author: By the Court—Bosworth, Ch. J.

text:
    George Deshon, Appellant, v. The Merchants’ Bank et al., Respondents.
    Upon a trial involving the question of the mental imbecility of the testator or grantor, a non-professional witness cannot be asked the broad question whether, at the time referred to, such person “was out of his mind;” nor the question, “was he so affected in his mind as to be unfit for transacting his business.”
    (Before Bosworth, Oh. J., and Moncrief and White, J. J.)
    Heard, May 6;
    decided, June 29, 1861.
    Appear from a judgment entered on a decision of Judge Woodrtjee, before whom the action was tried at a Special Term of the Oourt, in June, 1858.

      This was an action brought by George Deshon against The Merchants’ Bank in the City of Hew York, and Mary A. C. Packwood, individually, and as executrix of Samuel Packwood, deceased, to recover from them a fund which the plaintiff claimed under an alleged assignment of the fund, made by the testator the day before his death. The only question raised upon this appeal was as to the validity of this assignment, which had been impeached by the • defendant on the ground that the testator, at the time of assigning the fund, was not of sound or disposing mind. The testimony given on this subject was very voluminous. Among other witnesses called by the plaintiff, was Thomas Monahan, one of the subscribing witnesses to the' assignment, who testified that he was a laborer. Among other questions, the Counsel for the plaintiff asked him:
    Q. During the last three days of Mr. Packwood’s life, state whether or not Mr. Packwood was out of his mind, and state the facts upon which you base any opinion you may give.
    This question was objected to, and the question was allowed, so far as to allow witness to state any facts which he knew, and anything he said or heard; but was ruled out as to the witness’s opinion, until some evidence should be given of the witness’s competency to speak as an expert. To this ruling Counsel excepted.
    The witness was then asked:
    During the last three days of Mr. Packwood’s illness, state was he so affected in his mind as to be unfit to transact his business?
    Objected to by defendants’ Counsel, and the same ruling made as to last question, and the Counsel for plaintiff excepted.
    The Judge found, as a conclusion of fact, that the testator at the time of making the assignment, was sick, old and feeble, and not of sound or disposing mind, but insane and without mental capacity to transact any business or understandingly to execute any instrument, and directed judgment for the defendant, from which judgment the plaintiff appealed.

      John JE. Develin, for appellant, insisted that on the whole evidence the deceased had sufficient capacity, and that also the Judge erred in excluding the parts of the two questions excluded by him as above stated, citing DeWitt v. Barly & Schoonmaker, (17 N. Y. R., 340.)

      Benjamin W. Bonney, for defendants, The Merchants’ Bank.

      J. M. Mason, for defendant, Packwood.
   By the Court—Bosworth, Ch. J.

The only exceptions taken during the trial, relate to the exclusion of evidence of the witness Thomas Monahan, whether, first, the deceased, “Mr. Packwood was out of his mind,” and, second, “ was he so affected in his mind as to be unfit for transacting his business” at the time to which those questions refer.

DeWitt v. Barly & Schoonmaker, (17 N. Y. R., 340,) is relied on as establishing that the evidence Avhicli Avas excluded, was competent and admissible.

It was conceded in that case that the decision in the same case, (5 Seld., 371,) is to be considered as an authority for the doctrine, that upon a trial involving the question of the mental imbecility of a testator or grantor, a nonprofessional witness cannot be asked the broad question whether he considered the party non compos mentis, or which is the same thing, incapable of managing his affairs. (17 N. Y. R., 347, 348.)

These questions are of this character: one, in very terms, inquires whether the deceased “was so affected in his mind as to be unfit for transacting his business,” and the other, whether he “was out of his mind.”

These questions embrace the whole law, as well as the facts of the case. ' For if he was not out of his mind so as to be unfit for transacting business, then the transfer to the plaintiff is valid; if he was out of his mind so as to be unfit to transact business, it is invalid. A correct answer to the question, involves the rule of law, which fixes the lowest degree of capacity that leaves a man competent to transact business, and the matter of fact, whether that degree of capacity existed. (17 N. Y. R., 347.)

We think neither of these exceptions is well taken.

As to the question of fact whether he had sufficient mental capacity to transact any business, or execute, understanding!y, any instrument; it is sufficient to saj^, that the judge has found it against the plaintiff, upon evidence so pointed, intelligent and disinterested, that we are not at liberty to disturb the judgment.

We do not deem it important to discuss the evidence of the several witnesses affecting the question of the mental capacity of Samuel Packwood, at the time he executed the instrument of transfer, dated August 21st, 1858.

The evidence of the physicians standing alone, is full and explicit: They are persons of skill, and in addition to the experience and general observation belonging to these and the other witnesses in common, they were disinterested observers in this case, and had full opportunity to determine.

There is nothing in the testimony of the other witnesses, which can justly detract from the force and effect which would otherwise be conceded to the testimony of the physicians.

The judgment must be affirmed, with costs.


source: Caselaw Access Project

author: Hoffman, J. Robertson, J.

license: Public Domain

text:
    Marcellus Eells et al., Executors, &c., of John Randall, deceased, v. James Lynch.
    1. The testator, by his will, gave to his widow the use of his house “ until my youngest child shall -attain the age of 21 years,” provided she remained his widow. He further directed his two youngest children, naming them, who were infants, to be educated and maintained out of the income of his estate until they attained majority; and that his real property be kept in good repair “ until my said youngest child shall attain the age of 21 years.” Upon which event, he ordered his executors to sell his real estate — to invest $3,000 of the proceeds and pay the interest to his widow for life, on whose death the principal was to be equally divided among his children and grandchildren, like the residue of the estate. The residue of the estate he gave in undivided shares of one-ninth each to five sons, two daughters, and one granddaughter respectively, and the remaining ninth to four grandchildren, to be equally divided between them, directing further, that if any of his said children should die before said youngest child attained majority, or before a sale or division of the estate, leaving no lawful issue, then his or her share should go to and be equally divided among the survivors in the same manner. The beneficiaries all survived the testator.

      Held that there was no illegal suspension of the power of alienation, and that the executors’ agreement of sale in execution of the power, after the youngest child attained majority, could be enforced against the purchaser.
    2. The provision for maintaining the children, may be treated as creating merely a charge. Per Hoffman, J.
    3. The words, “ on my youngest child attaining the age of 21,” are to be read as if the name of the youngest living at the testator’s death were inserted. Per Hoffman, J.
    4 Whether those words be read thus, or as intending the youngest who should attain majority, is not material to the validity of the will, for on either view the remainder over, in case of a child dying without issue before majority of the youngest, would be a future estate vested as to the
    ■ person but contingent as to the event, which, by the Revised Statutes, would not be inalienable. Per Robertson, J.
    5. A mere power of sale cannot be deemed to contravene the statute restricting suspensions of the power of alienation. Per Robertson, J.
    (Before Hoffman, Robertson and White, J. J.)
    Submitted, June 3;
    decided, July 13, 1861.
    This was a case submitted to the Court at General Term, for its judgment-, upon an agreed statement of facts made pursuant to section 372 of. the Code of Procedure.

      The question was, whether the executors of John Eandell, by virtue of the power contained in his will, can convey and give a good and valid conveyance to James Lynch, as purchaser, at a sale by auction, made by said executors, of five lots of land on 113th street in the Oity of Hew York.
    The provisions of the testator’s will, so far as material to the case, were as follows:
    “ Thirdly.—In order that my wife and family may have a home after my decease, until my youngest child shall attain the age of 21 years, I also give and bequeath unto my said wife the free use and occupation of my dwelling-house,” * * * “ until my youngest child shall attain the age of 21 years, provided that she shall so long remain a widow, but in case of re-marriage she is not to have the use of said dwelling-house and ground.”
    “ Fourthly.—It is my will, and I hereby order and direct that my youngest children, viz., Marcellus and Mary Adrina, now infants under the age of 21 years, be educated out of the rents and income of my said estate, and that they receive an education equal to any of my other children, and that they, together with all my other infant children, have their necessary board and maintenance, until they attain the age of 21 years, out of the rents and income of my said estate.”
    Here followed a provision for the support of one of the testator’s sons, John S., and his children; and that taxes on testator’s real estate and expenses of repairs, until his youngest child attained the age of 21 years, be also from time to time paid out of the rents and income of the estate. All the residue of the said rents and income the testator bequeathed to his wife, until his youngest child should attain the age of 21 years, provided she so long remained his widow, for her support and maintenance.
    Fifthly.—The testator directed that on the youngest child attaining age, his real estate be sold by his executors.
    Sixthly.—That if his wife should be then living and remain his widow, $3000 should be put out at interest by his executors during her natural life, and that the interest thereof be paid over to her, which bequest was in lieu of dower. After her death, the said sum. of $ 3000 was to be equally divided among all the testator’s children and grandchildren, in like manner as the residue of the estate.
    Seventhly.—The residue of his said estate he gave to his children and grandchildren hereinafter named as follows: One equal undivided ninth part to each of five sons and two daughters; and one granddaughter, the child of a deceased daughter; on the death of either daughter or of the granddaughter, the share of that one was to be equally divided between all her children. The remaining one-ninth the testator gave to four grandchildren, the children of another deceased daughter, to be equally divided between them, share and share alike, and in case of the death of any or either of them, then the survivors or survivor of them to take the same.
    “ Eighthly.—That if any of my said children shall happen to depart this life before my said youngest child shall attain the age of 21 years as aforesaid, or before a sale or division of my said estate as is hereinbefore mentioned, leaving no lawful issue, that then and in such case such share or proportion of my said estate so given to him, her or them, so dying and leaving no lawful issue, shall go to and be equally divided among all the survivors in like manner as is hereinabove mentioned, and I give and bequeath the same accordingly.”
    The will was duly proved and letters issued thereon.
    The case submitted by the parties, also stated the following facts.
    The testator died on November 5,1850, leaving a widow him surviving, and the following children and grandchildren, his only heirs-at-law, all of whom have since attained their majority:

      rP O >■ P 'o S P-l 0 John Sickles Eandell, William Eandell, Susan Antoinette, wife of Marcellus Eells, James W. Eandell, aged about 20 years, Francis M. Eandell, aged about 17 years, Marcellus Eandell, aged about 13 years, and Mary Adrianna Eandell, aged about 11 years;— and .Sarah Eliza Doughty, aged about 16 years, only child I of Ann Maria Doughty, a daughter of said testator, who died intestate before her father, and leaving her husband, Isaac Doughty, her surviving, Adrianna, wife of William Painter, aged\ about 19 years, Mary Ann Morrell, aged about 18 years;/ Isaac Morrell, aged about 14 years, and) John Morrell, aged about 11 years, and! no other children, or descendants of a) child or children. is p <9 02 «9 +f © ~ £2 t/2 -Í I <3) ^3 Q p JB f S B ®=§i
    All the children and grandchildren above mentioned of the testator are still living, except the testator’s daughter Susan Antoinette, the wife of Marcellus Eells, who died intestate about January 1, 1857, leaving her surviving her husband, and the following children, all of whom are still living:
    Mary Eells, aged now about 22 years. John Eells, 66 <6 19 46 Annie Eells, it a 17 66 Amanda Eells, tt tt 13 66 Harriet Eells, a a 11 66 Kate Eells, tt tt 8 66 James Eells, <6 a 6 (6
    Mary Adrianna Williams, formerly Mary Adrianna Eandell, the testator’s youngest child, arrived at the age of 21 years on October 24th, 1860.
    The executors, under the power contained in the will, advertised and sold said five lots of ground to Mr. Lynch, on the 21st of February, 1861.

      His counsel objects to taking a deed of the lots from, the executors, on the ground that the power of sale contained in the will is void, for that the power of alienation is therein suspended beyond the period limited by statute. The testator’s widow has released to the executors her dower right in the testator’s real estate, and accepted the provisions made in the will for her benefit in lieu of dower.
    No conveyance or instruments have ever been executed by the children or grandchildren of the testator in any way affecting the five lots of land.

      Francis Byrne, for Mr. Lynch.
    I. The intent of the testator is clearly expressed, that all his real estate should be kept together, “until his” youngest child should attain the age of twenty-one years, until which time the widow, (if she did not marry again,) was to have the use of his dwelling house, and the residue of the rents and income, after payment of the expense of education of the two “youngest children,” and their board, &c., and that of all his other infant children, and taxes, assessments, repairs, &c., and after payment of an annuity of $100 to his son, John Sickles Eandell, (or in case of his death,) to the children not named of said John, until said testator’s youngest child should attain his majority.
    II. “On” the “youngest child attaining the age of twenty-one years, all the estate was to be sold by the executors; and on the sale of the real estate, (if, &c.,) $3,000 were to be invested for the life of the widow, and the interest paid to her. On her death, the principal is to be equally divided among all his children and grandchild/ren, in like manner as the rest and residue of his estate, both real and personal.”
    III. The rents, &c., are not directed to be accumulated for the benefit of minor children, &c., within the intent of the statute, which evidently means as to the entirety, and for their benefit directly, and so is not a valid disposition. (2 R. S., 5th ed., p. 13, § 37, &c.)
    IV. There is no devise “ to executors,” nor, are they “ empowered to receive the rents and profits,” consequently no estate vested in them, but the lands descended to the heirs, &c. (2 R. S., 5th ed., p. 20, § 75, &c.) If the power to sell be good, it can be exercised.
    "V. The fair interpretation of the will is an immediate devise of all the residue, (after the payment of the annuity of $100, and enjoyment by the widow of the use of the dwelling’-house, &c.,) of the estate, real and personal, in the following proportions, namely: to his five sons, John S., Wm. B., James W., Francis M. and Marcellus, each one-ninth, and to his four grand-children one-ninth in fee; and to his two daughters, Susan Antoinette, Mary Adrianna and his granddaughter, Sarah Eliza Doughty, the income during life of each, one-ninth, (three-ninths,) remainder to their children, &c., subject to the power of sale. Otherwise, an incongruity appears in directing the sale, of all the real estate, and devising, &c., “ all the rest, residue and remainder of my said estate, real and personal.”
    VI. “ The absolute power of alienation is manifestly suspended, for more than two lives in being at the time of the creation of the estate.” (Hawley v. James, 16 Wend., 61 ; McSorley v. Leary, 4 Sand. Ch. R., 414 ; Boynton v. Hoyt, 1 Denio, 53 ; Amory v. Lord, 5 Seld., 403.)
    VII. The trust being void, a valid power in trust, cannot be given to the trustee, &c., to sell. (Wood v. Wood, 5 Paige, 597 ; Hawley v. James, 16 Wend., 62 ; Hone’s Exrs. v. Van Schaick, 20 Wend., 564.) And there is no devise to the executors to sell.

      Adriance & Vanderpoel and Alex. W. Bradford, for the executors.
    The scheme of the will is clear; it was planned by the testator,’ in order that his wife and family should have “ a home,” until his youngest child attained twenty-one, and that'during the same period his two youngest children should be educated, and all his infant children “ have their necessary board and maintenance,” until majority, out of his estate. These objects are expressed in the third and fourth clauses. When this primary purpose should be accomplished, the executors were to sell the estate, invest three thousand dollars for the benefit of the widow during life, and divide the residue among the testator’s children and grandchildren.
    1. By the third clause, he devises his dwelling-house, garden, grounds, &e., to his wife, “ until my youngest child shall attain the age of twenty-one years.”

    2. By the fourth clause he creates by implication an estate in his executors, for certain purposes therein specified, “ until my youngest child shall attain the age of twenty-one years.”

    3. By the fifth clause, he says, “ that on my youngest child attaining the age of twenty-one years, my will is, and I hereby order and direct, that all my real estate be sold by my executors.”
    I. The testator, to accomplish his objects, selected a mode of creating a trust term, which might serve his purpose or might fail. He created a trust term for a period that could not exceed one life. His selection was fortunate, but it might have proved otherwise. The term was wholly contingent on life; if the person named had died, it would have ceased.
    II. The testator limited the execution of the power of sale upon the same lite; so that on the termination of the trust term, the power should immediately arise.
    HI. In carrying out his plan, the testator has taken care to make every important testamentary intention the subject of a separate article, wholly independent of all the others, and capable of standing without the support of the rest, or any other part of the will.
    IV. The power stands by itself disconnected from the rest of the will, and is simply a direction to convert all the real estate into money.
    1. There is no proviso or condition qualifying it, except the first clause. It is not connected with the devise of the residuary estate, nor with the implied trust to receive the rents and profits.

      2. It is, therefore, merely a naked power, and its validity is to be tested solely by the terms by which it is created.
    V. The seventh clause, if invalid, can fall without affecting the power. But there is no restraint on the power of alienation by the terms of the seventh clause, for the devises therein contained are immediate, and vested the whole estate, on the testator’s decease, in the devisees therein named, subject to the previous provisions.
    1. The shares of the sons and daughters vested on the testator’s decease—the former in fee, the latter in trust for life. As to the former, there was no suspension of the power of alienation; as to the latter, the power of alienation was suspended as to each share for one life only.
    2. The clause of survivorship, at the end of the seventh clause, related to death before the testator, to save a lapse, and not to death after. (2 Jarm. on Wills, 632.)
    3. The shares in the sum to be invested under the sixth clause, for the benefit of the widow for life, vested in the like manner with the rest of the estate under the seventh clause. The absolute estate in possession, was suspended as to the sons, for one life—as to the daughters for two lives. If it be urged that, by operation of the clause creating the power, another life is interposed, then the daughters would take absolutely, instead of life interests, the statute where an excessive number of life estates occur, converting the third into an absolute estate. (1 R. S., p. 723, § 17.)
    VI. The eighth clause, if invalid, can fall without affecting the other portions of the will. It contains, however, a valid limitation, suspending the power of alienation for one life only—the youngest child. It is a separate and independent limitation in case of death without issue before the youngest child attains majority. In case of death, leaving issue, the estate is left where the seventh clause placed it. But this limitation, like all the other suspensions, is based on a single life—that of the youngest child.
    VH. Whatever questions, however, may arise in respect to the disposing parts of the will, the only point now under consideration is the power. Even if the other provisions are invalid, and the testator be declared to have died intestate, the power must be held valid. A power of sale is entirely consistent with intestacy as to the proceeds of the power. It is often given as a naked authority, or as a positive direction for an out and out conversion, for the purposes of convenience. in the administration and distribution of an estate.
    YUI. The power in question purports to be limited on the attainment to majority of the testator’s youngest child. That child was a person ascertainable at his decease. It turned out to be his daughter Mary Adrianna. The will, therefore, must be applied as if she had been named therein.
    IX. The execution of the power was, therefore, limited only on a single life—that is, the absolute power of alienation in the devisees was not suspended by reason of this power in the executors, except for the life of Mary Adrianna.
    It could not be suspended for a longer period than her life, because if she lived she must attain majority; and if she died prior to that period, the power was either accelerated or terminated.
    X. The language in the leading case on this subject was, “when the youngest of my children, attaining the age of twenty-one, shall have attained that age.” (Hawley v. James, 16 Wend., 71.) Here, the words are, “on my youngest child attaining the age of twenty-one years” — not “the youngest of my children who shall attain majority”— a form of expression which would, from time to time, bring in the next eldest minor after the decease of the youngest minor, and that was the reason of the decision in the case above cited, where the trust was held void, because the number of lives “exceeds two.” (See head note, p. 61, same case.) Here the limitation is on the life of one only—“my youngest child.”'
    The same expression occurs elsewhere in the will; thus in the third paragraph:

      “Until my youngest child shall attain the age of twenty-one years;” and in the fourth paragraph:
    “ My youngest children, viz.: Marcell us and Mary Adrianna.” “My said youngest child shall attain the age of twenty-one years.” This expression is twice repeated.
    XI. On the decease of the testator’s daughter, Adrianna, before twenty-one, the trust estate would have terminated, the power have been accelerated and become operative, or have ceased, and the devises in the seventh clause have taken effect in possession, so that (with the possible exception noted in third subdivision of point 5,) the absolute power of alienation could not have been suspended longer than one life, by any provision of the will.
    XII. It is clear, however, that without inquiry as to other portions of the will, the execution of the power was not postponed any longer than until the testator’s “said” youngest child, Adrianna, should attain twenty-one, and consequently, so far as the power is concerned, the absolute power of alienation could not have been suspended for a longer period than one life, in being. It was a matter of positive certainty that, if the power ever could take effect, it must be within the period of one life. That to effect a suspension, a term may be taken, grafted on a life, and which may be less, but cannot exceed a life, is the single principle involved in sustaining this as a valid power. (Lewis on Perpetuities, Law Lib., [N. S.] vol. 36, pp. 143, 144.)
   Hoffman, J.

The whole income of the estate, real and personal, is disposed of, and directed to be appropriated until the youngest child of the testator attained the age of 21 years. There is no appropriation, except of a part next to be noticed, Avhich can extend beyond that event. Even the bequests of the residue of the income to his wife, after the particular appropriation, are restricted to that period, and provided she continued unmarried. The appropriation in the sixth clause, of the interest of $3,000 for the life of the wife, of itself is perfectly legal, if the power of sale can be well executed.

The testator mentions Marcellas and Mary Adrianna, as his youngest children; and it is admitted, that Mary Adrianna was the youngest living at his death, and became of age on the 24th of October, 1860.

The distribution and vesting when the power is exercised, is absolute and entire to the different persons named in fee, except as to the shares of Susan, Mary Adrianna, and his granddaughter Sarah Eliza. Even if these dispositions were invalid, the power to sell would not fall with them.

Thus the single question is whether there is an illegal suspension of the power of alienation by force of those clauses which prevent a conveyance in fee until the youngest child attains the age of 21 years. The will speaks from the death of the testator. (1 R. S., § 41, p. 726 ; 5 Sandf. S. C. R., 369.) At that time there were four children under age. It was fully settled in Lang v. Ropke, (5 Sandf. S. C. R., 363,) that a devise to trustees to receive and apply the rents and profits during a minority, is not an absolute term of years corresponding with the probable duration of the minority; but is determined by the death of the minor before he attains his age. In that case the provision kept the estate inalienable “ until my youngest child living shall attain to the full age of 21 years.” The will was made in 1824, but the testator died in 1836, and only one child was then under age, and it was held that the limitation was valid, as it was confined to a single minority. The suspense could not exceed the life of the minor, and might be determined before his death. But if the trust is to continue during more than two minorities, the limitation would be void.

In McGowan v. McGowan, (2 Duer, 57,) the real estate and certain personal estate was given to the testator’s wife to support and educate the children, &c. “ And at my son John becoming of age, the whole of my estate to be divided equally among my children, named Bernard, Alice, Martin, John, but should death take either from, the world, it shall be equally among the survivors.” It was held that the suspense would terminate on the death of John, the youngest child, and was therefore confined to a single life in being. Jennings v. Jennings (5 Sandf. S. C. R., 174 ; affirmed, 3 Seld., 547,) has an important bearing upon the present question. The scheme of the will was this: that the income of the testator’s estate real and personal, after payment of his debts, should be applied to the clothing and maintenance of his wife, and the clothing, maintenance and education of his children by her, and the surplus was to be invested by his wife as trustee for her children. The property was all to be kept together undivided until the eldest surviving child, by his present wife, should become 21 years old, and then to be appraised, and his or her equal share apportioned, and paid if required. (Opinion of Gridley, J., 3 Selden, 548.) The material clause was: “ As soon as my eldest surviving child by my present wife, becomes of the age of 21 years, the whole of the property to be fairly appraised and valued, and his or her equal share of the property apportioned, and if required, paid to him or her. And in like manner the same course to be pursued in respect to the rest of my surviving children by her.”

There were four children living at the death of the testator, all under age.

Two great objections to the will were dwelt upon in the Superior Court and Court of Appeals. First, if three of the eldest were to die under age, and the fourth arrived at age, the power of alienation would be suspended for three lives. It would continue during the minority of the youngest child. Second, as the children arrived, should they all do so successively, at the age of 21, the share of each was to be set apart. But the estate was not to be divided at the majority of the eldest child. The residue was still to be kept together for the maintenance and education of the rest, until the last of the children should arrive at the age of 21 years.

But in the present case, immediately upon the coming of age of the youngest child, the whole real property is to be sold under the power, and the whole proceeds and all the personal estate are to be disposed of, and paid over, and in absolute ownership, immediately, with the exceptions before noticed.

Nor do I find anything sufficient to warrant the conclusion, that on the death of the youngest child, under age, the suspension would continue, if there was an elder one also under age, until his majority. There is, indeed, the clause in the fourth article, “ that they,” meaning Marcellas and Mary Adrianna, “ together with all my other infant children, shall have their necessary board and maintenance until they attain the age of 21 years, out of the rents and income of my said estate.”

If the other provisions of the will are free from invalidity on the ground of an unwarranted suspension, I should hold that this clause may be treated as creating a charge only; and in the event suggested, (of the death of the youngest child before majority,) the estate would be alienable, subject only to such an incumbrance. That has now terminated.

If we bring’ into the will what the cases I have cited authorize us to interpolate, it becomes in substance this: That suspension is directed, until his youngest child (Mary Adrianna, as if she were expressly named,) arrived at full age. Then the power to sell could be exercised. If she died before of full age, the whole scheme of the will, as to real estate, failed. The power, could not be exercised. It is given to be exercised on his youngest child attaining the age of twenty-one. It was dependent for its existence on that event happening. If it never happened, the power never came into being. If it did happen, the power then took effect. The creation of the power was not void, because there was no suspension but for the life of the one daughter, the designation of whom, as the youngest, was equivalent to a designation of her by name. And thus, if she died during minority, the power ceased. If she lived to majority, the power came into force, and was legal, because it was dependent upon that event, and terminable if that event did not occur.

The case differs from Boynton v. Hoyt, (1 Denio, 53,) where the clause was, “ until the period when my youngest child would (if living) attain to the age of twenty years, and my daughter to the same period.” There was a trust to receive the rents, &c., in the interim. The limitation, says thb Chief Justice, is not bounded by the life of the youngest child or daughter, or by life in any form. There was an absolute or certain term fixed for the continuance of the trust.

If the limitation is to be treated as dependent on the life of the youngest child, as if she were named, the subsequent provisions taking effect after a decision, would be valid.

My conclusion is, that the power is legal, and a conveyance under it will vest a good title to Jane Lynch, the purchaser. Judgment must be entered accordingly.

Robertson, J.

The difference submitted to this Court for its decision, turns upon the validity of the powers of sale given to the executors in the will in question, and that as manifestly depends upon the purposes for which such power was given; of course if they are illegal the power itself must fail. (Wood v. Wood, 5 Paige, 597 ; Hawley v. James, 16 Wend., 71 ; Howe’s Exrs. v. Van Schaick, 20 Wend., 564.) If the power be a naked power to sell for the purpose of distribution, in other words, an out and out conversion without reference to any purpose, it would clearly be legal, but I apprehend the will in question will not justify such an interpretation. The estate given to the widow of the testator by the third clause of the will, until the majority of his youngest child, is, on that event, changed into a mere right to the income of a sum of money, part of the proceeds of the sale of such land, to be received in lieu of dower. Then the seventh clause gives “All the rest, Sac., of his estate ” to his children and grandchildren in certain proportions, and provides that the sum or. amount so given" to a daughter should be “put out at interest on bond and mortgage." The money to be invested for the widow was evidently to be part of the proceeds of the sale; the rest was to be the residue of such proceeds, after such investment. A sum to be put out at interest explains itself; so that the intent was that the testator’s descendants named, were to take their shares in the shape of money produced by the exercise of the power of sale; and this being its main purpose it must be defeated if that purpose prove illegal.

There can hardly be a question, that the estates in land given by the seventh clause of the will pass to the testator’s descendants therein named, by virtue thereof, as real estate, in case the power of sale is defeated or never exercised or is released; that they do not depend upon the exercise of such power; and that the land does not descend to the testator’s right heirs subject to the execution of the power. It is a direct devise of all the testator’s real as well as personal estate to the devisees named : It is not conditional upon the exercise of the power of sale or the arrival of age of the testator’s youngest child: The eighth clause of the will puts it beyond question; because it directs that the share of every child of the testator who should die before his youngest should attain the age of twenty-one (including that child herself) or before a sale or division of his estate (as is in the seventh clause provided,) should go to and be divided among all the survivors in like manner as is thereinbefore mentioned: The power of sale was therefore given only to facilitate the raising of the charge for the benefit of the widow if living, on tire coming of age of the youngest child, and the division of the estate in the proportions mentioned in the seventh clause. If, therefore, the estates created by such clause were not illegal, the power was valid so far as they affect it.

The estates, given to different devisees by the seventh clause, are distinct gifts. First. Of one-ninth of the whole estate to each of testator’s sons. Secondly. Of three separate ninths thereof to his executors, in trust as to each of two thereof, during the respective lives of each of his daughters, and of the third during the life of a granddaughter, with the remainder in fee to the children of each on their respective deaths; and, Thirdly. Of one of four thirty-sixth parts to each of the four children of a deceased daughter of the testator. Such interests are entirely separate and distinct, far more plainly so than in the will under consideration in the case of Mason v. Jones’ Ex’rs, (2 Barb., 229 ; S. C., 3 Comst., 375,) where it was held that no prohibition against the suspension of alienation was created by trusts of different portions of an estate. The trust estates, therefore, created in such seventh clause only tied up each separate interest during the life of the party for whom it was so placed in trust.

The eighth clause, however, of the will in question divests the interest which each devisee, who was the testator’s child, was to take otherwise under the seventh clause, in case he or she died, without leaving lawful issue, before the testator’s youngest child should attain the age of twenty-one. It is not very material, in this case, whether the youngest child in such contingency is to be construed the youngest who should attain the age of twenty-one, or the actual youngest living at the date of the will, making the term, in the latter alternative, a fixed date in October, 1860: The remainder over, in case of a child so dying, on either interpretation, would be a future estate; vested as to the persons, but contingent as to the event, as defined in the Revised Statutes, (1 R. S., p. 723, §§ 10, 13,) and which they render alienable. (Id., p. 725, § 35.) As to the interests of the two daughters in such accretion, even if there were a suspension of alienation, it would only be as to each share during the life of the daughter for whom it was bequeathed in trust; And although there might be no persons in existence, by whom, the contingent remainder, created by the eighth clause, could be released or conveyed, until after the death of both daughters, it would only be a suspension of alienation for their lives, inasmuch as the remainder over only applies to the children’s, share.

The estates, therefore, for the creation of which the power of sale is to be exercised, are legal, and the power is not, therefore, void, as its sole purpose seems to be the facilitation of a division among the devisees.

I do not know whether any point was intended to be made in this case, as to the time when the power of sale was directed to be exercised, by insisting that it Avas not to be before it should be determined who was the testator’s youngest child who should attain its majority, thus possibly postponing the alienation until after the expiration of several lives. I think it can hardly be doubted, that the youngest child spoken of, in the contingency repeated so often in the will as to her attaining majority, was the youngest living child, (Mary Adrianna:) Because, otherwise, the “ home” spoken of in the third section could not be continued legally, after that child came of age, who should ultimately prove to be the youngest who should reach its majority, by the deaths of others, who might be younger in their minority; any advances previously made for the maintenance of such younger children, Avould become unauthorized; and the testator’s widow aud son would be obliged, after the majority of such youngest child, to repay any rents and income received by them preAÜously, under the fourth clause, after such majority in such case: If so, of course the exercise of such power was only postponed until October, 1860. But even if it were not so, the validity of the poAver would not be affected by the limitation of the time of its exercise, especially not upon the ground that it suspended the alienation of the estate: The suspension of alienation by a power of sale, seems to be a paradox, since it is difficult to conceive how alienation can be suspended by a power to alienate permitted by law: A power is defined to be an authority to do an act in relation to lands. (1 R. S., p. 732, § 74 :) The act when done, if recognized by law, might obstruct alienation by others, but not the mere time of doing it. In the statute, which declares the creation, construction and execution of powers to be governed by its provisions, (1 R. S., 732,) no restriction is imposed upon the time or contingency of exercising them : although it confines the periods for suspension of alienation by instruments executed under powers, to the same limits as those provided for future estates. (1 R. S., 727, § 128.) A power is not an estate or interest in lands; unexercised, it is an encumbrance 5 and when exercised, the act performed by virtue of it is considered and construed as done by the donor of the power: If it were otherwise, a power to sell to be exercised at a fixed future time, even a power in a mortgage, would be invalid, because lives were not taken as the periods of limitation for its exercise.

If, however,- the power of sale be taken to be one for absolute out and out conversion, as in the ease of Kane v. Gott, (24 Wend., 641,) and the estates, given in the seventh and eighth clauses, are to be considered as grafted on the proceeds instead of the land, the rales applicable to personal estate only are to be applied, and in such ease the same principles would prevail.

Judgment must therefore be rendered in favor of the executors, with the costs allowed by statute against the purchaser.


author: By the Court—Woodruff, J.

text:
    Katharine Thompson, Appellant, v. James Laing, Respondent.
    1. The unqualified refusal of a contractor for apart of the work on a building in actual progress of erection, to perform what he has undertaken, is in itself a breach of the contract. The employer is not bound to delay the completion of the building during- the period which was allowed to the contractor for performance.
    2. If, after such refusal, the contractor can reinstate himself, he must at least show a subsequent offer and readiness to perform in time.
    3i In an action by the owner against the contractor, to recover damages for such breach, it is no defense that the plaintiff, after the refusal, made a contract with other persons who had previously agreed to do the same work for a prior owner of the building,- and that they commenced the work for the plaintiff before the expiration of the time fixed for performance of defendant’s contract.
    (Before Hoffman, Woodruff and White, J. J.)
    Heard, June 11;
    decided, July 13, 1861.
    This action was brought- to recover damages laid at fifteen hundred dollars, for non-performance of a contract by the defendant to make and put up the stone steps of four houses built by the plaintiff, on Thirtieth street, in the City of Yew York.
    The answer denied any default on the part of the defendant,- and, among other things, averred that defendant was prevented from performance of the alleged contract, owing to other contractors for the same work being in possession of the buildings under plaintiff’s authority.
    The action was tried before Mr. Justice Mohcriee and a Jury, on the 27th of March, 1861. It appeared that the contract, with defendant was made on the 6th of July, 1858; that the work was to be completed on or before the 15th day of August, 1858.
    A previous owner of the buildings it appeared, had agreed with the firm of J. & A. Mulvihill to erect the stone work of the houses in question; and the defendant on being notified by the plaintiff .on or about the 20th of July, to proceed with the work, refused, saying that he had been deceived in the contract. Shortly after, Mulvihill & Oo. made a contract with the plaintiff and performed the work, they having previously prepared the materials under the former contract.
    The plaintiff was' á married woman and acted by her husband as her agent in making the contracts. On the trial he was offered as a Witness in her behalf but was excluded on the objection of the defendant.
    After the plaintiff rested, counsel for defendant moved to dismiss the complaint, on the ground that the penalty! for non-fulfillment could not be exacted till the 15th of I August, 1858, and in the meantime the plaintiff had made j another agreement with another party, to wit, on the 30th of July, which agreement was supplementary to a prior contract under which the said other party was in the course of performance of the work in question. This motion was granted by the Court, and the Counsel for plaintiff excepted.
    After judgment entered, the plaintiff appealed to the General Term.

      R. H. Underhill, for the plaintiff, appellant.
    I. The testimony of the husband should have been received.
    II. The Court erred in dismissing the complaint.
    1. On the defendant’s refusing to perform, the plaintiff was entitled to consider the contract as rescinded ; thereupon a right of action accrued to the plaintiff to recover the penalty for non-performance. (Hochster v. De La Tour, 2 Ell. & Black., 678 ; Cort v. Ambergate, &c., R. R., 17 Q. B., 127 ; Short v. Stone, 8 Id., 358 ; Lovelock v. Franklin, 8 Id., 371 ; Planchè v. Colburn, 8 Bing., 14 ; L’Amoreaux v. Rolfe, 36 N. H. R., 33 ; Shaw v. Grandy, 5 Jones’ N. C. R., 56.)
    2. The recision was a question of fact for the Jury. Fitt v. Cassanet, 4 M. & G., 898.)
    3. But if the contract was not rescinded, defendant should have offered to perform; and as there is no evidence that he was prevented, his failure gives the plaintiff a right of action.

      Wm. R. Stafford, for the defendant, respondent.
    I. The liability of the defendant could not accrue under the terms of the contract, prior to the 15th of August, 1858, and the act of the plaintiff on the 30th July, 1858, in contracting for the same work with J. & A. Mulvihill necessarily prevented the defendant from performance. (Dubois v. Del. and H. Canal Co., 4 Wend., 285 ; Whitney v. Spencer, 4 Cow., 39 ; Bagley v. Clarke, 7 Bosw., 94.)
    Wherever the contract becomes incapable of being performed, substantially as the parties intended, by the voluntary act of one of the parties, the other is not bound to proceed. (Kleine v. Catara, 2 Gall. C. C. Rep., 74 ; Dearborn v. Cross, 7 Cow., 47 ; Allen v. Jaquish, 21 Wend., 628 ; Healy v. Utley, 1 Cow., 345 ; Parsons on Contracts, 190, 191, note r, and cases cited.)
    II. The husband of the plaintiff was correctly excluded as a witness.
    III. There was nothing to submit to the Jury. It was utterly impossible to apportion any damages to the plaintiff. She had vacated her entire claim. A verdict in her favor never could have been sustained, and it was therefore the duty of the Court to nonsuit. (Stewart v. Simpson, 1 Wend., 376 ; Rudd v. Davis, 3 Hill, 287.)
   By the Court—Woodruff, J.

The defendant agreed, on July the 6th, lIHpto do the work as alleged in the complaint. This was clearly proved by the written agreement. He was, by the agreement, to complete the work on or before the loth of August, 1858. He refused to perform his contract, and on the 30th of July, 1858, the plaintiff employed other persons to do the work. We think the plaintiff, after the defendant’s unqualified refusal to do the work, was not bound to wait until the time for the performance of the work had expired. The unqualified refusal was a breach of the contract. It cannot be that when one who has undertaken to do a part of the work of a building in actual progress of erection, refuses to perform, the owner is bound to delay the completion of the building, keeping back all the other work, during the whole period allowed for performance. If, after such refusal, the defendant could reinstate himself, he should at least show his subsequent offer, and his readiness and ability to perform the work in time. Hot showing this, the plaintiff was entirely at liberty to cause the work to be done by others. There was some evidence that there were impediments in the way of the performance of the work, arising from the state of the street and sewer. The defendant’s refusal did not proceed on any such ground; and if it could be made to avail him, the case was not so established, that the cause should be taken from the Jury. It was not taken from them on any such ground.

As to the evidence of a former contract:

1. It is not shown that in point of fact there was any obstacle arising from that cause to the defendant’s performance of his contract as agreed.

2. It is not satisfactorily shown that there was any outstanding contract which bound the plaintiff, or deprived her of the power to employ the defendant as she did. Mulvihill’s prior contract was with prior owners, and it does not appear that the plaintiff had assumed it, or was bound thereby. On the contrary the plaintiff was for six weeks or upwards negotiating witMM&Llvihill on the subject, and finally a new agreemS^^as made, without which it does not appear that she would have been bound to Mulvihill at all.

We are not satisfied that any error was-committed in rejecting the testimony of the husband of the plaintiff, though we are aware that on that subject there has been some difference of opinion.

On the ground first named we think the complaint ought not to have been dismissed, and that the judgment should be reversed and a new trial ordered, costs to abide the event.


author: By the Court—Hoffmah, J.

text:
    John Young, Respondent, v. James C. Willet, Sheriff of the City and County of New York, Appellant.
    1. In an action to recover the possession of specific personal property, or the value thereof in case a return cannot be had, and for damages, the plaintiff may recover damages arising from the depreciation of the goods, during the wrongful detention by the defendant.
    2. It is unimportant whether the decrease in value arises from the defendant’s act or default, or from other causes.
    3. Under a complaint alleging that defendant wrongfully took and detained the goods, to the damage of the plaintiff §5,000, but without any allegation of special damage, the plaintiff may recover damage from depreciation resulting by reason of the lapse of time.
    4. "Under such a complaint, evidence that the goods depreciated from change in the market value or from decay arising from inherent causes, and not resulting from any neglect on the part of the defendants, is admissible.
    5. In an action to recover the possession of specific personal property, if the plaintiff does not resort to proceedings of claim and delivery, or if after he has resorted to such proceedings, the defendant reclaims the goods by giving bond and retains possession of them, the Jury, in assessing the value of the property upon the trial, should find the value of the property at the time of the verdict, and its depreciation since the time of the taking, from any causes proven by the evidence. Interest should be allowed on the whole amount. The amount of depreciation and the interest will form the damages; and the judgment will be for the recovery of possessiou and the sum found for damages, or, if delivery cannot be had, for the amount of the value at the time of the verdict, and the damages.
    6. Where, however, in a case, the Jury found the value at the time of the taking, which exceeded the value alleged in the complaint, and also found the depreciation and the interest, and the plaintiff, by consenting to a reduction of the verdict, had procured judgment to be entered in a form which produced the same result as if the verdict had been in accordance with the rule above stated, held, that the judgment must be affirmed.
    (Before Hoffman, Woodruff and White, J. J.)
    Heard, June 11;
    decided, July 13, 1861.
    Appeal by defendant to General Term, from judgment entered upon verdict for plaintiff, and from order of Special Term denying defendant’s motion for a new trial.
    The action was to recover possession of personal property. The complaint alleged that the plaintiff was lawfully possessed of the goods enumerated, at the time thereafter mentioned, being a stock of goods in the store of the plaintiff, Ko. 235 Eighth avenue, Kew York. That on the 16th of April, 1858, at such store, the defendant wrongfully took said goods and chattels from the possession of the plaintiff, and still unjustly detained the same to his damage of $5,000.
    Judgment was demanded against the defendant for the recovery of the possession of the said goods and chattels, or for the sum of $3,500, the value thereof, in case a delivery cannot be had, together with the sum of $5,000, Ms damages, besides the costs of action.

      The answer denied the possession hy the plaintiff of the goods and chattels, or that they were the property of the plaintiff, or were of the value of $3,500, and denied the wrongful taking or detention.
    It stated a judgment recovered in the Oourt of Common Pleas, in favor of one G. W. Merritt, against one George W. Assay, for the sum of $1,860.39, on the 1st of April, 1858; a transcript filed in the office of the Clerk of the City and County of New York, an execution issued thereupon, and a levy thereunder, upon- certain goods and chattels of the character and description of those mentioned and described in the complaint, the taking the same into his custody by the Sheriff, a schedule of which property so levied upon was annexed, marked A, which defendant believed was a portion of the goods ü^putioned in the complaint. Such levy and detention constituted the supposed wrongful taking in the complaint alleged. The answer then contained an averment, that the goods and chattels so levied on were the property of the said George W. Assay, or that he had an interest therein, liable to levy and sale under execution.
    On the trial before Chief Justice Boswobth and a Jury, it appeared that the plaintiff claimed under an assignment from George W. Assay, dated November 30, 1857.
    The validity of this assignment was made out upon the trial; indeed it was scarcely attempted to be questioned. The identity of the goods was established.
    The goods had been counterbonded by the defendant, under section 211 of the Code, before delivery to the plaintiff in the action. They remained in the defendant’s custody at the time of the trial.
    Much testimony was taken as to the depreciation in the value of the goods during such detention, from changes in fashion of some articles, fall in the market, and in some instances, particularly of the linen shirts and other articles of linen, from rotting, in consequence of the starch.'
    The questions in the cause are connected with this subject of depreciation, and arise in the following manner: A witness was asked, “ what would be the present value of the goods, if kept in good condition ?”
    This question was objected to by defendant’s Counsel, on the ground that under the complaint in this action, no special damage could be proved. The Court overruled the objection and admitted the question and evidence, and the defendant, by his Counsel, duly excepted.
    Upon the testimony being closed, the Court charged the Jury as follows:
    That it was their duty to find and assess the value of the property, whether they found for the plaintiff or the defendant, and that if they found a verdict in favor of the plaintiff, it would be also their duty to find the damages which the plaintiff had sustained, which would include the interest on the value of the goods as assessed by the Jury, from the time of the commencement of the action; that they would also find specially the amount of the depreciation of the goods in value, assuming them to have been preserved in good condition.
    The defendant’s Counsel duly excepted to the charge, so far as it instructed the Jury to find the amount which the goods had depreciated.
    The Jury rendered a verdict in favor of the plaintiff and assessed the value of the property at $4,004.97 and damages, for the detention thereof, at $618.33, and also found, as part of their verdict, that the property had depreciated in value, since it was taken by the defendant, in the amount of $2,004.97.
    Whereupon the Court ordered that the cause be reserved for further consideration, and thereafter, upon further consideration had, and after hearing Counsel for the respective parties, ordered judgment to be entered as follows:
    [Title of the Cause.]
    At a Special Teem, &c.
    The issues of fact in this action having been brought before J. S. Boswoeth, Chief Justice of this Court, and a Jury, on the 14th day of June, 1860, and the verdict of the Jury having been entered therein, whereby they found for the plaintiff, and assessed the value of the property described in the complaint, on the 16th of April, 1858, at the time of the taking thereof by the defendant, to be $4,004.97, and the interest thereon as damages for the detention of said property, $618.33, and also found, specially, that the said property had depreciated in value, since it was so taken by said defendant, the amount of $2,004.97, and the Court, on the rendering and entry of said verdict, having ordered that the cause be reserved for further consideration, and, pursuant to said order, Mr. Van Oott having been heard for the plaintiff, and Mr. A. J. Vanderpoel for the defendant, and the plaintiff having elected to remit, and having remitted so much of the sum found as the value of the property at the time it was taken, as exceeds the value of $3,500, the value thereof as stated in the complaint; and also, $87.50 from the said sum of $618.33, (the residue, viz., $530,83 being the interest on $3,500 from the time said property was taken, up to the time said verdict was rendered,) and also $504.97 from said sum of $2,004.97, (the residue, $1,500, being the depreciation in the value of said property, assuming its value, when taken by the defendant as aforesaid, to be $3,500,) and deliberation having been had, and on motion of Mr. Van Oott, of Gounsel for said plaintiff, it is hereby adjudged that the plaintiff recover possession of the personal property described in the complaint in this action, and also the.sum of $2,030.83, damages for the detention thereof, (viz.: said two sums of $530.83 and $1,500,) or in case a return and delivery thereof cannot be had, then that said plaintiff recover of the said defendant the sum of $3,500, the value of said property, as alleged in the complaint, at the time • it was taken by said defendant as aforesaid, and also the further sum of $530.83, the interest on said value, from the time of said taking to the time of the rendering of said verdict, as damages for the detention of said property as aforesaid, and also that the plaintiff recover of the defendant the further sum. of $433.22 for his costs and disbursements in this action.
    The defendant duly excepted to so much of said judgment as directed that the plaintiff recover, in addition to the possession of the said property, the sum of $2,030.33 damages for the detention of the said property, and claimed that the plaintiff was not entitled to that part of said sum which represented the depreciation in value of said property.
    A motion for a new trial was denied at Special Term. From the order denying the same, as well as from the above judgment, the defendant appealed.

      A. J. Vanderpoel, for appellant.
    The Court erred in allowing the question, “What would be the present value of the goods, if kept in good condition?”
    ISTo special damages were averred in the complaint. In the absence of averments raising an issue as to the special damage, the plaintiff was limited to such damages as may be presumed necessarily to result from the detention— such as are known by the term general damages, as contradistinguished from special damages, or such as really took place, but are not implied in law. Interest on the value of the property was all the plaintiff was entitled to recover under the facts averred in his complaint. (Brizsee v. Maybee, 21 Wend., 144 ; Code, §§ 277, 142.)
    1. The damages alleged in the complaint were those which the plaintiff had already sustained.
    2. The party has his election to recover the property in specie with general damages, or he may sue for the taking’ and conversion, and recover the value as damages. If, before resorting to the action of replevin, he has sustained special damages, he possibly could recover them under proper averments.
    3. The facts out of which the special damage arose were traversable. Wherever special damages are recovered, it must be on a distinct and definite statement in the complaint. The Code, while changing the forms of pleading, have not changed principles. (Low v. Archer, 2 Kern., 282 ; Vanderslice v. Newton, 4 Comst., 130 ; Armstrong v. Percy, 5 Wend., 535, 538 ; Howard v. Tiffany, 3 Sandf., 695 ; Buddington v. Davis, 6 How. Pr. R., 401.

      Joshua M. Van Cott, for plaintiff and respondent.
    The Court properly charged the Jury, that if they found for the plaintiff, they should find as special damage the amount of the depreciation of the goods since they were taken by the defendant. (Code of Procedure, §§ 261, 277 ; Rowley v. Gibbs, 14 Johns., 385.)
   By the Court—Hoffmah, J.

The case of Rowley v. Gibbs, (14 Johns., 385,) is decisive of the point that the plaintiff is entitled to recover damages arising from the depreciation of the goods, during the wrongful detention by the defendant. The plaintiff could not be indemnified without such an allowance, and it is unimportant whether the decrease in value arises from the defendant’s act or default, or from other cause. See also Suydam v. Jenkins, (3 Sandf. S. C. R., 614, 644.)

We think also, that damages could be assessed upon this ground, under the pleadings, without a special allegation of this cause of damage. The averment of the complaint is, that the defendant wrongfully took and detained the goods to the damage of the plaintiff of $5,000. The rule requiring special causes of damage to be set forth is to prevent a surprise upon the defendant. We apprehend that when the source of damage is one so obvious and direct, as the depreciation of goods from lapse of time during a detention, the defendant cannot reasonably urge this ground. It was the natural result of the injury complained of (Chitty on Pleadings, vol. 1, p. 428 ; Driggs v. Dwight, 17 Wend., 71 ; Ward v. Smith, 11 Price, 19 ; Woodruff v. Cook, 25 Barb., 505.)

The evidence shows that a depreciation of 20 to 30 per cent had arisen on woolen goods, and that the shirts became rotten from being kept, in consequence of the starch in them. This is the case, even when ordinary proper care is taken of them. The item of linen goods amounted to $2,699.09. Fifty per cent on that sum alone would make up, with the other items admitted in the points of the defendant, the whole fifteen hundred dollars of depreciation. There is no ground for disturbing the verdict in this respect.

The learned Judge in allowing the question excepted to before stated, and in his charge, that the Jury were to find the amount of the depreciation of the goods in value, assuming them to have been preserved in good condition, must be understood as meaning, the keeping them with proper usual care. Some fell in value from change of fashion; the linens from an inherent cause of deterioration. The question put to the Jury was in substance, what was the deterioration from all causes, treating the defendant as having used ordinary care in preserving the goods.

It will be noticed, that the learned Ohief Justice suspended the entry of judgment until the parties had been heard as to its form, and dealt with the case upon the facts and amounts found by the Jury in this manner.

The Jury found the value of the property when taken, to have been $4,004.97, and the depreciation $2,004.97. But the plaintiff in his complaint claimed the valne to have been $3,500 only. And the present value being found to be $2,000, the depreciation or damages could only be taken at $1,500, with interest. The interest was adjusted at $530.83. The plaintiff was allowed to remit the excess of value and depreciation, which he did, and the judgment was entered in the manner before stated.

We perceive that the result thus reached was the same as if the Jury had found the present value to be $2,000; the depreciation, $1,500; and the interest, $530.83.

Upon a consideration of the various provisions of the Code, we are of opinion, that where the plaintiff sues without resorting to the provisional remedy of claim and delivery; or where, as in the present case, a counter-bond is given and the possession retained, the Jury may be called upon to assess the value of the property at the time of the verdict, and, also, the depreciation in value from the time of the taking, arising from any causes proven by the evidence. This will involve the proof of the value at the taking. They should allow interest on the whole amount. The amount of depreciation and the interest form the damages. Then the judgment will be, under section 277, for the recovery of possession and the sum found for damages; or, if delivery cannot be had, for the amount of the value at the time of the verdict, and the damages.

The action to recover possession of personal property, is the substitute for the action of replevin. The claim and delivery, of section 206, is a provisional remedy under the Code to obtain possession during suit, not the necessary incident of the action.

When this is resorted to, the actual value of the property must be stated in the affidavit; of course its value at the time of making it. (§ 207.) If the defendant would retain possession, he must give an undertaking in double the value as stated in the plaintiff’s affidavit. (§ 211.)

By section 277, in an action to recover possession of personal property, judgment for the plaintiff may be for the possession or for the recovery of possession, or the value thereof in case a delivery cannot be had, and of damages for the detention.

There is nothing in the Code which is repugnant to the idea, that the value in such a case is the value at the time of the verdict. That value is the substitute for the delivery of the property in specie, which, if recovered, would be only worth so much. The fall or depreciation in value forms part of the damages.

In the present case, the process adopted has arrived at the same result as would have been reached upon the course above suggested. It is entirely just, and no rule of law was, as we conceive, been violated.

The judgment must be affirmed, with costs.


author: By the Court—Hoffman, J.

text:
    Asa F. Kimball and Andrew P. Van Tuyl, Plaintiffs and Respondents, v. The Hamilton Fire Insurance Company, Defendants and Appellants.
    1. The absolute transfer, by one partner, of the whole property of the firm, to break up the firm, without the consent of the other, which could speedily have been obtained or refused, is not within a partner’s power.
    2. Where there was some evidence of the existence of a partnership at the date of a policy, by which the alleged partners were insured, and the defendants did not except to the charge of the Judge by which the Jury were instructed as to the tests of partnership; Held, that a judgment on a verdict finding the alleged partnership to have existed, should not be reversed on appeal merely because some of the tests of partnership laid down by the Judge were doubtful.
    3. The rule that insurers will be held to have waived objections to defects in the preliminary proofs presented by a claimant, if they do not distinctly specify their intention to rely upon such objections, and especially, if instead of so doing, they assert a distinct ground of defense, or only generally deny their liability, rests upon the tendency of such a course to mislead the claimant; and insurers who apprise the claimant that his papers are not proof, and refer him to the policy, are not held to have waived the defect because they did not go further and specify it; nor because they, at the same time, took other objections to being held liable.
    4. Where the claimant having presented proofs that were clearly defective, and were objected to by the insurers, and subsequently served perfect proofs, notifying the insurers that they were intended as of the time of the delivery of the former proofs, and merely to obviate any technical objections ; Held, that an action brought at a due period after the service of the defective proofs, but immediately after the delivery of the second proofs, was prematurely brought.
    (Before Hoffman, Woodruff and White, J. J.)
    Heard, June 11, 1861;
    decided, July 13, 1861.
    Appeal from a judgment, entered in favor of the plaintiffs, upon the verdict of a Jury, on a trial before Mr. Justice Monoriee, on November 17, 1859.
    This action was brought by Asa F. Kimball and Andrew P, Van Tnyl against the Hamilton Fire Insurance Company, to recover the amount of a loss sustained by the plaintiffs, by fire, November 5, 1857, and alleged to be covered by a policy of insurance, issued by the defendants, dated May 13,1857.

      The defendants, by their answer, put in issue the occurrence of the fire, the amount of the loss, the due fulfillment of the conditions of the policy, and the copartnership of the plaintiffs. They also alleged that the plaintiffs, at the time of obtaining the policy, had no insurable interest, and obtained the policy by misrepresentation and concealment as to the ownership of the property. And for a further defense, that if they ever had an insurable interest before the day of the fire, they had parted with it by transferring the property to the Hew York Foundry Furnishing Company, or to one Gibbs Gilbert.
    The other facts, so far as material, are stated in the opinion of the Court.

      Abram Wakeman, for the appellants.

      H. M. Hyde, for the respondents.
   By the Court—Hoffman, J.

The case is before us upon exceptions only. There has been no motion for a new trial, an appeal from which would have raised the question of the verdict being against evidence. There are no exceptions relating to the admission or rejection of evidence. The defendant excepted to the denial of a motion to dismiss the complaint. The grounds of this motion were renewed in the requests to charge, and exceptions to the refusal to comply with some of such requests.

The Court was requested to charge: “ That by the terms of the policy the loss was payable in sixty days after the loss was ascertained. The last proofs were served January 20, 1858. The action was commenced January 23, 1858. It was therefore prematurely brought, and the plaintiffs cannot recover.”

The Court refused so to charge, and submitted the question, as to the facts, when proofs were first served, to the Jury, under the rules of law applicable to proofs, and the defendants’ Counsel excepted.

Another request was, to charge—“ That the facts proved in the case were sufficient in law to, and did, vest the legal title to said property in the said corporation, (the Hew York Foundry Furnishing Company,) before the fire, and the plaintiffs, therefore, cannot recover.”

The Court in the charge submitted the facts to the Jury, and refused to charge otherwise than as charged, and the defendants’ Counsel duly excepted.

Another request was, to charge—“That the facts proved in relation to The Hew York Foundry Furnishing Company and its incorporation, estopped the plaintiffs from denying its legal existence, and its title to this property.” But the Court refused so to charge, whereupon the defendants’ Counsel duly excepted.

The position involved in these last requests, that the property had been legally transferred to, and vested in the Hew York Foundry Company, and the plaintiffs were estopped from denying it, is without any foundation in the evidence. Van Tuyl directed his clerk to make an entry on the books of A. F. Kimball & Co., charging the whole property to Gibbs Gilbert, one of the Trustees. He thinks a list was made out of book accounts and stock, and delivered to Gilbert, and he thinks Gilbert executed a bill of sale to the Company. At that time, viz., September, 1857, A. F. Kimball was at the west, on business, in part, at least, for the firm. He returned in October, 1857. The intention of Van Tuyl to form a joint stock company had not been communicated to him. In October he was told by Van Tuyl that there had been no transfer of the partnership property, and would not be until all the debts of A. F. Kimball & Co., were paid. Kimball had expressed an apprehension that the purchases made might involve him in difficulty, as Van Tuyl was giving out notes of the firm of A. F. Kimball & Co. for the purchases.

I think the conclusion is very clear, that if there was an existing partnership in September, 1857, between Van Tuyl and Kimball, which covered the property insured, the transfer to the' Foundry Company, or Gilbert for it, was unavailing.

In the first place, the absolute transfer by one partner of the Avhole property of the firm,, to break up the firm without the consent of the other, which could speedily have been obtained or refused, is not within a partner’s power. The cases which have gone the furthest to sustain such a transfer, in case of insolvency and for payment of debts, have not gone as far as this.

. Next, as to Kimball, the sale and proposed transfer was inconsummate and conditional. I have no doubt that he, or the creditors of the firm, through him, could have followed the property..

Again, the motion for a nonsuit was founded, in part, on the ground that there was no proof that Kimball had an insurable interest.

When this motion was made, there was some evidence of a partnership; the agreement in writing was produced, and Van Tuyl had sworn to the partnership. In his charge, the Judge left it to the Jury to say, whether there was such a firm as A. F. Kimball & Co. on the 13th of May, 1857, the date of the policy; and next, whether between the 13th of May, 1857, and the 5th of November, when the fire occurred, any change of interest had taken place. The Jury Avas to determine if such firm did exist, and if it did, whether it had parted with the property.

Now it may be, that some of the tests of a partnership, and consequent insurable interest, which the learned Judge gave to the Jury, might be open to doubt; but there is not any exception taken to any portion of the charge.

The Jury having by their verdict answered the substantial points of a partnership and its continuance, in the affirmative, and the- charge being impliedly admitted to be correct, it appears to me that the question of insurable interest is disposed of.

In. relation, to. the-question as to the preliminary proofs, the evidence; is this:

On the 19th of November, 1857, a statement of loss was delivered, sworn to by Van Tnyl, essentially defective, in not having the certificate of any magistrate or notary public produced with it, as to an examination into the circumstances of the fire, and the character of the insured. The plaintiff Van Tnyl prepared these papers; handed them to the secretary, and was referred to the president. He asked the latter whether the proofs were correct. The reply was, he must be his own counselor. The plaintiff said he did not wish to employ counsel, and if there was anything wrong, he wished the president would name it. The latter repeated he must be his own counsel. He added that he knew the verdict of the Jury would be against him, but he would keep the plaintiff out of it a long time, perhaps altogether. The Secretary swears that the President looked over the papers, and said: These are not proofs; and told Van Tnyl to refer to the policy, and it would give him the information he required.

Either at this, or some other time after the fire, in a conversation about the loss, the President said, he would not take any trouble about an appraisal. He was satisfied that if there was any loss, it was a total one. When the sixty days was up, the 19th of November, the President told the plaintiff Van Tuyl, he did not consider that the Company owed them (the plaintiffs) anything.

On the 20th of January, 1858, proofs were handed in, on behalf of the plaintiffs, expressed to be in a letter accompanying them, “fully complying with the conditions of the policy.” The letter adds, that they were “ in addition to these furnished previously; and under the agreement rvith you, are furnished on, or as of the 19th of November, 1856. It was not considered necessary, but to avoid any technical defense which might be interposed.” These proofs were sufficient.

If the letter means that there was an agreement by which further proofs should be added, and to be considered as of the 19th of November, there is no testimony whatever, as to such an agreement. Indeed it is disproved.

Upon this subject the Judge charged as follows:

“ As to the proofs of loss, if there was any formal defect in the proofs of loss—any mere inaccuracy with regard to the strict requirements of the policy of insurance— it is the law that in that case it is the duty of the Company to point it out to the assured; that they cannot be silent, and look over, apparently, any formal defects; and afterward, on the trial, or when the suit is commenced, tell the party, for the first time of his error. If, at the time of making service of the first proofs of loss, the officer of the Company, acting for the Company, put them refusal to pay A. E. Kimball & Co., or Van Tuyl, on grounds other than that of defective proofs of loss, the Company have the right to waive any merely formal defects or irregularity, and that is a waiver.”

“ If you find that these proofs of loss were received by the Company, or were not refused, on the ground of their being defective; or, that the President, or officer of the Company, put the refusal to pay the claim on the ground that there was no interest of A. E. Kimball, then the .suit was properly commenced at the time it was.”

“If you find, however, that the state of facts, as testified ito by Mr. Van Tuyl, is untrue, and that the preliminary .proofs were served subsequently, on the 20fch of January, 1858, this suit would be, in that case, prematurely brought, and the plaintiffs cannot recover.”

The action was commenced on the 23d of January, 1858. We have then the case of preliminary proofs, very defective in a particular, distinctly required by a provision of the policy, and of the officer of the Company warning the claimants that the papers were not proofs; that he must look to their sufficiency himself, apprising him also of the intention to contest the claim, and to keep the party out of it for a longtime, if not altogether, and an assertion that the Company owed the claimants nothing; with an admission, that if there was any loss, it was total, and an intention to defeat the claim, if it could be done.

The answer puts in issue, in general terms, the allegation of the complaint, that the conditions of the policy had been complied, with, and on the trial, a motion to dismiss the complaint was made on the ground that the action was prematurely brought, as well as on other grounds, when the plaintiff rested.

If the defect in the preliminary proofs furnished the 19th of November, was not waived, then the action ought not to have been commenced until the 21st of March, 1858. The question is of moment.

In the Ætna Fire Insurance Company v. Tyler, (16 Wend., 385,) the certificate of a magistrate had been supplied, and the Supreme Court considered it a substantial compliance with the spirit and meaning of the condition in the policy. The Chancellor states the rule thus: “The law is well settled in this State, that if there is a formal defect in the preliminary proofs, and which probably could have been supplied, had any objection been made to payment on that ground, if the insurers do not call for the document or make any objection on the ground of its absence or imperfection, but put their refusal to pay distinctly on some other ground, the production of such further preliminary proof will be considered as waived.” (See also the passage at page 402.)

In O’Niel v. The Buffalo Fire Insurance Company, (3 Comst., 122,) the certificate produced was from a magistrate residing about a third of a mile from the fire; there were other magistrates and .notaries nearer than himself. The condition required a certificate from a magistrate, &c., most contiguous to the place of fire. 5To objection was made when it was produced. The only answer given by the Company was, “that they were not liable for the loss under the policy.”

In Bumstead v. The Dividend Mutual Insurance Company, (2 Kern., 81,) the objection that the suit was prematurely brought was not taken at the trial; and the statement of the particulars of the loss, was held to be a substantial'compliance with the requisition of the policy.

In Peacock v. The New York Life Insurance Company, (1 Bosw., 338 ; affirmed, 20 N. Y., 293,) the Court, upon examining the circumstances, doubted whether the Company had any right to require the preliminary proof there insisted upon. But the opinion proceeds: “We are quite clear, that, when the preliminary proofs were furnished, if they were deemed detective in that particular, the attention of the plaintiff should have been called to it, or the defect must be deemed waived; and this we should hold even if the preliminary proofs were wholly silent upon the subject. Pair dealing requires reasonable frankness and candor from the Insurance Company. The defendants are allowed sixty days after the preliminary proofs are furnished before they can be required to pay. When, therefore, what are in good faith presented to them as preliminary proofs, are in any respect defective, common fairness requires that such defect be suggested, and that it be not held in reserve, to be used afterwards to obtain further delay of payment, or to defeat a suit brought for the money.”

A large number of cases upon the point are cited by Mr. Phillips on Insurance, volume 2, articles 1812, 1813, and notes. Among them is Heath v. The Franklin Insurance Company, (1 Cush. R., 257,) and Clark v. The New England Mutual Fire Insurance Company, (6 Cush. R., 342.) See also Turley v. The North American Fire Insurance Company, (25 Wend., 374.)

The very important case of The Columbian Insurance Co. v. Lawrence, (2 Peters’ U. S. R., 25, and 10 Peters’, 507,) is noticed by Chancellor Walworth in The Ætna Company v. Tyler, (ut supra,) and is stated and reviewed in Taylor v. The Merchants’ Fire Insurance Company, (9 How. U. S. R., 398,) Justice Nelson states, that the doctrine of the first decision on the point of waiver was virtually overruled by the second. The conduct of the Company in not objecting to the first certificate furnished, operated to mislead the party, and should have been regarded as a waiver.

The rule declared in Martin v. The Fishing Insurance Company, (20 Pick., 390,) is, that the insurers must make the defect in the preliminary proofs a ground of their refusal to pay.

The results, which a careful examination of the autho rities will lead to, seem to me to be these: That the Courts have a decided tendency to exact from insurers that they should distinctly specify an intention to rely upon any defects in these preliminary proofs. Silence, when they are furnished, especially if accompanied with the plain assertion of a distinct ground of defense, or a general denial of their liability, will ordinarily amount to a waiver. And we see that the reason of this is, the tendency to mislead the claimants.

But I have not found a case—I doubt if any is to be found—holding that the assurer who apprises the assured that his papers are no proofs, and refers him to the policy, is bound .to go further and specify the particular defects. Bo case has decided that, if he apprises the insured that he will rely on the defect of proofs, he waives this objection by taking others which he insists will defeat the recovery. The Company told Van Tuyl, in very explicit language, that his proofs were worthless, and they should resist payment. How could the Company be deemed to have acquiesced in what they reject and declare to be insufficient? How did their officers in any way mislead the party when they told him to look to his policy, and to himself to find defects which they averred to exist ?

I am reluctantly compelled to say that the request to charge that the plaintiff could not recover, on the ground that the action was prematurely brought, ought to have been allowed, and the complaint dismissed; that the exception for not doing so is well taken; and that the judgment must be reversed and a new trial had, with costs to abide the event.