text:
    WILLIAM B. GREENE, Appellant, v. JOHN B. GREENE and Others, Respondents.

      Will — gift of property to be held for six years and charged with the payment of legacies — when it creates a tenancy in common and not a trust.

    A testator, by his will, gave all the residue of his estate to his three sons, as trustees, to carry out the provisions of the will, by which he directed as follows: “ I declare it to be my will and I direct, that my said trustees shall take and hold my said property and estate, and the whole thereof (except the said Ohio tracts and my said house and lot on Niagara square) for the period of six years from and after my decease, the estate being chargeable with the foregoing bequests and legacies. * * * After the payment of said legacies the said property and estate shall be managed for the joint benefit of my said three sons, John B. Greene, Harry B. Greene and Samuel B. Greene, who shall annually render to each other a just and full statement of the rents, issues and profits, and all transactions relating to said property and estate. During this period of six years the said trustees, my said three sons, shall not, nor shall either of them, sell, alienate, mortgage, incumber or dispose of, or contract to sell, alienate or dispose of, the lands and premises now owned by me and situated on Main, North Division and Washington streets, or any part or parcel thereof, or any share or interest therein; but any or all of my other real estate not hereinbefore specifically devised I give my said trustees power to sell, convey and dispose of on condition that the proceeds of such sale or sales, or the securities taken thereon, shall not be distributed between them until the expiration of the said period of six years, but shall be kept by them unless it becomes necessary to use the same for the purpose of paying off the legacies before mentioned, in which contingency they are authorized to resort to such proceeds and securities.”
    The will further provided that no partition or division of the estate devised to the sons should be made until the expiration of said term of six years, and that if either son attempted to do so he should forfeit all interest in the estate; that, at the expiration of said period of six years, the rest and residue of the estate remaining after the payment of the legacies and debts should belong to the three sons, their heirs and assigns, forever.

      Held, that the sons took the title to the real estate, not as trustees, but as tenants in common.
    That they were entitled to receive the rents and profits thereof for their own use and benefit, and were, to all intents and purposes, absolute owners of the property, subject only to the general charge upon the real estate of the payment of the legacies and to the power to mortgage the same for a like purpose.
    That no trust was created, except by way of mortgaging the real estate, for the payment of the legacies, although all the legacies were made a charge upon the real estate.

      Hice v. Barrett (102 N. Y., 161) distinguished.
    Appeal from so much, of tbe judgment entered, upon tbe decision of tbe Erie Equity Term of March 18S9, in tbe Erie county clerk’s office March 29, 1889, as dismissed tbe plaintiff’s complaint in respect to tbe first cause of action, and as to so much of tbe third cause of action as affected tbe premises described in tbe sixth paragraph of tbe complaint. No other portion of tbe judgment which affected tbe rights of these parties in regard to other-real estate than that embraced in tbe sixth subdivision of tbe complaint (relating to land on Main street, in tbe city of Buffalo), was appealed from.
    Tbe action was' brought for tbe partition of certain real estate in tbe city of Buffalo, situated on tbe corner of Main, North Division and Washington streets, being fifty feet on Main street, 100 feet on North Division street and twenty-nine and one-half feet on Washington street.

      T. M. Tyng, for the appellant.

      /Sherman & Rogers, for the respondent.
   Macomber, J.:

So much of the action as resulted in the judgment appealed from is brought in pursuance of section 1537 of the Code of Civil Procedure, which permits an heir of a person dying while holding and in possession of the real property to maintain an action for the partition thereof, whether he is in or out of possession, notwithstanding an apparent devise thereof to another by the decedent and possession under such devise.

The plaintiff claims as one of the children and heirs-at-law of "William H. Greene. He bases his right upon an alleged invalidity of the clauses of the will of his father, which attempted to devise the property in question wholly to other persons than himself. By the will of "William H. Greene, which bears date the 17th day of September, 1881, after the direction of the payment of debts, the testator devised the homestead and personal property on Niagara square, in the city of Buffalo, to his wife. By clauses three and four he devised to his sister certain lands in Ohio, with remainder to the plaintiff. By the fifth clause he gave all the residue of his estate, including the premises in question, to his three sons, the defendants, John B. Greene, Harry B. Greene and Samuel B. Greene, as trustees to carry out the provisions of the will. These persons were also appointed as executors of the will. He directed these so-called trustees, by the provision of the will from clause six to clause thirteen, inclusive, to pay over certain moneys to certain persons, but these clauses are not of any materiality on this appeal. The residue of the will is as follows:

“Article 14. I declare it to be my will, and I direct that my said trustees shall take and hold my said property and estate and the whole thereof (except the said Ohio tracts and my said house and lot on Niagara square), for the period of six years from and after my decease, the estate being chargeable with the payment of the foregoing bequests aud legacies, and it being, as I now believe, with the moneyed securities on hand, and with prudent management, amply sufficient to pay said legacies in full, together with the taxes, repairs and insurance on my real property, so that at the expiration of , said period the residue of said real estate, not hereinbefore devised, should remain unincumbered and intact. After the payment of said legacies the said property and estate shall be managed for the joint benefit of my said three sons, John B. Greene, Harry B. Greene and Samuel B. Greene, who shall annually render to each other a just and full statement of the rents, issues and profits, and all transactions relating to said property and estate.
“During this period of six years said trustees, my said three sons, shall not, nor shall either of them, sell, alienate mortgage, incumber or dispose of, or contract to sell, alienate or dispose of the lands and premises now owned by me and situated on Main, North Division and "Washington streets, or any part or parcel thereof, or any share or interest therein, but any or all of my other real estate not hereinbefore specifically devised I give my said trustees power to sell, convey and dispose of, on condition that the proceeds of such sale or sales, or the securities taken thereon, shall not be distributed or divided between them until the expiration of the said period of six years, but shall be kept by them, unless it becomes necessary to use the same, for the purpose of paying off the legatees afore-mentioned, in which contingency they, are authorized to resort to such proceeds and securities.
“And I do will and enjoin that no partition or division of my estate, so devised and bequeathed to my said three sons in trust as aforesaid, shall be made, or attempted to be made, until the expiration of said term of six years; and that in case either of my said three sons shall attempt so to do, or to defeat or contravene the terms and intent and conditions of this trust, he shall forfeit all interest, right, title or property in my estate.
“ 15. At the expiration of said period of six years, the rest and residue of my said estate, real and personal, remaining after the payment of said legacies and debts, shall belong to my said three sons, John B. Greene, Harry B. Geene and Samuel B. Greene, share and share alike, their heirs and assigns forever.
“ 16. (Explanatory and qualifying clause.) In the plight of the estate as at present situated, a partition would he detrimental to my said three sons. In the present condition and aspect of affairs, the moneyed securities, together with the moneys on hand, would nearly suffice to pay off and discharge all the legacies and leave the real estate in the hands of my said three sons unincumbered. Of course, if I live some years longer, this view of the estate may be changed, but probably not in a manner to weaken it. At any time, in case an exigency should require it, I am willing, and do authorize my said three sons to mortgage the real estate, in order to pay off and discharge said legacies, although I cannot now anticipate any necessity for so doing.”

The testator died on the 22d day of April, 1882. He was a lawyer of long and extensive practice, yet he has left a will the construction of which is difficult and doubtful. In behalf of the plaintiff it is contended that the estate which was so devised to the three younger sons was merely in expectancy, and the possession of that postponed to a future period, thus constituting it a future estate, and was limited to commence only at the expiration of six years from the death of the testator; that during such six years the legal title to the estate was not vested in any person capable of alienating the same, and that, therefore, during those years an attempt has been made, by will, to suspend the power of alienation of the real estate in contravention of the statutes against perpétuities. (1 R. S., 723, § 15.) Consequently, it is contended that this property, after the payment of the debts and legacies, is, in law, deemed undisposed of and must descend to the heirs-at-law.

The testator manifestly intended that the land in controversy should ultimately go to these three sons. This intention, however? cannot prevail if he has attempted to carry the same into effect by means of an illegal trust unknown to the Revised Statutes, and the general scheme of tlie will is dependent thereon. The question, therefore, is whether or not the title of the three sons, to whom this property was attempted to be given, is dependent upon what it is argued by the appellant’s counsel was the purpose of the testator, namely, that the title of the same should remain in them during such period, not as devisees but as trustees, thus suspending the power of alienation. The learned judge, at the Special Term, in his opinion, says that certain sentences from the fifth clause and others from the fifteenth clause of the will indicate that it was his intention to vest the title during the period of six years in them as trustees, and thus suspend the power of alienation for that time, though from other portions of the will he arrives at a different conclusion. Was there a trust, in fact, created by the terms of this will for any purpose ? It does not seem to us that a trust -was created for the payment of legacies except by way of mortgaging the real estate under the last sentence of the will, though clearly enough all of the legacies are made a charge upon the real estate, including this portion of it. Nor was there any trust created for the collection and paying over of the rents and profits of this real estate. The' rents and profits all belonged to these three sons. It is true that they were required to account to each other by the terms of the will for the amount thereof which they should respectively receive, yet this is no more than a declaration of the testator’ of a familiar rule of law governing tenants in common of real estate.

There is undoubtedly contained in the will strong expressions of a desire that these lands should not be alienated or partitioned or anything done with them, except as they might be charged with’ the payment of debts, but this by no means prevents the immediate vesting of the title of the lands in the devisees. The primary purpose of the testator being apparent, which was to vest the whole of this property in these three beneficiaries, not as a mere remainder depending upon an illegal future estate, but absolutely, we can safely, without doing violence to the terms of the will, reject as merely advisory only all clauses or expressions from which it is argued that ■an illegal trust was created for a period of six years. Indeed, the testator himself, by imposing a penalty upon either of his sons who ■should attempt to partition or divide the lands, seems not to have supposed that he had suspended the power of alienation for any length of time. This case is sui generis / and in the multitude of cases arising upon last wills that of Rice v. Barrett (102 N. Y., 161) is largely relied upon by the learned counsel for the appellant. But in that case the so-called trustees were not given personally the rents and profits of the real estate, as has been done in this instance, but were charged with the duty of receiving the interest upon the residuary estate, and investing the same and holding it for the benefit of certain persons other than those named as trustees in the will; and it was there held that the trust was in contravention of the statute, inasmuch as the accumulated fund furnished the only support for the devises subsequently made, and the whole scheme of distribution failed, and the title to the residuary real estate upon the death of the testator vested in his heirs-at-law as in the case of intestacy. In the case at bar, however, there was no trust save that given by virtue of the power to' mortgage for the payment of legacies, inasmuch as the duty devolved upon the so-called trustees was to themselves only, and not to -other persons. This gave them a legal estate in fee under the Revised Statutes (1 R. S., 727, § 47), which is as follows: “ 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.” (Ring v. McCoun, 10 N. Y., 271; Downing v. Marshall, 23 id., 379; Adams v. Perry, 43 id. 487.)

Upon the whole, we are of the opinion that it was not the intention of the testator to vest the title of the real estate in these persons as trustees, but in them as tenants in common, and that he intended that these sons should receive and enjoy the rents, issues and profits of the property for their own use and benefit, making them, to all intents and purposes, absolute owners of the property, subject only to the general charge upon the real estate of the payment of the legacies and the power to mortgage the same for a like purpose.

The judgment should be affirmed.

Barker, P. J., and Dwight, J., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Macomber, J.:

license: Public Domain

text:
    ROBERT GILBERT, Respondent, v. JOHN B. MANNING, Appellant.

      JZmdence — when newspaper ma/rlcet quotations a/i'e competent evidence of value.

    In an action to recover the value of barley sold to the defendant, the plaintiff testified in regard to the price: “ I told him (defendant) about ninety-two or ninety-two and one half bushels. • ‘ Well, ’ he says, ‘ we will pay you the market-price for that barley.’ ‘ Well,’ I says, ‘ what do you mean by the market-price? ” He says, ‘ Just what the paper quotes.’ ”

      Held, that, in view of this testimony, it was competent for the plaintiff to put in evidence the quotation of barley as contained in the “ Commercial. Advertiser,” namely, “Barley, State, held at 110 and 115.”

      Whelan v. Lynch (60 N. Y., 469) distinguished.
    Appeal from a judgment” of the Erie County Court in favor of the plaintiff, entered in the Erie county clerk’s office November 29, 1887, upon a verdict of a jury, and, also, from an order of the same court denying the defendant’s motion for a new trial on the minutes,, entered in said office November 28, 1887.

      3. O. JDwy, for the appellant.

      Giles E. SUbwell, for the respondent.
   Macomber, J.:

A recovery was had by the plaintiff upon a cause of action,, arising upon an order made by the agent or foreman of the defendant, for the purchase from the plaintiff of a quantity of barley. The plaintiff brought a load of such barley to the defendant’s malt-house on the 12th day of October, 1878, and received from the man in charge the following memorandum:

“ C. E. M. House, October 12.
“ Bought barley of E. Gilbert at market-price, 90 bushels, 33-48.
“ED, SEITZ.”

The barley represented by this receipt was actually delivered by the plaintiff to the defendant, and received by the latter and retained by him and used in his business. Though the complaint is framed so as to cover another quantity of barley which was. never actually received by the defendant, yet upon the trial such additional cause of action seems to have been abandoned, and the case was, apparently, by the consent of the plaintiff’s counsel, submitted to the jury by the learned court, solely upon the claim for this ninety and thirty-three forty-eight hundredths bushels.

The question upon this appeal is, whether or not there was sufficient evidence of the market-price to warrant the rendition of the judgment. The only point urged by the appellant’s counsel, which merits consideration, relates to the admission of the market quotation of barley in a newspaper published in the city of Buffalo. The quotation, as contained in the Commercial Advertiser of October 11, 1878, was admitted in evidence, as follows: “Barleyj State, held at $1.10 and $1.15.” This was objected to as incompetent, and, also, upon the ground that the statement does not give the market-price, but only what barley is held for; and it is argued that such evidence does not disclose the market-price. After the reception of the evidence and the ruling of the court, the learned counsel for the plaintiff attempted to withdraw the evidence, but, so far as can be made out from the case, such attempt was not successful, the defendant’s counsel not consenting to the same. It appears in a preceding portion of the case, by the evidence of the plaintiff, that not only was the market-price agreed upon by him and the defendant’s agent, but that the means of ascertaining such price were also determined. This witness says: “ I told him about ninety-two, or ninety-two and one-half bushels.” “Well,” he says, “we will pay you the market-price for that barley.” “Well,” J says, “what do you mean by the market-price?” He says, “Just what the paper quotes.” “Well, I went up; I left him then and went up on the street, and I bought, I think, the Commercial, and I saw the quotations, and I thought that was as good as anybody would do.”

This case, therefore, is clearly distinguishable from that of Whelan v. Lynch (60 N. Y., 469), where the particular mode of determining the market-price had not been agreed upon.

The circumstance that the paper in question was dated the eleventh of October instead of the twelfth, is unimportant, because the defendant testified that on the twelfth day of October there was not any quotation of barley in the Buffalo papers. The criterion, therefore, which the parties had by their agreement selected, namely, the quotation in the market column of the Buffalo papers, was satisfied by the publication nearest and preceding to the time of the sale and delivery of the barley under the agreement already mentioned.

From the evidence, the jury was justified in deciding that the barley was of the quality represented by the plaintiff to the defendant’s agent.

The judgment should be affirmed, with costs.

Barker, P. J., and Dwight, J., concurred.

Judgment and order affirmed.


text:
    GEORGE G. MANNING, THEODORE MANNING, JOSEPH A. MANNING and N. WILLIS AMSDEN, Respondents, v. LOUIS P. BECK, WILLIAM H. BECK and H. ISRAEL WEINBERG, Appellants.

      Assignment for creditors — when rendered mid by previous acts done to give a, preference to certain of the assignor’s creditors — chap. 503 of 1887.
    In an action brought to set aside a general assignment for the benefit of creditors, it appeared thatjjthe assignor, on January 3, 1889, transferred by bill of sale all his stock of goods and fixtures to his son for a sum representing ninety per cent of the .inventoried value of the stock and seventy per cent of the cost of the fixtures, -which consideration was paid— $5,75485 thereof by the satisfaction of an alleged indebtedness owing by the assignor to his son; $743.63 by the sons’ assuming the payment of certain back rent due upon the store; $855.10 by the assumption by the son of three notes made by the assignor and indorsed by •himself; $118.23 in cash, and the residue by twelve promissory notes corre- ■ sponding exactly with twelve other promissory notes then outstanding and owing by the assignor as maker, which last-mentioned twelve notes given by the son were severally transferred to the holders of the twelve notes which had ■been theretofore given and were then owing by the assignor.
    On January 4, 1889, the general assignment was executed.

      Held, that although the assignment for the benefit of creditors was without prefer ence in name, the assignor did, by the above transaction, give a preference which was contrary to the provisions of chapter 503 of the Laws of 1887.
    That the execution of the bill of sale, followed so closely by .the formal act of ; executing an assignment for the benefit of his creditors, constituted an attempt on the part of the debtor to so place his property that none of the creditors, other than the favored ones, could share in the same.
    That the claim that there was no fraud in the assignment, but that the acts bomplained of were those of the debtor previous to the assignment, could not be maintained as the creditor was at liberty to attack the assignment itself where it was made by the assignor with a fraudulent intent, whether such intent was disclosed by the contents of the assignment itself or by cotemporaneous acts of the debtor.

      Loos v. Wilhinson (110 N. Y., 210) distinguished.
    Appeal by tbe defendants from an order made at tbe Monroe Special Term, and entered in tbe Monroe county clerk’s office April 10, 1889, granting an injunction and continuing tbe stay theretofore previously made on an order to sbow cause wby tbe injunction should not be granted, and also from a subsequent order of April 13, 1889j made for tbe appointment of a receiver, and directing the defendants to turn over certain property to such receiver and to account to him therefor.

      H. H. Woodward, for the appellants.

      E. F. Wellington, for the respondents.
   Macomber, J.:

The object of this action is to set aside the general assignment for the benefit of creditors, made by the defendant Louis P. Beck to the defendant H. Israel "Weinberg.

On the 3d day of January, 1889, the defendant Louis P. Becky by a bill of sale, transferred all of the stock of goods and fixtures in his store, consisting of a general assortment of boots and shoes, to the defendant William LI. Beck, who is his son, for the* expressed consideration of $11,977.32, being supposed to represent ninety per cent of the inventoried value of the stock and seventy per cent, of the cost of the fixtures. Payment was made as follows — $5,754.85 by the satisfaction of an alleged indebtedness owing by Louis P. Beck to his son William; $743.63 hy William’s assuming the back rent of the store which was owing by Louis P. Beck to the defendant Weinberg; $855.10 by William’s like assumption of three outstanding notes made hy his father, Louis P. Beck, and indorsed by himself; $118.23 in cash and the residue of such purchase-price was represented hy and included in twelve promissory notes made hy William, varying in amounts and differing in times, of payment. These twelve notes correspond exactly with twelve, other promissory notes then outstanding, owing by Louis P. Beck as maker, and were so drawn, with one or two exceptions, as that each should mature at the same time that the note for which it was given should mature. These notes were severally transferred to the holders of the antecedent notes.

One day thereafter, namely, on the 4th day of January, 1889y the above transaction being supposed to have been completed, the defendant Louis P. Beck executed and delivered to U. Israel Weinberg, the general assignment for the benefit of creditors already mentioned, which was recorded on the following day. The defendants, and each of them, so far as disclosed by the affidavits, stand upon the legality of the original sale by the father to the son, and claim that there still remains for distribution among the creditors no more than was actually received by the assignee, which is an amount that will scarcely pay the expenses of administering upon the estate, though the same is stated in the inventory to be of the value of about $3,000.

From the relations existing between Louis P. Beck and his son William it is quite true that each knew substantially the financial condition of the other. On the 31st of October, 1888, the father had executed to his son a chattel mortgage to secure an alleged indebtedness then existing in the form of notes, which mortgage contained a provision that the mortgagor might sell for cash, as agent of the mortgagee, and pay the proceeds to the latter to be applied upon outstanding notes. A subsequent mortgage was given on the 3d'day of December, 1888. Neither of these chattel mortgages was filed, and the same, so far as the affidavits show, remained a matter of personal confidence between the parties thereto. An attempt seems to have been made to give the possession of this property into the hands of William under these mortgages, but the same was ineffective because the mortgagor still made sales of the stock in trade, bought new stock and handled the same substantially as he had theretofore done; though in form, but not in substance, the proceeds of such sales were turned over to the mortgagee William, and the same were ostensibly reloaned to the father, from day to day, to enable him to carry on the business. The answer of the defendant Louis P. Beck alleges that on the 31st day of December, 1888, William surrendered to him the store and kept no further account of sales or of moneys received there on any account, and that the said chattel mortgages were canceled. During the time that William was nominally in possession of the store and property, Louis P. Beck purchased, on credit, goods to the amount of $2,931.84, of which $1,441 thereof was purchased from the plaintiff, the sellers having no knowledge of the existence of the chattel mortgage or of the relation of William thereto.

Though the assignment for the benefit of creditors is without preferences in name, the assignor did, by the above transaction, effect a preference which is contrary to the act of 1887. (Laws of 1887, chap. 503.) The bill of sale by which the son William was enabled to take, substantially, all of the property of the debtor’ must be deemed to be a part of a general scheme of the assignor to .give an unlawful preference to his son. The execution of this bill ■of sale followed so closely by the formal act of executing an assignment for the benefit of creditors, must be regarded as an attempt on the part of the debtor so to place his property that none of the creditors ■other than the favored one should share in the same. That this was an attempted mode of eluding the laws is corroborated by the fact that the assignee himself stands in the relation of a preferred •creditor, inasmuch as he was the recipient of a payment of the indebtedness due him for rent before the execution and' acceptance by him of the assignment. Under these circumstances, it would not be supposable that he would be solicitous to or that he would, in fact, bring an action to set aside any of these acts of his assignor upon the ground that they were a fraud upon the assignment.

The counsel have argued that there is no fraud in the assignment, but that whatever acts are justly complained of were those of the debtor preceding the assignment, and that these may be set aside and declared of no effect by suitable action in equity. It is true that when there is fraud upon an honest assignment, by prior fraudulent transfers of property by the assignor, or by a subsequent withholding of property from the assignee, a remedy is given to the .assignee which may avoid the fraudulent acts and secure all the property of the assignor for distribution under the assignment. (Loos v. Wilkinson, 110 N. Y., 210.) This principle, however, does not prevent a creditor from attacking the assignment itself where it was made by the assignor with a fraudulent intent, whether such intent be disclosed by the contents of the assignment itself, or by cotemporaneous acts. Where there is a voluntary surrender by an insolvent debtor of dominion over his entire estate, as was substantially done in this instance, and the transfer of the whole, or substantially the whole, of his property to a portion only of his creditors in order to give them a preference over others, whether made by one instrument or more, whatever form the same may take, when such transfer operates as an unlawful preference, in fact, the assignment itself may be assailed by a creditor, and the same set aside as a fraud upon the act. White v. Cotzhausen (129 U. S., 329), where the language of the court, by Justice Harlan (page 336), is peculiarly applicable to the facts disclosed in this case : “After he had executed tiie conveyances, bill of sale, warrant of attorney and transfers, to which reference has been made, he was left without anything that could be reached by Cotzhausen. So completely was he stripped by these transactions of all property that, subsequently, when his deposition was taken he admitted that he owned nothing, except the clothing he wore. He recognized his hopelessly insolvent condition, and formed the purpose of yielding to creditors the dominion of his entire estate. And it is too plain to admit of dispute that in executing to his mother, sisters and brother the conveyances, bill of sale, warrant of attorney and transfers in question, his intention was to give them, and their .intention was to obtain a preference over all other creditors. What was done was in execution of a scheme for the appropriation of his entire estate by his family to the exclusion of other creditors, thereby avoiding the effect of a formal assignment.”

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Barker, P. J., and Dwight, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Judicial Settlement of the Accounts of CALVIN J. WHITE, Executor of the Last Will of SARAH HOOVER, Deceased. (MARY F. EMERSON, Appellant.)

      Devise or bequest — when not speeific — when the beneficiary is entitled to share under a residuary clause.

    An executrix, by her will, provided as follows: “First. After all my lawful debts are paid and discharged I give and bequeath to Mary F. Emerson, wife of B. K. Emerson, or her heirs, my house and lot in the village of Dundee, if I am possessed of one at my death; or, if I am not possessed of one, I order my executor, hereinafter named, to pay to the said Mary F. Emerson two thousand dollars.”
    After making sundry small money bequests the will further provided as follows: “ I order that in case my estate exceeds the amount of the above bequest to each individual, then my executor must pay to the above persons the excess in the proportion as the amount of the bequests are to the whole amount, and in case my estate falls short, then each of the above bequests must share in the shortage in the same proportion; in other words, the excess or shortage must share prorata as the bequests are.”
    In this action, brought to obtain a construction of the will, it was

      B.eld, that the gift to Mary F. Emerson was not a specific devise or bequest, and that she was entitled to share with the other beneficiaries in any moneys remaining-undistributed after the payment of the particular legacies mentioned in the will.
    Appeal by Mary F. Emerson from tbe final decree of the surrogate of Tates county of April 19, 1889, adjudging, among other things, that she, as one of the beneficiaries under the will of Samuel Hoover,, was not a general or residuary legatee, and hence was not entitled to-share in the sum remaining in the hands of the executor undistributed.

      William II. Smith, for the appellant.

      James Spicer and Charles S. Baher, for the respondent.
   Macomber, J.:

The first provision of Mrs. Hoover’s will is as follows: “ First. After all my lawful debts are paid and discharged, I give and bequeath to Mary.F. Emerson, wife of B. 3L Emerson, or her heirs, my house and lot in the village of Dundee, if I am possessed of one-at my death, or if I am not possessed of one, I order my executor, hereinafter named, to pay to the said Mary F. Emerson $2,000, on condition that the said Mary F. Emerson pay a yearly or annual payment to my brother John Emerson of sixty dollars as long as he-survives me; and the said Mary F. Emerson must, at the time of the payment of the $2,000 to her, or the conveyance of my house* and lot to her, execute a bond of security to satisfy my executor-that the sixty dollars will be paid annually to my brother John Emerson.” After making sundry small money bequests and the-appointment of the executor, the will continues : “ I order that in case my estate exceeds the amounts of the above bequests to each individual,' then my executor must pay to the above persons the-excess in the proportion as the amounts of the bequests are to the whole amount, and in case my estate falls short, then each of the above bequests must share in the shortage in the same proportion. In other words, the excess or shortage must be shared fro rata as the bequests are.”

If under these provisions of the will the appellant is to be. deemed a residuary legatee, she is entitled to a proportionate share-•of the moneys now remaining in the hands of the executor, but if, on the other hand, the gift to her of a house and lot was a specific devise only, she is not entitled to receive anything more from the ■estate. The inquiry is, of course, from the beginning to the end of the case, what was the true intent of the testatrix in respect to these matters, as disclosed by the will itself.

It will be observed that the testatrix does not use words of gift aptly or in their technical sense. She says : I give and bequeath to Mary F. Emerson, etc., my house and lot in the village of Dundee.” Yet this failure to use technical language and using the word bequeath where she meant devise would be of very little import.ance if subsequent or other portions of the will made clear a contrary intent. But they do not. The gift of the house and lot to the appellant was not absolute. It was conditional upon the ownership and possession of the same by the testatrix at the time of her death, and this, too, not of any particular house and lot, but the house and lot, if any, of which she might be possessed at the time of her death. But the most important provision, and that which seems to be quite conclusive of the intention of the testatrix, is that in case ,she should not be possessed of such house and lot, the executor was required to pay to the appellant the sum of $2,000 on the condition above mentioned. The brother having died intermediate the execu tion of the will, and the questions here arising, the appellant, of course, was not required to execute the bond. Taking all these provisions together, there seems to be disclosed an intent on the part of the testatrix to give to the several beneficiaries the sums named, that is to say, in the proportion of the $2,000 to the appellant to the several sums mentioned for the other legatees.

This construction finds strong corroboration in the subsequent paragraph of the will above quoted, where all of the persons receiving gifts from the deceased are mentioned, as a class, as “ the above persons,” who were to receive the excess in proportion as the .amounts of the bequests severally were to the whole estate. There is nothing to show that the expression “ the above persons ” was ■designed to exclude anyone who had received, by previous provision of the will, any benefit thereunder. The circumstance that in case the estate had fallen short of giving each one the sum mentioned in the will, there would have been difficulty in adjusting the claim of the appellant can have very little weight where these words-of unmistakable import are used. Had the testatrix left no real estate, no embarrassment would 'have ensued in the event of the-estate falling short of paying these several sums. Had it become necessary to charge over any deficiency against this appellant, in the event of their being insufficient moneys to pay each of the legatees, an easy way could have been found in this court even if not in the Surrogate’s Court.

Taking all the provisions of the will together, it seems to us to be the plain intent of the testatrix that the appellant should share with the other beneficiaries in any moneys remaining undistributed after the payment of the particular legacies. It follows, therefore, that, the decree of the surrogate should be reversed, with costs of all parties to be paid out of the estate, and the case remitted to the surrogate of Yates county, with directions to proceed thereon in accordance with this opinion.

Barker, P. J., and Dwight, J., concurred.

Decree reversed, with costs to both parties to be paid out of the-fund. Proceedings remitted to surrogate of Yates county to proceed in accordance with directions contained in the opinion by Macohber, J.


author: Macombee, J.:

text:
    EMILY J. SHAY, Respondent, v. THE NATIONAL BENEFIT SOCIETY OF THE CITY OF NEW YORK, Appellant.

      Insurance policy — waiver of a forfeiture thereof because of a failure to pa/y an assessment — sending of a second notice after default under a prim' one — effect thereof.

    An insurance policy was issued by a company, by whose rules it was provided: “The form of notice to, and process of collection from, each of the members of the assessment above named shall be as follows: A notice shall be sent announcing such assessment and the number thereof to the last post-office given to the society by each member, and if the assessment is not received within thirty days from the mailing of the said notice, it shall be accepted and taken as sufficient evidence that the party has decided to terminate his connection with the society, which connection shall thereupon terminate, and the party’s contract with tlie society shall lapse and be void, but said party may again renew his connection, with the society by a new contract made in the same manner as the first, or for valid reasons to the officers of the society, such as a failure to receive notice of the assessment, he may be reinstated by paying the assessment arrearages. ”
    A notice to pay a death rate for the death of one of its members was mailed to a member, James Shay, on May 31,1886. The sum mentioned in said notice was not paid within the month of June by James Shay, or by anybody else-on his behalf: A similar notice was again mailed to Janies Shay on July fifth, and payment of the amount therein mentioned was made on the 21st day of July, 1886, but not until after the death of James Shay, the insured, which fact was, however, known to the company when such payment was made.

      .Held, that while, under the rules of the company, it was competent for the defendant to treat the failure to pay within the first thirty days as sufficient evidence that the party had decided to terminate his connection with the company, that, in this case, the sending of a second notice necessarily involved a waiver of any previous forfeiture based upon a failure to pay within the time previously fixed, that, consequently, the payment made July twenty-first thereunder continued the policy in force as against the defendant.
    Motion by the defendant for a new trial on a case and exceptions, ordered to be heard at the General Term in the first instance, after :a verdict directed at the Ontario Circuit, on a trial on November 12, 1888, in favor of the plaintiff for the recovery upon two policies of life insurance of $5,000 each, issued by the defendant to James Shay on the 14th of September, 1885, for the benefit of the plaintiff.

      M G. La/pham, for the plaintiff.

      William H. Smith, for the defendant.
   Macombee, J.:

One of the rules (the third) of the company, and under which the assured received the policies, is as follows: “ The form of notice to and process of collection from each of the members of the assessment •above named shall be as follows: A notice shall be sent announcing such assessment and the number thereof to the last post-office given to the society by each member, and if the assessment is not received within thirty days from the mailing of the said notice, it shall be accepted and taken as sufficient evidence that the party has •decided to terminate his connection with the society, which connection sliall thereupon terminate; and the party’s contract with the society shall lapse and be void, but said party may again renew his connection with the society by a new contract made in the same manner as the first; or, for valid reasons to the officers of the society (such as a failure to receive notice of the assessment), he may be reinstated by paying assessment arrearages.”

On the Slst day of May, 1886, a notice to pay a death rate to the company for the death of one of the members was mailed to James Shay. It was dated June 1, 1886. It was therein stated that the assessment was made “to provide for this claim, your assessment of $16.80 is now due and payable within thirty days from the date hereof.” Annexed to the notice was what is called a coupon, which was a summary statement of the number of the policy and the name of the insured, and the amount and the time of the expiration for the payment of the assessment, which was there stated to be July 1, 1886. This sum was not paid within the month of June by the deceased, or by anybody else in his behalf. The same blank notice, filled' up in the same manner, was again mailed to the deceased July fifth or sixth. This was marked in conspicuous letters “ second notice.”

"When this last or second notice, so-called, was sent to-the deceased, the time for the payment, by the terms of the notice itself, had passed by about five or six days. If any forfeiture had been worked by the failure to pay the assessment, it was before the sending of such last notice. Tinder the phraseology of the third provision or rule above quoted, it seems to us that the company by sending out a second notice intended to, and did, in fact, waive any forfeiture which had been incurred by the assured by reason of his failure to pay the assessment on or before July first. This act of waiver was not done by any subordinate officer of the company, but by the company itself, 'through its treasurer. Tinder the rules of the company, it was, doubtless, competent for the -defendant to treat the failure to pay within the previous thirty days, sufficient evidence that the party had decided to terminate his connection with the society, and for the company on its part to take the position that the policy had lapsed and was void. It is there provided that the “party may again renew his connection with the society by a new contract made in the same manner as the first; or valid reasons to the officers of the society, such as a failure to receive notice of an assessment, he may be reinstated by paying the assessment arrearages.” Here was, therefore, an invitation to the deceased, necessarily involving a waiver of a previous forfeiture, to pay within the usual time after the service of such notice, the assessment which was claimed from him; and there was impliedly a promise on the part of the company that if such payment was made within thirty days from the time of the reception of the second notice there should be no forfeiture. Payment was made by express within that period, namely, on the 21st day of July, 1886, and was received by the defendant on the twenty-second of that month, but not until after the death of the insured. A receipt in due form was given for such payment and was written upon the face of the second notice.

Subsequently to this payment the company undertook to retire from the obligation which it assumed by receiving unquestioned the money and giving a receipt therefor; to repudiate such payment and to insist upon the previous opportunity to work a forfeiture. In this respect, also, the action of the defendant cannot be upheld. The officers, at the time of the receipt of the money, knew that James Shay was dead. On the 22d day of July, 1886, the defendant returned by express, addressed to L. L. Shay, a daughter of the deceased, money orders for sixteen dollars and eighty cents and seven dollars and eighty cents for the assessments, alleging as follows : “ The assessments were due and payable on or before July first, and not having been paid then the certificates lapsed and became void by the conditions therein, and reinstatement can only be made under the terms of our certificates and by-laws upon satisfactory evidence of good health at the time or by new contract made in the same manner as at first. Certificate of health must accompany remittances.” This communication contains no intimation that the clerk, who had been furnished proper receipts, had no power or right to receive and to retain the assessments, on the contrary, it places the rights of the company upon a ground utterly untenable with respect’to the third rule above quoted. Hnder these circumstances, there being no request on the part of the defendant to go to the jury, but both sides participating in a motion for a direction of a verdict, respectively, we think the direction of the trial court was correct, and tlie judgment should be granted to the plaintiff upon the verdict as directed, with costs.

Barker, P. J., and Dwight, J., concurred.

Motion for new trial denied, with costs. Judgment ordered fcr plaintiff on the verdict.


author: Dwight, J.:

text:
    MILO WEBSTER and ALZOA WEBSTER, his Wife, Appellants, v. ANN GRAY, IDA COLE, GEORGE PAYNE, as Executor of FANNY C. BUTTON, Deceased, Respondents, Impleaded with Others.

      Will — advancements, by what act the ehm'ge thereof will be canceled — right to revolee without testamenta/ry formalities.

    The will of Charles Webster, after giving to his four children, Fanny, Ann, Lucius and Milo, a farm and all the personal property, provided that the above bequests were to be so divided “that same equal division shall be made between my children above named by charging each of my children above named with what I have heretofore advanced to them, and each of them, and compound interest on such advancements, so that with such advancements and compound interest their respective amounts shall be equal. * * * In order to determine the advancements made to my children above set forth reference shall be made to my book or books in which I have charged over to my children such advancements made to them, and the time such advancements were made.”
    The will was made in 1877, and the testator, who died ten years later, had made, before the making of the will, to Fanny; Ann and Lucius, advancements varying in total amounts from $1,800 to $2,800, which were charged in the said books, and two years after the execution of the will he entered at the foot of each of the three accounts a memorandum of a settlement of such account in full.

      Held, that this was done with the intention of canceling and discharging the account in favor of his estate against each of said children, and that the account stood canceled at the time of the death of the testator.
    That a claim that the entries in the books, referred to in the will at the time the will was executed, were made by such reference a part of the will, and could not be revoked or changed except with the formalities requisite to the testamentary act, could not be sustained.
    Appeal by the plaintiff from an interlocutory judgment, in an action for partition, recovered at a Special Term held in Erie county, which was entered in the office of the clerk of the county of Orleans on the 20th day of May, 1889.

      And/rews & Hill, for the appellants.

      Goff & Warren and W. Martin Jones, for the several respondents.
   Dwight, J.:

The action was brought for the partition of the real estate mentioned in the second clause of the will of Charles Webster, late of Ridgway in the county of Orleans. That clause, after giving to his four children Fanny, Ann, Lucius and Milo the farm in question and all the personal property except what had, by a previous clause been given to his wife, proceeds: “ The above bequests to my children of the farm and personal property is to be so ’ divided that same equal division shall be made between my children above named by charging each of my children above named with what I have heretofore advanced to them and each of them, and compound interest on such advancements, so that with such advancements and compound interest their respective amounts shall be equal. * * * In order to determine the advancements made to my children, above set forth, reference shall be made to my book or books in which I have charged over to my children such advancements made them and the time such advancements were made.”

The will was made in 18'T'Í. The testator died ten years later. Before the execution of his will he had made to his three children, Fanny, Ann and Lucius, advancements, varying in total amounts from $1,300 to $2,300, all of which were charged, in detail, as matter of account, in the book or books referred to by the testator in his will. Two years after the execution of the will the testator had entered at the foot of each of the three accounts a memorandum of a settlement of such account in full. This was done with the undoubted intention of canceling and discharging the account and demand in favor of his estate against each of such children; and so the accounts stood canceled and discharged at the time of the death of the testator. The facts were so found by the referee, and the conclusion of law was drawn that no advancements were chargeable to either of the devisees for the purpose of the division of the real estate in question, but that they took their several shares therein without deduction by reason of such advancements. Exceptions to this conclusion of law and to the refusal to find otherwise as requested, furnish the ground of the plaintiff’s appeal. His contention is that the entries in the book or books of account, referred to in the will, existing at the time the will was executed, and capable of certain identification as the matters referred to, were made by such reference a part of the will, became engrafted upon and a material element in the testamentary disposition of the real estate in question, and as such could not be revoked or changed except with the formalities requisite to a testamentary act.

We think the contention cannot be sustained. The answer to it is that the will speaks only from the death of the testator, and the estate disposed of is that only of which he dies seized and possessed. The effect of the provision of the will was to give to the four children the claims against the three to be divided equally between them, with other property real and personal. Another disposition of these claims, by the testator, in his lifetime, has the effect of an ademption of the legacy so far as the claims for advancements are concerned. It may be conceded that the entries in the books of account became, by the reference thereto in the will, a part of the will; but the case is not different from what would have existed if the claims had been promissory notes of his children, particularly described in the body of the will. That it would have been competent for the testator in liis lifetime to accept payment of the notes or to surrender or discharge them notwithstanding the other disposition indicated by his will, which had not yet taken effect, will hardly be questioned.

The argument of counsel for the appellant proceeds upon the theory that the act of the testator was a revocation of a part of his will. But such is the cáse only as an ademption of a specific legacy is a revocation of it. Even the devise of the farm itself might have been, in that manner, revoked by a valid conveyance executed and delivered in the lifetime of the testator, and no one will contend that such a conveyance would have required in its execution the formalities of a will to render it valid. Indeed, it is plain that the acts affecting the disposition of a will which require to be executed with the formalities of a testamentary act are those which are, in their nature, testamentary acts, i. e., which are to take effect only on the death of the testator. A man’s disposition of his property in his lif etime is not in any manner controlled, nor his right to dispose of it limited, ,by any testamentary disposition of it which he has previously indicated. A will is not a contract, and tbe devisee takes no vested rights until bis devisor is dead. We regard tbe conclusions of tbe referee as correct.

Tbe judgment should be affirmed.

All concurred.

Interlocutory judgment affirmed, with costs to be paid out of tbe fund.


author:
Barker, P. J.:
     Macomber, J.

text:
    FRANCIS B. BREWER, Appellant, v. JANE E. FORD, Respondent.

      Sale of chattels, the vendor retaining title until notes given therefor are paid — action by the vendor to recover damages for the conversion of the property by the vendee•— right to require him, as a condition of a recovery therein, to surrender the notes.

    One Brewer, who, on the 19th day of January, 1880, was the owner of certain personal property, on that day entered into a written agreement with the Clark Manufacturing Company to sell a certain amount of machinery at the agreed price of $9,000, which contracc contained this provision: “F. B. Brewer agrees to sell to the Clark Mfg. Co. a certain amount of machinery and all patents pertaining to lock business. * * * Said machinery shall be the property of said Brewer, in care, custody and charge of said Mix Bros., until paid for. The said Brewer agrees to accept in payment of the said patents, as conditioned above, $500 on the first day of April prox.; $500, with interest on the whole amount unpaid, on the first day of April, 1881; $1,000 and interest on the whole amount unpaid on the first day of April thereafter until the whole is paid. Notes to be given for the several amounts. And the aforesaid Clark Manufacturing Company agrees to make the above-described purchase upon the conditions therein set forth and recited.”
    In April, 1887, the manufacturing company was insolvent and made a general assignment for the benefit of its creditors. At that time three of the notes of $1,000 each remained unpaid, one of them past due and the others to fall due, respectively, in one and two years thereafter.
    When the assignment was executed a number of the patents and machines sold under the said, contract had -been lost, consumed, sold or destroyed, and'that which remained was included in the schedule attached to the assignment and was delivered into the possession of the assignee, the defendant.
    In an action brought by Brewer to recover of the assignee the damages alleged to have resulted from the alleged conversion of such chattels by said assignee, at the close of the evidence the court held that by the terms of the contract the title to the property remained in the plaintiff, but that he was not entitled to recover in this action the value of the property mentioned unless he unconditionally delivered up the unpaid notes for cancellation.

      Tlie plaintiff refused to do so, but offered to place the notes in the hands of the clerk of the court, to remain in his possession for the purpose and with the authority to indorse upon the notes, as payment thereon, such sum as the jury should in a verdict fix as the value of the property, and if the amount was equal to the amount of the goods the notes should be canceled.

      Held, that the court erred in such holding.
    That the claims asserted by the plaintiff, that under the contract he might retain the possession of the property, and at the same time enforce the promise to pay the purchase-price, were not inconsistent. (Macomber, J., dissenting.)
    That both propositions had their foundation in the agreement, which was in all respects valid as between the parties thereto.
    Cases upon this subject collated and considered by Barker, P. J.
    Appeal by tbe plaintiff from a judgment recovered at the Erie Circuit, which was.entered in the office of the clerk of the county of Erie on the 15th day of December, 1887; and also from an order granted at circuit on the twenty-second day of November, denying the plaintiff’s motion for a new trial, and entered in the office of the saicl clerk of Erie county on the 23d day of November, 1887.

      William O. Fitch, for the appellant.

      Frank O. Ferguson, for the respondent.
   Barker, P. J.:

The trial court directed a verdict in the defendant’s favor. This I think was error. The plaintiff was the owner of the property in question on the 19th day of January, 1880. On that day, he, by an instrument in writing, agreed to sell the same with other property to the Clark Manufacturing Company, doing business in the city of Buffalo, at the agreed price of $9,000. The purchaser in pursuance of the terms of the agreement, gave its negotiable promissory notes jiayable on future dates and bearing interest. The contract contained this provision: “ E. B. Brewer agrees to s,ell to the Clark Manufacturing Company, a certain amount of machinery, and all patterns pertaining to lock business. * * * Said machinery shall be the property of said Brewer in care, custody and charge of said Mix Brothers until paid for. The said Brewer agrees to accept in payment for said purchase, as conditioned above, $500 on the first day of April prox.; $500 with interest on the whole amount unpaid on the 1st day of April, 1881; $1,000 and interest on the whole amount unpaid on the 1st day of April thereafter until the whole is paid. Notes to be given for the several amounts. And the aforesaid Clark Manufacturing Company agrees to make the above described purchase upon the conditions therein set forth and recited. For the faithful performance of the above written contract and agreement, the parties bind themselves,” etc. Mix Brothers, referred to .in the agreement, were lock-makers, and immediately after the contract was executed they went into the employment of the manufacturing company and were engaged in the use of the machinery in question, which had been delivered to the purchaser. In April, 1887, the manufacturing company was insolvent, and made a general assignment of all its property to the defendant Ford for the benefit of its creditors. At that time three of the notes of $1,000 each remained unpaid, one of them past due and the others would fall due in one and two years thereafter. When the assignment was executed a part of the property and machinery sold under the said contract had been lost, consumed, sold or destroyed, and that which remained was included in the schedule- attached to the assignment, and was delivered into the possession of the assignee, the defendant. The value of this portion of the property had greatly depreciated. and the proofs tended to show that its market-value was less than the amount of the unpaid notes. Before the commencement of this action the plaintiff demanded the property of the defendant who refused to give up his possession. The plaintiff was the owner of the notes and had them in court during the trial. At the close of the evidence the court held that, by the terms of the contract, the title to the property remained in the plaintiff, but that he was not entitled to recover in this action the value of the property mentioned unless he unconditionally delivered up the unpaid notes for cancellation.

This the plaintiff refused to do, but he offered to place the notes in the hands of the clerk of the court, to remain in his possession for the pui’pose and with the authority to indorse upon the notes as payment thereon, such sum as the jury should in their verdict fix as the value of the property, and if the amount of the verdict equalled the amount of the notes, the notes should be canceled and delivered to the defendant in this action, or to the Clark Manufacturing Company, or to such person or persons as the court may direct. The court thereupon directed a verdict in the defendant’s favor.

By the terms of the agreement, the title did not pass to the vendee, but it was expressly reserved to the vendor until paid for. The contract on the part of the vendor was wholly executory. The words used are “ agrees to sell,” which excludes all claim that it was a sale in presenil. It was lawful for the parties to make an agreement to that effect. It is manifest that the object which the parties had in view was to give the plaintiff security on the property until the purchase-price was fully paid, for it is distinctly stated that the purchaser consented to all the conditions of the the contract for the purpose of securing the faithful performance of the agreement; ” and as if to emphasize that the title to the property was not to pass until paid for, the vendor bound himself in the sum of $500 for the faithful performance of the agreement.

The vendees gave no other security than their promise, and it is reasonable to suppose that the contract was put in the form in which it was executed, that the plaintiff should retain the title as a security for the payment of the purchase-money. The plaintiff in this controversy with the defendant stands on the terms of the agreement as the basis of his right of action, and we must give effect to the intention of the parties as expressed in the contract. It was undoubtedly understood when the agreement was made that the vendee should have 'the use of the property and machinery in its manufacturing establishment, although no such intention is expressed in the agreement. But such an arrangement was not inconsistent with the condition expressed on the face of the contract, that the title should not pass to the vendee until the notes were all paid. When default was made in the payment of the notes which matured April 3, lSS'r, the plaintiff had the right to take possession of the property as against his vendee for the purpose of preserving his security and enforcing his right to have the property devoted to the payment of his debt. If he could not retake possession for that purpose, then the security was practically valueless, and the retention of the title in himself was of no avail. The various decisions in this State, as to the character and effect of contracts similar to the one now before us, sustain the proposition above stated.

In Herring v. Hoppock (15 N. Y., 409) it was determined that one who has bargained for the purchase of a chattel, and agreed to pay therefor at a future day, and has received a delivery under an agreement that no title should vest in him until payment, acquired no title; and that a creditor of such person, who had levied an execution thereon, was hable to the owner for the conversion of the chattel. This proposition is decisive of the present case, for the defendant occupies exactly the same position as his assignor did at the time he made the assignment. The case of Ballard v. Burgett (40 N. Y., 314) fully recognized the doctrine stated in the case last cited, and all the subsequent decisions are to the same effect, and the • following may also be cited : Cole v. Mann (62 N. Y., 1); Austin v. Dye (46 id., 500); Strong v. Taylor (2 Hill, 326); Harkness v. Russell (118 U. S., 663); Mott v. Havana Bank (22 Hun, 354); Sargent v. Metcalf (5 Gray, 306); Manning v. Keenan (73 N. Y., 45).

In denying the plaintiff’s motion for a new trial, which was made before the learned judge who presided at the court, it was admitted that by the terms of the agreement the sale was conditional, and that ho title passed to the vendee, and that it remained in the vendor until full payment of the purchase-price, but he expressed the opinion that in default of payment at the time stipulated the vendor had one of two remedies, either-of which he might pursue, but not. both; that he could sue for the purchase-money unpaid, and if he did so, that would be an election on his part that the title should vest in the vendee at once, or he could bring an action to regain the possession of the property, or to recover its value from the wrong-doer, who may have converted it to his own use, and by so doing would be regarded as having terminated the agreement and canceling the vendee’s promise to pay for the property. This view of the legal effect of the contract denies to the vendor the full benefit of his agreement, and deprives him-of the right to enforce the vendee’s promise to pay for the property, and at the same time retain the title thereto as a security for the performance of the vendee’s promise. In other words, the rule as stated would be equivalent to a denial of the validity of such contract.

The right asserted by the plaintiff that, under the contract, he may retain the title to the property, and, at the same time, enforce the vendee’s promise to pay the purchase-price, are not inconsistent, and both propositions have their foundation in the agreement, which was, in all respects, lawful as between the parties thereto. Suppose “A” should agree to sell “ B ” an article of personal property at a fixed price, which “ B ” agreed to pay at a future day, under a stipulation that the possession of the property should remain with the vendor, and the title not pass to the vendee until full performance of the buyer’s promise to pay for the same. No one would assert, I think, that such an agreement was unlawful, and could not be enforced by a resort to proper legal remedies. The vendor could maintain an action on the vendee’s promise to pay, and hold the title to the property, and retain the possession as a security for the payment of the judgment. Such an action would not be inconsistent with the right of the vendor to retain the title and possession until the vendee performed his promise. If it should be held that an action for the purchase-money under such an agreement was inconsistent with the title in him, it would be, in effect, declaring the contract nugatory as to the vendor. So in the case before us, if the plaintiff cannot hold on to the title to the property without canceling the vendee’s promise to pay for the same, he is deprived of one of the terms of his contract which is admitted to be lawful in every respect. The case we are considering does not apply to that class of cases where the rule is well settled, that when a contract is induced by a fraud, that fact does not render it void, or prevent the property from passing, but gives the defrauded party a right, on discovering the fraud, to elect whether he will continue to treat the contract as binding, or disaffirm it and resume the possession of the property. In such cases the contract continues in force until the party defrauded has determined by his election to avoid it, and when once rightfully determined it is determined forever. (Moller v. Tuska, 87 N. Y., 166; Morris v. Rexford, 18 id., 552; Powers v. Benedict, 88 id., 605.)

These are the cases cited by the learned counsel for the respondent in support of his position. Where the vendor, by the terms of his contract of bargain and sale, intends-that the title shall pass to his vendee, and delivers to him the possession, and seeks thereafter to void the contract and reclaim the possession of his property for the reason that the vendee perpetrated a fraud upon him, he must put the purchaser, before he can recover the property, in the same position that he was before the contract was made, and that requires him, if any portion of the money has been paid, to return it to him. In that class of ’ cases the vendor proceeds as if no contract was ever made, by reason of the vendee’s fraud. If, with knowledge of the fraud, he sues the vendee on the contract of sale, it is an affirmance of the contract, ana he cannot thereafter pretend that the contract was void.

There is another class of cases to which the one at bar is nowise allied in principle or circumstance; that is, where there is a bargain and sale of goods and a delivery to the buyer with the express or implied understanding of immediate payment, such a delivery is deemed to be conditional and subject to revocation on the refusal of the purchaser to pay the price. In such a case if the vendor fails to get payment, he may consider the delivery absolute, and rely on the responsibility of the vendee, or he may disaffirm and reclaim his property.

But he cannot do both of these thingsl The remedies are not concurrent, and the choice between them once being made, the right to follow the other is gone forever. In the language of Judge Com-stock, in Morris v. Rexford (18 N. Y., 551), “the law tolerates no such absurdity as a seizure of goods by a person claiming that he has never sold them; and an action by the same person, founded on the sale and delivery of the same goods, for the recovery of the price. In peculiar circumstances a party may take either one of these courses, but having rightfully made his choice, the right to follow the other is extinct and gone.” It will be observed in that class of cases no credit is given, nor any agreement that the title to the property shall remain in the vendor until paid for.

In this case the goods were sold on credit, with the agreement that the title should not pass until the goods were paid for. It is this provision of the contract which distinguishes it from the cases cited in support of the respondent’s argument.

Judgment reversed,, verdict set aside, new trial granted, with costs to abide event.

Dwight, J., concurred.

Macomber, J.

(dissenting):

The action is trover, brought against this defendant, who is the assignee of a copartnership known as the Clark Manufacturing Company under an assignment for the benefit of creditors.

The plaintiff and the Clark' Manufacturing Company, on the 29th day of January, 1880, entered into a written agreement, by which the'plaintiff agreed to sell to that company a certain amount of machinery. The agreement and the transfer of the property were to be perfected, by the terms of the contract, on or about the first day of April, thereafter, when any changes which certain persons, known as Mix Brothers, should deem expedient to be made in the choice or character of the machinery or in the prices of the machinery or merchandise, should be made. The contract declared that “ said machinery shall be the property of the said Brewer, in care, custody and charge of said Mix Brothers until paid for.” Payments were to be made as follows : $500 in cash; $500 and interest on the whole amount unpaid on the 1st day of April, 1881; and $1,000 and interest on the whole amount unpaid on the first day of April in each year thereafter until the whole should be paid. Nine notes were given for part of the purchase-money, three of which were unpaid in the month of April, 188Y, and still remain unpaid, and are held by the plaintiff. They are negotiable instruments.

The Clark Manufactmdng Company made payments of these several installments up to the month of April, 188Y, when on tibié seventeenth day of that month they made a general assignment of all their property to the defendant for the benefit of their creditors. At that time there remained unpaid three of the said promissory notes of $1,000 each, but only one of them was due at the beginning of this action. A demand having been made upon the defendant by the plaintiff for the possession of the property coming into his hands as such assignee, and the demand having been refused this action was brought to recover the value of all' such property, the complaint describing it in detail, and alleging its value to be $5,000.

Upon the trial of the action it appeared that the Mix Brothers, who stood in the relation of custodians of the property for the benefit of both the seller and the purchasers, abandoned the shops of the Clark Manufacturing Company, the property which they had theretofore had .in charge remaining with the purchasers. It was sought to be maintained by the counsel for the defendant, that such act on the part of Mix Brothers amounted to a waiver of any condition in the original sale, and that, consequently, the plaintiff could not maintain this action. Such objection, however, was properly overruled by the learned trial judge, as a question of law, he holding, in substance, that the question was one of fact and should be submitted to the jury, in the event of the case going to the jury on other questions.

The ownership and possession of the three unpaid notes being alleged in the complaint still to be in plaintiff, and such possession being shown at the time of the trial, objection was made by the counsel for the defendant that a recovery could not be had in this action except upon the surrender of such notes. This contention was approved by the trial judge. The plaintiff’s counsel, however, refused to surrender the notes to the defendant, and contended that he had the right to the possession of the same, and the right to mantain an action hereafter upon them in case the verdict of the jury in this action should not be adequate to pay the whole amount of the unpaid purchase-price of the property. The court gave the plaintiff’s counsel leave to surrender the notes and so maintain this action, but this was declined. The counsel then stated to the court: “We do not make an unconditional offer to surrender these notes, because we think we have a right to proceed in case there is any balance due on these notes after applying the amount that the jury shall find due us, to proceed against the makers for the deficiency.”

There is nothing ambiguous in the terms of the original written agreement. It, as a whole, is a plain contract for the conditional sale of personal property, the title to remain in the seller until paid for in pursuance of the terms of commercial paper given at the time of the transfer of the property. But the Clark Manufacturing Company was to have the continuous possession and use of the property so long as they paid the notes as they becáme due. The defendant, not being deemed a purchaser for value, can have no defense in this action which was not available to his assignors. They having agreed that the title should remain in the plaintiff, were bound thereby until the property was entirely paid for, unless the plaintiff had voluntarily waived the conditional agreement, and by word or act had made it an absolute sale. The transaction occurring in the year 1885, by which the Mix Brothers left the shops of the Clark Manufacturing Company, indicated strongly that it was not the purpose of the plaintiff further to insist upon retention by himself of the title to the property. But such intention, as manifested by the acts of Mix Brothers, did not present itself as a question of law, but as a question of fact, and, consequently, was rightly disposed of by the court below.

It will be observed, therefore, that this presents a case of election of remedies in a somewhat different light from any that have appeared in the courts of this State. There is a class of cases, many of which are cited in the opinion of the judge at Special Term, on the motion for a new trial, which it is not necessary to cite here, which show, under varying facts and circumstances, a uniformity of decision to the effect that when a party, having the right to avail himself of more than one remedy, takes one of them in the courts, ho is precluded thereafter from availing himself of the other. These authorities, however, proceed generally upon the ground that there has been an election of a judicial remedy which is inconsistent with the subsequent remedy which is sought to be obtained growing out of the same transaction. The peculiarity of this case consists in the fact, not that the plaintiff had undertaken, by process of law, to avail himself of the collection of the promissory notes, for he had not done that, but rather that, being in possession of such commercial paper, which was negotiable, he thereby assumed an attitude in this forum so inconsistent with the claim made in this action that the court could not properly permit him to proceed; for, otherwise, the rescission of the original contract, which the beginning of this action necessarily made, would not be a real, but a sham rescission, and an action might still be maintained by the plaintiff or his transferee upon each of these three unpaid notes.

I am of the opinion, therefore, that while the original' agreement was a conditional sale only, and not an absolute one, of the personal property, and while the plaintiff had a right, in case of failure to pay according to the terms of the agreement, to possess himself of the property or to maintain trover for its value, yet an active duty was devolved upon him, and that was to restore, before recovering a verdict in this form of action, the negotiable notes which were still outstanding and held by him.

The judgment and order should be affirmed, with costs.

Judgment and order reversed and new trial granted, with costs to appellant to abide the event.


text:
    KATE S. BECK, Individually and as Executrix of the Last Will and Testament of PHEBE A. ENNIS, Deceased, Respondent, v. B. FRANKLIN ENNIS and Others, Appellants.

      Will — gift contingent upon death without childn'en, or prior to the death of other children, construction of.

    By tlie first clause of the will of Phebe A. Ennis, plaintiff’s teslatrixy she gave to the plaintiff, absolutely, all her household goods, and by the second clause she gave the residue of her property, one-half, to her daughter, Kate S. Beek, the plaintiff, if she remained unmarried, and the other half in equal shares to two other children, the appellant and a daughter of a Mrs. Pendry, but, in case of the marriage of the plaintiff, the property mentioned in this clause was to be equally divided between the three children, share and share alike.
    The third clause provided that if “my daughter, Kate S., should marry and die without children, or die previous to her brother or sister, then the property given or bequeathed to her shall revert to her brother, B. Franklin, and her sister, O. Olivia, or their heirs, to share alike.”
    The plaintiff married after the death of her mother, and before the commencement of this action, but has remained thus far without issue.
    The question involved was as to whether the plaintiff’s estate and interest in one-third of the real estate and of the personal property, aside from that included in the first bequest, was absolute or conditional.

      Held, that the contingency under which the brother and sister of the plaintiff would take the plaintiff’s share arose in the event that the plaintiff should die either married and without children, or unmarried, previous to her brother or sister. The words “previous to her brother or sister” being used to qualify both alternatives.
    That the contingency contemplated by the third clause of the will would arise whenever the plaintiff should die without children, and previous to either her brother or her sister; that, in that case, her estate in the farm and her interest in the personal property, other than that embraced in the first bequest, would X>ass to her brother and sister, or to either of them then surviving, and to the heirs of either then deceased, to be divided equally between them, per stirpes, in the case of heirs of either; but that, in case the plaintiff survived both her brother and her sister, her estate in all the real and personal property would become absolute.
    That this case did not come within the rule that where there is a devise to one in fee, and in case of her death to another, the contingency referred to is to be construed to be the death of the first devisee in the lifetime of the testator, and that if such devisee survives the testator he takes an absolute fee.

      Vanderzee v. Slingerland (103 N. T., 47); Matter of New York, Lackawanna and Western Bailway Company (105 id., 89) followed. .

      Appeal from a judgment entered upon tbe report of a referee, in the office of the clerk of Wayne county on the 7th day of January, 1889, in favoi of the plaintiff.

      Wm. A. Sutherland, for the appellants.

      S. B. McIntyre, for the repondent.
   Dwight, J.:

The. judgment gives construction to the will of Mrs. Pheba A. Ennis, the mother of the two parties to this appeal; the other parties defendant in the action were the husband and another daughter of the deceased.

By the first clause of her will the testatrix gives the plaintiff, absolutely, all her household goods, including furniture, carpets and silverware. By the second clause she gives the residue of her property, consisting of a farm and all her personal property other than that included in the first bequest, one-half to the plaintiff, if she remains unmarried, and the other half in equal shares to the other two children, the appellant and a daughter, Mrs. Charlotte Olivia Peiidry; but in case of the marriage of the plaintiff, the property mentioned in this clause is to be equally divided between the three children, share and share alike. The third and fourth clauses of the will are as follows:

Third. If my daughter, Kate S., should marry and die without children, or die previous to her brother or sister, then the property given or bequeathed her shall revert to her brother, B. Eranklin, and her sister, O. Olivia, or their heirs, and to share alike.”
“Fourth. The foregoing bequests are based upon the provision that my three children, conjointly or by mutual arrangement, make suitable and adequate provision for the support and maintenance of my husband, Elijah Ennis, their father, during his life, and that suitable tombstones be procured and set up at his and my graves. Likewise I make, constitute and appoint my daughter, Kate S. Ennis, to be executrix of this my last will and testament.” * * *

The plaintiff married after the death of her mother and before the commencement of this action, but has remained thus far without issue. The question is of the nature and extent of the plaintiff’s estate and interest in one-third of the real estate and of the pei'sonal property aside from that included in the first bequest; whether such estate and interest is absolute or conditional.

It is unnecessary to review or even to cite the numerous authorities establishing the rule which the referee has applied to this case. The cases are well collated and classified by Andrews, J., in Vanderzee v. Slingerland (103 N. Y., 47), where the rule with its limitations is clearly stated; and the same views are expressed and thé same result is reached by Rapadlo, J., in the case of the Matter of the New York, Lackawanna and Western Railway Company (105 N. Y., 89). The rule is that when there is a devise to one person in fee, and in case of his death to another, the contingency referred to is the death of the first devisee in the lifetime of the testator; and if such devisee survives the testator he takes an absolute fee. Judge Rapadlo says in the latter case: “ This construction is uniformly adopted unless there is some language in the will indicative of a different intention on the part of the testator,” and Judge Andrews, in the former case, says that the rule “ applies only where the context of the will is silent and affords no indication of intention other than that disclosed by words of absolute gift, followed by a gift over in case of death, or of death without issue, or other specified event. Indeed, the tendency is to lay hold of slight circumstances in the will, to vary the construction and give effect to the language according to its natural import.” Such indications were discovered in both of the cases referred to, and in both advantage was taken of slight circumstances in the will to justify giving effect to the language according to its natural import. The remark is obvious that a rule so willingly avoided, and apparently as much honored in the breach as in the observance, must be a very artificial one and founded largely upon authority rather than upon principle.

"We are led to inquire, therefore, what is the reason, if any, which is supposed to be at the foundation of this rule of construction. The inquiry is answered in both of the opinions referred to as follows: “ The reason assigned for this construction has been that as death is a certain event, and the time only is contingent, the words of a contingency in a devise of this description can only be satisfied by referring them to a death before some particular period; and, no other being mentioned, the time referred to must be presumed to have been the testator’s own death.” This reason, if not very forcible, at least serves tlie useful purpose of furnishing a test of the applicability of the rule to the case in hand. Applying that test we seem to find this case not within the rule, because the event prior to which the death of the devisee must occur to constitute the contingency mentioned in this devise, is not left to be supplied by construction but is fixed by the terms of the devise itself; it is the death of the brother or sister. The language of the provision is: “ If my daughter Kate S. should marry and die without children, or die previous to her brother or sister.” Here, we think, the phrase “ previous to her brother or sister,” qualifies both the alternatives of the provision quoted, and that the contingency intended might be more clearly stated in this form: “ If my «laughter Kate S. should die, either married and without children, or unmarried, previous to her brother or sister,” the object being apparently to exclude the case of the death of the plaintiff leaving children to inherit from her. In other words, the whole scheme and tenor of the will forbids the idea that the testatrix intended to disinherit the children whom her daughter Kate might leave surviving her, whether she died before or after her brother and sister. If so, then the contingency referred to is fully defined by the express terms of the will, and there is no room to suppose an intention to limit it upon the death of the testatrix or any other event not mentioned in the will.

But even if our construction of the alternative provision of the devise were not the true one, we think “ other circumstances in the will ” are sufficient to take this case out of the general rule laid down by the authorities referred to. There is the reiteration of the intention of the testatrix, in the third clause, which is a circumstance of the same character, and of at least equal significance with that which seems to have warranted a judgment of the court in the case of the Matter of the Lackawanna Railway (supra). The language here is “By this I intend that the bequest to Kate S., circumstanced as above stated, shall pass to my son and daughter herein, or their heirs, and to share alike.” “Circumstanced as above stated” is equivalent to “under the circumstances, or upon the contingencies above expressed,” and the language serves to exclude the idea that other contingencies were to be added by legal construction or otherwise. The reiteration was made, as is said by Kapallo, J"., in the Lackawanna case, “ as if to make his intentions clearer, and to indicate that no other contingency was contemplated than the one which he had expressed.” Moreover, all the provisions of the fourth clause of the will are such as to indicate an expectation on the part of the testatrix that the plaintiff would survive her, and that none of the provisions of her will had been made in contemplation of the plaintiff’s dying in her lifetime. This circumstance may b,e slight, but we have seen that the courts seize upon slight circumstances to justify an avoidance of the highly artificial rule of construction which we have had under consideration.

Ve conclude that the contingency contemplated by the third clause of this will will arise whenever the plaintiff shall die without children, and previous to either her brother or her sister; that in that case her estate in the farm and her interest in the personal property (other than that embraced in the first bequest), will pass to her brother and sister, or to either of them then surviving, and the heirs of either then deceased, to be divided equally between them, per stirpes, in the case of heirs of either; but that in case the plaintiff survives both her brother and her sister, her estate and interest in all the real and personal property will become absolute. In other words, to adopt the phraseology of the decision in the case of Lackawana Railway (supra), we hold that the plaintiff took, under her mother’s will, a base or conditional fee in the undivided one-third pf the real estate, and a corresponding interest in one-third of the personal •estate left by her mother (aside from that mentioned in the first clause of the will), defeasible by her dying, without leaving issue, before the death of either her brother or her sister; that her issue, should she have any, would take by inheritance from her, but a conveyance by her m her lifetime would be effectual against them; that should she survive both her brother and her sister her title would become indefeasible, and that at any time during the lifetime of her brother and sister an indefeasible title in fee could be conveyed by their joining with her in a conveyance.

The judgment appealed from adjudges that the three devisees take their respective shares and interests in the residue of the property, subject to the duty and obligation enjoined by the fourth elause of the will to make suitable provision for the support and maintenance of their father during his life; and it directs that they make such required provision within two months from notice of the judgment; or, in default thereof, the executrix make such provision out of the estate of the testatrix in her hands. Neither party seems to be content with this provision of the judgment, although the plaintiff has not appealed therefrom. The defendant concedes the correctness of the judgment to the effect that all the devises and bequests of the will are subject to the requirement of the fourth clause, but objects that, in case of disagreement between the three devisees, the. making of such provision should not be left to the sole judgment and discretion of the plaintiff; and he suggests, in ease of such disagreement, a reference to ascertain what would be a suitable and adequate provision for the purpose in question. ¥e think the suggestion a proper one and such a direction will be given in the order for the modification of the judgment.

The judgment should be modified in accordance with the views expressed in this opinion. The order for such modification to be settled by Dwight, J.

All concurred.

Judgment modified in accordance with opinion.

Order for modification to be settled by Dwight, J.