text:
    CHARLOTTE WAINWRIGHT, Respondent, v. WILLIAM G. LOW and THE SAILOR’S COFFEE HOUSE COMPANY (Limited), Appellants.

      21rust — when valid as a power — when the title remains in the grantor — release from escheat by the State.

    An ante-nuptial trust deed wliicli conveys real property to a trustee, in trust to receive the rents, or to permit the grantor to take, hold and use the same for her use and benefit at her election, and at her death to convey it to such persons as she shall appoint by her deed or will, is valid as a power, but has no further legal operation, and leaves the title to the property in the donor of the power.
    In such case the trustee takes no interest in the premises, and the title remains in the grantor subject to be divested by her exercise of her power of appointment reserved in the deed and a conveyance made in pursuance thereof by the trustee.
    Under the provisions of chapter 115 of the Laws of 1845, as amended by chapter 261 of 1874, the State surrendered any title, acquired by it by escheat before the passage of that law, to an heir-at-law of the deceased owner of land, although such heir was an alien at the time of the death of her ancestor.
    The title thus acquired was not taken away by chapter 184 of 1876, authorizing and empowering a person therein named to take, hold and convey the property in question, and granting and releasing the estate, right and interest of the people of the State of New York acquired by escheat at the time of the death of the ancestor to him, such act containing a proviso that nothing in the act should be construed so as to affect the right in the property of any heir-at-law.
    Appeal by tbe defendants from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of Kings on tlie 28tb day of January, 1890, adjudging that tbe plaintiff Charlotte Wainwrigbt was, at and before the commencement of tbe action, tbe owner of tbe premises described in tbe complaint, and was entitled to tbe possession thereof from tbe defendant William G. Low and tbe Sailor’s Coffee House Company (Limited), together with damages and costs.

      Thomas 8. Moore, for the appellants.

      8. JR. Ten JEyck, for the respondent.
   Dykman, J.:

This is an appeal by the defendants from a judgment entered upon the report of a referee in an action for the recovery of real property located in the city of Brooklyn.

On the 18th day of July, 1816, Sarah Ann Wood was the owner of the premises in question, and being about to marry George G. Ackley, she then executed an ante-nuptial trust deed of the property to Edward E. Sanderson, in trust, to receive the rents, or permit her to take, hold and use the same for her use and benefit at her ¿lection, and at her death to convey it to such person as she should appoint by deed or will.

Sarah Ann Porter was born of English parents in England and prior to the year 1836 was married to a man named Wood, who was a citizen of the United States, and after his death she was married to George G. Ackley in July, 1816. After the death of Mrs. Ackley, in 1871, there was found in her bureau, rolled up in a piece of old bed-tick, a written instrument, bearing her name and a seal, reciting the execution of the trust deed, her subsequent marriage to Ackley and the desire of the trustee to divest himself of the trust, and then axxthorizing and directing the trustee to convey the property to her husband. There was no certificate of acknowledgment upon the instrument and it was not subscribed by any witness, and the referee found that it was not signed with intent to impart to it any legal effect or opex’ation, and that it was never delivei’ed but was retained by Mrs. Ackley in her possession during her lifetime, and that she continued in possession of the property down to the time of her death in 1871, and her husband continued to reside upon the property until he died in 1876. The trustee Sanderson died in 1866 without having conveyed the property and without a request to do so. Mx’s. Ackley died intestate without having conveyed the property, except by the txuxst deed, leaving the plaintiff, who is her sister, but who never became a citizen of the United States, her only heii’-at-law.

In the year 1876 Geoi’ge G. Ackley presented a petition to the Supreme Court praying for the appointment of a trustee in the place of Sanderson and that such new trustee be directed to carry into effect the directions contained in the instrument already mentioned, purporting to have been signed by his wife, to convey the property to him. Upon that petition a trustee was appointed with the directions prayed for, who qualified and executed and delivered a deed of conveyance of the property to Ackley. The plaintiff had no notice of such proceedings. The defendant Low traces his title from Ackley through several mesne conveyances, and Low is a purchaser in good faith.

Upon the foregoing facts the referee decided that Sarah Ann Ackley made no valid appointment under the power reserved to her for that purpose in her ante-nuptial deed of trust, and that she died seized of an estate in fee in the premises in question.

Also, that at the time of the death of Sarah Ann Ackley the plaintiff, Charlotte Wainwright, her sister and only heir, was an alien, and had never become a citizen of the United States, and that by reason of her alienage she had not then capacity to take the premises by descent, and that they escheated to the State of New York; but that such disability of Charlotte Wainwright was removed and the title of the State to the premises released to her by chapter 261 of the Laws of 1874, and that she thereupon became seized of the premises in fee and entitled to the possession thereof.

That George G. Ackley never acquired title to the premises by virtue of chapter 184 of the Laws of 1876, or by the deed made to-him by the substituted trustee under the ante-nuptial deed of Sarah Ann Ackley, or otherwise, and that the defendant never had any valid title to the premises.

Such are the conclusions of the referee upon which he directed a judgment in favor of the plaintiff, and our examination conducts us to the same determination.

It will be in order to consider now whether Mrs. Ackley exercised and executed the power of appointment reserved in her ante-nuptial trust deed. If she did, the plaintiff could not take the property by inheritance, and so the inquiry is of vital importance in the determination of the case,

By the terms of the trust deed the power of aj>pointment was to be exerted by Mrs. Ackley by the execution of a deed or instrument in. writing in the nature of a last will and testament under her hand and seal, duly made and executed in the presence of two or more witnesses, and the statute required the execution of any deed by a married woman to be acknowledged apart from her husband.

The referee has found that the signature to the instrument is genuine, but we do not concur in that conclusion. Mrs. Ackley had the paper in her possession three weeks before her death and showed it to Mrs. Jane Young and said her husband got it and signed her name to it and it was not like her writing, and the witness says also it was not like her writing.

There is no proof to the contrary except the comparison with the bank-book and the testimony of the expert, which is entitled to slight consideration only. Signatures are made by no rule or measure, and they always differ, and are, therefore, easily counterfeited, and it always is difficult to distinguish the genuine from the spurious.

The point, however, is not very important, for the referee has found that the instrument was not delivered, and he is well sustained in that conclusion.

But we go further and find from the undisputed facts and the surrounding circumstances that the paper never was executed for the purpose of imparting to it any legal force or effect, even if it were signed by Mrs. Ackley.

All the parties were familiar with the terms of the trust deed and with all the formalities essential to the due execution of the power of appointment reserved therein, and if Mrs. Ackley intended to execute the deed of appointment and impart to it validity and effect, it is fair to presume that all the requisites of the trust deed and of the law would have received compliance, and the trustee would have received a request to execute the power. Instead of that, however, the trustee received no request to make the deed, and the paper remained in the possession of Mrs. Ackley more than twenty years, until she died, and her husband acquiesced in her retention of the paper.

We have no hesitation, therefore, in holding that the instrument never was executed with any view to its delivery and that it never was delivered.

We have not overlooked the ex parte proceedings of Ackley for the appointment of a substituted trustee and the procurement of a deed from the new trustee, but all the circumstances now developed satisfy us that an imposition was practiced upon the court by the petitioner and that the order was obtained by fraud.

Moreover, the action of the court was based upon the false assumption that Mrs. Ackley had exercised the power of appointment reserved in the trust deed, and we now find that such assumption was false and that the instrument signed by her for that purpose never became effective. No appointment having been made by Mrs. Ackley in her lifetime, the power vested in the trustee never became operative, and upon her death it ceased to exist and could not be exerted thereafter. Its execution became impossible and it was practically extinguished. (Hotchkiss v. Elting, 36 Barb., 38.)

As, therefore, there was no trust and no valid power in trust and no trust estate, there was no occasion or authority for the appointment of a new trustee, and when he was appointed he was destitute of power and his action was nugatory.

Such being our conclusion upon the first question, it becomes essential next to inquire whether Mrs. Ackley died seized of the premises.

By the ante-nuptial trust deed Mrs. Ackley undertook to convey her property to Sanderson, in trust, to receive the rents thereof or to permit her to take, hold, receive and use the same at her election, and she did elect to use the property in question and did occupy it during her lifetime. Some embarrassment is created by the alternative provision in the instrument, but in view of the purposes to be subserved, and of the recitals in the deed and the actual election of the grantor, we think the instrument was designed to create a trust to hold the property and permit its occupation and use by the beneficiary.

The trustee took no right to the possession or to the rents and profits of the land, and the trust is, therefore, void, because it is not authorized by the statute. (1 R. S., 727, 728, 729, §§ 45, 55.) The parties endeavored to create a passive trust, and such trusts were abrogated by the Revised Statutes.

Tet the instrument was not wholly void. It bestowed upon the trustee a dormant power to convey land, and the power might become active and • operative under a proper appointment of a person to receive the conveyance. He became the trustee of a power, and the instrument was converted into a power in trust by section 58 of that statute which provides that where an express trust shall be created for any purpose not enumerated in the preceding sections, as this is not, no estate shall vest in the trustee; but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust, subject to the provisions in relation to such powers contained in the article respecting powers.

By section 47 of the statute every person who, by virtue of any grant, assignment or devise, now is, or hereafter shall be entitled to the actual possession of lands and the receipt of the rents and profits thereof in law or in equity, shall be deemed to have a legal estate therein of the same quality and duration, and subject to the same conditions as his beneficial interest.

Then follows section 49, which provides that every disposition of lands, whether by deed or devise, hereafter made, shall be directly to the person in whom the right to the possession and profits shall be intended to be invested, and not to any other to the use of or in trust for another; no estate or interest, legal or equitable, shall vest in the trustee.

If any elucidation of the design of these sections of the statute is essential, it is furnished by the note of the Revisers to section 47, in which they say: “ This section will convert all formal trusts into legal estates in the beneficial owner, and thus effectuate the original intent of the statute of uses.” Then they add an extract from the famous speech of Lord Brougham on the state of the law, in which he said : “ I would restore the statute of uses to what it was clearly intended to be. Our ancestors made that law by which, if land were given to A for the use of B, the latter was deemed the legal owner; the use being executed in him just as if A did not exist.”

These two sections of the statute are aimed against the creation of legal estates impressed with trusts or trust duties, except such as are authorized by section 55, and they show that the legislature intended to turn what would otherwise have been a passive trust into a legal estate in the cestui que trust. (Rawson v. Lampman, 5 N. Y., 462; N. Y. Dry Dock v. Stillman, 30 id., 194.)

The ante-nuptial trust deed offended against section 49 of the statute, which made it imperative that every disposition of lands thereafter made should be directly to the person in whom the right to the possession was intended to be vested, and not to any one for the use of or in trust for such person, and abridged the effect of e very disposition of land made in violation of the section by declaring that no estate or interest should vest in the trustee thereby.

The trust deed, therefore, was valid as a power, and had no further legal operation, and left the title to the property in the donor of the power, and whether the trust created is active or passive is quite immaterial, for if it was the former, it was a power in trust and the title remained in the donor, and if it was the latter, the statute executed the use by carrying the title to the beneficiary and vesting the same in her. The trustee took no right of possession and no interest in the rents and income, for both were retained by the grantor under her right of election.

Our conclusion, therefore, upon this question is that the trustee took no interest in the premises and that the title remained in Mrs. Ackley, subject to be defeated by her exercise of the power of appointment reserved in the deed, and a conveyance in pursuance thereof by the trustee. It follows, therefore, that Sarah Ann Ackley died seized of the premises, but as the plaintiff was then an alien she had not the capacity to take the premises from her sister by descent, and, therefore, they passed to the State by escheat. It becomes, therefore, necessary now to inquire how and to whom the title was transferred by the State. Mrs. Ackley was a citizen of the United States before her marriage with Ackley by virtue of her prior marriage with Wood, who was a citizen; such citizenship was conferred by the act of Congress of February 10, 1855 (chap. 71), which enacted as follows: “And be it further enacted that any woman who might lawfully be naturalized under the existing laws, married or who shall be married to a citizen of the United States, shall be deemed and taken to be a citizen.”

In the case of Halsey v. Beer (52 Hun, 366), we decided that the language employed in this law referred to the inherent capacity of the woman, and not to her present qualifications, and that any woman possessing the capacity, such as race and blood, to enter upon the path leading to judicial naturalization, became by marriage with an American citizen invested with his citizenship, and with all the rights and privileges incident thereto. On the 27th day of April, 1874, the legislature of this State passed a law (chap. 261) amending section 4 of the act to enable resident aliens to hold and convey real estate and for other purposes, passed April 30,1845 (chap. 115) so as to cause it to read as follows: “If any alien resident of this State or any naturalized or native citizen of the United States, who has purchased and taken or hereafter shall purchase and take a conveyance of real estate within this State, has died, or shall hereafter die, leaving persons, who, according to the statutes of this State, would answer the description of heirs of such deceased person, such person so answering the description of heirs of such deceased person, whether they are citizens or aliens, are hereby declared and made capable of taking and holding, and may take and hold as heirs of such deceased person as if they were citizens of the United States, the lands and real estate owned and held by such deceased alien or citizen at the time of his decease.” Then follows a provision respecting males of full age, which has no application to this case.

We think that the statute fits this case and operated as a surrender by the State of the title which it had acquired by escheat to the premises in question before the passage of the law. (Luhrs v. Eimer, 80 N. Y., 180.)

Mrs. Ackley was a naturalized citizen of the United States and had taken the premises by purchase between the passage of the law of 1845 and the law of 1874. She died prior to the law of 1874, leaving the plaintiff who, according to the statutes of this State, would answer the description of her heir ; and as she thus answered the description of an heir to the deceased Mrs. Ackley, whether she was a citizen or an alien, she was, by the statute, made capable of taking and holding as such heir the property in question.

The examination of the case thus far having resulted favorably to the plaintiff, it becomes essential to determine the legal effect of another statute designed to aid the husband of Mrs. Ackley.

On the 27th day of April, 1876, the legislature of this State passed a law authorizing and empowering George G. Ackley to take, hold and convey the property in question, and granting and releasing all the estate, right and interest of the people of the State of New York acquired by escheat at the time of the death of Mrs. Ackley in the premises to George G. Ackley, his heirs and assigns forever. But the second section of the act contained a proviso that nothing contained in the act should be construed so as to affect the right in the property of any heir-at-law. (Chapter 184, Laws of 1876.)

If we are right in our view of the effect of the law of 1874, and that act operated to release the interest of the State to the plaintiff as the sole heir of Mrs. Ackley and vest the title to the premises in the plaintiff, then the State had no interest in the premises in 1876' to release, and George G. Ackley took nothing under the act of 1876.

The disability of the plaintiff, by reason of alienage, was removed by the law of 1874 (chap. 261) and her relationship of sole heir tO' Mrs. Ackley being undisputed, we think the plaintiff became vested with the title eo instante upon the passage of that law by virtue of the following language: “ Such persons so answering the description of heirs of such deceased person, whether they are citizens or aliens, are hereby declared and made capable of taking and holding, and may take and hold, as heirs of such deceased person as if they were citizens of the ITnited States, the lands and real estate owned and held by such deceased alien or citizen at the time of his decease.”

This act is plainly retrospective in its operation and preserves the rights of persons who, before its passage, had acquired interests and rights to lands which they were unable to enjoy by reason of the disability of alienage.

After a most careful examination we are led to an affirmance of the judgment. Its operation is harsh, and it would have been a pleasant duty to decide in favor of a bona fide purchaser for a very praiseworthy purpose, but in our view of the present state of the law such a result was impossible.

The judgment should be affirmed, with costs.

Barnard, P. J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    In the Matter of the Final Judicial Accounting of EDWARD A. ROBINSON, as Sole Surviving Executor of JAMES W. ROBINSON, Deceased. JAMES W. TODD and Others, Appellants, v. HANNAH M. STANTON and Others, Respondents.

      Will — when the word “ children ” therein will not he held to embrace grandchildren,.

    A testator devised and bequeathed by his will certain real estate, furniture, etc., to his wife and two daughters, “ to have and to hold, use and enjoy the same so-long as my said wife shall live and remain my widow, andas soon as practicable, after the death or remarriage of my said wife, I direct my executors to sell the-said house and lot, furniture and fixtures, and the proceeds thereof I give, devise and bequeath unto my children then surviving, to be equally divided among them share and share alike.”
    The widow subsequently died, and prior to her death, and subsequent to the-death of the testator, two of his children died leaving children; these grandchildren of the testator claimed to be entitled to a share of said estate on the death of the widow, and to be comprehended within the word “ children ” as used in the will.

      Held, that the word “children” would not be extended so as to include grandchildren, unless without such extension the obvious intention of the testator could not be carried into effect, and that a strong case of intention or necessary implication must exist to authorize such a construction of the meaning of the word.
    That the circumstances of this case did not justify such a construction.
    Appeal by James W. Todd and others from so much of the-decree of tbe Surrogate’s Court of tbe county of Westchester, dated on tbe lltb day of January, 1890, as authorized and directed the executor, Edward A. Robinson, to pay and distribute the balance in his hands, $6,812.44, in three equal shares, to Edward A. Robinson,. Hannah M. Stanton and Emma P. Robinson, which decree was-filed in the office of the surrogate of the county of Westchester on the 31st day of January, 1890.

      Herbert F. Andrews, for the appellants.

      Samuel Watson, for the respondents.
   Dykman, J.:

This is an appeal from the decree of the surrogate for the final distribution of the proceeds of the property of the deceased, and the •question presented for determination arises under the second clause ■of the will of James W. Robinson, deceased, which reads as follows:

Second. I give, devise and bequeath the house and lot of land on State street, in the village of Sing Sing, where I now reside, and all the furniture and fixtures therein to my wife Hannah and my daughters Emma R. and Angeline B., to have and to hold, use and •enjoy the same so long as my said wife shall live and remain my widow, and, as soon as practicable after the death or remarriage of my said wife, I direct my executors to sell the said house and lot, furniture and fixtures, and the proceeds thereof I give, devise and bequeath unto my children then surviving, to be equally divided among them share and share alike.”

The widow remained unmarried, and her life estate in the premises named was terminated by her death.

Previous to the death of the widow, and subsequent to the death of the testator, two of his children, "William Henry Robinson and Mary J. Todd, died, leaving children who are the appellants before us on this appeal, and their insistence now is that they fall within the meaning of the term children ” as it was employed by the testator in the second clause of his will. •

It is not always easy to discover the intention of a testator in the use of the word “ children ” in a last will and testament, and the uncertainty is produced by the fiexi bility of the term. In its primary and precise sense it stands for immediate offspring, and such is the ordinary sense in which it is properly used, yet it may with propriety be employed in an enlarged and collective signification, and so we read in the Holy Scriptures of the children of Israel who were the remote descendants of the patriarch Jacob.

In the construction of wills and devises the meaning of the word has sometimes been expanded so as to include grandchildren, when the obvious intention of the testator could not be effectuated without ■such extension, but such construction is not adopted without the requirement of a strong case of intention or necessary implication. Aside from that, the word is understood like all other words in its popular signification.

It is the province and object of courts, in the construction of wills, to ascertain and effectuate the intention of testators, and in this case such intention can be collected only from the fair reading and interpretation of the instrument itself, as there are no extrinsic proofs. In such interpretation words are to be understood in the sense in which they are ordinarily employed, and in its popular as well as precise meaning the word “children” signifies offspring of the first degree; and if we assume such use of the word by the testator in this second-clause of his will, the assumption will impute to him no intention of disinherison, for the part of his will in which it is employed relates to a portion of his property only. The bulk of his estate was given to his children by the fourth clause of his will, so that while we are at liberty to resort to the context of the will to assist us to determine the sense in which the word was employed by the testator, we yet obtain no light from that quarter.

The question then recurs, can the appellants, the grandchildren of the testator, participate in the remainder in this real estate limited upon the life estate of the testator’s widow ? The language is this: “ I direct my executors to sell the said house and lot, furniture and fixtures and the proceeds thereof I give, devise and bequeath unto my children then surviving, to be equally divided among them, share and share alike; ” and there is nothing in the structure of the devise to justify the extension of the signification of the word children beyond its proper meaning as denoting offspring in the first degree.

It would be a forced construction to interpret the meaning of the phrase “ my children then surviving,” so as to include grandchildren, and especially so when such construction would permit the grandchildren to share equally with children, which is quite unnatural. It is to be observed that in all the cases where the signification of the term children has been extended beyond its precise meaning the construction has been aided by the context of the instrument, which cannot, as we have seen, be invoked in this case.

Thus in the Matter of Paton (111 N. Y., 487), it was said in the opinion : “ When the testator directs a division £ equally among the children he may then have or those who may be legally entitled thereto,’ he must be regarded as contemplating the possibility of there being other children entitled to share than his immediate offspring. The word £ those ’ must refer to children in order to have a meaning and refers to the children or issue of his sons and daughters.”

In the case of Prowitt v. Rodman, (37 N. Y., 58), one of the propositions laid down by the Court of Appeals was “that the term children ’ may include issue however remote and will be held ■so to include whenever the reason of the thing demands it.”

All of the reported cases and the elementary works are in harmony upon this question, and they all inculcate the same doctrine, that the intention of the testator, as collected from the entire will, must prevail in its construction. In obedience to such principle,,we think the intention of the testator in this case was plainly manifested, and that his children living at the death of his widow took the remainder in the house and lot, to the exclusion of his grandchildren.

The decree of the surrogate should, therefore, be affirmed, with •costs to be paid by the appellants.

Barnard, P. J., and Pratt, J., concurred.

Decree of surrogate affirmed, with costs to be paid by appellants.


text:
    WILLIAM WATSON, Appellant, v. ALBERT BENZ, Respondent.

      Offer of judgment on appeal from a justice’s judgment — what costs are recoverable.

    A party to an action which has been tried in a Justice’s Court, who refuses to accept an offer made, pending an appeal in the appellate court, taken by his adversary, to allow judgment to be taken for a specified amount, and obtains a more favorable judgment in the appellate court, can recover costs from the time of the offer, inasmuch as he has obtained a judgment more favorable to him than the offer.
    Appeal by the plaintiff William Watson from an order of the ■County Court of Queen’s county, entered in the office of the clerk of the county of Queens on the 21st day of February, 1890, setting aside a taxation of costs.
    The order appealed from directed the clerk of Queens county to reduce the judgment, entered in the above-entitled action and docketed in his office on the 21th day of March, 1890, for the sum -of seventy-seven dollars and forty-two cents, against the defendant •and in favor of the plaintiff, to the sum of twelve dollars and fifty cents, the amount of the verdict of the jury on the trial in the County Court.

      O. A. 8. Van Hostrand, for the appellant.

      Harrison 8. Moore, for the respondent.
   Dykman, J.:

The plaintiff recovered a judgment in this action against the defendant in a court of a justice of the peace for twenty-five dollars damages and five dollars costs, and the defendant served a notice of appeal to the County Court, in which he demanded a new trial in that court. Within fifteen days after the service of the notice of appeal the defendant served a written offer to allow judgment to be taken against him for the sum of five dollars, but the offer was silent on the question of costs, and it was not accepted. The action was retried in the County Court and the plaintiff obtained a verdict for twelve dollars and fifty cents. Thereupon the county clerk adjusted the costs of the plaintiff at sixty-four dollars and ninety-two cents, and entered judgment in his favor for seventy-seven dollars and forty-two cents.

Subsequently, and on the motion of the defendant, the County Court made an order vacating the adjustment of the costs and reducing the judgment to twelve dollars and fifty cents, and allowed ten dollars costs of the motion to be off-set against the judgment as corrected and reduced.

From the last order the plaintiff appealed to this court, and we find it erroneous. The question lies under the control of section 3072 of the Code of Civil Procedure, which is as follows, so far as it has application to this appeal: “ Either party may, at any time after the action is deemed at issue in the appellate court and before the trial, serve upon the adverse party a written offer to allow judgment to be taken against him for a sum or property or to the effect therein specified, with or without costs. * * * If the party receiving the offer within ten days thereafter serves upon the adverse party notice that he accepts it, he may file it with proof of acceptance, and thereupon the clerk must enter judgment accordingly. If the offer is not thus accepted, it cannot be proved upon the trial; and if the party to whom it was made fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time.”

As the converse of the last paragraph of this section must be true, it follows that if the offer be not accepted and the party does not fail to obtain a more favorable judgment, he can recover costs from the time of the offer; the plaintiff in this case can recover costs because he did obtain a judgment more favorable to him than the offer. The offer tendered him a judgment for five dollars, and upon its acceptance by him he might enter judgment for that sum only, without costs, whereas he obtained a judgment for twelve dollars and fifty cents, more than double the amount offered, so that, both in respect to the verdict and the costs, the judgment was more favorable to the plaintiff than the offer. The case of Zoller v. Smith (45 Hun, 319) is not an authority here, because the plaintiff failed to recover a judgment more favorable than his offer.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion should be denied, with ten dollars costs.

Pratt, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


author: Barnard, P. J.:

text:
    In the Matter of the Final Judicial Settlement of the Accounts of ABRAM BRETT and FRANK H. BRETT, as Executors of the Last Will and Testament of ROBERT WILLETT, Deceased.

      Legacies — when they we covered by a clause of a will providing that the legacies given thereby shall increase or diminish according to the condition of the estate.

    A testator, by his will, provided as follows:
    “I give and bequeath to Susan Ann Scott the joint note of herself and John E. Scott, her husband, together with all moneys which may be due thereon at the time of my death.”
    The testator also directed his executors to sell his household furniture and out of the proceeds to pay his funeral expenses, and the balance thereof to pay to the trustees of the First Methodist Episcopal Church of Matteawan. He also directed that his real estate should be sold, and that a number of money legacies should be paid from the proceeds, and then further provided as follows:
    “ Should there be any residue after paying the legacies above provided for,I direct that the same be divided among the said legatees in the same proportion that their several legacies bear to each other, and in case the proceeds of the said sale of my property should prove insufficient for the payment of all of said legacies in full, then that the deficiency be borne by the said legatees in the same manner, except that the above legacies to the Highland Hospital and to Wilbur Charlock shall be paid without increase or diminution.”

      Held, that the gift of the note and the money due thereon to Susan A Scott, and the gift of the balance of the proceeds of the sale of the household furniture, were neither of them subject to the provisions of the clause of the will providing for an increase and diminution in the legacies, in case there should be a residue undisposed of or a deficiency in the estate of the testator.
    Appeal by Wesley Brett, upon questions of law and upon the facts, to the Supreme Court of tbe State of New York, from so muck of the dieeree of the Surrogate’s Court of the county of Dutchess, entered in the above-entitled matter on the 25th day of February, 1890, as orders, adjudges and decrees “that the executors, out of the balance found remaining in their hands, pay to the First Methodist Episcopal Church of Matteawan, for such uses as the ladies of the church may direct, the sum of $207.07; to Abraham Brett, as trustee, to dispose of the same so that the income thereof shall be applied to the payment of the expense of keeping the burial plot of the said decedent in repair, the sum of $262.24. To Susan Ann Scott the sum of fifteen hundred and seventy-eight T3g3y dollars ($1,578.33); 'to Robert W. Scott the sum of twenty-four hundred and ninety-six yjj-g dollars (2,496.05); to Wesley Brett the sum of twenty-four hundred and ninety-six y-jj-g dollars ($2,496.05); to Abraham Brett the sum of twenty-four hundred and ninety-six yjj-g dollars ($2,496.05); to Charles F. Brett the sum of twenty-four hundred and ninety-six -^-§-¡5- dollars ($2,496.05); to Frank PI. Brett the sum of twenty-four hundred and ninety-six yf-g dollars ($2,496.05); to Augustus Brett the sum of twenty-four hundred and ninety-six yjj-g dollars ($2,496.05); to Catharine L. Ileroy the sum of twenty-four hundred and sixty-five yf-g dollars ($2,465.05), which, with the sum of thirty-one dollars heretofore received by her, will be in full for her legacy; to James W. Way the sum of twenty-four hundred and ninety-six Tjj-g dollars ($2,496.05); to Emma Stotesbury tbe sum of twenty-four hundred, and seventy-one T\s-¡¡- dollars ($2,471.63), which, with the sum of twenty-four dollars heretofore received by her, will be in full of her .legacy; to William Way the sum of twelve hundred and forty-eight T$v dollars ($1,248.02); to the First Methodist -Episcopal Church of Matteawan the sum of twelve hundred and forty-eight dollars ($1,248.02); and that the said executors retain in their hands the sum of twenty-four hundred and ninety-six dollars ($2,496.05), being the amount of the legacy of William A. Lawrence, an infant, until the further order of the surrogate;”
    The testator died leaving a last will and testament containing, among other things, the following provisions:

      First. I direct that all my just and lawful debts shall be paid and discharged.

      Second. I do hereby direct any executors, hea'einafter appointed, to sell and dispose of all any household furniture, and out of the proceeds of such sale to pay any funeral expenses, including the cost of the necessary inscription to be placed upon any family monument already erected, and the balance of the proceeds of such sale of my furniture I direct my said executors to pay over immediately to the persons who at the time shall be, a-espectively, the directress and the treasurer of the Ladies’ Aid Society of the First Methodist Episcopal Church of Matteawan, N.- Y., to be taken and held and used by said persons jointly, and by their successors, for such purposes as the members of said society shall direct; and iaa default of persons designated as above, I direct that said balance shall be paid •by my executors to the trustees of the said First Methodist Episcopal Church of Matteawan, N. Y., to be applied by them, and their successor’s in office, to such uses as the ladies of the congregation of said church shall direct.

      Third. I give and bequeath to Susan Ann Scott the joint note of hea’self and John E. Scott, her husband, together with all moneys which may be due thereon at the time of my death.

      Fourth. I direct my executors, hereinafter named, to sell and dispose of all the rest, residue and remainder of my estate, as well real estate as personal property, and out of the proceeds,—
    (Here followed bequests of a number of legacies of money to several parties.)

      I direct that my executor, Abraham Brett, shall retain out of said proceeds the sum of one hundred dollars, and I request him so to dispose of the same that the income thereof shall be applied to the payment of the expense of keeping my burial plot in repair, and that he provide for the continuance of said fund after his death.
    Should there he any residue after paying the legacies above provided for, I direct that the same be divided among the said legatees in the same proportion that their several legacies bear to each other, and in case the proceeds of the.said sale of my property should prove insufficient for the payment of all of said legacies in full, then that the deficiency be borne by the said legatees. in the same manner, except that the above legacies to the Highland Hospital and to Wilber Charlock shall be paid without increase or diminution.

      8. K. Phillips, for the appellant, Wesley Brett.

      Wm. R. Woodvn, for the respondent, Susan A. Scott.
   Barnard, P. J.:

The bequest of the note to Susan A. Scott, which was described in the will as “ the joint note of herself and John E. Scott, her husband, together with all moneys which may he due thereon, at the time of my death,” was a specific bequest. The language of the will distinguished the thing given from all others of the same kind. By the. construction of the will it is excluded from any abatement, on account of an insufficiency of property to pay other legacies in full. By the second clause of the will the testator directed the sale of his household furniture, and to apply the proceeds to the payment of the funeral expenses, and the balance remaining was to be paid to the First Methodist Episcopal Church of Matteawan absolutely. By the third clause of the will the note in question was given, and by the fourth clause the rest, residue and remainder was applied to the payment of certain legacies therein given. The will provides that if there is any residue it shall be divided among “ the said legatees in the same proportion that the several legacies bore to each other,” and that a deficiency, if the “ sale of my property should prove insufficient for the payment of all said legacies in full,” should be borne in like manner; under this clause of the will the note could not be abated and was not embraced with the legacies payable out of the residue of the estate, after its withdrawal from the estate.

The same conclusion must be realized as to the gift of the balance of moneys realized from the sale of the household furniture of the testator, and given to the Methodist Episcopal Church under the second clause in the will. The church was given a part of the proceeds of certain definite property, and was intended to be wholly separate from his scheme for the distribution of the surplus of this balance of the estate, as affected by the fourth clause of the will. That clause created a class of legacies to be paid out of the residue of the estate, and it is only to this class that the excess was to go in proportion to the legacies. The decree of the surrogate should, therefore, be modified so as to exclude the church under the second clause of the will, and Susan A. Scott under the third clause of the will, from participation in the excess of the estate, over and above payments of the legacies in the fourth clause of the will.

Pratt, J., concurred.

Part of decree appealed from reversea and decree of surrogate modified so as to exclude the Methodist Episcopal Church under second clause of will, and Susan A. Scott under third clause, from participation in excess over payment of legacies in fourth clause. Costs of all parties out of the estate.


author: Pratt, J.:

text:
    CHARLES T. MITCHELL, SARAH O. CHAMBERS and MARGARET J. McILVAINE, Appellants, v. MARY A. W. THORNE, Respondent.

      Desecration of an ancestor’s grave — any descendant mwy me therefor without joining in the suit the other descendants.

    It is the right of a descendant to appeal to a court of equity to prevent a desecration of his ancestors’ graves, and this right does not depend upon the fact that his immediate ancestor died intestate.
    The protection which will he extended hy a court of chancery in such a case does not rest upon any statute.
    In such an action it is not essential to the recovery of damages that all parties having the same interest as the plaintiff should he shown to he parties to the suit, as the plaintiff can recover damages only to the extent that they have been sustained hy him.
    Appeal by the plaintiffs from an order and judgment of the Supreme Court, entered at a Special Term thereof, sustaining a demurrer interposed by the defendant to the plaintiffs’ complaint, and directing judgment against the plaintiffs for costs, which order and judgment were entered in the Queens county clerk’s office on the 17th day of January, 1890, and also from a final judgment entered in said clerk’s office on February 10, 1890.
    The complaint alleged the ownership of certain lands by one John T. Mitchell, the plaintiffs’ father, and the laying out and establishment of a cemetery therein, in which many of the plaintiffs’ ancestors and relatives had been interred. That said lands had been conveyed to one Thorne, excepting and reserving, however, the right of interment in the ground laid off for that purpose in the land conveyed, and the right of way thereto. That the defendant, by certain mesne conveyances, became the owner of the land conveyed by such deed. That the defendant-wrongfully and willfully, and against equity and good conscience, tore down the fences that sur-' rounded said burial plot, and destroyed some of the head-stones, and leveled the graves, to the plaintiffs’ damage to the amount of $5,000, and that the defendant threatens to completely destroy the said cemetery.
    Judgment was asked that the plaintiffs’ right of family burial in said plot of ground be adjudged to exist; that the defendant be restrained from removing the head-stones and obliterating the graves; and that the plaintiffs recover $5,000 damages.
    The demurrer was interposed upon the ground that it appeared upon the face of the complaint that it did not state facts sufficient to constitute a cause of action; that there was a defect of parties plaintiff in that it appeared that the heirs-at-law of the father of the plaintiffs and of the other grantors in the deed to Thorne mentioned in the complaint, other than the plaintiffs, were not made parties plaintiff to the action; that there was a defect of parties defendant in that the persons referred to as not having been made parties plaintiff were not made parties defendant.

      A. N. Weller, for the appellants.

      John M. Perry, for the respondent.
   Pratt, J.:

The demurrer admits that plaintiffs’ ancestor set apart a portion of his lands as a burial place-wherein many members of plaintiffs’ family have been buried; and that upon conveyance of the lands to defendant’s predecessor in title, said ancestor reserved to himself and his heirs forever the right of interment in the land set apart for that purpose and also a right of way to the same; that plaintiffs’ ancestor is dead and defendant is proceeding to level off the graves, tear down head-stones, destroy the enclosing fence and threatens to continue said acts. The complaint does not aver that plaintiffs’ ancestor died intestate, and defendant argues that, in the absence of such allegation, it does not appear that plaintiffs have any right of property in the cemetery, and that, in the absence of such right, this action cannot be maintained.

This view prevailed 'at Special Term. But we are of opinion that the right of a descendant to appeal to a court of equity to prevent a desecration of his ancestor’s grave does not depend upon the intestacy of the ancestor. The religious sensibility of the living, in respect to the repose of the dead and the protection that will be extended to it by a court of chancery, does not depend strictly upon statutes. The wife has- the first right to bury her husband, but that right does not exclude the right of his next of kin to take care that his place of burial, once established, shall be exempt from arbitrary interference. (Pierce v. Proprietors, etc., 10 R. I., 227; Wynkoop v. Wynkoop, 42 Pa. St., 293.)

An opinion was expressed below that, as the complaint prays damages it was defective, in not showing that all parties having the same interest as plaintiffs are made parties to the suit. We do not regard that omission as important. It will scarcely be contended that plaintiffs can recover for the damages sustained by persons not made parties to the suit. But such damages, if any, as plaintiffs have themselves sustained can properly be recovered, and does not require the presence of other parties.

Judgment reversed; demurrer overruled and judgment ordered for plaintiffs on demurrer, with leave to defendant to answer on payment of costs of Special and General Term.-

Present — Barnard, P. J., and Dykman, J.

Order sustaining demurrer to complaint and judgment thereon reversed and judgment ordered for plaintiffs, with leave to defendant to answer on payment of costs of Special and General Terms.


author: Pratt, J. :

text:
    FRANCIS E. COOPER, Respondent, v. THE UNITED STATES MUTUAL ACCIDENT ASSOCIATION OF THE CITY OF NEW YORK, Appellant.

      Accidental life insurance policy — limitation of time to bring suit thereunder —from what time it runs.

    A policy of accidental life insurance provided as follows:
    “Any claim under this certificate shall, if the association require it, be referred to arbitration, the expense of such arbitration to be borne equally between the association and the claimant, and no suit or proceedings at law or in equity shall be brought or arbitration required to recover any sum under this insurance unless the same is commenced within one year from the time of the alleged accidental injury.”
    The person insured received an accidental injury on December 10,1887, which resulted in his death on January 2, 1888.
    In an action brought by the beneficiary named in the policy on December 29,1888, it was claimed by the company that the action was barred by the limitation of one year contained in the certificate of insurance.

      Held, that the limitation of one year mentioned in the certificate began to run at the time when the proofs were accepted and the claim was in a condition to be sued upon.

      Appeal by tbe defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Orange on the 3d day of February, 1890, in favor of the plaintiff for the sum of $5,922.28; and also from an order, entered in said action on the same day, denying the defendant’s motion for a new trial.
    The action was brought to trial at the Orange County Circuit before the court and jury, by which latter a verdict was rendered in favor of the plaintiff.
    The complaint alleged that a certificate of membership was issued by the defendant to Theodore II. Coojaer, by the terms of which he was insured against personal bodily injuries effected during the continuance of his membership in the defendant.
    That the plaintiff was the beneficiary named in said policy in case of the death of the insured, and that Theodore II. Cooper received bodily injury on the 10th of December, 1881, and died on the 2d day of January, 1888, in consequence thereof, by reason of which fact the plaintiff became entitled to recover the sum of $5,000 under the certificate of membership. The certificate provided, among other things, as follows:
    (6.) Or if death shall result from such injuries alone, and within ninety days, the association will pay $5,000 to Frances E. Cooper (his wife), or to the survivor of them, or in the event of her prior death, according to the by-laws.
    * * * * * * -x-
    (3.) Immediate notice of any accidental injury or death, for which claim may be made under this certificate, shall be given in writing, addressed to the secretary of the association at New York, stating the full name, occupation and address of the member, with full particulars of the accident and injury, and failure to give such immediate written notice shall invalidate all claims under this insurance; and unless affirmative and positive proof of death, or injury and duration of disability, and that the same resulted from bodily injuries covered by this insurance, shall be furnished to the association within six months of the happening of such accident, then all claims based thereon shall be forfeited to the association. All claims under this certificate shall be subject to proof of insurable interest, and shall be payable within ninety days after satisfactory proof.
    (4.) Any claim under this certificate shall, if the association require it, be referred to arbitration, tbe expense of such arbitration to be borne equally between the association and the claimant, and no suit or proceedings at law or in equity shall be brought, or arbitration required, to. recover any sum under this insurance, unless the same is commenced within one year from the time of the alleged accidental injury.
    « # * * * * *
    (10.) The provisions and conditions aforesaid, and a strict compliance therewith during the continuance of this certificate and insurance, are conditions precedent to the issuing of this certificate and to its validity, and no waiver shall be claimed by reason of the act or acts- of any agent; unless such act or waiver shall be specially authorized in writing over the signature of the secretary of this association.
    The action was commenced on the 29th of December, 188'8, and it was claimed on behalf of the defendant that it was barred by the limitation contained in the certificate, because not commenced within ■one year from the time of the injury.

      William Bro. Smith, for the appellant.

      Lewis E. Carr, for the respondent.
   Pratt, J. :

The only point urged against the recovery is that the action was not begun within one year from the time the injury was inflicted that caused the death. The policy requires the action to be begun within “ one year from the time of the alleged accidental injury.” Defendant claims that the time began to run on December tenth, when the accident happened.

Plaintiff argues that the time had not begun to run on January .second, when death ensued, nor until the proofs were completed and right of action complete. The action was begun December twenty-ninth, less than a year after the death, but more than a year after the accident. In answer to the contention of defendant the plaintiff points out that if it be acceded to, cases might well arise where, the death not occurring for nearly ninety days after the accident, and ninety days additional being allowed defendant after tlie proofs were made satisfactory to it before an action could be maintained, it would be easy for defendant, by raising objections to the proofs, to entirely deprive plaintiff from having any time within which an action could be brought.

The clause upon which the defense depends is confused and its meaning is perhaps uncertain. But the court will seek to find a meaning that will be reasonable and adequately protect the rights of both parties.

However it may have been with defendant, it is quite evident the insured could not have understood his rights to dej>end absolutely upon the good will of the defendant. He must- have so interpreted the contract as to allow a reasonable time in which suit could be brought after the right of action wa's complete.

In similar cases the courts have made rulings which authorize us to hold the time of the alleged injury “ to mean when the proofs, are accepted and the claim is in condition to be sued.” (Ames v. N. Y. Union Ins. Co., 14 N. Y., 253; Mayor v. Hamilton Ins. Co., 39 id., 45; Hay v. Star Fire Ins. Co., 77 id., 235; Steen v. Niagara Fire Ins. Co., 89 id., 315, 323.) This is in accordance with the familiar rule that where language is ambiguous it will be construed so as to avoid a forfeiture. (Post v. Weil, 115 N. Y., 371, 375; Jacobs v. Spalding, 71 Wis., 190.) So where a party to a contract seeks to destroy its obligation by reason of the breach of a condition, the terms of the contract must be clear and explicit in his favor. (Clinton v. Hope Ins. Co., 45 N. Y., 464; Morse v. Buffalo F. and M. Ins. Co., 30 Wis., 540.) We think the authorities require us tó hold that the plaintiff had twelve months, to bring the suit after the right of action was complete.

It follows that the judgment must be affirmed, with costs.

Dykman, J., concurred; Bajrnard, P. J., not sitting.

Judgment and order denying n,ew trial affirmed, with costs.


text:
    EDGAR B. TAYLOR, Respondent, v. CHARLES G. SAXE and FRANK J. SAXE, Appellants.

      Vendor and purchaser — refusal to accept of lumber delivered, because of a defect in-quality — right to recover damages.

    Where a purchaser of lumber refuses to accept the same on the ground that it does not correspond' with the representations made by the vendor as to its-quality, he is not entitled to sue for the recovery of damages alleged to have-been sustained through a breach of the contract by the vendor.
    The purchaser may either refuse to accept the lumber and thus rescind the contract, and sue for the recovery of any money advanced for freight or custom duty upon the lumber, or he may keep the lumber and, when sued upon the contract for the contract-price, interpose a counter-claim for damages because of the inferior quality of the lumber furnished.
    A.ppeal by the defendants from a judgment of the Supreme-Court, entered in the office of the clerk of the county of Dutchess on the 4th day of January, 1890, after a trial before a referee, upon whose report judgment was entered in favor of the plaintiff for the recovery of the sum of $1,887.41, together with costs. '

      WilUam P. Rudd, for the appellants.

      Thompson c& Town, for the respondent.
   Dykman, J.:

This action is based upon a violation of a contract made by the defendants with the plaintiff for the sale and delivery to him of a boat load of pine plank. The cause was tried before a referee, who found that the defendants agreed to sell to the plaintiff a boat load of'pine plank, then in Canada, for thirty-six cents a plank delivered at Poughkeepsie, and to induce the plaintiff to make the purchase, the agent of the defendants who made the sale, represented to the plaintiff that thirty per cent of the plank should be of the quality known in the trade as dressing, and seventy per cent thereof should be of a quality known in the trade as better than dressing; and that the purchase was made by the plaintiff in reliance upon such representation as to quality.

That the plaintiff was to pay the duty on the lumber when it passed the frontier, and the freight thereon upon its delivery, and •deduct such payments from the purchase-price of the lumber. That the lumber reached Poughkeepsie the fore part of October, 1888, and the agent of the plaintiff refused to accept the same upon á claim that it was not of the quality represented, and the plaintiff' imme•diately telegraphed the defendants the refusal of the plaintiff to receive the lumber.

Thereupon the defendants sent their agent to Poughkeepsie to .act for them in the premises, and when he examined the plank he pronounced them of a kind and quality different from what the •defendants had contracted to sell to the plaintiff.

The agent of the plaintiff informed the agent of the defendants that the lumber was all culls and that he would not receive the same, •and then the agent of the defendants requested the agent of the plaintiff to permit the captain of the boat to unload the plank and whatever was right would be done. Thereupon, in reliance upon .such statement, the plaintiff permitted the captain to place the plank upon the plaintiff’s dock and paid the freight, amounting to $499.11. Thé plaintiff had before that paid the duties upon the lumber, •amounting to $333.30.

On the tenth day of October the plaintiff again notified the defendants that he could not use the plank; that they were culls and were not as represented.

The referee found, as a fact, that there were 12,303 plank in the boat load, and they would have been worth forty-four cents apiece had they been of the quality and kind represented. That the plaintiff never received the plank, but permitted the same to remain on his dock at Poughkeepsie, and that the storage for the same had been worth twenty-five dollars.

As a conclusion of law, the referee found that the plaintiff was entitled to recover from the defendants $330.30, with interest, for the duties paid on the lumber ; $499.11, with interest, for freight paid thereon; twenty-five dollars for storage, and $984.24 for damages for a breach of the contract.

The facts recited are easily deduced from the evidence and are taken mainly from the findings of the referee. The contract between these parties was for the sale and delivery of property of a certain description, and was what the law terms an executory contract; and when the defendants came with an inferior article, open to inspection, it became necessary for the plaintiff to take Ms position, and when he discovered that the lumber tendered did not answer the character required by the contract there were two courses which he-might adopt. He could refuse to accept the plank and thus rescind the contract and recover the money paid for freight and duties, or he could keep the lumber and rely upon the contract to recover the damages' he sustained through its breach by way of counter-claim to an action for the price. But he could not pursue both these remedies, because they were inconsistent.

Environed by such circumstances, the plaintiff exercised his right, of choice and declined to accept the lumber and thus rescinded the contract, and such election gave him the right to recover back the money he had advanced. Upon that theory the lumber remained the property of the defendants, and the plaintiff might recover for its storage. But the plaintiff went further in this action and sought to recover damages fora breach of the contract and he has recovered upon that claim, but the recovery for that item cannot be sustained. His claim to recover back the money advanced for freight' and duties rests upon the abrogation of the contract by his refusal to receive the lumber, while his claim for damages proceeds upon the affirmation and consummation of the contract and a recovery by reason of a violation thereof. If the lumber had been accepted by the plaintiff, the contract would have then been executed and he could sustain no action for the recovery of the money paid for freight and duties, because that would have been a payment on account of the purchase-price of the lumber according to the agreement ; but having declined to accept the plank he was in a position to sue for the money thus paid, upon the principle which justifies an action for the recovery of the purchase-price of property upon the nullification of the sale, where the price has been paid by the purchaser. After the rescission of the contract the defendants, could sustain no action against the plaintiff for the price of the lumber, because it had not been accepted and still belonged to the defendants, otherwise if it had been accepted the defendants might sue for the price and the plaintiff could recover his damages for a breach of the contract by way of counter-claim to such action. But now, since the abrogation of the contract, the plaintiff cannot, recover damages for its violation, because such a claim would proceed upon the affirmance of the contract. As, therefore, the claim of the plaintiff for damages can rest upon nothing but the contract, it has no basis for its support, and that portion of the judgment is erroneous.

The following authorities justify the views we have expressed: 2 Kent’s Commentaries ([10th ed.], 660); Sprague v. Blake (20 Wend., 64); Hart v. Wright (17 id., 277); Gallagher v. Waring (9 id., 28).

The judgment should, therefore, be modified by striking therefrom the sum of $981.21 allowed for damages, and as so modified affirmed, without costs to either party on this appeal.

Barnard, P. J., and Pratt, J., concurred.

Judgment modified, and, as modified, affirmed, without costs to either party on this appeal.


text:
    THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Appellant, v. ROBERT M. OLYPHANT and Others, Respondents.

      Taxation of costs — the amount paid to the Lawyers’ Title Insurance Company for a sea/rch, in a mortgage foreclosure suit, is not taxable.

    'The Lawyers’ Title Insurance Company of New York city has no such official position, nor have its searches of titles such official force or effect, as to authorize the amount paid therefor, in an action for the foreclosure of a mortgage, to he taxed hy the clerk of the court as a disbursement in the foreclosure suit.
    Appeal by the Equitable Life Assurance Society of the United States, plaintiff, from an order, entered in the office of the clerk of the county of Westchester on the 6th day of February, 1890, denying plaintiff’s motion for an order requiring the clerk of the county of Westchester to tax the bill of costs (including an item, “Paid for search, $23.10”), of the plaintiff in the above-•entitled action.

      George Waddi/ngton, for the appellant.

      MarUn J. Keogh, for the clerk of Westchester county, respondent.
   Dykman, J.:

This is an appeal from an order denying the motion of the plaintiff to require the county clerk of Westchester county to allow the sum of twenty-three dollars and forty cents paid to the Lawyers’ Title Insurance Company for searches in this action.

The action is for the foreclosure of a mortgage and the clerk refused to tax the sum paid for searches because they were not official, and the Special Term affirmed the taxation.

No charges can be taxed for disbursements except such as are legal and necessary. If a lawyer hires a private individual to make a search for him, the amount paid him would not be a legal disbursement. But if the lawyer obtains an official search, the case is different.

This Lawyers’ Title and Insurance Company seems to be organized for the purpose of making searches respecting the title to real property and holds itself out for employment by all persons, but it sustains no official position and its searches have no official force or effect. So the money paid to such company for a search stands in the same light as money paid to a private individual.

We concur in the view taken at the Special Term, and the order appealed from should bo affirmed, with ten dollars costs and disbursements.

Pratt, L, concurred.

Order affirmed, with costs and disbursements.


text:
    WILLIAM B. ROYCE and Others, as Trustees under the Will of HENRY R. LOW, Deceased, Plaintiffs, v. JENNIE C. T. ADAMS, Defendant.

      Power of sale given by a will — when it may be exercised by cm administrator with the will annexed,.

    A testator provided, by bis will, as follows:
    '• Second. I hereby nominate and appoint my fatber-in-law, John D. Watkins, and my sons, Russell T. and John W. Low, executors, and my wife, Mary O Low, executrix, of tbis my last will and testament, hereby empowering my said executors and executrix, or whoever shall execute tbis my will, to sell, lease, or otherwise convey or dispose of, any of my real and personal estate and effects.”

      Held, that an administrator, with tbe will annexed, was authorized to execute tbe power of sale conferred by tbis clause of tbe will.

      Submission of a ease presented by a demurrer interposed to the plaintiffs’ complaint, in an action brought for the purpose of obtaining a judicial determination as to the power of the plaintiffs to execute a valid conveyance of the real estate of Henry N. Low, deceased.

      W. T. Groo, for the plaintiffs.

      Alton J. Vail, for the defendant.
   Dykman, J.:

The question for determination in this action is whether the administrators, with the will annexed, who are also the trustees substituted in the place of the executors of the last will and testament of Henry E. Low, deceased, can give a good title to the real property of which he died seized. The language is this :

“Second. I hereby nominate and appoint my father-in-law, John D. Watkins, and my sons, Eussell T. and John W. Low, executors, and my wife Mary C. Low, executrix, of this my last will and testament, hereby empowering my said executors and executrix, or whoever shall execute this my will, to sell, lease or otherwise convey or dispose of any and all my real and personal estate and effects, and to give good title thereto without lien, charge or incumbrance of any kind upon the same, either for cash or on credit, or both.”

This language annexes the power of sale to the office of executor, and no personal confidence in the discretion of the person named is either expressed or implied. The power of sale is bestowed upon the executors and executrix or whosoever shall execute the will. Under such circumstances an administrator, with the will annexed, takes the power of the original executors, and the power or trust may be executed by them. (Bain v. Matteson, 54 N. Y., 663.) The same rule applies to the administrators in their character of substituted trustees. (Farrar v. McCue, 89 N. Y., 140.)

Judgment in favor of the plaintiffs should, therefore, be rendered upon the demurrer.

Barnard, P. J., and Pratt, J., concurred.

Judgment for plaintiffs upon demurrer.


text:
    In the Matter of the Probate of the Last Will and Testament of FRANCIS W. LASAK, Deceased.

      Proceedings for probate of a will — power of an executor to discontinue them.

    Where a person named as executor in a will makes a petition to the Surrogate's Court for its probate, under which a citation is issued and served, and the witnesses to the will are examined by an attorney employed by the executor, the executor has no authority to apply to the court to be permitted to withdraw and to have the proceedings dismissed.
    The executor is not a party to the record, having the right to exercise such power in the premises.
    Appeal by Antoinette Lucinda Schermerhorn, the daughter of Francis W. Lasak, deceased (and heir-at-law), and one of the contestants of his will, from a decree of the surrogate of Westchester county admitting to probate the alleged will relating to both real and personal property of Francis W. Lasak, which decree was entered in the office of the clerk of said Surrogate’s Court on the 8th day of July, 1889.

      Robert Sewell, Christopher Fine and Aa/ron Kalm, for contestant and appellant Antoinette Lucinda Schermerhorn.

      Edgar M. Johnson, for Mrs. O. T. Cuthbert, respondent.

      George G. Reynolds, for Mrs. Y. A. McKenzie, respondent.

      Echocvrd T. Bartlett, for American Female and Guardian Society and Home for the Friendless, respondent.

      Frederioh B. Yan Yorst, for Children’s Aid Society, respondent.
   Barnard, P. J.:

The competency of the testator was clearly proven. The testator died in February, 1889, and he left a testamentary disposition of his property, evidenced by a will and seven codicils. The will was executed on the 11th of February, 1883, and the last codicil on the 14th of April, 1884. The will is witnessed by John D. Wendel and William G. Lathrop, Jr. The first five codicils are witnessed by William G. Lathrop, Jr., and S. R. Johnson. The last two^ codicils are witnessed by Horace S. Ely and John A. Ely. All these witnesses were called and all testify clearly and particularly to the formal execution of the several papers; that the testator’s mind was clear and calm, and that he was under no restraint and subject to no apparent importunity or influence. The witnesses were intelligent business men and their testimony covered a considerable portion of the testator’s latter years. The surrogate was called upon, under this evidence, to decree probate of the several papers propounded.

There was no error committed upon the trial. John GL "Wendel was named as executor in the will. He made a petition for probate and upon it citations were issued to all parties interested in the estate. Answers were put in and the executor employed an attorney who called and examined the several witnesses to the will. He then moved the court to permit him to withdraw and subsequently to dismiss the proceedings. This motion was properly denied, so far as a dismissal was asked for of the probate proceedings. The executor need not apply for probate and need not be cited to either support or oppose probate. If he does apply for probate, he has no active duty to perform, but may remain silent until the surrogate causes the witnesses to the will to be examined and an order is made as to pi’obate. It would be a strained construction of the law as to probate of wills if the court should be compelled to hold that after a will was presented for probate, and presumptively proven by the executor, that he could discontinue the whole proceedings. lie was not a party to the record with any such power. The executor could not suppress a will before it be offered for probate or after-wards. Mrs. Chouvet, who was a daughter of deceased, was sworn as a witness upon the trial. Her interest was adverse to the will, but she had made no answer. On the 31st of May, 1889, she appeared to have been permitted to testify to certain communica^ tions with her father without objection. On the 20th of June, 1889, and before her examination was closed, on motion of an attorney, who was supporting the application for probate, this evidence was stricken out. Assuming that testimony received without objection belongs to the case and may not be stricken out, no sufficient error was committed to call for a reversal of the 'judgment; the evidence is returned, and there is nothing in it which tends either to show incapacity or undue influence. The testator had said to her that the executor had helped him make his will, and that he was glad his son, who had disgraced his name, was dead. The ruling that such personal communications as were offered be excluded was correct. (Wadsworth v. Heermans, 85 N. Y., 639; Holcomb v. Holcomb, 95 id., 316.)

The evidence of undue influence to be drawn from the inequality of the will has been so repeatedly rejected by the Court of Appeals as insufficient for that purpose, standing alone, that no argument can be based thereupon, standing alone as it does, with full and complete proof of the testator’s capacity.

The decision should, therefore, be affirmed, with costs.

Dykman, J\, concurred.

Decree of surrogate affirmed, with costs.