text:
    In the Matter of the Application of ALFRED ROE and WILLIAM CRUIKSHANK, Executors and Trustees under the Last Will and Testament of ELIZABETH F. FLOYD, Deceased, for Leave to Sell certain Real Estate.

      Sale of real estate by t/rustee under chapter 257 of 1886 — what necessity for a sale must exist — what improving or preserving of other real estate is contemplated, by the statute.

    Elizabeth F Floyd died leaving a will, by which she devised certain real estate to her executors upon certain trusts. No power of sale having been conferred upon the trustees, this proceeding was instituted by them under chapter 257 of the Laws of 1886, which provides, that “ where the trust is or shall be expressed in the instrument creating the trust, every sale or other act of the trustees in contravention of the trust shall be absolutely void; provided, however, that the Supreme Court shall have power, upon such terms and conditions as to the court shall seem just and proper in any case, to authorize any such trustee to mortgage or sell any such real estate, whenever it shall appear to the satisfaction of said court, or a judge thereof, that it is for the best interest of said estate so to do, and that it is necessary and [for the benefit of the estate to raise by mortgage thereof, o'r by a sale thereof, funds for the purpose of preserving or improving such estate.”
    Proceedings having been had pursuant to this statute, the court, upon the coming in of the report of a referee who had been appointed to take proof of the facts and circumstances, made an order in which, after stating that it appeared to its satisfaction that it was for the best interest of the estate in question, and that it was necessary for the purpose of preserving and improving the estate that it should be sold, it so directed. There was no claim but that the estate was able to keep down the taxes, etc., upon the property, nor was there any claim that there was any danger of its being lost if unsold, and the only improvement to the estate which would result from the sale was that the income of the life tenant would be thereby increased.

      Held, that this did not afford any ground whatever for the granting of the order of sale.

      That an order for its sale should he made only when the real estate will be lost, because the estate to which it belongs has no means with which to keep down taxes or the interest on incumbrances thereon, or where means are necessarily needed which cannot be procured from any other source to pay the charges upon other portions of the estate, or where there is the power to improve, a carrying out of which would result in permanent advantage to the balance of the estate.

      It must appear that the sale is necessary, not advisable, to procure funds for preserving or improving such estate.
    That the statute, in speaking oí improving or preserving such estate, intended the estate in the lands created; in other words, to preserve or improve the other real estate embraced within the trust, and no authority whatever was intended to be given to turn realty into personalty in contravention of an instrument, merely to increase the income of a life tenant.
    The constitutionality of the act not considered.
    Appeal from an order made at a Special Term held in New York county, bearing date April 4, 1889, and entered in the office of the clerk of the city and county of New York on April 11, 1889, confirming the report of a referee in proceedings instituted by the executors and trustees under the last will and testament of Elizabeth P. Ployd, under chapter 257 of the Laws of 1886, for the purpose of procuring a sale of certain real estate.

      Thomas T. Sherman, for infant appellants.

      John J. Macklin, for the petitioners, respondents.

      W. V. Rowe, for respondent Vingut.
   Yan Brunt, P. J.:

This proceeding was brought for the purpose of procuring the sale of certain real estate which belonged to the estate .of Elizabeth P. Ployd, deceased, and which real estate has been devised to her executors upon certain trusts, and as to which said trustees had no power of sale under the provisions of chapter 257 of the Laws of 1886, which provided that “where the trust is, or shall be, expressed in the instrument creating the trust, every sale, conveyance or other act of the trustees in contravention of the trust shall be absolutely void; provided, however, that the Supreme Court shall have power, upon such terms and conditions as to the court shall seem just and proper, in any case to authorize any such trustee to mortgage or sell any such real estate whenever it shall appear to the satisfaction oí said court or a judge thereof that it is for the best interest of said estate so to do, and that it is necessary, and for the benefit of the estate, to raise by mortgage thereon, or by a sale thereof, funds for the purpose of preserving or improving such estate.”

Proceedings having been had pursuant to the statute, and a reference having been had to take proof of the facts and circumstances stated in the petition, upon the coming in of this report, the court made an order in which, after stating that it appeared to its satisfaction that it was for the best interest of the estate in question, and that it was necessary, and -for tho benefit of said estate to raise by a sale of the premises described in the petition funds for the purpose of preserving and improving such estate, it was ordered and adjudged that the same be sold, etc., and from this order this appeal is taken. The only question which has been presented upon this appeal seems to be as to the constitutionality of the act above recited "We think, however, that there is another point which disposes of this application.

The only ground upon which it is claimed that it is for the- best interest of the estate in question, or that it is necessary for the benefit of the estate to raise, by a sale of the real estate mentioned in the petition, funds for the purpose of preserving or improving such estate, is that the property to be sold is unimproved and yields no income, and by a sale thereof the income of the estate would be increased. There is no claim but that the estate is able to keep down the taxes, etc., upon the property, nor is there any claim that there is any danger of its being lost if unsold, and the only improvement to the estate which would result from a sale seems to be that the income of the life tenant would be thereby increased.

"We do not think that this affords any ground whatever for the granting of the order for sale. It is only where the real estate will be lost because the estate to which it belongs has no means to keep down taxes or the interest on incumbrances thereon, or where means are necessarily needed which cannot be procured from any other source to pay the charges upon other portions of the estate, or where there is a power to improve, the carrying out of which would result in permanent advantage to the balance of the estate. This is the plain and unequivocal language of the statute. It must appear that a sale is necessary, not advisable, to procure funds for the preserving or improving such estate. "Where the estate is amply able to pay the charges upon its real estate funds are not needed for its preservation, and the only manner in which it is claimed that these funds will improve the estate, is that they will increase the income of the life tenants. This certainly may improve the estate of the life tenants, but it in no way tends to improve the estate of the testatrix. It is clear that this kind of improvement was not intended, but what is authorized is to sell some portion of the real estate for the purpose of bettering the balance, whereby the whole estate would be rendered more valuable. That this is the true construction of the act in question is plainly shown by the history of legislation upon this subject. The first act that was passed upon this subject seems to have been chapter 26 of the Laws of 1884, in which is used exactly the same language used in the act in question, leaving out the words or sell ” and or by a sale thereof,” the only power being that to mortgage for the purposes of the act. That is, where necessary to improve or preserve the estate, leave to mortgage might be given. As it is clear that the income of an estate could not be increased by mortgaging real estate and investing the amounts realized upon mortgages in a manner such as trustees are empowered to do, it is apparent that the legislature never meant by the words, “improving the estate ” simply increasing the annual income, because that could not possibly be done by raising funds upon mortgage, as it would take all the income derived from the funds raised upon the mortgage, if invested, to keep down the interest upon the charge. By the insertion of the power of sale in the act of 1886, it certainly was not intended to change the whole meaning of the words of the'statute already in existence, but simply to afford additional means to raise funds.

• It will further appear, upon a close reading of the act, that where the words estate are used real estate is referred to. The act in question is an amendment of a section of the Revised Statutes relating to estates in lands, and where it speaks of the instrument creating the estate it refers to an instrument creating an estate in lands, and this view is strengthened as we proceed in the reading of the act. It says: “ To authorize any such trustee (referring to the trustees appointed by the instrument mentioned) to mortgage or sell any such real estate.” The only real estate mentioned was the real estate as to which the trust was created by the instrument, and so whenever estate is mentioned it evidently refers to the trust estate created in lands. Therefore, when the statute speaks of improving or preserving such estate, it must mean the estate in the lands created; in other words, to preserve or improve the other real estate embraced within the trust, and no authority whatever was intended to be given to turn realty into personalty, in contravention of an instrument, merely to increase the income of the life tenants. If such is the rule, then no trust in unimproved real estate could ever be created.

The order appealed from should be reversed and the application denied.

Beady and DaNiels, JJ., concurred.

Order reversed and application denied.


source: Caselaw Access Project

author: Van Brunt, P. J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HERMAN J. EMERSON, Appellant.

      Indictment — different crimes may be chm'ged in separaie counts — Code of Criminal Procedure, secs. 278, 279, 344.
    Upon an appeal from a judgment of conviction of the defendant upon an indictment containing five counts (two of which were struck out), it appeared that the first count was for keeping a room in a certain building in the city of New York, to be used for gambling purposes; the third was for selling lottery policies, and the fourth for selling papers or writings in the nature of bets or wagers upon the drawing of numbers in a lottery.

      Held, that a demurrer interposed to the indictment by the defendant, upon the ground that more than one crime was charged in the indictment within the meaning of sections 278 and 279 of the Code of Criminal Procedure, was properly overruled.
    That, assuming that the first count of the indictment charged a crime defined by section 343 of the Penal Code, and the third and fourth counts charged a different crime as defined by section 344 of the Penal Code, the acts complained of simply constituted different crimes, and could be charged in separate counts in one indictment.
    An objection was taken to the proof of transactions on days other than the day named in the indictment.

      Held, that as section 280 of the Code of Criminal Procedure provides that the precise time at which the crime was committed need not be stated in the indictment, the time stated in the indictment was not a necessary ingredient of the offense, and it was not necessary that the proofs given thereunder should conform to it.
    Appeal from a judgment of conviction and tbe sentence of the defendant by the Court of General Sessions of the city and county of New York, which was rendered on the 14th day of November, 1888, convicting the defendant of the offenses of keeping a gambling house, selling lottery policies, and selling documents in the nature of bets or wagers upon the drawing of numbers in a lottery.

      Howe & Hummel, for the appellant.

      William T. Jerome, for the respondent.
   Van Brunt, P. J.:

The indictment found against the defendant contained five counts. The second and fifth having been withdrawn from the consideration of the jury it will not be necessary to consider them.

The first count was for keeping a room in a certain building in the city of New York to be used for gambling purposes. The third was for selling lottery policies and the fourth for selling papers or writings in the nature of bets and wagers upon the drawing of numbers in a lottery.

Upon being arraigned on said indictment the defendant demurred thereto upon the ground that more than one crime is charged in the indictment within the meaning of sections 218 and 279 of the Code of Criminal Procedure. This demurrer was overruled, and the first question 23resented upon this appeal is whether or not this demurrer was well taken. Sections 278 and 279 of the Code of Criminal Procedure are as follows:

Section 278. The indictment must charge but one crime and in one form, except as in the next section provided.

Section 279. The crime may be charged in separate counts to have been committed in a different manner or by different means; and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts.

In the case of Hawker v. The People (75 N. Y., 487) it was objected, upon behalf of the plaintiff in error, that the indictment was fatally defective because it charged two distinct felonies, one under the first section and one under tbe third section of the statute. The court says: “ This objection is not well founded. All the counts are under the sa,me statute and relate to the same transaction. In such a case it matters not that the offense alleged to have been committed is charged in different ways in several counts for the purpose of meeting the evidence that may be adduced. And it matters not that the offenses alleged in the different counts are of different grades and call for different punishments. (People v. Rynders, 12 Wend., 425 ; People v. Baker, 3 Hill, 159; People v. Costello, 1 Denio, 83 ; Taylor v. People, 12 Hun, 213; Regina v. Trueman, 8 Car. & P., 121; Wharton Crim. Law, §416.) A count for burglary with an attempt to commit larceny may be united with a count for larceny. So burglary and larceny; rape and assault with intent to commit rape; larceny and receiving stolen goods; assault with intent to hill and a simple assault may be united, and it matters not that the offenses thus united call for different punishments. In People v. Baker there were three counts; one for receiving stolen goods, one for burglary and one for grand larceny, and the indictment was held good.

“ So long as all the counts relate to the same transaction, as in this case, there can be no objection to the union of such counts in the same indictment.”

By the use of the words “ same transaction ” the count does not mean nor does the statute mean the same acts; but the same series of acts, which when completed culminate in the crime or crimes for which the indictment is found, is intended.

In the case at bar, the proof that the defendant kept a room did not either prove him guilty of any offense or tend to do so, but the further proof that he did the acts charged in the third and fourth counts of the indictment tended to prove him guilty of the crime charged in the first count, viz.: That he kept this room to be used for gambling purposes. Thus this proof, if it did tend to prove the defendant guilty of different offenses, related to one series of transactions culminating in the crimes charged in the first, third and fourth counts of the indictment.

Thus, assuming that the first count of the indictment charged a crime defined by section 343 of the Penal Code, and the third and fourth counts charged a different crime as defined bj section 344 of the Penal Code, the acts complained of simply constituted different crimes and could he charged in separate counts in one indictment. But it does not necessarily follow that by the first count of the indictment a crime under section 344 of the Penal Code was not charged. It is true that the language of section 343 is followed in the indictment, but so much of such language as is used distinctly charges a crime under section 344. The indictment is that the defendant kept a room to be used for gambling purposes, and a person who keeps a place for gambling or allows a room to be used for gambling is guilty of an offense under section 344. If a person keeps a room for gambling purposes, he keeps a place for gambling and allows its use for that purpose and seems to be guilty of an offense under section 344. The objection taken by demurrer seems, therefore, to have been properly overruled.

The next objection is as to the proof of transactions on days other than the day named in the indictment.

Section 280 of the Code of Criminal Procedure provides that the precise times at which the crime was committed need not be stated in the indictment. Hence the precise time is not a necessary ingredient of the offense, and it is the well settled rule that the time and place where the crime was committed should he stated with certainty in the indictment, hut it is not necessary to prove them as stated unless they are necessary ingredients in the offense. (2 Hawks P. C., ch. 46, § 170; 1 Hale P. C., 361; 1 Arch. Crim. P., 85 ; Com. v. Harrington, 3 Pick., 26; People v. Stocking, 50 Barb., 573.)

In the case at bar it was immaterial whether the crime was committed on the eighteenth of January or the first of January, or any intermediate day, and hence the proof was competent. (Regina v. Firth, 11 Cox C. C., 234.) None of the other exceptions taken in the case seem to require special notice. The conviction should he afih’med.

Maoomber, J., concurred; Bartlett, J., concurred in result.

Conviction affirmed.


text:
    CHARLES T. NOBIS, Respondent, v. WILLIAM J. POLLOCK and Others, Appellants.

      Trial by the court — the findings of fact must be included in the decision — Code of Civil Procedure, sec. 1022.
    "Upon an appeal from a judgment in favor of tlie plaintiff, in an action brought to foreclose several mechanics’ liens, it appeared that the court had filed a decision containing certain facts found and certain conclusions of law, and in a separate part of the case, it appeared that the court had also found other facts, apparently upon the request of one of the parties, and had not embraced them in its decision.

      Jleld, that this was clearly not a compliance with the provisions of section 1022 of the Code of Civil Procedure, and rendered it impossible for this court to review the judgment upon a record so imperfectly made up.
    Appeal from a judgment in favor of the plaintiff, recovered :at a Special Term beld in tbe county of New York, which was entered in the office of the clerk of the county of New York on November II, 1888.

      Almon Goodwin, J. E. Ackley and Roger Foster, for the appellants.

      C. B. Meyer, for the respondent.
   Van Brunt, P. J.:

Upon an examination of the case, as presented, it appears that there has been no compliance with the provisions of the Code of Civil Procedure, section 1022 requiring the court, upon a trial of the whole issue of fact, to state separately the facts found and the conclusions of law. The learned court in this case has apparently filed a decision containing certain facts found and certain con elusions of law. But, upon an investigation, in separate parts of the case, we find that he has found other facts apparently upon the request of one of the parties .and has not embraced them in his decision which is filed. This is clearly not a compliance with the provisions of the Code, and renders it impossible for this court to review the judgment upon a record so imperfectly made up.

All the findings of fact of wbicli the judgment, is founded form part and parcel of the judgment-roll, and it will be seen by reference to section 1023 that the papers which are submitted to the. court containing requests to find upon behalf of either party, and upon which the court is bound to rule, form no part of the judgment-roll, because the court has a right either to file these papers or to return them to the attorneys, his rulings having been entered thereon ; and we have further significant provision that the omission to note these rulings thereon shall not affect the validity of the decision or report making it apparent that these papers form no part, of the judgment and no part of the decision of the court. Therefore, the only purpose which they would serve is as the basis of an exception to a refusal to find.

The case must, therefore, be sent back in order to have the proper findings prepared.

Beady and Daniels, JJ\, concurred.

Case sent back in order to have proper findings prepared.


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    WILLIAM W. GILBERT, Appellant, v. RICHARD J. MORRISON, Public Administrator, etc., as Administrator, with the Will Annexed, of ELIZABETH GILBERT, Deceased, Appellant.

      Bight to a jury trial in an equity action — direction in awill to pay a specified debt — the statute of limitations does not affect it — computation of interest on such a debt.

    Elizabeth Gilbert died in New York city July 6, 1888, leaving a will, executed in London February 20, 1868, which was duly admitted to probate by the surrogate of New York on October 22, 1886; letters of administration, with the will annexed, being issued to one Morrison, the public administrator, on December 11, 1885.
    By the will the testatrix gave, devised and bequeathed all her real and personal estate to George Howard Lewis upon trust to get in, collect and take possession of the same, and to sell and convert into money, and receive and take the moneys thereby produced and “ thereby or thereout pay my funeral and testamentary expenses, and the sum of £?,000, which I owe to William Walker Gilbert of Avenue Hotel, New York, for moneys he has advanced to me (with sucli interest at the rate of five pounds per cent per annum as shall he then due thereon), and all other of my just debts.”
    In an action brought by William Walker Gilbert against Morrison, as public, administrator, to recover the said sum of money, with interest thereon, he alleged' that the defendant’s testatrix left personal property insufficient to pay the-legacies given by the will, and the debts, funeral and testamentary charges and expenses of the decedent, and that at the time of her death she was possessed of about twenty-one acres of land in the city of New York; that the will was executed without the State of New York, and the surrogate had no power or right to determine the validity, construction or effect of any disposition of personal property contained in the will; that the directions for a sale of the real estate operated as a conversion of real estate into personal estate, and prayed that the real estate be sold.
    Upon an appeal from a judgment entered in favor of the plaintiff:

      Held, that the defendant was not entitled, as a matter of right, to a jury trial, as. the plaintiff had demanded other relief than a judgment for a sum of money, and had filed his bill to compel the defendant to exercise powers which had been conferred by the will in question, the exercise of which were necessary to the-realization of the legacy which had been bequeathed to the plaintiff by the testatrix; that the plaintiff was entitled to he paid his legacy, and as such legacy could not be obtained except upon a sale of the real estate, that he had a right to come into court and ask its assistance to compel the defendant to perform his duties.
    It was claimed by the defendant that the will, which was the only evidence of an indebtedness, showed that such indebtedness existed as early as February, 1868, and that it, therefore, had become barred by the statute of limitations, and in support of this proposition referred to authorities showing that a direction in a. will “to pay all just debts” did not revive a debt to which the statute had attached, or prevent the statute from running after the death of the testator.

      Held, that these cases proceeded upon the theory that it was plain that the testator,, in such cases, only intended to provide for the payment of such debts as, according to law and equity, were just debts and should be paid; but that in a case: in which the testator directed the payment of a specified debt, it was clearly a recognition of the debt and the expression of an intention that it should be paid, irrespective of any defense existing under the statute of limitations.
    The judgment allowed interest on $21,867.06, being the sum of £2,000, with interest at five per cent from the date of the will, February 20, 1868, to July 6,, 1884, one year after the death of the testator, and with interest on this amount, from July 6, 1884; to June 21, 1888, the date of the decision, at six per cent.

      Held, that an objection taken, by the defendant, to allowing interest upon the claim to run from any time prior to the death of the testatrix was untenable, as. it was the clearly expressed intention of the testatrix that interest upon the debt, should be paid and that it was properly allowed from the date of the will.
    Appeal by the plaintiff and. defendant from a judgment entered' upon a trial at a Special Term held in the county 01 New York,, which judgment was entered in the office of the clerk of the county ■of New York on June 28, 1888.

      L. B. Brownell, for the plaintiff, appellant.

      Frank W. Arnold and Charles Stewart Davison, for the defendant, appellant.
   Van Brunt, P. J.:

Elizabeth Gilbert (otherwise Elizabeth Buck), the testatrix, died in New York city July 6,1883. She left a will executed in London, England, February 20, 1868. The will was admitted to probate by the surrogate of New York October 22,1885, and letters of administration, with the will annexed, were issued to defendant as public .administrator on December 11, 1885.

By her will the testatrix gave, devised and bequeathed all her real and personal estate to George Henry Lewis upon trust to get in, collect and take possession of the same, real and personal estate, .and to sell and convert into money all suck portions thereof as may be salable or convertible, and receive and take the moneys thereby produced, and thereby or thereout pay my funeral and testamentary ■expenses, and the sum of £2,000, which I owe to "William Walker Gilbert, of Avenue Hotel, New York, for moneys he has advanced to me (with such interest after the rate of five pounds per cent per .annum as shall be then due thereon), and all other my just debts,” and thereafter upon trust.

The complaint alleges that the decedent, at the time of the making ■of the will, owed to the plaintiff the sum of £2,000 for moneys and property which he had advanced to her, and that the decedent provided for the payment of the same, with interest thereon, by the direction in said will contained to pay the same to the plaintiff out of the proceeds of the sale of her real and personal estate, and that under and by virtue of the said direction the defendant was bound to pay the plaintiff £2,000, or its equivalent in Hnited States currency, to wit, $9,710, and interest at the rate of seven per cent from the •date of the will to January 1, 1880, and thereafter at six per cent until one year after the death of the decedent, and thereafter at the rate of six per cent upon the total sum; that the plaintiff had demanded the payment of the same; that the defendant’s accounts had been judicially settled by decree of the Surrogate’s Court before tlie commencement of the action; that the defendant left personal property insufficient to pay the legacies given by the will, and the-debts, funeral and testamentary charges and expenses of the decedent.

That at the time of her death she was possessed of twenty-one acres of land in the city of New York (describing it), and that the will was executed without the State of New York, and the surrogate had no power or right to determine the validity, construction or effect of any disposition of personal property contained in the will, and that the directions for sale of the real estate contained in the will operated as a conversion of her real estate into personal estate for the purposes of said will. Plaintiff prayed judgment that under the terms of the will the real estate be sold under the direction of the court and converted into money by the defendant or by a referee, and that out of the proceeds of said sale and the. personal property of the decedent, after paying the costs, that the-sum of $9,710, with interest thereon as directed in said will, be paid to the plaintiff.

The answer admits the death, the probate of the will, the issuing-of letters to the defendant and the copy of the will. The answer denied that the decedent owed the plaintiff £2,000 or that the-defendant was bound to pay or the plaintiff entitled to recover the-sum of £2,000; admitted the demand of payment, the judicial settlement of his accounts by the surrogate, that the personal property amounted to $11,000 or $12,000; buf denied that the same-was insufficient to pay the legacies given by the will and the debts, funeral and testamentary charges of the decedent; admitted the decedent’s ownership of the real estate and admitted that the will was executed out of the State of New York and in the city of London; admitted that the directions for the sale of the real estate operated as a conversion of her said real estate into personal estate for the: purposes of the will. The defendant also pleaded separately the statute of limitation of six, ten and twenty years. Upon the issues-thus made coming on for trial at the Special Term, before the production of any evidence, the defendant moved to dismiss the complaint upon the following grounds, viz.: That the complaint did not state facts sufficient to constitute a cause of action; that nO' facts were alleged showing the necessity for the intervention of a. court of equity; and that the complaint showed that the plaintiff bad a complete remedy at law, if any. This motion was denied and thereupon the defendant moved that the court compel the plaintiff to elect which remedy he desired to enforce, the legal or the equitable one, upon the denial of which the defendant demanded a jury trial. This motion was also denied and the trial proceeded before the court without a jury.

The plaintiff having proved various computations of interest rested, .■and the defendant offering no evidence, the cause was submitted to the court for its decision. The court subsequently, upon the admissions contained in the pleadings, gave judgment for the plaintiff that he was entitled to be paid by the defendant the sum of $21,857.06, being the sum of £2,000, with interest at five per cent from the date ■of the will, February 20,1868, to July 6,1884, one year after the death •of the testator, and with interest on this amount from J uly 6,1884, to June 21, 1888, the date of the 'decision, at six per cent; that the ■devise contained in the will operated as an equitable conversion of the real property into personalty immediately upon the death of the testatrix; that the power to take possession of the decedent’s estate .and convert the same into money became vested in and should be exercised by the defendant. From this judgment both parties have .appealed.

That the defendant was not entitled, as matter of right, to a jury trial seems to be clear. The plaintiff demanded other relief than a judgment for a sum of-money. He had filed his bill to compel the defendant to exercise powers which had been conferred by the will in question, the exercise of which were necessary to the realization •of the legacy which had been bequeathed to him by the testatrix. Letters of administration, with the will annexed, had been issued to the defendant on December 11, 1885, and up to the time of the commencement of this action no steps, as far as this case shows, had been taken by the defendant to carry out the trusts contained in the will.

The plaintiff was entitled to be paid his legacy, such payment could not be obtained except upon a sale of this real estate, and he had a right to come into court to compel the defendant to perform his duties. Besides, this question, as to a jury trial, seems to be utterly trivial as there is not the slightest pretense that there could !)■) produced in this case any conflicting evidence upon which a jury could be called upon to pass; and wliy the court should have been troubled with this question passes comprehension.

The plaintiff in this case is a specific legatee under the will. It may be that the fact that the testatrix owed the plaintiff this money was the inducing cause to the insertion of this legacy in the will, but the fact remains that the testatrix has directed the payment,of this sum. The fact is also apparent that it was the testatrix’s intention that at her death, out of the estate she might leave, that this sum, with interest, should be paid to the plaintiff.

It is claimed by the defendant that the will, which is the only evidence of indebtedness, shows that such indebtedness existed as early as February 20, 1868, and that it, therefore, had become subject to the statute of limitations, which was a bar to its recovery. In support of this proposition we arc cited to numerous authorities showing that a direction in a will to pay all just debts does not revive a debt to which the statute has attached, or prevent the statute from running after the death of the testator. These cases proceed upon the theory that it is plain that the testator in such case only intended to provide for such debts as, according to law and equity, were just debts and should be paid. Another reason might be added, and that is that such a direction contained in a will is nothing more than a recognition of what the law requires, and should be treated as such. But in a case in which the testator directs the payment of a specific debt it is clearly the recognition of the debt and the expression of a will that it shall be paid, statute or no statute. As well might a trustee or agent of a living principal refuse to obey the directions of such principal to pay a debt named out of moneys of the principal, which the agent or trustee had in his hands, because the indebtedness was barred by the statute of limitations.

It is also urged that the court erred in allowing interest upon the claim to fun from any time prior to the death of the testatrix. This objection is clearly untenable. It is 'the clearly expressed intention of the testatrix that interest upon the debt should be paid. She says that the sum shall be paid with such interest as shall be then due thereon. To what time does she then refer? Clearly to the time when by law the legacy should be paid, viz., one year after the death of the testatrix. Upon the legacy no interest could begin to run until then, consequently such interest could not have been referred to by the testatrix. The only interest which could have then become due would necessarily be that accruing upon the debt, and such interest did not begin to run at the death of the testatrix, but from the creation of the debt, unless such creation was accompanied by some stipulation as to time of payment.

Any other construction would make this clause wholly meaningless. It could refer to nothing whatever but interest accruing upon the debt, and not upon the legacy. 'We find, from the acknowledgment of the testatrix, that the debt was in existence February 20, 1868, the date of the will, how much before we do not know, and, therefore, when the court allowed interest from the date of the will until the time when the legacy became payable, it was only carrying out the expressed will and wishes of the testatrix.

Neither could the court have allowed a greater sum by way of interest. The plaintiff claims under the will, and claiming under the will he must take what the will gives him, and he can get nothing more.

We think that the judgment appealed from should be affirmed, with costs.

Brady and Daniels, JJ., concurred.

Judgment affirmed, with costs.


author: Per Curiam :

text:
    JOSEPHINE M. McBRIDE, Respondent, v. ROBERT P. McBRIDE, Appellant.

      Power of the eowrt in an action for a limited divorce, after a decision of the main issue in the wife’s famor, to allow to her a counsel fee to enable her to prosecute the action to judgment.

    In an action brought by a wife to procure a judgment of limited divorce on the ground of cruel and inhuman treatment, the jury on a trial at circuit found that the husband, the defendant, had been guilty of cruel and inhuman treatment as charged by the plaintiff.
    Upon this finding the matter was brought before the Special Term where the counsel appeared and testimony was taken bearing upon the question as to the amount of permanent alimony which it would be proper to allow in the decree, etc., at the same time the plaintiffs counsel made a motion for an additional allowance for counsel fees to enable the plaintiff to prosecute the action to judgment and to contest an appeal which was threatened by the defendant.
    It was claimed that, under the rule laid down in the case of Beadleston v. Beadleston (103 N. Y., 403), no allowance whatever could be made.

      Held, that this was not the true interpretation of the decision in question, notwithstanding the broad language used therein, but that where anything remains to be done to perfect the judgment to which the wife has been held to be entitled, and it appears that further services of counsel will be necessary to procure the judgment and to conduct the future steps of the litigation, and that the wife will not be able to retain her counsel unless compensation is made for the services, the court has implied power to protect her and to secure to her the future services of her counsel.
    Appeal by the defendant from an order, made at a Special Term beld in tbe county of New York, which was entered in the office of the clerk of the county of New York on May 2,1889, directing the payment of counsel fees to the plaintiff.
    This action was brought to procure a judgment of limited divorce on the ground of cruel and inhuman treatment. The action was brought to trial at a Circuit Court and the jury found a verdict in favor of the plaintiff on some of the issues and against her on others. The ease was thereafter brought on for the final hearing at a Special Term of the court upon the findings of the jury and tho testimony taken on the trial.
    The justice at Special Term, after considering the evidence, wrote an opinion to the effect that the defendant had been guilty of cruel and inhuman treatment as charged by plaintiff. By consent of counsel for the respective parties, only a part of the issues in the case, viz., those relating to the cruel and inhuman treatment of the defendant, were submitted to the justice at that time, the remainder, viz., those relating to the amount of alimony, etc., were reserved to try at a future date. Afterward the trial was resumed, when a motion was made for an allowance to enable the plaintiff to contest the appeal which was threatened by the defendant. The justice granted such application. The amount allowed was $2,500. No judgment has been entered in the case nor have any findings been signed.

      P. Stevenson, for the appellant.

      S. G. Adams, for the respondent.
   Per Curiam :

The allowance granted herein by way of counsel fees to the plaintiff does not seem to us to be at all excessive, provided the court had the power to make provision for any compensation to her counsel.

It is claimed that under the rule laid down in the case of Beadleston v. Beadleston (103 N. Y., 402), no allowance whatever can be made in this case. The rule laid down^s certainly a very strict one, and calculated to work great injustice to a wife who has been successful in an action of divorce, because if the construction to be put upon the decision which is claimed by the appellant is the true one, where a wife has been denied counsel fee because of the showing made against her by affidavits, upon an application for counsel fee, although she may succeed upon the trial where witnesses are examined in open court, there is no power in the court to compensate her counsel for their labors in her behalf.

We do not think that this is the true interpretation of the decision in question, notwithstanding the broad language used, but that where anything remains to be done to perfect the judgment to which the wife has been held to be entitled after trial, and it appears that future services of counsel will be necessary to perfect the judgment and to conduct the future steps in the litigation, and that the wife will not be able to retain her counsel unless compensation is made for this service, the court has ample power to protect her and to secure to her the future services of her counsel.

The order appealed from should be affirmed, with costs.

Present — Van Brunt, P. J., and Brady, J.

Order affirmed, with costs.


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

text:
    CHARLES WOOD, Appellant, v. WILLIAM MITCHELL, Respondent. THOMAS G. MITCHELL, GEORGE M. MITCHELL, MARY H. MITCHELL and TERESA A. MITCHELL, Respondents, v. WILLIAM MITCHELL, Respondent.

      Confession of judgment toan infant — it cannot be made in satisfaction of a tort.

    On February 23,1888, a judgment, upon confession, in favor of Thomas G. Mitchell and others, was entered against William Mitchell.
    On March 8, 1888, one Challes Wood recovered a judgment against William Mitchell
    Wood thereupon made a motion to set aside the judgment entered in favor of T. G. Mitchell, which, it was claimed, was for moneys owing, while the relations of William Mitchell to Thomas G. Mitchell and others was that of a trustee, and that the moneys due the latter were held by William Mitchell, intrust for their benefit, and that, consequently, he had been guilty of a tort in not paying them over, and, also, that at that time the persons, in whose favor the judgment was confessed, had no legal capacity to take the judgment because they were infants for whom no guardian ad. litem had been appointed.
    Upon an appeal from an order denying the motion:

      Held, that the order should be reversed and the motion should be granted. (Macomber, J., dissenting.)
    That the result of sustaining such a judgment would be that a person, who ' had become liable on a tort to an infant, might confess a judgment in favor of the infant, as upon contract, and place this judgment in the way of other creditors pursuing their remedies against his property, which judgment the plaintifE could repudiate upon attaining his majority.

      Qiuere, whether, under any circumstances, a confession of judgment may be entered in favor of an infant, and whether the appointment of a guardian ad litem, nunc pro tune, six months after the entry of a judgment, in any way alters the status of the judgment.
    Appeal from an order, made at a Special Term held in tbe county of New York, denying the plaintiffs motion in this action to set aside a judgment in favor of Thomas G. Mitchell and others against "William Mitchell, which was entered in the office of the clerk of the city and county of New York on October 15, 1888.
    On'the 8th day of March, 1888, the plaintiff, Charles Wood, recovered a judgment against the defendant, William Mitchell. On February 23, 1888, a judgment upon confession had been entered in favor of Thomas G. Mitchell and others against the same defendant. A motion was made by the plaintiff in this action to set aside this last-mentioned judgment upon the grounds of certain dishonorable practices adopted by William Mitchell in procuring extensions, of time and in postponing by dilatory action the time of the entry of the judgment against him, and, also, upon the ground that the-confession would work a waiver of the tort, which the plaintiffs in the confession had suffered at the hands of the defendant in the confession, and, also, upon the ground that the persons in whose, favor the judgment was confessed had no legal capacity to take the judgment because they were infants for whom no guardian ad litemhad been appointed.

      J. C. Bergen, for the appellant.

      Barlow & Garman, for the respondent William Mitchell.

      Cornelius Doremus, for respondents Thomas G. Mitchell and others.
   Van Brunt, P. J.:

We cannot concur in the conclusion to which Mr. Justice. Macomber has arrived in this case. It is not necessary to determine-whether, under any circumstances, a confession of judgment might or might not be entered in favor of an infant, or whether the-appointment of a guardian ad litem, nune fro tuno, six months after the entry of the judgment, in any way altered the status of the judgment. It is, however, clear that the plaintiff in the confession might accept or reject the same, more especially in a case* such as the one at bar, where the acceptance of the confession would work a waiver of a tort which the plaintiff, in the confession, had suffered at the hands of the defendant in the confession. The result-would be that, in the case.of an infant, a person who had become, liable on a tort to an infant might confess a judgment in favor of the infant as upon a contract, and place this judgment in the way of other creditors pursuing their remedies against his property,, which judgment the infant plaintiff could repudiate upon attaining, his majority. Such results should not be permitted unless the law expressly authorizes them; and as no. such inference is to be drawn, in favor of confessions for liabilities arising under circumstances such as the one under consideration, the motion to set aside the •confession in the case at bar should have been granted.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted.

Bartlett, J., concurred.

Macomber, J.

(dissenting):

The appellant, Charles Wood, recovered his judgment against the respondent, William Mitchell, on the 8th day of March, 1888. The judgment in favor of T. G. Mitchell and others, which was upon confession, was entered February 23, 1888, against this defendant. It is urged upon us that the judgment entered by confession should give way in precedence of lien to the judgment entered in favor of Charles Wood, upon the ground of dishonorable practice adopted by William Mitchell in procuring extensions of time and in postponing, by dilatory action, the time of the entry of the judgment against him. But procuring, by stipulation and by orders, time to answer a complaint cannot be deemed a cause for invalidating the lien procured by other parties by confession of judgment or otherwise. It is further claimed that the confession was for moneys owing upon a contract, while the relation of William Mitchell to Thomas G. Mitchell and others was that of a trustee, and that the moneys due them were held by William Mitchell in trust for their benefit, and that, consequently, he had been guilty of a tort in not paying them over. Inasmuch, therefore, it is argued by counsel as there can be no confession of judgment for tort, the judgment assailed is void for the reason above mentioned. A sufficient answer to this contention is that if the cesttA gue trust saw fit to waive the tort and to take a judgment as upon an indebtedness arising upon contract only, they clearly had the right to do so.

It is further urged that the confession of judgment was void for the reason that the persons in whose favor the judgment was confessed had no legal capacity to take the judgment because they were infants for whom no guardian ad TAtem had been appointed.

The Code of Civil Procedure does not appear to have provided, specially for the entry of a judgment by confession in favor of infants. Section 469 is as follows: “Before a summons is issued, in the name of an infant plaintiff, a competent and responsible person must be appointed to appear as his guardian for the purpose of the action, who shall be responsible for the costs thereof.” Technically, therefore, it would seem that the Code of Civil Procedure does not exact the appointment of a guardian ad litem for an infant plaintiff except in cases where summonses are issued. The court, however, doubtless has the power in any legal proceeding, irrespective of this provision of the Code, to appoint suitable persons to take charge of the interests of infants in any case, whether instituted against them or in their favor. At what period of the proceeding, in cases of confession of judgment, it would be proper to apply, to the court for the appointment of such guardian, may be a question upon which there might exist a difference of opinion. .But there is no reason apparent why such appointment should precede the making and the filing of the statement under oath of the judgment-debtor which forms the basis of future proceedings. It would appear to me to be a timely application to the court for the appointment of a guardian ad litem in such cases, to apply after the filing of the statement, and at a time before any steps are taken to enforce the judgment which the clerk is required to enter upon filing the sworn statement. Up to this period there would seem to be no particular purpose for the appointment of a guardian, and certainly no liability for costs or otherwise would attach to the infant before a step had been taken to enforce the voluntary judgment record made by the judgment-debtor alone. But there was actually a guardian appointed for the infants on the 3d day of July, 1888. The order appointing such guardian was directed to be entered nunc pro tunc as of February 11, 1888, the date of the statement of the judgment by confession. This order supplied any defect that might have existed in the original proceedings. The failure to appoint a guardian ad Utem was a mere irregularity at best, and could be remedied by a subsequent order of the court. (Rima v. Rossielron Works, 11 Ilun, 153.) •

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Order reversed, with ten dollars costs and disbursements, and the motion granted.


text:
    SOMERVILLE P. TUCK, Respondent, v. JEROME F. MANNING, Appellant.

      Bight to substitute an attorney — in place ofa/nother who refuses to act until his services a/i'e paid for.

    Upon an appeal from an order denying a motion made by a defendant for a substitution of attorneys, it appeared that the attorney had refused to go on with the defense of the case in question until his bill for services already rendered was paid.

      Meld, that as the defendant could not compel the attorney to render his services, and, on the other hand, was not bound to submit to an adverse decision by reason of the attorney’s default, that the order appealed from should be reversed.

      Matter of H. (93 N. Y., 381) followed.
    Appeal by the defendant from an order made at a Special Term held in the county of New York, which was entered in the office of the clerk of the city and county of New York on the 26th day of February, 1889, denying the defendant’s motion for a substitution of attorneys in the above action.

      P. Carpenter, for the appellant.

      W. J. Weldon, for the respondent.
   Van Brunt, P. J.:

We fail to see any distinction between the case at bar and the case of the Matter of H-(93 N. Y., 381). It is true that the court may, in a proper case, refuse substitution where the client refuses to compensate the attorney for services already rendered. But it is difficult to see how the position of the attorney for the defendant in this case can be justified in his absolute refusal to render any further services in the action, unless his bill for previous services is paid.

It is claimed upon the part of the respondent that the court will not direct a substitution of attorneys without protecting the attorney in his lien for his fees. Upon this proposition the .Court of Appeals, in the case cited, say: “ Assuming, however, that the lien of an attorney would, under ordinary circumstances, attach to the final decision in such proceeding, it cannot now' be claimed by him for he refused to do the act which would have rendered a judgment in Ms client’s favor possible, and so waived a right to which he might otherwise have become entitled; and if, for services rendered before judgment, there was an inchoate right of lien, it was lost by his unqualified abandonment of the cause. In other words, he discharged himself, and in such a case it is clear that an attorney cannot leave his client in the middle of a matter, because he does not supply him with money, or by reason of any other difficulty, without running the risk of losing the benefit of that relation.”

Applying the rule laid down to the case at bar, the attorney having refused to go on with the defense of the case in question without the payment of his bill for services already rendered, he, in the language of the Court of Appeals, has discharged himself as the attorney of the defendant, and the court is bound to substitute some person to look after Ms client’s rights, and in order that he may be protected from, perhaps, an unjust judgment.

The defendant could not compel the attorney to render his services, nor, on the other hand, was he bound to submit to an adverse decision by reason of the attorney’s default.

Applying these principles to the case at bar, it is clear that the defendant, in view of the attitude taken by Ms attorney, was entitled to a substitution, and there was nothing upon which any lien, as attorney, could attach, and that the only right which the attorney . seeks to enforce is the right of the plaintiff to obtain judgment against his own client for want of a defense.

We think, therefore, that the order apjiealed from must be reversed and an order of substitution granted, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concurred.

Order reversed and order of substitution granted, without costs.


author: Bartlett, J.: Van Brunt, P. J.: Daniels, J.:

text:
    ELLA L. RIGNEY, Appellant, v. THOMAS G. RIGNEY, Respondent.

      Decree of divorce and for alimony in an action in New Jersey — when a party cannot dispute the jurisdiction of the court in an action to enforce such decree in the State of Neio Tork.

    In an action brought by one Ella L. Eigney, in the Court of Chancery of the State of New Jersey, for an absolute divorce on the ground of adultery, the defendant appeared and answered the original bill of complaint, denying the acts of adultery. Subsequently the plaintiff filed a supplemental bill, charging the defendant with other acts of adultery committed by him after the original bill had been filed, a copy of which supplemental bill was served upon the defendant in the State of New York, with an order made by the chancellor of New Jersey requiring him to appear and plead thereto within a specified time.
    Upon the expiration of the time specified in such order the defendant having failed to appear or to make any answer, a decree was made adjudging that the defendant had been guilty of adultery, not only as charged in the original bill, but as charged in the supplemental bill, dissolving the marriage between the parties, directing that the plaintiff should have the custody of the children of the marriage and awarding alimony to the plaintiff, pendente lite, at the rate of §100 per month from the filing of the bill to the date of the decree, and thenceforth at the rate of forty-five dollars per week for the maintenance and support of herself and her children, together with costs and §150 for counsel fees.
    .After the entry of the final decree, the final decree was, upon the application of the defendant, modified by the chancellor by striking out the words in the decree convicting him of the acts of adultery alleged in the original bill to have been committed by him. In amending the decree no change was made in its provisions relating to alimony, etc.
    In an action brought in the State of New York to enforce the decree of the Court of Chancery of New Jersey, awarding alimony, counsel fees and costs, the defendant in his answer denied that the said Court of Chancery of New Jersey had obtained jurisdiction of the person of the defendant under said supplemental bill, or had any power to enter a personal decree against him, and denied that such decree, so far as it was a personal decree against this defendant, was of any validity or effect; but he admitted that the said decree was effectual to dissolve the marriage status existing between him and the plaintiff, and further admitted that since the making of the decree, acting upon the theory of the validity and binding force thereof, the defendant on the 18th day of September, . 1887,- married a woman with whom he was then living as his wife in the city of New York.

      .Ileld, that as the defendant had caused his appearance to be entered, and the chancellor had acquired jurisdiction to proceed in the case and to render a judgment therein, which should not only dissolve the marriage, but charge the defendant personally with, the payment of alimony, he did not lose jurisdiction, of the action because the plaintiff subsequently filed a supplemental bill alleging matters which had occurred after the original bill was filed, as the suit remained the same suit, and the judgment was a judgment in the original action.
    That while it might have been an error for the Court of Chancery to leave the portion of the decree awarding alimony to the plaintiff, after striking out that part which adjudged the defendant guilty of the acts of adultery alleged in the original bill, and while that portion of the decree might be erroneous or irregular, yet the defendant must seek the proper relief in the New Jersey tribunal.
    That the decree for the payment of alimony was enforceable in this State.
    That defendant having admitted by his answer that the court in New Jersey had jurisdiction to dissolve the marriage between himself and the plaintiff, he could not be heard to deny that the court had .power to grant the incidental relief, which naturally followed the right to dissolve the marriage. (Van Brunt, P. J.)-
    Appeal from a judgment, wbicli was entered in the office of the clerk of the city and county of New York on the 'Tth day of June, 1888, at a New York Special Term, dismissing the complaint after a trial in an action brought to enforce a decree of the Court of Chancery of New Jersey, awarding the plaintiff alimony, counsel fees and costs in a suit for absolute divorce.
    J. A. Shoudy, for the appellant.

      Hamilton Wallis, for the respondent.
   Bartlett, J.:

The plaintiff sued the defendant in the Court of Chancery of the-State of New Jersey for an absolute divorce on the ground of adultery. The defendant appeared, and answered the original bill of complaint, denying the acts of adultery with which he was charged therein. Subsequently, the plaintiff filed a supplemental bill, charging the defendant with other acts of adultery committed by him after the original bill was filed. The defendant was not served within the territorial jurisdiction of New Jersey with any process, issued upon this supplemental bill. Tie was, however, in the State of New York, served with a copy of the said supplemental bill, and with an order made by the chancellor of New Jersey requiring him to appear and plead thereto within a specified time, and providing that in default thereof such decree would be made against-him as the chancellor should think equitable and just. Upon the-expiration of this time, the defendant having failed to appear in response to said order or to make any answer to the supplemental bill, the case was referred to a master to take testimony, and, upon the coming in of his report, a decree was made adjudging that the defendant had been guilty of adultery, not only as charged in the original bill, but as charged in the supplemental bill dissolving-the marriage between the parties, directing that the plaintiff should have the custody of the children of the marriage, and awarding alimony to the plaintiff, pendente lite, at the rate of $100 per month from the filing of the bill to the date of the decree, and thenceforth at the rate of forty-five dollars per week for the maintenance and support of herself and children, together with costs and $150 for counsel fees. It is to recover the alimony, costs and counsel fee due-to the plaintiff under this decree that the present action is brought..

Under the law of New Jersey and under the chancery practice prevailing in that State, as testified to upon the trial of the present, case, it seems that the supplemental bill is an independent proceeding, so far as the supplementary matter is concerned; that an appearance to the original bill does not operate as an appearance to-the new matter in the supplemental bill; and that to bring the-defendant into court, as to such .new matter, he must be served with a writ of subpoena issued thereon, unless he appears thereto voluntarily. As he was not served with any subpoena issued on the supplemental bill in the New Jersey divorce suit, the defendant contends-that the Court of Chancery there never obtained any jurisdiction over him to render the decree for the payment of alimony upon which this action is founded. He admits, however, that the decree,, in that suit was.effectual to some extent and for one purpose. . It appears that since its rendition he has married a woman other than the plaintiff, so that his position is that the decree is good in New Jersey and everywhere else, so far as it dissolves the marriage contract, but is not enforceable against him personally so far as it commands him to pay alimony. The language of the answer on this-subject is as follows : “ But this defendant denies that said Court of Chancery of New Jersey ever obtained jurisdiction of the person of this defendant under said supplemental bill or had any power to-enter a personal decree against him, and he denies that such decree, so far as it is a personal decree against this defendant, is of any validity or effect, but he admits that said decree was effectual to dissolve tlie marriage status existing between him and the plaintiff.” And the defendant goes on in his answer and expressly admits the allegations contained in the eleventh paragraph of the complaint in this action, which are, that since the making of the decree in New Jersey, acting upon the theory of the validity and binding force thereof, the defendant, on the 18th day of September, 1881, married •a woman, with whom he is now living as his wife, in the city of New York. ,

After the final decree was entered in the New Jersey suit the defendant appears to have been dissatisfied therewith, because it declared him to be guilty of the acts of adultery charged in the original as well as in the supplemental bill; and accordingly he took .steps to have it corrected. lie caused Messrs. Wallis & Edwards, who described themselves as his solicitors for the purposes of the motion only, to serve a notice upon the solicitor for the complainant (the plaintiff here), that they should apply to the chancellor for an order modifying the final decree by striking out the words “ The said defendant has been guilty of the crime of adultery charged against him in the said bill of complaint and supplemental bill thereto,” so as to make that part of the decree read: “ The said defendant has been guilty of the crime of adultery charged against him in the said supplemental bill thereto.” When the motion thus noticed came on to be heard it was granted by the chancellor, and the decree was amended on January 31,1888, by omitting the finding that the defendant was guilty of the adultery charged against him by the original bill; so that the sole adjudication contained in the decree as to the defendant’s adultery is that he was guilty as charged in the supplemental bill. In amending the decree, however, no change was made in the provisions relating to alimony. The learned judge before whom this case was tried at Special Term dismissed the complaint on the ground that the Court of Chancery in New Jersey had no jurisdiction to make any personal decree against the defendant. He did not pronounce upon the validity of the defendant’s second marriage, but held that the fact that he had married again did not preclude the defendant from questioning the jurisdiction of the New Jersey court so far as it directed him to pay alimony.

That the defendant was in court in the divorce -suit, so far as the original bill of complaint was concerned, is not disputed. He had caused his appearance to be entered, and the chancellor had acquired jurisdiction to proceed in the cause and to render a judgment therein which should not only dissolve the marriage, but charge the defendant personally with the payment of alimony. It does not seem to me'that he lost this jurisdiction because the plaintiff subsequently filed a supplemental bill alleging matters which had occurred after the original bill was filed. The suit remained the same suit, and the judgment was a judgment in the original action. The filing of the. supplemental bill was not the institution of a new action. Certainly it could not have been deemed so by the chancellor, for the decree, even after the amendment which was made at the instance of the defendant, was based not upon the supplemental bill alone, but upon the original bill as well. This is apparent, not only from the recital as to the filing of the original bill, and the subsequent statement, that the decree is made upon the pleadings, but from the provision in regard to the payment of alimony:. “And it is further ordered, that alimony, jyendente lite, be allowed at the rate of one hundred dollars per month from the filing of the bill up to the date of this, order, and that from thenceforth the said Thomas G. Eigney pay to the said Ella L. Eigney the sum of forty-five dollars per week at the termination of each and every week from the date of this order for her maintenance and the education of her said children.” , The original bill was filed on April 23,1883. The supplemental bill was filed on May 18, 1886. The decree, as appears from the language, just quoted, awarded the plaintiff alimony from the time the bill,' that, is, the original bill, was filed; so that, of the entire amount of alimony which the defendant was directed to pay, more than $3,600 accrued before the supplemental bill was filed at all, and while the suit rested solely upon the original bill, as to which it is conceded that the court had jurisdiction to render a personal judgment against-the defendant.

It may be that it was error for the Court of Chancery to leave this portion of the decree standing, after striking out that part which adjudged the defendant guilty of the acts of adultery alleged in the original bill; but we have nothing, to do with that question. If the provision for the payment of alimony pendente Ute, prior to the filing of the supplemental bill, is erroneous or irregular, the defendant must seek the appropriate relief in New Jersey. "We have presented to us in this case a decree made in a suit in the New Jersey ■Court of Chancery, in which the defendant voluntarily appeared. That decree directs him to pay money. Not only from its express terms, but by necessary implication from the provisions which it contains in respect to alimony, it is manifest that the decree rests, in part, at least, upon the original bill of complaint. Upon that bill the court concededly possessed the power to make a personal decree against the defendant. Under these circumstances, while he may complain that the judgment was erroneously rendered, I do not think he can successfully question the jurisdiction of the court to render it.

In my opinion, the decree for the payment of alimony is enforceable in this State. The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J.:

I concur in the result, but not in the grounds assigned by Mr. Justice Bartlett for his conclusion. The defendant admits by his answer that the court in New Jersey had jurisdiction to dissolve the marriage between himself and the plaintiff, and having .admitted this fact, he cannot be heard to assert that the court had no power to grant the incidental relief which naturally followed the righf to dissolve the marriage. If the court had the jurisdiction to make any part of the decree, it was empowered to make the whole decree.

Daniels, J.:

As the defendant appeared in the action and thereby voluntarily subjected himself to the jurisdiction of the court, he became bound by the decree. The court never lost or was deprived of that juris- • diction. And even if the court proceeded irregularly in making the final decree, that irregularity should have been there corrected. 'The defendant having failed to take any proceeding for that end in the Court of Chancery of New Jersey, cannot resist in this action the ■enforcement of the decree. The judgment must, therefore, be reversed and a new trial ordered.

Judgment reversed and new trial granted, with costs to the appellant to abide event.


author: Bartlett, J.:

text:
    THOMAS EGENTON HOGG, Respondent, v. JOHN MACK, Appellant.

      Action to recover damages for the breach of a contract to convey real estate — the venue need not be laid in the county where the real estate is situated— Code of Civil Procedure, sec. 982.
    In an action, brought to recover the sum of $500, which the plaintiff had paid to the defendant under a written agreement, under seal, whereby the defendant agreed to sell to the plaintiff certain lands situated in Rockland county, in the State of New York, for the sum of $11,500, and upon receiving that sum to execute and deliver to the plaintiff a warranty deed conveying said premises in fee simple, free from all incumbrances, the complaint alleged a default on the part of the defendant on the ground that he could not at the time named, or at the, time of the commencement of the action, convey a good title to' the premises in question, free from all incumbrance, and demanded, in addition to said sum of $500, the payment of $300 expended in examining the title.
    The defendant contended that the complaint brought the case within the terms of section 982 of the Code of Civil Procedure, requiring actions to recover or pro. cure a judgment establishing, determining, defining, forfeiting, annulling or otherwise affecting an estate, right, title, lien or other interest in real property, or a chattel real, to be brought in the county in which the subject of the action, or some part thereof, is situated.

      Held, that the mere fact that a question of the title to real estate might have to be passed upon in a suit, did not make it imperative that the case should be tried in the county where the land was situated.
    That the section did not apply to an action át law to recover damages for the breach of a contract, although that contract related to real property 'and the breach was alleged to be due ti^the inability of the defendant to give to the plaintiff a good title.

      Kearr v. Bartlett (47 Hun, 245) distinguished
    Appeal from an order, made at a Special Term beld in the county of New York, which was entered in the office of the clerk of the county of New York on the 22d day of January, 1889, denying a motion made by the defendant to change the venue or place of trial of this action to Rockland county.

      Anderson Price; for the appellant.

      P. H. Vernon, for the respondent.
   Bartlett, J.:

The complaint in this action alleges that, on or about July 31, 1888, the plaintiff and the defendant entered into a written agreeinent, under seal, whereby the defendant agreed, to sell to the plaintiff certain lands situated in Rockland county, in this State, for the sum of $11,500, upon receiving payment of which sum he would execute, acknowledge and deliver to the plaintiff or his assigns, in the city of New York, on September 29, 1888, a warranty deed conveying the said premises in fee simple, free from all incumbrances. The complaint further alleges that on the execution of the agreement the plaintiff paid the defendant $500 in part payment for the premises, and immediately thereafter employed an attorney to examine the title, and has become liable to pay said attorney $300 for his services and disbursements in connection with such examination; that on September 29, 1888, the plaintiff was ready and willing to fulfill the agreement, and that he has duly performed all the conditions thereof on his part, but that the defendant, could not then, and cannot now, convey a good title to said premises, free from all incumbrance, and did not make a good title thereto pursuant to his agreement; and that, on the contrary, the said title was, and still is, subject to various defects and incumbrances, which were well known to the defendant, but were not known to the. plaintiff, and some of which are set out in the complaint. Finally, the complaint alleges a demand for the return of the $500 which the plaintiff paid the defendant on executing the agreement, and for payment of the $300 expended in examining the title, and prays judgment for the aggregate of $800, with interest. The defense in substance, is that the defendant liad a good title and was ready to convey it to the plaintiff.

The defendant contends that the complaint brings the case directly within the terms of section 982 of the Code of Civil Procedure. That section provides that certain actions must be tried in the county in which the subject of the action or some part thereof is situated, and after mentioning various actions relating to real property, including suits for ejectment, partition, dower, waste and the foreclosure of mortgages, it specifies “every other action to recover or to procure a judgment establishing, determining, defining, forfeiting, annulling or otherwise affecting an estate, right, title, lien or other interest in real property or a chattel real.” The argument of the defendant is that, inasmuch as the plaintiff cannot prevail without showing that the defendant’s title to the premises was defective, the action is one to procure a judgment affecting a title in real estate, and hence falls within the purview of the section cited. But the mere fact that a question of the title to real estate may have to be passed upon in a suit does not make it imperative that the case should be tried in the county where the land is situated. The portion of section 982 of the Code, which has been quoted, appears to relate to two classes of suits, and two only — first, actions to recover an estate, right, title, lien or other interest in real property or a chattel real; and, secondly, actions to procure a judgment affecting such an estate, right, title, lien or other interest. It is plain that the case at bar is not a suit to recover anything but money. Therefore, it cannot belong to the former class; but the appellant would place it in the latter. In endeavoring to do this he overlooks the significance of the phrase “ to procure a judgment,” which must not be disregarded in determining what is the true meaning of the clause in which it occurs. That expression indicates that the actions to which it refers are only those in which the judgment which is sought is one that by its very terms, or by reason of its form and by virtue of the express provisions therein contained, will affect the title to real property or some interest therein. It does not apply to an action at law to recover damages for the breach of a contract, although that contract relates to real property, and the breach is alleged to be due to the inability of the defendant to give the plaintiff a good title; for in such a case the judgment which the plaintiff seeks to procure is a simple money judgment, and by no means a judgment in form affecting the title to real property.

The case of Kearr v. Bartlett (47 Hun, 245), is not an authority for the appellant, inasmuch as that was an action “to procure a judgment directing a conveyance of real property,” by way of exchange, and, therefore, the suit came directly within the express terms of the section, while the case at bar does not fall either within its letter or its spirit.

Upon the argument the counsel for the appellant, in effect, abandoned the ground that the venue ought to be changed on account of the convenience of witnesses, and, therefore, the only question which has been considered is whether the defendant is entitled to have the case tried in Bockland as being the proper county.

We are of the opinion that he is not; and the order should, therefore, be affirmed, with costs and disbursements.

Van Brunt, P. J., and Macomber, J., concurred.

Order affirmed, with costs and disbursements.


text:
    In the Matter of the Judicial Settlement of the Accounts of JOHN S. WOODWARD and JOHN O. TUCKER, Executors, etc., of NOAH S. HUNT, Deceased. ALICE GRAY, THOMAS M. GRAY and FREDERICK F. GRAY, Appellants, v. JOHN S. WOODWARD and JOHN C. TUCKER, Executors of the Estate of NOAH S. HUNT, Deceased, and Others, Respondents.

      Will — grand-nephews and nieces a/re not included in a devise to nephews and nieces.

    By liis last will Noah S. Hunt, deceased, after giving a number of legacies absolutely to nephews and nieces, and to certain nephews and nieces other sums of money subject to certain life interests in favor of the testator’s sisters, by the , tenth clause gave and devised “unto Alice, Thomas and Frederick, the three children of my deceased niece, Mary Jane Gray, late wife of the Rev. Thomas M. Gray, each the sum of two thousand dollars, provided always, nevertheless, and it is my will, that if my sister Jane, Noe shall survive me, then, in that case, at least one-half part and more, if she shall need or require it, of the interest or income of the legacies given to her said grandchildren, Alice, Thomas and Frederick Gray, shall be paid by my executors, their survivors or survivor, to my said sister Jane, or be applied to her use during the residue of the term of her natural life, and that the residue, if any, of such interest or income of such legacies, respectively, be paid to the said children of my deceased niece Mary Jane Gray, respectively, to whom the principal thereof is hereinbefore given.”
    The twelfth clause of the will was in the following words : “All the rest, residue, and remainder of my estate and property, of every name, nature and description, including the principal sums to be invested for the payment of interest or income thereof, unto my nephews Thomas H. Corry and Samuel H. Clark, and my niece Sarah Jane Bradford, as they shall severally, by the death of either of them, fall into my said residuary estate, I do give, devise and bequeath unto my nephews and nieces hereinbefore named, except the said Thomas H. Corry, Samuel H. Clark and Sarah Jane Bradford, in such proportionate shares as the legacies hereinbefore given and bequeathed to them, respectively shall bear to each other.”

      Seld, that the devise and bequest “unto my nephews and nieces hereinbefore named ” did not include Alice Gray, the grand-niece of the testator, or Thomas and Frederick, the grand-nephews.
    That it is only where grand-nephews and grand-nieces have been classed by the testator in other portions of the will with his nephews and nieces that his grand-nephews and grand-nieces have been held to take under a gift of the residue of the estate to nephews and nieces.

      Crook v. Whitley (7 De G., M. & G., 490); Falkner v. Butler (Ambler’s Rep., 514); Cromer v. Pinckney (3 Barb. Ch., 466); Lewis v. Fisher (2 Yeates, 196) followed.
    That while the general scheme of the will might be said to indicate a probaUlity that the testator meant that the Gray children should share in the benefits of the residuary clause, it was nothing more than a probability, and it could not be said with certainty that such was the intention. (Bartlett, J.)
    Appeal by Alice Gray, Thomas Gray and Frederick Gray from a decree rendered in the New York Surrogate’s Court on June 9, 1888, and especially from such part as, expressly or by implication, determined that the said appellants, the children of the testator’s deceased niece, Mary Jane Gray, were not embraced within the nephews and nieces of the testator, as such words were used in the twelfth clause of his will, and were not entitled to participate in the distribution of his residuary estate.

      Charles H. Johnson, for the appellants.

      Charles H. Knox, for the respondents.
   Bartlett, J.:

This is an appeal from a final decree of the Surrogate’s Court upon a settlement of the account of the executors of Noah S. Hunt, deceased. In order to make the decree it was necessary for the surrogate to determine what persons were entitled to share in the residuary estate of the testator under the twelfth clause of the will. Fie construed that clause in such a way as to exclude the children of the testator’s deceased niece, Mary Jane Gray, from any participation in the distribution of the residuum; and the only question to be determined on this appeal is, whether such construction is correct.

Hnder the will the principal recipients of the testator’s bounty are various nephews and nieces. One nephew receives an absolute legacy of $7,000 (4th clause); three nieces receive absolute legacies of $7,000 each (5th clause); one nephew receives a life estate in

$5,000 (Ttli clause); another a life estate in $2,000 (9th clause); and a niece a life estate in $2,000 (8th clause). By the second clause of the will the sum of $20,000 is bequeathed to one nephew, and the sum of $80,000 in equal shares to three nephews and two nieces of the testator, subject to certain life interests in favor of the testator’s sister Sarah and her husband. By the third clause the sum of $7,000 apiece is bequeathed to two other nephews and two other nieces, subject likewise to a certain life interest in behalf of the testator’s sister Mary. By the sixth clause the testator bequeaths to four other nephews the sum of $5,000 each, subject to a life interest in favor of his sister Harriet. The tenth clause is similar in its general form to the second, third and sixth clauses, and is the first one in which the appellants Alice, Thomas and Frederick Gray are mentioned. The portion material to be considered on this appeal is in the following words: “I give and bequeath unto Alice, Thomas and Frederick, the three children of my deceased niece, Mary Jane Gray,, late wife of the Rev. Thomas M. Gray, each the sum of $2,000, provided always, nevertheless, and it is my will that if my sister Jane Noe shall survive me, then in that case at least one-half part and more, if she shall need or require it, of the interest or income of the legacies given to her said grandchildren, Alice, Thomas and Frederick Gray, shall be paid by my executors, their survivors or survivor, to my said sister Jane, or be applied to her use during the residue of the term of her natural life, and that the residue if any of such interest or income of such legacies, respectively, be paid to the said children of my deceased niece Mary Jane Gray, respectively, to whom the principal thereof is hereinbefore given.”

That part of the twelfth clause which we are called upon to construe is in the following words:

All the rest, residue and remainder of my estates and property of every name, nature and description, including the principal sums to be invested for the payment of interest or income thereof, unto my nephews James H. Cory and Samuel H. Clark and my niece Sarah Jane Bradford, as they shall severally, by the death of either of them, fall into my said residuary estate, I do gime, devise and bequeath unto rny nephews and nieces hereinbefore named, except the said James H. Cory, Samuel H. Clark and Sarah Jane Bradford, in such proportionate shares as the legacies herein-before given and bequeathed to them, respectively, shall bear to each other.”

The question presented for decision is, whether the devise and bequest “unto my nephews and nieces hereinbefore named” includes Alice Gray, the grand-niece, of the testator, and Thomas and Frederick, grand-nephews, who are named in the tenth clause of the will and therein described as “ the three children of my deceased niece Mary Jane Gray, late wife of the Rev. Thomas M. Gray.”

The contention of the learned counsel for the appellant, m substance, is, that from the whole scheme of the will it is apparent that the testator regarded and intended to treat the three Gray children, representing in the mind of the testator their deceased mother, who was his niece; and that his purpose was to give them the proportionate share which, if she had been living, he would have given to her •under the -residuary clause. The argument is that if his niece,Mary Jane Gray, had been alive when he made his will, he would have given her $6,000 instead of giving her children $2,000 each, as he does by the tenth clause ; and, of course, if he had given this niece $6,000 or any other sum under that clause, she would be entitled to share proportionately in the residuary estate. As to this argument, it may be observed that, inasmuch as there appear to have been nephews and nieces of the testator who received nothing at all under his will, it can hardly be assumed with any certainty that Mrs. Gray would have been a legatee if she had been living at the time the will was made. Cases are by no means uncommon where gifts are given to children towards whose parents the donor is by no means friendly. We do not intend to intimate that such was the fact here, but mention it only to show how purely speculative seems the assumption that the appellants are to be regarded as the representatives of their mother as legatees under the tenth clause of the will. In order to hold with the appellants that the phrase “ nephews and nieces hereinbefore named ” included the grand-nieces and grand-nephews, we should have to go further than any reported case to which we have been referred or which we have been able to find, has yet gone in extending the meaning of the words nephew and niece beyond their ordinary and natural signification.

Unquestionably these words, taken in the sense in which they are generally used, mean the children of a brother or sister. (Crook v. Whitley, 7 De Gex, M. & G., 490, 494.) Mr. Jarman, whose work on Wills may be said now to have reached the rank of a legal classic, says that great-nephews and great-nieces are not included in a gift to nephews and nieces nor a great grand-nephew in a gift to grandnephews. (2 Jarman on Wills, 152.) In Falkner v. Butler (Ambler’s Rep., 514), which was decided in 1765, the master of the rolls Sir Thomas Sewell, held that a testamentary power to a wife to appoint among nephews and nieces could not be extended to great-nephews and great-nieces. In the case of Cromer v. Pinckney (3 Barb. Oh., 466, 475), Chancellor Walworth stated the general rule to be that the words nephews and nieces, in their primary and ordinary sense, mean the immediate descendants of the brothers and sisters of the person named, and do not include grand-nephews and grand-nieces or more remote descendants. It is only where grandnephews and grand-nieces have been classed by the testator in other parts of the will with his nephews and nieces that they have been held entitled to take under a gift to nieces and nephews. Thus in the case cited the testator excepted John Oromer by name, who was only a grand-nephew, from a class of nephews and nieces to whom he gave legacies of $500 apiece. He also gave a similar legacy to those whom he described as children of his nephew, John Cromer, thus clearly showing, as the chancellor says, that he did not intend to confine his bounty to the immediate descendants of his brothers and sisters in cases where such immediate descendants had died leaving issue.” Another case to the same effect was decided by the vice-chancellor of England in 1870, where the testator bequeathed the proceeds of the sale of an estate to his great-nephew and to such others of his nephews as should be living at his own and his sisters’s decease, in equal parts. Here it was held that, inasmuch as one great-nephew was classed with the testator’s nephews and nieces, his other great-nephews and great-nieces were entitled to share equally in the estate. (In re Blower’s Trusts, L. R., 11 Eq ., 97.) But in the ease at bar the Gray children are nowhere referred to as great-nephews and nieces, nor aré they anywhere classed with nephews and nieces in such a way as to indicate that by the use of the term nephews and nieces the testator intended to include the children of nephews and nieces.

The will in. Lewis v. Fisher (2 Yeates [Penn.], 196), closely resembled that in tbe present case in its main features. It bequeathed legacies to various nephews and nieces, naming them; and also legacies to the children of a deceased nephew and of deceased nieces, naming such children. By the residuary clause the rest of the estate was directed to be equally divided among the testator’s nephews and nieces of every diseription, there being some of the half blood and some of the whole blood. The court held that the term “ nephews and nieces of every description ” did not include- great-nephews and great-nieces. “All the nephews and nieces whom the testator has in view,” said the plaintiff’s counsel arguendo, “he particularly denominates as such in the whole of his will. But where he speaks of his great-nephews or great-nieces, he styles them the children of his nephews and nieces.” And the court declared their opinion clearly to be for the plaintiff, for the reasons given by his counsel. In behalf of the appellant it is insisted that the Pennsylvania courts no longer follow this decision in Lewis v. Fisher, but an examination of the authorities cited does not show any departure from the principles upon which that decision was based.

A careful review of all the authorities to which we have been referred leads to the conclusion that the twelfth clause of this will was correctly construed by the. surrogate. While the general scheme of the will may be said to indicate a probability that the testator meant that the Gray children should share in the benefits of the residuary clause, it is nothing more than a probability, and we cannot say, with any certainty, that such was his intention. It follows that the decree of the surrogate should be affirmed.

Yan Brunt, P. J., and Daniels, J., concurred in the result.

Decree of surrogate affirmed.