text:
    ANNA M. SMITH, Respondent, v. JOHN ATHERTON, Executor and Legatee of WILLIAM ATHERTON, Deceased, Appellant, Impleaded with BENJAMIN COLERICK and Others.

      TViU — a devise to a son, followed, by a bequest of the residue to such son after payment of the testator’s debts, and the appointment of the son as executor, does not charge the real estate, devised with the payment of the debts.

    A testator by his will devised to his son, John Atherton, certain real estate in fee, and after making certain money bequests, provided in the residuary clause of his will as follows: “I give and bequeath to my sou, John Atherton, before mentioned, the balance of my personal property, after his paying all just claims and demands against said estate, and I hereby appoint him to he sole executor to this my last will and testament.”
    The son qualified and entered upon the discharge of his duties as executor and accepted the devise of the real estate.

      Held, that the legacies given by the will were not, hy the terms of the residuary clause thereof, made a charge, upon the real estate devised thereby to the son of the testator.
    Appeal by tbe defendant, John Atherton, from a judgment entered^ upon the report of a referee, in the office of the clerk of Allegany county, on the 27th day of September, 1883.

      Adelbert Moot, for the appellant.

      G. W. Ha/rding, for the respondent.
   Barker, P. J.:

The question presented by this case is, whether the $600 to the plaintiff given by the fourth clause of the last will and testament of “William Atherton, was made a charge upon the real estate specifically devised by a previous clause of the same will to the appellant, John Atherton? The appellant was the only son of the testator, and the respondent was his granddaughter, who had, during many years of her infancy, resided with him as a member of his family. The testator, at the time of making his will, and at the time of his death, resided on the premises, a farm containing about seventy-five acres, and he owned no other real estate. The wife of the testator survived him, and she has a right of dower in the premises. The personal property which came to the hands of the executor was sufficient in value to pay all the testator’s debts, but not to pay off the legacies in full. By the first clause of the will the testator gave ' to his wife, during her natural life, the use of the house on the ■premises, and the furniture therein, “together with everything necessary to make her comfortable.” By the second clause he devised to his son, the appellant, the fee of the premises in question. By the third, fifth and sixth clauses of the will, he made small bequests to his children and grandchildren, and by the fourth clause he gave to the respondent the legacy in question in language as follows: “ Fourth. 1 give and bequeath to my grandchild, Anna Maria Brady, $600, to be. paid to her at her arriving at the age of twenty-one years, or sooner if she shall marry and want it before arriving at that age. The interest on the above to be paid to her yearly. I also give to her the balance of my household furniture, after my wife, Elenor Atherton, is through with the same.” The residuary clause is as follows : “ Seventh. I give and bequeath to my son John Atherton, before mentioned; the balance of my personal property, after his paying all just- claims and demands against said estate, and I hereby appoint him to be sole executor to this my last will and testament, hereby revoking all former wills by me ’made.”

This will was executed on the'3d day of May in the year 1869. On the 15th day of September, 1871, the testator added a codicil, in which' he recited that he had paid off a legacy of $600 to his daughter Lydia, and for that reason he revoked the same, and that another of the legatees had died, and for that reason he revoked that bequest. He then, in some respects, changed the character of the bequest to his daughter, the plaintiff, giving her, however, a legacy of $600, in the precise language in which that sum was given by the fourth clause of the original will, which has been quoted, and then made some special bequests of household furniture, which it is unnecessary to mention. The appellant caused the will to be probated and received letters testamentary, and entered upon the discharge of his duties as executor, and accepted the devise of the real estate.

The rule is well established that the personal estate of the testator is the primary fund for the payment of general legacies, and it is the only fund out of which the same can be paid unless express direction or a clear intention otherwise is found in or may he gathered from the will in connection -with surrounding circumstances. (Lupton v. Lupton, 2 Johns. Ch., 614; Bevan v. Cooper, 72 N. Y., 317.) Following this rule as a guide, we will inquire if, by the terms of the will and the extrinsic facts and circumstances connected therewith, the case indicates an intention on the part of the testator that the legacy to the plaintiff: should be paid at all events, and if the personal property was insufficient for that purpose, then, that the same should be a charge on the real estate devised to his son, the appellant.

I am unable to discover an intention on the part of the testator, from the terms of the will, that it was his purpose to diminish the value of the gift of the fee of the land to his son by the payment of the whole or any part of the legacy in question. Nor do the extraneous facts and circumstances connected with the provisions of the will produce on my mind a contrary impression. It is to be observed that the devise of the land is specific, and precedes in the order of the gifts all the legacies, except the provisions for the support and maintenance of his widow. This is a controlling circumstance and distinguishes the case from those which have been cited in support of the respondent’s contention. It is not sufficient that the debts or legacies are directed to be paid to make them a charge upon the real estate devised to other persons. That alone does not create a charge; but they must be directed to be' first or previously paid, or the devise declared to be made after they are paid. There is no such language here, nor is there any in the residuary clause which supports the respondent’s argument. It may be asserted that it has never been decided in any of the courts of this State, where there has been a specific devise of real estate, that general legacies have been made a charge, thereon, unless by the will the devisee has been directed to pay the same or the devise was made upon the condition that the legacy should be paid. When the devise of land is specific, it is in the nature.of a grant, and the devisee takes an absolute and unconditional title, unless there is something in the other provisions of the instrument, containing the devise, indicating a contrary intention on the part of the devisor. In such a case extraneous facts and circumstances alone cannot be resorted to for the purpose of creating a charge on the premises devised for the purpose of paying off legacies. The nature and extent of the gift or devise must be indicated by the terms of the instrument, if these propositions are accepted as true, there is nothing upon which an argument can be based in support of the plaintiff’s position.

The cases cited by the learned counsel for the plaintiff in support of the judgment involved more than is found in this will, for in those cases there is a direction that the legacies be first or previously paid, or the devise is to a person with directions that he pay the legacy. It is insufficient to create a charge where the direction simply is that the legacy be paid. The cases in this State settle and affirm this proposition, that general provisions in a will giving legacies, followed by the usual residuary clause devising real estate, is alone insufficient to charge the legacies on the land devised. (Brill v. Wright, 112 N. Y., 135.) As the legacy in question was general and the devise was specific, 'the proposition stated determines that the legacy cannot be held a charge on the lands ■ devised by reason of anything appearing on the face of the will.

The ease last cited also states the further proposition that where the legacy is general and the devise is by the usual residuary clause, such language will justify such charge if it is made to appear by extraneous circumstances, such as may be under the rules of law resorted to to aid in the interpretation of written instruments, that it was the testator’s intention that the legacy should be charged on the land ; but this proposition, taken as a whole, does not permit the respondent to found an argument thereon, in support of the judgment, for the devise of the land is not contained in the residuary clause of the will. The counsel for the respondent does not contend against the proposition just stated, but relies mainly upon the point that the devise was upon the condition that the devisee pay the general legacies. The only provision in the will upon which this point can rest for support is found in the 'residuary clause. There the gift to the devisee was the balance of the testator’s personal property after payment of all just claims and demands against his estate.” This provision has no relation whatever to the real estate previously devised, for all he owned of that kind of property he had given by a previous clause in the will to his son, and the request contained in the last and residuary clause related wholly to personal property.

It is also contended by the respondent that, as the devisee was appointed executor of the will, and he accepted the devise, he became personally liable to pay the legacy, and the same may be made an equitable charge upon the land. He relies upon this proposition as stated in Brown v. Knapp (79 N. Y., 143), that when a .legacy is given and is directed to be paid by the person to whom real estate is devised, such real estate is charged with the payment of the legacy. And the rule is the same when the legacy is directed to be paid by the executor, who is the devisee of real estate.” In the case before us the legacy is not directed to be paid by the devisee John Atherton, nor is he, as executor, personally required to pay the same. The legacy is a common pecuniary one, for the language of the bequest is: “I give and bequeath to my grandchild, Anna Maria Brady, $600, to be paid to her on her arriving at the age of twenty-one years, or sooner, if she shall marry and want it before coming of that age. The interest on the above sum to be .paid to her yearly.”

This is nothing but a simple gift fixing the time of payment, and that the same bear interest until paid; if the direction had been that the legacy.be paid by John Atherton, or that the executor named in the will should pay the same, then the case would be brought within the rule as before stated, for by the use of the word executor it would indicate that the testator intended and referred to the devisee, as thereafter named, as the executor of the will. To make the devisee personally liable, or to charge the legacy upon the land devised, the language must be clear and certain, containing a personal direction or request that the devisee pay the legacies, otherwise the devisee of real estate would be personally liable for the payment of common or general legacies in every instance where he accepted the land devised. An examination of the cases will show, as we think, that in. evei'y instance where the proposition has been held to apply and the lands charged with the legacy the devi'see was expressly and personally required or directed to pay the legacy. In Harris v. Fly (7 Paige, 421) the testator devised to his son in fee a tract of land, and this was followed by a bequest to Ms daughters of pecuniary legacies to be paid by his son, the devisee of the real estate, and it was held that the legacies were a charge upon the premises. The chancellor stated the rule to be, that the personal estate is the primary fund for the payment of debts and legacies. If the testator, therefore, gives a legacy without specifying who shall pay it, or out of what fund it shall be paid, the legal presumption is that he intended it should be paid out of his personal estate only, and if that is -not sufficient the legacy fails. So if he directs Ms executors to pay a legacy without giving to them any other fund, than the personal estate out of which they can pay it. But where the real estate is devised to the person who by the will is directed to pay the legacy, it has frequently been decided that such legacy is arL equitable charge upon the real estate so devised, although the devisee is also the executor, or is the residuary legatee of the personal estate, unless there is something in the will itself to indicate a contrary intention on the part of the testator. Thus, in the case of Alcock v. Sparhawk ( 2 Vern. Rep., 228), where the testator devised his real estate to his brother, and then gave a legacy, of £200 to the complainant, to be paid by his executor within five years, and appointed the devisee the sole executor of his will, desiring him, to see it performed, it was held that the real estate devised to the brother was charged with the payment of the legacy, the personal estate proving insufficient for that purpose.”. In Brown v. Knapp (supra) the bequest was: I give and devise and bequeath to my grandson, Samuel Herbert Brown, the sum of $3,000, and direct my executor, hereinafter named, to pay to him the said sum when he shall attain the age of twenty-one years; ” and the residuary clause of the will was as follows: “ The rest, residue and remainder of my real and personal estate, I give, devise and bequeath to my son William S. Brown, and I constitute and appoint Mm sole executor of this my will; ” and it was held that the devisee of the real estate was personally liable for the payment of the legacies to the grandson, and that the same would become a charge in equity upon the real estate devised.

From, the language used in the will it cannot be fairly held that the devise'was conditional or any expectation expressed that the devisee should make payment of any of the legacies, or that he should, as executor, pay the same except from the personalty. The testator was a small farmer and his personal estate was not large, and it may be assumed that when he made his will, and added thereto the codicil, that he was familiar with the condition of his personal property, and that he intended that all the legacies should be paid in full. There is no presumption that when the will was made that his personal estate was not adequate for that purpose, If it was not, and the fact was material, the burden of establishing it was upon the legatee, who is seeking to charge the real estate devised to another -with the payment of the legacy. There is much evidence tending to show that, as a matter of fact, the testator relied and acted upon the assumption that his personal property would pay off the legacies, and it has not been found as a fact that the personal property was insufficient to pay the debts and legacies at the time of the making of the will and also of the codicil. Between the time of the making of the will and the date of the codicil the testator had paid off the legacy of $600 to his daughter, Lydia, and by his codicil revoked it. The referee has found that the personal property which came to the hands of the executor amounted to $256 more than the debts and funeral expenses, and the costs and charges of administering the estate, so that it appears that, at the time of the death of the testator there was enough of the personal property to pay debts and legacies in full, within $444, which is a sum-so small that it is fair to presume that the testator believed when he made his will, and also at the time he added the codicil, that his personal property would pay the legacies in full, and that his son would enjoy the real estate free from the charge to pay the legacies, or any part thereof, as the fact is not found that, at the time of making of the will, the personal estate was not ample to pay debts and legaeies in full. (Brill v. Wright, 112 N. Y., 136.)

Judgment should be reversed and new trial granted before another referee, with costs to the appellant to abide the final award of costs.

Dwight and Macombek, JJ., concurred.

Judgment reversed and new trial granted before another referee, with costs to appellant to abide the final award of costs.


source: Caselaw Access Project

author: Barker, P. J.:

license: Public Domain

text:
    MORRIS ROSEN, Respondent, v. NATHAN STEIN and Others, Appellants.

      Arrest, without probable cause, and for the purpose of enforcing a civil right — presumption of malice — change as to.

    Where a party applies to a criminal court for the arrest of another, without probable cause and with a view of enforcing a civil right, the jury, in an action brought by the party arrested to recover damages for false imprisonment and malicious prosecution, is justified in finding that the party prosecuting the arrest was actuated by malice.
    The court, in such a case, may properly charge the jury that if they find that there was no probable cause to make the charge against the plaintiff, that they may infer from that fact alone that it was made through malice only.

      McCormack v. Perry (47 Hun, 74) distinguished.
    Appeal by the defendants from a judgment in favor of the plaintiff for $1,098.01, entered in the office of the clerk of Monroe county on February 1, 1888, and from an order entered on the decision of a motion made on the minutes of the court for a new trial on the ground that the verdict was contrary to evidence, was against the weight of evidence, was contrary to law, and for an excessive amount, and upon the exceptions taken to the admission of evidence and to the charge of the court, made January 30, 1888, which was entered in said clerk’s office on the 21st day of May, 1888, denying said motion, with costs.
    The action was brought to recover damages from the defendants, who were copartners in business, for false imprisonment and malicious prosecution of the plaintiff, and was tried at the Monroe January Circuit, 1888, before the court and a jury, resulting in a verdict for the plaintiff of $1,000.

      Baines Bros., for the appellants.

      JD. O. FeeT/y, for the respondent.
   Barker, P. J.:

This is an appeal from a judgment recovered by the plaintiff at the Monroe Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.

There appears to be little conflict in the testimony offered at the trial as to the main facts in the case. It appears that the plaintiff Rosen was a journeyman tailor, and, as such, was given by the defendant’s firm the material and trimmings to make a dozen coats, for which he was to be paid a stipulated sum per coat. The work was done outside the defendant’s establishment. When the coats were completed by the plaintiff it was discovered that there was something wrong with the linings of some or all of them. The defendants claimed that the trouble was caused by the mistake of the plaintiff Rosen in mixing two different shades together, and insisted that Rosen should take out the defective linings, and replace them with others, for which he was given the stuff. Rosen, it appears, afterwards returned to the defendant’s store and claimed that upon again testing the lining and pressing the same, that the same discoloration was caused, and that the trouble was entirely the result of the quality of the lining and not any fault of his in making.

The plaintiff claims that the defendant, Louis Stein, still insisted that he should fix the coats, and stated that unless he did remedy the defects, he would not get paid for his work. This he refused to do and the plaintiff was directed to return three of the coats, which he had not already brought to the defendant’s establishment. He refused to do so unless he got his pay. The defendants then sent their messenger to the plaintiff’s house for the coats, and he again-refused to give up the coats without his pay. Then they sent the messenger to the plaintiff’s house with a police officer and demanded the coats, but Rosen refused to let them have them ox-take them to the defendants’ place without beixxg paid for his wox’k, all the while insisting on the light to retain the property until he was 2xaid.

Thex’e is xxo evidence in the case, so far as caxx be discovered, showing any puxqxose on the part of Rosen, the plaintiff, other than to assert his supposed legal right to keep the three coats ixx question until his services for making had beexx fully paid. The evidence also shows, quite conclusively, that the defendant, Louis N. Stein, was fully advised of the plaintiff’s position and claim. After the fruitless effort of the officer to get possession, it appears that the defendant, Louis N. Stein, went before the police justice of the city of Rochester whex’e he claims he stated the facts to the jxxstice and was advised by him that the only thing to do was to get a warrant. The justice wrote the affidavit, which charged the plaintiff with petit larceny. Stein signed and swore to the affidavit, as he claimed, without reading it, and a warrant for the arrest of the plaintiff was issued. Upon the warrant the plaintiff Rosen was arrested, taken through the streets to the station, detained there for a couple of hours, then paroled, and upon an adjourned day discharged.

It is claimed, by the defendants’ counsel, that the evidence in the case showed that the defendants proceeded in good faith, that there was no evidence in the case from which malice could be inferred; and that Stein, who procured the warrant, was acting on the advice of the justice who issued it, and not on his own judgment. The justice who issued the warrant was called as a witness on the trial, but was unable to recall the particular circumstances attending the issuing of the warrant. It does appear, however, from the testimony of Louis Stein, that he signed and swore to the affidavit, charging the plaintiff with petit larceny, without reading the paper. And he stated at the time of the hearing before the police justice, when the plaintiff was discharged, that he was satisfied and that all he wanted was to get back the coats which he had obtained. That there was no probable cause for the arrest of the plaintiff the evidence clearly established. It is quite possible that the defendant Stein did not fully realize or reflect on the character of the criminal charge he. had made against the plaintiff; but he knew that by putting the machinery of the criminal law in motion he was subjecting the plaintiff to arrest, public indignity and humiliation, and, certainly, a jury was justified in finding that ho who would resort to the criminal law to enforce a civil right was actuated by malice. The question of malice, under the circumstances, was for the jury to pass upon, and was properly submitted to them by the court, and this court cannot say, as matter of law, that the evidence does not sustain this finding.

It is insisted by the appellant’s counsel that the trial court erred in charging the jury that if they found there was no probable cause to make this charge against the plaintiff from that fact alone, they might infer that it was made through malice only. The counsel for the appellant cites to this court the case of McCormack v. Perry (47 Hun, 74) as sustaining the contention of the appellant. The case cited does not -go to the extent claimed. The evidence tending to show want of probable cause may be of such a character as also to show malice; and so, in the case now under consideration, the court properly said that if the jury found want of probable cause from that fact they might infer malice. Not that the want of probable cause raised any presumption of law of the existence of malice, but was a feature or element in the case from which malice might be inferred and found as a fact by the jury; accordingly the court said, in the case of McCormack v. Perry, that “if the jury are not satisfied from the evidence, which shows that probable cause did not exist, that the defendant was guilty of malice, then they have a right to demand of the plaintiff further proof on that issue before they are called upon to render a verdict in his favor.” We do not understand that the trial court, in its instructions to the jury, laid down any other or different rule. The charge, taken as a whole, was eminently favorable to the defendants, and their counsel took no exception to that particular portion of the charge of which they now complain. The appellant’s counsel also contend that the court erred in sustaining the plaintiff’s objection to the following question put to Stein as a witness: Q. At the time (i. e., at the time of the application for the warrant) did you believe that this man meant to retain and keep from you the coats that he had ? It is competent for g, defendant, in actions of this kind, to testify that he acted in good faith, and was actuated by no ill will towards the plaintiff and believed the truth of the charges made. (McKown v. Hunter, 30 N. Y., 625; Farnam v. Feeley, 56 id., 451.) The point in issue here was whether or not the plaintiff intended to steal the goods, which was the crime charged in the proceedings before the justice. There is no claim by the plaintiff that he did not intend to keep the goods and not deliver them. That is conceded by all parties, and the defendants cannot claim that they were injured by excluding the question and answer to a fact about which there was no contention whatever.

If the question had been whether or not the witness believed the plaintiff intended to steal the goods, it would have been competent, but not being addressed to that issue, we think the defendants cannot be said to have suffered by its exclusion. The defendants’ counsel also contend that the verdict of the jury for $1,000 was excessive. A motion to set aside the verdict on that ground was addressed to the trial court, and it was peculiarly the province of the judge at circuit to pass upon such an application. He has denied the motion, and we think properly. ■ "We cannot say that the damages assessed by the jury are excessive or the result of prejudice, and are not disposed to reverse the judgment on such grounds.

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

Dwight and Macomber, JJ., concurred,

Judgment and order affirmed.


text:
    MARY J. KENNEDY, Respondent, v. THE ROCHESTER CITY AND BRIGHTON RAILROAD COMPANY, Appellant.

      Utterances of a party injured, shortly after the accident — when competent.

    On the trial of an action, brought to recover damages for an injury received by the plaintiff, while a passenger on one of the defendant’s horse railroad cars, by reason of the negligence of the person in charge of the same, a witness on behalf of the plaintiff was asked: “Q. State when she (plaintiff) came home did she complain at all. A. Yes.” “Q. State what she complained of. A. She complained of her side and head; pain in her head and side, and she didn’t get much sleep all night.”

      Held,, that the evidence was competent.
    That the utterances of the plaintiff, which it appeared were made within an hour after the accident, that her side and head pained her, were in the nature of and to the same effect as a moan or sigh made by a suffering person.

      Sache v. Brooklyn City and New Town Railroad Company (105 N. Y. 294) distinguished; Lewlce v. Dry Bock Company (40 Hun, 283) followed.
    That the. proper rule in such a case excludes a simple statement or declaration, made by the injured party some days after the accident, that he is suffering from pain in the part of the body claimed to be injured, when unaccompanied by any other manifestation of an involuntary nature indicative of suffering, but admits evidence of exclamations indicative of pain made by the injured person.
    Appeal by the defendant from a judgment entered, upon a verdict in the plaintiffs favor at the Monroe Circuit for $5,000, in the office of the clerk of Monroe county June 11,1888, and from an order of the Special Term, entered in said clerk’s office June 11, 1888, denying the defendant’s motion for a new trial.

      Thomas Pamesx for the appellant.

      P. Chamberlain, Jr., for the respondent.
   Barker, P. J.:

This action is to recover damages for an injury received by the plaintiff while a passenger on one of the defendant’s cars, alleged to have been caused by the negligent conduct of the person in charge of the same.

The plaintiff, in company with her sister, hailed the car as 'it was passing, and the driver recognized the call and stopped the car for them to take passage therein. The plaintiff testified, and her statement was corroborated by her sister, that when she reached the rear' of the car she placed one hand on the railing attached to the body of the car and placed one foot on the first step of the platform, and was in the act of raising the other when the ear started up with a sudden jerk and she was thrown off by force of the jar and fell on the stone pavement and received injuries to her head and side. The defendant’s evidence tended to show that the plaintiff jumped from the car after she had gained the platform and while the car was standing, and fell on the pavement with some violence, and in this way received the injuries of which she complains. The plaintiff was unmarried, a seamstress by occupation, and twenty-eight years of age. The evidence tended to show that the injuries which she received were painful and permanent in their character and impairing in a degree her mental faculties.

.The conflict in the evidence on the question of the defendant’s negligence made a clear case for the consideration of the jury. That the defendant does not dispute. We see no reason for interfering with the verdict on the ground that it is against the .weight of evidence.

The learned trial judge correctly stated to the jury what would constitute negligence on the part of the defendant, and also the state of facts, if they existed, which would exempt it from that imputation, and to this part of the charge the defendant assented. Some exceptions were taken by the defendant to the rulings of the court in receiving items of evidence against its objections which merit examination. The plaintiff’s home was some ten blocks distant from the place where she was injured, which she reached in about one hour thereafter in company with her sister, they walking part of the distance. Her sister was called as a witness and briefly described the condition and appearance of the plaintiff after she reached her home, stating, in substance, that she was restless all night and did not get any sleep. This question was then asked this witnesss: “ State when she came home, did she complain at all ? ” A. “Yes.” Q. “ State what she complained of ? ” This question was objected to as incompetent and overruled, and the defendant excepted, and the witness gave the answer: “ She complained of her side and head; pain in her head and side, and she didn’t get much sleep all night.” It is contended that this evidence was incompetent for the reason that it is mere hearsay, and nothing more than a simple statement or declaration made by the plaintiff, after she was injured, that she was, at the time of making the same, suffering from pain in her head and side. In support of the exception, the appellant relies upon the rule of evidence as modified and stated in Roche v. The Brooklyn City and Newtown Railroad Company (105 N. Y., 294).

In that case it was held that, in an action to recover damages for alleged negligence, causing a personal injury, declarations of the party injured, made some time after the injury, simply to the effect that he is suffering pain, when not made to a physician in professional attendance, are not competent as evidence; but that screams, groans and involuntary exclamations made by the injured person, indicative of physical injury or distress of mind, are competent.

Prior to the adoption of the provisions of the Code allowing parties to testify in their own behalf, the rule was well established that whenever the bodily or mental feelings of an individual are material to be proved, the usual and natural expressions of such feelings made at the time in question, were competent as original evidence in his favor. (1 Greenleaf, § 102; Bacon v. Inhabitants of Charlton, 7 Cush., 581; Caldwell v. Murphy, 11 N. Y., 416; Wereley v. Persons, 28 id., 344.) This rule forms an exception to the general rules of evidence and was founded largely upon the necessity of admitting such proof to establish the nature and character of the injuries which the complaining party had suffered from the negligence of another. In recent decisions made by the Court of Appeals this rule has been limited in its application, and the question-is, whether the evidence admitted was competent under the modified rule ? I think it was. In the case of Hagenlocher v. Coney Island and Brooklyn Railroad Company (99 N. Y., 136), it was held that it was competent to prove in behalf of the plaintiff, in an action to recover damages from an injury caused by the alleged negligence of the defendant, exclamations made by the injured party indicative of pain at the time they were uttered. In that ease the evidence received and held to be competent was to the effect that when the-plaintiff’s injured foot was lifted or slightly touched with a blanket she groaned or screamed with pain. The court, in its opinion, remarked if evidence of the exclamations, which are the natural concomitants and sign of pain and suffering were excluded, in many cases, a party testifying as a witness in his own behalf would be deprived of that corroboration of his evidence to which he is justly entitled. Evidence may be given that a person appeared to be in great agony, was emaciated, looked haggard and feeble, and why not that she screamed from pain ? The more recent case of Roche v. Brooklyn and Newtown Railroad Company (supra), is the authority upon which the appellant relies in support of this exception. In that.case the action was to recover for personal injuries, received by the plaintiff while a passenger' on the defendant’s car, alleged to have been caused by the defendant’s negligence. The evidence received and held to be incompetent was to the effect that some days after the happening of the accident which caused the injury, the plaintiff, in the presence of the witness, complained that she was suffering pain in her injured arm, at the same time exhibiting it, and it appeared to be in an inflamed condition. In stating the circumstances under which the statement was made, the court, in its opinion, remarks: “The witness did not testify that on these occasions the plaintiff screamed or groaned, or gave other manifestations of a seemingly involuntary nature, and indicative of bodily suffering, but he proved simple statements or declarations made by the plaintiff, that she was at the time of making them suffering pain in her arm.” The case of Hagenlocher (supra) was referred to by the court with approval, and with this comment, that that case decides that even since the Code evidence of exclamations, indicative of pain made by a party injured, is admissible, and that tbe rule does not confine tbe proof, to exclamations made at the time of tbe injury.

The case seemed to modify the old rule so as to exclude a simple-statement or declaration made by the injured party, some days after the accident, that he was suffering from pain in the part of the body claimed to be injured, when unaccompanied by any other manifestation of an involuntary nature, indicative of suffering, but adhering to the pre-existing rule so far as to admit evidence of exclamation indicative of pain made by the injured party. This is the view taken of that case by this court in Olp v. Gardner (48 Hun, 169), where Haight, J., speaking for the court, said: “The rule, as we understand it, now is, while evidence of declarations, which are of an involuntary nature indicating pain or suffering, such as sudden or involuntary groans, screams or sighs, resulting from a touch, movement or contact with a foreign substance, are competent; but the evidence of statements, made long after the injury as to the effect of the injury, or as to the suffering endured therefrom, is not. competent.”

Jn the case at bar the complaint made by the plaintiff was uttered within an hour after the accident, and in the presence of the witness, who saw the plaintiff when she fell; and at the time the utterance was made by the plaintiff there were other signs of an involuntary nature indicating bodily suffering, such as restlessness and inability to sleep for the entire night following the accident. The utterance of the plaintiff that her head and side pained her was in the nature and to the same effect as a groan or sigh made by suffering persons. The statement does not appear to have been made for the purpose of informing those attending the plaintiff that her person was injured, and that she was suffering pain in those parts, but they may be fairly characterized as an exekr mation made by a suffering person, who was then in a restless condition, and unable to secure sleep, without any design or purpose on her part of communicating to those surrounding her the fact that she was suffering pain in her head and side. The complaint made was accompanied by other marked signs of suffering bodily injuries recently received, which, in my opinion, made her statements competent evidence within the limit of the modified rule. In Roche's Case (supra) it would seem, from the facts of the case, as stated in the opinion of the court, that the statement, which it was held was incompetent for the plaintiff to prove, was made by her for the simple purpose of informing the person to whom her remarks were addressed that she had received an injury and was suffering pain therefrom. The case at bar is, in all essential particulars, like the case of Lewke v. Dry Dock, etc., Railroad Company (46 Hun, 283). In that case the witness observed the accident which occurred in a public street, and the plaintiff was taken to a store in the vicinity kept by the witness, who saw the plaintiff’s injured limb which then seemed to be swelling. The witness was allowed to testify that the plaintiff complained at that time of pain in his leg. It was held that the evidence was competent; the complaints uttered were in the nature of an exclamation by the injured party, and were competent within the rule as stated in the recent cases, citing Roche v. Brooklyn and Newtown Railroad Company (supra). It may be difficult, in many cases which are likely to arise, to distinguish between what is a mere statement by the injured party, made for the purpose of conveying to another the fact that he is suffering bodily pains, and the involuntary exclamation of such a person indicative of pain arising from an injury. Each case, as it arises, must be determined by its own facts and attending circumstances.

All the other exceptions referred to in the appellant’s brief have been examined, and I find no error in the rulings brought to our attention. The plaintiff’s counsel read an extract from a medical author on the subject of nervous disorder and shocks, in which he expressed the opinion that in a certain class of cases the patient would never recover, and then asked one of the plaintiff’s medical witnesses, Is that good doctrine ? ” The defendant’s counsel made a general objection, which was overruled and an exception. The witness made no answer to this question, but the court asked the witness the following question: “ Hoes that meet your judgment as a medical man?” and the witness answered the question in the affirmative, without any objection by the defendant. The question propounded by the court is very different in its import and meaning from the one asked by the plaintiff’s counsel; and as the answer was received to the last question without objection, it may be assumed that the defendant consented that the witness might answer the same.

The appellant also claims that the damages as fixed by the verdict of the jury are excessive. In actions to recover damages for personal injuries caused by the negligence of another, the amount which should be awarded is necessarily a matter of judgment, and the verdict of a jury will not be set aside as excessive unless it manifestly appears to be the result of passion, partiality, prejudice or corruption, or a failure on the part of the jury to comprehend the rule of damages applicable to the case, as stated to them by the court for their guide, although the court would have been better satisfied with a verdict for a less sum.

In this ease the evidence tended to show that the plaintiff had suffered permanent physical injury, and also a degree of mental impairment, in consequence of the defendant’s negligence, and we are unable to say that the judgment of the jury is not fairly supported by the evidence and circumstances of the case. We cannot disturb the verdict on that ground, and the judgment and order-must be affirmed.

Dwight, J., concurred; Macomber, J., not sitting.

Judgment and order affirmed.


author: .Barker, P. J.:

text:
    In the Matter of the Judicial Settlement of the Accounts of EDWARD BAYER, as Administrator, etc., with the Will Annexed of MARTIN BAYER, Deceased.

      Surrogate —power of, to send back a referee's report upon the account of an administrator, for further findings— section 1023 of the Code of Givil Procedure is not applicable to special proceedings.

    "Where the account of an administrator is contested, and the issues are referred to a referee to hear and determine and report thereon, pursuant to section 2546 of the Code of Civil Procedure, the surrogate has power, upon the coming in of the referee’s report, to send the same back to the referee with directions to pass upon any questions of fact not covered by his report.
    The provision of section 1023 of the Code of Civil Procedure, prohibiting the court or a referee from making further findings of fact, or as to questions of law, after-the decision or report has been made, is limited in its application to cases where the issues arise in an action on the pleadings, and is not applicable to special proceedings.

      Appeal by Edward Bayer, as administrator, from a decree of tbe surrogate of Monroe county of December 31, 1888, adjudging him indebted to tbe estate of tbe decedent in the sum of $1,565.24, and from tbe order of said Surrogate’s Court of December 12,1888, confirming tbe referee’s report herein, and from tbe order of said Surrogate’s Court of October 31, 18S8, denying tbe application of Edward Bayer for an order sending back said report to the referee for further findings. Tbe account as rendered by tbe administrator was contested by one of tbe legatees named in tbe will, and tbe issues were referred to a referee to bear] and determine and report thereon, pursuant to the provisions of sectiop 2546 of tbe Code of Civil Procedure. On tbe coming in of the report, and before tbe same was confirmed by tbe surrogate, tbe appellant made an application to have tbe same sent back to tbe referee to pass upon certain questions of fact not ruled upon in his report. This motion was •denied by tbe surrogate, upon tbe sole ground that he bad no authority to make tbe order, and was prohibited from granting tbe application by tbe provisions of section 1023 of tbe Code of Civil Procedure, as no requests to find had been submittted to tbe referee prior to making his report. This order the appellant-seeks to review on this -appeal. Tbe other facts which bear upon tbe question considered by tbe court are stated in tbe opinion.

      J. M. Dunning, for tbe appellant.

      George F. Yeoman, for the respondent.
   .Barker, P. J.:

Before tbe questions presented by this appeal relative to tbe merits are considered, an error in procedure should be corrected so that tbe appellánt may be able fully to present bis case on the state of facts, which be insists were fairly established by tbe evidence presented to tbe referee. The appellant bad been by tbe order of tbe surrogate removed as administrator of tbe estate of the decedent and ordered to render an account of tbe moneys which he bad received and paid out in his representative capacity. We think tbe learned surrogate was mistaken in supposing that the provisions of section 1023 were applicable to this case, and that be bad no power to remit to tbe referee bis report for further findings on questions of fact. The findings of fact as contained in the report are very-general, and from them it is impossible to determine how the referee disposed of certain material questions of fact for which the appellant contended, and which the evidence tended to support. After the order was made, refusing to send back the report, the respondent moved for its confirmation, and the surrogate modified the report by crediting the appellant with an item of $100, and as modified confirmed the same. We are unahle to find any statute denying the surrogate the power when a proper case is made for sending back to the referee the report to make corrections, and to pass upon questions of fact not noticed in his report. It was the settled practice of this court prior to the adoption of section 1023, when the referee’s report failed to pass upon the material questions of fact involved in the issues, to require him to do so, upon application of either party. That section provides, that when the referee has rendered a decision he shall not thereafter make additional findings of fact or rulings on questions of law. (Gormerly v. McGlynn, 84 N. Y., 284; Gardiner v. Schwab, 34 Hun, 582; First Nat. Bank v. Levy, 41 id., 461.)

The provision of this section prohibiting the ■ court or referee from making further findings of fact or rulings on questions of law, after the decision or report has been made, is limited, in its application to cases where the issues arise in an action on the pleadings, and is not applicable to special proceedings. When questions of fact arise in any stage of the action, except on the pleadings, which the court is required to determine, and a referee has been appointed to try and determine the same, the court, on the coming in of the report, has the undoubted right, in a proper case, to send the same back to the' referee to pass upon material questions of fact not determined by the report, or to set aside the report and order a retrial before the court. Such references are ordered for the purpose of informing the court -as to the facts of the case in the matter pending before it, and if the report is unsatisfactory for any reason a further hearing may be ordered. The class of eases in which a reference may be ordered by the court, with or without the consent of the parties, for the purpose of aiding it in disposing of questions of fact, are enumerated-in sections 1015, 1215 of the Code. It is provided, in section 1232, that in such eases where the reference has been executed either party may apply for an order directing a new-hearing, upon proof by affidavit that error was committed to his prejudice, upon the hearing or in the report, and in a proper ease the application may be granted after judgment has been rendered. In such a case the judgment may be set aside, either then or after the new hearing, as justice may require. These rules are made applicable to all special proceedings in a Surrogate’s Court, except for the probate, or the revocation of the probate, of a will. In section 2546 it is provided that the surrogate may, in his discretion, appoint a referee to take and report to the surrogate the evidence upon the facts, or on specific questions of fact; to examine an account rendered; to hear and determine all questions -arising upon the settlement of such an account, which the surrogate has power to determine, and to make a report thereon, subject, however, to confirmation by the surrogate. It is also provided in the same section that the referee has the same power as a referee appointed by the Supreme Court for the trial of an issue of fact in an action, and that the other provisions of the Code, applicable to a reference by the Supreme Court, apply to a reference, made as prescribed in this section, so far as they can be applied, in substance, without regard to the form of the proceedings. There are other provisions on this subject indicating, very clearly, that the provisions of section 1023 do not apply to this case. It is declared,pn section 2545, that when a trial takes place before a surrogate, and a case is made by an aggrieved party for the purpose of reviewing the rulings and proceedings of the surrogate, either party may, on the settlement of the case, request a finding upon any question of fact, or a ruling upon any question of law, and an exception may be taken to each finding or ruling. When questions of fact are tried before a referee, he, on the settlement of the case, also has the power, and it becomes his duty, to pass upon all requests made for additional findings, either of fact or of law. The referee is, to all intents and purposes, the surrogate, so -far as respects the trial of the issues before him, and the mode and manner of settling a case prepared for the purpose of reviewing his findings. (Matter of Niles, 14 N. Y. St. Rep., 538.)

There it was stated, by the learned judge who prepared the opinion of the court, that findings of fact are to be presented in the settlement of the case, where the issues are tried before the surrogate according to section 2515 of the Code, and that that provision applies when ,the case, is tried by a referee. As the appellant in his moving papers made a case for the exercise of the judgment of the surrogate, whether the report of the referee should be sent back for further finding, he was entitled to a decision of his motion, on the merits, and the surrogate erred in holding that he had no jurisdiction to entertain the application. If the referee had made the additional findings of fact, which the appellant requested and which the evidence tended to support, it is not at all clear that the surrogate would have confirmed his report. After perusing the evidence it cannot fairly be said that the denial of the appellant’s application for further findings did not affect the decree from which the appeal is taken, and the order is here to be reviewed, as provided in section 2511.

It is also stated, as indicating the effect which the order denying the motion may have had upon the subsequent proceedings, that on the settlement of the case the appellant presented requests in writing for further findings, which 'the referee refused to pass upon for the reason that they were not presented to him before he made his report, and that it was then too late for him to entertain the same. Upon the facts, as found by the referee, interesting legal questions are presented, which have not been examined with the attention which their importance demands, there seems to be no other way to cure the error we have pointed out, but to reverse the decree of the surrogate as well as the order denying the application to send the case back to the referee for further findings.

The decree and the orders are both reversed, with the costs of this appeal to abide the final award of costs.

Dwight and Maoomber, JJ., concurred.

Decree and order appealed from reversed, with costs to appellant to abide the final award of costs.


author: Barker, R. J.:

text:
    MARY S. EDRIDGE, Respondent, v. THE ROCHESTER CITY AND BRIGHTON RAILROAD COMPANY, Appellant.

      Estoppel — grant by the owner of an undivided half of pri'emises of a right to lay railroad trades in front thereof — right of the grantor, on acquiring the remaining half, to prevent such use of the street.

    Tlie owner of a one undivided half interest in premises, abutting upon a street upon which the tracks of a horse railroad company were laid, granted to such company the right to occupy with its road any portion of the street. Such owner subsequently acquired from her co-tenant the other undivided half interest in this property and brought an action to restrain the completion and use of a switch which the railroad company had constructed on the street in front of the premises.

      Held, that the grant of the right to the company by such owner, at the time when she owned a half interest in the premises, did not estop her, subsequent to her acquiring the other half» interest in the premises, from denying the right of the company to appropriate the portion of the street in question.
    That she could not grant what she did not own at the time that the deed was made; and that, having subsequently acquired such ownership of the other half, she was entitled to assert it as against the grant made by her prior to her acquisition of the entire property.
    Appeal by the defendant from a judgment entered, on the decision of the Monroe Special Term, in the office of the clerk of Monroe county, on March 19, 1888, restraining the defendant from laying down additional tracks in Court street in the city of Rochester.

      Thomas Bcmies, for the appellant.

      Devoid Ilcvys, for the respondent.
   Barker, R. J.:

The plaintiff being the owner of the premises situate on the south side and bounded by the center of Court street in the city of Rochester, brought this action to restrain the completion and use of a switch which the defendant was proceeding to construct on the southerly side of the center of that street in front of her premises. The relief sought was given by the judgment appealed from. The defendant, a street railroad company, in 1881, constructed its road along the center line of Court street and through several other streets of the city. With a view to procure the right to do so, the defendant had procured from property owners their assent or grant, in writing, under seal, in form and to the effect that they severally, for value received of the defendant, granted and conveyed to it a right of way in and through Elm street, Chestnut street, James street, Court street, Union street and Gardner Park to Alexander street, by and in front of the lands of said streets, belonging to them wholly or in part, for the purpose of constructing and operating a horse railroad, as authorized by the common council of the city of Rochester. It was so authorized by the common council; and the road has, since its construction, been operated by the defendant. The plaintiff makes, in this action, no objection to the continued operation of the road upon the line as so constructed, but her complaint has relation to a switch, which, in August, 1881, it was proceeding to construct along her premises and on the southerly side of the track as originally laid by the defendant. The fee was in the plaintiff at that place and the defendant had no right, except through that of eminent domain, without her consent to construct the switch there. (Craig v. Rochester City and B. R. R. Co., 39 N. Y., 404.)

The contention on the part of the defendant is, that this was accomplished by the grant before mentioned made by the plaintiff. At the time that grant was made the plaintiff had title to only one undivided half of the premises in question as tenant in common with one Shepard, who did not join in or give any consent to the construction of defendant’s road in the street. This was the situation until in January, 1881, when the plaintiff took title from Shepard to the other half, and became the sole owner of the premises. . The nature of the plaintiff’s grant when made, and the legal effect of it upon her right, for the purpose of remedy and relief, at the time she brought this action, requires some consideration. The plaintiff did not, and could not, by her grant, as against her co-tenant, afford to the defendant any right to occupy with its road any portion of the street to which they held the fee, and the grant was void except so far as it might operate by way of estoppel against the grantor. (3 Wash, on Real Prop., m. p., 565; Crippen v. Morss, 49 N. Y., 63; Marshall v. Trumbull, 28 Conn., 183; Adam v. Briggs Iron Co., 7 Cush., 361.) At the time the plaintiff made it the defendant acquired no right to construct the switch at the place in question in front of her premises. It is, however, argued by the defendant’s counsel, that although the plaintiff may have a remedy at law for injury to the interest subsequently acquired by her, she is not entitled to relief in equity, because of- the denial, in her behalf, of the right of the defendant to continue to and operate its railroad track there, would have the effect to destroy her grant, which she should not be permitted to do.

But as the defendant took no easement by the plaintiff’s grant when made, and as it contained no warranty, the interest subse-' quently acquired by the plaintiff in the premises did not, in support of the grant, enure to the benefit of the defendant. A party cannot grant that which he has not at the time the deed is made, but he may be denied the right to assert the invalidity of it for the protection of interests afterwards obtained in the subject of the grant when it has been upon the assurance of enjoyment by the grantee. This rests upon the doctrine of estoppel, which is applied to avoid circuity of action. (McCrackin v. Wright, 14 Johns., 143; Jackson v. Bradford, 4 Wend., 622; Pelletreau v. Jackson, 11 id., 110; Mickles v. Townsend, 18 N. Y., 575; Blanchard v. Ellis, 1 Gray, 195; Clark v. Baker, 14 Cal., 612.)

Inasmuch as the defendant took no easement by force of the grant, and as there is no support for estoppel against the plaintiff upon the principle before stated, it is difficult to spe how the plaintiff’s grant can furnish any right to the defendant as relates to the interest acquired by her after the instrument was executed, or deny her the right to the equitable relief - which she seeks in this action. There is no destruction of any grant produced by such result. The defendant never had any that was effectual to confer any right to appropriate that portion of the street to its use for a railroad. The fact that the plaintiff has since become the sole owner of the premises adds nothing to the right of the defendant in that respect. As the defendant was advised, when that paper was executed by the plaintiff, that she'had title to the undivided half only, there is no opportunity to charge her • by estoppel in pais. Whether any benefit may result to the defendant by way of abatement of compensation by reason of the grant, in the event it should be compelled to take proceedings to acquire tbe easement, is not now properly the subject of consideration. That might depend upon the determination of another question, upon which, in the view taken, it is unnecessary now to express an opinion.

Judgment should be affirmed, with costs.

Dwight and Macomber, JJ., concurred.

Judgment affirmed, with costs.


text:
    In the Matter of the Final Accounting of the Executors of CHARLES J. HAYDEN, Deceased.

      Will — insurance policies, on the husband’s life, payable to the widow — what reference to them in his mil makes them part of his estate andputs the wife to an election— continuing the testator’s business — compensation therefor — commissions allowable to executors resigning their trust before its full execution.

    Upon cross-appeals from a decree of a Surrogate’s Court, adjusting and settling the accounts of Charles A. Hayden and Ella L. Williams, as resigning executors of the last will of Charles J. Hayden, deceased, it appeared that by the second clause of the testator’s will he provided as follows: “I give, bequeath and devise to my beloved wife, Esther Hayden, for and during the term of her natural life, the sum of $40,000, including the proceeds of any and all insurance policies on my life, payable to her or otherwise.” * * * “I direct that said sum of $40,000 be invested by my executors in good bonds and mortgages on real estate, in accordance with the savings bank law, or invested in accordance with the law governing trustees, or the approval of the surrogate; and that the income shall be paid to my wife, semi-annually, by my executors during her life.”
    After giving his wife the homestead and household furniture he directed that the foregoing bequests and devises to his wife were in lieu of dower, and that if the use and income thereof should not he sufficient for her reasonable support and comfort in her station of life, that the executors should “pay any deficiency from any other property.” By the sixth clause he directed the executors “ to hold, in addition to such bequests and devise to her, and in reserve, at least the sum of $10,000 during her life,” and to pay to her such proportion of the income, if any, as might be needed, to provide a comfortable and proper support for the wife; the residue of the income, if any, and on the death of the wife the principal to be paid to three residuary legatees.
    Prior to the death of the testator he had taken out insurance policies upon his life, represented by four different policies, amounting in the aggregate to $15,000; three of which policies, amounting to $10,000, were payable to Esther Hayden, the wife of the deceased, and the other to his executors, administrators or assigns.

      It was contended by the administrator with the will annexed, that the $10,000 of insurance payable to the wife was made a part of the testator’s estate, and was included in the $40,000 mentioned in the second clause of the will; and was also, by the sixth clause of the will, included in the residue of the estate given, after the death of the wife, to the residuary legatees.

      Held, that the residuary clause only disposed of what belonged to the testator himself, and could not be held to make any disposition of what belonged to his wife.
    That the insurance policies, which were made payable to the wife of the deceased, belonged to Mrs. Hayden, and were her absolute property, and that she was entitled to retain and control the same.
    That, in order to deprive a devisee or legatee of property rightfully his "own, and raise a case of election under a will, a clear and decisive intention of the testator-must be manifested by the will itself to dispose unconditionally of that which did not belong to him, and that no such clear intention could be found in the will under consideration.
    That the “fund in reserve,” in regard to which the direction was made, in the sixth clause of the will, was an additional $10,000, over and above the $40,000 previously mentioned in the will.
    That the testator intended that the $40,000 mentioned in the second clause of the will should include the insurance money payable to his wife, but made no attempt to dispose of such insurance money after her death.
    By the will of the testator his executors were authorized, in their discretion, to continue for a year the business of manufacturing and selling furniture, in which the testator was engaged at the time of his death.
    It was contended that the surrogate erred in disallowing a charge for $2,083.33 made by the executor, Charles A. Hayden, for salary in conducting the furniture business of the testator from his death to the date of the executor’s retirement.

      Held, that an executor cannot receive from an estate any greater compensation for his services than the statutory commission, however meritorious or extraordinary his services may be.

      Lent v. Howm'd (89 N. Y., 169) distinguished.
    The surrogate denied commissions to the executrices Ella L. Williams and Esther Hayden, and allowed one-half commissions to the executor, Charles A. Hayden, upon the personal estate, namely, $155,973.33, that being the amount of the inventory and the increase thereof. It appeared that there was received and paid out, in the payment of debts and legacies, $12,577.26, and that there was received and paid out, in the management and conducting of the business, $58,844.36.

      Held, that the executors, having -resigned their trust before the final execution of the duties imposed upon them by law, were not entitled to a commission upon the corpus of the estate under the provisions of section 2736 of the Code of Civil Procedure.

      Matter of Jones (4 Sandf. Ch., 615); Matter of Allen (29 Hun, 7) followed.
    That the surrogate erred in allowing the executor one-half commissions on the inventoried value of the personal estate, and the increase thereon; and that, as the stock in trade was rapidly turned over, and no great profit was realized from that transaction, it was manifest that the claim for commissions on the $58,844.86 was properly disallowed.
    That, upon the $12,577.26, full commissions were, properly allowed.
    It was urged that, inasmuch as the personal estate of the testator exceeded the sum of $100,000 in value, the executor, Charles A. Hayden, was entitled, under the provisions of section 2786 of the Code of Civil Procedure, to three full commissions, he having done all the labor in managing the estate.

      Held, that as section 2786 of the Code only provided for commissions when the trust had been fully administered, it had no application to a case where the trust was not executed and the executors resigned before their duties were finished.
    Appeal by Charles A. Hayden and Esther Hayden from so much of the decree of the Surrogate’s Court of the county of Monroe made in the above entitled matter, and entered in the surrogate’s office of Monroe county on the 13th day of May, 1889, as ordered and adjudged ; that there remains in the hands of the said Charles A. Hayden the sum of $2,083.33, and, as ordered and adjudged, that the said Charles A. Hayden was entitled to $1,049.05 for commissions; also, an appeal by James P. Yarnum, as administrator, with the will annexed, from that portion of the' same decree which stated that Esther Hayden never received any property or money belonging to the estate ; that the executors have fully accounted and that their accounts are settled; also, an appeal by Ella L. Williams from the same portions of the decree, and, also, from that part of the decree which adjudged that out of the balance remaining in the hands of Charles A. Hayden, as executor, he should retain the sum of $1,049.05 for commissions.
    By the will the testator appointed his wife, Esther Hayden, his son, Charles A. Hayden, and his daughter, Ella L. Williams, his executors.

      George F. Yeoman, for Ella L. Williams and J. P. Yarnum, administrators, etc., appellants.

      Ma/rsenus II. Briggs, for Charles A. Hayden and Esther Hayden, respondents.
   Barker, P. J.:

This proceeding comes before this court upon cross-appeals from a decree of the Surrogate’s Court of Monroe county, adjusting and settling the accounts of Charles A. Hayden and Ella L. Williams, as resigning executors of the last will and testament of Charles J. Hayden, deceased. The appeal of the administrator, J. P. Yarnum, is for the purpose of reviewing the question of the right of Esther Hayden to retain upwards of $2,000 paid her upon policies of insurance upon the life of the testator, who was her husband.

Charles J. Hayden died April 9, 1888, leaving an estate of upwards of $250,000 in value. By the second clause of his will he made the following provisions for his wife, to wit:

“ Second. I give, bequeath and devise to my beloved wife, Esther Hayden, for and during the term of her natural life, the sum of forty thousand dollars ($10,000), including the proceeds of any and all insurance policies on my life payable to her or otherwise, -x- -x x i ¿irect that said sum of forty thousand dollars be invested by my executors in good bonds and mortgages on real estate, in accordance with the Savings Bank Law'-, or invested in accordance with the law governing trustees, or the approval of the surrogate, and that the income shall be paid to my wife semi-annually by my executors during her life.”

In the same clause the testator gives his wife the homestead, household furniture, and makes some other directions not material to consider here, and ends that clause of his will by directing that “ the foregoing bequests and devises to my wife for and during her natural life are in lieu of dower, but if the use and income thereof shall be insufficient for her reasonable support and comfort in her station of life, I direct that my executors shall pay any deficiency from any other property.” Later in the will the testator, by a sixth clause, directed his executors to invest, in all respects, as directed by the foregoing bequests to my wife for life, and to hold, in addition to such bequests and devise to her, and in reserve, at least the sum of ten thousand dollars ($10,000) during her life, and to pay the income thereof semi-annually as follows: Such proportion, if any, as may be needed for additional income to provide a comfortable and proper support for her in her station of life as directed in the second section of this will, and the residue of such income, if any, in equal shares among my three residuary legatees and devisees, namely, my son Charles, my daughter Ella and my granddaughter Maud. I direct the principal of such fnnd in reserve shall, after the death of my wife, and the payment of all my debts' and the expenses of settling my estate, and all claims hereby created, fall into and become part of the property hereinafter bequeathed and given to my said three residuary legatees.”

The testator’s will contains a clause disposing of the residue of his estate, one-third to his son Charles A. Hayden, one-third to his daughter Ella "Williams, for life, with a remainder over to her children, and one-third to her granddaughter, Maud Bush, for life, with the remainder to her children. Some time prior to the death of the testator he had taken out insurance policies upon his life, represented hy four different policies, amounting in the aggregate to $15,000, three of which policies, amounting to $10,000, were payable to Esther Hayden, the wife of the deceased, and the other to his executors, administrators or assigns.

It is contended by the administrator, with the will annexed, that the proceeds of the policies of insurance, which were by the terms thereof made payable to Esther Hayden, the wife, and which she had received from the insurance companies issuing the policies, should be paid over by her to the administrators, with the will annexed, upon the theory that the will makes the $10,000 insurance moneys a part of the estate of the testator, and that the provisions which the testator made for his wife were given and accepted by her in lieu of any rights she might have in the moneys in question, and that by electing to stand by the will she thereby relinquished any right to the insurance moneys in question. The equitable doctrine of election is invoked against her.

It is contended by the administrator, with the will annexed, that by the express terms of the will the $10,000 in question is made a part of the testator’s estate by the provisions of the sixth clause of the will, which has been previously quoted, it is argued that the language of that clause saying, “I direct that the principal of such fund, in reserve shall, after the death of my wife, and the payment of all my debts, and the expenses of settling my estate, and all claims hereby created, fall into and become part of the property hereinafter bequeathed and given to my said three residuary legatees,” applies to the $10,000 in the second clause of the will. "We are of the opinion, however, that the fund in reserve ” in regard to which the direction is made is the additional $10,000, over and above the $40,000 previously mentioned in the will, and by said sixth clause directed to be set aside as a “ fund in reserve.” This we are confident is the natural .and proper construction of the clause, and this construction is supported by the residuary clause. “ I give, bequeath and devise all the rest, residue and remainder of my property in three equal shares.” The residuary clause only disposes of what belonged to the ’ testator himself, and cannot be held to make any disposition of what was his wife’s. (Matter of Accounting of Frazer; 92 N. Y., 250.)

The insurance moneys in question belonged to Mrs. Hayden. They were absolute property, and she is entitled to retain and control the same unless by electing to take under the will she becomes equitably bound to pay them over to the testator’s estate, for it is conceded that she has chosen to abide by the will. The administrator insists that, by the will, the testator had attempted to dispose of property not his own, and at the same time given a benefit to the person to whom the property belongs; and that she must make good the testator’s attempted disposition, and was required to relinquish either her own property or the devise under the will, within the rule laid down in Leonard v. Steele (4 Barb., 21); Havens v. Sackett (15 N. Y., 365). It seems well settled, however, in order to deprive a devisee or legatee of property rightfully his own and to raise a case of election under a will, a clear and decisive intention of the testator must be manifested by the will itself to dispose unconditionally of that which did not belong to him. (Havens v. Sackett, 15 N. Y., 365; Mills v. Mills, 28 Barb., 459; Sheldon v. Bliss, 8 N. Y., 35; 2 Redfield on Wills, 2352, pt. 21, subds. 13-16.) Can there be found in the will, under consideration any such clear, intention? We think not. The surrogate happily expressed our own views when he said “ the second clause of the will indicates his intention that the insurance moneys shall form a part of the sum of forty thousand dollars to be invested for her benefit during life, and also expresses his wishes as to the form of investment, but nothing more; and it is to be observed in this connection that the widow, to whom the insurance moneys were payable, is one of the executors who were directed to make the investment of them and of the rest of the $40,000; and that this direction as to the mode of investment did not, therefore, necessarily contemplate her ever parting with the control and custody of the fund or the securities into which it might be put.”

At the very most, the testator’s will but gave to the person already entitled to its enjoyment the income of certain moneys without expressly making disposition, of the principal sum upon her death. Under such circumstances this court is of the opinion that the surrogate rightfully refused to direct Esther Hayden to pay over the insurance moneys to the administrator with the will annexed, especially when the testator expressly declared that the provisions made in the second clause ot the will were simply in lieu of dower, and not in consideration of her relinquishing her property right to the insurance moneys. It is contended that the surrogate erred in the disallowing a charge of $2,083.33, made hy the executor, Charles A. Hayden, for salary in' conducting the furniture business of the testator from his death to the date of the executor’s retirement from his trust. By the will of the testator, his executors were authorized, in their discretion, to continue for a year the business of the manufacture and sale of furniture, in which the testator was engaged at the time of his death. It appears that Charles A. Hayden was familiar with the business, and at the time of his father’s death was largely conducting the same under an arrangement with his father by which he was to receive a salary of $5,000 a year for his services, and that after his father’s death his co-executors agreed to pay him at the same rate for continuing the business for the benefit of the estate. The charge ma,de by him was upon that basis, for the time he continued to manage the business. If the persons making the agreement for this compensation were the only persons interested in the estate, they doubtless would not be heard to question the propriety of the charge, but the objection to it is made by infants who were not parties to the agreement, and upon their objection the charge' was disallowed. An executor cannot receive from an estate any greater compensation for his services than the statutory commission, however meritorious or extraordinary his services may be. (Collier v. Munn, 41 N. Y., 143; Clinch v. Eckford, 8 Paige, 412; Morgan v. Hannas, 13 Abb. Pr. [N. S.], 361; Betts v. Betts, 4 Abb. N. C., 435.)

It is, however, claimed that within the rule laid down in Lent v. Howard (89 N. Y., 169), the executors should receive extra compensation. In that case, however, the services rendered were not in the line of the executor’s duty, while here the will expressly aiithorized a continuance of the business by the executors, and it was, in fact, continued by them as such; and in exercising their discretion to continue the business for the benefit of the estate, the executors were-but doing a duty they owed their trust and the parties interested in it. While the rule in this and in other special cases may work a hardship, nevertheless it is, on the whole, a salutary and wise provision, and the surrogate committed no error in enforcing it in this case.

The surrogate’s decree in adjusting the commissions of the executors denied commissions to Mrs. Hayden, and to Mrs. Williams, and allowed one-half commissions to the executor Charles A. Hayden upon the personal estate, namely, $155,973.33, being the amount of the inventory and the income thereon. It is insisted on behalf of the counsel for the executor Mrs. Hayden, that she is entitled, by virtue of the provisions of section 2736 of the Code of Civil Procedure, to whole commissions upon $155,973.33, and, on the’ other, hand it is contended by the counsel for the administrator that the executors, having resigned their trust before the final execution of their duties imposed on them by the will, are entitled to no commissions upon the corpus of the estate. This contention, we think, is the law. The rule is laid down in the Matter of Jones (4 Sandf. Ch., 615), followed and approved by this court in the Matter of Allen (29 Hun, 7). It is difficult to see how the executors in this case can legally claim any commissions on the body of the estate. It appears here that the executors voluntarily resigned their trust and an administrator with the will annexed was appointed in their place. The one-half commissions given by statute for receiving, is to be allowed only on the accounting when the trust fund is finally paid over and the trust discharged, and if for any reason the trustee does not perform the duty, his right to the commissions is not complete. As said in the Matter of Allen (29 Hun, 9), “ if he ('i. e.y the resigning trustee) is allowed commissions on the corpus of the estate, a precedent will be set which will authorize his successor to make the like claim under like circumstances, and the process may be repeated without limit, so that the estate may be depleted by taking from it a full commission on the capital (which exceeds $100,000 in value), whenever one of the trustees is permitted to resign for his convenience.” To the same general effect is the case of Matter of Baker (35 Hun, 272).

We think, therefore, that, the surrogate erred in allowing the executor, Charles A. Hayden, one-half commissions on the uninventoried value of the personal estate and the increase thereon. It appears that there was received, and paid out in the payment 'of debts and legacies $12,577.26, and that there was received and paid out in the management and conduct of the business $58,844.36, as to the first of the sums the will was fully executed, and full commissions should be allowed. (Matter of Allen, 29 Hun, 10.)

As to the second amount (namely, $58,844.36) received and disbursed in the management of the business, more difficulty exists. While it is apparent that the money was received and paid out in the execution of the provisions of the will and pursuant to the authority given by it, it, nevertheless, does not appear that from the business any profit or any advantage resulted to the estate. The buying and selling incident to the conduct of a manufacture or other business is, at best,, a species of reinvestment of the trust funds. If commissions were to be allowed each time a stock in trade were purchased or sold, it is quite probable, as well as possible, for a case to arise where the executor’s commissions would largely consume the body of the estate. Especially where the stock in trade is rapidly turned over, and no great profit is realized from the transactions. It is quite manifest that the claim for commissions on the $58,844.36 was properly disallowed.

It has been further argued that inasmuch as the personal estate of the testator exceeded the sum of $100,000 in value, that, under the provisions of section 2736 of the Code of Civil Procedure, the executor, Charles A. Hayden, is entitled to three full commissions, he having done all the labor in managing the estate. Inasmuch as we have already held that the executors having resigned before executing are not entitled to commissions on the body of the estate, the only question remaining is whether three full commissions are to be allowed on the $12,577.26 received and paid out in the payment of debts and legacies, or whether the commissions allowed on that sum shall be confined to one full commission to the executor handling that sum.

Section 2736 of the Code provides for commissions where the trust has been fully administered. It evidently has no application to a case where the trust is not executed, and the executors resigned before their duties are finished.

In such a case we think no executor has the right to claim either for himself or for his associate executor the three commissions allowed by the section, and where one full commission is allowed on $12,577.26 he is receiving all the law can give. The decree appealed from should he modified by disallowing half commisions on the item of $155,973.33, and by allowing one full commission upon $12,577.26 to the executor, Charles A. Hayden, and, as so modified, the decree is affirmed, without costs to either party of this appeal.

Dwight and Macomber, JJ., concurred.

Decree modified so as to disallow the one-half commission to the executors on the $155,973.33, and to allow full commissions on $12,577.53 to the executor, Charles A. Hayden, as modified, affirmed, without costs to either party.