text:
    THEODORE BAUMLER, Appellant, v. FREDERICK P. ACKERMAN, Respondent.

      Bwpplementa/ry proceedings — must be taleen within ten years after the first execution is retw'ned — when a judgment ceases to be a lien upon recti estate.

    A judgment was recovered in a Justice’s Court in 1876, and in tlie same year a transcript was filed and an execution tliereon was issued out of the County Court. In 1891 the plaintiff in said judgment issued a second execution, and upon it instituted supplementary proceedings.

      Held, that the right to take such proceedings accrued in 1876, when the first execution was issued, and was, under section 2435 of the Code of Civil Procedure, barred by the lapse of more than ten years before the proceedings were taken in 1891.
    That the judgment was not a lien upon the defendant’s real estate in 1891.
    That section 1252 of the Code, providing for a levy upon real property after ten years from the filing of a judgment-roll, had no application to this case, and could only apply to judgments recovered after September 1, 1877, when the Code of Civil Procedure went into effect.
    Appeal by the plaintiff Theodore Baumler from an order of the county judge of Erie county, entered in the office of the clerk of Erie county on the 9th day of June, 1891, vacating an order previously granted requiring the defendant to submit to an examination in proceedings supplementary to execution.

      Jonathan L. Slater, for the appellant.

      E. G. Bobbins, for the respondent.
   Lewis, J.:

Plaintiff recovered a judgment against the defendant in the Court of a Justice of the Peace of Erie county on the 1st day of November, 1876, for $107.15. On the same day a transcript of said judgment was filed and the judgment was docketed in the office of the clerk of Erie county.

An execution was issued upon said judgment on the said first day of November to the sheriff of Erie county where the defendant then resided. The execution was duly returned wholly unsatisfied. A second execution was issued upon said judgment on the 7th day of April, 1891, to the sheriff of Erie county where the defendant still resided. The second execution was returned wholly unsatisfied, and the plaintiff thereupon instituted proceedings supplemental to execution before the judge of said county.

Upon motion of the defendant, the order appealed from was granted by said county judge on the ground that more than ten years having elapsed after the return of the first execution,' the statute of limitations had run against plaintiff’s right thereto. Plaintiff’s contention is that his proceedings having been instituted within ten years after the return of the second execution, they were regular under section 2435 of the Code of Civil Procedure. That section provides that proceedings supplemental to execution may be instituted at any time within ten years after the return of an execution against property unsatisfied, etc.

The decision of this appeal depends upon the question, which one ■of the executions comes under the provisions of said section 2435. ,

An execution was returned unsatisfied in the year 1876. The right to institute these proceedings then accrued to the plaintiff. He permitted more than ten years to expire before instituting them. Ve think his right to institute the proceedings had expired by limitation of time.

It was decided in Conyngham v. Duffy (125 N. Y., 200) that, by chapter 4 of the Code of Civil Procedure, a limitation for the instituting of such proceedings is fixed at ten years from the accruing of the right thereto. That the limitation of time was fixed by sections 388, 414 and 415 of the Code. The plaintiff’s judgment had ceased to be a lien upon the real property of the defeñdant when' his proceedings were instituted. The execution was ineffectual, therefore, to reach that class of property. It was held in Judson v. Rossie Galena Company (9 Paige Ch., 596,) that, in order to institute a, creditor’s bill, there must have been issued and returned an execution against real estate.

It is suggested by the appellant that provision is made for such proceedings after the lapse of ten years by section 1252 of the Code •of Civil Procedure. That section has relation only to judgments rendered after the adoption of that section into, the Code. That section had not become a part of the Code at the time of the docketing of plaintiff’s judgment.

We think that the order appealed from was properly granted, and that it should be affirmed, with ten dollars costs and the disbursements of the appeal.

Dwight, P. J., and Macombbe, J"., concurred.

Order appealed from affirmed, with ten dollars costs and the disbursements.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM B. MOORE, Overseer of the Poor of the Town of Parma, Respondent, v. WILLIAM E. BEEHLER, Appellant.

      Bastardy proceedings — death of the child after a warrant is issued, but before it is sorted — liability of the father to the town— Gode of Criminal Procedure, secs. 840, 841 and 851.

    A warrant was issued for tlie arrest of the alleged father of a bastard child, who was at the time a charge upon the town of Parma. Before service of the warrant the alleged father fled from the State, and did not return until after the death of the child. He was then arrested, and an order of filiation was made by which he was adjudged to pay for the support, care and funeral expenses of the child, the sum expended therefor by the town.

      Held, that the statute was a remedial one and should be liberally construed.
    That, notwithstanding the death of the child, the father was properly charged with the expenses stated.
    Appeal by the defendant William E. Beebler from a judgment, rendered in tbe Monroe County Court of Sessions on the 25th day of September, 1890, upon a conviction of the defendant, and in affirmance of a judgment in bastardy proceedings brought into said court upon an appeal from a Court of Special Sessions in the town of Parma, in said county.
    The order of filiation made by two justices of the peace in and for the town of Parma, in proceedings in bastardy, adjudged the appellant to be the father of a bastard, and ordered him to pay to the overseer of the poor of that town $129.66 for the support, care, burial and medical attendance of said child, to reimburse the town of Parma for its expenses on account of the child, to its death on February 3, 1890; and to pay for the attorney for the overseer the sum of fifty-four dollars and eighty cents costs, and to enter into an undertaking to pay accordingly.

      W. Henry Davis, for the appellant.

      George A. Benton, for the respondent.
   Lewis, J.:

Mary E. Williamson was delivered of a bastard in the town of Parma, county of Monroe, on the 12th day of August, 1889. She was a resident of that town, and, being unable to support the child, bastardy proceedings were instituted by the overseer of the poor of the town against the appellant, as the father of the child, on the 23d day of August, 1889. The warrant for his arrest was delivered to an officer. He was not then able to serve it for the reason that appellant had absconded from the jurisdiction of the court. He returned to the State about the 1st of April, 1890, and on the seventh day of that month he was arrested and brought before two magistrates of that town, and on the 23d of April, 1890, the magistrates inquired into the charge against the appellant and adjudged him to be the father of the bastard, and determined that he pay to the overseer of the poor for its support, care, burial and medical attendance $129.86; and they certified that the reasonable costs .of apprehending and securing the appellant, and of the order of filiation, was the sum of sixty-four dollars and sixty-five cents.

After the delivery of the warrant to the officer, but prior to the apprehension and trial of the defendant, the child died. The appellant appealed from the order of the magistrates to the Court of Sessions of Monroe county, which court, after hearing the proofs and allegations of the parties, affirmed the order of filiation, and adjudged that the appellant pay to the attorney for the overseer the sum of fifty-four dollars and eighty cents costs of the appeal, and that he enter into an undertaking to the effect that he will pay $129.66, the amount of the judgment below, and that he will indemnify the town for the sum incurred for the support of the child.

The appellant appealed to this court from the order and judgment. There was 'abundant evidence to show that the appellant was the father of the child, and the sum he was adjudged to pay was not excessive. The only question worthy of any consideration arises from tbe circumstance that the child died before the authorities were able to cause the arrest and trial of the appellant.

Section 840 of the Code of Criminal Procedure provides that: “ If a woman be delivered of a bastard * * * which is chargeable to * * * a town * * * an overseer of the poor * * * must apply to a justice of the peace * * * to inquire into the facts of the case.”

By section 841 “ The magistrate must by the examination of the woman on oath, and any other testimony which may be offered, ascertain the father of the bastard, and must issue his warrant directed to a peace officer of the county commanding him, without delay, to apprehend the father and bring him before the justice of the peace for the purpose of having an adjudication as to the filiation of the bastard.”

Section 851 provides that: “If the defendant be adjudged to be the father, he must immediately pay the amount certified for the costs of the arrest and of the order of filiation and enter into an undertaking * f * that he will indemnify * * * the town * * * where the bastard was * * * born, * * * which may have been or may be put to expense for the support of the bastard or its mother during her confinement.”

The overseer of the poor assumed the care and supervision of the child ; he expended the amount the appellant was adjudged to pay for its support and care, and its funeral expenses.

The child ivas an actual charge upon the town when the warrant was issued for the appellant’s arrest; and had he then submitted himself to the jurisdiction of the court, the trial would have taken place while the child was living. The statute is a remedial One. Its purpose is to compel the father of a bastard to indemnify the town for the expenses incurred for its support. The father and mother of such a child are liable for its support; and in case of their neglect or inability it must be supported by the county, city or town to which it is chargeable. The mother, in this case, was unable to support her child; its father fled from the State and neglected to support it.

The construction contended for by the appellant would be an exceedingly narrow one to give to this remedial statute. It would be a miscarriage of justice if the appellant, by fleeing from justice and remaining out of the jurisdiction of the court until his offspring died, could thereby thwart the purpose of the statute and escape liability for his misconduct.

The courts below, we think, correctly held that, notwithstanding the death of the child before the trial, the appellant was liable to indemnify the town for any expense it had been put to for its support and burial.

We are not aware of any adjudication of this question in our own State. Under statutes very similar to our own it was held in Meredith v. Wall (14 Allen, 155); Smith v. Lint (37 Me., 546); Maxwell v. Campbell (8 Ohio St., 265); Hauskins v. The People (82 Ill., 193); Evans v. The State (58 Ind., 587) that the father was liable for such expenses in case of the death of the child before the proceedings against him were instituted.

The order for judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concurred.

Judgment of the Court of Sessions of Monroe county affirmed, with costs.


text:
    MINNIE BONNETT, Respondent, v. THEODORE TOWNSEND, Appellant.

      Justices’ Court — a/ppeal — power of the County Cozirt, upon the death of a surety, to order a further undertaking.

    The appellant, in an action in a Justice’s Court, gave, upon appeal, tlie undertaking required by section 3050 of tlie Code of Civil Procedure. In 1883, two years later, tlie surety died. In 1891, tlie appeal still remaining undetermined, the County Court ordered a new undertaking to be given, and upon a failure to comply with such order dismissed the appeal.

      -S'eld, that the giving of a proper undertaking in the first instance was sufficient, and that the County Court had no power thereafter, in an action brought in a Justice’s Court, to compel the filing of a new undertaking.
    That sections 1308 and 3276 of the Code of Civil Procedure had no application to such an appeal.
    Appeal by the defendant Theodore Townsend from a judgment of the Niagara County Court, entered in the office of the clerk of the county of Niagara on the 1st day of June, 1891, in favor of the plaintiff for $185.90, besides costs, upon a dismissal by the Niagara County Court of the defendant’s appeal, with notice of an intention to bring uj> for review certain orders granted herein, one upon the 16th day of March, 1891; another upon the 25th day of May, 1891, and another upon the 27th day of June, 1891, respectively.
    Judgment was rendered for plaintiff in a Justice’s Court on March 7, 1881. The defendant appealed on March 26,1881. The surety on the undertaking on appeal died in 1883. On March 16, 1891, air order was made-requiring the appellant to execute,-lile and serve a new undertaking. On May 25, 1891, the County Court by order dismissed the appeal because of a failure to serve the new under taking required. On June 27, 1891, the court denied a motion of the appellant to vacate the order of March 16, 1891.

      Henry M. Dcwis, for the appellant.

      Armstrong & Duolcwitz, for the respondent.
   Lewis, J.:

The appellant appealed from a judgment obtained against him by the respondent in a Justice’s Court to the County Court of Niagara county. The judgment appealed from was for the sum of $115.20 damages. The appellant, in his notice of appeal, asked for a new trial in the County Court, and for the purpose of effecting his appeal gave the undertaking required by section- 3050 of the Code of Civil Procedure. One John Humphrey was the sole surety upon said undertaking. Humphrey thereafter, and in the year 1883, died. The appeal remaining undetermined, the respondent, in the month of March, 1891, moved the County Court for an order requiring the appellant to cause to be executed and filed a new undertaking with new sureties, and it being made to appear to said court, by affidavits presented on the motion that the surety Humphrey had died, and that there was no property within the State of New York belonging to the estate of the surety, and that the circumstances of the estate had become so precarious that there was reason to apprehend that the undertaking was not sufficient for the security of the respondent, ordered, that within thirty days after the service of a copy óf the order upon the appellant’s attorney, the appellant cause to be executed and filed a new undertaking, with new and sufficient sureties, and tliat if be fail to give the undertaking as required, Ms appeal be dismissed, witli costs to tlie respondent. Tlie appellant having failed to give the undertaking as required by the order, an order was made on the twenty-fifth day of May, dismissing the appeal, with costs to be taxed, and judgment was thereupon'entered for the amount of the judgment in the Justice’s Court, with interest, costs and disbursements taxed at sixty-two dollars and seventy-two cents, and the appellant thereupon appealed from the judgment and said orders, and his contention is that the County Court had not the power to grant the orders. The appellant, when he appealed, gave a sufficient undertaking, the justice’s return had been filed, and the action was at issue in the appellate court.

The power of á court to require security for the payment of a judgment and costs is purely a creation of the statute, and authority, therefore, must be found in the statute or it does not exist. (Republic of Honduras v. Soto, 112 N. Y., 310-313.) We are aware of but two sections of the Code of Civil Procedure authorizing the granting of an order requiring the giving of a new undertaking in case of the insolvency of sureties, and they are sections 1308 and 3276. Section 1308 has no application to this case as it does net apply to appeals from a Justice’s Court to the County Court. It is a part of chapter 12, which has relation only to appeals to the Court of Appeals, to the Supreme Court or Superior City Coiirts, and to appeals from.final determinations in special proceedings. Section 3276 forms part of the title in reference to security for costs in cases referred to in that title, and does not apply to appeals to the County Court. The case of Elson v. Murray (27 Hun, 536) has no application here. The decision in that case was placed upon the ground that the appellant in giving an undertaking perpetrated a fraud upon the court. She procured her husband to become the surety upon the undertaking, knowing that he was not worth a dollar, and that he had just before signing the undertaking testified, in proceedings supplementary to execution, that he had no property of any kind.

The appeal in that case was dismissed upon the theory that the appellant had failed to give the undertaking required by the Code, and hence her appeal was ineffectual. In the case at bar the undertaking furnished by the appellant was sufficient at the time given. The appellant having complied with the provisions of the Code in bringing his appeal, and the action being at issue in that court, we do not think the court had" power to require another undertaking because of the insolvency or death of the surety.

It follows that the judgment and orders appealed from should be reversed, with costs of the appeal.

Dwight, P. J., and Macomber, J., concurred.

Judgment and orders of County Court of Niagara county appealed from reversed, with costs.


text:
    JOHN P. KNELLER and Another, Plaintiffs, v. GERHARD LANG, Defendant.

      Specific performance — •'merchantable title — adverse possession — the vendor must furnish proof of possession where he claims under such a title— Code of Civil Procedure, sec, 369.
    John F. Kneller and wife agreed, in writing, to convey by warranty deed to one Lang certain premises, of which the record failed to show title out of one James Sheldon, who had owned the premises thirty years prior to such agreement. In 1851 one Gauchat gave a mortgage of the land to Sheldon, which recited that it was given to secure payment of the purchase-price thereof. In 1854 this mortgage was discharged to Gauchat by its owner. Gauchat and his grantees, among whom was Kneller, had been in possession of the premises since 1854. No deed to Gauchat appeared of record.

      Held, that the title was not merchantable, and specific performance should not be decreed.
    That au adverse possession must, in order to ripen into a title under section 369 of the Code of Civil Procedure, be founded “upon a written instrument as being a conveyance of the premises in question.”
    That the burden of showing, under the same section, “a continued occupation and possession of the premises * * * for twenty years under the same claim ” cannot be thrown upon the purchaser.
    Submission of a controversy upon admitted facts between John P. Kneller and Mary, his wife, as plaintiffs, and Gerhard Lang, as defendant, under section 1279 of the Code of Civil Procedure.
    This is a submission to this court of a controversy upon admitted facts under section 1279 of the Code of Civil Procedure, and the facts are as follows: On the 30th day of January, 1891, the parties to this action entered into a written contract of sale, the plaintiffs agreeing to convey by warranty deed to the defendant certain lands in the town of Cheektowaga, county of Erie, containing about eighty-two acres, for the sum of $20,000, the contract being, in form, in all respects sufficient to bind the parties. The premises consisted of three adjoining parcels, and, for the purpose of identification, were numbered one, two and three in the submission papers. The controversy concerns parcel number two, which lies between and adjoining parcels one and three. More than thirty years ago one James Sheldon was the owner of the three pieces of land. The records of the county of Erie fail to show title out of Sheldon of parcel number two. April 29, 1851, one Philip Gauchat gave a mortgage to Mr. Sheldon, covering parcel number, two to secure the sum of $602. The mortgage contained the following clause: “ This mortgage being given to secure the payment of the purchase-price of the above-described premises.”
    The mortgage was properly recorded. Sheldon assigned the mortgage December 10, 1851, to Mr. John H. Bliss, and Bliss began an action March 17,  1854, against Philip Gauchat for the foreclosure of said mortgage. Bliss discharged the mortgage to Philip Gauchat by an instrument bearing date December 4, * 1851, and which was recorded February 18, * 1854. The records failed to show any title in Gauchat of parcel number two, but on or about September 11, 1854, he conveyed said piece by deed recorded October 19, 1854. Gauchat and his several grantees were in the undisturbed possession of said piece for twenty years and upwards, and the plaintiff, John F. Kneller, is one of said grantees. Sheldon died intestate May, 1887, leaving him surviving several children, some of whom are minors.
    No action or proceeding at law has ever been brought or instituted to establish the rights of the Sheldon heirs to this property. The plaintiffs executed, acknowledged and tendered to the defendant a good and sufficient deed of conveyance of the premises. Defendant refused to complete his contract for the purchase of the lands, giving as the reason for such refusal that the title to the whole premises was not complete and perfect in the plaintiff, John F. Kneller; but that the omission or want of a deed from Sheldon is a cloud upon the title, and that by virtue thereof some person or persons other than John F. Kneller have some right, title or interest therein. The plaintiffs claim that the title to the land is perfect and complete, and insist that Lang shall perform his contract, and they demand judgment to that effect. No other objection is raised to the title.

      Clarence W. Wilson, for the plaintiffs.

      James G. Smith, for the defendant.

       So in appeal papers.

   Lewis, J.:

The defendant is entitled to a good merchantable title, one that he can sell in the market, and upon which he can, if he desires, procure a loan of money. The record title is concededly imperfect, there being no record evidence that Philip Gauchat, under whom the plaintiffs claim title, ever had a deed of the premises.

An instrument in writing, subscribed and sealed by the person frpm whom the estate or interest conveyed is intended to pass, is necessary to convey the fee to land in this State. The acceptance of the mortgage containing the clause mentioned did not convey a title to the premises to. Gauchat. It was sufficient to raise a presumption that Gauchat had at least an equitable interest in the property which might entitle him to a conveyance, if one had not been made; but to make it available an action would be necessary, and the Sheldon heirs would have to be parties thereto in order to obtain an adjudication which would bind them. It is not incumbent upon the defendant to institute and prosecute such an action in order to perfect the title.

It is contended by the plaintiff that Philip Gauchat and his several grantees having been in the undisturbed possession of the premises for twenty years and more, and the plaintiff John F. Kneller being one of the grantees, his title to the premises is complete. (Code of Civil Pro., § 369.) The admitted facts fail to state that they were in possession, founding their claim upon a written instrument as being a conveyance of the premises in question.

It was necessary, in order that their possession of the premises for twenty years should ripen into a title, that it should be held under a claim of title exclusive of any other right, founding this claim upon a written instrument as being a conveyance of the premises in question. There is nothing in the papers showing that these premises were thus held. While there are authorities holding that a purchaser at a judicial sale may be compelled to take a title obtained by a continued possession of twenty years, the title must be accompanied with proof of such possession. The burden of procuring the evidence to establish the continuous possession for the requisite time cannot be imposed upon the purchaser. It was not contemplated by the parties entering into the contract that such a burden was to be imposed upon the defendant.

Plaintiffs have, we think, failed to show that they have a merchantable title to the premises, and the defendant is entitled to judgment that he be relieved from fulfilling the contract.

Dwight, P. J., and Macomber, J., concurred.

Judgment on the submission ordered for the defendant.


author: Macomber, J.:

text:
    ORIN S. BACON, Jr., Respondent, v. ALBERT JACOBS and Another, Appellants.

      Civil damage aet — proximate cause of injuries — emdence of ill-feeling between the parties, to an assault by an intoxicated person, is incompetent — Laws of 1813, chap. 646.
    In an action, under the civil damage act, against the owner and the lessee of a hotel for injuries sustained by the plaintiff from an assault made upon him by one Gilroy, caused, as alleged, by intoxicating liquors sold him by the lessee, the defendants requested the court to charge that the acts of the defendants, or of one of them, must be proved to be the proximate cause of the injury or the plaintiff could not recover.

      Held, that the request was properly refused.

      Semble, that a request to the court to charge that the intoxication must be proved to be the proximate cause of the plaintiff’s injury might have been proper.
    It appeared that there had existed between the plaintiff and Gilroy, for some time before the assault, serious ill-feeling. The defendants requested the court to charge that if Gilroy was intoxicated, or partly so, and committed the assault, not on account of his intoxication, but on account of an old feud between himself and the plaintiff, the plaintiff could not recover.

      Held, that the request was properly refused.
    That the statute created an absolute liability and precluded any examination into the question whether, except for the intoxication, the assault would have been committed.

      Appeal by the defendants, Albert Jacobs and Garrett Burns, from a judgment in favor of the plaintiff for $2,750, with costs, after a trial at the Ontario Circuit before the court and a jury, entered in the clerk’s office of said county on March 3, 1890; and also from an order, entered in said clerk’s office on February 3,1891, denying defendants’ motion for a new trial made upon a case containing exceptions.

      John Van Voorhis, for the appellants.

      Franh Fice, for the respondent.
   Macomber, J.:

A recovery of a verdict in the sum of $2,750 was had at the circuit in this action, which was brought under chapter 646 of the Laws of 1873, commonly known as the civil damage act.

The defendant Jacobs was the owner of a hotel in the village of Victor, N. Y., but had nothing to do with the management of the business thereof. The defendant Burns was the lessee of the hotel and carried on the general business of a licensed hotel and innkeeper. The charge against both is, that on the 5th day of February, 1889, the defendant Burns furnished to one Gilroy intoxicating liquors which produced his intoxication, and that Gilroy, when in that condition, produced in whole or in part by the liquor obtained at the defendant’s hotel, assaulted the plaintiff, doing him serious bodily harm. Evidence was adduced at the trial sufficient to warrant the jury in finding that Gilroy was, in fact, intoxicated at the time he committed the assault upon the plaintiff, and that such intoxication was, partially at least, produced by the liquor obtained by him at the hotel kept by the defendant Burns.

The learned counsel for the appellant, in his argument in favor of a reversal of the judgment and order, mainly relied upon certain exceptions taken at the trial, two of which merit serious consideration. The case shows that he requested the court to charge the jury that the acts of the defendants, or one of them, must be proved to be the proximate cause of the injury, or the plaintiff cannot recover. The court refused so to charge, and the defendants excepted. Counsel relies largely upon the case of Davis v. Standish (26 Hun, 608) as an authority to show that such refusal of the judge at the circuit was an error. But we do not so understand that authority. The request made in this case was not that the intoxication must be proved to be the approximate cause of the injury sustained by the plaintiff. If that proposition had been made and refused, a most grave question would have arisen of very doubtful solution. The acts of the defendants, or the acts of either of them, cannot be said to be the proximate cause of the assault made upon the plaintiff by Gilroy. Furnishing liquor to Gilroy was but a remote cause of such injuries. The intoxication of Gilroy was the proximate cause, so far as this question is involved, for it was that cause which immediately preceded and directly produced the effect complained of, and is to be distinguished from any remote, mediate or disposing cause. There is, indeed, much in the discussion contained in the opinion above cited, which goes to show, at least inferentially, that it is incumbent upon the plaintiff, in an action of this character, to prove that the injuries sustained were produced by the intoxication of a person, and that such intoxication was the proximate cause thereof. (See Beers v. Walhizer, 43 Hun, 254.) The question here raised by counsel, if of the precise nature which he claims it to be, could be more nearly allied to the next question which we proceed to consider, and which is far from being free from doubt or embarrassment.

The other exception arose as follows : Counsel for the defendants at the trial requested the court to charge the jury that if Gilroy was intoxicated, or partly so, and committed the assault, not on account of his intoxication, but on account of an old feud that he and the plaintiff had between them, the plaintiff could not recover. The court refused so to charge, to which refusal an exception was taken.

The evidence establishes, with some degree of conclusiveness, that there did exist, before the time of the assault, a condition of serious ill feeling between the plaintiff and Gilroy. The plaintiff testified that Gilroy came to his shop on the day in question and wanted to know what plaintiff had against him. Plaintiff says that he told him that he had nothing against him. Gilroy accused him of talking badly about him. Plaintiff told him to leave the shop or he would have him arrested. On cross-examination the plaintiff testified that three or four times previous to the trial he had caused Gilroy’s arrest by lodging a complaint against him for being drunk and disorderly, upon which charge Gilroy was convicted and sent to the penitentiary or jail. After further testifying that he had reason to believe that Gilroy would come over to his shop; the plaintiff proceeds as follows in his version of an interview between him and the defendant Burns: “ lie (Burns) asked me if he (Gilroy) should come over there and pitch into me what I would do. Q. Did you have any reason to believe that he would come over there? A. Yes, sir; I had reason to believe so. Q. Did he come in there frequently when he was drunk? A. Yes, sir; oftentimes.” The plaintiff also testified that Gilroy, when sober, was a mild-mannered and inoffensive man, and that he, the plaintiff, had no apprehension of him except when intoxicated. The defendant Burns testified that while walking by the plaintiff’s shop the latter spoke to him and wanted to know if that long-legged (giving a vulgar name), was over to his house. I says, ‘ Who ? ’ and he says, ‘That long-legged Gilroy; ’ and I says, He wasn’t there when I came away; ’ and he said, ¿ He has been over here raising the devil, and. if he comes in again I will split him with a cleaver.’ ”

This evidence was of a character to enable the jury, if it had been permitted by the court, to say that the bitter-feelings existing between the plaintiff and Gilroy were of a permanent character, liable at any time to lead to an open assault by Gilroy upon the plaintiff, irrespective of the state of intoxication of Gilroy. We say there is evidence pointing in that direction, but do not mean to be understood as saying that it establishes such proposition.

The qitestion, therefore, presented by this exception, is whether, under these circumstances, it was error for the court to refuse to charge in accordance with the request made by the counsel for the defendants. Were it a question to be determined by the rules of the common law, but one answer could be made to it, and that is that such ruling was error. But under the rigid, not to say harsh, provisions of the statute, we think, on the whole, that the decision of the learned judge at the circuit may be sustained. This statute, as has been repeatedly said, gives a cause of action where none existed at common law or by statute before its enactment, and renders persons liable to suit in damages where the principles of the common law do not. (Volans v. Owen, 74 N. Y., 526; Bertholf v. O'Reilly, id., 509; Mead v. Stratton, 87 id., 493; Reid v. Terwilliger, 116 N. Y., 530.)

That portion of the statute material to this inquiry is as follows: “ Every husband, wife, child, parent, guardian, employer or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her name, against any person or persons who shall, by selling or giving away any intoxicating liquors, caiosed (sic) the intoxication, in whole or in part, of such person or persons,” etc.

This statute seems to render a defendant absolutely liable for the wrongs perpetrated by a person while intoxicated, when the intoxication was caused in whole or in part by the defendant, and precludes an examination into the further question whether or not, except'for such intoxication, the injuries would have been inflicted. The plaintiff was injured in his person by Gilroy while the latter was intoxicated. The expression is “ by any intoxicated person,” apparently closing all inquiry into the question whether, in the instance now before us, Gilroy would have committed the assault except for the intoxication. The courts of this State have upheld the constitutionality of this law, and have steadily enforced its provisions with great uniformity of decision. It has now been on our statute book for nearly twenty years, and we are not disposed to say that this particular provision now, for the first time, so far as we are aware, directly involved, is in contravention of the organic law of the State. In Neu v. McKechnie (95 N. Y., 632), which was an action by a child to recover damages for the loss of means of support where the intoxicated person, his father, had, after killing his wife, committed suicide, it is stated in the opinion that the jury were not to inquire whether either the homicide or the suicide was the natural, reasonable or probable consequence of the defendant’s act, and then proceeds as follows: It is enough if while intoxicated, in whole o.r in part, by liquors sold by the defendants, those acts were committed.”

On the whole, on account of the expressions contained in the opinion in the above cited case, we think the judgment appealed from should be affirmed.

Lewis, J., concurred; Dwight, P. J., taking no part.

Judgment and order appealed from affirmed.


author: Hardin, P. J.:

text:
    CHARLES E. OGDEN, Respondent, v. ELIZABETH ALEXANDER, ELMA PIERSON, JENNIE BRISACK, MARY ALEXANDER and MARTHA ALEXANDER, by JOHN W. ALEXANDER, their Guardian Ad Litem, Appellants, and Others.

      One of two partners, as assignee of the firm, claim, may file a lien for woi'h done by the firm.

    When one of two partners, engaged in the execution, as sub-contractors, of work upon a building, purchases the interest of his copartner in the partnership property and assets, agreeing to pay the partnership debts, and thereafter continues the work, he is entitled, under section 1 of chapter 342 of the Laws of 1885, to file a notice of lien against the land upon which the work is done.
    Appeal by the defendant Elizabeth Alexander and others from a judgment in favor of the plaintiff, entered, upon the decision of a referee, in the office of the cleric of the county of Delaware on the 6th day of June, 1891, directing the sale of the interest which Charles Alexander had, on the 20th day of August, 1889, in and to certain premises described in the complaint, which interest, upon the death of Charles Alexander- on September 15,. 1889, devolved upon the defendants herein, Elizabeth Alexander and others.
    August 26, 1888, Charles Alexander was the owner of a lot situated in the village of Walton, and on that day he entered into a written contract with Horace Hill to erect a dwelling-house thereon for the sum of $3,425. Hill commenced performance of his contract and continueddn the performance thereof until August 21,1889, when he abandoned the same, and shortly thereafter made a general assignment for the benefit of his creditors. When the contract was made Oliver & Ogden, a firm consisting of Robert Oliver, and Charles E. Ogden, the plaintiff, were copartners, doing business as hardware merchants in the village of Walton. In the month of April, 1889, Hill entered into a contract with the firm for a furnace to be put into the said dwelling, and for plumbing required by the terms of the contract between Alexander and him, and a request was made for a slate roof on the house and other work, which was not completed July 29,1889. On the 29th of July, 1889, the plaintiff purchased the interest of his copartner, Robert Oliver, in the partnership property and assets for the sum of $700, and took possession of all the assets, including the claim against Hill, agreeing to pay the partnership debts of the firm. Plaintiff continued the work and furnished materials down to the 20th of August, 1889, when he filed the lien for the labor and materials in the office of the county clerk of Delaware county. On the 21st of August, 1889, Hill made an assignment for the benefit of his creditors. A subsequent lien was filed by G. Y. Selden & Co. On September 15, 1889, Alexander died intestate, leaving him surviving his widow and heirs-at-law, the appellants.

      Samuel II. Fancier, for the appellants.

      Alexander NeisI, for the respondent.
   Hardin, P. J.:

(1.) Hpon the evidence given before the referee he was not able to determine the exact amount which had been paid prior to the filing of the notice of lien by Alexander to Hill, or to others for him, but the referee did find, viz.: “ That the amount remaining unpaid at that time was sufficient to pay for the labor and material required to complete the contract, including the sum of $75 toward the mantel, and also to pay the amount unpaid on the plaintiff’s claim, August 19, 1889, and stated in finding seventeenth at the sum of .$507.45.” After a careful consideration of the evidence we are of the opinion that the findings should be sustained.

(2.) We are of tlie opinion that the plaintiff was authorized to file the lien against the property, notwithstanding what had transpired between him and Oliver.

In section 1 of chapter 312 of the Laws of 1885, it is provided r “Any person or persons, firm or firms, corporation or association, who shall hereafter perform any labor or service, or furnish any materials which have been used or which are to be used in erecting, altering or repairing any, house * * * may, upon filing the notice of lien prescribed in the fourth section of this act, have a lien for the principal and interest of the price and value of such labor.” According to the literal language of the section from which we have quoted, the plaintiff was, at all times after the performance of the work and delivery of the materials, entitled to the benefit of the provision of the statute. lie 'lias done nothing to forfeit his right to file a lien. But it is contended by the appellants, because he became a purchaser of the interest of Oliver in the assets, that a right to file a lien was not available, and they rely upon the general principle that liens, given by a statute, in general, are “ a personal right given to the mechanic, material-man and laborer for his own protection,” and they call our attention to Rollin v. Cross (45 N.Y., 767), where the general rule was asserted. In the course of the opinion in that case, it was intimated that a case in which “the assignment is made for the benefit of the assignor, and to be held as his agent so that the lien may be preserved,” is an exception to the general rule; that opinion refers to the opinion of Lord Ellenborough (McCombie v. Davis, 7 East, 5), where it was suggested that the general rule did not apply “ to the case of one who intending to give a security to another to the extent of his lien, delivers over the actual possession of goods, on which he has the lien, to that other, with notice of his lien, and appoints that other as his servant to keep possession of the goods for him ; in which case he might preserve the lien.” The same doctrine was approved in Urquhart v. M'Iver (4 Johns., 111); and in the latter case Judge Kent observes : “A factor may deliver the possession of goods, on which he has a lien, to a third person, with notice of the lien, and with a declaration that the transfer is to such person as agent of the factor, and for his' benefit. This is a continuance, in effect, of the factor’s possession,” etc.

When the plaintiff acquired the interest of his retiring partner, and added that interest to his own interest in the materials furnished, and in the contract to supply materials and services to Hill, it may be assumed that he did not intend to relinquish any rights which he theretofore possessed or to release the firm’s interest in the materials furnished, services rendered, or the contract uncompleted and unperformed, and when he assumed to carry out the contract made by the firm, it is not too much to assume that he became the “agent” or “servant” of the firm.

The statute before us in its twentyffiftli section is declared to be remedial, and it is provided that it “ is to be construed liberally to secure the beneficial interests and purposes thereof; and a substantial compliance with its several provisions shall be sufficient for the validity of the lien, or liens hereinbefore provided for, and to give jurisdiction to the courts to enforce the same.” We are of the opinion that the plaintiff was entitled to file notice of his lien and to have the same enforced pursuant to the provisions of the statute.

(3.) Other questions are presented by the learned counsel for the appellants, but we think they are satisfactorily disposed of for the reasons stated in the opinion of the learned referee.

The judgment must be affirmed, with costs.

Martin, and Merwin, JJ., concurred.

Judgment affirmed, with costs.


author:
      MaetiN, J.:
      Merwin, J.:

text:
    CHRISTINA C. WHITNEY, Respondent, v. EMILY WHITNEY, MARY W. LAWRENCE and JENNIE WHITNEY, Appellants, Impleaded with Others.

      When the remedy is at law, and not in equity, to recover land— Code of Oivil Procedure, sec. 1866 — devise or legacy by implication■ — “personal necessities” construed— will construed in famor of issue of deceased child.

    Where a party holds, or claims to have, a purely legal estate in land, and simply seeks to have his title adjudicated upon, or to recover possession against an adverse claimant, who also relies upon an alleged legal title, there being no equitable feature of fraud, mistake or other fact, calling for the application of equitable doctrines, or the granting of peculiar equitable relief, the remedy at law is adequate and the concurrent jurisdiction of equity does not exist.

      Section 1866 of the Code of Civil Procedure has not changed this rule. (Merwin, J., dissenting.)

      Town of Mente v. Cook (108 N. Y., 504) distinguished.
    Where a will contains no express devise of a farm, but its provisions, when construed in the light of the circumstances surrounding the testator when it was made, show that it was his obvious intent that one of his children should have the .whole benefit of the farm, there is thereby created a devise by implication.
    A legacy although not given in express terms, will arise by implication where the words of the will leave no doubt as to the testator’s intention, and can have no other reasonable interpretation.
    The words “ personal necessities” in a will, held to be used in the sense that the property should be used for the support and maintenance of the beneficiary and his family, if he should have one, rather than to permit the use of it in business or for speculative purposes, and not in a sense in which such words would be synonymous with “individual necessities.”
    Where a will is capable of two constructions, one of which will exclude from the benefit of its provisions the issue of a deceased child, and the other of which will include such issue, the latter construction should be adopted.
    Appeal by tbe defendants, Emily Whitney, Mary W. Lawrence and Jennie Whitney, from a judgment of the Supreme Court, entered upon the report of a referee adjudging the title to certain real estate to belong to and be vested in fee in certain persons named in said report, which judgment was entered in the office of the clerk •of the county of Broome on the 6th day of April, 1891,
    The complaint alleged that on the 20th day of February 1844, Joshua Whitney made his last will and testament in due form of law to pass real and personal estate; that he died at Binghamton, N. Y., on the 13th of April, 1845, leaving said last will and testament, without having revoked or altered the same; that said will was duly proved and admitted to probate pursuant to law on the 4th of April, 1855, as a will of real and personal property, and letters testamentary were duly granted to Thomas G. Waterman, Franklin Whitney and Washington Whitney, who duly qualified as such •executors and assumed the execution of the will; that all ,of said executors have since died; that George Whitney, named in said will, died in the year 1863, and the defendants George Whitney, Bhoda Whitney and Charles W. Keeler were entitled to whatever interest in the estate of the testator said George Whitney would have been entitled to as residuary devisee if living; that Franklin Whitney, named in said will, died before the commencement of this action, and the defendants Jane C. Haskins, Pamelia W. Bogers, Caroline W. Ronk, Fannie C. W. Smith and the plaintiff were his children, and entitled to whatever interest in the estate of said testator Franklin Whitney would have been entitled to as residuary devisee if living; that Washington Whitney, named in said will, died before the commencement of this action, and the defendants Franklin Whitney, Rufus P. Whitney, Henry J. Whitney, Frederick A. Whitney and Frank II. Whitney were entitled to whatever interest in the estate said Washington Whitney would have been entitled to as residuary devisee if living; that Pamelia W. Waterman, named as one of the four beneficiaries in the residuary clause of said will, died before the commencement of this action, and her heirs and next of kin, on or about August 12,1867, assigned and released their interest, right and title in the estate of said testator to the other residuary devisees and legatees, or to their representatives; that Emily Whitney is the widow of Charles Whitney, who died on or about the 26th of April, 1885 ; that Washington Whitney, named as trustee in said will of the Conklin farm, died on or about the 11th of March, 1875, and during his lifetime did not convey any portion of said farm; that the defendants Mary Lawrence and Jennie Whitney were the children of Charles Whitney, and, with the defendant Emily Whitney, are in possession of the Conklin farm, and have been since the death of Charles Whitney, and are receiving the use, rents and avails of the same; that, upon the death of Charles Whitney, the Conklin farm, not having been disposed of by Washington Whitney, passed to the representatives or successors in interest of the residuary deviseés under said will; that the defendants named as representing or being successors in interest to said George Whitney, deceased, are entitled to one-third of said farm; that the plaintiff and the defendants named as representing or being successors in interest to said Franklin Whitney, deceased, are entitled to one-third of said farm; that the defendants named as representing or being successors in interest to Washington Whitney, deceased, are entitled to the remaining one-third interest in said farm; that the defendants Emily Whitney, Mary Lawrence and Jennie Whitney, being in possession, claim to be entitled to and to own said farm.
    The plaintiff demanded judgment for a construction of said will, and that the farm be decreed to belong to the representatives or successors in interest of the residuary devisees named in said will, and that the defendants Emily Whitney, Mary Lawrence and Jennie Whitney be perpetually enjoined from impeaching or otherwise making any claim in contravention of such judgment or decree.
    The defendants admitted many of the allegations of the complaint, but denied that upon the death of Charles Whitney the Conklin farm passed to the representatives or successors in interest of the residuary devisees under said will. They also alleged that the plaintiff had not the right to maintain this action, that the complaint did not state a cause of action, that by the ternas of the will all the beneficial interest in said farm was vested in Charles Whitney, and upon his death descended to his heirs or personal representatives. They also set up the statute of limitations.
    The evidence disclosed that Joshua Whitney, then of the village of Binghamton, Broome county, N. Y., made his last will and-testament, under his hand and seal, in due form to pass real and personal estate, which was dated February 25, 1844, of which the following is a copy:
    “I, Joshua Whitney of Chenango, Broome county and State of New York, do make my last will and testament in the manner and form following, that is to say:
    “ I give, devise and bequeath unto my wife Julia and Mary my daughter, the balance now remaining of my homestead or farm, containing about one hundred and fifty acres, including the land and premises now occupied by Whitney and Doolittle, also the buildings and lots parts of said farm,, and as at present either under contract or lease, together with all my household furniture, farming tools, live stock, farming produce either harvested or growing at my decease, carriages, sleighs and harnesses. The real property to be held by them as tenants in common until the death of my wife, when the real as well as personal property before described shall be equally divided between my daughter Mary and Franklin Whitney in fee, but inasmuch as my wife may prefer receiving, in lieu of the provisions aforesaid, a fixed annual sum of money; now it is my will that if my wife shall agree with my son Franklin to pay her in lieu of the provisions aforesaid a fixed annual sum of money, and shall fully enter into and complete such agreement, then it is my will that the said real and personal property, shall forthwith be vested in my said son Franklin and daughter Mary, one-half to each in fee. The above devise and bequest to my wife, is in lieu and in full for hei right of dower in my estate.
    “I give and devise to Washington Whitney the Conklin farm of about one hundred and sixty acres, being the east part of lot No. 2, Bingham’s patent, S. S. Susquehanna river, occupied at present by Whitney and Conroy, the same to be held in trust, that is to say, after the expiration of the present lease to William Whitney, recently made, he the said Washington may either lease the same, or if he should think best, may sell or dispose of it, and to pay over to my son Charles the rent, interest or avails of said farm in such sums as he, the said Washington, may deem most prudent to meet the personal necessities of the said Charles, and to guard against his improvidence. It is, however, my will that if Charles should return home and become steady and wish to occupy said farm, the said Washington may, if he thinks best, convey the same to the said Charles.
    “ Having heretofore advanced to my son Yirgil Whitney in lands, moneys, etc., what I consider to be his just share in my estate, I, therefore, do not make any devise or bequest to him in this'my last will and testament.
    “ Having also, heretofore, advanced to my son Yincent Whitney in lands, what I consider to be his just share of my estate, I, therefore, do not make any devise or bequest to him in this my last, will and testament.
    “Having also, heretofore, advanced to my son Joshua Whitney in lands, money, etc., what I consider to be his just share of my estate, I, therefore, do not make any devise or bequest to him in this my last will and testament.
    “ I give and bequeath to the heirs of William Whitney, deceased, all advances made him in his lifetime, and also two thousand acres of land on St. John’s river, Florida, formerly owned by said William.
    “I hereby appoint Thomas G. Waterman, Franklin Whitney and Washington Whitney my executors of this my last will and testament ; I give, devise and bequeath unto my said executors the survivor or survivors of them, and to their heirs and assigns, all the residue of my property, real, personal and mixed, wheresoever situated in trust, and for the uses and purposes hereinafter expressed, that is to say, in trust that they, the said executors, the survivor or survivors of them, shall as soon as may be after my decease, collect, sue for and recover the money or moneys due or owing or which shall thereafter become due by reason of any bonds, debts and demands; and to sell and dispose of all my real estate, wheresoever situated, and every part and parcel thereof, and convert the same as soon as conveniently may be, into ready money, for the uses and purposes hereinafter mentioned; and on such sale or sales to make and execute to the purchaser or purchasers all necessary assignment or assignments, writings or deeds to the same purchaser or purchasers, and to their several heirs or assigns, as may be proper and necessary for the purpose of giving to them, or any of them, the legal and equitable right and claim to the same, and every part thereof. And I do further direct that when all the above recited property shall be sold, disposed of and converted into ready money, in the manner above directed, or otherwise, which may or shall remain after the payment of my just debts and necessary expenses, shall be divided in just and equal proportions, share and share alike, between the following of my children, to wit: Unto Pamelia Waterman, George Whitney, Washington Whitney and Franklin Whitney, after deducting from the share or proportion of each the sums which they have, respectively, received of me for their advancement in the world, to wit: from the share of Pamelia Waterman, seven thousand dollars for farm-house in village, furniture hitherto given, and the one-fourtli part of the spring, property; from the share of George Whitney, the sum of three thousand five hundred dollars for farm on which he now lives; from the share of Washington Whitney, the sum of .four thousand dollars for the farm where E. Brown now lives, and goods had of J. Whitney & Son; from the share of Franklin Whitney, the sum of five thousand dollars for goods and village property, also fifty acres of land of lot No. Y and part of Oook’s bond. I do hereby authorize the said executors, if they should think best, to divide among the said heirs in just and equal proportions, as heretofore mentioned, all and singular the real and personal property so devised and bequeathed to the said executors, in trust, after paying, as before mentioned, all my just debts and necessary expenses.

      “ I, Joshua Whitney, do hereby revoke all wills by me before at any time made.

      “ In witness wliereof, I have hereunto set my band and seal this 26th day of February, one thousand eight hundred and forty-four.
    “JOSHUA WHITNEY, [seal.]”
    The testator died on the 13th of April, 1846. His will was duly admitted to probate and letters testamentary duly granted to the executors named therein, who qualified as such and entered upon the duties of their trust. All of the executors named in said will died before the commencement of this action. The testator left him surviving Charles Whitney, a son, who is mentioned in the will, and who was, at the death of the testator, thirty years of age, unmarried, of unsteady habits, away from home, and occasionally drank intoxicating liquors to excess. In 1851 Charles married the defendant Emily Whitney. Charles Whitney died intestate on the 26th of April, 1885, leaving the defendant Emily Whitney his widow, the defendants Mary Lawrence and Jane O. Whitney, who are his only heirs-at-law and next of kin, both of whom were over the age of twenty-one years. In 1854 Charles Whitney returned, home and wished to occupy the Conklin farm, and with the consent of Washington Whitney, the trustee named, moved upon the farm with his family and resided there until the year 1870 or 1871, when the house was burned and he moved elsewhere. From 1854 to 1885, the time of his death, he controlled the farm and received the income and rents therefrom. Since 1879, and during her father’s lifetime, Mary Lawrence contributed to the support of her father and his family an amount which nearly equaled the value of the farm in question, and with the improvements made by her exceeded its value. Washington Whitney, the trustee named in said will, died about the 14th of March, 1875, and did not during his lifetime convey the Conklin farm. The 18th of March, 1875, Stephen C. Millard was duly appointed trustee in the place of Washington Whitney, deceased. Millard never conveyed this farm. The funeral expenses of Charles Whitney, amounting to $125, remain unpaid. The appellants were in possession of the farm, and have been since the death of Charles Whitney. The farm consists of about one hundred and sixty acres and is worth about four thousand dollars
    Most of the foregoing facts were found by the referee, and as conclusions of law he held:

      “First. That the said ‘ Conklin Farm’ is vested in and belongs to the representatives or successors in interest of said residuary devisees, namely: To each of the defendants, George Whitney, Rlioda Whitney and Charles W. Keeler, one-ninth thereof; to each of the defendants, Jane O. Haskins, Pamela W. Rogers, Caroline W. Ronk, Fannie C. W. Smith and the plaintiff, Christina O. Whitney, one-fifteenth thereof; to each of the defendants, Franklin Whitney, Rufus P. Whitney and Henry J. Whitney, one-twelfth thereof; to the defendant, Fred. A. Whitney, one thirty-sixth thereof, and to the defendant, Frank FI. Whitney, one-eighteenth thereof.

      “ .Second. That the funeral expenses of Charles Whitney, deceased, amounting to about the sum of one hundred and twenty-five dollars, with interest thereon from the 26th day of April, 1885, are a lien and charge upon said ‘ Conklin Farm,’ and should be paid out of the avails thereof.

      “ Third. That the plaintiff is entitled to judgment and decree perpetually enjoining and restraining the defendants, Emily Whitney, Mary Lawrence and Jennie Whitney, from impeaching or otherwise making any claim in contravention of such judgment and decree, or from making any claim to said c Conklin Farm ’ or pi’emises, or the rents, issues and profits therefrom.

      “ Fourth. That the plaintiff is entitled to a judgment for the appointment of a receiver of said 1 Conklin Farm ’ or premises, its issues, rents and profits, and to take possession thereof and deliver the same to the plaintiff and the defendants named in the first conclusion of law herein, together with her costs and disbursements of this action to be taxed by the clerk of Broome county, N. Y., and paid out of said ‘ Conklin Farm ’ or the avails thereof, but without costs against the defendants, Emily Whitney, Mary Lawrence and Jennie Whitney, and judgment is hereby ordered accordingly.”
    The appellants requested the referee to find :
    “ 1. That had the value of said farm, and the rents, issues, profits and avails thereof been paid over to said Charles Whitney after the death of said Joshua Whitney, in such sums as to meet the personal necessities of said Charles, the whole value of said farm would have been required and paid over to said Charles before his death;
    “ 2. That upon the death of Charles Whitney all beneficial interest in said, farm passed to the defendants, Mary W. Lawrence, Jane O. Whitney and Emily Whitney;
    “ That upon the death of Charles Whitney all of the beneficial interest in said farm passed to the defendants Mary W. Lawrence and Jane O. Whitney, subject to whatever rights therein the defendant, Emily Whitney, acquired therein upon the death of Charles Whitney, as the widow of said Charles;
    “ 4. That the said farm did not pass, and has not passed under the residuary clause in said will;

      “ 5. That no interest in said farm passed under the residuary clause in said will;
    “ 6. That the residuary clause in said will is void as a trust, and no title to real estate passed under the residuary clause in said will;
    “ 7. That the plaintiff is not entitled to maintain an action for the construction of the will in question;
    “ 8. That the twenty years’ statute of limitations is a bar to the maintenance of this action by the plaintiff;
    “ 9. • That the ten years’ statute of limitations is a bar to the maintenance of this action by the plaintiff;

      “ 10. That the statute of limitations is a bar to the maintenance of this action by the plaintiff;
    “11. That, by adverse possession, the title of the defendants in said farm has become absolute;
    “ 12. As a question of laches, the court should refuse to entertain this action.”
    The referee refused to find as thus requested, and to such refusal the appellants duly excepted. They also excepted to the conclusions of law made and filed by said referee, and to each of such conclusions.
    There is nothing in the appeal-book or judgment-roll to show that the summons in this action was served upon any of the defendants except the appellants. On the trial, however, all the defendants, except the appellants, appeared by George Whitney as their attorney, and he also appeared as attorney for them as respondents upon this appeal.

      A. D. Wales, for the appellants.

      F. F. Williams, for the respondent, plaintiff.

      George Whitney, for the respondents, defendants.
   MaetiN, J.:

At the threshold of tliis investigation the question is presented* whether this action can be maintained. The action was, in form* an action in equity to obtain a construction of the last will and testa- • ment of Joshua Whitney, deceased, but its manifest object and purpose was to determine the legal title to certain real estate which was in the possession of the appellants. The appellants contend that, as the questions involved related to real estate only, and did not include the consideration of any existing trust, this suit cannot be maintained. It is quite obvious that while the determination of this case may have involved to some extent the construction of Joshua Whitney’s will, still, sucli construction was necessary only to the extent of determining who had the legal title to the real estate in question, and involved no question as to any existing trust.

Whether, under such circumstances, a suit in equity can be maintained for the construction of a will and the determination of the title to the real property claimed under it, where the questions involved could be determined in an action at law to recover the possession of the premises, is the precise question we are called up>on to determine.

The question, under what circumstances such a suit might be maintained, was somewhat discussed in Bowers v. Smith (10 Paige, 193), and in that ease Chancellor Walwoeth said: “ I am not aware of any case in which an heir-at-law of a testator, or a devisee, who claims a mere legal estate in the real property, where there was no trust, has been allowed to come into a court of equity for the mere purpose of obtaining a judicial construction of the provisions of the will. On the contrary, the decision of such legal questions belongs exclusively to the courts of law, except where they arise incidentally in this court in the exercise of its legitimate powers; or where the court has obtained jurisdiction of the case for some other pmrpose.”

Again, in Post v. Hover (33 N. Y., 602), Denio, Ch. J., said : “ The plaintiffs had no right to institute this suit to settle the construction of the will. They were, at best, only heirs-at-law of the testator, and if the devise of the homestead was void, as they contend, they had only to bring their direct action in the nature of ejectment to recover their shares in the premises. (Brown v. Smith, 10 Paige, 193). Although the Supreme Court has general jurisdiction at law and in equity, it cannot entertain an action for equitable relief where such an action could not have been sustained in a court of equity, though they might have sued at law in another form of action.”

Judge Folger, in Bailey v. Briggs (56 N. Y., 413), had the same question under consideration and stated the rule as follows: “ It is when the court is moved in behalf of an executor, trustee or cestui que trust, and to ensure a correct administration of the power conferred by a will, that jurisdiction is had to give a construction to a doubtful or disputed clause in .a will. The jurisdiction is incidental to that over trusts.” The rule, as stated by Judge Folger, was expressly approved by the court in Chipman v. Montgomery (63 N. Y., 230), and Allen, J., said: It is by reason of the jurisdiction of the Court of Chancery over trusts that courts having equity powers as an incident of that jurisdiction, take cognizance of and pass upon the interpretation of wills. They do not take jurisdiction of actions brought solely for the construction of instruments of that character, or when only legal rights are in controversy.” The same rule was recognized in Monarque v. Monarque (80 N. Y., 321).

In Dill v. Wisner (88 N. Y., 153) it was held that an executor could not maintain an action for the construction of a clause of a will disposing of real estate, unless he was invested with a trust under the will in reference to the subject-matter of the devise.

Again, in Wager v. Wager (89 N. Y., 161), it was held that an heir-at-law or devisee, who claims a mei’e legal estate in real property when there is no trust, cannot come into a court of equity for the mere purpose of obtaining a judicial construction of the provisions ■of the will.

The question was also considered in Weed v. Weed (94 N. Y., 243), and ANdbews, J., stated as the rule that “a devisee, who claims a mere legal estate in real property of the testator, where there is no trust, cannot maintain an action for the construction of the devise, but must assert his title by ejectment or other legal action, or if in possession must await an attack upon it and set up the devise in .answer to the hostile claim.”

That the foundation of jurisdiction in such a case rests on the jurisdiction which a court of equity has over trusts was again recognized in Horton v. Cantwell (108 N. Y., 267).

In Anderson v. Anderson (112 N. Y., 110), it was said by Peckham, J.: “ Tlie jurisdiction of courts of equity in considering doubtful or disputed clauses in a will lias been held with entire uniformity by the courts of this State to result from its jurisdiction over trusts, and that exists only when the court is moved on behalf of an executor, trustee or cestui qtoe trust and to enforce a correct administration of the power conferred by the will.” After citing Weed v. Weed (supra), and stating the doctrine there held, the judge says: “ It is true that was an action for the construction of certain clauses in a will and hence is not directly in point here. But it shows the tendency of the court to continue in the same path it has tread for many years, by denying jurisdiction in equity in matters regarding wills separated from trusts and to send to the legal branch of the court questions of that nature for determination.”

This review of the authorities discloses that from 1813 until 1889 the highest courts and the most eminent judges of the State have uniformly held that an action in equity for the construction of a will could be maintained only by virtue of its jurisdiction over trusts; and that such jurisdiction does not exist except where the action is brought by an executor, trustee or cestui que trust to enforce a correct administration of the powers conferred by the will. While it has been held that where a trust existed, and a suit in equity was brought to enforce the execution of it, the court having thus acquired jurisdiction might in such a suit construe a will and determine such legal questions as might incidentally arise; still no such jurisdiction has been held to exist except, where the purpose of the action was to enforce the trust contained in the will.

Certainly this action was not brought to enforce the execution of any trust contained in the will of Joshua Whitney. The learned referee has held that the trust created by the will was fully executed, and that the power in trust to sell the premises or convey them to Charles terminated with his death, hence there could have been no-trust, or power in trust, which could have been enforced. The clear and manifest purpose of this suit was to establish the rights of the plaintiff and the defendants, other than the appellants, to the premises in question. The rights claimed were as successors in title to-the residuary legatees. Those were merely legal rights, and if the doctrine of the authorities cited is to control, should be enforced as such by an action of ejectment or other legal action. The doctrine of' the cases cited requires us to hold that this action cannot be maintained unless sufficient authority to justify such an action is given by section 1866 of the Code of Civil Procedure.

The respondents contend that that section directs the exercise of jurisdiction in such a case, even though no trust is involved. Its provisions, so far as applicable to this question, are: “ The validity, construction or effect, under the laws of the State, of a testamentary disposition of real property situated within the State, or of an interest in such property, which would descend to the heir of an intestate, may be determined, in an action brought for that purpose, in like manner as the validity of a deed purporting to convey land may be determined. The judgment in such an action may perpetually enjoin any party from setting up or from impeaching the devise, or otherwise making any claim in contravention to the determination of the court, as justice requires.”

They also cite Tiers v. Tiers (32 Hun, 184; 98 N. Y., 568); Jones v. Jones (1 How. Pr. [N. S.], 510); Drake v. Drake (41 Hun, 366); Snell v. Tuttle (44 id., 324); Adams v. Becker (47 id., 65) and Read v. Williams (125 N. Y., 566) as sustaining their contention.

In the case of Tiers v. Tiers the question under consideration was not involved. While the court states in its opinion that the action was brought- under the authority of section 1866, it does not appear that any objection to the form of the action or the jurisdiction of the court was raised or determined. In Jones v. Jones, which was a Special Term decision, it was held that section 1866 had changed the law as it existed prior to the adoption of that section, and that under it an action between devisees for the construction of a will might be maintained. In Drake v. Drake it was held that under the rule established in Weed v. Weed (supra), the action could be maintained, as it involved an important trust, and that the execution of that trust called upon the court for the exercise of its equitable jurisdiction. We do not find that this question was involved in Snell v. Tuttle. No such question seems to have been raised. In Adams v. Becker it was held that the rule had been changed by section 1866, and that under the provisions of that section an action by an heir-at-law for the construction of a will could be maintained. This question was not involved in the determination of the case of Read v. Williams. It is true that, in that case, ANDREWS, J., said that this section had extended the remedy so as to include suits for the construction of devises in behalf of heirs claiming adversely to the will, but it will be observed that the decision of that question was in no way involved in the case, and under what circumstances such a suit could be maintained was not considered or determined.

On the other hand, it was held in Ruppel v. Schlegel (55 Hun, 183), decided in 1889, that an. action by an heir-at-law could not be maintained for the construction of a will. In Gage v. Gage (43 Hun, 501), decided in 1887, the same doctrine was enunciated, although the question was not raised. In Hovey v. Purdy (10 N. Y. St. Rep., 40), decided in 1887, the doctrine, as it was established in Weed v. Weed and kindred cases, was distinctly held. It will be observed that the cases of Horton v. Cantwell and Anderson v. Anderson were decided since the enactment of section 1866; and while they do not decide the question we are considering, they seem to recognize the rule as it previously existed. Thus we see that the authorities bearing upon the question whether such a change has been wrought by that section are not harmonious.

When we refer to the statutes that have existed relating to this subject we find that section 1866 of the Code of Civil Procedure was not new, but a revision of section 1 of chapter 238 of the Laws of 1853, which provided: The validity of any actual or alleged devise or will of real estate may be determined by the Supreme Court in a proper action for that purpose, in like manner as the validity of any deed conveying, or purporting to convey, lands might be determined by such court, and thereupon any party may be enjoined from setting up or from impeaching such devise as justice may require.” This section was amended in 1879 so as to read as follows: “ The validity of any actual or alleged devise or will of real estate may be determined by the Supreme Court in a proper action for that purpose, in which all persons interested, or who Claim an interest in the question, may be made parties; and such action may be brought by any heir-at-law of the actual or alleged testator or testatrix, or by any devisee under any actual or alleged will; and thereupon, after final judgment in such action, any party may be enjoined from setting up or from impeaching such devise or will as justice may require.” (Chap. 316, Laws of 1879.)

That section 1866 was intended as a substitute for the provisions of section 1 of chapter 238 of the Laws of 1853 is shown by Mr. Throop’s note to that section. He also specifies therein the amendments to the statute of 1853 intended, which do not include any that would increase the jurisdiction of the court so as to authorize this action. A comparison of the statute of 1853 with the provisons of section 1866, so far as they relate to the question under consideration, shows that the only change made was that the words validity, construction or effect ” were inserted in place of the word “ validity.” It is claimed that this change in the phraseology of the statute has enlarged the jurisdiction of a court of equity to an extent authorizing this action, although the plaintiff’s legal remedy was full and adequate.

It is a cardinal rule of equity that it will not entertain jurisdiction of cases where there is an adequate remedy at law, or grant relief unless for the purpose of preventing serious and irreparable injury. These principles are elementary and lie at the foundation of all equitable jurisdiction. Equity, therefore, interferes in the transactions of men by preventive measures only when irreparable injury is threatened, and the law does not afford an adequate remedy for the contemplated wrong.” (Thomas v. M. M. P. Union, 121 N. Y., 52.)

“ In all cases where the plaintiff holds ór claims to have a purely legal estate in land, and simply seeks to have his title adjudicated upon, or to recover possession against an adverse claimant who also relies upon an alleged legal title, there being no equitable feature of fraud, mistake or otherwise, calling for the application of equitable doctrines or the granting of peculiar equitable reliefs, the remedy at law is adequate, and the concurrent jurisdiction of equity does not exist. A suit in equity, under its concurrent jurisdiction, will not be maintained to take the place of the action of ejectment, and to try adverse claims and titles to land which are wholly legal, and to award the relief of a recovery of possession.” (1 Pomeroy’s Eq. Jar., 162, § 177, and cases cited in note 1.) Where the construction of a statute has been settled by adjudication a mere change of phraseology made in the revision of it should not be deemed to change the law unless it appears evident that such was the legislative intent. (Du Bois v. Brown, 1 Dem., 317; Goodell v. Jackson, 20 Johns., 697, 722; In re Brown, 21 Wend., 316; Taylor v. Delancy, 2 Cai. Cas., 143, 151.) So, too, the intention to change the rule of the common law will not be presumed from doubtful statutory provisions. The presumption is that no such change was intended unless the statute is clear and explicit in that direction. (People v. Palmer, 109 N. Y., 110; Fitzgerald v. Quann, Id., 441; Dean v. M. E. R. Co., 119 id., 540.)

When we consider the question before us in the light of the then existing statutes, of which section 1866 was a revision, the rules so uniformly established that equity will not entertain such an action; that courts of equity will not try adverse legal claims to real estate therein ; that an action in equity cannot be maintained when a full and adequate remedy at law exists, the statement in the note to section 1866 of the amendments intended, which do not include the one claimed, the presumption that no such change was intended, we are led to the conclusion that it was not the intent of the legislature by the addition of the words construction or effect ” to so change the law as it then stood as to authorize the maintenance of an action in equity where the sole purpose was to test the legal title to real property, and the action of ejectment would afford a full and adequate remedy.

Moreover, section 1866 provides that the question of the validity, construction or effect may be determined in like manner as the validity of a deed purporting to convey land may be determined. Thus it would seem that the right to maintain such an action is limited to cases where a similar action might be brought to determine the validity of a deed. I am aware of no principle that would justify a court of equity in determining the validity of a deed under which a person not in possession of real estate claimed title, as in such a case all the questions involved could be determined in an action at law for the possession of the premises.

Whether section 1866 is to be construed as simply declarative of the law as it previously existed under the former statutes and decisions, or whether it was intended to somewhat extend the remedy by a suit in equity so as to include the construction of a will where the party seeking it is in possession, or for any other reason, has nn immediate remedy at law, we need not now decide. We are, however, of the opinion that the legislature did not intend by this revision of the statute to confer such additional jurisdiction as would authorize the maintenance of a suit in equity to determine the title to real property, when the plaintiff has a full, adequate and immediate remedy by an action at law.

There has been no waiver or acquiescence on the part of the appellants. They have insisted from the first that the suit could not be maintained. Tlfis they have done by answer; by objection to evidence; by motion to dismiss the complaint; by request to find, and by exception to the rulings and decisions of the court upon such motions, objections and requests.

This case does not fall within the principle of Town of Mentz v. Cook (108 N. Y., 504). In that case it was alleged in the complaint, and admitted by the answer, that the plaintiff had no adequate remedy at law. In this there was no such allegation ; indeed, no allegation showing any necessity for the interposition of a court of equity. To this complaint the appellants answered that the plaintiffs had not the right to maintain the action, and that the complaint did not state a cause of action. Upon this state of the pleadings we do not think the appellants can be held to have waived their right to raise the question.

We are of the opinion that this suit could not be maintained, and that the learned referee erred in not dismissing it.

When, however, we pass the question of the respondents’ remedy, and examine the question of their rights under the will of Joshua Whitney, our conclusion is, that the construction given to the will by the learned referee cannot be sustained. It is contended by the appellants, and we think justly, that, although the will in question contained no express devise of the Conklin farm to Charles Whitney or his heirs, yet, as its provisions, when construed in the light of the circumstances surrounding the testator when it was made, show that it was his obvious intent that Charles should have the whole benefit of the farm devised, there was a devise by implication whereby the heirs of Charles, upon his death, became vested with the title in fee. On the other hand, it is claimed by the respondents that, inasmuch as the trustee appointed by the will of Joshua Whitney neglected to execute the power to sell the premises or to convey them to Charles during his lifetime, upon the death of Charles the title passed to the persons named in the residuary clause of the will, or to their heirs.

When we examine - this will we find that it first makes provision for the testator’s wife, daughter Mary and son Franklin. It then gives and. devises to Washington Whitney the farm in question, to be held in trust, with power to lease, sell or disjwse of it, and to pay to Charles the rent, interest or avails in such sums as he,Washington, might deem most jnuident to meet the personal necessities of Charles, and guard against his improvidence. It then provides that if Charles should return home, become steady and wish to occupy the farm, the trustee might, if lie thought best, convey the same to him.

The testator then states that he has advanced to his sons, Yiigil, Yincent, Joshua and William their shares of his estate, and hence gives them nothing by his will.

Next he appoints Thomas G-. Waterman, Franklin and Washington Whitney as his executors, and gives and devises to them the residue of his property, in trust, to collect all debts due him, to sell and dispose of all his real estate as soon as might be, and when the same was converted into money the executors were to pay his debts and divide the remainder equally between Pameha Waterman, George, Washington and Franklin Whitney, taking into account, in determining the share of each, the sum that he or she had received as advancements which were therein specified.

At the time this will was made the testator was one of the leading citizens of the then village of Binghamton, was possessed of a considerable estate, and had seven sons and two daughters living; one son had previously died. By his will he made provision for each of them except those to whom he had already advanced their share, and as to those to whom he had made partial advancements he provided for equalizing the amount that each should receive, including such advancements as had been made, so that each should receive what the testator deemed his or her proper share of his estate. The whole purpose and purport of the will was to divide his estate among his children, including such amounts as had been advanced. When he came to the share which, in the division of his property was plainly intended for Charles, he devised that in trust to Washington to lease or sell, and pay the rent, interest or avails in such sums as he should deem most prudent to meet the personal necessities of Charles and to guard against his improvidence. Much stress is laid upon the words “personal necessities” by the respondents, and it is claimed that the use of those words indicates that the testator did not intend a devise for the benefit of the heirs or family of Charles. We do not think the words are entitled to the significance claimed. The words “personal necessities” obviously were not used in the sense of being synonymous with individual necessities, but in the sense and to convey the idea that the property should be used for the support and maintenance of Charles and his family, if he should have one, rather than to permit the use of it in business, or for other speculative purposes. The statement that the rent, interest or avails were to be paid over to Charles in such sums as Wasliington deemed most prudent to meet the personal necessities of Charles, and to guard against his improvidence, strengthens the view we have taken and shows quite clearly, we think, that this farm was intended to be given to Charles, and he was to have the whole benefit of it; and that the only purpose of appointing a trustee was to prevent the dissipation of the property by his improvident habits. This view is still further strengthened by the provision that if Charles should return home and become steady and wish to occupy the farm, the trustee, if he thought best, might convey it to him. We think the primary purpose of the testator was to properly and justly divide his property among his children, and that his secondary purpose, which related exclusively to the property intended for Charles, was that the property devised to a trustee for Charles should be preserved by the trustee for his use, which would include providing for his family, if he had one. If the trustee thought best he might convey the title to Charles, if not it was to remain in the trustee for Charles’ benefit.

Looking at the residuary clause of the will we find that the residuary estate was given and devised to trustees, to collect the debts and sell the land of which it consisted as soon as might be and divide the avails between certain of his children. The division was to occur as soon as such collections and sales were made, unless the executors saw fit to divide the real and personal estate without sale, when a division might be sooner made. Surely the testator could not have contemplated the sale of the farm in question, or that it should form any portion of the property to be divided among the residuary legatees, or that the division by the executor of the residuary estate should await Charles’ death. The testator evidently intended to dispose of all his property by his will, and to include in the residuary clause only what remained, excluding that mentioned in the preceding provisions, and by its terms disposed of, including that intended for Charles. When we consider all the provisions, and the general scope and apparent purpose of this will, it becomes quite manifest that the testator intended that Charles should have the full benefit of the Conklin farm, including its value as well as its use, and if it was not disposed of during his life that it should descend to his heirs.

Although a gift by express terms is not made in a will, a legacy by implication may be upheld, where the words of the will leave no doubt of the testator’s intent, and can have no other reasonable interpretation. (Matter of Vowers, 113 N. Y., 569; Masterson v. Townshend, 123 id., 458, 461; Matter of Lapham, 37 Hun, 15; Woodward v. James, 115 N. Y., 356; Phillips v. Davies, 92 id., 199; Jackson v. Billinger, 18 Johns., 368; Sturges v. Cargill, 1 Sandf. Ch., 318; Cropton v. Davies, L. R., 4 C. P., 159, 166.)

In Matter of Vowers the testator died leaving a widow, but no children. His will, after a provision made for his wife, contained the following clause: “ This provision to be accepted by my wife in lieu of her dower right and distributive share in my estate. She may make her election whether she accepts this provision of my will within sixty dajrs of the time of proving the same.” The widow, within the time specified, made her election, rejecting the provision. The residuary estate was given to a nephew of the testator. In proceedings for the probate of the will it was held that, aside from her dower right, the widow was entitled to such share of the personal estate as the law would have given her had the deceased died intestate, and that, although there was no express devise of such share, there was a bequest by implication.

In Masterson v. Townshend the testator devised a half interest in real property to his executor to collect the rents and pay over $600 to his wife as long as she remained unmarried, and to pay the balance to his brother, but in the discretion of his brother and the executor, if it should be deemed advisable to sell, then the executor was authorized to sell, and from the proceeds 'to pay to the wife $600 as long as she remained unmarried, and upon her marriage or death all the proceeds were to be paid to his brother. The widow remarried, and it was held that there was a devise by implication of the real estate by the testator to his brother, subject only to the trust made for the testator’s widow.

In the Matter of Lapham a testator by will, which contained a general residuary clause, bequeathed to his aunt, for the exclusive benefit of her four children, the sum of $2,000, the interest and principal, if necessary, to be used for their education. There was no express direction to pay the fund, or any portion of it, to the children in any event, but it was held that the direction to do so was fairly implied, and that the title to the fund vested in the four children in equal shares.

In Woodward v. James it was held that the devise of an estate to a person as trustee was raised by implication, as the exigencies and situation required it, and that intention was indicated by the will.

In Phillips v. Davies it was held that a power of sale was conferred upon the executors by implication, extending it beyond that specifically mentioned in the will.

In Jackson v. Billinger, H., by his will, devised as follows: “ My will and personal pleasure is that my son John shall have the farm which I now live upon, etc., two of the best negroes, all of my wearing apparel, three geldings, etc., but if my said son may happen to die unmarried, without lawful issue, then it is my will and pleasure that the said estate shall descend to my next heir of the name óf Ii., and that he may not sell, exchange or dispose of any part of said estate without the consent, approbation and concurrence of my executors.” The testator died in August, 1775, leaving five sons and eight daughters. John, the devisee, died April 20, 1817, unmarried and without issue, leaving one sister and nephews and nieces. It was there held that John, the devisee, took an estate tail by implication, and that the devise over, depending upon indefinite failure of issue, was not good as an executory devise; and the estate tail being converted into an estate in fee simple by the statute, it descended on the death of John to his heirs-at-law according to the statute regulating descents.

In Sturges v. Cargill it was held that where the language of a will necessarily confines the interest of the parent to his life, the courts, in construing it, will lay hold of slight circumstances to raise a gift in the children and avoid imputing to the testator the extraordinary intention of giving the property to the devisee or legatee over, and' leaving the issue of the tenant for life unprovided for. In that case D. C. by his will, after providing for his wife, divided his real estate in five portions which were nearly equal. He first gave one of the portions to his executors, in trust, and they were to hold it for the separate use of his daughter Jane during her life, but the will was silent as to the trust estate after his death. The next portion he gave to his son Thomas in fee. The next portion he gave to his executors, in trust, for the use of the wife of his son Henry during her life, and on her death the estate was to descend to Henry’s children. The fourth portion was given to trustees in like manner for the use of his son Edward during life, and after his death the estate was to go to Edward’s heirs. And the fifth and last portion he gave, in part, to his son David in fee, and in part to David for life, with remainder to his right heirs. The residue of his estate the testator gave to his executors, in trust, to divide among his children and daughter-in-law before named, to and for the same estates, uses, limitations and trusts as before provided. He authorized his executors to sell any of the real estate, and on their selling any they were to arrange it so as to make up the share out of which it was sold equal to the other shares so that no one of his children or such devisees should be losers by such sale or less benefited by his bounty thereby devised to them severally and respectively. At the date of the will his daughter Jane had a large family of children, and her husband was, in the’ testator’s opinion, unfit to manage her estate. No reason or circumstance appeared which could have induced the testator to omit a provision for these children. On the construction of the will, held that the effect of the devise was to vest the first parcel in trustees in trust for Jane for life, with remainder to her children.

In Cropton v. Davies a testator devised three freehold houses to trustees in trust as to the first two, to receive the rents and pay the same to his wife during her life or widowhood; and after her decease or second marriage, as to the first upon trust, to convey and assign the same to his daughter E. A. M., her heirs and assigns forever; as to the second, in similar terms to his daughter C. R. M., and, as to tlie third upon trust, to apply the rents for the advancement and benefit of my grand-daugliter M. A. O. until she attained the age of twenty-one years; but in case my said grand-daughter should die under that age, then I devise the said dwelling-house, etc., to my daughters E. A. M. and O. N. M., their heirs and assigns as tenants iii common. Held, that the trustees took a legal estate in fee in the three houses, and that the grand-daugliter, by implication, took an equitable estate in fee in the third house, subject to defeasance in the event of her dying under twenty-one years of age.

Where a will is capable of two constructions, one of which will exclude the issue of a deceased child, and the other include such issue, the latter construction should be adopted. (Matter of Estate of Brown, 93 N. Y., 295, 299.)

As when we consider all the provisions of this will, we come unhesitatingly to the conclusion that it was the testator’s intent that Charles should have the full benefit of this farm, and if he should die leaving it or any portion of it unexpended, it should vest in his heirs, the authorities cited seem to justify 'us in holding that, upon the death of Charles, the title vested in IVIary Lawrence and Jane O. Whitney, subject to any dower the widow might have therein. This determination is eminently just and equitable, and, as it carries into effect the manifest intent of the testator, should, we think, prevail.

We are of the opinion that, upon the death of Charles, the real estate in question descended to the appellants, IVIary Lawrence and Jane O. Whitney, subject to any right of dower their mother may have therein.

Why the moneys advanced by one of the appellants for the support of Charles and his family, which was nearly equal to the value of the farm, should not have been declared a lien upon it as well as his funeral expenses; the effect of section 21, chapter 2, part 2 of the Nevised Statutes, and several other interesting questions were presented in this case, but the view 'we have taken of those already considered renders their examination and decision unnecessary. ,

We think, for the reasons already stated, the judgment should be reversed.

Hardin, P. J., concurred.

Merwin, J.:

I think that, under section 1866 of the Code, the action is maintainable. I concur, however, in the construction given bj Brother Martin to the will, and upon that ground favor a reversal.

Judgment reversed and a new trial ordered, with costs of this appeal against the respondents to abide the event.