, facing on Twenty-ninth street, and one story above said street. The first person who saw the fire from the outside of said premises was Be Witt 0. Wheeler, Jr., a witness called on behalf of the People. He was returning home from drill at the armory of a regiment to which he belonged, when his attention was attracted by a blaze in the window of the premises indicated. He saw a man in the window, who was at that time in his shirt sleeves, whom he subsequently recognized as the defendant, and the man cried out to him and asked him to send an alarm of fire, which he did. Shortly afterwards he saw the same man seated on the window sill partially dressed, to whom he called out not to jump. The firemen arriving shortly after-wards, and a ladder being raised to said window, the defendant went down said ladder, and he then discovered that he was in his stocking feet. The night being an extremely cold one, he took the man over to a drug store on the diagonal corner from said premises for the purpose of getting him something to drink. Upon the arrival of the firemen the fire was quickly extinguished, .and it was found mainly confined to the room occupied by the defendant and around the western jamb of the door leading into the hall immediately adjoining defendant’s room, and traces of fire were discovered crossing diagonally upon the surface of the carpet upon said hallway, and in a direction from southeast to northwest. Fire was also discovered in a closet under the stairs leading from the second floor to the third and also upon one or two of the ■ lower stairs of said stairway. These fires were manifestly of an alcoholic flame, and were extinguished by Frank B. Doughty, one of the lodgers in said house, before the arrival of the firemen. The fire partially destroyed a trunk ■and its contents, the property of the defendant, and some other personal property of the defendant contained in his room at that "time. The house in question was a lodging house conducted by Miss Ellen R Van Duser, and at the time of the occurrence of the fire there were some fifteen or twenty lodgers occupying said premises, among whom was a sister of the landlady known as Miss Lollie, who was a person of feeble intellect, described by the witness Doughty as being an imbecile, and by her sister, Miss Van Duser, as having the intellect of a _ child of seven.

The entrance to. the premises was on Twenty-ninth street, and it was the custom to leave the door on the latch. It was • not a Yale latch, but an old-fashioned ordinary latch; a simple lock.. Some time prior to the fire the policeman on the beat found the door open, and notified the landlady. Defendant, a young man •of about twenty-nine years of. age, was employed at the time as .a clerk in the Knickerbocker Fire Insurance Company.

The defendant had effected two insurances upon his personal ■effects, wearing apparel, jewelry, etc.; one for $1,000 in the company in which he was employed, and one for $1,000 in the Phcenix Fire Insurance Company. It appears that the companies ■do not charge any greater rate ofpremium for insuring $1,000 than for any sum under $1,000.

On the morning, and at about nine o’clock, on which the fire' ■occurred, as the defendant was going out, he was called into Miss Van Duser’s room, which was on the ground floor, and was there confronted by Miss Van Duser and Mrs. Lizzie S. Courtney, one ■of the lodgers in the house, and upon the defendant*expressing his regret that Miss Van Duser should have been put to any loss, Mrs. Courtney said to him: “ Mr. Fanshawe, the only way you ■can do anything for Miss Van Duser is to make good what you have destroyed.” Whereupon the defendant said: “Do you ■mean to say that I fired the room ? ” To which Mrs. Courtney replied: “No, I don’t mean to say that; but I mean to say-that if "the fire had occurred in my room under the circumstances -it has in yours, I should feel compelled to make some explanation,' or ile under a cloud.” Some other conversation was had between the witness and the defendant, and it was this witness that advised Miss Van Duser to cause Mr. Fanshawe’s arrest.

The adjuster of the insurance companies, Mr. James W. Stevens, after an examination of the debris, estimated the sound value of everything of which he could find a trace at $261.25, but on the night of the fire the trunk was thrown out of the window, and the examination upon which Mr. Stevens based his estimate of the sound value was not made until the 10th day of Feb- ’ ruary, 1888, and the premises had been meantime in the possession of the landlady, and were accessible not only to all the lodgers, but were visited by workmen engaged in repairing the damage done by the fire; and it appears that the only experience Mr. Stevens had as to the value of clothing, wearing apparel and personal effects prior to his engaging in the business of insurance adjuster was that derived from keeping a country store in Staten Island, and that although the defendant had furnished him with the bills of goods which he claimed were destroyed, with the1 tradesmen’s names, he never took any steps to ascertain whether those goods were really furnished him or not. Subsequently, and in May, 1888, the insurance companies settled the loss by paying $350 to Mr. James M. Lyddy, at that time counsel for the defendant, and to whom the policies had been assigned.

Some of the lodgers, notably Mrs¡ Courtney, testified that the defendant was fully dressed, and this may well have been, since the witness testified that at the time she thus described his appearance it was five o’clock in the morning, and since the fire took place between two and three, he had an abundance of time to complete his toilet Evidence of witnesses for the prosecution was given to the effect that the defendant's manner was calm and collected. Testimony was also offered by the prosecution indicating that the bed in defendant’s room was in a condition that would seem to indicate that it had not been occupied that night, but this is also contradicted by Eoskoph, who says that the bed appeared to have been slept in and the bed clothing partially turned back, and by William Simpson, a witness called on behalf of the People, who testified as follows: “ It looked to me, sir, as if no person had slept in it for any length of time more than a few minutes, or it just appeared as if the party, as if there had been somebody in the bed, but not for a whole night”

We do not understand that the appellant contends that this-evidence was not sufficient to justify the conclusion that the firing of the house was done by him; the claim being, as we take it, that such evidence showed that the motive actuating the prisoner was a desire to defraud the insurance company, and that the evidence did not show beyond a reasonable doubt that it was done with an intent to destroy the building, and, therefore, that it did not support the indictment for arson in the first degree, but only sustained one for arson in the third degree; and as the law would not permit a conviction of the latter offense upon an indictment, charging arson in the'first degree, that the1 appellant was entitled to have the motion for an acquittal granted. Dedieu v. People, 22 N. Y., 178. With respect to the error thus assigned in the refusal of the learned recorder to adopt appellant’s view of the law of arson, we are confronted with the principal and oft-reiterated ground relied upon for a reversal of the judgment; and it is proper that the question thus presented should be here disposed of.

Sections 486, 487 and 488 define arson in its three degrees, but reference need not herein be made to § 487, relating to arson in the second degree. With respect to arson in the first degree, the Penal Code (§ 486) says : “ A person who wilfully burns or sets on fire in the night time either (1) a dwelling house in which there is at the time a human being, or (2) * * * , is guilty of arson in the first degree.” Section 488, defining arson in the third degree, says: “ A person who wilfully burns or sets on fire either (1) a vessel or other vehicle, a building, structure or other erection, which is at the time insured against loss or damage by fire, with intent to prejudice the insurer thereof, is guilty of arson in the third degree.”

Had we to deal exclusively with these sections of the Penal Code, no doubt would arise but that the view taken by the learned recorder, which was consistently adhered to throughout the trial, was correct, that to establish the crime of arson it was necessary to charge the prisoner with, and to establish by competent evidence, “ that the defendant wilfully, that is, intentionally, did burn or set on fire in the night time the premises described in the indictment; and second, that the premises at the time of burning or setting the same on -fire were a dwelling house in which at said time there was a human being." Both these questions, he charged, should be answered in the affirmative before the defendant could be convicted of the crime charged.

The appellant insists that the Penal Code, by § 490, has added another element which the trial judge deliberately ignored and refused to consider as in any way qualifying or destroying the definition of arson as given in §§ 486 and 488. This § 490 provides that “ the burning of a building under circumstances which show, beyond a reasonable doubt, that tliere was no intent to destroy it, is not arson.”

It is claimed by the appellant that this § 490 is to be construed as though its language were in fact incorporated in §§ 486, 487 and 488; that it is an important and imperative part of each of these sections, and that it declares that if the intent to destroy the building is not proven beyond a reasonable doubt the offense is not arson. The learned recorder refused to take this view of the sweeping effect of § 490, and held, as ' already shown, that nothing more was necessary to be proven in the case than that the defendant did wilfully or intentionally burn or set on fire in the night time the premises described in the indictment, and that such premises were a dwelling house in which at the time there was a human being; and he refused to rule that it was incumbent upon the prosecution to prove, or that it was an essential element of the crime of arson in the first degree, and necessary to be inserted in the indictment, that beyond all reasonable doubt the burning or setting on fire was with an “ intent to destroy the building.”

There ,can be no room for discussion, if a conclusion is reached that §'490 introduces another constituent element of the crime of arson,jin addition to those contained in the definition to be found 'in §§ 486 and 488, that then this judgment must be reversed, for the reason that it'is a well- settled rule of criminal pleading that, atí indictment upon a statute must state all. the facts and circumstances who constitute the statutory offense; and that if the “ intent to destroy the building ” be an absolute pre-requisite, it would, be necessary to set forth such intent in the indictment itself, and upon the trial to present competent evidence to establish such intent. As stated by the court in 1 Parker, 564, “ We deem the-rule well settled that every fact or circumstance which is a necessary ingredient of thé offense should be averred in the indictment. If any fact which is a material ingredient to constitute the crime-is omitted in the indictment, such omission vitiates it, and the defendant may avail himself of such defect by demurrer, writ of.' error, or on a motion in arrest of judgment”

The question therefore is, whether any conviction of the-crime-of arson can be had in this state, where the indictment is drawn in. the language of § 486 of the Penal Code defining arson in the first degree, and the evidence shows that the motive for setting-fire to a building was to accomplish a result other than the destruction of the building. In every form in which the question could be raised upon the record, the appellant contended below,, and he still contends here, that § 490 is to be construed to mean that, unless there is an intent to destroy a building, wilfully set. on fire, such wilful setting on fire of such building is not arson..

Section 486 of the Penal Code, defining arson in the first degree, is a practical re-enactment of the provisions of the Revised. Statutes, 2 R. S., 657, 1st ed., part 4, chap. 1, title 1, § 9; and. prior thereto the law declared “ that any person who shall be duly convicted of wilfully burning any inhabited dwelling house shall, suffer death.” Rev. of 1813, 407. In construing “ the act declaring the punishment of certain crimes,” Rev. of 1813, 407, in. the case of People v. Butler, 16 Johns, 203, which arose in 1819, the court, in the course of the opinion,; said: “ It is well settled ■ that to constitute the crime of arson it is not necessary that the-house should be absolutely consumed or burned. It is enough if the fire is applied with a malicious intent, so as to take effect,, though only a part is consumed.” In the People v. Jones, 2 Edm. Select Cas., 86, which arose under the Revised Statutes in 1849, a case relied upon by the trial judge bélow, Edmonds, J., in charging the jury, says: “ When it was clearly made out, as it-Was here, that the firing the house was wilfully done, it was of no-consequence what was the motive for or intention of the act; nor was it even necessary to prove that the prisoner knew that the building was inhabited. The fact that it was so was, all that the-law required to be made out The motive of the prisoner then for perpetrating the offence, or his condition of intoxication, were-alike excluded from consideration by the language of the statute-defining the crime.”

In addition to the statutes and the decisions construing them since 1813, at least in this state, it has never been held necessary, in order to establish the crime of arson, nor was it necessary to constitute arson at common law, to prove that there was an intent to destroy the entire building; nor was it necessary to show that it was wholly consumed; all that was essential was to establish that it was wilfully burned ; this being subsequently enlarged by the Revised Statutes, which added the words “ set on fire,” and framed the statutory definition in practically its present form, so that the crime would thus consist either in wilfully burning or setting on fire a building. Were it of any advantage, we might show, in addition to the statutes and the long line of authorities, that all text writers in discussing what constituted arson agree substantially with the definition given by Russell on Crimes (Vol. 2, p. 1024), wherein it is said.: “The burning of a house necessary to constitute arson at common law miist be an actual burning of the whole or some part of the house, * * * but it is not necessary that every part of the house should be wholly consumed or that the fire should have any continuance;' and the offense will be complete though, the fire should be put out or go out of itself.” See also Roscoe’s Criminal Evidence, 8th ed., p. 407; Wharton Criminal Law, § 826.

A strong argument is thus furnished against the contention of the appellant, growing out of the fact that if the effect claimed by him is given to § 490, it will abrogate and destroy all statutory and well settled authoritative definitions of the crime of arson.

Such a radical change is not to be presumed or inferred from some statutory provision unless its meaning and bearing are so direct and plain as to leave no option in the court but to give effect to its language even though such effect may result in disturbing other well defined enactments. It is always competent for the court, as it is its duty, to have in view the purpose and intent of the legislature, and where statutes or sections, apparently inconsistent, can be construed so as to have them both stand, such a construction should be given them. The language of § 486 is apparently inconsistent with that of § 490, and the definition of the crime of arson as given in the first section is seemingly modified by the language of § 490.

In Pierson v. The People, 79 N. Y., 433, it is said: The office of construction is to get a meaning out of the language used if possible. If the words used are clear and unmistakable in their meaning, and their force cannot be limited by a consideration of the whole scope of the statute or the manifest purpose of the legislature, they must have full effect But in endeavoring to understand the meaning of words used much aid is received from a consideration of the whole scope of the statute or the manifest purpose of the mischief to be remedied or object to be gained by the statute. By such consideration, words otherwise far reaching in their scope may be limited. Statutes are always to be construed, if they can be, that they may have reasonable effect agree-ably to the intent of the legislature, ajgd it is always to be presumed that the legislature intended the most reasonable and beneficial construction of its acts. Such construction of a statute should be adopted as appears most reasonable and. best suited to accomplish the objects of the statute; and when any particular construction would lead to an absurd consequence, it will'be presumed that some .exception or qualification was intended by the legislature to avoid such consequence. A construction which will be necessarily productive of practical inconvenience to the community is to be rejected unless the language of the law given is so plain as not to admit of a different construction."

Applying these well known rules of interpretation to the section here involved, and having regard to what was intended by the legislature in enacting § 490, at the time of the adoption of the Penal Code, we think it hardly conceivable that it was its intern tian or purpose to radically change the definition of the crime of arson as it existed in this state since the year 1813 at least, and down to the time of the adoption of the Penal Code in 1881.

That some support is to be found for the view that § 490 should be given the sweeping effect claimed for it by the appellant, is undoubted. 'We have the old case of People, v. Cotteral, 18 Johns., 115, decided in 1820, which, in construing the law already referred to which existed in this state at that time, held in a case where prisoners took hot .coals from the fire and burned a hole in the woodwork of the jail for the purpose of facilitating their escape, and notwithstanding the efforts to put out the fire the building was burned though not totally destroyed, that the prisoners, were not guilty of arson because there was wanting the intent to destroy the building.

With respect to this decision all that need be said is that it has not been followed in this state; and, as already shown, the definition of arson was changed by the Revised Statutes by adding thereto the words “ set on fire,” which made it clear that the legislature intended that the views expressed in that case by the judge, in respect to its being necessary to have an intent to destroy the building present, were not to be the law of this state. This authority may be regarded, therefore, as obsolete, because, though .it was in one or two instances followed by other states, it was finally repudiated by all, so far as our examination shows. Meither has it been accepted as a correct statement of the law by any of the text writers. The remarks in Bishop on Criminal Law (vol. 2, § 26), in which it is said that it is found, difficult to assent to the doctrine of two American cases, one in New York (reference being had to People v. Cotteral), and the other in North Carolina, fairly expresses the reception with which' the case of People v. Ootteral was received by all the authorities to whose attention .the case had been called.

It can never be presumed that the legislature intends an. unwise or injurious result to flow from its action ; and where two constructions can be given to a statute, that one, other things being equal, should be given which would negative the charge of unwise, and injurious legislation. It cannot be that the legislature intended to show undue leniency to, or to throw any safeguards around, those who in the dead of night would set on fire a building or dwelling inhabited by families, and where this was done deliberately and intentionally, with a view of obtaining gain or profit by way of insurance, that because it was not coupled with proof showing an intention to burn the entire building, the criminal should go unwhipped of justice. The crime of arson has always been justly regarded as one of the greatest and most heinous offenses, and one which merits least consideration and the greatest punishment. In our large cities numberless families are at times compelled to huddle together, and it would be a serious mistake for the legislature to allow a malefactor who wilfully and intentionally sets on fire such a dwelling house to escape because his motive or intent was not to destroy the whole building, but only sufficient thereof to obtain insurance which may have been placed upon furniture in one of the apartments thereof. That was exactly the attitude of the prisoner here. There can be no doubt upon theevidence that he set fire to thehouse, having kindled a fire in five separate places. His motive was to secure the fruits of the policies of insurance which he a few days prior to the fire had taken out upon personal apparel placed in trunks, and which he proposed to destroy by burning a part at least of the building regardless of the peril to the lives of the other inmates. He may not have had the intent, and if he had, it might have been exceedingly difficult to prove, to burn down the entire building. He no doubt would have been satisfied with the burning of so much of it as would secure to him the insurance; but the means that he adopted to that end were well calculated not only to have secured what he sought to effect, but also to have involved in the most cruel of deaths every occupant of the house.

If we were to apply in the absence of any statute the rule that one must necessarily intend the consequence of his acts, the intent could readily be divined from the act itself. This is, moreover, a rule, of criminal evidence, that “ a man is presumed to intend the natural, necessary, and even probable, consequences of what he intentionally does." 1 Bishop on Criminal Law (7th ed.), 734. If, therefore, an intent to destroy the building needed to be present, it would have been necessarily implied from the character of the criminal act and the rule of criminal evidence just cited.

The appellant insists, however, that § 490 is part of the definition of what constitutes the crime of arson in the first degree, and, therefore, the indictment should have alleged the intent, and the evidence on the part of the prosecution should have gone to the extent of proving beyond a reasonable doubt that the prisoner had the intent, at the time that he wilfully set fire to the dwelling, of destroying it. It may be here remarked parenthetically that the word “ it ” in the last sentence of § 490, under the authorities, must be construed to mean not only the entire building, but “ any part of it,” the whole being put for a part under a figure of speech.

With respect to this contention, we think there are two answers which make perfectly consistent and reconcilable the legislation, and save us from assuming that the legislature was guilty of so unwise an act as to give immunity to those who could be guilty of the crime of setting fire to a dwelling house in which there were human beings, in the dead of night, for the purpose of securing money by defrauding an insurance company. • The first is that § 490 is no part of the definition of arson in the first degree, requiring a statement in the indictment of facts showing an intent to destroy the building, or proof of such intent upon the trial; but is a section which in cases other than wilful setting on fire would temper or mitigate the vigor of the definition, and afford upon the trial" an opportunity to a prisoner to avoid the force of the definition, by" showing beyond a reasonable doubt that there was no intention on his part to destroy the building. This, we think, is strengthened by a reading of the § 490, which excludes, by its language, the idea that the burden was placed in cases of. this kind upon the prosecution of establishing beyond a reasonable doubt the intent of the prisoner to destroy the building. Its language rather indicates that though one might by his acts bring himself within the technical definition of the crime of arson, it would still be proper and competent for him to show t.hat there was no intent to destroy the building.

The second, and we think the more reasonable view, which also renders harmonious the entire legislation, is that this’§ 490 has reference to another and distinct class of crimes,- namely, non-wilf-ul, as distinguished from-wilful acts, which latter are the ones included in the other sections defining arson in its various degrees. This construction is enforced when we remember that in the prior' sections the essential words are the wilful setting on fire, which are omitted in § 490; thus showing that this section must refer to, a different class of burnings from those covered by the prior sections, and is nothing more than a statutory declaration .of the exemption given by the common law to negligent or other non-wilfui burning-of buildings.

If a painter engaged, in repainting a dwelling-house, for the purpose of removing paint from a door, or other portion of-the house, should apply alcohol or benzine with a view to burning off the old paint, which, without any intention on his part, resulted in a destruction of the building, it would have been at common law,-and under our statutes prior to the Penal Code, and now under § 490, a good defense in pleading to an indictment, and upon a trial for arson, to have shown that the act charged as a crime was the result of carelessness, or that, though the act of burning may have been wilful, it was not the result of-a design to destroy the building, which is well illustrated by the instance j ust given of the painter, who, though he had wilfully applied fire to a portion of the building, had no intention of destroying the whole or any portion thereof. Such a plea estab- ■ lished by evidence beyond reasonable doubt would be a perfect, answer to the crime charged against one who technically may have brought himself within the letter of the definition. The sec-! tian thus viewed would be but declaratory of the common law.

We think, therefore, that § 490 should not be so, construed as to give to the crime of arson a new definition, or to make it depend, not upon the wilful burning or setting on fire of a building, but on the presence or absence of an intent' to destroy it at the time it was set on fire. The indictment having been, drawn in the language of § 486, defining the crime of arson, we think it was a sufficient specification of the crime. Upon the trial of such an indictment, § 490 was available to a defendant in the event that he could produce evidence tending to show that there was no intention to destroy the building, upon which, if clearly made out, the court could direct an acquittal, or, if in dispute, submit the question to the consideration of the jury.

This construction of. § 490 was the one given by the learned recorder, and the one contended for by the People upon this appeal, and which it seems to us brings it in harmony with the preceding sections. Thus taken together they constitute a-complete declaration of the law of arson as applied, first, to wilful acts of burning and setting on fire of buildings (§§ 486, 487, 488) and in § 490, to non-wilful acts resulting in such burning. Such a construction, moreover, disposes of the contention of appellant, that the. presence of a motive other than the destruction of the building relieves one who wilfully sets on fire a building from criminal liability under an indictment for arson in the first degree.

It will be noticed that the learned recorder was consistent in the view he took as to this construction of § 490, if ’ we examine his charge, which was entirely fair- and impartial, and the' requests submitted by the defendant which, in respect to the effect to be given to §,490, were made conformable to such construction by his amendments thereto. ■ The view contended for by the appellant.was presented by- his sixth' request, which was refused, to the effect that “if the jury shall find that the-'burning of the building was for any other purpose or -intent, beyond a reasonable doubt, than to destroy the building, then it is not arson, and no conviction .can be had under this indictment” The construction, on- the other hand, given to the section by. the recorder is to be found in the amendments to. the fourth, fifth and seventh requests. of the defendant. -The fourth request asked that “ if. the jury find from all the evidence, beyond a reasonable-doubt, that, there was no intent to destroy by burning the building, ■ * "" * then the act of burning is not arson, and the defendant should be acquitted.” This; request was chárgéd in’the following amended form : That if the jury find from .all the evidence beyond • a reasonable doubt that there was no intent on the part of the defendant to destroy by- burning ■ or setting on ■ fire the 1 building, * ■* * then the act of burning is not" arson, and the defendant should be- acquitted.” As amended, ■ the.fifth request was charged as follows : -‘That if the jury shall. find that the building No. 50 East Twenty-ninth street was • burned or set. on fire .with no intent on the part of the defend-’ ant to burn or set the same on fire, it is not arson, and no conviction can be had. under the indictment.”.

With respect to the seventh request which was asked, “ that if, from' all the evidence, the jury shall 'find beyond a reasonable . doubt that there was no intent to destroy the building, then no •Conviction can be-had under this indictment,” it was"amiend'ed so as to read: “ That if from all the evidence the jury shall find beyond, a reasonable doubt that there was no intent on the,part of the defendant to burn' or ’set on fire the building in question, then no conviction can be had under this indictment."

We think that in the'amended form the requests'were presented as favorably to the prisoner as the law required or demanded, and that the refusal to charge the sixth request in the form in which it was presented was not error.

Nor do we think that any exception will lie to the answer which was given by the recorder in response to the question propounded by the jury during the course of their deliberations, viz.: “ That if they, (the jury) find that the defendant set fire for the purpose of obtaining the insurance only, can they find him guilty of the offense? ” It is insisted that this question demanded a categorical answer, or, as claimed by appellant’s counsel, that it was the duty of the recorder to read § 490 in answer thereto. In our view, it would have been proper for the court to have answered the question categorically in the affirmative; but the fact that, instead of doing that, the crime of arson was again explained cannot be in any way regarded as having prejudiced the prisoner, but was necessarily more favorable than had a categorical answer been given. Having, by explaining again the crime of arson, fully answered the question propounded by the jury, the court was not obliged to entertain other requests submitted by the counsel for the prisoner and to either refuse to charge or to charge them ; and the position taken at that stage of the trial by the recorder, that he would charge nothing further than to answer the question propounded by the jury, was a correct one.

Besides this principal one, many subsidiary questions have been pressed upon our' attention, some of which it is necessary briefly to refer to. In this connection it may serve the purpose of clearness if we classify these other errors assigned and consider them in the order in which they respectively arise, taking up, first, those which relate to the indictment; second, the question relating to the qualification of one of the jurors; third', exceptions to the admissibility of evidence; and, fourth, exceptions, to the judge’s charge other than those already noticed.

First. The indictment contained two counts, in one of which the defendant and appellant is charged with “feloniously, wilfully and maliciously having set fire to the dwelling-house of one Ellen B. Van Duser in the Twenty-first ward, city of New York.” The other count of the indictment charges jhe defendant with having set fire to the dwelling-house of Frank B. Doughty, at the ward, city and county aforesaid. The complaint to the indictment was. threefold: (a) In not setting forth, as provided by § 490, facts and circumstances showing an intent to destroy the building; which we have already discussed and disposed óf. (6) That two distinct offenses of arson in the first degree are charged. When ■ we read the two counts of the-indictment which it is claimed set forth two distinct offenses, it will be seen from the language used, from the similarity of dates, and from the identity of persons stated to have been within the dwelling-house, from the form of the two counts, and from the express statement in the count that it is the same crime of arson as in the first count that is charged, that the purpose sought was merely to remove doubt which upon the evidence might be created as to whether the dwelling-house was that of Ellen E. Van Duser or Frank B. Doughty. But the identification and coincidence of dates and facts are such as to show that the indictment merely in a distinct and separate way charged the same offense to have been committed in relation to property which may have belonged to either of the parties named. While the rule is that the indictment must charge but one crime and in one form, it is equally well settled that there may be a joinder of various counts stating the same offense distinctly and separately n various ways. Nelson v. People, 5 Park., 39; Lanergan v. People, 6 id., 209.

(c) The failure of the court to compel the district attorney to elect between these two separate and distinct crimes. What we have already said with respect to the indictment itself is equally applicable to this objection. If two crimes had been charged, it would be an undoubted right to have compelled an election; but as there was but one and the same offense charged by a joinder of two counts stating the same offense distinctly and separately, the motion to compel the district attorney to elect was properly denied.

Second. The exception relating to the qualification of the juror Whiting. This juror, after a very thorough examination, was challenged by the People, which was sustained by the court, and an exception taken to the ruling. The law in regard to reviewing such ruling is thus stated in the case of People v. McQuade, 110 N. Y., 297; 18 St. Rep., 288: “It seems, therefore, that the Code has restored the law as it originally stood, § 455, Code Crim. Pro., and that the decision of the trial judge on the question of in-ti iff erency is not reviewable except in the absence of any evidence to support it, in which case it is an error of law, to which an exception lies.” An examination of the record will show with respect to this juror that there was evidence to support the ruling of the court. If, however, we examine the testimony, we do not think that Whiting by any means qualified himself to act as a juror; and the challenge was properly sustained. To show this it is unnecessary for us' to review all the questions put to this juror p one or two will be sufficient, we think, to justify the ruling of the recorder. When asked the question: “ Supposing the evidence is entirely circumstantial, then do you know of any reason why you should not sit as a juror ? ” he answered: “ It would have to be very precise and exact.”

“By the Court; Q. What do you mean that it would have to be very precise and exact? A. Well, before I would convict a man of arson in the first degree, the evidence would have to be such that there would be no doubt whatever in my mind; very precise and exact.

“ Q.' Do you mean to ■ say no reasonable doubt, or no doubt whatever ? A. No doubt at all. • ■

“Q. You would include every, doubt? A. Yes, sir.

“ Q.' Reasonable and uni’easonable ? A. It depends entirely on the evidence.”

And finally, in answer to the question of the court, as follows: “ Q. And suppose the court was further to instruct you that if all the circumstances as they were developed by the evidence in the case pointed in one direction beyond a reasonable doubt, and that was towards the guilt of the accused, and if it did it was to be received and treated in the same way as you would treat direct and positive evidence, would you do so ?” he answered, “ I don’t think I would.”

These extracts, we think, show that the mind of this juror was not in the condition to be guided, as he should have been, by the law as it was to be laid down by the court, to which, if erroneous, an exception could betaken, and any injury done remedied by an appeal; but with respect to a juror who would follow his own view regardless of the instructions of the court, there would be no means of cori’ecting the injury or harm that he might do, whether it was to the prisoner or to the People, by disregarding thé law as laid down by the court This he expressly stated he would do if the court instructed him in a certain way with respect to the weight and effect under certain circumstances to be given to circumstantial evidence.

Third. Though many exceptions were taken to the admissibility and exclusion of evidence by the defendant, the exception mainly relied upon and pressed upon our attention was to permitting William Simpson, a witness for the People, to state whether or not the bed in the room in which the fire occurred, had in fact been slept upon on the night of the 3rd of February, 1888, when it is charged the crime was committed. The question was asked: “Now tell the jury the condition of the bed. A. I didn’t look at the bed any more than any part of the room.

“ By the Court: Q. You took a glance of it? A. Yes, sir.

“ Q. Tell how it looked; its appearance. A. It appeared to me like any other bed.

“ Q. I suppose so. Did it appear as if anybody had recently been sleeping in it ?”

To this objection was made upon the ground that the witness should testify as to the exact condition of the bed, leaving it for the jury to determine whether anybody slept in it or not. This objection was overruled and exception taken'; and the witness answered that it looked to him “ as if no person • had slept in it for any length of time, more than a few minutes, for it still appeared to me as if the party, as if there had been somebody in the bed, but not for a whole night."

We do not think that this is open to the objection that ordinai’ily lies to the expression of a mere opinion. The evident intention of the witness was, in his own way, and from his answer it would appear that he was not over intelligent, to describe just how the bed appeared to him. The question was directed to eliciting information as to the condition of the bed, and no objection could be had to a question of that character which sought to elicit such information. The answer given was a natural one from a person who apparently had so indefinite an idea of what was sought from him. To the answer when given no exception was taken by a motion to strike out, or in any other form, the answer being allowed to remain, the appellants counsel relying on the exception taken to overruling his objection to the question. As the question sought to elicit information which the People were justified in producing before the jury, the objection thereto was not good.

Fourth. As to the exceptions to the judge’s charge other than those already noticed. Most of these exceptions resulted from a failure .to correctly apprehend the charge, due no doubt to the continuous presentation by the recorder to the jury of the law bearing upon the case, and certain phrases and portions of his language are excepted to apart from the connection and context of the charge, which when considered as it was delivered presents no valid ground for an exception. It is unnecessary to notice all, but the one mainly relied on will show that the criticism made is mot well founded.

Thus, exception was taken to the language used by the recorder: “Now, these are facts, it appears to me, but I leave it entirely for you to determine, which have been proven here beyond all question.” The language quoted followed a statement of facts about which there was no dispute, namely, the fact that there was a fire in the dwelling house, that there was a fire in the room occupied by the defendant on that occasion, and that the defendant was the only occupant of that room; that he was found in the room in possession of it, with the door locked, and no one else was found at the time the door was broken in, that there was insurance upon his property contained in this room, etc. This was merely summarizing the testimony about which there was no dispute, but which, notwithstanding, the learned recorder stated it was entirely for the jury to determine, and which preceded what was in dispute, as stated by him in his questions following the words quoted: “ How did that fire occur?” “What produced or , caused that fire ? ” etc.

As said by Judge Rapallo in Sindram v. People, 88 N. Y., 196: “ Comments upon the testimony, so long as the judge leaves the question of fact to the jury and instructs them that they are the sole judges of the matters of fact, are not the subject of legal exception.” We think that the whole charge was ” a clear and correct statement, not only of the rules of law governing direct evidence, but also of those relating to the treatment of circumstantial evidence by a jury. As said by the court of appeals in People v. Fanning, 43 St. Rep., 771: “In a •criminal case, we think the judge has the right, and indeed it is his duty, to present the evidence to the jury in such light and with such comments that the jury may see its relevancy and pertinency to the particular issue upon which it was admitted, and thus be better qualified to appreciate its character and weight and to determine its credibility. These questions are for the jury; but it is proper that a judge should assist the jury in marshalling the evidence, so that they may more readily and intelligently come to a conclusion which shall bé satisfactory to themselves, consistent with the evidence, and in accordance with the law.”

Upon examining this record, therefore, and having in mind § 542 of the Criminal Code, which says that “ after hearing the appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties,” we are of opinion that justice requires that this judgment should be affirmed.

Van Brunt, P. J.

—While concurring in the opinion of Mr. Justice O’Brien it may not be inappropriate to add a few words upon the point raised as to the construction to be given to § 490 of the Penal Code.

The only difficulty which exists in reference to the legislation as contained in the Penal Code arises from the fact that the codifiers were not content with codifying the law as they found it, and as it had been expounded for over fifty years, but attempted to make plain that which was entirely clear before, and with the result usually attending such efforts of producing confusion and uncertainty.

A person who wilfully burns or sets on fire a building, structure, erection, vessel, car or other vehicle, is guilty of arson as such crime is defined by the Penal Code.

Upon the part of the defendant it is claimed that because of § 490, which is as follows: “ The burning of a building "under circumstances which shows beyond a reasonable doubt that there was no intent to destroy it is not arson,” the defendant, therefore, was not guilty of arson.

It may very well be claimed that this section has no application to the case at bar because the buildingin question was not burned. It was merely set on fire but not destroyed. But it is not necessary to resort to any such special construction.

If the claim advanced by the defendant is true, then the definí- . tians of arson as contained in §§ 486, 487 and 488 of the Penal Code are expressly repealed by § 490 ; and as to what is called a fire proof building the crime of arson has been abolished. A person may with impunity set on fire a portion of a building which is fire proof, and not be guilty of the crime of arson.

We do not think that the legislature defined arson with so great particularity, and then intended to repeal absolutely the definition. The definition is particular: “A person who wilfully burns or sets on fire; ” “ wilfully burns ” would seem to imply a destruction of the building; a simple setting on fire would imply that the building was not destroyed. Therefore, so far as the definition of arson is concerned, the question as to whether the building is destroyed or not is entirely immaterial. If it is wilfully set on fire, it is just as much arson as though the building was burned and destrayed. This being the definition of arson at the time of the codification, the codifiers seem to have been needlessly apprehensive lest some injustice might be done because of the breadth of the definition of arson ; in other words, that in case where a fire was started intentionally, but innocently and. for an innocent purpose, the person should not be guilty of arson, although the building might be destroyed, and such action might possibly come within the rigid definition of wilful burning or setting on fire. This apprehension was entirely groundless in view of the fact that it had been well settled that the intent with which the fire was started must be malicious in order to constitute the crime of arson. It was only for the purpose of preventing this forced construction of the previous definitions of arson that this section was inserted, and which was entirely new in the criminal law. Therefore the learned recorder was entirely correct in the charge which he gave in respect to the section in question.

Barrett, J., concurs.