text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JEREMIAH C. KEATING, Appellant.

      Grimes — manslcmghter in the first degree — twenty péremptoi'y challenges — “punishable" means “ liable to be punished.”
    The crime of manslaughter in the first degree is punishable by imprisonment for not less than five nor more than twenty years. It is provided by section 373 of the Code of Criminal Procedure that if the crime charged is “ punishable ” with imprisonment for life, or for, a term of ten years or more, the prisoner may take twenty peremptory challenges to the jury.

      Held, that a prisoner indicted for manslaughter in the first degree was entitled to twenty peremptory challenges.
    The right to such challenges upon the part of the prisoner is purely statutory, and the tendency of the legislature has been to enlarge the number.
    The meaning of the word “ punishable” is “liable to be punished.” It does not mean that the punishment must be inflicted.
    Appeal by tbe defendant Jeremiab C. Keating frcm a judgment of tbe Court of Sessions of Livingston county, entered in tbe clerk’s office of said county on tbe 5th day of March, 1891, adjudging the defendant guilty of manslaughter in the first degree, and directing bis imprisonment' in tbe State prison for a term of five years.

      J. M. Hastings, for the appellant.

      L. 0. Reed, district attorney, for the respondent.
   Lewis, J.:

Tbe circumstances attending tbe commission of tbe crime of which tbe defendant was convicted were exceedingly cruel and brutal. Tbe defendant was one of four men who planned tbe assault which was made upon the deceased 'William S. Joslyn, and which resulted in his death. Joslyn was assaulted when standing quietly upon the sidewalk in the village of Mt. Morris. Daniel J. Keating, one of the defendant’s party, made an attack upon him, striking him in the face with his fists, knocking him down and continued beating him while down until he succeeded in breaking his neck, causing his death. The defendant stood near by aiding and encouraging the assault. When the witness James McNealy attempted to interfere and make peace the defendant seized McNealy and forced him away; McNealy returning, the defendant took off his coat, pushed McNealy into the gutter, saying “ Let them have fair play,” and the beating continued until the defendant directed Daniel Keating to desist, and Joslyn was then dead.

The evidence of the defendant’s guilt was ample to justify the verdict. The evidence as to the blood upon the wall of the hotel, directly back of where the deceased was standing when assaulted, was competent as part of the res gestee. The question put to Jeremiah Keating, “If he wanted to see Joslyn get a thrashing,” was competent. Keating belonged to the defendant’s party; stood by during the assault. He was called as a witness for the defense and had given important testimony. It was proper for the district attorney to ascertain if he was an impartial and unprejudiced witness.

The important question in the case arises on the ruling of the court that the defendant was entitled to but five peremptory challenges. The indictment was for the crime of manslaughter in the first degree, which is punishable by imprisonment for not less than five nor more than twenty years. Section 313 of the Code of Criminal Procedure is as follows: “Peremptory challenges must be taken in number as follows: First. If the crime charged be punishable with death, thirty. Second. If punishable with imprisonment for life, or for a term of ten years or more, twenty. Third. In all other cases five.” The appellant’s contention is that his case ■comes under the second subdivision, that he was entitled to twenty peremptory challenges; that the crime that he was charged with committing was punishable by imprisonment for ten years or more. The defendant’s right to peremptory challenges was purely statutory. It was not derived from the Constitution nor the common law.

. At common law the people had the right to peremptory challenges, but the accused had not. "We are not referred to any adjudication in this State where the questions raised here were presented.

A brief review of the legislation touching peremptory challenges may aid in the solution of this question. By the Revised Statutes every person put on trial for an offense punishable with death, or with imprisonment in a State prison for ten years, or any longer time, was entitled to twenty challenges. For offenses punishable with imprisonment for a term of less than ten years no challenges were allowed. To remedy this the act of 1847 (ch. 134) was enacted. By that act every person on trial for an offense not punishable with death, or with imprisonment in a State prison for ten years, or for a longer time, was entitled to five challenges. Bytheactof 1858, chapter 332, on a ti'ial of any offense punishable with death, or by imprisonment for the term of ten years, or for a longer term, the people were given ten peremptory challenges; and on the trial of am offense punishable by imprisonment for a term of less than ten years, three challenges. Prior to the adoption of the Criminal Code the provision of the Revised Statutes (2 R. S.,' 734, § 9) was as follows: “ Every person arraigned and put on his trial for any offense punishable with death, or with imprisonment in a State prison ten ^ears, or any longer time, shall be entitled peremptorily to challenge twenty of the persons drawn as jurors for such trial and no more.”

■ In the ease of Dull v. The People (4 Denio, 92) the defendant was indicted for burglary in the second degree, and on the trial claimed the right to peremptory challenges of the jurors, which was denied by the trial court. He was convicted and sentenced to imprisonment in the State’s prison for ten years, that being the maximum penalty for that offense. The trial court held that, as the minimum was less than ten years, the prisoner was not entitled to peremptory challenges. The court, on appeal, Chief Justice BeoNSON delivering the opinion, held that the offense being one for which the defendant was liable or subject to be punished with imprisonment in the State’s prison for ten years, his case came within the express words of the statute, and the conviction was reversed.

The contention of the district attorney is, that by the change in the phraseology of the statute by the use of the word “ term,” in subdivision 2 of section 373, the legislature intended to fix a period of time limited by the termini; one terminus being imprisonment for the term of ten years, and the other, imprisonment for life, or for a longer term than ten years.

We have seen from the history of the legislation upon this subject that the tendency has been to enlarge and increase the number of peremptory challenges in criminal cases. The statute which was displaced by section 373 of the Code of Criminal Procedure, as the section of the Eevised Statutes had been construed by the court in Dull v. The People, gave to the person charged with a crime the punishment of which might be imprisonment for ten years o.r more, twenty challenges. If the construction contended, for by the people’s counsel be correct, section 373 abridged the number of challenges which the defendant would have been entitled to under the former statute.

We are not able to see, by the change in the language suggested, evidence of an intention on the part of the legislature to thus abridge the defendant’s right to challenges.

Where the statutes of a State are £ revised ’ after the manner generally pursued in our States, the Eevised Statutes receive the former interpretation wherever a contrary intention does not affirmatively appear. Slight changes in language- are not presumed to change the meaning, since it was one of the special objects of the revision to introduce an improved and more uniform phraseology. To produce a change of interpretation, the intent to change the law must affirmatively appear.” (Bishop on Crimes [1st ed.], § 98, and authorities referred to in margin; Hughes v. Farrar, 45 Me., 72.)

The crime the defendant was charged with committing is punishable by imprisonment, in the discretion of the court, for ten years or more. The meaning of the word “ punishable ” is not must be punished,” but “ liable to be punished; ” and was so held in the case of State v. Frederick Neuner (49 Conn., 233); also in Miller v. State (58 Ga., 200).

“ Punishable ” includes an offense which may, under some circumstances, be punished in the manner designated, although under others it may not be.

In Commonwealth v. Pemberton (118 Mass., 336), it was held that a statute providing that murder committed in the commission of, or in the attempt to commit any crime punishable with death or imprisonment for life, is murder in the first degree, and includes all offenses that may be so punished.

If subdivision 2 of section 373, read “ If the crime charged may be punished with imprisonment for life, or for a term or period of ten years or more,” it would not be contended but that the defendant was entitled to the twenty challenges. It was the liability of the defendant to receive a sentence of a term of ten years that determined the number of challenges he was entitled to, and not his liability to receive a less term. Stress is laid upon the employment of the word “term” as indicative of an intention to alter the previous statute.

An imprisonment for any definite period of time is certainly for a term. We must assume that the codifiers were aware of the prior statutes, and the construction which the courts had given them. If they had intended to change the law they would, we think, have provided for the cases where a crime was punishable with the term of ten years or less.

We think the learned court below fell into error in holding that the defendant was entitled to but five peremptory challenges, and that the judgment of conviction for that reason should be reversed and a new trial granted.

Dwight, P. J., and MacombbR, J., concurred.

Judgment and conviction reversed and a new trial ordered in the Court of Sessions of Livingston county.


source: Caselaw Access Project

author: Lewis, J. :

license: Public Domain

text:
    DAVID WRIGHT, Appellant, v. JAMES SHANAHAN, as Superintendent of Public Works of the State of New York, and JAMES SHANAHAN, Respondent.

      Public administrative officer — apa/rty damaged by the officer’s failure to exercise his discretion is entitled to relief in equity — duty of the Superintendent of Public Worlcs . to remove flush-boards from a dam.

    In an action brought to restrain the defendant, the Superintendent of Public Works of the State of New York, as a public officer and individually, from, keeping flush-boards continually upon the top of a dam, across the outlet of Owasco lake, by reason of which plaintiff's lands were overflowed, it appeared that the legislature, in 1857 and in 1868, appropriated the dam to the use of the State, with the right to control and store tlio waters of the lake for canal purposes, and that, in 1868, the canal division engineer recommended the use of flush-boards to store waters, the same'to be taken off when not needed for such purpose. The canal board adopted this recommendation and used such boards, but not continuously.
    The defendant assumed office in February, 1884. During his term the boards were never removed from the dam, although there was no difficulty in doing so. In the fall, winter and spring, and in times of freshet, they were unnecessary for storage purposes, and at such times caused the waters of the lake to rise and damaged the lands of plaintiff, who made many complaints to the defendant during the years 1885, 1886, 1887 and 1888, but secured no redress from the defendant, or from his subordinate, to whom he was referred.

      Held, that the plaintiff was entitled to relief.
    That the defendant was an administrative officer and his duties were ministerial. That, in the absence of any proof that he had exercised discretion in the matter, or given it any attention, a court of equity would interfere to direct his action, That it was his duty to remove the flush-boards when the interests of the canals did not require their use, and to exercise his discretion in that regard.

      Il seems, that the plaintiff was entitled to a mandatory injunction directing the defendant to cause the flush-boards to be raised from time to time so as to allow the water to flow over the dam during such periods as the said boards were not required to be in place in order to store water for canal purposes.
    Appeal by the plaintiff David Wright from a judgment, entered in the office of the county clerk of Cayuga county on the 26th day of September, 1890, dismissing his complaint, with costs, after a trial before a referee.

      H. P. Howlcmd, for the appellant.

      John W. Hogan, attorney-general, for the respondent.
   Lewis, J. :

This action was commenced in January, 1889, to restrain the defendant, as a public officer and individually, from using, keeping up, permitting or suffering to be used or kept up continuously, flush-boards upon the top of the upper dam across the outlet of Owasco lake, causing the water of the lake to set back overflowing the lands of the plaintiff. Other claims for relief were stated in the complaint. The action was referred.

Tbe following facts were found by the referee: That the plaintiff was the owner and in possession of the farm described in the complaint situated upon the inlet of O wasco lake; that the lands were partly cleared and were productive and valuable for agricultural purposes; that Owasco lake was a natural body of water, having an inlet and an outlet; that many years prior to 1857 a dam was constructed across the outlet, forming a reservoir from which water was taken for the use of the Auburn Hydraulic Association and also for the use of the State’s Prison at Auburn; that under and by virtue of acts of the legislature passed in the years 1857 and 1868, the State, appropriated the dam to its own use with the right to control and store the waters of the lake for canal purposes; that in the year 1868 the canal division engineer recommended the use-of flush-gates upon the dam for the purpose of storing the water for canal purposes, the flush-gates to .be taken, off from the dam when not needed for storing water and to be replaced when needed for that purpose. • The Canal Board adopted the recommendations of the engineer, and the Canal Commissioners and their agents kept and maintained upon the crest of the dam flush-boards of the width of eighteen inches until the year 1874, or thereabouts, and thereafter flush-boards of the width of two feet were put on and used until the year 1884; these boards were not kept up continuously, but were removed in times of freshet or high water to permit the waters of the lake to settle even with the height of the flush-boards above-the crest of the dam; the defendant was duly appointed Superintendent of Public Works and entered upon the discharge of the duties of the office on the 1st day of February, 1884, and continued therein until after the commencement of this suit; during that period the defendant did not remove said flush-boards from said dam, but they were kept upon the crest of the dam continuously by the direction or with the consent of the defendant in times of freshet or high water as well as at other periods of the year; that whenever such flush-boards were removed, prior to 1884, the waters of the- lake were not caused to rise by means of the dam so as to flow back upon the plaintiff’s lands or to saturate them to such an extent as to make them unfit for cultivation, but the keeping up of the flush-boards continuously had the effect, in each year in periods of freshet and high water, to raise the water of the lake and inlet so that the plaintiff’s lands were thereby submerged and saturated to such an extent as to greatly injure them for agricultural purposes.

He found, as conclusions of law, that, at all times after the acts of 1857 and 1868, the Canal Commissioners had authority to raise the height of tiie water above'the dam by the use of flush-boards, upon the crest of the dam or otherwise, of such width as they should prescribe from time to time, and to keep them up continuously if, in the exercise of tlieir discretion, they should think it necessary or advisable to do so, subject to the right of the owners of the lands injured thereby to compensation from the State; that the authority possessed by the Canal Commissioners became vested in the defendant as Superintendent of Public Works, and that in keeping up-said flush-boards continuously the defendant acted officially as the agent of the State ; and that the plaintiff had established no cause of action, legal or equitable, against the defendant, either in his official or individual character; and that his claim for damages, if any, was against the State, and not against the defendant, and dismissed the complaint, with costs.

These facts, thus found by the learned referee, are all sustained by the evidence, with the exception of his finding that the flush-boards were kept upon the crest of the dam continuously by the direction or with the consent of the defendant. If, by that finding, it is meant that the defendant, at any time, took the matter of keeping the flush-boards on the dam, or removing them, into consideration and exercised his discretion upon the question, I do not think the finding sustained by the evidence, for I am unable to find any evidence or facts warranting such finding. There is an entire-absence of any evidence tending to show that the defendant ever-reflected upon, or exercised any discretion in the premises. The evidence'shows that from first to last he ignored the matter and refused to give the slightest attention to it. His attention was called to the-question of the flush-boards by the letter from the plaintiff dated June 5, 1885. He was informed that the plaintiff was suffering-damages by their being kept upon the dam during high water. He failing to pay any attention to the communication, another letter-was addressed to him upon the subject in October of the same year. In answer to the last letter, he writes :

“ October 23, 1885.
“ D. Weight, Esq., Auburn, IT. Y.:
“ Deab Sie.— Both of jour letters, one of June 5th and the other •of October 6th, were received and placed on file.
Yours, very truly,
“JAMES SHANAHAN,
“Superintendent of Public Works.”

A resolution was adopted by the Senate of the State in April, 1886, requiring him to report to the Senate whether or not he claimed, and, if so, by what authority, the right or power to cause flush-boards to be placed upon the upper dam of the Owasco outlet in Oayuga county, and to what height, and for what purpose; and whether or not he had directed such flush-boards to be placed on the said dam, and to what height; and whether or not he had appointed or caused to be appointed any person to place or keep or have the management of flush-boards upon said dam, if so, who and the date of such appointment. He replied to the interrogatories as follows: “ I have not appointed or caused to be appointed any person to place or keep or have the management of flush-boards upon the upper dam of the Owasco outlet in Cayuga county, nor have I directed flush-boards to be placed on said dam. Under chapter 262 Laws of 1817, I claim authority to put on flush-boards on said ■dam in case of emergency, but have not exercised the right during my term of office.”

After the receipt of another letter from the plaintiff, calling his attention to the matter again, he wrote plaintiff that he had referred his letter to his assistant superintendent, John Stebbins, of Syracuse, and directed, that all further communications upon the subject be sent to him. After the receipt of three other letters written by the plaintiff upon this subject, he again writes : “ Matter upon which you touched in your letter yesterday is in the hands of Assistant Superintendent Stebbins, and I would prefer that you send your ■communications on this subject to him.” The plaintiff testified that lie called upon Mr. Stebbins upon the subject, and he refused to •consider the question, and, in effect, directed the plaintiff to leave his office.

Five other letters addressed to the defendant by the plaintiff upon the subject during the years 1886, 1887 and 1888, elicited no reply. The defendant failed to attend the trial of the action, or pay any personal attention to the matter. lie has not vouchsafed even to say that other matters had so engrossed his attention that he had not the time to consider the question. He knew, if he read the plaintiff’s letters, that it was a matter of large pecuniary importance to the plaintiff and others occupying lands adjacent to the inlet to the lake.

He refused to pay any attention to the plaintiff’s complaints. The law of 1817, to which he referred in his answer to the resolu tions of the Senate, gave to the Canal Commissioners power to take possession of and use any lands or waters in the State necessary for the construction and use of the canal, “ but doing, nevertheless, no unnecessary damage.” If the ease furnished any evidence that he had exercised his discretion and determined that the interests of the canal required that the flush-boards should remain upon the dam continuously, a different question might be presented, although it would be difficult to convince a court that he had in good faith reached any such conclusion It must be apparent to anyone who gives the subject any reflection that the flush-boards in the fall, winter and spring were not necessary for any great length of time to store the water in the lake for use in the dry season of the year. The evidence shows conclusively that they were not needed except in the dry season when the canals were in use. Keeping them on the dam during the winter and rainy seasons caused the plaintiff’s land to be submerged and saturated with water the greater part of the year, and it was thereby rendered unfit for agricultural purposes. The flush-boards were so constructed that their removal and replacement were the work of a short time and inexpensive. There can be no doubt that it was the duty of the defendant, as Superintendent of the Public Works to cause the flush-boards to be removed from the dam when not necessary for storing water. The referee correctly decided that the defendant was not bound by the action of his predecessors as to the manner of using the flush-boards or as to their height. He, as representative of the State, had control of the dam. He had authority to determine what flush-boards should be used and when they should be placed on the dam for the purpose of the canal.

Section 3 of article 5 of the Constitution provides that the Governor shall appoint a Superintendent of Public Works, who shall be charged with the execution of all the laws relating to the repair :and navigation of the canals.of the State, and also of those-relating to the construction and improvement of the canals, except so far as ■the execution of the laws relating to such construction or improvement is confided to the State Engineer and Surveyor, subject to the -control of the legislature. It also provides that he shall malee the rules and regulations for the navigation and use of the canals, lie is required to give' security for the faithful discharge of his duties as such officer. He is an administrative officer. (1 R. ¡S. [7th ed-], 340.) His duties are ministerial, not jxidicial. In the discharge of the important and responsible duties of his -office he is frequently called upon to exercise discretion, and when he honestly and fairly exercises such discretion his conduct is not subject to the control or direction of the courts. The coxxrts have, however, frequently assumed jurisdiction over tixe acts of ministerial officers. They have been restrained by injunction from proceeding in violation of the law to the injury of individual rights. They may be set in motion in the discharge of their duties by the courts if -they neglect and refuse to perform the duties of their •office. They are amenable to the jurisdiction of the courts of •equity in the administi-ation of their trusts at the suit of an individual having a special interest in the execution of the trust. (The People of the State of New York v. The Canal Board of New York, 55 N. Y., 393; Adsit v. Brady, 4 Hill, 630.) Judge Bronson, speaking for the court in Adsit v. Brady, says : When an individual sustains ¿n injury by the misfeasance or non-feasance of a public officer, who acts or omits to act contrary to his •duty, the law gives redress to the injured party by an action adapted to the nature of the case. This principle is so well settled that it is only necessary to inquire whether there be anything in this case to take it out of the operation of the general rule.”

■ In this case one of the sxxpei’intendents of repairs on the canals was sxxed for damages sustained in consequence of his neglect to keep his section in repaii\

While this case has been somewhat criticised and limited by later cases, the general doctrine enxxnciated by Judge Bronson, above quoted, has not been distxxi-bed.

Judge Rapallo says, in McCarthy v. The City of Syracuse (46 N. Y., 196) : Tlie principle appears to be settled in this State that where a duty of a ministerial character is imposed by law upon a public officer or corporation, a negligent omission to perform that duty creates a liability on the part of such officer or corporation for the damages which individuals may sustain by reason of such omission, and that such liability may be enforced in a civil action by the party injured." (See Robinson v. Chamberlain, 34 N. Y., 389.)

It was the duty of the defendant, as Superintendent of Public Works, to cause the flush-boards upon this dam to be removed when, in his opinion, the interests of the canal did not require their use. It was his duty to exercise liis discretion upon that subject. The property of citizens was being injured by the neglect to remove the boards, lie persistently refused to take the matter into consideration and perform his duty in that regard. It is suggested that the, plaintiff’s remedy was the presentation of his claim for damages from time to time, to the Court of Claims.

Such a course would involve a multiplicity of actions and involve the plaintiff, and also the State, in great expense in trying the cases. A moment’s consideration and action by the defendant would have avoided and saved all such trouble and expense. If he had devoted a portion of the time that he was occupied in answering letters and inquiries propounded to him to the consideration of the question, the whole difficulty would have been remoyed. I think it was within the power'of the court to give the plaintiff relief, and while the principal claims in his complaint against the defendant were properly refused; he was, I think, entitled to -a mandatory injunction directing the defendant to cause the flush-boards to be from time to time raised so as to allow the water to flow óver the dam unobstructed during such times as, in his judgment, they were not needed thereon for the purpose of storing water for the use of the canals. Instead of the plaintiff obtaining this relief his complaint was dismissed and a judgment entered against him for $457.75 costs.

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

Dwight, P. J., and Macombek, J., concurred.

■ Judgment appealed from reversed and a new trial ordered, costs to abide the event.


author: Leavis, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM H. FORMOSA, Appellant.

      Life insurance — chapter 401, Laws of 1887, foi'bidding discrimination in the matter of premiums, etc., is not unconstitutional — proof of the incorporation of a foreign insurance company — charge to the jury us to good character— incorrect statement of the law by the judge, not excepted to.

    Chapter 401 oí the Laws of i 890, which forbids life insurance companies doing business in the State of New York from making any discrimination in favor of individuals of the same class and the same expectation of life, either in the amount of premium charged or in any return of premium, dividends or other advantages, and which also forbids an agent to offer any inducement of such a nature to an insurer, is not unconstitutional.
    An act which is general and uniform in its operation upon all persons coming within the class to which it applies is not special legislation.
    Upon the trial of an agent of a foreign insurance corporation, charged with having violated this statute, the articles of its incorporation were not proven, hut no objection was raised at the trial upon that ground. The policy was put in evidence, and the agent of the company testified to the transaction.

      Held, that the court would not, upon appeal, reverse the judgment upon the ground that there was no proof of the incorporation of the company.
    Where, taking the charge as a whole, it appears that the jury must have understood the court to instruct them, that if they were satisfied from the evidence that the defendant was guilty of the crime charged his previous good character would not protect him, there is no error.
    The policy of insurance in question was delivered to the jury to inspect, the court at the same time saying that under this statute there were two phases in which there might be a violation thereof. In fact, there was hut one phase, hut no exception was taken to this statement of the court.

      Held, that as it was proper to submit the policy to the jury the attendant remarks of the court, not excepted to, were not a good ground for a reversal.
    Appeal by tbe defendant 'William II. Formosa from a judgment, rendered in tbe Monroe County Court of Sessions on the 20th day of April, 1891, convicting him of unlawfully paying and allowing a rebate of premiums as an inducement to Orth C. Graves to insure his life; also from an order, entered in tbe clerk’s office of said county on tbe 21st day of April, 1891, overruling a demurrer to the indictment herein; also from an order, entered in said clerk’s office on tbe last-mentioned day, denying the defendant’s motion to set aside the verdict herein and to grant a new trial upon the minutes of the court, and also from an order, entered in said clerk’s office on said last-mentioned day, denying the defendant’s motion in arrest of judgment herein.
    The defendant Avas sentenced to pay a fine of fifty dollars and in default of payment to be imprisoned in the Monroe county-penitentiary not to exceed fifty days.

      W. Jrl. Davis, for the appellant.

      George A. Benton, district attorney, for the respondent.
   Leavis, J.:

The defendant was indicted October 30, 1890, for the crime of violating chapter 401 of the Laws of 1890, which reads as follows:

Section 1. Life insurance companies doing business in this State shall not make any discrimination in favor of individuals of the same class and of the same expectation of life, either in the amount of premium charged or any return of premium, dividends or other advantages, and no agent of any such insurance company shall make any contract for insurance, or agreement as to such contract of insurance, other than that which is plainly expressed in the policy ssued, nor shall any such company or agent pay or allow, or offer to pay or allow, as inducement to any person to insure, any rebates of premium or any special favor or advantage whatever in the diAddends to accrue thereon, or any inducement whatever not specified in the policy.” Section 3 of the act makes the violation of it a misdemeanor.

The defendant interposed a demurrer to the indictment cn several grounds mentioned in the demurrer. The indictment seems to follow the language of the statute, and sufficiently describes the crime charged; and as the appellant does not, in his- brief, urge this question, we assume that he is satisfied that the decision of the court was correct.

The appellant makes two points upon which he relies for the reversal of the judgment; first, that the judgment should be reversed, because there is no evidence that the National Life Insurance Company of Montpelier, Vermont, is a corporation as charged in the-indictment.

The indictment charged that the company was a corporation duly organized under the laws of the State of Vermont, and legally doing business in tbe State of New York as a life insurance company. The articles of incorporation of the company were not proven, and no question seems to have been raised upon the trial as to the fact that such a corporation existed. There was proof that the defendant assumed to act as its agent. He caused to be delivered to the insured a policy purporting to be issued by the National Life Insurance Company of Montpelier, Vermont. The policy was indorsed William H. Formosa, General Agent National Life Insurance Company of Montpelier, Vermont, 17 and 18 Osborne Block, Rochester,. N. Y.” He testified that he had been acting as the agent of “ Our Company,” and then went on to explain the transaction with the insured in respect to the policy in question. No other policy issued by any other company was proven. The People offered in evidence a policy of insurance which purported to be issued by the defendant as agent of the company. Graves, the person insured, testified that the policy was delivered to him by the defendant. By issuing the policy he affirmed that the company existed and was doing business in the State of New York, and that he was its duly authorized agent; and not having raised the question upon the trial, we think it must be held to have been sufficiently proven.

The appellant contends that the law under which the defendant was convicted is unconstitutional, being repugnant to the clause of the Constitution which secures equality of rights to all of the people of the State, and protection against proscription and disparagement of their persons, their property and their employment, and impairs the obligation of contracts.

The act attempts to. regulate and control dealings between life insurance companies, .their agents and the persons insured by them. It provides that the company shall not make any discrimination in favor of individuals of the same class and of the same expectation of life, but shall charge the same premium for insmúng the lives of such persons.

The business of life insurance has become so general, such a large part of the public are interested in oue way and another with the success and permanency of the companies, if carefully and properly managed they are such an important factor in the affairs of the world, that it may be said that the public generally are interested in their welfare.

It lias become a matter of common notoriety and knowledge that in the sharp competition among the agents of the different companies large inducements in the way of rebates of premium and special favors and advantages are extended to persons to induce them to insure. The agents are compensated for their services in procuring the policies by a percentage of the premiums paid by the insured.

The companies in their strife for business pay large percentages of the premiums to their agents to encourage them to vigilance and industry in procuring applications for policies with the expectation and understanding that the agents will offer inducements in the way •of rebates of premiums. There was evidence in this case showing that Formosa’s percentage upon the policy to Graves was sixty-five per 'cent of the premium. The result of this strife for business was •disastrous to the companies, resulting in serious losses to the beneficiaries named in the policies, and hence the legislature passed the act of 18-90, with a view of regulating this important branch of the business of the country. The act should be held constitutional unless it is seen to plainly violate some provision of the Constitution. Similar acts have been passed by the legislatures of the different States and have been held by the courts to be valid.

The act of 1888, fixing the maximum charge for elevating grain and making its violation a misdemeanor, was held by the Court of Appeals not to be violative of the constitutional guaranty protecting private property, and was held to be a legitimate exercise of the police power of the State over a business affecting the public generally. (The People v. Budd, 117 N. Y., 1.) In Little Rock and Fort Smith Railroad Company v. Hanniford (49 Ark., 291), the court held as valid the Arkansas act of 1885, prohibiting any railroad company in the State from charging a greater sum for the transportation of freight than is specified in the bill of lading and imposing a penalty for a violation of the act. The court said: “ This act being general and uniform in its operation upon all persons coming within the class to which it applies, it does not come within that special legislation prohibited by the Constitution. For it applies to and embraces all persons ‘ who are or who may come into certain situations and circumstances,’ and is ‘general and uniform, not because it operates upon every person in the State, for it does not, but because every person who is brought within the relations and circumstances provided for is affected by the law

The interstate commerce act of 1887 regulates the transportation of freight by common carriers, and prohibits making special rates, rebates, drawback or other device, and prohibits receiving from any person or persons a greater compensation for any service rendered or to be rendered in the transportation of persons or property, subject to the provisions of the act, than they charge, demand, collect or receive from any other person or persons for doing a like and contemporary service in the transportation of property under substantially the same circumstances and conditions. This act has been held to be valid.

If the legislature has the powpr to regulate the charges for elevating grain or the transportation of passengers and freight, it is difficult to see any reason why the business of insurance companies may not be in like manner regulated. No injustice is done by this act to any insurance company, or agent thereof, who desires to do a legitimate and proper business. It does prohibit them from making unjust discriminations amongst individuals of the same class, and of the same expectation of life insured by them. It seems to be a wholesome and proper act, and not in violation of any provision of the Constitution.

The appellant claims that the charge of the court upon the question of good character was erroneous, and complains of the following statement of the court to the jury:

It is sufficient for your consideration of the case that it is the law of this State, and, if it is the law, it is to be enforced. If it has been violated, you are to bring in a verdict in accordance with the facts, and it is not your province nor your privilege to override the plain spirit and letter of the law and say, because you think a man has a respectable character, and respectable connections and standing in the community, that it shall shield him from the consequences of a ci’ime, when, perhaps, the same considerations might not occur to you in behalf of a man not so respected or vouched for by his fellows. The law is no respecter of persons. It is no excuse to say that a man has a good character, and yet it would be foolish to say that such a question has no weight, because it is a question of importance to know as bearing upon whether a defendant would be likely to tell the truth or untruth in the matter. It is important, not as to whether he committed the crime, but upon the question whether it is likely the story he tells is a true one, and convinces you that no crime has been committed. It is the same with the testimony of the gentlemen called to vouch for the defendant’s good character.”

No exception was taken to any part of the charge of the court, and we are not able to see that the jury could have been misled by the remark of the judge that the defendant’s character was not important upon the question as to whether he committed the crime.

Taking the whole charge together, the jury must have understood the court to mean that, if they were satisfied from the evidence that the defendant was guilty of the crime charged, in the indictment, that his previous good character should not be allowed to shield him.

At the close of the charge the district attorney asked the court “ to allow the jury to take the policy in view of the phase of the law, ‘ that the terms of the contract cannot be changed.’ ”

The court remarked to the jury: “You will observe that there are two phases of the law under which there will be a violation. First, that no different contract shall be made by an agent or company from that expressed by the policy or contract; second, that no agent shall offer any inducement not set forth in the policy or contract. So you may take it (the policy) to determine what phase of the law has been violated.” This is complained of by the defendant. The court certainly was unfortimate in the selection of language in this part of the charge.

Section 1 of the act in question, first, prohibits any discrimination by insurance companies in favor of individuals of the same class and of the same expectation of life, either in the amount of premium charged or in return of premiums, dividends or other advantages, and prohibits any agent from making any contract different from that expressed in the policy; and further provides that no company nor its agent shall offer to pay or allow, as an inducement to insure, any rebates of premium or any special favors, etc.

The desire, evidently, of the district attorney in making the request to the court to have the policy delivered to the jury was to enable the jury to see what the terms of the contract were. It was proper that they should be permitted to examine it, and while there were not “two phases of the law under which there will be a. violation,” and the charge was not correct in that respect, the defendant made no request to the court to correct that part of its charge, neither did he take any exception.

The evidence that the defendant was guilty of violating the statute being ample, we do not see how he was prejudiced by this portion of the charge.

There was sufficient evidence to sustain the verdict. All questions of fact were fairly submitted to the jury, and we find no error in the instructions of the trial court prejudicial to the appellant.

The judgment of conviction appealed from should be affirmed, and the proceedings remitted to the Court of Sessions of Monroe county with directions to proceed thereon.

Dwight, P. J., and Macombbr, J., concurred.

Judgment and conviction affirmed, and case remitted to the Court of Sessions of Monroe county to proceed thereon.


author: Lewis, J.:

text:
    In the Matter of Proving the Last Will and Testament of HENRY H. BYRON, Deceased.

      Surrogate’s Court — a copy of the stenographer’s minutes, when to be paid for out of the estate.

    Section 2558 of tiie Code of Civil Procedure provides that “ the surrogate may-order a copy of the stenographer’s minutes to "be furnished to the contestant’s counsel, and charge the expense thereof to the estate if he shall be satisfied that the contest is made in good faith.” A will was contested unsuccessfully. Without an order of the surrogate to that eif ect the contestants procured and paid for a copy of the stenographer’s minutes.

      Held,, that the Surrogate’s Court had no power, upon an application made subsequent to the furnishing of the minutes, to allow to the contestants the sum thus paid.

      Semble, that the proponents would have been entitled to notice of such an application if it had been made.
    Appeal by William II. Heath and William H. Parkinson, as executors of the will of Henry II. Byron, deceased, and by Sophia Heath and Mary Parkinson, as legatees thereunder, from so much of a decree, entered in the office of the Surrogate’s Court of Erie-county, and bearing date on tlie 24th day of October, 1890, as directs that “ there be allowed to the special guardian of Maud Kirby, an infant, and Robert Byron, for their disbursements, the money and expenses, paid for a copy of the stenographer’s minutes of the evidence taken upon the trial of said proceedings for the probate of said will, and being the sum of $456.80, one-half thereof to be paid to said special guardian and the other half to said Robert Byron; also from so much of the further direction of said decree, bearing date the 21th day of October, 1890, as directs that the said sum of $456.80 for a copy of the stenographer’s minutes, or any part thereof, be paid by the said estate of Henry H. Byron, deceased, the decedent, with notice that this appeal is brought from proceedings herein had after the will of said deceased was admitted to probate, and is not based upon evidence taken on the trial before the probate of said will, or rulings thereon during the trial.”

      Hosea, S. Heath, for the executors and certain legatees, appellants.

      J. M. Humphrey, for the contestants, respondents.
   Lewis, J.:

There was a contest in the Surrogate’s Court of Erie county over the probate of the will of Henry H. Byron, deceased. A decree was entered on the 10th day of September, 1890, admitting the will to probate. It was directed by the decree that the question of costs be reserved to be determined by the further decree of the Surrogate’s Court. A motion was thereafter made by the contestants to be allowed as disbursements the sum of $456.80 paid for a copy of the stenographer’s minutes of the evidence taken upon the trial.

They presented, upon the motion, affidavits showing that by direction of their counsel they procured of the official stenographer of the Surrogate’s Court a copy of the minutes of the testimony, and that Byron paid the sum named therefor. No order was obtained, prior to the furnishing of the minutes, directing them to be furnished to the contestants. The proponents opposed the motion, and their affidavits show that they had procured a part of the stenographer’s minutes for use upon the trial at an expense of $332, and had them at the time the contestants procured their copy.

This appeal is upon a question of law, and not from a decree rendered upon the trial by the Surrogate of an issue of fact, and the •case required by section 2576 of the Code of Civil Procedure was not necessary. The practice suggested in Redfield’s Law and Practice in Surrogate’s Courts was followed, and, we think, correctly. All the papers are before us upon which the surrogate acted in making the supplementary decree appealed from. Section 2558 of the Code of Civil Procedure provides that “ the surrogate may order a copy of the stenographer’s minutes to be furnished to the •contestant’s counsel and charge the expense thereof to the estate, if lie shall be satisfied that the contest is made in good faith.”

The contestants having been unsuccessful in the litigation were not entitled to any costs. They were not entitled, at the expense of the estate, to reimbursement for moneys they may have paid for minutes of testimony without an order of the Surrogate’s Court. That court being one of limited jurisdiction, its power to grant the order was derived from the section of the Code mentioned, and that section, it will be seen, contemplates that the application for the order shall precede the furnishing of the minutes. The proponents were entitled to notice of such application. (In the Matter of the Probate of the Will of Budlong, Deceased, 33 Hun, 235.) Had the application been made before the minutes were furnished, it would have been made to appear to the Surrogate that his official stenographer had already furnished a copy of most of the testimony to the proponents, for which he had charged them the sum of $332. An investigation would have, undoubtedly, shown that the stenographer, when he made the tcopy for the appellants, took a duplicate impression and had on hand an extra copy of the evidence. It would have afforded the appellants an opportunity to loan to the contestants their copy of the evidence, and thereby save the expense of another copy.

This case very aptly illustrates the propriety of the provision of the Code requiring that the application for the order should precede the furnishing of the minutes. The course pursued gave to the stenographer an opportunity to secure $456.80 for an exceedingly small outlay on his part. If properly regulated, the services of a stenographer probably facilitate the business of our courts. They, at least, conduce to correctness, but, unless a careful supervision is exercised over them by the courts, their charges become exceedingly burdensome to the litigants.

If this order is allowed to stand, there will be taken out of this estate for the work of a mere clerk, in copying the minutes of the trial, $T88.80. The stenographer of the Surrogate’s Court receives a salary for taking the original minutes. We are not advised as to the value of this estate, but, assuming it to be an average estate, the stenographer’s charges would make a serious inroad into the accumulations of the testator. The moving affidavits show that Byron paid the $456.80 to the stenographer. The order provides that one-half thereof shall be paid by the executors to him, and the other half to the guardian of Maude Kirby. Why the guardian should receive a portion of the sum paid by Byron does not appear. We think that the' true construction of section 2558 requires that the order should precede the furnishing of the minutes, and that the Surrogate had no power to grant the order appealed from.

That part of the supplementary decree directing the executors to pay the contestants out of the funds of the estate the amount paid to the stenographer should be reversed, with costs.

Dwight, P. J., and Macombee, J., concurred.

That portion of order of Surrogate of Erie county appealed from reversed, with ten dollars costs and disbursements.


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

text:
    CORNELIUS V. CROSS and Another, as Surviving Executors and Trustees of the Will of PHEBE JANE CROSS, Deceased, and Others, Appellants, v. THE UNITED STATES TRUST COMPANY, of New York, as Trustee under said Will, and Others, Respondents.

      Foreign will— trusts, valid where the will toas made,.android in New York where the trustee resided — action for construction not proper where the money has been paid to the trustee and the foreign executor has been discharged in the foreign State.

    In an action brought for the construction of a will by its surviving executors, and by certain children of the testatrix, beneficiaries thereunder, it appeared that the testatrix was, at the time of her death, a resident of the State of Rhode Island; that her will was proved and letters testamentary were issued there; that the will, among other things, gave to the defendant, the United States Trust Company of New York, certain bonds, upon trusts valid in Rhode Island,, but in some respects, as alleged in the complaint, violative of the New York statute as to perpetuities; that, in 1885, the said executors delivered said bonds to said trust company, fully performed their duties as such executors, and were duly discharged by the proper court in Rhode Island.

      Held, that the action could not be maintained.
    That if, as alleged, the trust company, as a New York corporation, was incompetent to take the property, or if some of the trusts were void under the laws of New York, the proper time to raise these questions was before the will was executed and the property was turned over to the trust company by the Rhode Island executors. (Per Barrett and Bartlett, JJ.)

      That where the question is properly raised the courts of this State will not permit a trust to he administered here Which is contrary to the laws of this State. (Per Van Biujnt, 0. J., and Bartlett, J.)
    Semble, that before foreign executors can sue in a court of this State for a construction of a foreign will, said will must be proved in this State and ancillary letters be issued to them here.
    Appeal by tlie plaintiffs, -Cornelius Y. Cross and Norman F_ Cross, as surviving executors of tlie last will and testament of Pliebe Jane Cross, deceas'ed, and Cornelius Y. Cross, Norman F. Cross and Ethelinda C. Horton, individually, from a judgment, entered in the office of the clerk of the city and county of New York on the 23d day of June, 1890, dismissing their complaint, with costs and allowances, after a trial by the court at the New York Circuit.
    The action was brought to obtain a judicial construction of certain provisions of the will of Pliebe Jane Cross, deceased, which created certain trusts in the defendant, the United States Trust Company, amounting to over seven hundred thousand dollars, represented by railroad mortgage bonds which had been delivered into the hands-of the trust company.
    The testator had her domicile in Rhode Island. She made her: will there, and it is, in all its provisions, valid by the law of that State. When the testatrix died, in 1878, her will was admitted toprobare in the State of Rhode Island, and for seven years the plaintiffs, the executors, themselves administered these trusts under the supervision of the courts of that State. It was conceded that the trusts, though valid under the laws of Rhode Island, are in part or wholly void under the laws of the State of New York. The fund in dispute, consisting entirely of personal property, is in the possession of the trust company, a New York corporation.
    The provisions of the will are set forth in the dissenting opinion of Yan Bjrunt, P. J.

      E. O. James, for the appellants.

      E. Sheldon, for the United States Trust Company, respondent.

      'N. Quaclcenbos and W. Fullerton, for John IT. Morse and Grace G. Minton, respondents.

      N. Quackenbos, as guardian ad litem, for the infant Ethelinda. Morse, respondent.

      Thomas Jackson, for Sophia Y. Morse, respondent.
   Barrett, J.:

I am tuiable to concur in the conclusion arrived at by the presiding justice. I agree, however, that the Rhode Island executors have no standing to obtain a judicial construction in the courts of this State of a Rhode Island will. But the presiding justice sustains the complaint because certain individual plaintiffs are joined with these executors. The question at once arises, who are these individual plaintiffs and what rights are they here seeking to ■enforce ? They are children of the testatrix and they make a direct attack upon certain of the trusts created by her will. If these trusts are declared to be void, then these individual plaintiffs claim to take under the residuary clause of the will. Their complaint proceeds solely upon this theory. The trusts are alleged to contravene our statute ag'ainst perpetuities, and judgment is demanded that the corpus of the trust estate be delivered over' by the trustee to the Rhode Island executors for distribution under the residuary clause of the will. We are thus asked not to aid the trustee to execute the trust, but directly and affirmatively to destroy the trust. We are asked to do this, too, with regard to a trust perfectly valid by the law of the testatrix’s domicile, and having done it to turn over the corpus of the destroyed trust estate to the foreign executors for distribution under the terms of the very will which we shall have thus emasculated. It must not be overlooked' in this connection, that so far as the executors are concerned, the will has long since been fully executed. The executorial duties were, in fact, completed in 1885, and the estate was then fully-administered The corpus of this trust estate had previously been reduced to possession, and in July, 1885, it was delivered by the executors to the trustee named in the will. In November, 1885, the final account of the executors, showing all their proceedings, was presented to the proper probate court of Rhode Island, and in ■January, 1886, such final account was duly allowed. Mr. Norman F. Cross testified that thereupon the executors ‘ had their releases from the probate clerk of Rhode Island at Westerly.” He added that the other provisions of the will had been carried out, so that ,4< there is nothing remaining under the will.”

For the last five years, then, the executors have been functi •officio, and the United States Trust Company had pursued the even tenor of its way as a legatee under the trust directions contained in the will. If this trustee were incompetent to take the property so bequeathed to it in trust, or if some of the trusts were void under the laws of this State, the proper time to raise that question was before the will was executed, and the property turned over to the trust legatee by the Rhode Island executors. The question discussed in the cases in this State, to which we have been referred (notably, Chamberlain v. Chamberlain, 43 N. Y , 424; Manice v. Manice, Id., 303, and Despard v. Churchill, 53 id., 192), was whether the legacies should or should not be paid over in the first instance to the legatees. In no case does there seem to have been an attempt, after payment, to compel the legatee to restore his legacy upon the theory that, if personal, it should not have been paid to him at all, or, if in trust, that so much of the trust as was valid under our laws had terminated. Here, then, we have a trust estate created by a Rhode Island will, and entirely valid by the law of the testatrix’s domicile, sought not to be frustrated in its origin, but to be destroyed while in due process of execution, because of the incident that the trustee happens to be a New York corporation. The fact that the property, which is entirely personal, may be here, and that the beneficiaries live here, can have no bearing upon the question. The residence of the beneficiaries is wholly immaterial; and as personal property has no locality, the law of the owner’s domicile governs its transmission either by last will and testament or by succession in case of intestacy. Indeed, if the testatrix had bequeathed this property to a Rhode Island trust company upon these same trusts, we would hardly have heard of these present complaints, even if the foreign trust company had thought it more prudent to keep the bonds in one of our safe deposit companies, and to send an agent here semi-annually to detach the coupons and distribute the proceeds among the local beneficiaries. But what difference would there be in principle if the testatrix had bequeathed the property, still upon the same trusts, to a Rhode Island individual who should subsequently come here to live and bring the property with him ? Or to a Massachusetts individual who should do the same thing ? Or even to a New York individual who should keep the property locked up in a Boston safe deposit company ? The fallacy of the position, as it seems to me, lies mainly in regarding the locality of the subject, that being exclusively personal property, rather than the domicile of die testatrix. In the case at bar the testatrix certainly conferred upon the trustee the legal title to the property in question. The trust company is thus the owner of such property, subject to its trust duties. Shall we, notwithstanding an undoubted legal title, take property from its owner and hand such property over to others ? If so, by what .authority? And to whom shall we hand it ? And for what purpose ? The only authority suggested is our statute against pepetuities. But it was held, both in Chamberlain v. Chamberlain and Despard v. Churchill (supra), that it is no part of the policy of this State to interdict perpetuities or accumulations in another State, and in Despard v. Churchill it was explicitly held that, although a foreign will disposes of property in this State, by provisions which are invalid here as running counter to our statute against perpetuities, yet the courts of this State may not hold the bequest void when it is valid by the law of the State by which the disposition of the property is to be governed. Our courts may, it was intimated, refuse their aid to enforce or administer here such a bequest. But this aid is not now sought. Tbe trustee, in fact, needs no such aid, and the plaintiff’s’ sole demand is that we hold the bequest to be void, and take the subject thereof out of the hands in which it is duly and legally vested. This would be distmctly contrary to the principle enunciated in Despard v. Churchill, and there is nothing to warrant it in Chamberlain v. Chamberlain. In the latter case it was held that a foreign corporation may take personal property under wills executed by citizens of this State, if by the laws of its creation it has authority to acquire property by bequest. The reasoning which led to this conclusión, while recognizing the mile that the validity of particular bequests will depend upon the laws of the .domicile of the legatee, does not conflict with the doctrine of Despard v. Churchill, as to the action or non-action of the courts of such legatee’s domicile in enforcing or annulling a bequest invalid by its laws. Next, to whom are we asked to give this property ? Not, certainly, to the next of kin ? Even the individual plaintiffs have not had the hardihood to claim the distribution of the property under our laws as in case of intestacy. It was impossible at this point to ignore the Rhode Island will, and so, after insisting that it shall be tampered with, where the provisions run ■ counter to our statute law, the plaintiffs would utilize it to find some object in whose favor a successful judgment may run. Thus, the executors, who have long since been released, are to be recalled into being by the courts of this State in order that there may be some one to whom the subject of the destroyed trust may be required to be delivered. This is a most anomalous suggestion. These executors, when officially alive and in the performance of their functions, delivered this very property over to the trustee under the express terms of the will. After the lapse of five years, having meanwhile been judically released as executors by the courts of Rhode Island, they are to be asked to take the same property back. But suppose they should refuse to accept it ? Suppose they should say, what have we to do with this property, what would become of our decree ? And what position would the trust company then occupy? If, however, the executors did accept the property, what could they do with it ? Take it to Rhode Island and ask the instructions of the courts of that State? It is inconceivable that such a course would alter the substance of the situation. It might result in a change of agency or trusteeship, but that is all. It surely would not result in the courts of Rhode Island altering the testator’s will. Those courts certainly would not permit the distribution of the property under the residuary clause merely because we had ordered the property out of the State, and had forbidden the execution within our borders of a trust created in their State by a person domiciled there, and perfectly valid under their laws. The courts of that State would probably say to the executors: We long since approved of your course in delivering this property to the trust company as required by the will, and thereupon we released you from your executorial functions. By what authority have you now officiously attempted, to aid the courts of another State in subverting the valid testa: mentary purposes of a citizen of this State? You had no right to accept this property. But as it is here we will give it hospitality, appoint a competent trustee, and see that it is applied strictly in accordance with the will of the testator.

I think, therefore, that the complaint was properly dismissed, but not for the reasons assigned by the learned judge at Special Term. I agree with the presiding justice that there is no just distinction, with regard to the question under consideration, between charitable legacies and legacies of any other kind. And I do not agree with the learned judge, at Special Term, in the suggestion that the proper course for the court is to refuse to assume jurisdiction, and “ to remit the property, and if needs be, the persons to the Rhode Island Courts.” ITow this could be done, without assuming jurisdiction, is not apparent. I place my judgment, for affirming the dismissal of the complaint, upon the distinct ground that we cannot, by an affirmative decree, directly nullify a trust bequest in due process of execution, which is valid by the law of the testatrix’s domicile. This we would have to do before the property could be remitted to the Rhode Island jurisdiction. And just there is the distinction between this case and Despard v. Churchill. If the subject of the present trust had never been reduced to possession by the executors, or administered, the disposition made in Despard v. Churchill might have served as a guide. The assets which in that case were remitted to the California executors were so remitted expressly for administration. It was upon that theory that the court distinguished between directly aiding the execution of a bequest, which is in violation of our statute law, and directly holding such bequest to be void. The difficulty was there avoided by simply remitting to the California executors, for administration in that State, assets which had not yet been reduced to possession. Thus, the court neither directly aided in carrying out the objectionable bequests, nor in defeating them. It neither held them to be valid nor void. It simply remitted them to their proper destination in the first instance, and left the rest to the law of California. Here, however, the assets were reduced to possession by the Rhode Island executors and fully administered. The assets were delivered in due course and in execution of the will to the trust legatee. It is idle to talk of remitting them anywhere thereafter.

In my opinion, the judgment appealed from should be affirmed, with costs.

Babtlett, J. :

I agree with the presiding justice that where the question is properly raised the courts of this State will not permit a trust to be administered here which is contrary to the laws of this State. On the other hand, it seems to me that Mr. Justice Babbett is right in holding that neither the Rhode Island executors nor the individual plaintiffs have any standing to question the validity of these trusts in this jurisdiction and at this time. As he well says,, if the trustees were incompetent to take the property in trust, or if some of the trusts were void under the laws of this State, the proper time to raise that question was before the estate had been administered and the property turned over to the trust legatee by the executors. Furthermore, I am at a loss to see what benefit the plaintiffs could derive from any judgment which could properly be rendered, even if they are entitled to relief. If we send the fund back to Rhode Island, and I think we are bound to do so if we adjudge the trusts invalid, the courts there would simply appoint a Rhode Island trustee to do in that State just what the United States Trust Company is doing* here, and the plaintiffs would be no better off than they are now.

I am in favor of affirming the judgment on the ground that the plaintiffs did not make out a case entitling them to any relief.

Van Brunt, P. J.

(dissenting):

This action was brought apparently to obtain a judicial interpretation and construction of a certain portion of the will of Phebe Jane Cross, deceased, which creates a trust in- the defendant, the United States Trust Company, of certain property now in the hands of said company. Two of the plaintiffs sue as executors and trustees of the will of Phebe J. Cross, deceased, and the remaining plaintiffs, being three- in number, sue individually.

It is conceded that, at the time of her death, Phebe Jane Cross, was a resident of the State of Rhode Island and her will was proved there, and letters testamentary upon such will were issued by a probate court in Rhode Island to the executors therein named, two of whom are the plaintiffs, the third having since died.

"What standing these Rhode Island executors can have in the-courts of this State to procure the construction of a Rhode Island will we are unable to understand.

It is no answer to this suggestion to say that the property is here; because, in order that they should have any right to the property as a matter of right to be enforced by the courts of this State, it would be necessary that the will should be proved in this State and ancillary letters issued.

No such, point, however, seems to have been made during the progress of this litigation; and as there are other individual plaintiffs who, perhaps, under the views at which we have arrived in reference to this controversy, might maintain an action, it may not be necessary to pursue the subject further.

The facts of the ease appear to be that the testatrix, while a resident of the State of New York, executed the will in question. The personal property,, which is the subject-matter of the trust to be hereinafter considered, was within this State; subsequently the testatrix removed to Rhode Island, and while a resident of Rhode Island died leaving issue, all of whom were residents of New York, and her will, with the codicil thereto, was admitted to probate In said State of Rhode Island, and letters testamentary were issued by the probate court of Rhode Island to the executors therein named, who entered upon the execution of their trusts, and one of whom has since died.

The provisions of the will, which it is necessary to consider in the disposition of this case, are embraced within the eighth article thereof, which is as follows :

“Article 8. I give and bequeath to the United States Trust Company of the city of New York ninety of said registered bonds, Remaining after discharging the above bequests, and so many of the consolidated mortgage bonds of the New York and Harlem Railroad Company, dated the 1st day of May, in the year one thousand eight hundred and seventy-two, and payable on the first day of May, in the year one thousand nine hundred, and secured by a mortgage upon the road of the last-mentioned company to the Union Trust Company, as amount at their par value to two hundred and fifty thousand dollars, to have and to hold, in trust for the uses and purposes following, namely, to collect and receive the interest and Income thereon until the payment of the principal; and upon such payment to invest, and keep invested, the proceeds, in safe interest-paying securities, and to collect and receive the interest or income upon the last-mentioned securities, and after deducting the charges of said trustees as follows, viz.: One-quarter of one per cent on the amount above bequeathed for receiving the same; two per cent upon the amount of interest or income thereon for collecting and paying out the same pursuant to the following provisions; to pay from said interest and income as collected as follows, to wit:

Item 1. To my husband, James M. Cross, during his life, the interest and income upon so many of said bonds and securities, in this article mentioned, as amount, at their par value, to the sum of one hundred and fifteen thousand dollars, and upon and after his death to pay the interest and income upon said last-mentioned bonds and securities over to my grandchildren, share and share alike, until the death of my last surviving child, and upon that event to pay the principal as hereinafter directed.

Item 2. To each of my three above-mentioned children, viz.: Cornelius V., and Norman F. and Ethelinda, during his or her life, the interest or income upon so many of said bonds or securities, in this article mentioned, as will amount, at their par value, to one hundred and twenty-one thousand two hundred and fifty dollars, and to pay to my said daughter, Sophia Y. Morse, during her life, the interest or income upon so many of the bonds or securities, in this article mentioned, as will amount, at their par value, to two hundred and twenty-one thousand two hundred and fifty dollars.

Item 3. If either of my said children shall die leaving no children, then to pay the interest or income which he or she would have been entitled to receive if living, pursuant to the provisions of this will, to my surviving children, share and share alike, and the children of any deceased child, the last-mentioned children to take, as a class, the share that the deceased parents would have taken if living.

Item 4. If either of my said children shall die, leaving children, then I direct the said trustee to divide the principal from which the parent shall have received the interest or income, as above provided, into as man}’ parts as there are children of such parent surviving, and after deducting charges for paying out the principal, as hereinafter provided, to deliver one part to each of said children who shall have attained the age of twenty-five years, to have and to hold to him or her, his or her heirs and assigns forever.

And if there is any part or parts remaining, to appropriate and set aside one part for each of the remaining of the last-mentioned children, and to pay the interest or income, upon the part so set aside; to the child for whom it is appropriated, until said child reaches the age of twenty-five years, and upon 1ns or her reaching said age to pay him or her so much of said part as shall remain after deducting charges as hereinafter provided, to have and to hold to him or her, and to his or her heirs or assigns forever, and if any of said last-mentioned children should die before reaching said age, then, after deducting charges as aforesaid, to pay his or her said part to his or her surviving brothers or sisters, or to either if there is but one surviving, and if all the children of the deceased parent above and in this item referred to, shall die before arriving at said age, then, to pay the sum or sums in this item referred to, to which he or she, or they would have been entitled if living at said age, over to my children then living, share and share alike, and if none of my children shall then be living, then to }iay said sums over to surviving grandchildren, share and share alike, to have and to hold to them, him or her, their,- his or her heirs and assigns forever.

Item 5. Upon the death of my last-surviving child, I direct the said trustee to divide all of said bonds and securities then remaining in its possession, including those from which my husband, the said James M. Cross, shall have derived the interest and income above and in item 1 of article 8 provided, into as many parts as I shall then have grandchildren living, and after deducting charges for paying out the principal, to pay and deliver one part to each one of the grandchildren who shall have reached the age of twenty-five years, and if there are any of said grandchildren remaining, to appropriate and set aside one from the remaining of said last-mentioned parts for each of the last-mentioned grandchildren, and to pay the interest and income upon the parts so set aside to the grandchild for whom it is appropriated, until he or she reaches the age of twenty-five years, and upon his or her reaching said age to pay to him or her so much of said part so appropriated to him or her as remains after deducting charges for paying out the principal, to have and to hold to him, her or them, and to his or their heirs and assigns forever.

And if after the death of my last surviving child either of said grandchildren shall die before reaching said age, then I direct the said trustee, after deducting charges for paying out the principal, to divide and pay over the remainder of his or her said bonds and securities to my remaining grandchildren, share and share alike, to have and to hold to him, her or them, his, her or their heirs and assigns forever.”

It appears that the executors have performed their duties and that they have handed over to the United States Trust Company, the trustee named in said will, the property mentioned in the eighth ■article thereof in trust for the purposes therein set forth, and the company has accepted such property and entered upon the performance of the trust and still continues to perform the same. It was conceded that the trusts in question are valid according to the laws of Rhode Island, and that some of the trusts in said eighth article are void according to the laws of the State of New York; and in this action the court ivas asked to determine which law would apply and to declare these trusts void because they were governed by the laws of New York; and also to advise the said executors as to their duties in the premises. The court refused to perform these functions and dismissed the complaint, and from the judgment thereupon entered this appeal is taken.

We think, therefore, that the question presented is as to what are the powers and duties of this court in respect to property situate Within this jurisdiction to be administered by a corporation created by the laws of this State upon trusts created in a will made by a resident of Rhode Island legal in that State, but which contravene in some respects the laws of this State. The rule, in reference to ■the cases of voluntary transfer, of intestacy, of devises under a will, still remains that which was laid down by Chancellor Kent, namely: “ It has become a settled principle of international jurisprudence and one founded on a comprehensive and enlightened sense of public policy and convenience, that the disposition, succession to and distribution of personal property wherever situated, is governed by the law of the country of the owner’s or intestate’s domicile at the time of his death, and not by the conflicting laws of the various places where the goods happened to be situated.”

There is a modification, however, to the broad rule above stated, which it is necessary to point out; because it is also well settled that where the law of the domicile of the owner or testator or intestate conflicts with the public policy of the State in which the property is situate in respect to its transfer, the latter will prevail..

It seems to us, after an examination of the numerous authorities to which our attention has been called, that the court in the case of Chamberlain v. Chamberlain (43 N Y., 432), has stated with remarkable clearness and precision the rules of law applicable to the question under discussion ; and our attention has been called to nothing which in any way conflicts with the principles which are there laid down; but, upon the contrary, ever since their enunciation they have been consistently followed and applied.

In the case of Chamberlain v. Chamberlain the question was involved whether a testator residing in New York, by a will executed and proved in New York, could bequeath to a Pennsylvania corporation a legacy which such corporation would be entitled to claim notwithstanding the fact that under the laws of the State of New York such a corporation had no power to take.

In the course of the opinion the court say: “ The Centenary Fund Society is a foreign corporation having its existence under the laws of Pennsylvania and located within that State. The existence, however, of corporations organized under the laws of a sister State is recognized by the courts of this State, and they may take property here under wills exécuted by citizens of the State, if by the law of their creation they have authority to acquire property by devise or bequest. (Sherwood v Am. Bible Society, 1 Keyes, 565 Harris v. Same, Ct. of Ap., 4 Abb. [N. S.], 421.) That the corporation named was erected for charitable jrarposes and the bequest to it is for a charity is not material if the bequest is not for some other reason invalid.”

“ The courts of this State -will not administer a foreign charity, but they will direct money devoted to it to be paid over to the proper parties leaving it to the courts of the State within which the charity is to be established to provide for its due administration and for the proper application of the legacy. (Hill on Trustees, 468 ; ,2 Story on Eq. Jur., § 430 ; Provost of Edinburgh v. Aubery, Ambler, 236; Burbank v. Whitney, 24 Pick., 154; Atty.-Gen. v. Lepine, 2 Swanst., 181.) There, is no objection to the form or manner of execution of the -will or the capacity of the testator. Neither is it claimed that by the terms of the instrument the property would not pass as claimed by the legatees. The law of the testator’s domicile controls as to the formal requisites essential to the validity of the will as a means of transmitting property, the capacity of tlie testator and tlie construction of the instrument. (Andrews v. Herriot, 4 Cow., 517; Holmes v. Remsen, 4 Johns. Ch., 469; Parsons v. Lyman, 20 N. Y., 103.) Personal property has no. locality, and, therefore, the law of the domicile of the owner governs its transmission either by last will and testament or by succession in case of intestacy. (2 Kent’s Com., 429 ; Moultrie v. Hunt, 23 N. Y., 394; Lawrence v. Kittredge, 21 Conn., 577.)

“ But if, within the lex domicilii, a will has all the forms and requisites to pass the title to personalty, the validity of particular-bequests will depend upon the law of the domicile of the legatee and of the government to which the fund is, by the terms of the will, to be transmitted for administration, and the particular purposes indicated by the testator. Whatever may be the law of Pennsylvania, a testator domiciled in that State cannot' establish, by bequests of personalty to citizens or corporations of this State, a charity in trust to be administered here inconsistent with the policy or the laws of this State. A gift by will of a citizen of this State to a charity or upon a trust to be administered in a sister State, -which would be lawful in this State, the domicile of the donor, would not be sustained if it was not in accordance with the laws of the State in which the fund was to be administered.”

“ Bequests in aid of foreign charities, valid and legal in the place of their existence, will be supported by the courts of the State in which the bequests are made.” (Hill on Trustees, 457.)

“ If the legatee, whether a natural or artificial person, and whether he takes in his own right or in trust, is capable by the law of his domicile to take the legacy in the capacity and for the purposes for which it is given, and the bequest is in other' respects valid, it will be sustained irrespective of the law of the testator’s domicile, subject, however, to this qualification, that if the law of the testator’s domicile, in terms, forbid bequests for any particular purpose, or in any other way limit the capacity of the testator in the disposal of his property by will, a gift in contravention of the law of the testator’s domicile would be void everywhere. But so far as the validity of the bequests depends upon the general law and policy of the State, affecting property and its acquisition generally, and relating to its accumulation and a suspension of ownership and the power of alienation, each State is sovereign as to all property within its territory whether real or personal.”

“ It is no part of the policy of the State of New York to interdict perpetuities or gifts in mortmain in Pennsylvania or California. Each State determines those matters according to its own views of policy or right, and no other State has any interest in the question; and there is no reason why the courts of this State should follow the funds bequeathed to the Centenary Fund Society to Pennsylvania to see whether they will be there administered, in all respects, in strict harmony with our policy and our laws. The question was before the court in Fordyce v. Bridges (2 Phillips, 491), upon the bequest of a fund in England to be invested in a Scotch entail. Lord Cottenuam says: “ An objection was made that the bequest of a fund tc be invested in a regular Scotch entail was void as a perpetuity. The rules acted upon by the courts in this country, with respect tó testamentary dispositions tending to jierpetuities, relate to this country only. "What the law of Scotland may be upon such a subject the courts of this country have no judicial knowledge, nor will they, I apprehend, inquire. The fund being to be administered in a foreign country is payable here, though the purpose to which it is to be applied would have been illegal if the administration of the fund had been to take place in this country. This is exemplified by the well-established rule in cases of bequests within the statute of mortmain, a charity legacy, void in this country under the statute of mortmain is good and payable here if for a charity in Scotland.”

It is to be observed that the court, in considering' this question, distinctly state that the fact that the bequest under consideration was for a charity ivas' entirely immaterial, and that throughout the opinion the idea is advanced, and is dwelt upon, that a gift by will of a citizen of this State, upon a trust to be administered in a sister State, which would be lawful in this State, the domicile of the donor, will not be sustained if it was not in accordance with the law of the State in which the gift ivas to be administered. Therefore, applying this rule to the case at bar, a trust will not be administered in this State which is created contrary to the laws of the State In other words, a foreigner will not be permitted to do that which is denied to a resident. A person living in Rhode Island will not be -permitted to erect a trust to be administered by a trustee, within the State of New York, for the benefit of cestuis que trust, residing within this State, in defiance of the laws of the State.

It seems to have been considered by the learned judge, who tried the case in the court below, that because the questions involved in the case of Chamberlain v. Chamberlain related to a charity that, therefore, some other or different rule applied. But this cannot be so, because it was a principle, which was being enunciated, applicable to legacies of every description, whether for charitable purposes or upon any other trust. It was recognizing the right of a citizen of the State to erect a trust for the benefit of citizens of another State in accordance with the laws of that State, and it denied the right of a citizen of another State to erect a trust within the State of New York, for the benefit of residents of the State of New York in defiance of the laws of the State of New York.

It seems to us to be a strange argument to hold that a man in Jersey City can erect a perpetuity in the State of New York of property within the State of New York, by a trustee in the State of New York, for the benefit of a eesi/ui que trxost living in this State, in defiance of the laws of this State which prohibit the erection of such trust.

It appears clear to us, therefore, that such portions of this trust as are void according to the Jaws of the State of New York cannot be administered by the trustee here, and it is immaterial whether such trustee is a corporation or an individual. The inhibition to administer a trust contrary to the laws of the State would be equally binding in either case.

Under these circumstances, it becomes necessary to examine the will, or that portion of the will which is the subject of consideration in this action, to determine as to what parts of the trust attempted to be created contravene the laws of this State. And in the consideration of this question the principle must be borne in mind that where a limitation is made to take effect on two alternative events, one of which is too remote, and the other valid as ivithin the prescribed limits, although such limitation is void so far as it depends upon the remote event, it will be allowed to take effect on the liappening of the alternative one. (Schettler v. Smith, 41 N. Y., 328 ; Kennedy v. Hoy, 105 id., 134.)

Applying this principle, it would appear that the primary trusts created by the article in question are valid ; and that all the other subsequent provisions are invalid. It is suggested that, in the event of the death of a child of the testatrix leaving issue, the bequest to such issue is good, the limitation upon the right of enjoyment of such bequest only being invalid. This cannot be true, because an estate does hot vest absolutely in the holder of an estate for life or years, because the limitation over is invalid, and this would be the result of holding the bequest to issue valid, enabling them to take in defiance of the provisions of the will, which made such right to depend upon attainment of the age of twenty-five years. It follows, therefore, that, upon the termination of each of the primary trusts, the property held upon such trust goes to the executors to be administered by them under the laws of Rhode Island, the domicile of the testatrix and the place of their official domicile; and as to that portion of the property of which James M. Cross was to receive the income during life, the trust ended at his death, and the trustee should transmit the property to the Rhode Island executors.

This transfer of the property to the executors in Rhode Island is entirely in harmony with the principles laid dowq in Despard v Churchill (53 N. Y., 192), where the court directed personal property within this State, under similar circumstances, to be transferred to the executors m California to be appropriated to a trust void under the laws of this State.

The courts of this State have no power to decree a distribution of such portions of the fund, as they have no control over the executors and no control over the estate as such, and only can prevent by their decree the performance of a trust in defiance of the laws of this State. And all that they can do after having ended the trust, so far as performance in this State is concerned, is to remit the estate to the source from whence it came.

"We think, therefore, that the court below erred in dismissing the bill, and should have retained the same for the purpose of rendering judgment in accordance with the views herein expressed.

The judgment should be reversed and a new trial ordered.

Judcment. affirmed, with costs.