author: Hardin, P. J.:

text:
    Emma L. Hirsh and Another, by their Guardian ad Litem, John Hirsh, and Another, Respondents, v. Clara Auer, Appellant.

      Change of the beneficiary named in a life insurance policy — the beneficia/ry may, by a parol agreement, impress the proceeds of such policy with a trust — hearsay evidence.

    When an assured has possession of his certificate of insurance, and it is within his power, within the stipulations contained therein, without the consent of the beneficiary named in such policy, to return the certificate to the insurer and obtain from it another certificate naming another beneficiary, such first beneficiary has no vested interest in the certificate until the death of the insured, and, prior to his death, she has merely a revocable or determinable interest in it.
    The beneficiary has power prior to the death of the assured, by agreement, to create an equity or a trust, which will attach to the money realized from the insurance certificate the moment that she becomes the recipient of it; such trust is impressed upon the money, and the agreement will control the action of the beneficiary in respect thereto until the object of such agreement be accomplished.
    In an action brought by the heirs at law and next of kin of a decedent, against the person named as the beneficiary in a policy of insurance upon such decedent’s life, to obtain an adjudication that such beneficiary holds the moneys received by her on such insurance policy as a trustee for the benefit of the plaintiffs, the evidence of what one of the plaintiffs stated, to the defendant, that the deceased had told her, if relevant, is competent evidence, but does not prove or tend to prove that the deceased said what such plaintiff stated to the defendant he had said.
    Appeal by the defendant, Clara Auer, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Onondaga on the 5th day of October. 1893, upon tbe decision of tbe court rendered after a trial at tbe Onondaga Circuit before the court without a jury.
    The action was brought against Mrs. Clara Auer, who has died, and whose husband, as executor, has been substituted as a party defendant since the appeal was taken. Judgment was entered for the plaintiffs and an appeal was taken therefrom.
    The trial court found that on the 20th day of January, 1884, John Hirsh became a member of the society known as the Ancient Order of United Workmen, receiving therefrom a certificate of insurance in which his then wife, Mary Ann Hirsh, was named as the beneficiary, entitling her to receive the sum of :$2,000 upon his death. In July, 1887, his wife, Mary Ann, died, and in the fall of that year, in pursuance of the permission found in the certificate, he surrendered the same to the company, and on the 11th day of October, 1887, received from the order a new certificate bearing the number of 24703 (being the same number as the first certificate) in which Clara Auer, his sister, the defendant in this action, is designated as the beneficiary. After her death he continued to reside at his home with the plaintiffs, his three daughters, who kept his house as their mother had before her death, down to the 24th of February, 1892, when he died intestate, leaving no property with which to defray his funeral expenses, or to pay for a monument, or to provide for the future care and support of his children, “ save and except •such means as should be derived from his policy of insurance from the Ancient Order of United Workmen.” In June, 1892, Clara Auer received the sum of $2,000 from the order, “ the full value of the insurance policy or certificate number 24703 upon the life of the ■said John Hirsh.” Prior to the commencement of this action the plaintiffs made a demand upon her, which she refused to comply with, for the payment to them of $1,500 of the money so received; as matter of law the court found: “ That the plaintiffs are ■entitled to judgment in this action for the sum of $1,500 and interest from June 10, 1892, together with the costs of this action.” Defendant took exceptions to several of the findings of fact and ■conclusions of law, and made several requests to find matters of fact and propositions of law, which were denied, and exceptions were taken thereto.

      Fuller da Glen, for the appellant.

      Stone, Gannon da Petit, for the respondents.
   Hardin, P. J.:

Having critically read and carefully considered all the evidence found in the appeal book upon the questions of fact arising during the trial, we are of the opinion that the findings of the trial judge are supported by evidence and are in accordance with the weight of the evidence, notwithstanding the testimony offered by the plaintiffs upon some of the vital issues of fact is contradicted by the testimony offered by the defendant in that regard. Prom the findings thus made it appears that at the time the father of the plaintiffs obtained the second certificate and made the same payable to his sister, Clara Auer, the defendant, the same was made payable to her pursuant to an express agreement and understanding between the said John Hirsh and his sister, the said defendant; the purport of this agreement and understanding was that she, the said defendant, should, on the death of the said John Hirsh, receive the proceeds of that insurance certificate, to wit, two thousand dollars, and from these proceeds pay his funeral expenses, and pay for a monument, using for such purposes as much money as should be necessary, not exceeding five hundred ($500) dollars. The remainder of such proceeds was, according to the same agreement, to be paid by the defendant upon receipt thereof by her to the three children, the plaintiffs, share and share' alike.” The father paid the dues and assessments to the order down to the time of his death, except one, which was paid shortly thereafter by his children. His sister, the defendant, paid no premiums to the order nor did she in any way advance any money or valuable thing to the order or to her brother, the insured. At the time of his death all the children were under age, and he left no other provision or property for their comfort and benefit. He retained possession of the certificate; the same was found among his papers a few days after his death, and two of the plaintiffs went to the house of the defendant, carrying the certificate, and held a conversation with her in respect thereto, in which they severally alluded to the understanding they had derived from their father in respect to the moneys that were to be received upon the certificate, and they testify that the defendant assented to the understanding which they related to have had, and that she admitted that the agreement was substantially as is found in the finding of fact wliicli has been quoted above. It is insisted in behalf of the appellant that “ no trust could be impressed upon the proceeds of the insurance in this case by an agreement between the insured and the beneficiary.” In support of that position it is suggested that there was no property m esse upon which a trust could fasten, and that “ the right of the insured in and to the fund created is not a property right, but a right to provide a fund to be disposed of by the statute, or by the naked power of designation.” In considering the position taken it must be borne in mind that the insured procured the certificate to be issued upon his life, and furnished all the money for the payment of the dues and assessments thereon, keeping the same in life ; that he kept possession of the certificate, and that it would be reasonable and natural for a father to make provision for his infant daughters instead of for his adult married sister, who had a settlement in life; and the circumstance that his children were under age, and, therefore, not in a situation to receive and disburse the moneys as conveniently and discreetly as a person who had ai'rived at years of maturity. By the terms of the certificate he was authorized to change the appointee or, beneficiary any time during his life, and as he had kept possession of the certificate it is not inqprobable that his intention was to make such change 'in the event that he survived until his children reached years of majority. Having possession of the certificate with the stipulations contained therein, it w4s within his power, without the consent of his sister, to return the certificate to the order and obtain therefrom another certificate naming another beneficiary. (Luhrs v. Supreme Lodge, etc., 27 N. Y. St. Repr. 88; Sabin v. Grand Lodge, etc., 28 id. 45; S. C. affd., sub. nom., Sabin v. Phinney, 134 N. Y. 423.) According to the doctrine of the last case cited, the beneficiary had no vested interest in the certificate until his death; prior thereto she had a revocable or determinable interest in it. A contingent interest, and one which may or may not become absolute.” ( Union Central Life Ins. Co. v. Woods, 37 N. E. Rep. 182.) Although the defendant did not have a present actual ownership of the moneys to be received (and which were afterwards received) upon the certificate at the time she entered into the agreement to receive the same and disburse it according to the agreement found, yet we are of the opinion that" the agreement did create an equity or a trust which attached to the money the moment she became the recipient of it, and that the trust is impressed upon the money and that the agreement should control her action in respect thereto until the object of the agreement was. accomplished. (Silvey v. Hodgdon, 52 Cal. 363; Jackman v. Nelson, 17 N. E. Rep. 529 ; 147 Mass. 300; Catland Executors v. Hoyt, 5 Atl. Rep. 775; 78 Maine, 355; Field v. The Mayor, 6 N. Y. 187; Hall v The City of Buffalo, 1 Keyes, 193.)

In Stover v. Eycleshimer (3 Keyes, 620) it was held that assignments of contingent interests and expectations, and of things which have no present actual existence, but rest in possibility only,” will be upheld if they are entered into fairly and are not against public policy.

In Day v. Both (18 N. Y. 453) it was held that a declaration or agreement, however informal, evincing an intention merely to create a trust, will be upheld.

In Neilly v. Neilly (23 Hun, 615) it was said: “ It is well settled that a formal or even a written agreement is not necessary to create a trust in money or personal estate.”

In Barry v. Lambert (98 N. Y. 306) Chief Judge Ruger said: It is well settled that a trust in personal property may be created by parol, and that no particular form of words is necessary for its creation, but the words or acts relied on to effect that object should be unequivocal and plainly imply that the party making them intended to divest himself of his interest in the property, and to hold it thereafter for the use and benefit of another. This is all that is required to create a trust even as against the owner, and although he continues to retain possession of the property devoted to the trust. Rut when the legal title is in one party and the equitable ownership in another, it is only necessary for those facts to appear in order to constitute the holder a trustee for the benefit of the other.”

In Gilman v. McArdle (99 N. Y. 451) it was again held that a trust as to personal property may be created without writing; and in the same case it is observed that a trust may be created although it is to be executed after the death of the creator.

Tlie doctrine is again stated in Matter of Carpenter (131 N. Y. 86) and cases referred to.

We cannot assent to the contention of the appellant that the acts, declarations or evidence of the admissions of the defendant in respect to the agreement were inadmissible or that they tended “ to vary or contradict the terms of the certificate itself, and are insufficient to raise a trust in respect to the proceeds of said certificate.” Doubtless, as between the order and the defendant, the certificate was the only evidence of agreement on the part of the order, and, ■doubtless, she, in view of that language, was entitled to receive, as ■she did, the moneys from the order in liquidation of the certificate. However, when she received the money, having made the agreement to hold it for the purposes mentioned in the agreement, a trust was fastened upon the money which she was in duty bound to carry out. In the Carpenter Case {supra) there were formal written assignments to Pierce of the notes and securities, who took the legal title thereto, and it was said in respect thereto: “ The petitioner took an equitable interest only which she could enforce through the medium of a trust. Pierce was not only vested with the legal title to the original notes, but he was to take.any new notes in his name. The rights of the petitioner were those of a beneficiary of a trust. There can be no doubt that a trust may be created to collect and pay over the proceeds of notes to a person designated by the creator of the trust.”

Appellant’s learned counsel calls our attention to Steere v. Steere (5 Johns. Oh. 1), which related to real estate, and while we may agree with the language of the chancellor wherein he says : But intentions and intimations of that kind cannot well be considered as amounting to a clear and absolute trust, which a court of equity will recognize and enforce, unless the declaration of it be quite positive and free from all ambiguity; ” we are unable to see anything in the case which persuasively or conclusively supports the contention of the appellant.

Nor do we think the case of Dean v. Dean (6 Conn. 286) aids the contention of the appellant. In that case an absolute title had been conveyed, and a bill was filed to enforce a parol agreement in respect thereto, and it was held that the parol testimony was inadequate to support the bill.

(2) When one of the plaintiffs was upon the stand her attention was called to a conversation which she had with the defendant, her aunt, on the occasion of carrying the policy to her house on the second day of March. The questions calling for that conversation were objected to, and one of the grounds stated was That a personal transaction or communication with the deceased by this witness can’t be proved by a conversation had between this witness and the defendant.” Thereu'pon the court obsezwed: “ What she says that the deceased stated to her is perfectly competent; but that don’t prove that the deceased said it. The conversation between the witnesses and the defendant is competent. I will give you an exception.” We think the ruling is in accordance with the doctrine stated in Hier v. Grant (47 N. Y. 278).

We have looked at the other exceptions in the case and are of the opinion that they do not present any ei’ror which requires us to disturb the conclusion reached at the Circuit. The tidal judge delivered an extensive opinion fully and fairly commenting upon the evidence, giving cogent z-easons for his conclusion upon the evidence, and stated several authorities which sustain the conclusion of law announced; and upon them, as well as upon the views already expressed, we are of the opinion that the decision made at the Circuit shozild be allowed to stand.

Martin and Merwin, JJ., concuz-red.

Judgment affirzned, with costs..


source: Caselaw Access Project

author: Hardin, P. J. :

license: Public Domain

text:
    George Hollenbeck, Appellant, v. Delos H. Johnson, Respondent.

      Trespass by animals — proof of negligence — the injury must be the natural and probable consequence of the act.

    A. person, is answerable, not only for Ms own trespass, but also for that of Ms domestic animals.
    In order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.

      Appeal by the plaintiff, George Hollenbeck, from a judgment of tlie Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 18th day of July, 1893, upon the report of a referee.
    Plaintiff served exceptions to tlie report of the referee and also to his refusal to find “ that tlie plaintiff is entitled to recover for his personal injuries resulting from his falling into the cistern through the hole made by the defendant’s cow.”

      Smith cé Diohinson, for the appellant.

      J. E. Eggleston, for the respondent.
   Hardin, P. J. :

January 3, 1892, the parties resided in the village of Fabius. The plaintiff was in possession of twenty-two acres of land as a tenant, which he had occupied some four years; and upon the premises so occupied by him was a barn, about five rods north of and fronting on North street, in which barn were several doors opening toward the street. The barn had been built some forty-five years. Under the floor, near the north side of the barn, was a cistern about ten feet across the top and about nine feet deep, over which were stringers about three feet apart. The cistern had been covered ofer with inch hemlock boards about two feet below the barn floor. On that day the plaintiff kept in the barn his hens, hay and fodder, and a cow and a horse. There was no road fence in front of the barn, and the small door of the barn was allowed by the plaintiff to remain open on the day in question, “ and there was nothing to prevent cattle passing along said street from entering said barn through said small door.” Some fifty rods distant from the barn of the plaintiff the defendant resided, and was the owner of a cow which he kej)t on his premises, which cow weighed about 800 pounds. About one o’clock of the 3d of January, 1892, the defendant led his cow from his barn into an inclosed yard south of and adjoining his barn ; closed the gate through which the cow had entered the yard, and fastened it on the inside with a wooden pin and on the outside with a hook and staple. The yard was fenced all around by a picket fence and a high board fence some four feet high. About two o’clock in the afternoon of the day the defendant went to his yard, and found the little gate open and the cow gone, and he immediately commenced to search for her and continued his search until about four-thirty p. m., when he learned that there was a cow in the cistern under the plaintiff’s ■ barn, and there found the fact to be that his cow was then in the plaintiff’s cistern. It appears the defendant’s cow escaped from his inclosure without any fault of his and passed over his premises to the premises of the plaintiff and entered through the small door of plaintiff’s barn to a point over the cistern, and when she reached the sleepers of the floor over the cistern they gave way, being very much decayed and impaired by age, and the cow fell into the cistern “ carrying down with it three sleepers, and the plank under said cow also broke and said cow fell down into the cistern, and when found 'had one horn loosened and her skull broken.” “ The hole made in the floor by the cow breaking through was about three feet across, but with irregular edges.”

The referee finds, viz.: “ That about three o’clock in the afternoon of January 3, 1892, the plaintiff, George Hollenbeck, wont to the barn so occupied by him as aforesaid, and saw some cattle tracks on the outside, by the barn door, and then went into the barn through the small door, but discovered no cattle there, and then went into the granary, which was a little northwest of the place where the break in the floor occurred, and got some feed for his hens and returned to the front part of the barn and there threw it down. Plaintiff then started to go where his cow was in the lean-to or addition to see if she was loose, and in going in that direction and upon that errand fell into the cistern through the hole made by defendant’s cow when she fell through the floor. * * * Plaintiff did not observe any break or defect in the floor, and did not know of any break or defect therein until after he had fallen into said cistern.” It is found that the plaintiff sustained some injuries about the shoulders and neck by the fall. It is found that the plaintiff at the time of the said injuries, and for “some years previous thereto, knew that there was a cistern under said barn, * ’ * * and was informed and knew that a board covering had been placed over it about two years previous to the time of the injury, butnever had been under the barn and did not know the exact place where said cistern under said barn was located.” And the referee finds:

“ Plaintiff had not, at the time of said injury, nor at any time previous thereto, any knowledge or information that said barn floor or the timbers upon which it rested were weak and rotten or in any way defective and unsafe. An examination of said sill and sleepers made under the barn previous to said injury would have revealed the weakness and rottenness subsequently found to exist, but plaintiff, having no knowledge of such weakness and rottenness previous to the injury, made no examination of them.”

The referee found : There was no evidence given upon the trial showing, or tending to show, that defendant’s cow assaulted plaintiff’s person, nor that she in any manner injured his person by coming in contact with it.” “ That there was no evidence given upon the trial showing or tending to show that defendant’s cow was vicious, unruly or ugly.” “ That in the keeping and care of his cow defendant has in all things exercised proper care, and when his said cow escaped from the yard, as stated in the fourth finding of fact, it was without any fault or negligence on his part.”

In the conclusions of law the referee stated that the plaintiff was not bound to maintain a fence upon the highway; that his failure to fence the street or highway does not prevent a recovery in an action of trespass where the entry upon his premises was from the street, and that the entry of the defendant’s cow upon the promises of the plaintiff from the highway into his barn and the breaking down of the sills, sleepers and floor “is a trespass for which the plaintiff in this action is entitled to recover against the defendant herein one dollar.” He also found, as matter of law, “ that the plaintiff is not guilty of any contributory negligence or want of care that would debar him from a recovery in this action, for the injury to his person caused by falling into the cistern, as stated in the sixth finding of fact herein.” “ That the plaintiff in this action cannot recover of the defendant herein any damage for the injury to his person caused by his falling into the cistern, as stated in the sixth finding of fact. That the injury to plaintiff’s person caused by his falling into the cistern is not proximately connected with the trespass of the defendant’s cow, and any damage resulting to plaintiff’s person from such fall is remote and consequential, and no recovery therefor can be had in this action. That the defendant is not chargeable in this action with any want of care or prudence in taking care of his cow. That the injury suffered by plaintiff by falling into the cistern was not such as would usually and probably result from the escape and subsequent trespass of defendant’s cow, and was not such an injury as might reasonably have been anticipated from such trespass. That the injury to plaintiff’s person caused by falling into the cistern was not such as defendant could, with the exercise of ordinary care, prudence and foresight, have guarded against.” Ample evidence was given to sustain the findings of fact made by the learned referee. It is now insisted, in behalf of the appellant, by his learned counsel, and, we think, correctly, that the defendant is answerable “ for his own trespass, and also for that of his domestic animals.” (Dunckle v. Kocker, 11 Barb. 381; Fairchild v. Bentley, 30 id. 155; Van Leuven v. Lyke, 1 Comst. 515 ; Dickson v. McCoy, 39 N. Y. 400 ; Wells v. Howell, 19 Johns. 385.)

(2) 'It is contended by the appellant’s counsel that inasmuch as the cow made the hole while trespassing upon the plaintiff’s premises, into which the plaintiff fell and received the injuries complained of, that he can recover for such injuries; and it is contended “ that the damages were the immediate and natural consequence of the trespass * * * and that the defendant is liable for the entire damages sustained by the plaintiff,” To support his contention he asks our attention to several authorities to which we will allude.

In Scott v. Shepherd (2 W. Black. 892) it appeared that the defendant had thrown a lighted squib into a market house, where there was a large crowd, and it fell on a stand, and it was thrown therefrom to another stand, where it. was thrown by another person, and it struck the plaintiff and put out his eye. While the judgment was pronounced in favor of the plaintiff, it was upon differing views by the members of the court, the majority of the court seeming to be of the opinion that the facts and circumstances were such as to indicate that the plaintiff sustained the injuries complained of by reason of the wrongful act of the defendant, which was to be treated as continuing through the entire motion of the squib, and that the consequences were to be visited upon the defendant, the same as though the squib had been discharged against a board or hard substance, and bounded back and occasioned the injuries sustained by the plaintiff. The case differs essentially from the one in hand.

In Guille v. Swan (19 Johns. 381) it appears that the defendant had ascended in a balloon and in his descent lie became entangled and his safety endangered, and at his invitation the crowd gathered upon the plaintiff’s garden, and it was held the plaintiff could recover because it appeared that the damages which the plaintiff suffered were the direct result of the acts of the defendant.

Vendenburgh v. Truax (4 Den. 464) was the case of a defendant chasing a boy into the plaintiff’s store, and the boy ran against a faucet in a wine cask which caused a wastage of the wine. The defendant was engaged in an illegal and mischievous act, and in the course of the opinion delivered by Bronson, Oh. J., he said that under such circumstances a party is liable for all the consequences which may directly and naturally result from his conduct.” That case differs from the one before us.

In Jeffrey v. Bigelow (13 Wend. 518), which was the case of the sale of diseased sheep, the plaintiff was allowed to recover damages which he sustained, not only by reason of the impaired value of the sheep purchased, but the damages that were brought directly to the plaintiff by reason of the disease being communicated to his other ■flock, the damages being traceable directly to the wrongful act of ■the defendant.

In St. Peter v. Denison (58 N. Y. 416) it appeared that the wrongful act of the defendant consisted in blasting stone and earth by means of a blast while executing a contract on the Erie canal for the State. We see nothing in the case which supports the contention of the appellant.

In Lowery v. Manhattan R. R. Co. (99 N. Y. 158) the action was for the negligence of the defendant in dropping coals of fire, causing the horse to become unmanageable, which reaching the street injured the plaintiff; and it was held that so long as the injury was chargeable to the original wrongful act of the defendant it was liable, and the liability in that case was upon the ground “ that the action of the driver in view of the exigency of the occasion, whether prudent or otherwise, might be considered as a continuation of the original act, and so that act was the proximate, not the remote cause of the injury; also, that the injury was a natural and probable consequence of the defendant’s negligence.” We see nothing in the ease which supports the contention of the appellant.

In Thomas v. Winchester (2 Seld. 397) it was held that a dealer in drugs and medicines who carelessly labels a deadly poison as a harmless medicine was liable “ out of the duty which the law imposes upon him to avoid acts in their nature dangerous to the lives of others,” and the right of recovery was made to rest upon the defendant’s negligence; and in the course of the opiuion it was said, viz.: So highly does the law value human life that it admits of no justification wherever life has been lost, and the carelessness or negligence of one person has contributed to the death of another.” (See p. 409.)

In the case in hand there is no finding of negligence on the part of the defendant; on the contrary, the circumstances disclosed in the evidence, as well as the finding made by the referee, indicate that the defendant rvas in no way guilty of negligence in producing the aperture in the floor through which the plaintiff fell and received the injuries complained of. In many respects the case here resembles Harvey v. Dunlop (Lalor Supp. H. & D. 193), in which case it was held no recovery could be had.

In Bullock v. Babcock (3 Wend. 391) the injuries sustained were by reason of one boy shooting with a bow and arrow and inflicting an injury upon the plaintiff, and although it was said in that case that the plaintiff could recover, Makcv, J., who delivered the opinion, said: “ It is decided in the case of Waheman v. Robinson (1 Bing. 213), if the accident happen entirely without the fault of the defendant, or any blame being imputable to him, an action will not Lie.”

In volume 1 of Sedgwick on Damages (8th ed. § 113) it is said that the law does not and cannot give complete compensation for the injury sustained; it refuses to take into consideration any damages remotely resulting from the act complained of; ” and in section 116 the author adds: “ The question whether an item of loss is or is not a proximate consequence of the wrong is in each case a question of fact.” This latter rule seems to have been approved in Reiper v. Nichols (31 Hun, 495), and in Milwauhee Railway Co. v. Kelogg (94 U. S. 474). After an assertion of the difficulty found in the application of the rule, Strong, J., says, at page 475 : “ But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is tlie proximate cause of the injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” The rule as just quoted was reasserted in Scheffer v. Railroad Co. (105 U. S. 249), which was a case where a passenger was injured in a collision on a railroad and 1ns mind became disordered, and he afterward committed suicide some eight months after the injuries were received, and the court held that, as his own act was the proximate cause of his death, no recovery could be had, and the pivotal point was mentioned near the close of the opinion in the following language: “ The suicide of Scheffer was not a result naturally and reasonably to be expected from the injury received on the train. It was not the natural and probable consequence, and could not have been foreseen in the light of the circumstances attending the negligence of the officers in charge of the train. His insanity, as a cause of his final destruction, was as little the natural or probable result of the negligence of the railway officials as his suicide, and each of these are casual or unexpected causes intervening between the act which injured him and his death.”

In Cleveland v. N. J. S. Co. (125 N. Y. 299) it was held that a recovery could not be had for the accident which occurred, and it was said “ that the accident was an extraordinary one that could not reasonably have been anticipatéd.”

In Gibney v. The State (137 N. Y. 1), in considering the question of whether damages sought to be recovered in that case were proximate, Andrews, Oh. J., laid stress upon “ the fact that such an accident as that which befell the child might reasonably have been anticipated as the result of the condition of the bridge, and the further consideration that a parent or other person seeing the child in the water would incur every reasonable hazard for its rescue.” No similar facts are found in the case before us; on the contrary, the facts and circumstances arising in the case in hand strongly indicate that no human foresight would apprehend that any such result would follow, or that the defendant at the time he led his cow out of the barn at one o’clock and placed her securely in his yard adjacent to his barn could foresee that in some unexpected way the gate to his yard would be opened, and the cow pass off his premises down the street, and enter the door of the barn of the plaintiff, if found open, and go into the barn across the floor over a cistern under the floor, and that the floor over the cistern would be so much decayed that it would fall in the manner in which the evidence discloses it did, and leave an aperture which would be subsequently visited by the plaintiff, who, without giving full attention to his movements, would fall through the floor into the cistern, and receive the injuries of which lie complains in this action. We think the damages sustained by the plaintiff were not the proximate result of any wrongful act of the defendant, and that they were too remote, and that the learned referee properly refused to award damages to the plaintiff sustained in consequence of the fall into the cistern^/ The conclusions reached by the learned referee are approved, and the judgment entered thereon should be affirmed.

Martin and Merwin, JJ., concurred.

Judgment affirmed, with costs.


text:
    John O. Trolan, Appellant, v. Leroy S. Rogers, Respondent.

      Will — suspension of the poioer of alienation of real estate ■— the husband of a woman* owning an estate in remainder is entitled to an estate by the curtesy.

    A decedent’s will provided, among other things, as follows :
    “I also hereby give, bequeath and devise the use and enjoyment of the rest, residue and remainder of my real estate and personal estate of every name, kind and description whatsoever to my said wife Hannah, to have, possess, hold and enjoy the same during her natural life, and after her decease to go and to be divided equally between my son Julius and my daughter Julia, to have, possess and enjoy the same during their and each of their natural lives, and after their decease to their children and heirs at law in fee simple ; but if my son Julius or my daughter Julia should die before the decease of my said wife, then and in that case, their children and heirs at law to take and hold what their parent if living would be entitled to under this my will.”

      Meld, that the intention of the testator was to give to his widow a life estate in his property, and that upon her death it should go to his son and daughter, who should each have the use of one-half thereof during life, and that upon the close of the life of the testator’s son his half should go to his children, and upon the close of the life of the testator’s daughter her half should go to her children;

      That there was no unlawful suspension of the power of alienation of the real estate, as each one of the shares was separately disposed of, and, therefore, the provision in question was to be considered as if a disposition had been made of the estate in an entirety.
    When a married woman is entitled to an estate in fee in remainder in certain real estate after the termination of two life estates therein, and such two life estates terminate during her coverture, she obtains an absolute estate in such premises during her life, and upon her death intestate her husband is entitled to an estate by the curtesy therein.
    Appeal by the plaintiff, John C. Troian, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 28th-day of March, 1893, upon the verdict of a jury rendered by direction of the court, after a trial at the Jefferson Circuit, dismissing the plaintiff’s complaint upon the merits, with notice of an intention to bring up for review on such appeal an order entered in said clerk’s office on the 13th day of March, 1893, denying the plaintiff’s motion for a new trial.

      John O. Trolcm, in person, and Henry Purcell, for the appellant.

      Watson M. Rogers, for the respondent.
   Hardin, P. J.:

"William Gill on the 2d of January, 185 Y, died testate, leaving his widow Hannah, his daughter Julia, and his son Julius him surviving. He left a will containing the following clause, viz.: “I also hereby give, bequeath and devise the use and enjoyment of the rest, residue and remainder of my real estate and personal estate of every name, kind and description whatsoever to my said wife Hannah, to have, possess, hold and enjoy the same during her natural life, and after her decease to go and to be divided equally between my son Julius and my daughter Julia, to have, possess and enjoy the same •during their and each of their natural lives, and after their decease to their children and heirs at law in fee simple ; but if my son Julius or my daughter Julia should die before the decease of my said wife, then and in that case, their children and heirs at law to take and hold what their parent if living would be entitled to under this my will.” TTis will was duly admitted to probate by the surrogate •of Jefferson county. He was the owner in fee of the lands mentioned in the complaint.

Subsequent to tlie probate of tlie will, and on the 23d of „May, 1857, the widow and the two children executed quit-claim deeds to effectuate a division or partition of the testator’s real property. Of the lands covered by the deed executed by tlie widow and son to the daughter Julia, she conveyed April 8, 1875, the lands mentioned in tlie complaint to tlie defendant, in consideration of $700, which deed was put on record, and defendant entered into possession of the lands so conveyed to him. Subsequently, on May 21, 1881, the daughter Julia died intestate, leaving" her surviving four children, and Ada E., one of them, was married May 20, 1875, to the plaintiff, and she died February 2, 1884, leaving her surviving two children, the issue of such marriage, to the plaintiff. The plaintiff claims that his wife Ada, upon tlie death of her mother, was entitled to one-fourth of the property which was set off to the mother under the will of William Gill, deceased. We think the intention of the testator was to give to his widow a life estate in his property, and that upon her death it was his intention that his son and daughter should each have the use of one-half thereof during life. The words found in the will, viz.: “To go and to be divided equally between my son Julius and my daughter Julia, to have, possess and enjoy tlie same during their and each of their natural lives,” seem appropriate to evince an intention that there should be a division between Julius and Julia of the estate, and that each should have tlie use during life of one-half of the estate, and that upon tlie close of the life of the son his half should go to his children, and that upon the close of Julia’s life her half should pass in fee to her children. The will provides in effect that the widow shall enjoy tlie use of the estate during her natural life, and that thereafter the son shall have the use of one-half for his life and the daughter one-half for and during her natural life. We think there was no unlawful suspension of the title to the real estate. (Everitt v. Everitt, 29 N. Y. 39 ; Moore v. Hegeman, 72 id. 377; Monarque v. Monarque, 80 id. 320: Wells v. Wells, 88 id. 323; Matter of Blaker, 12 N. Y. St. Repr. 741.) “Each one of these shares is separately disposed of, and, therefore, the provision in question is to be considered as if a disposition had been made of an estate in an entirety.” The whole estate is bound during the life of the widow, and after her death each of the testator’s children takes in severalty one-lialf of the estate for life, and the fee having vested in the grandchildren at testator’s death the possession of such half passes at the close of the lives of the life tenants to the children of the son or daughter so that they take “ what their parent, if living, would be entitled to.” (Schermerhorn v. Gottvng, 131 N. Y„ 55.) The testator expressly provides that his son and daughter shall have the use during his or her natural life of the one-lialf, and that thereafter the children and heirs at law shall take “ in fee simple.” The daughter Julia, having only a life estate by the terms of the will, could convey that and no more to the defendant. At the close of her life her children became entitled to the possession of the one-half of the testator’s estate'of which she was given the use for life. As her death took place during the coverture of the daughter Ada she was entitled to immediate possession of an undivided interest in the estate of the testator, and that right accrued to her during coverture. By the death of Hannah, the testator’s widow, on October 20) 1875, her life estate terminated. Inasmuch as both life tenants died during coverture of plaintiff’s wife the daughter Ada had an absolute estate during her lifetime. Her seizure was perfect at the close of her mother’s life, which occurred in 1881. (1 Washb. on Real Prop. 160, § 28; Dunham v. Osborn, 1 Paige, 634; Matter of Cregier, 1 Barb. Ch. 598; Tayloe v. Gould, 10 Barb. 401; Durando v. Durando, 23 N. Y. 331; Ferguson v. Tweedy, 43 id. 543; Hurd v. Cass, 9 Barb. 367; Clark v. Clark, 24 id. 581; Hatfield v. Sneden, 54 N. Y. 280.) The possession of the defendant under his deed taken April 8, 1875, has not been such as to ripen into a title, and the case does not fall within the rule laid down hi Baker v. Oakwood (49 Hun, 416; 3 N. Y. Supp. 570).

When the trial was near its close it seems the letter of plaintiff to defendant had not been produced and read to the court, though it was assumed that such letter had been sent before suit brought (and it now appears in the case), and the plaintiff requested the court to hold “if it appears from the letter referred to that a sufficient demand was made of the defendant for possession prior to the commencement of the action plaintiff is entitled to maintain the suit as a tenant in common after an ouster or eviction, defendant claiming to hold adversely to plaintiff, his co-tenant.” This request was overruled and an exception taken. The complaint was amended so that it averred a demand by the plaintiff of possession of the premises before commencement of the action and a refusal by the plaintiff. 'When the ruling was made it appeared that the defendant had by his answer denied the plaintiff’s title and claimed to be in possession adversely to the plaintiff’s title or interest, claiming to hold the premises as his own, and that the defendant wholly denied the title and right of the plaintiff. Ilis acts and declarations are inconsistent with the supposition that he acquired and now holds possession of the premises as tenant in common with the plaintiff.” (Edwards v. Bishop, 4 N. Y. 65; Valentine v. Northrop, 12 Wend. 495 ; Code Civ. Proc. §§ 1500, 1515 ; Earnshaw v. Myers, 17 N. Y. St. Repr. 703.) The views already stated lead us to order a new trial.

Martin and Mkrwin, JJ., concurred.

J udgment and order reversed and a new trial ordered, with costs to abide the event.


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    Margaret T. Eldredge, Respondent, v. Anne E. Eldredge and Another, Appellants, Impleaded with Hallam Eldredge, Defendant.

      A wife’s damages for the loss of her husband’s society, etc. — proof of acts of the husband, and the defendants prior to his marriage- — -inadmissible evidence, presumed to have influenced the verdict, although the judge directed otherwise.

    To enable a wife to maintain an action to recover damages for the loss of the society, affections and companionship of her husband, it is incumbent upon her to show that the defendants in such action wrongfully persuaded and enti&ed him from her, and thus deprived her of his society by means of their tortious acts.

      Semble, that in an action brought by a wife to recover damages for the loss of her husband’s society, affections and companionship proof of the acts of the husband and the defendants six months prior to the plaintiff’s marriage is inadmissible in evidence.
    When illegal evidence, properly excepted to, has been received upon the trial of an action, it must be shown that the verdict rendered therein was not affected thereby or the judgment will be reversed; and if the evidence may have affected the result the error cannot be disregarded. It does not follow that impressions obtained by a jury will have no effect upon their verdict because the judge in his charge directs the jury to disregard the evidence, erroneously admitted, which was calculated to produce such impression.

      Appeal by the defendants, Anne E. Eldredge and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 25th day of November, 1892, ujDon the verdict of a jury rendered after atrial at the Broome Circuit, and also from an order entered in said clerk’s office on the 18th day of October, 1893, denying the defendants’ motion for a new trial made upon a case and exceptions, and vacating the order theretofore entered staying the plaintiff’s proceedings.
    Plaintiff in her complaint alleges that “ the said defendants have schemed, concerted and acted together to separate plaintiff from her said husband; to induce such husband not to live with plaintiff; to alienate his affections from plaintiff and deprive her of his comfort, aid and society, and to alienate from her the affections of her said husband, and to deprive her of the benefits and enjoyments of his society.” Also, that “ the said defendants persuaded and induced plaintiff’s said husband to abandon and separate from her and to live with the said defendants at their home, and there, without the consent of this plaintiff, and against her wishes, harbored her said husband and aided and abetted him in separating himself from this plaintiff; that on or about the 11th day of August, 1891, the said James Eldredge abandoned the plaintiff and went to live with the said defendants, at whose home he has ever since been unlawfully entertained and harbored, and during all of which time the plaintiff was, and is still, deprived of his society, assistance and service.” That “the said defendants unlawfully and wrongfully persuaded and induced plaintiff’s husband to abandon and separate himself from her as aforesaid, and have alienated and deprived the plaintiff of the affections of her said husband, and have ever since unlawfully entertained and harbored, and are now unlawfully and wrongfully entertaining and harboring, her said husband.”
    The answers of the defendants admit the marriage of the plaintiff to James C. Eldredge on January Y, 1891, and contained denials of the complaint.

      Edward, E. Clark, for the appellants.

      Ed/rrmnd O' Connor, for the respondent.
   Hardin, P. J.:

Plaintiff, in 1887, became acquainted with James Eldredge, and received his attentions from time to time (which were interrupted for a period of about six months), and on the evening of January 7, 1891, she accompanied him to the residence of a clergyman in the city of Binghamton and they were married, and, on that evening, they separated, to some extent keeping their marriage a secret, she returning to her mother’s house and he returning to his father’s house; subsequently she disclosed her marriage to her mother, and, shortly after returning to his father’s house, he disclosed the marriage to his father. Subsequently, and on the twenty-eighth day of January, the plaintiff and her husband went to live in rooms of the boarding house of Mrs. Goodenougli in the city, where they remained until the sixteenth of March, when the husband made some arrangement to go south with a view of selling cigars, and upon his return he made an arrangement with a Mrs. Blisli to board himself and wife, with whom they remained from the second of May until the fifth of June, when the plaintiff again returned to her mother’s house and has remained there ever since, being visited occasionally by her husband.

In August the husband of the plaintiff went to Sumpter, where he had an aunt and where he had expectations of making a settlement in business, and remained there for several weeks. "While he was thus absent this action was commenced on the 1st of September, 1891, against his father,- mother and sister. Plaintiff’s right of recovery is based upon the alleged loss of the society) affections and companionship of her husband (Bennett v. Bennett, 116 N. Y. 584), and to maintain the action it was incumbent upon her to show that the defendants had wrongfully persuaded and enticed him from her and thus deprived her of his society by means of their ‘£ tortious act.” (Heermance v. James, 47 Barb. 120 ; Jaynes v. Jaynes, 39 Hun, 40; Bennett v. Bennett, 116 N. Y. 584.) For some time prior to the plaintiff’s marriage the husband had been addicted to the use of intoxicating drinks; his health was very much impaired, and at times he was rendered entirely unfit for business, and the knowledge of such habits and the condition of health was communicated to the plaintiff and to her mother prior to the man riage; his habits continued very objectionable, he, at intervals, being accustomed to the use of intoxicating drinks to an excess, which condition seemed to have continued to a greater or less extent down to the time of the commencement of this action. His habits were such that they seemed to have occasioned his father and mother and sister a great deal of trouble prior to the marriage, and occasioned them more or less annoyance and perplexities after the marriage was contracted, and doubtless the acts and conduct of the defendants were more or less influenced by the condition of his health and habits.

"When Mrs. Shannon, mother of the plaintiff, was upon the stand, she said that prior to the marriage she used to meet these defendants occasionally “and they were always very nice to me;” thereupon the counsel for the plaintiff asked her this question: “ Q. Since the marriage have you frequently met them ? ” The answer was, “ Yes, sir.” This was objected to and received and an exception taken, and thereupon the plaintiff’s counsel put the following question: “ Q. How since the marriage when you met them? A. They never notice me since the marriage.” This was objected to as irrelevant, and the court remarked: “ I will receive it as one of the facts in the case.” An exception was taken. It is not apparent that this evidence was material to the issue presented by the plaintiff.

The plaintiff was allowed to give evidence of the power of attorney executed by James Eldredge to his mother on July 15,1890, and also a deed executed by the mother to her husband, the father of James, on the 25th of July, 1890. Each of these papers were objected to as incompetent and inadmissible, and the objections were overruled and an exception taken. It is difficult to see how the acts of James and of his mother and father, transpiring in 1890, six months before his marriage with the plaintiff, tend to support the allegations of the complaint.

Thereafter the plaintiff offered in evidence the original complaint in an action brought by James, the husband, against these defendants and his uncle, who had created a trust in favor of the defendants. When this complaint was offered it was objected to as not competent, and as no proof of the facts stated in the papers. Thereupon the plaintiff’s counsel observed: “I do not offer it as proof of the facts stated, but as proof that those claims were made to the respective parties.” Thereupon the court remarked: “ I will receive it,” and an exception was taken. After tliat ruling tlie summons and complaint, which were verified by Janies on the 18th of July, 1891, in the action of James C. Eldredge against Ilallam Eldredge, Anne E. Eldredge, Mary E. Withington and James Eldredge, were received and read in evidence. Upon an inspection of the complaint it is found to contain many allegations that were calculated to affect the minds of the jury upon the vital and critical question at issue between the parties in this action. The respondent’s counsel attempts to escape the criticism upon that ruling by an assertion that “The court particularly cautioned the jury upon that question at defendants’ request.” Upon turning to the charge of the learned judge upon the subject, we find him saying, viz.: “A suit was commenced by this young man to set aside the power of attorney and the deed that his mother gave, and a complaint was made and signed by him in that action, which has been read to you. Now, gentlemen, there were a good many statements of facts in that action; for instance, it was stated therein that they had said to him that unless he left his wife he could not have his property. Now, gentlemen, that statement is not evidence to you in this case. It is a pity that it was read to you, for the fear that it may influence you, and I charge you to give no credit whatever to the statement. It was answered by the sworn answer of the defendants that it was not true. If the plaintiff wanted the benefit of the young man as to what his parents had ever said to him, she should have put it before you by his sworn evidence under oath and on the trial of this case. What he said there, with no opportunity * * * to cross-examine him, with no opportunity for you to look him in the face and see whether it was true or false, has not the slightest effect, and nobody of good judgment would consider it for a moment. Hence, I ask you to disregard it entirely. All that pleading was for was to show the fact that he had commenced a suit in which he made certain charges, in which he claims certain things against his mother, and the reasons that he claimed them, and the facts upon which he claimed them. Perhaps they should not have been put before you, and I ask you to disregard entirely anything you can remember of that complaint, except the fact that there was such an action brought against the parents.”

In Erben v. Lorillard (19 N. Y. 302) Grover, J"., said : “ When illegal evidence, properly excepted to, has been received during a trial it must be shown that the verdict was not affected by it, or the judgment will be reversed. If the evidence may have affected the verdict the error cannot be disregarded. * * * It does not follow that impressions thus obtained will have no effect, although the judge directs them to disregard the evidence.” This rule is reasserted in Wersebe v. Broadway & Seventh Ave. R. Co. (1 Misc. Rep. 474), and several cases are there cited to the same effect. After the plaintiff had testified that she received a letter September 5,1891, which her husband wrote and sent her from Sumpter, which contained a twenty-five dollar check, she was asked by her counsel, viz.: “ For what purpose did you bring and show that letter to me? [Objected to as immaterial, incompetent and calling for a conclusion.]” The objection was overruled and an exception was taken, • and the witness answered : I thought it would be for my interest.” Thereafter the plaintiff’s counsel offered in evidence the letter of September5,1891, which was objected to as incompetent and immaterial, and as irrelevant and hearsay, and not binding upon these defendants. The objections were overruled and an exception taken, and the letter written by the plaintiff’s husband was read. Thereafter the plaintiff’s counsel offered a replying letter, which had been prepared under his supervision and sent by the plaintiff to her husband, which bore date September 7, 1891, which letter contains many self-serving declarations and statements made by the plaintiff. Thereupon the plaintiff’s counsel exhibited to the witness a letter of September tenth, and asked her if that was a letter which she received in reply to the one of the seventh; she asserted that it was, and thereupon the letter of September tenth was received in evidence.

During the course of the trial the defendants gave considerable evidence tending very strongly to negative the allegations of the complaint. The jury have disregarded that evidence and followed the testimony given by the plaintiff and her witnesses, and in effect found that the defendants wrongfully persuaded, influenced and induced an alienation of the affections of the husband of the plaintiff from her, and thus wrongfully deprived her of his society. "With the conflict thus shown in the evidence we are not prepared to say that the rulings which we have pointed out, and the evidence so received against the defendants’ objections and exceptions, worked no harm to the defendants. "We are of the opinion that the appellants are entitled to a new trial by reason of the errors in the rulings, to which reference has been made. (Winsmore v. Greenbank, Willes Rep. 577; Boues v. Steffens, 16 N. Y. Supp. 819.)

Martin and Merwin, JJ., concurred.

Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.


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    Angeline Bettinger, Respondent, v. Betty E. Van Alstine and Others, Appellants.

      Action to set aside a deed— evidence sufficient to justify a judgment for the plaintiff therein.

    A widow of seventy-six years of age, who was visiting her daughter, was taken to ride hy her son-in-law, with a view to seeing a monument in a cemetery, on which occasion she stopped at the house of one Barker, and while there two deeds were prepared and executed by her.
    Upon the trial of an action brought by her to have such deeds adjudged to be void, the trial judge found that on the 25th day of September, 1891, the plaintiff executed and acknowledged two deeds, purporting to convey all of her real estate, in one of which Silas F. Bettinger was named as grantee, in which a portion of said real estate was described, and in the other of which Edgar G. Bettinger and Betty E. Yan Alstine were named as grantees, in which the balance of said real estate ivas described; such deeds were drawn by and executed before Schuyler M. Barker, who thereafter caused them to be delivered to one Yan Alstine, who caused them to be recorded in the office of the elerk of Jefferson county. That the persons named in said deeds as grantees were not, nor was either of them, present at the time the same were executed and left with Barker, nor ivas any person then present representing any of them. That said deeds were without any valuable consideration, and that at the time they were left with Barker the plaintiff did not intend, by their execution and by so leaving them, to convey a present irrevocable title to the grantees therein named to the lands therein described; nor did she intend thereby to deprive herself of the power to withdraw or alter them at pleasure; nor had she since so intended; nor did she ever irrevocably deliver said deeds to the grantees therein named, or to their heirs, or to any person for them.
    These deeds each recited a consideration of one dollar, and contained a reservation of the use of the property durru^ *Rr life of the plaintiff.

      Judgment was awarded in favor of the plaintiff that such deeds be surrendered . and delivered up to be canceled of record.
    After the execution and acknowledgment of such deeds, the grantor had a conversation with Barker in which she proposed to leave them with him, and she stated that she might want to make a change, and that she would be at his place again. The plaintiff testified in regard to such conversation as follows;

      “ I may want to make a change. I shall be here again. And I said to him, ‘ Can’t I V And he said, ‘ Yes, any time you are a mind to; ’ that if he wasn’t there when I came his wife could do the business about as well as he could. I then said to .him: ‘Can’t I leave them, and can’t I change it if I want to ?’ He said, ‘Yes.’ And I said, ‘ I will leave these here; I trust youto keep them. I don’t want you to let them go out of the house.’ He said, ‘ They shant go out of my house nor out of my hands.’ I said, ‘Keep them right here. I don’t want you to let them go.’ I never ordered him to give it up to any one. I changed my mind later, because I asked if I couldn’t change it. He told me I could, and he promised to me it shouldn’t go out of his hands nor out of his house. I did tell him to keep it there until I came again; that I might want to alter it.”
    Barker testified that the plaintiff said to him: “Mr. Barker, you take these papers and keep these in your possession until my death, and then you deliver Silas’ deed to him and the other deed to Betty and Edgar. I think there was something said about recording them. After I had drawn these papers she directed me to keep the papers in my hands until her decease, and then to deliver Silas’ deed to Silas and the other deed to Betty and Edgar. Deeds were then talked about. The deeds were talked about there and in that connection. I did not suggest, the plaintiff had directed me, to keep the deeds till her death, and then that I deliver them to the grantees. Plaintiff originated that idea — that I hold the deeds until she died and then deliver them over; that was her suggestion. She said, ‘ I want you to take these papers and keep them, and deliver them to these persons after my death.’ She didn’t deliver the deeds or authorize them to be delivered to the grantees until after her death.”
    Barker’s wife testified that she was present on the occasion when the deeds were prepared, and heard the grantor’s instructions to Mr. Barker. “ She (the plaintiff) told him to keep the deeds in his possession and deliver them to the parties at her death. I heard Mrs. Bettinger tell my husband that she wanted him to keep the papers until after her death, and then to deliver them to Edgar and Betty and Silas.”
    Barker’s son testified that he was present on the occasion when his father drew • the deeds, and he heard the grantor’s statements to his father. “She said to him to have them (the deeds) recorded when it was convenient for him to do so, I think, and for him to keep them in his possession and to deliver them to the persons after she was dead.”

      Meld, that the testimony amply sustained the findings of the trial judge that the plaintiff did not intend to deprive herself of the power of withdrawing or altering such deeds at pleasure, and that she did not irrevocably deliver them to the grantees therein named;

      That the fact that such deeds were recorded, under the circumstances, created at most a presumption of delivery which it was competent for the plaintiff ta overcome hy parol evidence;
    That the Special Term had ample power to remove the cloud upon the plaintiff’s land, and as she had remained in possession thereof she was entitled to the relief granted hy the trial court, authorizing the county clerk to cancel the records of the deeds, and to a judgment to the effect that such deeds were inoperative and invalid to pass title to the grantees therein named.
    Appeal by tbe defendants, Betty E. Van Alstine and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clei’k of the county of Jefferson on the 28th day of August, 1893, upon the decision of the court rendered after a trial at the Jefferson Special Term adjudging two certain deeds to be void, and that the plaintiff is the owner in fee of all the lands therein described.

      John J. Lamoree and James A. Johnson, for the appellants.

      Watson M. Rogers, for the respondent.
   Hardin, P. J.:

On the 25th of August, 1891, George Bettinger, then a resident of Ellisburg, died, leaving him surviving the plaintiff, his widow, and his two sons, Edgar G. Bettinger and Silas E. Bettinger, and his daughter, Betty E. Van Alstine, his only children and heirs at law. He left a last will and testament, which was admitted to probate in the Surrogate’s Court of Jefferson county on the 23d day of November, 1891. By his will he devised all his real estate to the plaintiff. He had been very ill for more than a year previous to his death, and had required and had received close attention, nursing and care from the plaintiff, who became very much exhausted thereby, she being then advanced to the age of some seventy-six years. She resided a few miles from her daughter, and in the early days of September went to the daughter’s house in New Haven, Oswego county. While there considerable conversation was had between the daughter and the mother, as well as the daughter’s husband, in resytect to the future disposition of the property owned by the plaintiff, and on the 25th of September, 1891, the plaintiff was taken to ride with the husband of the daughter with a view of seeing a monument in a cemetery not a great distance from the residence of the daughter, and on that occasion she stopped at the house of S. M. Barker, who had, to a considerable extent, acted as conveyancer in the neighborhood, and while there two deeds were prepared and executed by the plaintiff, covering the lands mentioned in the complaint. The trial judge found, viz.: “ That on the 25th day of September, 1891, the plaintiff executed and acknowledged two deeds, purporting to convey all of said real estate, to wit, one in which Silas F. Bettinger was‘named as grantee, and in which a portion of said real estate was described. * * * The other in which Edgar G. Bettinger and Betty E. Yan Alstine were named as grantees, and in which the balance of said real estate was described. * * * ” He also found, viz.: That said two deeds were drawn by and executed before one Schuyler M. Barker (then a notary public, residing in the county of Oswego); that upon their execution they were left by plaintiff in the possession of said Barker, who thereafter, and about the 21st day of November, 1891, procured the clerk of Oswego county to attach to each his certificate that said Barker was a notary, and. that the name subscribed to the acknowledgment was his genuine signature. Said Barker then caused said deeds to be delivered to one 'William Yan Alstine, who, on the 23d day of said November, caused them to be recorded in the office of the clerk of Jefferson county. * * *” He also found that the persons named in said deeds as grantees were not, nor was either of them, present at the time the same were executed and left with said Barker, nor was any person present acting in^ behalf of or representing them or either of them.” He also found that said deeds were without any valuable consideration.” Also, that at the time said deeds were left with said Barker, the plaintiff did not intend, by their execution and by such leaving, to convey a present irrevocable title to the grantees therein named to the lands there described; nor did she intend thereby to deprive herself of the power to withdraw or alter them at pleasure, nor has she since so intended.” Also, “ that the plaintiff has never irrevocably delivered said deeds to the grantees therein named, nor to their heirs, nor to any person for said grantees or heirs, or either of them.” He also found that the defendants claimed title to the lands under the deeds, and that “ said deeds and the record thereof are a cloud upon plaintiff’s title, and ah apparent conveyance thereof to said grantees.” As conclusions of law lie found, via.: “ That, by the commencement of this action, the plaintiff has recalled said deeds, and revoked any authority given by her to said Schuyler M. Barker with reference thereto. 2. That said deeds did not and do not operate to transfer to the grantees therein named a present title to the plaintiff’s said real estate or any part thereof; ” and he awarded a judgment in favor of the plaintiff that the deeds be surrendered and delivered up to be canceled of record by the clerk of Jefferson county.

Appellants filed and served exceptions to the findings made by the trial judge. The deeds each recite a consideration of one dollar, and each contained a reservation of use of the property during the life of the plaintiff. It appears by the evidence that at the time the deeds were prepared no pecuniary consideration passed to the plaintiff therefor and none has passed to her since.

It seems that after the deeds were executed and acknowledged the plaintiff held a conversation with Barker in which she proposed to leave the papers so executed with him and that she avowed that she might want to make a change and that she would be at his place again, and in detailing that conversation she uses the following language : “ I may want to make a change. I shall be here again. And I said to him, ‘ Can’t I ? ’ And he said, ‘ Yes, any time you are a mind to; ’ that if he wasn’t there when I came his wife could do the business about as well as he could. I then said to him, ‘ Can’t I leave them, and can’t I change it if I want to?’ lie said, ‘Tes.’ And I said, ‘I will leave these here; I trust you to keep them. I don’t want you to let them go out of the house.’ He said, ‘ They shant go out of my house nor out of my hands.’ * * * I said, ‘ Keep them right here. I don’t want you to let them go.’ * * * I never ordered him to give it up to any one. * * * I changed my mind later, because I asked if I couldn’t change it. He told me I could, and he promised to me it shouldn’t go out of his hands nor out of his house * * * I did tell him to keep it there until I same again; that I might want to alter it/’

In the course of the testimony given by Barker as to the execution of the deeds he says that the plaintiff said to him: “ Mr. Barker, you take these papers and keep these in your possession until my death, and then you deliver Silas’ deed to him and the other deed to Betty and Edgar. I think there was something said about recording them.” In the course of his cross-examination he stated : “ After I had drawn these papers she directed me to keep the papers in my hands until her decease, and then to deliver Silas’ deed to Silas and the other deed to Betty and Edgar. Deeds were then talked about. The deeds were talked about there and in that connection.” Again the witness says: “ I did not suggest the plaintiff had directed me to keep the deeds till her death, and then that I deliver them to the-grantees. Plaintiff originated that idea — that I hold the deeds until she died and then deliver them over; that was her suggestion. She said, I want you to take these papers and keep them, and deliver them to these persons after my death.’ ” Again the witness-says : a She didn’t deliver the deeds or authorize them to be delivered to the grantees until after her death.”

In the course of, the testimony of Mrs. Barker she says that she was present on the occasion when the deeds were prepared and heard the plaintiff’s instruction to Mr. Barker, and the witness-adds: “ She told him to keep the deeds in his possession and deliver them to the parties at her death,” and in the course of her cross-examination upon that subject she says: “ I heard Mrs. Bettinger tell my husband that she wanted him to keep the papers, until after her death, and then to deliver them to Edgar and Betty and Silas.”

Willard M. Barker was called as a witness for the defendant, and. he states that he was present on the occasion when his father drew the deeds and he heard the plaintiff’s statement to his father, and he-testifies as follows : She said to him to have them recorded when it was convenient for him to do so, I think, and for him to keep them in his possession and to deliver them to the persons after she was dead.” We think the testimony amply sustains the finding of the trial judge that the plaintiff did not intend to deprive herself of the power to withdraw or alter them at pleasure,” and that she “ has never irrevocably delivered said deeds to the grantees therein named.” (Barnes v. Barnes, 31 N. E. Rep. [Mass.] 319.)

In Eames v. Phipps (12 Johns. 419) it was held that a delivery is essential to the validity of a deed and there can be no delivery without an acceptance by the grantee.

In Jackson v. Dunlap (1 Johns. Cas. 114), where the deed was found in the possession of the grantor at the time of his death, it was held that there was no actual delivery to or acceptance of the deed by the grantee and, therefore, nothing passed by it.

In Jackson v. Perkins (2 Wend. 308) it was held that a person affected by a deed may, at any time, question its validity and show that it was not in fact duly executed or delivered, although it has been approved in the usual form by subscribing witnesses and recorded.

In Roosevelt v. Carow (6 Barb. 195) it was said by Edmonds, J., viz.: “A delivery of a dee'd, to be valid, is such an act of the grantor touching its execution as deprives him of the power of controlling its operation, and confers on the grantee the right to enforce it, even against the will and pleasure of the grantor.”

In Hathaway v. Payne (31 N. Y. 92) it was held that “ Whether a deed executed and not delivered immediately, but handed to a stranger to be delivered to the grantee at a future time, be an escrow or a deed of the grantor presently, depends upon the intent of the parties thereto ; ” and Denio, Ch. J., at page 113, says: In such a case the weight of authority is, that no title passes until the final delivery, and that then, and thereafter, the title is, by relation, deemed to have vested as of the time of the first delivery to the third person.” The same doctrine is stated by Cowen, J., in Tooley v. Dibble (2 Hill, 643).

In Chouteau v. Suydam (21 N. Y. 179) it was held that parol evidence was receivable as to whether there was an effectual delivery or not of a sealed instrument. The same doctrine is stated in Brackett v. Barney (28 N. Y. 340).

In Jennings v. Jennings (23 Wkly. Dig. 457) it appeared that a father executed a deed purporting to convey a farm to the plaintiff, and the next day, after it was signed and acknowledged, it was burned; no valuable consideration passed between the parties, and there was evidence that when the father had executed the deed he handed it to his wife to keep until he told her what to do with it. The next day he told her to destroy it; and it was held by this court that the evidence was insufficient to establish a delivery of the deed to or for the plaintiff at the time of its execution with intent then to vest the title in him, and that if it was intended at the time he executed the deed to vest the title in the plaintiff, still, he liad a right i£'to revoke this inchoate grant,” and that the grantor’s direction that the deed be destroyed amounted to a revocation, and that -the plaintiff, the grantee named in the deed, acquired no title to the land. (Matter of Crawford, 113 N. Y. 565; Martin v. Funk, 75 id. 137.)

Appellants call our attention to Messelback v. Norman (46 Hun, 414). In that case it was said that delivery is essential to the validity of a deed, and that to sign and seal and acknowledge a writing, and keep it in one’s possession, conveys no title, and that there must be some act showing that the grantor intends that it shall take effect; and upon the evidence there given it was finally held that it did not justify a finding that the deed was not delivered. The deed had been delivered to the county clerk, and there was no evidence to show that it was so delivered for any other purpose than for the use of the grantee, and the grantor had carried the deed to a party -who had drawn it to have him take it to the county clerk’s office. We think the case differs very essentially from the one before us. Our .attention is also called to Rathbun v. Rathbun (6 Barb. 98), where it appeared the grantor, for a valuable consideration, executed a deed and delivered it to the clerk of Herkimer county for record and for the use of his father, and without any condition annexed to its delivery; ” and it was held that upon an acceptance by the defendant the deed took effect from the time of such delivery. The ease, we think, is distinguishable from the one before us.

Our attention is also called to Roosevelt v. Carow (6 Barb. 190), in which case it appears that a deed was executed, retained by the grantor in his possession for nearly four years, and until the time of his death, without disclosing its existence; in the meantime he treated the property as his own, and after his death the deed was found in his bureau, and it was held l£ that such deed was void and inoperative as a deed of bargain and sale, for want of a valid delivery ; ” also, held, “ that such deed was not valid or operative as a voluntary settlement.” We think the case does not aid. the appellants.

Our attention is. called to Rose v. Rose (7 Barb. 174), where testimony was given to the effect that at the time of the execution of the deed the testator actually delivered the deed to the plaintiff,” and “ nothing transpired to indicate that the delivery was intended by the parties to be complete.” Ve think the case is not helpful to the defendants.

In Brinckerhoff v. Lawrence (2 Sandf. Ch. 400) it appeared that there were many circumstances in support of the presumption of a delivery of the instrument in such form as to make it valid, and the case did not turn wholly upon the question of whether there had been a delivery or not.

In Crain v. Wright (36 Hun, 74) it was held that the intention of the party at the time of the execution of the deed was a question of fact, and that in that case no condition was attached to the delivery of the deed, and the request made was that it should not be exposed during the lifetime of the party executing it. That case was affirmed by the Court of Appeals (114 N. Y. 307) and, in the course of the opinion delivered in that court upon the subject of whether the conveyance was delivered or not, the court observed t “ This was a question of fact, and the jury found, upon sufficient evidence, and under proper instruction from the court, that the deed was delivered with the intent that it should take effect as a present conveyance of the land. The request of the grantor, that it should be kept secret during her life from all who were not ooliged to know of its existence, was simply to avoid the importunity of the other heirs, and gave her no right to demand a return of the deed or to exercise any control over it. It did not postpone the operation of the instrument until after her death, nor convert the deed into a will. The circumstances warranted the presumption that the conveyance was accepted by the plaintiff, as it was delivered to her husband in trust for her benefit while she was living with him. She was in the house when the deed was prepared and executed, and was present at a conversation shortly before when the grantor announced her intention to convey the property to her. In the absence of proof of express disaffirmance, acceptance will be presumed from these facts.” The fact that the deeds were put upon record under the circumstances disclosed by the evidence at most creates a presumption of delivery which it was competent for the plaintiff to overcome by parol evidence. (Elsey v. Metcalf, 1 Den. 323; Wilsey v. Dennis, 44 Barb. 354; Nottbeck v. Wilks, 4 Abb. Pr. 318 ; Van, Valen v. Schemerhorn, 22 How. Pr. 419, opinion by Balcom, P. J.; Foster v. Beardsley Scythe Co., 47 Barb. 513; Jackson v. Perkins, 2 308; Barnes v. Barnes, supra.)

Having reached the conclusion that the evidence sustains the findings of fact made by the trial judge, we are of the opinion that his conclusions of law therefrom are correct. The Special Term had ample power to remove the cloud upon the plaintiff’s land. She had remained in possession so far as the evidence discloses, and is entitled to the relief granted authorizing the county clerk to cancel the records of the deeds, and to the judgment to the effect that they are inoperative and invalid to pass a title to the grantees named therein. (Fonda v. Sage, 48 N. Y. 173; Valentine v. Richardt, 126 id. 272.)

The judgment must be affirmed, with costs.

Martin and Merwin, JJ., concurred.

Judgment affirmed, with costs.


author: Merwin, J.:

text:
    Mortimer D. Bumpus, Appellant, v. Electa A. Bumpus, Respondent.

      Circumstances surrounding the testator, 'at the time of the execution of a will, consid* ered in the determination of his intention — what provisions create a life estate.

    For the purpose of arriving at the intention of a testator, the circumstances surrounding him when he made his will, such as the situation of his family and the nature and value of his estate, may be considered, not for the purpose of putting new language into the will, but to get out of the language the sense which the testator really meant to embody therein. ’ '
    The following was a clause in a testator’s will:

      “Mrst. I give and bequeath unto my lawful wife, Electa A. Bumpus, the possession and management, to control, use, income, rents and profits for and during her natural life of all my real and personal estate, goods and chattels, wheresoever the same may be and is situated, and of what kind or nature soever, to use the same or to dispose of at her will or pleasure after my decease.”
    FTo other bequests or devises were made by such will, in which the testator’s wife and son were named as “ executors or administrators.”
    It was shown upon the trial of an action brought for the construction of such will that it was drawn by the testator, who was at that time seventy-two years of age, his wife being about sixty-seven. His son, who was his only child, was then married and had one or two children and little or no property, and depended somewhat on his father for support. His father had given him about $2,000 in property about three years before, which had been mainly lost in business. At the testator’s death he was seized of real estate, admitted by the answer to be of the value of $5,000 and found to be worth $3,500, consisting in part of two houses and lots. It appeared from the inventory of the estate that the testator’s personal property amounted to about $4,700. There had been no accounting by the executors nor any settlement of the estate.

      Meld, that the beneficial interest of the testator’s widow under the will was limited to the use, income, rents and profits of the testator’s property for and during her natural life;
    That she has no right to dispose of the fee of the real estate, or to use up the principal of the personal estate remaining after the payment of the testator’s debts and the expenses incurred in the administration of his estate.
    Appeal by tlie plaintiff, Mortimer D. Bumpus, from a judgment of tbe Supreme Court in favor of tbe defendant, entered in tbe office of the clerk of tbe county of Oswego on tbe 27th day of December, 1892, upon tbe decision of the court rendered after a trial at the Oswego Special Term.

      D. A. King, for tbe appellant.

      8. O. Huntwigton, Jr., for tbe respondent.
   Merwin, J.:

This action is brought for the construction of tbe will of Thomas J. Bumpus, who died on tbe 21st day of February, 1891. The plaintiff is tbe sole heir and next of kin of the deceased and tbe defendant is tbe widow. He left a will, which is dated January 20, 1881, and which was duly admitted to probate in the Surfogate’s' Court of Oswego county on March 4,1891, and letters testamentary duly issued to the executors therein named.

The will reads as follows:

“ Know all men by these presents that I Thomas J. Bumpus of the village of Pulaski, in the county of Oswego and State of New York being in my seventy-third year of age considering the uncertainty of this mortal life and being of sound mind and memory do make and publish this my last will and testament in manner and form following.
First. I give and bequeath unto my lawful wife Electa A. Bumpus the possession and management to control use income rents and profits for and during her natural life of all my real and personal estate goods and chattels wheresoever the same may be and is situated and of what kind or nature soever to use the same or to dispose of at her will or pleasure after my decease.
“ And I Thomas J. Bumpus do appoint Electa A. Bumpus my lawful wife and Mortimer Delevan Bumpus my lawful and only son as executors or administrators.
“ I hereby revoke all former wills by me made.
“ In witness whereof I have hereunto set my hand and seal this twentieth day of January in the year of our Lord one thousand eight hundred and eighty-one.
“THOMAS J. BUMPUS [l. s.]”

The attestation clause is in due form and there are two subscribing witnesses, one of whom is the plaintiff.

The claim of the plaintiff is that the interest of the defendant in the property of the estate is limited to a life estate in the income and profits, and that she lias not the right to dispose of the principal of the personal estate or the fee of the real estate, and is not entitled to the possession or custody of the property. The defendant claims that under the will she became the sole and absolute owner' of the estate, upon the theory that a gift of the use during life, with an absolute power of disposition is, in effect, a devise in fee of the real estate and an unqualified bequest of the personal property. It was held by the Special Term that under the will the defendant had the right to the possession and management of the property; that her interest or right in the property was not limited to the income, but that she was entitled to have, use and dispose of any portion of the estate that might be necessary for her support and maintenance; that she has and possesses “ the full and unlimited power and right to sell, assign, convey, dispose of in any manner that she may deem proper at her own will and pleasure (except by last will and testament) any and all of the estate, both real and personal, of which said T. J. Bumpus, her late husband, was the owner at the time of his death, without giving any bond or security in any form in regard to said, or any disposition of said estate to be made by her, or in regard to use, preservation, occupancy or control of the same.”

The main question here is over the effect to be given to the expression, “ to use the same or to dispose M at her will or pleasure after my decease.” Does this refer to the body of the estate, real and personal, or only to the use or income ? It is a question of intention, to be derived from the will itself in the light of such surrounding circumstances as may be properly considered. In Stimson v. Vroman (99 N. Y. 79) it is said that for the purpose of arriving at the intention “ we may consider all the circumstances surrounding the testator when he made the will, such as the situation of his family and the nature and value of his estate, not to put new language into the will, but to get out of the language the sense which the testator really meant to embody therein.” The declarations of the testator on this subject were not competent. (Reynolds v. Robinson, 82 N. Y. 106.)

The will in question was drawn by the testator himself. He was then about seventy-two years old, and his wife was about sixty-seven. The plaintiff was the only child and he was married and had one or two children, and had then little or no property and was dependent somewhat on his father for support. His father had given him 'about $2,000 in property about three years before, which had been mainly lost in business. It does not appear what amount of property the testator had at the time of making his will. At his death there was real estate, in value, as admitted by the answer, of about $5,000, consisting in part of two houses and lots. In the findings the real estate is found to be worth about $3,500. There is personal property, as shown by the inventory filed, to the amount of about $4,700, but it does not appear how much has been or may be used up in the payment of debts and expenses. It does not appear that there has ever been any accounting by the executors or settlement of the estate. The executors as such are not parties to this action.

Looking now to the will, we find that the testator gave to his wife “ the possession and management ” of all his property, for the purpose of enabling her “to control use income rents and profits for and during her natural life.” Having thus placed in her hands during her life the “ use income rents and profits,” he then says, to use the same or to dispose of at her will or pleasure.” The words “ the same ” refer, we think, to the income and profits, and not to the body of the estate. This would indicate that the interest of the defendant was limited to a life estate, without power to dispose of tbe fee of tlie real estate, or use up the principal of the personal estate which would remain after the payment of the debts and the expenses of administration. There is nothing in the surrounding circumstances that authorizes us'to reject this conclusion. The fact that the income may not, in the opinion of the defendant, be sufficient to support her does not affect the question. Nor does a finding, as a question of fact, that the testator intended that his wife might, if necessary, use of the principal, control the matter. What the will shall be construed to mean is a question of law.

It is argued on the part of the defendant that the presumption is that the testator, having undertaken to make a will, meant to dispose finally of all his property, and that this presumption should aid her view of the case. On the other hand, it is argued by the plaintiff that the presumption is against an intention to disinherit the heir, and that this assists his view of the case. These presumptions do not in the present case help us.

A more pertinent suggestion is that the testator, if he had intended to give his wife all his property, or that she should have power to use up the body of the estate for her support if necessary, could have readily said so.

The more natural interpretation of the will as it stands is that the testator intended that his wife, as long as she lived, should have the possession and management of the whole, doing with the income what she pleased, and that at her death the law should regulate the succession.

The decision of the Special Term, so far as it was held that the defendant under the will was entitled to the possession and management of the joroperty, or rather what might remain after the payment of debts and expenses, should not be disturbed. It was also in effect held that the plaintiff had not made a case for taking the property out of the defendant’s hands or requiring her to give security. This finding should not be disturbed, especially in view of the fact that apparently there has been no settlement of the estate or accounting by the executors. The executors as such are not parties, and a judgment here might not conclude the personal representatives of the estate. (Collins v. Hydorn, 135 N. Y. 324.) In Rathbone v. Hooney (58 id. 463) it was held that a judgment against a party sued as an individual is not an estoppel in a subsequent action in which he sues, or is sued, in a representative capacity. The defendant as executrix filed an inventory. If she as executrix does not properly account for the property the plaintiff has a remedy in the proper tribunal.

It follows that the judgment appealed from should be modified by declaring that the beneficiary interest of the defendant under the will is limited to the use; income, rents and profits of the property for and during her natural life, and that she has no right to dispose of the fee of the real estate, or use up the principal of the personal estate, being what may remain after the payment of debts and expenses. The decree should also be modified by striking therefrom the award of costs. As modified the judgment should be affirmed, without costs of the appeal to either party.

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

Judgment modified as stated in the opinion, and as modified affirmed, without costs of appeal to either party.