text:
    JULIA R. DRAKE, Respondent, v. CLINTON F. PAIGE, Appellant, Impleaded with LEWIS B. PAIGE and Others.

      Partition suit — ■rights acquired under a mortgage given by one of several devisees upon his undivided interest in the residue — when not subject to a deduction of the amount improperly taken by the mortgagor, one of the executors, from the estate.

    In an action, brought ior the partition of certain land devised to the several parties to the action by the will of their father, it appeared that one of the devisees, Lewis, by mortgage from whom the plaintiff claimed an interest in the premises, was also executor under the will of the testator; that, by conveyance of other lands made by himself and his co-executor, Lewis had come into possession of a larger amount of money belonging to the estate than his entire interest therein.
    It also appeared that Lewis had subsequently executed to one Drake a mortgage for $60,000 upon his one-fourth interest in the residuary estate of his testator, (the parcels being specifically described, and including the premises sought to be partitioned) for the purpose of securing Drake against liabilities assumed by the latter, and in consideration of Drake’s agreeing to take care of and protect the property of Lewis from the enforcement of judgments recovered against him; that, in pursuance of such agreement, Drake had paid Lewis’ notes, on which he was indorser, and had taken up judgments which had been recovered against Lewis. The latter Drake had not satisfied, but had caused a portion thereof to be assigned to himself and a portion to his wife. All of these judgments had been alien on the one-fourth interest, which Lewis took under the will and mortgaged to Drake, but before the trial of this action were barred by the statute of limitations.
    It also appeared that Drake took such mortgage in good faith, for the purposes mentioned in the agreement, without any knowledge of the fact that Lewis had appropriated to his own use the proceeds derived from the sale of other lands belonging to the estate.

      Held, that the rights acquired by Drake under such mortgage were superior to the claims existing on the part of Lewis’ co-tenants, claiming an undivided interest with Lewis in the lands devised by their testator, for the deduction, from the share of Lewis in the estate, of the amount which' had been improperly taken from the estate by Lewis.
    That the general rule that a person having a partial interest in the estate, and being an actor in a breach of trust with respect to such estate, thereby subordinates his rights therein to the claims of others having an interest in such estate with him, whose rights and interests are prejudiced by his breach of trust, did not apply to the present case, so far as concerned the rights of Drake, who, as a purchaser for value, without notice of the breach of trust on the part of his mortgagor, was entitled to enforce his rights in priority to those of the co-tenants of his mortgagor.

      Olapp v. Meserole (1 Keyes, 281) distinguished.

      That the fact that Drake, instead of satisfying the judgments against his mortgagor, had caused them to be assigned to himself and wife, did not affect his rights in the premises.

      Semble, That, to the extent of the judgments which were liens upon Lewis’ interest in the real estate and were taken up by Drake, the latter would be entitled to be subrogated to the bonefit of such liens as against other claimants.
    Appeal by the defendant Clinton E. Paige from a judgment, entered upon the report of a referee in the office of the clerk of the county of Broome -on the 25th day of October, 1888 in an action brought for the partition of certain real estate.
    The plaintiff, in her amended complaint, alleged that she and the defendants Jane L. Paige, Lewis B. Paige and Edith Paige, and Clinton E. Paige, as trustee for Lewis B. Paige, own'and possess, as tenants in common, certain four parcels of real estate therein described; that the plaintiff owns an undivided three-fourths interest in fee; that Caroline L. Paige owned the other one-fourth, and she died intestate, in 1879, leaving her surviving a husband, the defendant Clinton F. Paige, and three children, the said Jane L., Lewis B. and Edith, to whom the fee of said one-fourth descended; that Lewis B., after the death of his mother and in 1879, conveyed his interest to Clinton E. Paige in trust for certain purposes; that Clinton E. Paige is tenant by the curtesy of an undivided fourth ; that the parties own no other lands in common, and there are no specific liens or incumbrances upon the premises or the shares thereof against any of the parties; that Clinton E. Paige is the executor of the will of Hazard Lewis, deceased, and, as such executor, or in his individual capacity, has for many years received the rents and profits of said premises and not paid them over. Judgment was asked for a partition and that Clinton E. Paige, as executor or individually, account for the rents and profits.
    The defendant Clinton E. Paige, personally and as trustee, answered, denying any knowledge or information sufficient to form a belief as to the ownership by plaintiff of three-fourths, and alleging that the premises were originally owned by Hazard Lewis and "were by him devised, after the payment of debts, funeral and testamentary expenses, to his wife Maria Lewis, and to his daughters Jane E. Drake and Caroline L. Paige, and to his son Frederick Lewis, to be equally divided between them, each to have one-fourth part thereof; that by said will the executors were authorized to sell and convey said real estate, or partition the same, or sell and divide the proceeds; that Frederick Lewis, Clinton F. Paige and Horace S. Griswold were made executors; that Frederick Lewis, during the time he held the premises so devised to him, being one-fourth of the premises herein, appropriated and converted to his own individual use a large amount of the estate moneys which came into his hands as executor and trustee, which became and is a lien upon his one-fourth interest in said real estate, superior to any right' acquired by the plaintiff, and that Frederick Lewis is a necessary party defendant.
    The answer further alleged that Clinton F. Paige, upon the death of Caroline L. Paige, became and is entitled, as tenant by the curtesy, to the use during his life of all the premises owned by said Caroline.
    It further alleged that he, upon the request of the owners and as their agent for a number of years, took charge of said premises, spending much time and money in their care and preservation, and paid out the avails as directed by the owners, and that his services and payments were equal to the receipts; that prior to the death of said Caroline he had no estate or legal interest in the lands, .and all that was done by him was as agent of the owners, and more than six years have elapsed since such receipts; that the matter of the use and occupation has been litigated and settled in the Surrogate’s Court upon the accounting of the executors.
    Upon the trial it appeared that Hazard Lewis was the original owner of the property. He died July 3, 1863, leaving a will which was duly probated on July 15, 1863. In this will, after certain specific bequests and devises to his widow and children, there came the following clauses:

      “Eighth. All the rest and residue of my estate, whether real or personal, of every name, kind and description, and wheresoever situate, after the payment of my just debts and funeral and testamentary expenses, I give, devise and bequeath to my said wife Maria, to my said daughters Jane E. Drake and Caroline L. Paige, and to my said son Frederick, to be divided equally between them, share and share alike, each of said four persons to have one fourth part thereof.

      “Ninth. I hereby authorize and empower my executors, hereinafter named, to sell, deed, grant and convey by deed, under seal, with common, covenants of warranty, any or all of my real estate not in this will particularly described and devised, and the avails apply to the payment of my debts and funeral and testamentary expenses; or, at their discretion, to lease any portion of such real estate for the purpose of paying such debts and expenses; and I authorize them to partition the same after the payment of debts and expenses, amongst those in the eighth devise herein named, or to sell and deed the same, and the avails divide [among those named in said devise and bequest eight.

      “ My intent is that all devises, of every name and kind in this will contained, shall pass the real estate to the respective beneficiaries free from incumbrance, and that any and all mortgages and judgments on either of them that shall cover or be a lien upon any of the lands, or any portion of the lands in this will devised and described, shall be paid by my executors' from the avails of my personal estate not herein bequeathed, and the avails of lands not specifically devised. And I hereby direct and empower my said excutors to appropriate the avails of my personal estate not herein bequeathed and the avails of my real estate not in this will devised by specific description, to the payment of all mortgages and all judgments encumbering any and all real estate in this will devised.”
    Jane E. Drake, named in the eighth clause, died on the 12th of May, 1883, and the plaintiff is now the owner of her one-fourth ; the plaintiff is also the owner of the one-fourth given to Maria Lewis. No question is made on this appeal as to those two-fourths. In the will, • Frederick Lewis, Clinton F. Paige and Horace S. Griswold were named executors, and letters were issued to them. Griswold continued to act till August 9, 1870, when he died; Frederick Lewis continued to act until August 23, 1873, when he resigned; Clinton F. Paige still continues an executor. About February 4, 1875, the Supreme Court, upon petition, appointed Patrick H. Drake, husband of said Jane E. Drake, an executor and trustee, and he continued to act with Paige until November 5, 1882, when he died. On April 1,1871, Lewis, and Paige, as executors, sold and conveyed to one Morgan, a tract of land, not specifically devised by said will, for $9,000, of which $2,000 was paid down to Lewis, and a bond and mortgage given to the executors for the balance, $7,000, with interest. This bond and mortgage were held as part of the estate until October, 1872, when they were assigned by tbe executors to one Root, the assignment being dated October 9, 1872, and acknowledged October 21, 1872. Nothing has been paid on.the bond and mortgage. It is found by the referee that Lewis was in embarrassed circumstances .at the time, and desired to dispose of the bond and mortgage for the purpose of raising money to be used or applied to his individual use; that Paige had knowledge at the time of such desire and purpose on the part of Lewis, and joined with him in executing and acknowledging the assignment that such purpose might be carried into effect; that the bond and mortgage w'ere thus transferred to Root, and the avails received by Lewis, and he charged himself with the amount thereof upon the books wherein he kept his accounts as executor.
    On the 26th of March, 1872, Lewis and Paige, as executors, sold and conveyed to one King a tract of land, not specifically devised, for $4,500, and King gave back to them a bond and mortgage for that amount, which, on February 5, 1873, was reduced by payment to Lewis to the sum of $3,600, and interest from April 1,1873. This bond and mortgage the executors, by assignment dated and acknowledged March 4, 1873, assigned to one Hall. The referee finds that this assignment was made for the purpose of enabling Lewis to raise money to be used by him for his individual benefit; that Paige knew of such purpose on the part of Lewis at the time, and joined in executing and acknowledging the assignment that such purpose might be carried into effect, and the bond and mortgage were trans- ’ f erred accordingly and the avails were received and applied by Lewis to his own individual use and benefit; that at this time the estate was still quite largely in debt; that the 'transfers to Root and Hall were not made for the purpose of partitioning or'dividing any portion of the residuary estate, or that Lewis might receive his share or any portion thereof; that Lewis when he appropriated the avails of said mortgages intended to replace and return to the estate the money thus taken by him.
    On the 3d of June, 1873, Frederick Lewis and Maria A., his wife, executed and delivered to Patrick H. Drake a mortgage for $60,000 upon the one-fourth interest of said Frederick in the said residuary estate, the parcels being specifically described, and on other real estate owned by him. This included the premises described in the complaint. This mortgage was recorded June 4, 1873. As a part of the transaction an agreement was given back to Lewis, signed by Drake and dated June 4, 1873, which stated that the mortgage was given to secure Drake “ against all liability he lias or may have incurred as indorser for the' said Lewis,” the amount being supposed to be about $32,000; also to secure Drake for advances which he is to make to liquidate and satisfy the large amount of judgments against the said Lewis, which are a lien upon the property covered by the said mortgage, Drake agreeing “to take care and protect the said Lewis and his property from the enforcement of any of the judgments against the said Lewis or his property, and save the property of the said Lewis from sacrifice and the said Lewis from damage and costs.” The referee found that the amount of paper upon which Drake was indorser for Lewis at the time of the mortgage was from $20,00u to $30,000; that the judgments against Lewis, for which Drake was to make advances and which he was to take up, amounted to $31,631.10, with interest; that Drake, in pursuance of the mortgage and agreement, paid the said notes on which he was indorser, and paid and took up the said judgments, which, however, he did not have satisfied, but caused a portion to be assigned to his wife Jane E. Drake, and the remainder to himself; that all the said judgments were a lien on the one-fourth interest which Lewis took under the will and mortgaged to Drake; that about $23,000 of said judgments were a lien on such one-fourth interest at the time of the assignment of the Morgan mortgage to Root in October, 1872; that Drake when he received his mortgage did not know that Lewis had received any more than his share of the said estate, nor did he know of the sales made by Lewis and Paige to Morgan and King, or that the Morgan and King mortgages had been disposed of and the avails appropriated by Lewis; that Drake took liis mortgage in good faith for the purposes in his agreement, without notice of any secret lien against or upon the interest of Lewis in the residuary estate. Default being made in the payment of this mortgage, it was foreclosed and the premises sold on 6th of November, 1875, and bid in by Drake. The referee found that Drake was a purchaser in good faith. The one-fourth interest of the parcels described in the complaint brought $7,250. The entire proceeds of the mortgage sale were about $24,000. The plaintiff has the title acquired by Drake on this foreclosure. At the time of the commencement of this action all the debts and liabilities, funeral and testamentary expenses, and all incumbrances and liens upon or against said Hazard Lewis, had been paid.
    On the 13th of December, 1880, proceedings were commenced in the Surrogate’s Court for an accounting of the executors, which resulted in a decree on the 16th of May, 1887. From this it appears that the executors had received large amounts from the proceeds of sales of real estate, as well as from personal property and from rents, and that Frederick Lewis, aside from the Morgan and King mortgages, had received more than his share of the funds received by the executors. The surrogate charged him solely as of the date of the decree (which included a large amount of interest), with the sum of $24,215.85, and credited him with his share, $20,350.97 leaving a balance of $3,864.88, which was decreed to be paid to the other residuary legatees or their representatives. He charged Lewis and Paige, together, with the amount of the said Morgan and King mortgages, $10,600, amounting altogether to $21,644.75 at date of decree, and directed that they pay the same as follows: To Maria Lewis, $11,128.39 ; to Julia R. Drake, as executrix of Jane A. Drake, $7,201.73, and to the administrators of the estate of Caroline L. Paige, $3,314.43. Frederick Lewis is insolvent, and has been since the spring of 1873, and no part of the balance charged to him and Paige, together, can be collected of him. Paige appealed from the decree, and pending that and this partition suit, and on September 7,1887, the plaintiff and said Paige entered into a stipulation in writing which, after reciting the provisions of said decree, proceeded as follows: “ Clinton F. Paige has appealed from said decree which is pending. There is also an action of partition pending to partition the real estate in which Julia R. Drake and the heirs of Caroline L. Paige and Clinton F. Paige claim an interest. Julia R. claiming absolute title to the share of undisposed residuary real estate formerly belonging to F. Lewis, and O. F. Paige claiming the same should first be charged with payment of the deficiency of F. Lewis, with which Lewis and Paige are jointly charged, which is one of the principal questions litigated. Mutual talk of compromise has occurred, to which C. F. Paige assents, viz.: That the sum payable to Julia R. Drake by said decree shall, subject to the provisions hereafter named, be paid or secured to her, a cash payment of at least $3,000 to be made, and the balance secured to be paid at some agreed time. That Paige shall be released and excused from the payment of any part of the sum of $14,107.71, payable by said decree to Maria Lewis, and shall be left to settle himself with the heirs of Caroline L. Paige, D. H. Carver, for the $300 costs and all other matters involved in the decree, and the executions now in the sheriff’s hands shall be withdrawn, and said decree, by suitable indorsement, be satisfied and receipted as to the interest of Julia R. Drake and Maria Lewis. It is also further provided that all claim of O. F. Paige and others to charge the interest of Frederick Lewis in the residuary real estate is waived, except that it is understood that he is to have the right to seek to charge the same and be subrogated in the place of said Lewis as to the sum of $7,189.97, being the sum paid by him to Julia R. Drake on account of the $21,644.75 charged to him and Lewis, jointly, for money received and used by said Lewis, with interest thereon, all the rest of said $21,644.75 being satisfied by this agreement.”
    The referee decided against the claim of Paige for subrogation, . and held that the plaintiff was the owner of three-fourths; that the other fourth, being that taken by Caroline L. Paige under the will, was owned by the defendants Jane L. Paige, Edith Paige, and Clinton F. Paige, as trustee of Lewis B. Paige, and that in' this fourth Clinton F. had a tenancy by the curtesy. An actual partition was directed. The record indicates that Frederick Lewis and wife have been made parties defendant by amendment.

      Alexander Qvmrrumg, for the appellant.

      T. O. Milla/rd, for the respondent.
   Merwin, J.:

The only question before us is whether Clinton F. Paige has a lien or charge on the one-fourth interest of Frederick Lewis, acquired by plaintiff through the foreclosure of the mortgage of J une 3, 1873, for the amount he was compelled to pay by reason of the appropriation by Frederick Lewis of the Morgan and King mortgages. We must assume here that Paige was correctly charged by the surrogate with the amount of those mortgages by reason of the knowledge of Paige of the design of Lewis to misappropriate and his assistance in enabling him to do it.

The claim, then, of Paige is that he was, in effect, in the position of a surety for his co-executor, and that, when he paid the other parties the moneys his co-executor had appropriated, he became entitled in equity to be subrogated to any remedy the other parties might have had against the share of Frederick Lewis for his misappropriation, and that one of those remedies was the right to have an equitable charge or lien on such share in whosesoever hands it might be. It is, I think, true that, as between the parties themselves, if one had obtained more than his share, an equalization would be made upon a division of the balance of the common property, and that this right for equalization would enure to the benefit of one who, as surety, had been compelled to respond for a defaulting co-owner. I do not suppose that the fact that the parties sought a personal remedy through an accounting in the Surrogate’s Court would operate as a waiver of any other remedy (Clapp v. Meserole, 1 Keyes, 281); or affect the right of the surety. But the trouble here is, the rights of third parties have intervened. A large creditor of Paige has obtained, as he claims, a lien by mortgage and a title by subsequent foreclosure, all before the discovery or ascertainment of the misappropriation, and, upon agreement with the judgment-debtor has advanced and paid out large sums in payment of judgments which are conceded to have been liens on the share of Frederick and were recovered before the misappropriation. I say conceded, because that fact is found by the referee upon tire request of the defendants. So that the question, then, is whether the equity of the surety is superior to the right, be it legal or equitable, of the mortgagee or those holding under him. Drake, when he took the mortgage, assumed new responsibilities; he agreed to and did advance moneys to take up prior judgments; he parted with value on the faith of the mortgage, and the referee finds that he then had no notice or knowledge of any misappropriation by Lewis. The evidence authorizes this finding. At the mortgage sale he was a purchaser for a valuable consideration, although the purchase-money was applied on the mortgage debt ( Wood v. Morehouse, 45 N. Y., 376); and his title was as of the time of the execution of the mortgage. Authorities are cited by the respondent to the effect that under the will no estate vested in the executors; they took simply a power in trust, and the fee was in the devisees, subject to the execution of the power. (Reed v. Underhill, 12 Barb., 113 ; Crittenden v. Fairchild, 41 N. Y., 289; Hetzel v. Barber, 69 N. Y., 1.) The will admits of this construction, and it does not seem to be disputed by the appellant. His answer is apparently on that basis, and his right to tenancy by the curtesy, which he claims in his answer, is on that basis. If the title vested in the devisee, he had a right to mortgage^ or sell; if the power to the executors was exercised simply for the pruposes of division, then, according to the case of Ackerman v. Gorton (67 N. Y., 63), the proceeds would be deemed realty for the purpose of the retention of liens on the legal estate ; if the power was exercised in order to provide for charges and expenses imposed by the will, then the balance, after providing for such incumbrances, slioidd be deemed still to retain its character of realty. (Vernon v. Vernon, 7 Lans., 492.) The premises described in the complaint seem to be such balance.

The general rule under the English cases is that if a tenant for life, or other person having a partial interest, be an actor in a breach of trust, all the benefit that would have accrued to him, either from that trust fund or any other estate comprised in the same settlement, may be retained as against him, his assignees in bankruptcy, or, except when the defense of purchase for value without notice is applicable, those claiming under him, until the amount retained, with the accumulations thereon, have compensated the trust estate for the loss it has sustained. (Lewin on Trusts [2d Am. ed.] 609.) The same rule should apply here, and the mortgagee, as a purchaser for value without notice, have the benefit of the exception and be protected. There is another view of the case which supports the same conclusion. About $23,000 of the judgments that Drake assumed and agreed to take up and did take up, were conceded liens on the one-fourth interest of Lewis before the misappropriation. Drake having j>aid these at the request of Lewis, would be entitled to be subrogated to the benefit of the liens for his protection as against subsequent claimants (Gans v. Thieme, 93 N. Y. 232; Clute v. Emmerich, 26 Hun, 10; affirmed, 99 N. Y. 342), and thereby fortify the right which was obtained by the foreclosure. The amount of these was more than was realized upon the foreclosure sale. How much Drake, in fact, paid for these judgments does not appear. Presumptively, he paid the full amount. Nor does it, I think, affect the question that instead of satisfying the judgments he had them assigned to himself and his wife. Keeping in form the legal lien would not injure his equitable rights. The judgments have all now by lapse of time ceased to be legal liens. But it is said that under the rule laid down by Judge Dbnio in the Olwpj) Case, above cited, the share of Frederick Lewis may be followed although he may have transferred or incumbered it before the misappropriation. That case differs materially from this. In that case the fund still remained in the hands of the trustee. It was a case where the title was in the trustee absolutely, and the determination was for the benefit of the beneficiary, directly and not of a party who.claimed to 'be subrogated. Here a party, who was an actor in the misappropriation, seeks the benefit of the principle of subrogation. He is still executor and the case shows there are assets still in his hands, but the amount does not appear and no relief is claimed here as to them. The right of subrogation is an equitable one, and its application must depend upon the circumstances of each particular case. The continued insolvency of Lewis has brought about the present strife. He ceased to be executor in 1813, but nothing was done about an accounting until 1880.

Having in view the origin of the claim of the appellant, he has not, in my opinion, shown any equitable right superior to the right acquired by Drake, and through him by the plaintiff, in the share of Frederick Lewis in the property described in the complaint.

It follows the judgment should be affirmed, with costs.

Hardin, P. J., concurred; Mastín, J., did not vote.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Merwin, J.:

license: Public Domain

text:
    In the Matter of the Final Accounting of FRANCES A. FRENCH, as Executrix of the Will of PHEBE E. HITCHCOLK.

      Surrogate — when cmtlwrized to gim a construction to provisions of a will relating to real property.

    "Where a testatrix, by her will, gives ber personal estate to her husband to do with it as he shall think best during his lifetime, with power to use so much thereof as he may wish during his lifetime, and directs that after his death whatever then remains in his hands up to a certain amount shall go to the daughter of the testatrix, the will operates on whatever is in the hands of the husband, constituting a portion of such estate, at the time of his decease.
    Such portion of the estate remaining in the hands of the husband at the time of his death cannot be affected or disposed of by his will.

      Matter of Gager (111 3ST. Y., 343) followed.
    Where it is necessary, in order to determine questions arising on the accounting of an executor, to give a construction to provisions of the will of the testator which refer to both real and personal estate, the surrogate has jurisdiction, as incident to his right to entertain such proceeding, to construe such provisions of the will.
    Appeal by Augusta H. Simpson from a decree made by tbe smvrogate of Delaware county on tbe 5tb day of April, 1888.
    Pbebe E. Hitcbcolk died on tbe 31st day of March, 1886, leaving a will dated July 22, 1881, in wbicb were tbe following provisions:
    “ First. I give, devise and bequeath unto my husband, John Hitcbcolk,’ all of my real estate, situate in said town of Davenport, to do with as be shall think best.
    “ Second. I give, devise and bequeath unto my said husband all and every kind of my personal property, consisting in part of mortgages, bonds, notes and money, etc., and wish my said husband to do with said property as he shall think best during his lifetime, without any let or hindrance from any source whatever.
    “ Third. I give, devise and bequeath unto my daughter, Mrs. F. A. Churchill, the sum of eight thousand dollars, to be paid her out of my real and personal estate at and after the death of my said husband, provided there be that amount in my husband’s hands at his decease.

      “ Fourth. I wish it to be distinctly understood that my said husband may use so much of my real and personal estate as he may wish to during his lifetime, and at his death, if there be the sum of eight thousand dollars remaining in his hands, that that amount be paid to my daughter, Mrs. F. A. Churchill; and if there be not the sum of eight thousand dollars in his hands, then, and in that case, it is my wish that my said daughter have and receive whatever then remains in my said husband’s hands, to do with as she shall think best.

      “Fifth. I do hereby nominate and appoint and constitute my husband, John Hitchcolk, my executor, and my daughter, Mrs. F. A. Churchill, now of the city of New York, my executrix, of this my last will and testament.”
    John Hitchcolk, the husband of Phebe E. Hitchcolk, died on 10th June, 1886, leaving a will bearing date May 5, 1886, in which, after divers provisions not material here, lie gav'e all the rest of his property, real and personal, to his two daughters, Mrs. French, formerly Churchill, and Mrs. Simpson, share aiid share alike, and appointed them executrices. In this will no reference was made to the will of Mrs. Hitchcolk, or to the property therein named. The will of Mrs. Hitchcolk was admitted to probate, as a will of real and personal property, on 26th July, 1886, and letters were issued to the executrix. The will of John Hitchcolk was, in like manner, admitted to probate on 2'7th July, 1886, and letters were issued to the executors. After the death of Mrs. Hitchcolk her husband did not use or expend for himself or his benefit any part of the personal property of his wife, and the securities in the hands of the executrix, and accounted for on the accounting, are the original securities owned by Mrs. Hitchcolk at her death, and that were passed over to the executrix without change. After the payment of debts and expenses there remained in the hands of the executrix, of the personal estate of Mrs. Hitchcolk, the sum of $2,606.22. This amount the surrogate decreed should be paid to Mrs. French upon the legacy to her of $8,000.

      Eckmn D. Wagner, for the contestant, appellant.

      Halloeh, Jennings & Chase, for Frances A. French, executrix, respondent.
   Merwin, J.:

The question m this case is whether John Hitchcolk, under the will of his wife, became the absolute owner of her personal estate, or was vested with the power to dispose of it by his will. If there was such a power, his will was in form sufficient to operate as an execution of it and pass the title to the residuary legatees therein named. (Hutton v. Benkard, 92 N. Y., 295.)

Mrs. Hitchcolk, by the second clause of her will, gave to her husband all her personal property, wishing him to do with it as he should think best during his lifetime. By the third clause she gave to her daughter, then Mrs. Churchill, $8,000, to be paid her out of her real and personal estate, at the death of her husband, provided there was that amount in her husband’s hands at his decease.. By the fourth clause she wishes it to be distinctly understood that her husband might use so much of her real and personal estate as he might wish to during his lifetime, and that at his death whatever then remained in his hands, to the extent of $8,000, should be paid to her daughter.

In Greyston v. Clark (41 Hun, 125), by the «will there under consideration, the testator in the first clause gave and devised all his real and personal property to his wife, absolutely to have and to hold for her own use and benefit forever, and with full power and authority to sell or mortgage as she thought proper. In the second clause the testator provided that, on the death of his wife, whatever property that she may die seized of that belonged to me and remains in her by virtue of this will, shall be divided ” among others named. It was held that the widow had no power to dispose of any portion of her husband’s estate by her will, and that so much thereof as remained in her hands undisposed of at the time of her death passed under her husband’s will to the other parties.

In Wells v. Seeley (47 Hun, 109) the testator gave all the rest and residue of his estate to his wife, “ to be held and used by her as she shall see fit and proper during the full term of her life, and at her death if any part of my said estate shall remain unexpended, then and in that case I give and bequeath such remaining portion ” to other parties. It was held that the widow had a life estate in the residue, with the power to use such portion thereof as she should deem proper for her support during her life, and that the provision as to the remainder, if any remained unexpended, was valid.

In Matter of Cager (111 N. Y., 343), recently decided by the Court of Appeals, the testator gave all his estate, after the payment of debts, to his wife, “ to be used and enjoyed and at her disposal during the term of her natural life,” and what might remain at her decease he gave to other parties. It was held that while the widow had the power to dispose of the corpus of the estate, such power was not absolute and unconditional, but was limited by the language devising the property for her use and enjoyment during her life, and did not give her the power of disposing of it by will.

These cases seem quite analogous to the present. Here there is a gift of the personal estate to the husband to do with it as he shall think best during his lifetime, with power to use so much as he may wish during his life, and at Ms death whatever then remains in his hands, to the extent of $8,000, is given over to the daughter. The will operates in express terms on whatever is in the hands of the husband at his decease. That necessarily carries with it the idea that the husband by will cannot affect it. The intent on that subject seems very clear. The testatrix evidently contemplated that something would be left at her husband’s death, but that there might not be $8,000. No provision is made for any excess over that amount. The inference is quite strong that none was contemplated. Many cases, earlier than those above referred to, have been cited, some of which are not entirely harmonious. It does not seem necessary to consider them here. The Gager case contains the latest expression of the views of the Court of Appeals, and that and the Greystone case are quite in point here. I am, therefore, of the opinion that the will of John Ilitchcolk did not operate upon the balance of Phebe Hitchcolk’s estate remaining at his death, but that such balance is properly applicable on the $8,000 legacy. The decree of the surrogate in that respect is, therefore, correct.

It is further claimed by the appellant that the surrogate had no right to construe the will as to the real property, and that he erroneously assumed to do so in deciding that whatever remained unused and unexpended of the property of said deceased, to the amount of $8,000, passed, on the death of said John Hitchcolk, to Frances A. French. The construction of the will was necessary to determine the questions arising on the accounting, and in such a case jurisdiction to construe a will attaches as incident to that proceeding. (Purdy v. Hayt, 92 N. Y., 450.) The real and personal were mingled in the provisions to be construed.

In order to determine the status of the personal, it was necessary to consider and pass upon the provisions referring to both real and personal. The real estate was not in question before the ■ surrogate, and there is no specific adjudication about it. The decree affects only the personal estate, and whatever determination is made by thei surrogate upon the question of construction relates very evidently,' in its effect, only to the subject-matter then before the surrogate. The surrogate in this regard did not exceed his jurisdiction.

It follows the decree appealed from should be affirmed, with costs.

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

Decree of the surrogate of Delaware county affirmed, with costs.


text:
    THE AMERICAN BAPTIST HOME MISSION SOCIETY, THE AMERICAN BAPTIST MISSIONARY UNION and THE BAPTIST MISSIONARY CONVENTION OF THE STATE OF NEW YORK, Respondents, v. EZEKIEL T. FOOTE, Appellant, Impleaded with Others.

      Legacies, not specifically charged upon the real estate — when so cha/rged,-in defcmlt of sufficient personal propes'ty, under the terms of a gift of the r-est, residue and remainder of the estate — pleading, foi'eign or domestic incorpos'ation.

    A testatrix, after giving certain pecuniary legacies, provided by her will as follows: “ I give, devise and bequeath all the rest, residue and remainder of my property, of every name and nature whatsoever, to Ezekiel T. Foote.” There was no provision of the will specifically charging the legacies upon the real estate, and it appeared that the personal property left by the testatrix was insufficient, by about one-third of the amount thereof, to pay the legacies, and that she died seized of certain real estate.
    In an action, brought to charge the real estate, passing under the residuary clause of the will, with the payments of the legacies:

      Held, that, under the circumstances of this case, the legacies were charged upon such real estate.

      Semble, that a complaint which states the facts from which a conclusion must follow, under the definition given in subdivision 18 of section 8343 of the Code of Civil Procedure, as to the plaintiff being a foreign or domestic corpora, tion, although the fact is not specifically alleged, sufficiently complies with section 1775 of such Code.
    Appeal from an interlocutory judgment entered, upon the decision of the Delaware Special Term, in the office of the clerk of Delaware county, April 26, 1888, overruling the demurrer of the defendant Ezekiel T. Eoote to the complaint.
    The complaint alleges that the plaintiff “ The American Baptist Home Mission Society ” is a corporation duly organized and incorporated under special acts of the legislature of the State of New Tork, describing them ; that the plaintiff “ The American Baptist Missionary Union ” is a corporation duly organized and incorporated, first under certain acts of the legislature of the State of Pennsylvania, describing them; also under an act of the State of Massachusetts, describing it; also under chapter 17 of the Laws of the State of New York for 1870, entitled “An act in relation to the American Baptist Missionary Union; ” that the plaintiff “ The Baptist Missionary Convention of the State of New York” is a corporation of the State of New Tork, duly organized and incorporated; that each of said corporations are authorized to receive the bequests thereinafter specified; that on December 14, 1882, Lois J. Fitch died, leaving a will of real and personal property, which was duly admitted to probate in Delaware county on January 29, 1883; that said will, after giving certain specific legacies, gave to each of the defendants, except Ezekiel T. Eoote, a pecuniary legacy aggregating $1,200, and to each of the plaintiffs the sum of $500, and then came this clause: “Thirteenth. I give, devise and bequeath all the rest, residue and remainder of my property, of every name and nature whatsoever, to Ezekiel T. Foote, to have and to hold the same forever,” and Orlo T. Foote is appointed executor; that the other defendants, except Ezekiel T. Foote, are made defendants because they decline to be plaintiffs, and the plaintiffs sue for the benefit of all the monetary legatees; that the said testatrix did not have sufficient personal property to pay said legacies in full, and the executor has had an accounting and settlement as to the personal property, resixlting in a decree on March 13, 1885, distributing to the plaintiffs each the sum of $340.70, and a proportionate amount to each of the other legatees, and the balance of the legacies, besides interest, is wholly unpaid; that the deceased left certain real estate, describing it, which is occupied by the defendant Ezekiel T. Eoote, he having elected to take under the will as residuary legatee and devisee, and being in the receipt of the rents and profits, and refusing to pay the balance of the legacies. Judgment is demanded that the legacies be declared a lien on the real estate, and that the same be sold for their payment. The defendant Ezekiel T. Eoote demurs on the ground that the complaint “ does not state facts sufficient to constitute a cause of action, and is insufficient in law upon the face thereof.”

      Bobert T. Johnson, for the appellant.

      John B. Gleason, for the respondents.
   Merwin, J.:

It is claimed by the appellant that the complaint is insufficient on its face because it does not state whether the plaintiff “The American Baptist Missionary Union” is a foreign or domestic corporation, as required by section 1775 of the Code. It was held at Special Term that this section was substantially complied with, inasmuch as the facts were stated from which a conclusion must follow under the definition given in subdivision 18 of section 3343. This is a reasonable construction and should be followed. No point is made on this subject as to the other plaintiffs. If the complaint is good as to them, there is some doubt at least about the ground of demurrer as taken being available. If the point is made as to all the plaintiffs, it is not entirely clear that demurrer in this form will lie. (Irving W. Bank v. Corbett, 10 Abb. N. C. 85; Hafner and S. F. Co. v. Grumme, 10 Civ. Pro., 176.) But that question need not now be decided.

It is further claimed that under the will in question the legacies are not a charge on the real estate. There is no specific charge. The legacies are given and then comes the residuary clause •— “ all the rest, residue and remainder of my property.” The effect to be given to such a residuary clause has been a matter for consideration in a great many cases with results not in harmony. The latest expression of the views of the Court of Appeals is found in Brill v. Wright (20 N. Y. State Rep., 305). It is there said that the cases in this State establish these two propositions, first, that general language in a will giving legacies, followed by the usual residuary clause, is alone insufficient to charge the legacies on the realty; and, second, that such language will justify such charge, if it is made to appear by extrinsic circumstances, such, as may under the rules of law be resorted to to aid in the interpretation of written instruments, that it was the testator’s intention that the legacies should be charged on the land. In that case, the testator, after providing for the payment of debts, gave to B. the sum of $2,000 to be paid within three months after his (the testator’s) decease and then gave all the rest and residue of all my real and personal estate ” to other parties. It appeared that the debts were small and that the personal estate would have been sufficient to pay the legacy, had it not been for extraordinary expenses in the proof of the will and on the accounting. It was held that the legacy was not a charge on the real estate. Significance was given to the fact that under ordinary circumstances the personal estate would have been sufficient, and to the fact that the legacy was made payable in three months.

It may be that, under the rule laid down in the above case, the legacies in question would not, upon the face of the will, be a charge on the real estate. It is, however, alleged, and it is a proper circumstance to be considered, that the testatrix did not have sufficient personal property to pay the legacies in full. A circumstance of this kind, an inadequacy for the payment of legacies, although greater in degree, existed in the case of McCorn v McCorn (100 N. Y., 511), and was considered very significant on the question of intention. There was there, as here, the use of the expression, “ the rest of the property,” and that was deemed important. There was in the mind of the testatrix, in the use of the residuary clause, no distinction between real and personal property. It was all apparently as one mass from which she took and devoted to certain purposes certain sums, and the rest, or balance, gave to the residuary legatee. In this respect this case differs from the Brill case.

The complaint does not allege the date of the will. The allegation of inadequacy is general. "We cannot assume there was any material change in the estate between the date of the will and the death. We must rather assume that inadequacy of the personal estate, as alleged, was known to the testatrix. If the estate was depleted by any extraordinary circumstances, after the death or after the will was made, that is matter to be developed at the trial. The ordinary expenses of settlement the testatrix is supposed to have taken into account. Nor can we assume that the amount of deficiency, about one-third, is such as can be fairly called a small and unexpected lack of personal property so as to have no bearing on the question of intention. It is not to be presumed that the testatrix would, in form, give $2,100, tq be paid out of a fund of $1,800.

Having in view the allegation of inadequacy and the form of the residuary clause, we are of the opinion that, under the complaint^ the real estate would be chargeable with the balance of the legacies.

It follows that the judgment should be affirmed, with costs, with leave to the defendant to answer upon payment of costs of demurrer and of the appeal.

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

Judgment affirmed, with costs, with leave to defendants to answer upon payment of costs of the demurrer and of tiie appeal.


author: Hardin, P. J -:

text:
    In the Matter of Proceedings by the WASHINGTON STREET, ASYLUM AND PARK RAILROAD COMPANY to Acquire a Crossing of the Railroad of the Syracuse, Binghamton and New York Railroad Company.

      Horse railroad companies — right of, to consolidate under chapter 108 of 1875 and chapter 387 of 1883.
    Under chapter 108 of the Laws of 1875, and chapter 387 of the Laws of 1883, “in any case where two or more railroad companies shall have been, or shall hereafter be, organized under the laws of this State, the whole of whose lines, as located by them, respectively, shall form one continuous and connecting line of road,” although such roads may have been organized, and may be transacting business as horse railroad companies, such companies are authorized to consolidate their respective roads.

      Semble, that the provision in section 3 of chapter 917 of the Laws of 1869, that “nothing herein contained shall apply to street railroads,” is limited in its effect to that section of the act, but the provision in section 7, “nor shall this act apply to street railroads,” excludes street railroads entirely from the operation of the act of 1869.

      Appeal from an order made at Special Term in Broome county, and entered in the Broome county clerk’s office January 23, 1889, denying the prayer of the petitioner for the appointment of commissioners to ascertain and determine the point and manner of crossing, and the compensation to be paid to the Syracuse, Binghamton and New York Railroad Company for the use thereof; and also an appeal from the judgment entered in said county clerk’s office January 23, 1889, upon said order.
    At the close of the findings of fact made by the Special Term the conclusion of law thereon was stated as follows: “ That the proceedings taken by the ‘Washington Street, State Asylum Railroad Company ’ and the ‘ Park Avenue Railroad Company ’ to merge and consolidate their stock, franchise and property into a new company, ‘to be known as the Washington Street, Asylum and Park Railroad Company,’ were without authority of law, and were inoperative and void, and for such reason the petitioner in this matter never acquired any lawful existence as a corporation. That it is not, and never has been, a legally organized corporation, affected by or entitled to avail itself of any of the provisions of chapter 140 of the laws of 1850. That for such reasons the petitioner is not entitled to acquire a crossing over the defendant’s road. And its application for the appointment of commissioners for such purpose should be denied.”
    It was also found as a fact that the Washington Street and State Asylum Railroad Company “ filed articles of association in the office of the secretary of State on or about October 23, 1871, and thereafter acted as a corporation; and, in the year 1872 constructed, and had ever since, up to the time of the consolidation hereinafter mentioned, operated and claimed to own a street railroad in Robinson street aforesaid. That said articles of association, so filed, in form were in accordance with the provisions of said act of 1850, and the amendments thereof, and all the proceedings in relation to such organization, in form and manner, were in accordance with and in conformity to the provisions and requirements of said law of 1850.
    “ That in June, 1881, certain other persons had taken like proceedings to incorporate themselves under the laws of 1850, and amendments thereto, as the Park Avenue Railroad Company, to construct, maintain and operate a street railroad in said city of Binghamton, and on May 6,1882, filed articles of association in the office of the secretary of State, and thereafter acted as such corporation. That said articles of association and incorporation, in form, were in accordance with the requirements of said law of 1850, and all the proceedings in relation to such organization, in form and manner, were in accordance with and in conformity to the requirements of said act, except it was written in such articles, and they show upon their face, the object and purpose of the corporation was to construct and operate a street railroad, using animal power as its motive power.”

      “ In the autumn of 1887, such two companies being then engaged in operating continuous lines of street railroads in the city of Binghamton, proceeded, in manner and form, as required by the existing laws of this State, relating to the consolidation of railroad companies, to merge and consolidate their capital stock, franchise and property, and to thereby form a new corporation by the name of the Washington Street, Asylum and Park Railroad Company, for the purpose of operating the continuous line of their said street railroads. On the 4th day of October, 1887, they filed their agreement and the certificates required by such laws in the office of the secretary of State, and all the proceedings taken by them for the purpose were in ' conformity with the requirements of such laws. The agreement so filed recited that they made such merger and consolidation, one witli the other, ‘ in pursuance and by virtue of the provisions of chapter 108 of the Laws of 1875, and the acts amendatory thereof, and the several acts therein referred to.’ The petitioner in this matter is the company so claimed to have been formed by consolidation, and ever since the 4th day oí October, 1887, it has operated and managed, and now is operating and managing the street railroad described in the petition, claiming to be a duly organized corporation with power and authority to own, use and operate the same.

      “ That the said Washington Street and State Asylum Railroad Company heretofore constructed its tracks in Robinson street over and across the tracks-of the Syracuse, Binghamton and New York Raih’oad Company’s railroad, nearly at right angles and at grade without having instituted any proceedings to acquire the right to construct such crossing by condemnation and without having obtained any deed or consent, by writing or otherwise, from the Syracuse, Binghamton and New York Railroad Company, or its predecessors in title, or any one acting in their behalf. Neither had the petitioner instituted such proceedings or obtained such consent or deed.”
    It was also found that the Washington Street and State Asylum Railroad Company, since 1874, maintained and operated its railroad over and across the tracks of the Syracuse, Binghamton and New York Railroad Company’s road in said Robinson street, and in so doing ran its cars across the tracks of the Syracuse, Binghamton and New York Railroad Company’s said railroad during the past two years four times each hour, and prior to that time twice each hour, for fifteen hours each day.

      George Whitney and W. J. Welsh, for the appellant.

      JD. 8. c& R. B. Richards, for the respondent.
   Hardin, P. J -:

Assuming, as was held at the Special Term, that the Washington Street and State Asylum Railroad Company was organized under the general railroad act of 1850, and the amendments thereto in 1871; and the Park Avenue Railroad Company was organized under the same statute in 1882, and were being operated under their charters, and were existing railroad corporations under the laws of this State, the important inquiry presented by the appeal here is in regard to their ability or authority to consolidate in virtue of the laws of this State, as they assumed to do in 1887. Chapter 917 of the Laws of 1869 authorized the consolidation of certain railroad companies.” (See title of the act.) The act provides: “ It shall and may be lawful for any railroad company or corporation organized under the laws of this State, or of this State and any other State, and operating a railroad or bridge, either wholly within or partly within and partly without this State, to merge and consolidate its capital stock * * * with the capital stock, franchises and property of any other railroad company or companies organized under the laws of this State, or under the laws of this State and any other State, or under the laws of any other State or States, whenever the two or more railroads of the companies or corporations so to be consolidated shall or may form a continuous line of railroad with, each other, or by means of any intervening railroad bridge or ferry.”

This statute contains ten sections perfecting a system or mode of consolidation. In the third section it is declared that corporations, upon filing the agreement of consolidation, “shall be deemed and taken to be one corporation by the name provided in said agreement and act.” That section also contains a restriction upon the fare to be taken by the New York Central Railroad to two cents per mile, “ and no more, wherever it is now restricted to that rate of fare ; but nothing herein contained shall apply to street railroads.” It may be inquirable as to the last sentence found in section 3, whether it is not limited to the provision of the section, instead of being intended to apply to the said provisions of the whole act. The words “but nothing herein contained” may have full effect by restricting their meaning to the provisions of the section in which they are found. Such would seem to be the effect of their insertion.

In section 7 of the act it was provided that “ nothing in this act contained shall be so construed as to allow such consolidated company to charge a higher rate of fare per passenger per mile, upon any part or portion of such consolidated line, than is now allowed by law to be charged by each existing company, respectively; nor shall this act apply to street railroads.” If the limiting words found in section 3 apply to the whole act, and exclude from its operation street railroads, the insertion in section 7 of the words “ nor shall this act apply to street railroads,” would seem to be superfluous; however, the force of the words in section 7, “ nor shall this act apply to street railroads, ” clearly was to exclude from the operation of the act street railroads; or, to put the idea in another form, the legislature, by the act of 1869, authorized steam roads to consolidate ; it did not authorize street roads to consolidate by the terms of that act. The use of the words “ nor shall this act apply to street railroads,” found in section 7, clearly indicates that the legislature supposed that the use of general words in section 1 would make its provision applicable to street railroads, unless the words of exclusion found in section 7 were inserted in the act. It may be observed, therefore, that the general words in section 1 of the act were broad enough to include all railroads, both steam and street. The pertinency of this observation will be more apparent when we come to consider tlie act of the legislature passed in 1875, found in chapter 108 of the laws of that year. The title is “An act in relation to railroad corporations.” It may be observed, in passing, that the title is general; contains nothing in its language to indicate that it was an amendment of any preceding law; its provisions are in the nature of an enabling act, and each and every of its provisions are entitled to receive full force, and should be applied to all cases named therein, and all classes of railroads embraced within its general provisions. Its language is as follows: “ Section 1. In any case where two or more railroad companies shall have been, or shall hereafter be, organized under the general laws of this state, the whole of whose lines, as located by them, respectively, shall form one continuous and connecting line of road, the said companies may consolidate their lines of roád, stock, franchises and property according to the existing laws of this State relating to the consolidation of railroad companies; and any such consolidated company may thereupon construct or finish the construction of such continuous line of railroads and operate the same, subject to all provisions of law applicable to railroad corporations organized under the said general laws, so far as not inconsistent with this act; but this act shall not in any manner affect the existing laws regulating the rate of fare on any railroad.” This language is broad and comprehensive. Surely, if the language of section 1 of the act of 1869 was broad enough to cover street railways, as was evidently so understood by the legislature, as is evidenced, as we have seen, by the insertion of a positive limitation of its application to roads other than street roads, surely the words of section 1 of the act of 1875 are sufficiently comprehensive to embrace both classes of roads, those operated by steam and those known in the legislation of the State as street railroads. An examination of section 1 of the act of 1875 indicates an intent on the part of the legislature to authorize, not only the roads that “ have been,” but the companies that should be organized after its passage, “ under the general laws of this State.” If we could find in the title of the act of 1875, or in the phraseology of the body of the act, any evidence of an intent on the part of the legislature to amend the act of 1869, we might find a view favorable to the contention of the respondent. However, in consideration of the title of the act of 1875, the unqualified language used in the body of tbe act, presents very clearly, evidence of an intention on tbe part of the legislature to authorize the consolidation of roads not mentioned in any preceding legislation.

This act was amended in 1883 by chapter 387. The act of 1883 purports to be an amendment of the law of 1875, as it is entitled “An act to amend chapter 108 of the Laws of 1875,” etc., and, in its various sections, it provides that chapter 108 of the Laws of 1875, entitled “An act in relation to railroad corporations,” is amended so as to read as follows. Here we have a clear intention expressed by the legislature, in the title of the act and in the body of the act, to amend the act of 1875. No such evidence of any intent to amend the act of 1869 is found in the act of 1875.' In the act of 1875 it was provided that “ where two or more railroads shall have been, or shall hereafter be, organized under the general laws of this State,” while in the act of 1883, the same words are used except the word “ general ” is omitted in referring to the laws of this State, and in the latter part of the section the word “ general ” is omitted in the act of 1883, although found in the act of 1875. The omission of the word “ general ” in the act of 1883 would seem to have been for the purpose of allowing the provision found in the act of 1875 to apply to any railroads organized under the laws of the State, and to include those corporations that were organized in virtue of special acts, and to obviate the limitation to railroad companies organized under the general laws of the State. It is probable that the expression “ general laws of the State ” limited the application of the provisions of the act of 1875 to such railroad companies as were organized under the general railroad law of 1850, and the acts amendatory thereof. Even this change favors this construction which we are inclined to give to the act of 1875. It is not unreasonable to suppose that if the legislature had intended to limit the application of the act of 1875, or the amendment thereof in 1883, to steam roads it would have inserted therein a provision in express terms restricting its application to such roads. (Ellice v. Winn, 12 Wend., 343 ; Farley v. De Waters, 2 Daly, 192 ; Norris v. Crocker, 13 How. [U. S.], 439.)

We are inclined to the conclusion that it was the intention of the legislature, by the acts of 1875 and 1883, to authorize “ in any case where two or more railroad companies shall have been, or shall hereafter be, organized under the laws of this State, the whole of whose lines, as located by them, respectively, shall form one continuous and connecting line of road,” such companies to consolidate. We are, therefore, of the opinion that the agreement filed in 1887, effectuated a consolidation of the two roads mentioned therein, and that the petitioner from that time became a corporate body, and thereby became subjected to the regulations and restrictions of the general railroad law of 1850, and the acts amendatory thereof, so far as the same are applicable, and also entitled to the benefits and privileges thereof. It follows, therefore, that the conclusion at the Special Term denying the motion for the appointment of a commission to settle the manner of crossing and the compensation therefor was improperly denied.

We think the order and'judgment entered thereon should be reversed, with costs, and the petitioner allowed to bring its application before a Special Term held in the sixth judicial district, upon giving eight days’ notice thereof, and then and there apply for the appointment of commissioners.

The order and judgment should be reversed, with costs, and proceedings remitted to the Special Term for further action.

Merwin, <7., concurred; Martin, L, not voting.

Order and judgment reversed, with costs, and the proceedings -remitted to the Special Term for further action.


author: Hardin, P. J.:

text:
    GEORGE A. THOMAS, Appellant, v. EDMUND S. KEELER and WILLIAM R. STEVENS, Respondent.

      Code of Givil Procedure, sec. 8064 — powei- of the Oounty Gourt to grant a new trial in a Justice’s Gourt when the defendant was present, hut refused to answer when the ease was called — review of the discretioncary powers of the Oounty Gourt.

      A. new trial may not be granted by tbe County Court, on an appeal thereto from a Justice’s Court, under section 8064 of tbe Code of Civil Procedure, on tbe ground that tbe defendant failed to appear before tbe justice at tbe time to wbiob tbe trial of tbe action had been adjourned, where it appears that both tbe defendant and bis attorney were present in tbe Justice’s Court on the adjourned day, and that they remained there until tbe case was called, and during tbe trial thereof, but the attorney refused to answer on behalf of the defendant when the case was called, and declined to take any part in the trial thereof on the ground that it was called too late.
    The purpose of this section of the Code was to provide a remedy for any fraud practiced or improper means employed by a party to induce his adversary not to appear either on the return day of the summons or on the day to which the trial is adjourned, or when such failure has arisen through accident, mistake or other misadventure.
    The discretion exercised by the County Court in determining whether it will grant a new trial upon the proof before it, on the ground that manifest injustice has been done, or where a satisfactory excuse has been rendered for the default, is not reviewable by the General Term of the Supreme Court.
    Appear from an order of the Delaware County Court, which set aside a judgment which had been entered in a Justice’s Court in Delaware county, and awarded to the defendants a new trial before another justice of the county, under section 3064 of the Code of Civil Procedure, upon the ground that the defendant had failed to appear before the justice on the day to which the trial of the action had been adjourned.'

      F FT. Gilbert, for the appellant.

      G. L. Andrews, for the respondent.
   Hardin, P. J.:

This was an appeal from an order of the Delaware County Court setting aside a judgment entered in a Justice’s Court and awarding the defendants a new trial before another justice of the same county. The order was made under section 3064 of the Code of Civil Procedure, and based upon an assumption by the court that the defendants failed to appear before the justice at the time to which the trial of the action had been adjourned.

If the court was justified in assuming that there was such a failure to appear, then we are of the opinion that the order appealed from should be affirmed. If the defendants failed to appear, then it was discretionary with the court whether it would grant a new trial upon the proof before it, as to manifest injustice having been done, and as to the sufficiency of the excuse rendered by the defendants for their default. Such an order should not be reviewed by this court. The rule is well established that the decisions of one court resting in its discretion are not reviewable by another, unless such review is specially authorized by law.

If, however, there was no failure to appear before the justice at the time to which the trial of the case was adjourned, it must follow that the court below had no power or authority to make the order in question. It will be observed, by an examination of the statute, that it is only a defendant who has failed to appear before the justice, either upon the return of the summons or at the time to which the trial of the case was adjourned, who is entitled to a new trial as therein provided. (Code Civil Procedure, § 3064.) Hence, whether the defendants appeared before the justice at the time to which the trial was adjourned, within the intent and meaning of this statute, seems to be the controlling question in this case.

The defendants contend that, notwithstanding the fact that they were present, both in person and by attorney, at the time to which this action had been adjourned, and that they remained until the case was called and during the trial, yet, as their attorney refused to answer when it was called or to take part in the trial, on the ground that it was called too late, although he had agreed to wait until that time, there was a failure of the defendants to appear, within the intent and meaning of the statutes. We do not think so.

The purpose of this statute was to provide a remedy for any fraud practiced, or improper means employed, by a party to induce his adversary not to appear before a justice, either on the return of the summons or at the time to which the trial was adjourned, or when such failure was occasioned by accident or mistake or other misadventure. This case falls far short of being within the purpose or intent of this statute. One of the defendants was sworn and examined as a witness on the part of plaintiffs, and fully understood the trial was taking place.

In this case the defendants did not fail to appear, but appearing, willfully refused to answer when the case was called, or to take part in the trial. This did not constitute a default on the part of the defendants within the meaning of this statute, but it was a voluntary abandonment by them of their case. (Baldwin v. Carter, 15 Johns., 496 ; Barber v. Parker, 11 Wend., 52; Cornell v. Bennett, 11 Barb., 657.)

We are of the opinion that there was no failure to appear before the justice at the time to which the trial of this action was adjourned within the meaning and spirit of the statute, and, therefore, that the court below had no power or authority to make the order in question. It, therefore, follows that the order appealed from should be reversed.

Martin and Merwin, JJ., concurred.

Order reversed, with costs and disbursements.


text:
    EMMA E. DRYER, Respondent, v. ELON G. BROWN, as Surviving Executor, etc., of HARVEY BARNARD, Deceased, Appellant.

      Evidence of want of pecunia/ry means — when competent as against a party seeking to recover an alleged loan — waiver by an executor of the defense of the statute of limitations — examination of an expert as to handwriting.

    In an action, brought to enforce payment of notes made by a decedent, against his executor who interposes the defenses of usury and of a want of consideration, evidence on the part of the defense tending to show that the payee of the note, who is alleged in the complaint to have loaned the money constituting the consideration therefor to the decedent, was not possessed of any property or money, and had not the pecuniary means to make the loan, is competent.

      Nicholls v. Van VaTkenbmgh (15 Hun, 230); Pontius v. People (21 id., 331;. affirmed, 82 N. Y., 339) followed.

      Quiere, whether an executor can, by stipulation, waive the defense of the statute of limitations existing against a claim created by the decedent in his lifetime.
    The degree of latitude which will be allowed in the examination of an expert witness, called to testify as to the genuineness of handwriting, considered.

      McKay v. Lasher (19 ÍT. Y. St. Rep., 816) followed; Hynes v. McDermott (82 N. Y., 49) distinguished.
    Appeal by the defendant from a judgment, entered upon the report of a referee in the Oneida county clerk’s office August 27, 1888, after its confirmation at the Oneida Special Term, by an order entered in said office August 24, 1888, and from an order, entered in said office August 24, 1888, refusing to set said report aside.
    Harvey Barnard died in April, 1883, leaving a will, which was admitted to probate, of wbieb the defendant Brown is the surviving executor. In February, 1884, the executor advertised, in accordance with the statute, for the presentation of claims against the estate. About March 4,1885, the plaintiff presented to the executor a verified notice of her claims against the estate, consisting of four promissory notes mentioned in the findings of fact by the referee hereinafter set forth. The executor rejected the claims and refused to pay the same. On the 6th of May, 1885, the plaintiff and the defendant entered into an agreement “ that the said matter in controversy be referred, pursuant to the statute.” That agreement named a referee; upon it was indorsed the approval of the surrogate of Oneida, bearing date the 6th of May, 1885, approving “ of the person named as referee in the foregoing agreement.” Subsequently, and on the 30th of April, 1881, the attorneys agreed by stipulation upon another referee “ to hear, try and determine ” the issues, and that either jiarty might enter an order to that effect. Thereupon an order was entered referring the issues to the referee who heard .and determined the same. It does not appear that the surrogate ever approved of the substituted referee. On the 14th of May, 1885, the attorneys entered into the following stipulation: “ It is hereby stipulated by and between the parties and their attorneys, in the above-entitled matter, that the claimant shall serve a complaint setting forth her claim, and the defendant herein shall serve an answer in the same manner and subject to the same rules of law as though the action was pending upon service of summons in the Supreme Court, and that the issues, generally, shall be submitted to a referee and the cause tried therein and thereunder with the same force and effect as though the action was pending in the Supreme Court, excepting the subject of costs.” Thereafter an amended complaint and answer were served, joining issues, which were tried before the referee.
    The answer contained a denial of the allegations of the complaint, and also set up “ that the signatures thereto are not the genuine signatures of the said Harvey Barnard, deceased, and were not made by him in his lifetime, and that said notes are not the genuine notes of the said Harvey Barnard, and were never delivered by him to the said plaintiff as his genuine notes, or at all; and the said notes are and were inoperative and void, and without consideration therefor whatever, and each and every one of said notes was and is void and without consideration. * * * That said plaintiff gave to said Harvey Barnard, in his lifetime, no consideration therefor, or for either of said notes, and that each of the said notes is illegal and void and without consideration.”
    The referee found that Harvey Barnard executed a promissory note for $500, dated December 25, 1875, to the plaintiff; another promissory note, dated December 25,1876, for $500, payable to the plaintiff ; another promissory note dated June 4, 1881, for $2,000, payable to the plaintiff, and on June 3, 1882, another promissory note for $5,000, payable to the plaintiff. The first two notes mentioned above were non-negotiable and the last two were payable 'to the plaintiff or order.

      Ed/ward E. Matthews, for the appellant.

      Sa/yles, Sea/rle & Scvyles, for the respondent.
   Hardin, P. J.:

Plaintiff gave evidence upon the trial tending to establish the genuineness of the signatures of the deceased to the several promissory notes mentioned in the report of the referee, and the defendant gave evidence strongly tending to indicate that the notes were forgeries, and were not executed or delivered by the deceased to the plaintiff. The issue of fact was so closely contested as to whether or not the signatures were genuine or not, as well as to whether the notes were delivered, if genuine, for any consideration to the plaintiff, that we are of the opinion that any erroneous ruling that may have been made by the referee cannot be said not to have prejudiced the party against whom the determination was made.

During the trial the plaintiff was put upon the stand to contradict the testimony of Mr. Miller and Mr. Williams, two very important witnesses for the defendant. She denied explicitly essential points of their testimony in regard to the notes and the several interviews which they detailed having had with her in respect thereto. During the course of her cross-examination, the defendant offered “ to show that she had no property,” thereupon the referee remarked: “ I think it is too remote,” and then the case shows that the objection was sustained and an exception was taken by the defendant. We think the testimony was competent.

In Darling v. Westmorland (13 Am. Rep., 71) tlie court said, viz.: “ In an action on a nóte alleged to have been given for money loaned, the defense being that the note is a forgery and the loan a fiction, evidence tending to show the payee’s want of means to make the loan, and evidence tending to show that the payee was a borrower of money, is admissible.” (Wiggin v. Plumer, 31 N. H., 251; Demeritt v. Miles, 22 id., 523 ; Angier v. Ash, 26 id., 99.)

In the case of Nicholls v.Van Valkenburgh (15 Hun, 230) it appears that an action was brought against executors upon a promissory note, and that the answer interposed “ was a general denial, payment, want of consideration, and that the note was made solely for the accommodation of the said Borst, the payee.” The defense was sought to be sustained by circumstantial evidence, “in the course.of which the defendant gave in evidence many circumstances tending to show the financial situation of Martin I. Borst, and also of D. A. Van Valkenburgh, at and about the time when the note purported to have been made; and afterwards, after the note, by its terms, purported to have become due and remained unpaid, with a view not only of showing, from the transactions of the parties, the probability that the note was signed at the time and for the purpose claimed by them, but also of showing by inference the improbability that, if the note represented an actual and bona fide claim against Van Valkenburgh in favor of Borst, it would have been permitted by the latter to have remained overdue, and without any demand of payment or attempt to collect the same in the lifetime of Van Valkenburgh.” Both descriptions of testimony of this character were taken under the objection of plaintiff’s counsel as to inadmissibility for the purpose of showing the financial position of the parties, and on’the ground that it was wholly irrelevant to any of the issues in the case. Judge Talcott, who delivered the opinion in that case, said: “ The evidence admitted was offered as only one of the various circumstances tending to establish the fact that the alleged note did not represent an actual and valid claim of ‘Borst against Van Valkenburgh, and we think, in this case, it was properly admitted for the consideration of the jury, together with the other evidence bearing on the subject. (Waddell's Admr. v. Elmendorf’s Admrs., 10 N. Y., 171; Burlew v. Hubbell, 1 T. & C., 236; Stevenson v. Stewart, 11 Penn., 307; examined in Woods v. Gummert, 67 Penn. St., 136; and the remarks of the chancellor and Senator Mason in Miller v. Smith’s Exr's., 16 Wend., 425.) The precise question presented by these objections seems to have been considered, and the objections overruled in a recent decision of the Supreme Court of Illinois. (Thorp v. Goervey, The Reporter, vol. 5, No. 21, p. 619, May 22, 1878.)”

A similar question arose in this court in the case of Pontius v. People (reported in 21 Hun 331; S. C., affirmed, 82 N. Y., 350), and Smith, J., remarked in regard to the question, viz.: “ Testimony as to the pecuniary condition of the defendant was not irrelevant.” The same case was referred to approvingly in Poucher v. Scott (33 Hun, 225). In Abbott’s Trial Evidence (at page 247, section 21) it was said, viz.: “ If the making of any loan whatever by plaintiff is denied, evidence of his poverty at the time is competent as tending to disprove it.”

In the answer served there was no defense of the statute of limitations. The Code provides that that defense must be taken by answer. (Code of Civil Pro., § 413; Dezengremel v. Dezengremel, 24 Hun, 457.) It is insisted, in behalf of the appellant, that, as the reference under the statute is a special proceeding, that any defense is allowable. The respondent replies that the parties have by their own act, evidenced by their stipulation, consented that the issues to be tried shall be such as are embraced within the pleadings. It is competent for a party to waive a statutory provision in his behalf, but as this is a proceeding not against Brown in his individual capacity, it may be questionable whether he could bind the persons interested in the estate rightfully by a waiver of the statute of limitations; however that may be, the conclusion we have reached on the other branch of the case renders it unimportant to pass upon that question at this time. H the defendant shall be advised that the stipulation ought not to remain, or that he had no right to waive the statute of limitations as a defense, and in doing so has exceeded his authority as an executor, and can make a proper case for relief from the stipulation, he should present such case to the Special Term and ask to vacate the stipulation, or to be at liberty to ■ amend his answer, setting up the statute of limitations. (Dayton’s Surrogate, 318; Willard on Executors, 317; Wilcox v. Smith, 26 Barb., 355.)

When the witness Daniel T. Ames, an expert in handwriting, or “a pen artist,” was being examined, it appeared that he had studied very extensively the signatures of Barnard upon genuine instruments, and on the alleged signatures upon the notes in question, and he was asked by the defendant, viz.: “ From your examination, what do you find the nature and characteristics of Barnard’s handwriting, as indicated by the exhibit referred to on your traces ? ” This was objected to by the plaintiff as inconqpetent, improper and calling for a conclusion of the witness as to what is the characteristics of Barnard’s handwriting. The referee remarked, viz.: “ I think that is too broad.” Thereupon the defendant took an exception. In another part of his evidence the witness said: 1 will refer first to the capital Ií ’ in the signature ; taking the ‘ H ’ of the $5,000 note, I find a letter beginning (witness refers to his blackboard, and asks to be allowed to illustrate thereon his meaning and evidence).” The plaintiff objected. The referee remarked, viz. : “Why refer to the blackboard ? ” Again the witness was asked, viz.: “ ITis handwriting and characteristic, then, was to commence the ‘ IT ’ on which side ? ” The witness answered: “ The rule is no initial whatever, but more frequently to the right.” The plaintiff’s counsel moved to strike out the answer, and the referee remarked, viz. : “ I think the objection is good.” An exception was taken by the defendant’s counsel. Again, the witness said “ that there are no extreme and radical departures from the customary length or habitual length of the genuine signatures. State the same as to initial sweeps.” The plaintiff objected to it as incompetent and improper. The referee sustained the objection, and defendant took an exception.

Again the witness was asked: “ Can you illustrate upon the black, board and show more clearly the difference which you point out between the disputed and genuine signatures ? ”■ That question was objected to as improper and immaterial. The witness answered: “ I think so.” Thereupon the defendant’s counsel asked the witness the following questions : “ I will ask you to illustrate upon the blackboard the difference which you have specified, the chief ones ? ” This was objected to and the objection was sustained and the defendant took an exception. ' • ■

We think the referee did not allow the latitude usually indulged in the examination of an expert witness, nor follow the rule approved in McKay v. Lasher (19 N. Y. S. Rep., 816). In that case the coiut observed, viz.: “ The next objection is thát an expert witness was allowed to explain upon a blackboard his meaning and the reasons for his opinion. We think there was no error in this. Of course the whole class of expert evidence is exceptional. And as exjperts are to give opinions, it is right that they should explain the reasons for them.” (See Roe v. Roe, 8 Jones & Spencer 1; Dubois v. Baker, 40 Barb, 562; S. C., affirmed, 30 N. Y., 355 ; Bank of Commonwealth, v. Mudgett, 44 id., 523.) Chapter 36 of the Laws of 1880 provides as follows: “ Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine, shall be permitted to be made by witnesses in all trials and proceedings, and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness, or otherwise, of the writing in dispute.” (Hilsley v. Palmer 32 Hun, 474; Peck v. Callaghan, 95 N. Y., 73.)

There is nothing in Hynes v. McDermott (82 N. Y., 49) adverse to the views already expressed. In that case the originals from which the copies were made were not brought before the court, and there was no proof of the exactness from the photographic copies, and it was there remarked, viz.: “ An expert in handwriting, when speaking as a witness only from a comparison of handwriting, that is, with two pieces of it in juxtaposition under his eye, should have before him in court the writing to which he testifies and the writings from which he testifies, else there can be no intelligent examination of him either to chief or cross ; nor can there be fair means of meeting his testimony by that of other witnesses.” Remington Paper Company v. O’ Dougherty (81 N. Y., 487) was tried before the passage of chapter 36 of the Laws of 1880.

We are of the opinion that the preponderance of evidence is with the defendant in respect to what transpired between the plaintiff and the witness Hiller, and the witness Williams, at the time she exhibited notes to them referred to in their testimony, and that the refusal of the referee to find in accordance therewith was a refusal to find in accordance with the weight of the testimony upon the subject of' those interviews.

While we recognize the rule that it is within the province of this court to examine all the evidence bearing on the disputed questions of fact, and determine whether the report of the referee is in accordance with the weight of evidence (Finch v. Parker, 49 N. Y., 1), yet, inasmuch as the conclusion which we have reached in the preceding part of the opinion will lead to a new trial where the questions of fact must be fully presented upon the testimony already given, as well as upon such as either side may produce in addition thereto, we do not think it opportune to pass upon the main questions of fact involved in the issues between the parties.

We think the judgment and order should be reversed, and a new trial ordered before another referee, with costs to abide the event.

Martin, J., concurred; Merwin, J., not sitting.

Judgment and order reversed, and a new trial ordered before anotBfer referee, with costs to abide the event.