text:
    James T. Watson, Respondent, v. Elizabeth P. King, as Surviving Executrix, etc., of Abraham P. Grant, Deceased, Appellant.

      Agreement to divide the “ avails of sales," construed to include rents — pa/rties to an action for an accounting.

    An agreement made between the executors of Abraham P. Grant, deceased, and John W. P. Allen, who had been interested with Grant in real estate operations, provided, among other things, that Allen should be equally interested with the executors in the “avails of any sales” of certain land, the title to which was in Grant’s name, and thereafter the successor in interest of Allen brought an action against the surviving executor of Grant for an accounting under the agreement.

      Held, that, taking all the provisions of the agreement together, in the light of the surrounding circumstances, the expression “ avails of any sales ” was intended to include all the proceeds of the property, and, hence, that the plaintiff was entitled to share in the rents and profits of the property realized prior to its sale;
    That the administrator of one of the executors, deceased since the making of the agreement, who had recovered a judgment against Allen upon a note given by him to such deceased executor individually, for a personal matter wholly outside of the agreement in suit, was not (in the absence of a claim by such administrator) a necessary party defendant.
    Appeal by the defendant, Elizabeth P. King, as surviving executrix of Abraham P. Grant, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of Oswego county on the 29th day of August, 1892, upon the report of a referee.
    Action was brought for an accounting.
    The controversy in this case was over an agreement made the 14th of July, 1873, between the executors of the last will and testament of Abraham P. Grant, deceased, of the first part, and John W. P. Allen of the second part. The plaintiff is the owner of whatever rights John W. P. Allen had pn the 15th of June, 1877. The defendant is the sole surviving executor of the will of Grant.
    Grant died in December, 1871, leaving a will, in and by which he devised all his property, real and personal, to his three children, Mary B. Grant, Josephine L. Hosmer and Elizabeth P. King, in equal shares, and appointed them, together with William E. Allen, his executors, with full power to sell and convey, lease, exchange or otherwise dispose of any of his real estate, upon such terms and conditions as they might deem proper, at public or private sale. John W. P. Allen had business relations with Grant during his lifetime, and after his death differences arose between Allen and the executors of Grant relative to the interests of Allen in certain real estate, the title to which was in Grant at the time of his death, and in which Allen claimed to have an interest. Thereupon, after some negotiations, the agreement in question was executed. It is under seal, and it was conceded at the trial that the executors, as such, had full power to make it.
    By the first clause of the agreement, the parties of the first part released and discharged the party of the second part from all claims which they, as executors, -had against him, or which was due from him to Grant in his lifetime, for money lent or advanced to him or for his benefit, including all accounts and notes against him, and also the amount due on a certain real estate contract. By the second clause, the party of the second part released and discharged the executors and the estate of Grant from all claims and demands of every name and nature, and released all his interest in a certain mortgage given to Grant, and in certain real estate. The third clause was as follows:
    “ Third. It is mutually understood between the parties hereto, that the said parties are equally interested in the following contracts, executed either by the parties of the first and second part, or by the said Grant in his lifetime, and the said party of the second part, to the following parties, to wit: (describing fifteen contracts).
    “ And it is further understood and agreed that the said party of the second part is to be equally interested with said parties of the first part, as executor and executrices and as aforesaid, in the avails of any sales hereafter made of the lands now unsold of the Murray property, so called, being property deeded to Abraham P. Grant by Hamilton Murray, and being in lots 1 and 2, Hamilton’s Gore, East Oswego.
    “ One-half of the moneys received upon the said contracts, and one-half of the money that may be received on the sale of the lands unsold and above referred to, after deducting all taxes and assessments, and all liabilities to the parties of the first part, or either of them, as executors or otherwise, and charges on said property, is to be equally divided between the parties hereto, share and share alike.”
    It is then provided that certain other specified real estate, the title of which was held by Grant, is the property of the party of the second part, also that the latter is to have part of a certain block without being liable to pay anything therefor, and in consideration thereof, releases to the executors a certain other portion of said block. It is also provided that “ the party of the second part is to make no charge for time or services in making sales of any part of the Murray property herein referred to, or for looking after and taking care of the same.”
    Immediately after the execution of this agreement the executors opened an account with John W. P. Allen, containing upon the one side, entries of all moneys received by them on the joint contracts referred to in clause 3 and for sales of the Murray land as well as rents and profits of said lands between the date of the agreement and the commencement of the action, and upon the other side entries of all moneys paid out by them in connection with the property represented in the account. The referee finds that from the date of the agreement to the commencement of the suit, the executors of the Grant estate received on joint account, under the agreement, the sum of $6,154.75; also, certain items on a contract and bond and mortgage not charged in joint account to the amount of $216.76, making a total received of $6,371.51; and that the executors, under and pursuant to said agreement, paid out on joint account the sum of $3,881.30, leaving a balance to the credit of joint account of $2,490.21, one-half of which, as he finds, belongs to the plaintiff, and the other half to the defendant. From the plaintiff’s half the referee deducts the sum of $792.90 for payments received by Allen, and this leaves a balance of $452.10, for which, with interest, judgment is ordered in favor of plaintiff. The evidence showed that in the entries making up the sum of $6,371.51, above referred to, there are items for rent or income from the Murray property, referred to in the third clause of the agreement, to the amount of $830.75.
    At the request of the defendant, it is found that on the same day the present action was commenced, the plaintiff brought another action against the said heirs of A. P. Grant, for the partition of the property mentioned in clause 3 of the agreement of July 14, 1873, in wdiich the plaintiff claimed to be a joint tenant with them of said property, and that said last-mentioned action was based upon said agreement of July 14, 1873; that said action was duly brought to trial and a judgment rendered therein dismissing the complaint with costs, which judgment was duly docketed in Oswego county on June 16, 1886; that in said action the court held and decided that said John W. P. Allen, under said agreement of July 14, 1873, acquired an interest in the land contracts named in clause 3 and an interest in the avails of sales that might thereafter be made of the Murray property, but'no direct interest in and no title whatever to the said lands.
    It also appears that on the-26th of August, 1873, John W. P. Allen gave to Mary B. Grant his note for $185 on a business transaction wholly outside and independent of the agreement of the 14th of July, 1873, and for a personal matter between them. Upon this note the administrator of Mary B. recovered a judgment against Allen’s executors, on the 28th of February, 1883, for $286.93.
    By stipulation between the parties it is agreed that the only questions to be reviewed are : First, the plaintiffs 'right to rents and profits of the Murray lands, and, second, the right of the defendant to have the administrator of Mary B. Grant brought in as a party defendant.

      John, G. GJmrchill and George W. Pa/rhJmrst, for the appellant.

      J. B. Higgins, for the respondent.
   Merwin, J.:

1. It is evident that by the agreement of July 14, 1873, all the controversies between the parties up to that time were designed to be adjusted. Mutual releases were given as to prior transactions. The title to a quantity of real estate had been taken by A. P. Grant, in his own name, in which Allen claimed an interest, and the agreement recognizes the fact that Allen had an interest. Divers items are declared to be the property of Allen, and as to other items Allen releases all his interest to the executors. Besides these, there remained the contracts and the Murray property, specified in the third clause of the agreement. All the contracts had been executed by Allen, together with Grant in his lifetime, or with his executors thereafter. It was declared that in these contracts Allen and the estate of Grant were equally interested. In the same connection it was stated that Allen and the estate of Grant were equally interested in the avails of any sales thereafter made of the lands then unsold of the Murray property. A division of the moneys is then provided for, after deducting all taxes and assessments and all liabilities to the parties of the first part, or either of them, as executors or otherwise, and charges on said property.” The manner of dividing the balance is not disputed. It is subsequently provided that Allen should make no charge for time or services in making sales of any part of the Murray property, or for looking after and taking care of the same. It was, therefore, contemplated not only that Allen might make sales, but would be interested in the care and management of the property, which would not ordinarily be the case unless he was also interested in the rents or income depending largely upon the care and management. It is also to be noticed that the deductions to be made from the gross amount of receipts were, to a large extent, such as would ordinarily be first payable from the rents or income. It is hardly to be presumed that the parties intended that the estate should have credit for all the current expenses without accounting for the current income. The fact that the executors opened a joint account and entered therein as part of the joint fund the rents, is a significant circumstance on the question of the intention of the parties. If Allen was entitled to one-half of what the property sold for, no reason is apparent for excluding him from any interest in the income prior to the sale, or for giving him any different interest in the Murray property from that which he had in the land contracts. Taking all the provisions- of the contract together, in the light of the surrounding circumstances, we are of the opinion that the expression avails of any sales ” was intended to include all the proceeds of the property. The finding of the referee, that the rents were received on joint account under the agreement as part of the common fund, and to be accounted for as such, should not be disturbed. It is not claimed that the judgment in the j>artition suit is a bar. It was between different parties.

2. The defendant claims that the administrator of Mary B. Grant is a necessary party defendant, because she, in her individual capacity, had a debt against J. W. P. Allen before the transfer under which plaintiff claims, and that such a debt, although having no connection with the property, is, or might have been held to be, within the clause of the agreement in question, which provides for the deduction of all taxes and assessments, and all liabilities to the parties of the first part, or either of them, as executors or otherwise, and charges on said property.” It was held by the referee that the liabilities there referred to included only liabilities arising out of the management of the joint estate, and did not include an individual debt to one of the executors arising out of an entirely distinct and independent transaction. This construction seems to be quite reasonable. It may well be said that the liabilities designed to be included were only those that were charges on said property.” Besides, the deductions there specified were to be made from the gross receipts before division. So that if the construction suggested by the defendant is correct, the individual debt of Allen would be paid from the gross fund, thus making the Grant estate pay one-half of Allen’s individual debt. This would seem fatal to the defendant’s theory of construction.

It is not alleged or proved that the administrator of Mary B. Grant makes any claim on this fund or under the agreement. There would, therefore, be no basis for an interpleader. (Crane v. McDonald, 118 N. Y. 654.) The parties of the first part in the agreement were the executors as such. It is so alleged in the complaint and admitted by the answer. If, by virtue of some provision of the agreement, some one of the executors was to be individually benefited, it would be the case of a contract made in the name of one for the benefit of another. By section 449 of the Code, an executor or administrator, or a trustee of an express trust, may sue without joining with him the person for whose benefit the action is prosecuted. In Mead v. Mitchell (5 Abb. Pr. 106) it is said of the case of a trustee of an express trust, that “ if he can sue, it follows that he may be sued, and that the cestui que trusts are before the court by representation.”

The subject-matter of the agreement was the estate of A. P. Grant, and the property it held for the benefit of Allen. The right of action of Allen, or of his successor in interest for an accounting, was only against the executors as such. There is no controversy with the administrator of Mary B. Grant, as he makes no claim. In the absence of any such claim by him, I fail to see how he can be said to be a necessary party.

It follows that no error is apparent, and that the judgment should be affirmed.

Hardin, P. J., and Martin, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Merwin, J.:

license: Public Domain

text:
    Samuel W. Davis et al., Appellants, v. Seth Howard et al., Respondents.

      Fraudulent transfer from father to son — effect of a failure to record the deed — ■ payment of an outlawed debt — when a trust is simply evidence of intent — assignment for benefit of creditors —requests to find.

    In an action brought to set aside a transfer of property from a father to his son, and also a general assignment for the benefit of creditors, as fraudulent and made with the intent to defraud creditors, a failure to record the deed from the father to his son is a circumstance to be considered on the question of intent, but is not conclusive, and the fact that the debt of the father to his son, in payment of which such conveyance was given, standing alone, might, to some extent, be barred by the Statute of Limitations, does not make its payment fraudulent.
    A father, being impaired in health from age and sickness and liable to attacks of illness, during which he was unable to transact business, conveyed lands to his son, in trust, to enable his son, if possible, to negotiate a loan by giving a mortgage on the property, which the son agreed to endeavor to do, and out of the moneys so obtained to pay a mortgage of $1,600, which was then upon other . lands, conveyed absolutely to the son, by such deed, and which, as between the father and son, the father was bound to pay, and the balance of such moneys so to be loaned, the son promised to pay over to his father, or to apply them upon his father’s debts as the father should direct, and that if he was unable to procure such loan, he would reconvey the premises to his father, and if he did procure it, would reconvey them subject to the mortgage, and that until such reconveyance he would manage the premises gratuitously for his father. Thereafter the son, being unable to obtain the loan, reconveyed the premises to his father.

      Held, that the trust was to be considered as evidence simply on the issue of intent, and that it could not, under the circumstances, be said as a matter of law that the trust, if improper, made the whole deed void.
    An assignment for the benefit of creditors, made for the purpose of preventing parties who are bringing suits against the assignor from getting their pay in full upon judgment and execution, is not void.
    Where a request to find presents more than one proposition, a court is not bound to analyze it and pass upon the several parts separately.
    Appeal by tlie plaintiffs, Samuel W. Davis and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Madison on the 27th day of June, 1892, upon a decision of the court rendered at the Madison County Special Term, with notice of an intention to bring up f jr review on such appeal the separate judgments for costs in favor of the defendants.

      M. J. Shoeoraft and O. H. Dwvni/ng, for the appellants.

      John JS. Smith, Joseph Mason and A. N. Sheldon, for the respondents.
   Merwin, J.:

This is an action in the nature of a creditor’s bill, brought by the plaintiffs as judgment creditors of the defendant Seth Howard, to set aside as fraudulent against creditors a conveyance of real estate from Seth Howard and wife to the defendant Edwin A. Howard, dated November 28, 1887; also a bill of sale of personal property from Seth Howard to Edwin A. Howard, dated November 28, 1887; also a general assignment for the benefit of creditors from Seth Howard to the defendant Franklin I. Howard, dated December 4, 1888. It was alleged in the complaint that each of these transfers 'was made with intent to defraud creditors. It was found at Special Term that there was not any such’ intent.

The deed of November 28, 1887, included the home farm, so called, of 110 acres and two swamp lots, and five acres from a lot known as the Lily lot, and also included about 200 acres of other lands, being substantially all the real estate Seth Howard then held. This latter part, however, was reconveyed by Edwin A. to Seth on November 1, 1888, and passed to the assignee. That left in the hands of Edwin the home farm and accompanying small lots and the personal property, which the plaintiffs by this action seek to reach. Their judgments were recovered.after the assignment.

Edwin A. was the only son of Seth, and prior to 1872 he had been in his father’s employ for several years, and his father then owed him for services and jxroperty purchased about the sum of $1,800, and he was contemplating moving with his family to a western State. This his father and mother did not want him to do. His father was then abundantly solvent, and owned several farms besides the home farm. Thereupon, as the evidence tends to show, and as the Special Term in substance finds, it was verbally agreed between them that if Edwin would give up his arrangements to move west, and would remain at home and go onto the home farm and live in the house thereon, and with his wife would assist the father in carrying on all the farms as long as he should desire, or should need their services, performing such services as they could in and about the management of the farms and boarding the help, he, the father, in consideration of such services and of the indebtedness then existing to the son, would convey to the son free from incumbrances the said home farm and accompanying small lots and sufficient stock, tools and other personal property to properly carry it on; that in pursuance of this arrangement Edwin gave up his western plans, moved with his family into the house on the home farm, and he and his wife performed the services as required by the agreement from the spring of 1872 to the fall of 1887, and in all things upon their part performed the agreement; that said Seth, up to the fall of 1887, received the avails of all the farms except what was furnished for the support of Edwin and his family; that the deed in question, so far as it covers the said real estate and the bill of sale, were given and received in performance of said verbal agreement. It is also found that such, services and indebtedness were full consideration for the property so transferred. There is evidence that tends to sustain this conclusion.

The deed was not recorded until December 4,1888. It, however, appears that the fact of the conveyance was not concealed by Edwin, but was known to many persons; that he left it with the attorney who drew it, and directed him to place it on record, but through his neglect it was not done. He was all the time in the occupancy of the property, and Seth, from the time of the deed, ceased to receive the proceeds or control the management. The failure to record the deed was a circumstance to be considered on the question of intent, but was not conclusive.

The fact that the debt to Edwin standing alone might to some extent be barred by the Statute of Limitations, does not make its payment fraudulent. (Livermore v. Northrup, 44 N. Y. 107; Sale v. Stewart, 7 Hun, 591.)

It has been held in cases somewhat similar to this that the owner of real estate could be compelled to specifically perform a parol agreement which had been fully performed by the other party. In Kenyon v. Youlen (53 Hun, 591), decided by this court, a parol agreement between the owner of a house and lot and the defendant and another party, by which the owner, in consideration that the defendant and her associate would move onto the premises and take care of the owner during the remainder of her life, agreed to convey or devise to them the premises, was held to be enforcible, the same having been fully performed by the defendant and her associate. A similar doctrine was held in Dill v. Harbeck (17 N. Y. St. Repr. 607). If Edwin was equitably entitled to the property, the creditors of the father have lost nothing by the transfer. If the services and prior indebtedness were substantially the equivalent of the property transferred, and there was no intent to defraud, the creditors have no good ground for complaint.

The plaintiffs further claim that the deed of November 28, 1887, was wholly void as against creditors upon the ground that, as to the balance of the real estate not covered by the agreement of 1872, it was made in trust for the grantor Seth Howard, and so within the provisions of section 1 of title 2, chapter 7, part 2 of the Revised Statutes (éR. S. [8th ed.] 2590). The facts upon which this claim is based are those alleged in the defendants’ answer. It is there stated that the health of Seth Howard was at the time of the deed impaired from age and sickness, and he was liable to attacks of sickness, during which he would be unable to transact business; that the lands, other than those covered by the agreement of 1872, were conveyed to Edwin in trust to enable him, if he could, to negotiate a loan on mortgage of the property, and which he agreed to endeavor to do, and out of the moneys so obtained, pay a mortgage of $1,600 which was then upon the lands covered by the agreement of 1872, and which, as between said Seth and Edwin, said Seth was bound to pay, and the balance of the moneys so to be loaned he would pay over to Seth or apply them upon the debts of Seth as he should direct; that if he could not procure such loan he would reconvey the premises to Seth; and if he did obtain the loan would reconvey subject to the loan mortgage, and until such reconveyance he would manage the premises gratuitously for said Seth;. that Edwin was unable to make the loan referred to and reconveyed the premises to said Seth. This reconveyance was on November 1, 1888. The claim of the appellant is that the deed as to the property in trust was void, and that the deed being void as to part of the property, was void as to the whole.

Taking tlie trust as alleged, it was for the purpose of raising money to pay the debts of Seth. The latter had a right to raise money, if he could, by mortgage for that purpose. It has been held that if a voluntary grantee of an insolvent grantor, in pursuance of a verbal understanding at the time of the deed, give a mortgage to secure the payment of specific debts of the grantor, the mortgage is good. (Royer Wheel Co. v. Fielding, 101 N. Y. 504.)

In Russell v. Winne (37 N. Y. 591), which is relied on by appellants’ counsel for the proposition that the deed, if void as to part of the property, was void as to the whole, a chattel mortgage had been given to secure one debt, and the dealings of the parties as to one class of chattels covered by the mortgage were of such a character as to indicate an intent as to those to hinder and delay creditors, and it was held that a fraudulent intent as to a part of the instrument vitiates the whole. The court, however, page 596, recognizes the existence of a class of eases where it has been held that a part of an instrument, of itself valid, and not depending upon other parts which are invalid, may be enforced. In the present case that part of the deed complained of had no necessary connection with the rest; the transactions were distinct and independent of each other. The trust, if any, was abandoned and the property restored before the general assignment and before the plaintiffs obtained their judgments.

In the complaint no issue is presented or allegation made as to any trust. The issue there tendered is upon the intent in making the several instruments. That question is by statute a question of fact and not of law. (§ 4, title 3, chap. 7, part 2 of Revised Statutes; 4 R. S. [8th ed.] 2593.) Whatever, therefore, there is in the case on the subject of a trust is to be considered as evidence simply on the issue of intent. It should not, under the circumstances of this ease, be said as matter of law that the trust, if improper, made the whole deed void.

There are in the case some circumstances which, taken by themselves, are of somewhat doubtful character. Taking, however, the evidence as a 'whole, and in view of the better opportunity which the trial court had for determining the proper weight to be given to much of the evidence, we are not prepared to say that the conclusion of the trial court upon the issues presented is not sustained by the evidence.

As to the general assignment, the appellants claim that upon the undisputed evidence it was made for the purpose of preventing parties, who were then bringing suits against the assignor, from getting their pay in full upon judgment and execution, and that, therefore, it was made with the intent to hinder and delay creditors, and, therefore, void. Admitting the premise, the conclusion does not follow. The assignor had a right to make an assignment, and that would necessarily operate to prevent parties from enforcing judgments subsequently obtained. It has been held, in numerous cases, that threats by an insolvent to make a preferential assignment did not charge him with an intent to defraud his creditors. [Farwell v. Furniss, 67 How. Pr. 188, and cases cited; Stamp v. Herpich, 8 N. Y. St. Repr. 446 ; Evans v. Warner, 21 Hun, 574.) The cases in regard to threats by a solvent debtor do not apply. Here the assignor was insolvent and the assignment was without preferences. The conclusion of the Special Term, that it was not made to defraud creditors, is sustained by the evidence and should not be disturbed.

Our attention is called to the action of the court upon numerous requests of the plaintiffs for findings. The remark of the court, in Davis v. Leopold (87 N. Y. 620), would seem to apply that where a request to find presents more than one proposition, the court is not bound to analyze it and pass upon the several parts separately. We find no material error in the refusal to find. The main question was one of fact and that was fully met. No sufficient reason is apparent for disturbing the result. It follows that the judgment should be affirmed.

Hardin, P. J., and Martin, J., concurred.

Judgment affirmed, with costs.


author: Mbewin, J.:

text:
    Jacob Crouse and Others, Appellants, v. Dorothea Edgarita Wilson, by Guardian ad litem et al., Impleaded with Others, Respondents.

      Action to determine the heirs of a testator — when it is not maintainable inequity.

    An action brought, prior to the accounting in the Surrogate’s Court of the executors named in a decedent’s will, to obtain an adjudication that certain of the defendants, who claimed respectively to be the widow and child of the testator and as such to be exclusively entitled to the benefit of a legacy contained in the will, were not such widow and child, is not maintainable in equity.
    Appeal by the plaintiffs, Jacob Crouse and others, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 26th day of July, 1893, upon á decision of the court after a trial by the court at the Onondaga Special Term, sustaining the demurrer of the defendants to the complaint, and for costs.
    In the complaint it is alleged that on the 21st of November, 1892, Daniel E. Crouse of Syracuse, N. Y., died, leaving a last will and testament relating to both real and personal property; that he left him surviving no wife or child, and that the plaintiffs are heirs at law and next of kin of the testator; that said will was duly admitted to probate by the surrogate of Onondaga county on February 1, 1893, and letters testamentary were duly issued to the defendants Graves and Nottingham, named in said will as executors, and they have duly qualified and are now such executors; that said testator owed no debts of any considerable amount; that he owned real estate worth at least the sum of $250,000, and he owned personal property which passed under the will into the hands of the executors of the value of at least $3,500,000 ; that by the provisions of the will he gave and devised to different persons named therein certain specific legacies, amounting in the aggregate to $530,000; that then in the will there came the following provisions, the construction of which is sought in the action :
    lC 13. All the rest, residue and remainder of my estate, both real, personal and mixed, and wheresoever situate, I hereby direct my executors, hereinafter named, to pay over and distribute among my heirs and next of kin, in the same proportion that is provided by the laws of the State of New York in cases of intestates.
    “ 14. I hereby authorize and empower my executors, hereinafter named, to sell, convey and lease until sold, all real estate owned by me at the time of my decease, for such price and upon such terms as they shall see fit.

      “ 15. I hereby nominate, constitute and appoint said Maurice A. Graves and Jacob A. Nottingham to be the executors of this my last will and testament.”
    It is further alleged that, by the terms of the will and as provided therein, the remainder of the personal estate, after the payment of the specific legacies, passed to the said executors, and that they now hold the same as trustees and in trust for the plaintiffs, the heirs and next of kin of the deceased, and that each of the plaintiffs is an heir at law and next of kin of the deceased, and the persons referred to in the thirteenth clause, and each entitled to a share in the residue of the personal estate; that the said Daniel E. Crouse was never married, and no child was ever born to him in lawful wedlock ; that the defendant Kosterlitz claims that she was the wife of said Crouse and is now his widow and as such has an interest in the personal estate; that the defendant Wilson is a minor, and on her behalf it is claimed that she is a child of the marriage of said Crouse with said Kosterlitz, and that she is the only and the sole heir of said deceased and entitled under thé residuary clause to the whole of the remainder of the estate, and that the plaintiffs have no right therein, and that the executors hold the same in trust for her and the said Kosterlitz. It is alleged that by reason of the claims of Kosterlitz and Wilson, it is impossible to determine, except by a judgment of this court, who are the beneficiaries included in the term “ heirs and next of kin ; ” that said Kosterlitz and Wilson did not intervene and become parties to the special proceedings before the surrogate and presented no claim to said personal estate, and still they now claim as widow and next of kin to be entitled to the whole; that in order that the trust devolving on the executors may be properly executed, it is necessary to settle and determine whether the plaintiffs are the heirs and next of kin, or the defendants Kosterlitz and Wilson.

      Judgment is demanded “ for the construction of said 13th clause of said will, and adjudging who are entitled to take the residue of said estate under the 13th clause in said will, as the surviving heir or heirs and next of kin of the said deceased, Daniel E. Crouse, and that it be also adjudged and determined that the said plaintiffs are the legal heirs and next of kin of the said Daniel E. Crouse, and as such are entitled to take each respectively his proper proportion and share of the residuum of said personal estate under said thirteenth clause of said will.

      “ And that it be further adjudged and determined that said Eula Henrietta Kosterlitz was not the wife and is not now the widow of the said Daniel E. Crouse, and that she is not entitled to take any part of said personal estate; and that the defendant called Dorothea Edgarita Wilson, is not the child of the said Daniel E. Crouse and the said Eula Henrietta Kosterlitz, born in lawful wedlock, and is not an heir of or next of kin to said Daniel E. Crouse, and that she has no right, title or interest in said personal estate, or any part thereof.

      “ And for such other and further relief as to the court may seem just.”
    The defendants Kosterlitz and Wilson separately demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action.

      Kennedy, Tracy, Mills and Ayli/ng, for the appellants.
    Steele, De Friese da Diclcson, for respondent Kosterlitz.

      W. S. Andrews, for respondent Wilson.
   Mbewin, J.:

The main argument of the learned counsel for the plaintiffs seems to be based on the theory that the action is for the construction of a will. The character of the will does not sustain this theory. There is no doubt about the intention of the testator. The residue is given to his “ heirs and next of kin, in the same proportion that is provided by the laws of the State of New York in cases of intestates.” No construction is needed to carry out this provision. The statute regulates the subject. It is not claimed that the action is for an accounting. The complaint is not on that basis. From the record before us it appears that the action was commenced February 2, 1893, which was the day after the proof of the will. In some cases it has been held that a court of equity may in its discretion entertain an action against executors for an accounting. The plaintiffs are not in a position to get the benefit of such cases. There is no allegation that the estate is in danger or that the executors desire any instructions from the court.

It is very evident that the object of the action is to obtain beforehand a determination that the defendants, who claim to be the widow and heir of the testator, are not such widow and heir. Will an action in equity lie for such purpose? No precedent is cited that sustains the action. On the contrary, there are many cases looking the other way.

In Garlock v. Vandevort (128 N. Y. 374) it was said that an uncertainty as to whether a certain party was within a class to whom a bequest was made, did not constitute any ground for invoking the equity jurisdiction of the Supreme Court. In Hobart College v. Fitzhugh (27 N. Y. 130) a legacy was payable at a certain time on the performance of certain conditions, and it was said that an action would not lie in advance of the time of payment, to determine whether the conditions had been properly performed. In 1 Perry on Trusts (§ 17) it is said that a bill in equity cannot be maintained simply to establish the fact of a trust, no other relief being sought, even where its existence is denied. Upon the distribution of the estate in the Surrogate’s Court, that court has full power to determine to whom the legacies or distributive shares are payable. (Riggs v. Cragg, 89 N. Y. 479; In the Matter of Verplanck, 91 id. 439.)

The questions involved in this case, and the authorities on the subject, are fully and very satisfactorily discussed in the opinion of Mr. Justice Yann, delivered at Special Term, and it is not necessary to refer to them here further. We see no good reason for disturbing his conclusion in the matter. The judgment should be affirmed.

Hardin, P. J., and Martin, J., concurred.

Interlocutory judgment affirmed, with costs.


text:
    The Elmira Savings Bank, Plaintiff, v. Charles Davis, as Receiver, etc., Defendant.

      National banks — subject to State legislation — section 130 of chapter 689 of the Laws of 1892 — applies to National banks.

    National banks are subject to State legislation and are governed thereby, except where such legislation is in conflict with the act of Congress, or where it tends to impair or destroy the utility of said banks as agents of the United States, or interferes with the purposes of their creation; and it is only when the State law incapacitates them from discharging their duties to the government that it becomes unconstitutional.
    Section 130 of chapter 689 of the Laws of 1892 applies to National as well as to State banks, and is not in conflict with the provisions of the United States statutes, which provide for a pro rata distribution of the assets of an insolvent National bank, and prohibit it from making preferences.
    Submission of a controversy on an agreed statement of facts Tinder section 1279 of the Code of Civil Procedure.
    The question in difference is stated in the submission, as follows :
    ££ 'Whether the said the Elmira Savings Bank is entitled to recover judgment against the said Charles Davis, as receiver of the Elmira National Bank, for the sum of forty-two thousand seven hundred and four and sixty-seven-hundredths ($42,704.67) dollars, with interest thereon from May 23, 1893, as a preferred creditor of the said the Elmira National Bank, with costs, recoverable out of any funds which may come into his hands as such receiver applicable thereto, and whether the said Charles Davis, as receiver of said National bank, shall, after the payment of its circulating notes, if it has any, has been provided for, apply all the property of the said National bank, in the first place, to the payment in full of any sum or sums of money deposited in said National bank by the said the Elrhira Savings Bank, as provided under section 130 of the Banking Law of the State of New York, being chapter 689 of the Laws of 1892, or whether the said the Elmira Savings Bank shall be considered as a general creditor of the said the Elmira National Bank, and entitled only to its jpro rata dividend of the assets of the said the Elmira National Bank.”
    The following is the statement of the facts:

      li 1. That at the times hereinafter mentioned, the said the Elmira Savings Bank was and still is a domestic savings bank corporation, organized and incorporated under and by virtue of the laws of the State of New York, having its banking office in the city of Elmira, Chemung county, New York.
    “ 2. That the said the Elmira National Bank is a bank organized under the sections of the Revised Statutes of the United States which authorize the organization of National banking associations, approved June 22, 1874, and of subsequent acts in addition to and amendatory thereto, having its banking office in said city of Elmira, and that the said the Elmira National Bank became insolvent, closed its doors and ceased to transact business upon the 23d day of May, 1893.
    “ 3. That the said Charles Davis heretofore and on the 24th day of May, 1893, was duly appointed receiver of the said the Elmira National Bank, insolvent, by the Comptroller of the Currency of the United States, duly authorized thereto, and on the 2d day of June, 1893, the said Charles Davis duly qualified and entered upon the discharge of the duties of his trust as such receiver, and said receivership is still pending undischarged, and the said Davis is in the possession of all the property of the said insolvent bank, as such receiver.
    “4. That upon the said 23d day of May, 1893, the said the Elmira Savings Bank had on deposit and to its credit in the said the Elmira National Bank, at the time when the same became insolvent, the sum of $42,704.67, the same having been deposited in said National bank in the usual course of business, and between the 1st day of November, 1890, and the 16th day of May, 1893, both inclusive, and the amount of said deposit did not and does not exceed the amount authorized to be so deposited by the said the Elmira Savings Bank in the said the Elmira National Bank by the provisions of chapter 689 of the Laws of 1892 of the State of New York.
    “ 6. That the payment of all the circulating notes of the said the Elmira National Bank, insolvent, has been provided for.
    “ 6. That the said Charles Davis, as such receiver as aforesaid, has in his possession property of said insolvent bank, consisting of money, exceeding the amount of $42,704.67, and interest thereon from May 23, 1893.

      “ 7. That the said the Elmira Savings Bank has duly and upon June 7th, 1893, demanded from the said Charles Davis, as such receiver as aforesaid, the payment of said sum of $42,704.67, and interest thereon from said May 23, 1893, and that the said deposit be recognized by said receiver as a preferred claim under section 130 of the State Banking Law of the State of New York, being-chapter 689 of the Laws of 1892, and that said demand has been refused.

      “ 8. That an actual controversy exists at the time of this submission between the said parties, upon the point hereby presented for decision.”
    The plaintiff demanded judgment for the amount of its claim and that it be decreed a preferred claim to be paid in full out of the assets, and for such other and further relief as to the court may seem proper, with costs.
    The defendant demanded judgment that the plaintiff be decreed to be a general creditor and entitled only to its pro rata share of the assets with the other creditors.

      Jlerencleen dc Mcmdevitle, for the plaintiff.

      WilMccm A. Beach, for the defendant.
   Merwin, J.:

By section 130 of the Banking Laws (Chap. 689, Laws of 1892) it is provided as follows :

§ 130. Debts due savings banks from insolvent banks preferred. All the property of any bank or trust company which shall become insolvent, shall, after providing for the payment of its circulating-notes, if it has any, be applied by the trustees, assignees or receiver thereof in the first place, to the payment in full of any sum or sums of money deposited therewith by any savings bank, but not to an amount exceeding that authorized to be so deposited by the provisions of this chapter, and subject to any other preference provided for in the charter of any such trust company.”

By section 118 of the same act it is provided that the trustees of every savings bank shall, as soon as practicable, invest the moneys deposited with them in the securities authorized by this article; but for the purpose of meeting current payments and expenses in excess of the receipts, there may be kept an available fund not exceeding ten per centum of the whole amount of deposits with such corporation, on hand or deposit in any bank in this State, organized under any law of this State or of the United States, or with any trust company incorporated by any law of the State; but the sum so deposited in any one bank or trust company shall not exceed twenty-five per centum of the paid-up capital and surplus of any such bank or company.”

Provisions to the same effect existed in chapter 409 of the Laws of 1882, which was in force up • to the passage of the act of 1892.

It is claimed on the part of the plaintiff, that section 130 applies to National banks as well as State banks, and was so intended by the Legislature. This proposition does not seem to be disputed by the defendant. By section 118, authority was given to make deposits “ in any bank in this State organized under any law of this State or of the United States.” Section 130 refers to the same subject-matter, and the design naturally would be to afford protection to all deposits authorized to be made. The expression used is any bank.” This is broad enough to cover National banks as named in the 118th section. The evident object and purpose of the provision would not be obtained unless it did cover them. Taking both sections together, that is, I think, the fair construction.

Assuming then that the provision in question applies to National banks, is there any reason why it should not be operative ?

The argument of the defendant’s counsel is based mainly on the propositions that the State has no authority to exercise in this respect any control over National banks, and that the State legislation is inconsistent with the National legislation on the subject, and, therefore, inoperative.

In Waite v. Dwley (94 U. S. 527) the question was whether the statute of a State was void as to National banks which required the cashier of each National bank within the State, and the cashiers of all other banks, to transmit to the clerks of the several towns in the State in which any stockholder of such bank resided, a list of the names of such stockholders, the number of shares held by each, and the amount actually paid in on each share. It was held that the law was valid although Congress had legislated upon the subject, in that it had required of each National bank that a list of its stockholders shall be kept posted up in some place in their business office. In the opinion of the court, at page 533, it is said: “We have more than once held in this court that the National banks organized under the acts of Congress are subject to State legislation, except where such legislation is in conflict with some act of Congress, or where it tends to impair or destroy the utility of such banks as agents or instrumentalities of the United States, or interferes wjth the purposes of their creation. . This doctrine was clearly and distinctly announced in National Bank v. Commonwealth (9 Wall. 353), and that case has often been referred to since, with approval in this court.”

In the case in 9 Wallace it was held that a State law requiring the National banks to pay the tax which is rightfully levied on the shares of its stock is valid. It is there said (p. 362) “that the agencies of the Federal government are only exempted from State legislation so far as that legislation may interfere with or impair their efficiency in performing the functions by which they are designed to serve that government. Any other rule would convert a principle founded alone in the necessity of securing to the government of the United States the means of exercising its legitimate powers into an unauthorized and unjustifiable invasion of the rights of the States. * * * So of the banks. They are subject to the laws of the State, and are governed in their daily course of business far more by the laws of the State than of the Nation. All their contracts are governed and construed by State laws. Their acquisition and transfer of property, their right to collect their debts, and their liability to be sued for debts, are all based on State law. It is only when the State law incapacitates the banks from discharging their duties to the government that it becomes unconstitutional.” This doctrine is reiterated in W. U. Tel. Co. v. Mass. (125 U. S. 551).

Applying these principles to. the present case, it is difficult to see how the State act interferes with the utility of the National bank as an agent or instrumentality of the general government. No possessory right is given until after the bank, by reason of its insolvency, has ceased to be of any utility as an agent or instrumentality of the government, and after its circulating notes are provided for. The logic of the case in 9 Wallace will uphold the law in question here unless it is in conflict with some provision of the United States statute on the subject.

Upon this line it is argued that the State act is in conflict with those provisions of the National act which provide for a pro rata distribution of the assets and prohibit preferences. Those provisions a3# sections 5236 and 5242 of the United States Revised Statutes, and are as follows:

“ § 5236. From time to time, after full provision has been first made for refunding to the United States any deficiency in redeeming the notes of such association, the Comptroller shall make a ratable dividend of the money so paid over to him by such receiver on all such claims as may have been proved to his satisfaction or adjudicated in a court of competent jurisdiction, and, as the proceeds of the assets of such association are paid over to him, shall make further dividends on all claims previously proved or adjudicated; and the remainder of the proceeds, if any, shall be paid over to the shareholders of such association, or their legal representatives, in proportion to the stock by them respectively held.

“ § 5242. All transfers of the notes, bonds, bills of exchange or other evidences of debt owing to any National banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgments or decrees in its favor; all deposits of money, bullion or other valuable thing for its use, or for the use of any of its shareholders or creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void, and no attachment, injunction or execution shall be issued against such association or its property before final judgment in any suit, action or proceeding in any State, county or municipal court.”

In Scott v. Armstrong (146 U. S. 499) the ordinary doctrine of equitable set-off in case of insolvency was applied against the receiver of an insolvent National bank. It was there argued that the sections above quoted forbid it, because they required that after the redemption of the circulating notes had been provided for the assets should be ratably distributed among the creditors, and that no preferences given or suffered, in contemplation of or after committing the act of bankruptcy, should stand, and it was insisted that the assets of the bank existing at the time of the insolvency included all its property, without regard to any existing liens or set-offs. To this the court say :

“We do not regard this position as tenable. Undoubtedly any disposition by a National bank, being insolvent or in contemplation of insolvency, of its choses in action, securities or other assets, made to prevent their application to the payment of its circulating notes, or to prefer one creditor to another, is forbidden; but liens, equities or rights arising by express agreement,- or implied from the nature of the dealings between the parties, or by operation of law, prior to insolvency and not in contemplation thereof, are not invalidated. The provisions of the act are not directed against all liens, securities, pledges or equities, whereby one creditor may obtain a greater payment than another, but against those given or arising after or in contemplation of insolvency. Where a set-off is otherwise valid, it is not perceived how its allowance can be considered a preference, and it is clear that it is only the balance, if any, after the set-off is deducted, which can justly be held to form part of the assets of the insolvent. The requirement as to ratable dividends is to make them from what belongs to the bank, and that which at the time of the insolvency belongs of right to the debtor does not belong to the bank.”

In Casey, Receiver, v. La Societé de Credit Mobillier (2 Woods, 77) it was held that the preference of one creditor by a National bank, mentioned in section 5242 of the Revised Statutes, is a preference given to the creditor to secure or pay a pre-existing debt; that when a National bank receives a loan on condition that the lender shall be secured therefor, and security is accordingly given by pledging a part of the assets of the bank, this is not a preference within the meaning of section 5242', although the bank is then in an embarrassed state; that the fact that the assets pledged were changed from time to time as they fell due, and others substituted in their stead, according to the contract between the bank and the pledgee did not make the pledge of the substituted assets void; that the title of the receiver is the same as that of an assignee in bankruptcy, and is subject to all equities.

In Clark v. Iselin (21 Wall. 360) it was held that the giving by a debtor of a confession of judgment, for a consideration of equal value passing at the time, is not an act of bankruptcy, though such confession be not entered of record, but kept in the creditor’s custody, and its existence unknown to others. In the opinion it is said that the question whether a transfer of securities is a preference depends on whether it was a transfer of property for a present sufficient consideration, or was a transfer to satisfy or secure an antecedent debt or liability; that the fact that years before the entry of the judgment the debtor contemplated the possibility that a judgment might be obtained, and by the confession of judgment put it in the power of the creditor to obtain one without his knowledge or subsequent assent, was wholly impertinent to the inquiry whether the debtor intended an unlawful preference at the time of the entry of the judgment, and that the intention at that date was the material question. In Matter of Craft (2 Benedict, 221) it is said by Judge Blatchkord that the words, “in contemplation of bankruptcy,” as used in the act of 1867, mean, in contemplation of committing what was made by the act an act of bankruptcy, or of voluntarily applying to be decreed a bankrupt.

In the present case it must be presumed that the National bank, when from time to time it received the deposits from the savings bank, knew of the law which authorized such deposit and provided for the preference. The savings bank was not bound to deposit in that particular bank, nor was the latter bound to receive the deposit. But if the one made and the other received the deposit, it must be assumed that both parties then intended that the security provided for by the statute should at the proper time be operative. There was then in effect a contract that if the deposit or loan was made the security should be given. This was a part of the transaction in each case of deposit. It was not a case of a security for a prior indebtedness, but it was a case where on each occasion a consideration passed of equal value with the security or right given. In this view and within the rulings in the cases above referred to, there was not a preference in violation of the provisions of section 5242.

By virtue of the State act and the conduct of the parties, the savings bank had at least an equitable lien, which is effective within the principles laid down in Scott v. Armstrong, and is not antagorustic to the pro rata distribution provided for in section 5236. The receiver took subject to any valid liens or equities. The bank that he represents received the deposits subject to the condition imposed by the State statute, and whether it be said that a trust was impressed or a lien imposed, the statute bound the bank and its assets when they passed to the receiver and interfered with no rights of the government. The principles laid down in the Scott case are quite applicable and justify the claim of plaintiff to a preference. The right of the plaintiff to a preference was preserved within the principles laid down in that case, and was not, therefore, in conflict with the National law.

The foregoing considerations lead to the conclusion that the plaintiff is entitled to judgment against the defendant for the amount claimed, and that the same .be decreed a preferred claim, to be paid in full out of the assets which have or may come into the hands of the said receiver, and be paid by said receiver or by him certified to the Comptroller to be paid as a preferred claim in due course of administration.

Hardin, P. J., and Martin, J., concurred.

Judgment for the plaintiff as stated in the opinion, with costs.


author: Mekwin, J.: Hardin, P. J.:

text:
    Frederick H. Cyrenius, as Administrator of Alvin Cyrenius, Deceased, Respondent, v. The Mutual Life Insurance Company of New York, Appellant.

      Ownership of a policy of life insurance — when the application therefor is evidence of ownership thereof — payment of premiums thereon — effect of a delivery thereof— setting aside of a verdict.

    An application for a policy of insurance may be properly referred to, in order to determine a question as to the ownership of the policy, where such application states that it is the basis and a part of the contract, and it is referred to in the policy as rurnishing in part the consideration therefor.
    Where a policy of insurance was taken out by a son on the life of his father, the fact that the father furnished the money for the first premium, and the greater part of the other premiums, is entirely consistent with the idea that the son is the beneficiary under the policy, and the delivery thereof by the son to his father, in the absence of any evidence showing an intent to transfer his title thereto, is not sufficient to show that he parted with his rights therein.

      The evidence considered and commented upon which is sufficient to justify the reversal of the finding of a jury, that the plaintiffs intestate, and not a third person, was the owner of and beneficiary under a policy of life insurance.
    Appeal by tlie defendant, tlie Mutual Life Insurance Company of New York, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in tbe office of tbe clerk of tbe county of Oswego on tlie 24th day of October, 1892, upon the verdict of a jury rendered at the Oswego County Circuit, and also from an order entered in said clerk’s office on the 7th day of January, 1890, denying the defendant’s motion to set aside the verdict and for a new trial made upon the minutes.
    The action was brought on a policy of insurance. In the complaint it is alleged that on the 18th of June, 1873, the defendant duly issued and delivered to Alvin Cyrenius its policy of insurance, whereby, in consideration of $198.87, to the defendant then paid by George A. Cyrenius, son of Alvin, and of the payment of a like amount annually thereafter, the defendant did insure the life of Alvin Cyrenius in the amount of $3,000 for the term of his natural life, and agreed to pay the same to the assured, his executors, administrators or assigns in sixty days after due notice and proof of death; that the annual premiums were duly paid less the dividends due under the policy, and the policy was in full force to the 18th of June, 1877; that on the 6th of June, 1877, Alvin Cyrenius died, and thereafter, on the 19th of June, 1877, Lucy W. Cyrenius was duly appointed administratrix of the deceased, and proofs of death were duly forwarded to the defendant.
    The answer denies the delivery of the policy to Alvin Cyrenius, or that the premium due on the 18th of June, 1876, was paid, or that the policy was continued in force to June 18, 1877, or that anything was due thereon. It alleges that the premium due June 18, 1876, was not paid, and that the policy thereupon became void; that the policy was issued and delivered to George A. Cyrenius and for his benefit, and he became and was the owner thereof, and that the plaintiff or Alvin Cyrenius never had any interest therein j that on the 10th of August, 1874, George A. transferred his interest in the policy to Frederick H. Cyrenius, and the same is now owned by him and not by the plaintiff.
    The plaintiff in the action as originally commenced on December 6, 1877, was Lucy ~W. Cyrenius, as administratrix, etc., of Alvin Cyrenius, deceased. She has since died, and Frederick H. Cyrenius was appointed administrator in her place and substituted as plaintiff.

      WilUmn II. ¡Shepard, for the appellant.

      W. A. Poucher and Willimn Tiffcmy, for the respondent.
   Mekwin, J.:

The main questions litigated at the trial were (1) whether the cause of action, if any, belonged to the estate of Alvin Cyrenius, and (2) whether there was a valid extension of time for the payment of the premium that became due on the 18th of June, 1876.

The court left it to the jury to say, first, whether or not the policy was received by Alvin in his lifetime as a policy insuring himself for the benefit of himself and of his estate, and was so held by the parties up to the time of his death, and, second, whether in 1876, before June eighteenth, George Cyrenius paid fifty dollars upon an agreement that that should be received as part of the premium, and that he should have túne, a month or more, for the payment of the balance, and thereafter, in accordance with the agreement, did pay the balance. The court charged that if both these propositions were found in favor of plaintiff he could recover, otherwise not. So we must assume that the jury found both of these questions in favor of plaintiff.

The appellant claims that upon the uncontradicted evidence the plaintiff, as administrator, has no interest in the policy, and that the question of ownership should not have been submitted to the jury.

The policy is dated June 18, 1873, and by its terms it is provided as follows:

“The Mutual Life Insurance Company of New York, in consideration of the representations made to them in the application for this policy, and of the sum of one hundred and ninety-eight dollars and eighty-seven cents, to them duly paid by George A. Cyrenius, son of Alvin Cyrenius, and of the annual payment of a like amount oii or before the 18th day of June in every year during the continuance of this policy,
“ Do insure the life of the said Alvin Cyrenius of Scriba, in the county of Oswego, State of New York, in the amount of three thousand dollars for the term of his natural life. And the said company do hereby promise and agree to pay the amount of the said insurance at their office in the city of New York, to the said assured, his executors, administrators or assigns, in sixty days after due notice and proof of the death of the said person whose life is hereby insured, the balance of the year’s premium, if any, being first deducted therefrom.
“ This policy is issued and accepted by the assured upon the following express conditions and agreements: 1st. * * * or if any of the statements or declarations made in the application for this policy, upon the faith of which this policy is issued, shall be found in any respect untrue, then and in every such case this policy shall be null and void.”

■The application for the insurance bears date June 14, 18Y3. It is signed by George Arthur Cyrenius and by Alvin Cyrenius, the signature of the former being opposite the expression signatures of the applicants or the persons for whose benefit the assurance is applied for,” and the signature of the latter being opposite the expression signature of the person whose life is proposed for asssurance.” Upon the face of the application it is stated that the particulars therein called for are mutually agreed to form a part of the contract with the company; that the person for whose benefit the assurance is to be effected is George Arthur Cyrenius; and it is declared “ by George Cyrenius, the applicant above named, and also by the person whose life is proposed for assurance,” that the answers made to the questions are correct; that the abo.ve-named applicant has an interest in the life of the said person whose life is proposed for insurance to the full extent of the amount of insurance above applied for.” And it is therein “ expressly stipulated and agreed that the above application and this declaration shall form the basis of the contract between the above-named persons and the said the Mutual Life Insurance Company of New York.”

It is to be observed that in the policy the amount is payable to the said assured, his executors, administrators or assigns.” The question is, does the term “ assured ” refer to George A. Cyrenius, who is recited to have paid the consideration, or to Alvin Cyrenius, whose life was the subject of the insurance ? In determining this question the application may properly be referred to. That was executed by both Alvin and George A., and on its face stated that it was the basis and a part of the contract. It is referred to in the policy as-furnishing in part the consideration. The policy is stated to be-issued upon the faith of the statements and declarations made in the application. Both are part of one transaction, and are to be read together in determining its character and effect.

Reading the policy and application together, it appears that George A. Cyrenius was the applicant for the insurance, and was the person for whose benefit it was to be effected. The policy recites that the money consideration is received from him, and in the complaint it is alleged that he paid it. Such being the case, according to the doctrine laid down in Smith v. Ætna Life Insurance Co. (5 Lans. 545), the assured would be deemed to be George A. Cyrenius. A similar view is taken in Conn. Mut. Life Ins. Co. v. Luchs (108 U. S. 498).

But it is suggested that the policy was received by Alvin Cyrenius as a policy insuring himself for his own benefit, and so held up to his death, and the jury have so found. The business in regard to the policy with the agent of the company at Oswego ivas transacted by George A. The policy, -when issued, was delivered by the agent to George A. The latter testifies that when he received the policy he delivered it to his father ; that his father furnished the money for the payment of the first premium, and the larger portion of the subsequent premiums that were paid in 1874, 1875 and 1876. He does not, however, testify that there was any arrangement by which the name of the beneficiary should be changed, or by which the-policy should be transferred to the father. On the contrary, George, A., on the 18th of June, 1874, signed an order to the defendant to apply the dividend on the premium due at that date, which was an act for the owner of the policy to do, and the dividend was so. applied. On the 10th of August, 1874, he assigned the policy with warranty of title to his brother, Frederick H. Cyrenius, and of this assignment the company was notified. On the 18th of June, 1875,. Frederick H. gave an order to the defendant to apply the dividend on the premium due at that date, and it was so applied.

The case of Bickerton v. Jaques (28 Hun, 119) does not apply,, as there has been here no attempt to change the beneficiary. As to: tliat case it may be said that the same court, in Ferdon v. Canfield (39 Hun, 575), after referring to the Biclterton case, say in substance that the better rule is that the assured, that is, the persons to whom payments under the policy were to be made, are entitled to the benefit of the insurance as a vested right secured by the policy.

The fact that the father furnished the money for the first premium and the greater part of the other premiums is entirely consistent with the idea that George A. was the beneficiary. The delivery of the policy by George to hie father, in the absence of any evidence showing an intent to transfer the title, is not sufficient to show that George A. parted with his rights. No assignment is alleged in the complaint.

There is, it seems to me, an entire failure on the part of the plaintiff to show that Alvin Cyrenius or liis estate is the owner of the policy, or of any right of action under it. The question was raised by the defendant on its motion for a nonsuit, and exception duly taken. The exception is, I think, a good one.

In this view of the case it is not important to consider the question as to the extension of time of payment of the premium due •June 18, 1876. The case shows that another action is pending for the same claim brought by Frederick H. Cyrenius individually as the assignee of George A. Cyrenius.

Martin, J., concurred.

Hardin, P. J.:

When this case was before us upon a former appeal there was a division in the court. A majority of the' court seemed to be of the opinion that Alvin Cyrenius was not the owner of the policy, and that his estate was not entitled to recover thereon. In the course of the opinion then delivered by me, it was suggested that the evidence given upon the trial was sufficient to warrant a finding that George A. had given the policy to his father, Alvin Cyrenius, and, therefore, the action could be maintained by the administrator of Alvin Cyrenius; and that view was stated, among others, for dissenting from the opinion of a majority of the court then delivered. The evidence in the case now before us does not seem to warrant the conclusion that George A. had transferred his title and interest in the policy to his father, and the judgment recovered by the plaintiff cannot be sustained on that aspect of the case. It seems that the conclusion reached in the foregoing opinion of Merwin, J., is in accordance with the views entertained by a majority of the court npon the former appeal upon the question discussed. Upon the reasoning given in the foregoing opinion, as well as upon the authorities cited therein, and because of the force of the decision made upon the former appeal by a majority of the court on that occasion, I deem it seemly that I should concur in the reversal of the judgment now before the court.

Judgment and order reversed upon the exceptions, and a new trial ordered, with costs to abide tbe event.


author: Mbrwin, J.:

text:
    Catharine Benjamin, Appellant, v. Luther Welch, Respondent.

      Request for the direction of a verdict — description of land — when monuments are to he disregarded — testator’s intent — location of premises, when a question of fact — when the enumeration of the quantity of land conveyed is superfluous.

    When, at the close of a trial, the plaintiff and the defendant each request the court to direct a verdict in his favor, and a verdict is directed in favor of one of the parties, the party against whom the verdict-is rendered not asking to go to the jury, it constitutes in effect an agreement that the court shall pass upon whatever disputed questions of fact there are in the case.
    The established rules with reference to the construction of descriptions contained in conveyances require courts to adopt such an interpretation thereof as shall give effect to the instrument according to the intention of the parties, if that is discovex-able from legitimate sources of information. In giving effect to such intention, it is also their dut}' to reject false or mistaken particulars, provided there he enough of the description remaining to enable the court to locate the land intended to he conveyed.
    When it appears from the designation of quantity, or other elements of description, that the courses and distances from a fixed and determined line were intended to control monuments, then the latter should he disregarded.
    The intention of the parties, as evidenced by the deed, is in all cases to determine the location of the premises.
    The question of a testator’s intent is to he derived from the will itself in the light of such surrounding circumstances as may he properly considered, and the court may reject words and limitations and supply or transpose them to get at the correct meaning.
    Whenever the location of premises is doubtful, through uncertain, inconsistent or conflicting terms of description in the deed, the proper location of the premises becomes a question of fact to be determined by the jury on all the evidence.
    The enumeration of the quantity of land conveyed, after a description thereof, is superfluous, immaterial and only matter of description.
    Appeal by the plaintiff, Catharine Benjamin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tioga on the 5th day of June, 1893, upon a verdict directed by the court at the Tioga Circuit, dismissing the plaintiff’s complaint upon the merits, and also from an order entered in said clerk’s office on the 5th day of June, 1893, denying the plaintiff’s motion for a new trial made upon the minutes.

      Ciarle <& TutMll, for the appellant.

      8.'Jay Ohart, for the respondent.
   Mbrwin, J.:

This is an action of ejectment. The plaintiff seeks to recover the possession of about eight acres of land in the town of Bichford, Tioga county, as devisee under the last will and testament of her father, Thomas Welch, déceased. The defendant also claims under the same will. At the close of the trial the defendant asked the court to direct a verdict in his favor, and the plaintiff asked the court to direct a verdict in her favor. The court denied the motion of the plaintiff and granted the motion of the defendant and directed a verdict in his favor, dismissing the plaintiff’s complaint. The plaintiff did not ask to go to the jury. So that in effect it was. agreed that the court should pass upon whatever disputed questions of fact there were in the case. (Dillon v. Cockcroft, 90 N. Y. 649.)

The controversy in this case relates to the boundaries of the devise to the plaintiff.

The will of Thomas Welch is dated January 8, 1873. In it are the following provisions:

“ After the payment of my debts & funeral expenses I give & bequeath to my wife, Nancy Welch, all my household furniture and all my personal property. I also give and devise to my said wife the use of sixty acres of land lying on the East side of the road, being the same that my son Luther now resides on, to be held during her life.
“ I also give to my said wife the use of twenty-four acres in the North East corner of one hundred and four acres on which I now reside, to be held by her during her life, said 24 acres bounded on the East by the road, on the South & West by a road running through said 104 acres.
“ At the decease of my said wife I give & devise to my daughter 'Sary Melia Welch the said mentioned sixty acres of land lying on the East side of-the road. And I direct that she pay to my daughter Catharine Benjamin one hundred and twenty dollars in two equal payments after my decease, which said $120 I give to my ■said daughter Catharine Benjamin. I also give & devise to my said daughter Catharine, at the decease of my said wife, the said twenty-four acres.
I give and devise to my son Luther Welch all the rest, residue and remainder of my real estate, subject to the payment to be made by him of the sum of seven hundred dollars, to pay the same on a mortgage now on my land of about that amount, & if not so much as that remains due on the mortgage to pay the residue to my Executors to be equally divided among my children.
“ I have heretofore given to my son Rufus what land I intended for him to have of my estate.
I will and direct that my daughter Sary Melia. have a home and support (so long as she chooses to remain with her mother), on & from the property herein given to her mother and herself.”

At the time of making the will, the testator had a wife, Nancy Welch, and four children, Luther, Catharine, Sarah Amelia and Rufus. All are named in the will. He owned two farms, upon one of which he then lived. This is called in the will 104 acres, but, as the evidence shows, it contained about 111 acres. The other farm, consisting of about sixty acres, was situated east or southeast of the’ homestead farm, and was on the opposite side of a highway called the Harford Mills road. On this sixty acres was a dwelling house, in which his son Luther then lived. After the will was made, and before his father’s death, Luther went to live with his father on the home farm. The father died some time prior to 1885, The widow, Nancy Welch, died December 20, 1885.

The home farm was in a compact body; the north and west lines were substantially straight and nearly at right angles. The eastern boundary was the highway called the Harford road, and its direction was nearly north and south. The southern boundary was a highway called the Harford Mills road. This intersected the Harford road at nearly right angles at the southeast corner of the farm, and then tending somewhat southerly it proceeded to the southwest corner of the farm. From this road, about eighteen rods westerly from the southeast corner of the farm, there proceeded across the farm a private road. This ran northwesterly some distance and then turned and ran about north to the north line of the farm. The amount of land inclosed within the two highways, the private road and the northern line of the farm is about thirty-two acres. The plaintiff, after her mother’s death, entered into and is now in possession of twenty-four acres, the northern part of the thirty-two. The eight acres in controversy is the southern part, and on that is the homestead in which the testator lived. TJrere is no other dwelling house on the home farm.

The plaintiff claims that the whole thirty-two acres belongs to her as being within the description contained in the will. The defendant claims that the plaintiff is only entitled to twenty-four acres in the northeast corner of the farm, and that she now has that and is not entitled to the balance.

If the plaintiff’s contention is right she gets, not twenty-four acres in the northeast corner of the 104 acres, but about thirty-two acres on the east side of the farm. If the defendant’s contention is right the twenty-four acres is not bounded on the south by a road running through the 104 acres, but by an imaginary line parallel to the north line of the lot and connecting the eastern highway with the private-road far enough south from the north line to include twenty-four acres. It may be observed that the private road is not the entire southern boundary of the thirty-two acres, it being partially bounded by the Harford Mills road. In this respect the language of the will, “ on the south and west by a road running through said 104 acres,” and on which the plaintiff relies, is not entirely accurate.

In regard to conveyances it is said by Chief Judge Ruger in Brookman v. Kurzman (94 N. Y. 276) as follows: “The long-established rules with reference to the construction of descriptions-contained in conveyances require courts to adopt such an interpretation thereof as shall give effect to the instrument according to the intention of the parties, if that is discoverable from legitimate sources of information. (Jackson v. Clark, 7 Johns. 217; Buffalo, N. Y. & Erie R. R. Co. v. Stigeler, 61 N. Y. 348.) In giving, effect- to such intention it is also their duty to reject false or mistaken particulars, provided there be enough of the description remaining to enable the land intended to be conveyed to be located. (Hathaway v. Power, 6 Hill, 454; Wendell v. People, 8 Wend. 189; Loomis v. Jackson, 19 Johns. 452.) ” So it is said in Buffalo, N. Y. & E. R. R. Co. v. Stigeler (61 N. Y. 351) that when it appears, from the designation of quantity or other elements of description, that the courses and distances from a fixed and determined line-were intended to control monuments, then the latter should be disregarded ; that the intention of the parties as evidenced by the deed is in all cases to determine the location of the premises.

In the present case, the question is what was the intent of the testator, and that is to be derived from the will itself, in the light of such surrounding circumstances as may be properly considered. In such a case the court may reject words and limitations, supply or transpose them, to get at the correct meaning. (Phillips v. Davies, 92 N. Y. 204.) Did the testator intend to limit the devise to twenty-four acres, or did he intend to devise all easterly of the private road, including the homestead ?

The testator had two sons and two daughters. To one of the sons he had previously given what he intended him to have from his landed estate. The other son, the defendant, lived with his family in a dwelling house on the sixty-acrfe farm. One of the daughters lived with her parents; the other, the plaintiff, as it may be inferred, did not. The testator gives to his wife the use of the sixty acres for her life, and then gave the same to his daxrghter Sarah, who lived at home, thus providing her with a home. He also gave to his wife for her life the use of “ twenty-four acres in the northeast-corner ” of the home farm, and after her death gave the same to the-plaintiff. The balance of the home farm he gave to the defendant.. The latter apparently had need of a dwelling house, and he was to have the larger part of the home farm. The provisions for the wife are not in lieu of dower. Is it probable that the testator intended, that his son Luther should not have either of the houses on his two-farms ? If the testator had intended the plaintiff to have the homestead, would lie not liave so stated ? ' On the contrary, he says in precise terms “ twenty-four acres.” The , amount is specific and is uppermost in-the mind of the testator as it is first named. It designates so much out of a larger quantity. It is not the case of a •description of land followed by a statement of the quantity, in regard to which it is said by Judge Spencer, in Mann v. Pearson (2 Johns. 41), that “the enumeration of quantity, after a description •of the subject, is superfluous and immaterial, and in any view only matter of description.” It is rather the case of inconsistent descriptions, and in such a case that is to be adopted which will carry out the apparent intention. (Harris v. Oakley, 2 N. Y. Supp. 305.) The designation of twenty-four acres in the northeast corner is certain and definite, and the southerly line can be readily located within the limit of the highway and the private road. (Kellogg v. Vickory, 1 Wend. 406.)

In Partridge v. Russell (18 N. Y. St. Repr. 687) it is said that whenever the location of the premises is doubtful, through uncertain, inconsistent or conflicting terms of description in the deed, the proper location of the premises becomes a question of fact to be determined by the jury on all the evidence. In the present case, whatever question of fact there is has been determined adversely to the plaintiff.

Having in view the surrounding circumstances, it should, I think, be held that the intention of the testator was to give to the plaintiff ■only twenty-four acres in the northeast corner within the limit of the highway on the east and the private road on the west. The will is capable of a construction to carry out this intent, and it should be so construed, as it has been done by the court below.

It follows that the judgment should be affirmed.

Hardin, P. J., concurred; Martin, J., not voting.

Judgment and order affirmed, with costs.


author: Merwin, J. :

text:
    Francis Bonnefond, Respondent, v. Augusta C. De Russey and Others, Defendants; Emma H. De Russey, Appellant.

      Stipulation waiving the certification of a case — when a case will be sent back for settlement and certification.

    A stipulation contained in a case signed by the attorneys for the respective parties, waiving- certification of the case and exceptions, and consenting that the same be filed, does not cure the defect arising from a failure to havfe the case and exceptions settled by the referee before whom the action was tried.
    "Where a case on appeal contains nothing to show that the case and exceptions were settled by the judge or referee before whom the action was tried, and neither a certificate of the clerk under section 1353 of the Code, nor a stipulation of the attorneys under section 3301 thereof, the case should be sent back for settlement and certification.
    Appeal by the defendant, Emma H. De Bussey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 13th day of June, 1892, upon the report of a referee, with notice of an intention to bring up for review, on such appeal, the repoi't of the referee, his findings and his refusals to find.

      Talcott do Meyer, for the appellant.

      J. I. Foote, for the respondent.
   Merwin, J. :

The papers in this case include what purports to be a case and exceptions. There is, however, nothing to show that the case and exceptions were ever settled by the referee, as required by section 991 of the Code, or ordered to be filed as required by rule 35. There is a stipulation over the names of the attorneys for the respective parties stating that certification of the above and foregoing case and exceptions is hereby waived, and it is consented that the same be filed.” This does not cure the defect. The provision that the case should be settled by the judge or referee who tried the cause is a wholesome one (Reese v. Boese, 92 N. Y. 632), and should be enforced. (Dwight v. Elmira, C. & N. R. R. Co., 29 N. Y. St. Bepr. 250; McNish v. Bowers, 30 Hun, 214.) Nor is there any certificate of the clerk under section 1353 of the Code, nor any stipulation of the attorneys under section 3301, as amended in 1882 and -1890. The case should be sent back for settlement and certification.

Hardin, P. J., and Martin, J., concurred.

Case sent back to be properly settled and certified.


author: Martin, J.:

text:
    Isaac Ostrander, Plaintiff, v. Egbert Snyder, Defendant.

      Parol evidence to show the purpose of a due hill —parol agreement to share profits or losses in a real estate speculation — Statute of Prcmds — evidence.
    Parol evidence is admissible, as between tlie parties to a written instrument in the form of a due bill, to show that its purpose and design were different from what its language if alone considered would indicate, namely, that instead of being a due bill for money loaned it was a memorandum of money furnished to the maker to invest in real estate on joint account.
    It is not essential to the validity of an agreement between parties to share in the profits or losses of a contemplated speculation in real estate that it should be in writing ; such an agreement does not involve such an interest in the property as, under the statute, requires a written contract.
    Evidence of any circumstance which tends to make the proposition at issue either more or less improbable is relevant.
    Motion by the defendant, Egbert Snyder, for a new trial, made upon a case containing exceptions, under section 1001 of the Code of Civil Procedure, on the entry in the office of the clerk of Otsego county of an interlocutory judgment upon a decision rendered after a trial by the court at the Otsego Special Term.
    The action was brought to obtain an accounting between the parties for all matters arising out of an alleged partnership transaction in real estate, and that the defendant be adjudged to have received and held the title to the real estate in question in trust .for the benefit of the plaintiff to the extent of his interest therein, in pursuance of the alleged partnership agreement.
    ■ January 3, 1893, on the decision of the court at Special Term, an interlocutory judgment was entered herein whereby it was adjudged that an agreement was made in November, 1890, between the plaintiff and defendant by wbicli they became co-partners for the purpose of purchasing and selling certain real estate, the profits and losses to be equally divided between or borne by them, and William O. Lament was appointed a referee to take and state the partnership accounts between the parties.
    The defendant here seeks to review the decision of the Special Term upon a motion for a new trial made in pursuance of section 1001 of the Code of Civil Procedure.

      W. II. Johnson, for the plaintiff.

      J. JB. Ilolmes, for the defendant.
   Martin, J.:

On the trial the plaintiff claimed and introduced evidence which tended to show that in November, 1890, the parties entered into an oral agreement by which each was to furnish an equal amount of money to be used for the purpose of acquiring title to the lands mentioned in the complaint, the profits or losses to be shared or borne equally upon the sale of the same; that the defendant was to take the necessary steps to acquire the title to such lands; that in pursuance of such agreement the plaintiff delivered to the defendant as a contribution on his part to the funds necessary to make such purchase the sum of $1,240 in checks or cash and $100 which the defendant then owed him, the whole amount, $1,340, to be deemed and treated as a contribution by the plaintiff to the co-partnership fund; that in pursuance of such agreement the defendant acquired the title to the land in question, used the money furnished by the plaintiff in paying therefor, procured the same to be conveyed to himself and has since refused to recognize the plaintiff’s interest therein; that the defendant 'has sold and disposed of a large portion of said land without consulting the plaintiff or in any way accounting to him therefor, and mortgaged other portions, and that the value of the land greatly exceeds the cost and expenses of purchasing and caring for the same.

The defendant admitted the delivery of the money by the plaintiff, the purchase of the lands; that he took the • title in his own name ; that he has since insisted that the lands belong to him alone and refused to treat the lands as co-partnership property, and that helias sold and mortgaged portions thereof; but denied that there was any agreement between himself and the plaintiff whereby the plaintiff was to have any share or interest in the lands purchased by him. Ilis claim was that the money which he received of the plaintiff was loaned to him. The defendant’s evidence tended to sustain his contention that the money was loaned by the plaintiff to him, and that there- was no 'partnership agreement between the parties.

Upon that question there was a direct conflict in the evidence. Upon conflicting evidence the court has found in favor of the plaintiff that a partnership agreement was made by the parties, and that the money furnished by the plaintiff was not loaned to the defendant, but advanced as his portion of the partnership fund to be employed in the purchase of such lands A careful reading of the evidence contained in the appeal book discloses that the finding of the court is fully sustained by the evidence.

At the time the plaintiff delivered the money furnished by him, the defendant gave him a paper which ivas as follows :

“East Worcester, December 22, ’90.
“ Due I. Ostrander twelve hundred dollars.
“E. SNYDER.”

The plaintiff’s proof was to the effect that this paper was delivered as a mere memorandum to show, in case anything should happen to him, that he had had that sum, and was never intended as a due bill for money loaned. This evidence was objected to by the defendant as incompetent and inadmissible, and adznitted uzider the defendant’s objection and exceptiozi. He now contends that the court erred izi admitting it, for the reasozr that it tended to vary, contradict azid defeat the terms of this writtezz instrument, and that all pzúor and coziteznpoz'aneous agreeznents were znerged therein. “ A party, sued by his proznisee, is always permitted to show a want or failure of consideration for the promise relied upozi, azrd so he znay pz-ove by paz'ol that the instruznezit itself was delivered even to the payee, to take effect only on the happening of some future evezzt (Seymour v. Cowing, 1 Keyes, 532; Benton v. Martin, 52 N. Y. 570; Eastman v. Shaw, 65 id. 522), or that its design and object were different frozn what its language, if alone considered, would indicate. (Denton v. Peters, L. R. [5 Q. B.] 474; Blossom v. Griffin, 3 Kern. 569; Hutchins v. Hebbard, 34 N. Y. 24; Seymour v. Cowing, supra; Barker v. Bradley, 42 N. Y. 316; 1 Am. Rep. 521; Grierson v. Mason, 60 N. Y. 394; De Lavallette v. Wendt, 75 id. 579 ; 31 Am. Rep. 494.) He may also show that the instrument relied upon was executed in part performance only of an entire oral agreement (Chapin v. Dobson, 78 N. Y. 74; 34 Am. Rep. 512), or that the obligation of the instrument has been discharged by the execution of a parol agreement collateral thereto (Crosman v. Fuller, 17 Pick. 171), or he may set up any agreement in regard to the note which makes its enforcement inequitable.” (Juilliard v. Chaffee, 92 N. Y. 529, 535; Union Trust Co. of New York v. Whiton, 97 id. 172, 177; Schmittler v. Simon, 114 id. 176, 184.)

We think the case under consideration comes within the principle upon which the exceptions to the general rule that parol evidence cannot be given to contradict, vary or modify a written contract rest, and that the doctrine of the authorities cited sustains the rulings of the trial judge in admitting this evidence.

The defendant also contends that as the agreement between the parties was not in writing and signed by them, it was void under the Statute of Frauds. The case of Babcock v. Read (99 N. Y. 609) is adverse to this contention. In that ease it was held that it was not essential to the validity of an agreement between parties to share in the profits or losses of a contemplated speculation in real estate that it should be in writing, and that it did not involve such an interest in the property as, under the statute, required a written contract. (Citing Traphagen v. Burt, 67 N. Y. 30; Chester v. Dickerson, 54 id. 1; Getty v. Devlin, Id. 403 ; Colemam v. Eyre, 45 id. 39; Wilson v. Lord Townshend, 2 Vesey, 696; Bissell v. Harrington, 18 Hun, 81.) We think the defendant’s contention cannot prevail.

On the trial the plaintiff called as a witness one Hallenbeck, who was permitted, under the defendants objection, to testify that on or about the 20th of December, 1890, and near the time when the plaintiff let the defendant have $1,240, he, the witness, procured for the plaintiff, and let him have $1,200, and subsequently he was permitted to testify that at the time the plaintiff obtained this money, he told the witness that he wanted it to purchase some of the Clark property.

The defendant now contends that these rulings were erroneous, and require a reversal of the judgment herein. We are of the opinion that the judgment should not be disturbed, because the court admitted the evidence as to the plaintiff’s having procured the money through Ilallenbeck at that time. In the first place, there was no exception to the ruling of the court, and, secondly, the fact seems to have been practically admitted. The evidence that the money was procured from Ilallenbeck having been admitted without exception, proof as to how the debt was to be secured was unimportant and harmless. Moreover, the fact that the plaintiff procured the money at that time was a circumstance which perhaps tended to make the defendant’s theory more or less improbable, and rendered the plaintiff’s theory more probable. “ It is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less improbable.” (Whart. on Ev. § 21. See, also, Burlew v. Hubbell, 1 T. & C. 235; Hotchkiss v. Germania Fire Insurance Company, 5 Hun, 90; Pomeroy v. Pierce, Id. 119; Nicholls v. Van Valkenburgh, 15 id. 230 ; Wallis v. Randall, 16 id. 33; affd., 81 N. Y. 164; Dishno v. Reynolds, 17 Hun, 137; Cornell v. Markham, 19 id. 275 ; Bean v. Carleton, 51 id. 318; Pontius v. The People, 21 id. 328 ; affd., 82 N. Y. 339; Dryer v. Brown, 52 Hun, 321; Quincey v. White, 63 N. Y. 370.)

The only other question presented is as to the validity of the defendant’s objection and exception to the admission of the evidence of the witness Ilallenbeck, that plaintiff told him when he obtained the money that he wanted to buy some of the Clark property. Even if this evidence was inadmissible, it is not easy to see how the defendant could have been harmed by it. It was at most a statement by the plaintiff that he wanted to buy some of the Clark property. He did not say he was “ going in ” with Snyder nor what Clark property he wanted to buy. If it was to be xmderstood from the question and answer that the plaintiff wanted the money he was then borrowing to purchase some of the Clark property, it would still be difficult to perceive how that evidence could have been material or injured the defendant, as his theory and proof were to the effect that the plaintiff was seeking to purchase some of the Clark property. Hence, the mere fact that the plaintiff said he obtained the money to purchase some of the Clark property was as consistent witli' tbe defendant’s theory of the case as with the plaintiff’s.

Under these circumstances we think if it was error to admit this evidence it was harmless, and would not justify the granting of a new trial.

IIardin, P. J., and Merwin, J., concurred.

Motion for a new trial denied, with costs.