author: Herrick, J.: Mayham, P. J.

text:
    Edward H. Hawke, Appellant, v. Madison G. Hawke and Others, Respondents. Elizabeth H. Wilson, Respondent, v. Madison G. Hawke and Others, Respondents; Edward H. Hawke, Appellant.

      Action to determine the validity of a will — trial by jury — direction of a verdict —■ proper under Code of Civil Procedure, § 2653a, added by chapter 591 of 1892.
    Section 2653a of tlie Code of Civil Procedure, added thereto by chapter 591 of the Laws of 1892, must be read in connection with other sections of the Code, and also in connection with what existing laws have determined a trial by jury to be, and the words “shall be tried by a jury” therein contained do not mean that a jury of twelve men shall determine all the questions involved in an action brought under the provisions of such section to determine the validity of an alleged last will and testament, but it means a trial by a jury pursuant to existing laws.
    Upon such trial the court may direct a verdict to be rendered by the jury in the same way as in any action specified in sections 968 and 970 of the Code of Civil Procedure.
    Mayham, P. J., dissenting.
    Appeal by Edward H. Hawke, the plaintiff in the first above-entitled action, and one of the defendants in the second above-entitled action, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Saratoga on the 4th day of May, 1894, upon the verdict of a jury, rendered by direction of the court after a trial at the Saratoga Circuit, adjudging that the last will and testament of Edward II. Hawke, deceased, and the codicil thereto, were in all respects valid.

      Jolvn Foley, J. W. Soughton and J. 8. SAmorea/ax, for the appellant.

      Jolvn L. Hervnvng and Gharries E. Patterson, for the respondents.

      Edgar T. Brackett, for Elizabeth H. Wilson.

      Patterson, Buel, Toucey <& Whitimg, for Susie B. Skelding.
   Herrick, J.:

At the close of the evidence, upon the trial of this action, the counsel for the proponents requested “ that the court instruct the jury to find a verdict that the will. and codicil of Edward H. Hawke in evidence are Ms last will and codicil, upon the ground that the record given in evidence establishes the validity of the probate of said will and codicil, and there is not any evidence sufficient to submit to the jury any question as to the due attestation and execution or validity of such will or codicil.”

The court granted the motion. The most serious question involved in this appeal is as to the power of the court in cases of this kind to direct a verdict by the jury.

The action is one brought to determine the validity of the will of Edward H. Hawke, deceased, and is brought under the provisions of section 2653a of the Code of Civil Procedure, added thereto by chapter 591 of the Laws of 1892.

That section provides for the determination of the validity of a will by an action in the Supreme Coui;t and a trial by jury, and, amongst other things, provides as follows:

“ The issue of the pleadings in such action shall be confined to the question of whether the writing produced is, or is not, the last will and codicil of the testator, or either. It shall be tried by a jury and the verdict thereon shall be conclusive as to real or personal property, unless a new trial be granted or the judgment thereon be reversed or vacated.”

For the purposes of this discussion it is unnecessary to quote any other portion of the section.

It is contended that under this section the court has no power to direct a verdict. That the words “ it shall be tried by a jury, and the verdict thereon shall be conclusive,” exclude the court from exercising such power; that it makes the jury absolute, except where a new trial is granted, or the judgment entered upon their verdict is reversed or vacated.

I think this is a misconstruction of the law, and comes from a too literal reading of its provisions; such a construction, followed to its legitimate and logical results, would leave the court with no power upon the trial except to preserve order. The section must be read in connection with other sections of the Code, and also in connection with what existing laws have determined a trial by jury to be, for it seems to me that the Legislature intended to do no more than provide a common-law jury trial, to be governed by the same rules that are applicable to all jury trials at common law.

“ Shall be tried by a jury ” does not mean that a jury of twelve men shall determine all the questions involved, but it means a trial by a jury pursuant to existing laws; that means a jury presided over, advised and directed by a court; the court being the judge of the law, and the jury of the facts.

“ The purpose of a jury trial is, that the experience, intelligence and judgment of twelve men may be availed of to settle disputed questions of fact. The duty of the judge presiding at the trial is the sanie in this class of cases as in others, it is to determine whether a case is presented fit for the deliberation of the jury.” (Johnson v. H. R. R. R. Co., 20 N. Y. 65—70.)

And the preliminary question that arises in all cases tried by jury is, whether the evidence is sufficient for the jury to find a verdict thereon in favor of the party producing it; and that question is a question of law for the court.

The verdict that is to be found by the jury is to be arrived at pursuant to existing laws; and in arriving at their decision, the jurors must be governed by the law of the land, and what that law is, must be determined for them by the court.

It cannot be presumed that the Legislature intended anything but a trial by jury according to existing laws governing trials by jury in ■common-law actions.

The provision in the statute, that the verdict shall be conclusive, is the same as found in section 970 of the Code of Civil Procedure, .and is in fact but a statutory enactment of what has long been the law relating to all trials by jury at common law.

The use of these words in the statute it seems to me was intended, not to exclude the court from any of the powers and functions that it exercises in the trial of jury cases, but rather to emphasize the fact that these actions are to be tried in the same manner that other actions are triable, where, under the Constitution, they must be tried by a jury; and to draw the distinction between cases of this kind and cases in equity that are tried by a jury, where the findings of the jury are simply advisory to the court, to be followed or disregarded as to the court seems best, and which are conclusive upon no one.

They are also undoubtedly used to distinguish the decision arrived at upon such a trial from the decision of the surrogate upon the probate of a will, which is not conclusive, the probate of a will by a surrogate being revokable upon the petition of a party, interested at any time within a year after such probate, and as to real estate, the probate of a will being only presumptive evidence of the matters determined by the surrogate, any party interested having the right to raise the question of the validity of the will in a subsequent action tried before a jury where real estate is involved, notwithstanding such probate.

For these reasons I think that in an action brought under section 2653a of the Code of Civil Procedure, the court may, in a proper case, direct a verdict the same as in an action on a promissory note, or any other action specified in sections 968 and 970 of the Code of Civil Procedure.

Upon the question as to whether there was sufficient evidence produced to warrant the jury in finding a verdict thereon adverse to the validity of the will, a somewhat careful consideration of such evidence satisfies me that the trial court was right in its determination, and I see no occasion for attempting to add anything to the very careful review of the evidence made by such court in directing a verdict.

For these reasons the judgment must be affirmed, with costs.

Putnam, J., concurred.

Mayham, P. J.

(dissenting):

Two grounds of error are urged on this appeal for which it is claimed by the appellant that this judgment should be reversed:

Fi/rst. That the court erred in taking the case from the consideration of the jury and directing a verdict.

Second. That the trial judge erred in excluding certain evidence offered by the appellant on the trial.

Edward H. Hawke died in the city of New York at the residence of his daughter, Elizabeth IT. Wilson, leaving him surviving his children, Edward IT. Hawke, Jr., aged about thirty-five years, Bessie Wilson, aged about thirty-two years, Alice Hawke, aged about twenty-five, and Madison Glenn Hawke, aged about twenty-three years, being all of the children of the deceased, who 'was at the time of his death a widower.

He left an estate consisting of real and personal property valued at about the sum of $225,000. The testator left two instruments in writing purporting to be a will and codicil, the former dated January 15, 1892, and the latter dated January 16, 1892. In and by the will he bequeathed to his son Edward H. TIawke $5,000, to be paid to him by the executor, with a condition that, if lie disputed the will or validity of the same, such legacy should not be paid to him, but the same in that event should be paid to Elizabeth H, Wilson, daughter of deceased.

To the respondent Susan Bristo Skelding the testator by this will gave a legacy of $10,000, and all the rest of his property was by specific demonstrative and general devises and bequests under this will left to the three children of the testator, Genn, Bessie and Alice.

The respondents Alice Hawke and Madison G. Hawke were named as executors, and by the codicil he appointed Bessie Wilson as executrix to act as such only in the event of the death of one of the first-named executors, and without being required to give a bond. The will and codicil were presented to the surrogate of Saratoga county for probate, and on the return day of the citation thereof the appellant Edward H. Hawke, Jr., appeared and filed objections. After the examination of the subscribing witnesses the contestant withdrew his objections and the will and codicil were admitted to probate.

Immediately thereafter the two actions in which this appeal has been taken were commenced. . Issue being duly joined in such actions under the provisions of section 2653a of the Code of Civil Procedure, added in 1892, the cases came on for trial at a Circuit Court held in Saratoga county on the 15th day of April, 1894, before a justice of this court and a jury; a verdict against the plaintiff in the first-named action, and in favor of the plaintiff in the second above-entitled action, was directed by the trial judge, upon which judgments wTere entered, and from which the appellant appeals to this court.

The provisions of section 2653a furnish a method of reviewing the probate of a will which did not exist prior to the amendment of the Code of Civil Procedure in 1892.

By the terms of that added section the questions to be heard and considered are specifically defined as follows:

“ Tbe issue of the pleadings in sucli action shall be confined to the question of whether the writing produced is, or is not, the last will and codicil of the testator, or either. It shall be tried by a jury, and the verdict thereon shall be conclusive as to real or personal property, unless a new trial be granted, or the judgment thereon be reversed or vacated.”

Before the enactment of this provision of the statute there were three methods of reviewing the probate of a will; one by the presentation of a petition by any person interested in the estate of the deceased, within one year after the decree admitting the same to probate, containing allegations against the validity of the will and praying for a revocation of the probate (Code Civ. Proc. §§ 2647, 2648); another by an appeal to the General Term of the Supreme Court from a decree admitting a will to probate (Code, § 2570), and “if the appeal was taken from a decree made upon a petition to .admit a will to probate, or to revoke the probate of a will (this court may) make an order directing the trial by jury of the material questions of fact arising upon the issues between the parties.” Section 2588 of the Code, while it directs that the issues of fact must be tried by a jury, does not provide, as is provided by section 2653a, that the verdict shall be conclusive; yet in The Matter of Booth (13 N. Y. St. Repr. 349), which arose under section 2588, Daniels, J., in discussing the provisions of that section, says : “ The statute has required that the contested facts in the case, where the decree of the surrogate has been set aside in this manner, shall be tried by a jury. By that requirement an effectual trial has been intended. And where for any reason the verdict of a jury is to be set aside, the cases must be submitted to another jury for the hearing and decision of the issues. They are the tribunal selected by the statute for this purpose.”

A will of real estate may also be attacked when the title comes in • question, although the will may have been admitted to probate in Surrogate’s Court. The provisions of section 2653a furnish a new and distinct method of either attacking a will and the probate of the •same, or of confirming the validity of a will, as well of real as of personal estate, or the probate thereof, which is quite unlike either of the original methods of reyiew above referred to.

We are, therefore, compelled to construe this statute largely upon the language of the section itself. The language of this statute, as we have seen from the above quotation, is peculiar, and gives the verdict of a jury in such a case a conclusiveness and effect which does not follow from a verdict in any other case to which our attention has been directed, and while, ordinarily, in a common-law action, questions of fact must be tried' by a jury, and their verdict upon disputed questions of fact will not be interfered with on appeal, yet in cases where the verdict is so manifestly against the weight of evidence as to show, on the part of the jury, passion, prejudice or gross misapprehension, amounting to evidence of fraud, the court may and ought to set it aside for that reason.

But in that class of cases there is no mandate of the statute that the verdict shall be conclusive.

The statute under consideration in this case sharply defines the. issue, by whom it shall be tried, and what effect is to be given to the verdict. The question to be heard is, Whether the writing produced is, or is not, the last will and codicil of the testator, or either.” That question “ shall he hea/rd Toy a jury” and the verdict thereon shall Toe conclusive as td the real and personal property. We are referred to a line of cases by the learned counsel for the respondents which hold that it is the duty of the trial judge to direct a verdict for the defendant in cases where the court would be required to set aside the verdict for the plaintiff for want of evidence to uphold it, or when there is such an overwhelming preponderance of evidence against the plaintiff’s theory as to evince fraud, passion or prejudice on the part of the jury. The soundness of the doctrine of those cases cannot be gainsaid, or their authority questioned.

But it by no means follows, as a corollary from these cases, that the legislature has not, by the enactment of this added section, taken this class of cases out of the operation of the rule above referred to. As bearing up'on that question the learned counsel for the respondents propounds the very pertinent inquiry:

Supposing the contestant had offered no evidence whatever, could it reasonably be contended, then, that the court had no j>ower to direct a verdict ? ”

While this question sharply presents the argument of the learned counsel, it is not necessary that it should be answered in this case, because tbe contestant did in fact produce a mass of testimony, some of wbicli amounted to evidence bearing upon tlie factm/m of tliis will, and was competent to be considered by tlie jury, as it was considered by tlie court, upon tlie question of mental soundness of tlie testator, and also tlie question of undue influence.

These questions were both raised by the issue in the case, and, as the proponents’ side of the issue was prima facie established by probate of the will before the surrog'ate, under the statute, tlie burden rested with the contestant to overcome such prima facie case by evidence.

Within well-settled rules of law the contestant is entitled to every legitimate inference deducible from tlie evidence offered by him before he can be nonsuited or a verdict can be directed against him.

The contestant is, therefore, entitled upon this appeal to the benefit of all the facts which his evidence tends to establish. (Wylie v. Marine Nat. Bank, 61 N. Y. 415-417.)

If this resultant fact to be found from all the evidence in the case, uncontradicted though that evidence may be, were of so doubtful a nature that different and equally intelligent and unbiased men might fairly differ in opinion as to its character, then the jury, under proper instructions from tlie court, should examine the evidence and find the fact which is properly to be inferred therefrom.” (Salt Springs Nat. Bank v. Geo. B. Sloan, 135 N. Y. 371-383.)

In Hastings v. Brooklyn Life Ins. Co. (138 N. Y. 479) O’Brien, J., in discussing the propriety of submitting disputed questions of fact to a jury, uses this language : However improbable the testimony of a witness may appear, who testifies to a fact not in itself impossible, in the ordinary course of events, the credibility, force and effect of such testimony is for the jury.”

In Hart v. Hudson River Bridge Co. (80 N. Y. 622) it was. held, that where, from the circumstances shown from the evidence, inferences are to be drawn which are not certain and incontrovertible, and as to which persons might differ, it is for the jury to decide.

In Powell v. Powell (71 N. Y. 73) the court says: “ It is the province of the juiy not only to pass upon conflicting evidence, but, wlien different inferences may be drawn from evidence or the conduct of parties, to draw the inferences.”

I shall not undertake to repeat here the mass of evidence offered by the contestant in this action, which was received by the court at the trial, from which it is claimed by him that inferences might be legitimately drawn that the testator’s mind was impaired, and also that he was the subject of undue influence.

The evidence from which it is claimed that the testator’s intellect was impaired consisted mainly of changes noticed and sworn to by witnesses, in his conduct, his occasional fits of anger, shown in the management of his farm and stock, and other acts of emotional conduct related by the witnesses, upon which was predicated the hypothetical question propounded to the experts, from which they formed and expressed their opinions that he was of unsound mind, to which may also be added the testimony of his failing physical health. All these, and others to which 1 need not advert, furnished, as we think, some evidence which, within the rules established in the well-settled law of evidence, and within the decisions from which we have quoted shows that questions arose upon which the jury might, under proper instructions from the court, properly have passed, under the ordinary rules governing trials by a jury.

So, also, upon the other question as to whether or not this will was his free and voluntary act, or the product of undue influence.

Hpon that branch of the case the contestant urges that the high regard which the testator always manifested for the character of the ■contestant, not only for liis character, but the just pride which he ■entertained and expressed for his intellectual ability, up to about the time he went to Europe with the proponents and beneficiaries under this will, raised a question of fact.

This evidence is supplemented by evidence of estrangement on the part of the brother and sister towards the contestant, at the same time that they enjoyed relations with the testator, both while making the tour of Europe and after their return to New York, while the contestant was virtually deprived of familiar intercourse with, if not of access to, the testator ; and all of this, followed by the practical disinheritance of the contestant, and the imposition of con•ditions upon his right to the enjoyment of the pittance bequeathed •to him, furnishes some evidence at least upon which different minds might honestly reach different conclusions as to the question of undue influence, which within the authorities made it a proper question for the jury, even if we concede it only in the light of the rules of law established for the ordinary trial of questions of fact.

But when we consider that this case was tried under the provisions of this special statute, which makes the verdict of the jury conclusive, and makes the trial by the jury imperative, we are clearly of the opinion that the very able and experienced judge who tried this case fell into error in taking this ease from the jury and directing a verdict. Tested by the ordinary rules governing cases triable by a jury, we think there was sufficient evidence not only to justify a submission to them, but to call for such submission.

But when we consider the imperative nature of the special statute under which this action is brought, to take the case from the jury is little less than a judicial repeal of the provisions of that statute.

From the view we have taken of this case, an examination of the exceptions taken to the rulings of the trial judge upon the questiofl of the admission and rejection of evidence is unnecessary.

We think there must be a new trial of this action, costs to abide the event.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Parker, J. :

license: Public Domain

text:
    Edward S. Stokes, Respondent, v. John W. Mackay and Another, Appellants.

      Waiver — of tender of performance — capacity to perform must be shown by theparty making the tender —■ tender need, not be kept good — the subject of the tender must be produced on the trial — excuse for -its non-production — reversal of a judgment because of its non-production.

    Where a party refuses to perform a contract, and distinctly waives a tender of a performance by the other party to the contract, it is unnecessary for the latter to go through with the form of making a tender in order to entitle him to recover either the purchase price of the thing agreed to be sold by him or damages for the breach of the contract.
    A tender of the performance of a contract imports not only readiness and ability by the person making the tender to perform his part of the contract, but the actual production of the thing to be delivered, ’ and while the formal requisite of a tender maybe waived, yet, to establish a waiver, there must exist a capacity to perform, and if a person, who has contracted to sell and deliver certain bonds, sells and delivers such bonds to a third person, a waiver of a tender of performance by the party to the first-mentioned contract will not be sufficient to establish a waiver.
    If, however, such bonds have been pledged prior to the making of the contract, as collateral for a loan, less in amount than the amount due on account of the purchase price of such bonds as fixed by such contract, it cannot be held as a matter of law that the person pledging the bonds did not have capacity to make good his tender.
    The burden rests upon the person offering to make a tender which has been waived to establish his capacity to perform, and his testimony that he was able to obtain the bonds from the pledgees thereof and to deliver them to the vendee is sufficient to authorize a jury to find that he had capacity to perform at the time the tender was waived.
    Where the plaintiff in an action brought to enforce a contract was obligated by the terms thereof to deliver to the defendants certain bonds, although the tender thereof be waived, and by reason of such waiver the plaintiff is not bound to prove the making of a formal tender, nor that thereafter he kept the tender good, the defendants upon the trial have the right to insist that the plaintiff should produce such bonds in court as a condition precedent to recovery.
    If, however, such bonds have been converted by a third person, and wrongfully taken from the possession of the plaintiff, he cannot be denied the right of recovery because of his inability to produce them. Having offered to the defendants a delivery of the possession of the bonds which they refused to accept, he cannot be made answerable thereafter to the defendants for the consequences resulting wholly from the acts of wrongdoers respecting the same.
    In order to obtain the reversal upon appeal of a judgment rendered in favor of the plaintiff in such an action, on the ground that the plaintiff failed to produce such bonds in court upon the trial of such action, the defendants must show that they demanded upon the trial the production of such bonds or the dismissal of the complaint, and must, at least, suggest to the court that they were relying upon the failure of the plaintiff to produce the bonds in court, to secure the direction of a verdict in their favor.
    Appeal by the defendants, John W. IVIackay 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 New York on the 27th day of February, 1894, upon the verdict of a jury, rendered after a trial at the New York Circuit, and also from an order made at the New York Circuit on the 20th day of February, 1894, and entered in said clerk’s office denying the defendants’ motion for a new trial made upon the minutes.

      Joseph Larocque, for John W. Mackay, appellant.

      Charles J£. Lydeclcer, for Hector de Castro, appellant.

      JEseh Cowen, for the respondent.
   Parker, J. :

The merits of this controversy were fully discussed in this court on a former appeal, resulting in a holding that the trial court properly directed a verdict in favor of the plaintiff (19 N. Y. Supp. 918) With this decision the Court of Appeals differed, deciding that there were certain questions of fact which should have been submitted to the jury for their consideration (140 N. Y. 640). On the retrial these questions of fact were submitted to the jury, resulting in a verdict in favor of the plaintiff.

As the testimony relating to the main features of the controversy was substantially alike on both trials, there would seem to be open for- consideration in this court only such questions as are presented by exceptions taken to the rulings of the court in admitting or rejecting evidence, and to exceptions taken to the charge of the court or of refusals to charge as requested. Upon the argument we were strongly impressed with the contention of appellants’ counsel in respect to the alleged failure of the plaintiff to make a j>roper tender of a portion of the bonds, which were the subject of the contract, having a face value of $165,000, coupled with the fact that a portion of such bonds were, at the time of the trial, according to plaintiff’s admission, pledged as collateral for certain loans made to him.

Our examination of the subject, however, persuades us that the appellants’ |>osition is not well taken; and, notwithstanding the fact that the question seems to have been passed upon on the former appeal, it may not be out of place to briefly state the reasons for our conclusion that the trial court did not err in refusing to direct a verdict upon the grounds assigned by defendants’ counsel.

It is not pretended that the plaintiff ever made a formal tender of $115,000 of bonds, which were, at the time of the making of the contract, and for some time thereafter, pledged with the ’Western National Bank as security for a loan to plaintiff. Of the remaining $50,000 of bonds he did everything by way of delivery that was possible. It appears that these bonds were loaned by the plaintiff to the defendant De Castro prior to the making of the contract, and bv him pledged to the Madison Square Bank as collateral to a loan to De Castro, and as he was oné of the vendees in the contract, plaintiff, for the purpose of effectuating a delivery of the bonds, gave to him an order upon that bank to deliver to him the bonds when his debt should be paid. As to the $115,000 of bonds there is evidence that plaintiff, in pursuance of instructions given him by his counsel, offered to turn over the bonds, at the same time demanding that the balance of the purchase price, to wit, $Y5,000, be paid him; that he informed defendant De Castro that he had been instructed to make a formal tender of the bonds, to which De Castro replied that he would waive the tender; that Mr. Mackay had told him that these bonds belonged to him (Mackay) and repudiated plaintiffs having any interest in them whatever, and that there was no use in his taking the trouble to make a formal tender. According to the testimony of the plaintiff, then, it appears that the defendants not only refused performance of their contract, but, in language as forcible as could be employed for the purpose, attempted to waive anything like a formal tender of the bonds. It is too well settled to admit of further questioning, that where a party refuses to perform and distinctly waives a tender of performance by the other party to the contract, it is unnecessary for the latter to go through with the form of making a' tender, in order to entitle him to recover either the purchase price of the tiling agreed to be sold or damages for a breach of the contract. (Baumann v. Pinckney, 118 N. Y. 604; Lawrence v. Miller, 86 id. 131; Blewett v. Baker, 58 id. 611; Nelson v. Plimpton F. E. Co., 55 id. 480; Bunge v. Koop, 48 id. 225; Moses v. Bierling, 31 id. 462; Cornwell v. Haight, 21 id. 462; Stone v. Sprague, 20 Barb. 509; Clarke v. Crandall, 27 id. 73 ; 3 id. 612.)

This brings us to appellants’ further contention, that, assuming what the defendants did amounted to a waiver of a formal tender, still it cannot avail plaintiff unless he was in such á position that he could have made a tender of the bonds.

That a tender imports not only readiness and ability to perform, but actual production of the thing to be delivered, and while the formal requisite of a tender may be waived, to establish a waiver there must exist capacity to perform. (Eddy v. Davis, 116 N. Y. 247.)

If, in this case, the plaintiff had sold and delivered the bonds to a third party, so that performance on his part was no longer possible, he would be within the rule of Eddy's case.

But he had not sold the bonds ; instead, he had prior to the making of the contract pledged them as collateral for a loan much less in amount than was due him on account of the purchase price at the time he offered to make tender. All that was needful for him to do in order to obtain possession of the bonds for delivery to the defendants, was to pay the amount of the loan.

Had the defendants been willing to have paid the purchase price as per their contract, and fixed a time and place for making payment, an arrangement could doubtless liave been made to liave had a representative of the bank produce the bonds for delivery to the defendants, upon receipt of so much of the purchase price as was due them.

But, assuming appellants’ position to be well taken, that it was necessary that the plaintiff should have been in a position to make a formaLtender of the bonds at the time of the waiver without reference to the moneys due him from the defendants under the contract, we are of the opinion that it cannot be held, as matter of law, that he did not have capacity to perform. As we have observed, all that it was necessary for him to do to get possession of the bonds, was to pay the sum for which they were pledged as collateral. If he was in a position to do that, or by any other method to obtain possession of the bonds, then he had capacity to perform, and defendants’ waiver was effectual.

The affirmative of this proposition doubtless rested with the plaintiff, and he offered in support of it, so far as we have observed, only his own assertion of ability to obtain the bonds from the pledgees and deliver them to the defendants. This was certainly some evidence of the fact, enough at least to have authorized a jury to find that he had capacity to perform at the time the tender was waived.

Appellants insist that the record contains evidence that he was largely indebted at the time of the alleged tender. More than that, they urge that from this evidence it should be found that he was insolvent. "While the facts and circumstances brought out on the trial, if considered independently of plaintiff’s evidence, might have required a finding of inability to take up the loans, it must be borne in mind that they stand opposed by plaintiff’s testimony, and thus was presented a question of fact for the jury, not one of law for ^the court.

The court, therefore, rightly refused to take that question from them.'

It is said that the motion to direct a verdict presents the further point whether, in order to recover, the plaintiff was not bound to produce the bonds upon the trial for delivery to the defendants. If it does present that question we think error was committed. There was such evidence of waiver of tender, as we have already shown, as would authorize a finding of waiver. In considering the present questions, therefore, it must be assumed that tender was effectually waived. The tender having been waived, there was of course no tender to keep good, and the position taken in that respect is inaccurate. But while the plaintiff, because of the waiver, was not bound to prove the making of a formal tender and that thereafter he had kept the tender good, we do think the defendants upon the trial had the right to insist that the plaintiff should produce $115,000 of the bonds in court as a condition precedent to recovery.

Plaintiff’s testimony in relation to the $50,000 of bonds, if accepted, would have excused their non-production in court. He said that those bonds had been converted by a third party. Ye have not the details of the transaction, but so far as the testimony goes, it is to the effect that they were wrongfully taken from the possession of the plaintiff. If that be true, it would follow that the plaintiff could not be denied the right of recovery because of his inability to produce them. Having offered to defendants a delivery of possession of the bonds, which they refused to accept, he could not be made answerable thereafter to the defendants for consequences resulting wholly from the acts of wrongdoers respecting them.

But as to the $115,000 of bonds which had been pledged by the plaintiff as collateral for loans, we think the defendants had the right to insist upon their production in court, to the end that they should come to the possession of the defendants in the event of a recovery by the plaintiff. The plaintiff was the last witness sworn on the trial, and he told when these bonds were pledged as collateral and the amount of the loans, and asserted that they were ready for the defendants. We quote a portion of his testimony: “Iliad them on several loans and transferred them, but they are all ready at any time. W. E. D. Stokes has that $50,000 or $30,000 of bonds still; I think he has converted them; that is what I am charging him with, conversion. Q. Then why do you say they are ready for me ? A. I might have some difficulty with him, but I can make it all satisfactory to you.”

This statement the defendants of course could accept as affording to them sufficient protection in the event of recovery by the plaintiff. They were not bound to accept it, and could have demanded their production in court or that a dismissal of the complaint should follow. Now, we liave read carefully the grounds upon which the defendants based their motion for a direction of a verdict in their favor, and we do not find anything in them which Could have suggested, even to the court, that the defendants were relying upon the failure of the plaintiff to produce the bonds in court to secure the direction of a verdict in their favor.

The propositions which the defendants’ counsel pressed upon the attention of the court as the grounds for granting their motion were that the plaintiff had never delivered the bonds to the defendants, nor presented an excuse for non-delivery; that he had not made a formal tender of the bonds, nor had the tender been waived, and, if made, it had not been kept good as required by law. We quote the grounds upon which the defendants rested their motion :

“Fvrst. That the plaintiff had not established the existence of the contract upon which the action was brought.
“ Second. Upon the ground that there had been no delivery and no tender, and no sufficient evidence of a waiver of a tender, of the $115,000 of United Lines Telegraph bonds, which were shown to have been pledged with the Chemical Bank; that those bonds, as appeared by the evidence, had, to a considerable amount, been subjected by the plaintiff to further and different liabilities, and by the plaintiff’s voluntary act passed from his control.
Third. Upon the ground that there had been no delivery and no tender, and no excuse for non-delivery, of the bonds which had been, according to the testimony, in the Madison Square Bank. On the contrary, it appeared from the evidence that after the time, it is alleged, that the contract sued upon was made the plaintiff himself was borrowing money and creating a burden upon those bonds for the payment of his own obligations, and that if any tender had been in point of fact made or proposed the same had not been kept ‘good as required by law.”

The point not having been made in the motion for the direction of a verdict, or at any stage of the trial, when, perhaps, it might have been overcome by the payment of the loans and the production of the bonds, it cannot be made available for reversal in this court. If we are right in the views expressed, it follows that the court did not err in denying defendants’ request for a direction of a verdict in their favor.

The appellants urge that error was committed by the refusal of the court to receive in evidence a memorandum alleged to have been written by Ingersoll, the stakeholder, as a basis for a telegram to be sent to Mr. Mackay by his representative at the meeting of December 24, 1888, when the preliminary arrangements were being made which ripened into the contract found by the jury to have been entered into.

There were present, as appears by the testimony of the witness Platt, himself, Col. Ingersoll, the defendant De Castro, and the plaintiff Stokes. It was first offered and excluded after defendants’ counsel had examined the plaintiff in reference to it with the following result: Q. (Paper handed witness.) Do you know the handwriting of the paper I now show you ? A. Yes, it is signed by Ingersoll; it is his signature and writing. Q. Did you see that paper written ? A. I did not; never saw it until to-day, that I remember. Q. Didn’t you see Mr. Ingersoll, at the time of that interview, write- a paper and hand it to Mr. Platt ? A. I have no recollection of any such thing. Q. Did you say you did not? A. I can simply say I have got no recollection of it. Q. That is all you can say ? A. That is enough, isn’t it ? ”

The «ruling of the court was proper, for, so far as it then appeared, it was a private communication between Col. Ingersoll and Mr. Platt not brought to the attention of any of the parties to this action.

After the defendant De Castro had testified in relation to the circumstances under which the memorandum was written, it was again offered in evidence and excluded by the court.

De Castro testified as follows: I recall the circumstance of the meeting of the 24th of December, 1888, when Mr. Stokes and Mr. Ingersoll sat around this table in Mr. Stokes’ room in the Hoffman House. There was píen, ink and paper on the table at that time. I have said that I had no discussion with Mr. Stokes as to what should be telegraphed to Mr. Mackay. Mr. Ingersoll said that he would prepare a telegram to Mr. Mackay stating what had been done, and wrote it out then and there. The subject of what was to be telegraphed to Mr. Mackay was spoken of then and there. Mr. Ingersoll said he would telegraph to Mr. Mackay; would prepare a tele' gram to Mr. Mackay., Mr. Ingersoll said he would prepare a. telegram to be sent by Mr. Platt and myself, and sat down and wrote it down tlien and there; he said he would say in the telegram that the securities had been turned over to him for custody, and that a certain agreement would be sent to Mr. Mackay for his signature, and he wrote a memorandum. (Paper marked Exhibit No. 8 for identification handed witness.) That is the paper which Mr. Ingersoll wrote. We were all sitting at the table there talking together as it was written, and Mr. Ingersoll, I think, read it and talked as he was writing it. I think the whole of what was in that telegram was spoken aloud at that time. The substance of the.telegram w'as spoken in every part.”

It will be observed that the witness did not testify that Stokes read the memorandum, or that it was read in his presence. ITis strongest expression in that direction was : “ I think the whole of what was in that telegram was spoken aloud at that time.” But what was spoken did not make the memorandum evidence so long as it did not purport to be either a reading of it or a statement of its contents.

What was said was undoubtedly of itself competent evidence, ■and that the witness was permitted to state. He gave his recollection of what was spoken aloud, and it differed materially from the memorandum, but had it conformed to it the effect would not have been to make the memorandum evidence in the absence of evidence that when spoken it was stated to be the contents of the memorandum.

The memorandum was again excluded by the court after the defendant Mackay’s representative, Platt, had testified as follows : Col. Ingersoll wrote out the text of what he said I was to communicate in a message to be sent to Mr. Mackay. Mr. Stokes was present. Q. Did he write out anything in the 2^’esence of these gentlemen ? A. Yes, he did. Q. (Paper handed witness.) I show you a paper marked Exhibit 8 for identification, and ask you if that is the paper he then wrote? A. Yes, that is the paper. It was written in the upstairs room of the Hoffman House, at a table in the room. At the time it was written there were at this table Mr. De Castro, Mr. Stokes and I, and it was handed to me in Mr. Stokes’ presence.”

Platt’s evidence added nothing to the force of the- evidence already given. He testified that it was written in the presence of Stokes, but neither he nor any other witness testified, to the only fact which would make it competent evidence in view of Stokes’ denial of knowledge of it, to wit, that Stokes either read it, heard it read, or knew its contents.

Complaint is made because of the exclusion of certain testimony offered by the defendants touching the value of the poles, wires and physical property generally of the Bankers and Merchants’ Company in December, 1888, which went into the United Lines system.

The theory upon which this evidence was offered was, that inasmuch as it is not pretended that the defendant Mackay in terms agreed to be bound by the proposed agreement sent him for consideration, but became chargeable, if at all, as a party because of acts of ratification and adoption on his part, and as upon this subject there was a conflict of testimony, defendants contend that evidence touching the advantages and disadvantages which would result to the defendant Mackay under the contract, would have a bearing on the probabilities of the case.

The view which the trial, court apparently took of the proposed evidence as to the value of poles and lines was that it could only result in misleading the jury, because it permitted the same witness to testify in relation to the revenues which came to the Postal Telegraph Company through the United Lines Telegraph Company.

It seems to us that this view was the correct one, for the franchises of a corporation of this character constitute a very important element of value, and whether such a property, including both the franchises and physical property, has small or great value depends upon their earning capacity. The true test is whether they have capacity to pay expenses and earn profits. But if it be assumed that the evidence offered was competent upon the subject of value, we think the judgment should not be reversed for its exclusion, because it could not in any way have affected the result.

The purpose of its offer was, as we have already observed, to enable the jury to infer from the comparatively small value of the property that Mackay’s assertion, that he not only did not make the contract, but that he never intended to ratify or adopt it, was truthful.

It can have no material bearing upon what took place prior.to the telegram from Mackay to Platt, because it is conceded that at that time Mackay was entirely ignorant of the price that defendant De Castro had agreed should be paid for the property. As he knew nothing about the price, the question of the value of the property was necessarily not presented to him. It could have had no effect upon his action in writing the letter of January 3, 1889, to Ingersoll, in which he instructed him to hold the bonds and stock then in his possession which he had received from Stokes for Mackay, because he testified that at the time of such writing he had no intention of signing the contract, or paying the consideration mentioned in it. Necessarily, therefore, the value of the property had no bearing upon his actual intent.

The judgment necessarily proceeds upon the theory that as soon as Mackay discovered that by the terms of the contract he was to cancel the C. H. Head Company note and pay to the plaintiff $100,000, that he never really intended to execute the contract or adopt it. But, notwithstanding his secret intent not to become a party to the contract, he did in fact adopt it by acts which led the plaintiff to think otherwise, and to act accordingly, resulting in the possession of the greater part of the securities mentioned in the contract coming to Mackay, who has ever since retained them.

In other words, while he did not intend to make the contract, upon which plaintiff has recovered, he has been held to have intended, not that which he secretly intended, but which the other party to the contract had a right to assume, from his words and acts, was his real intent.

Many other exceptions have been pressed upon our attention, but we do not think they require a reversal of the judgment.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., and O’Brien, J., concurred.

Judgment affirmed, with costs-.


author: Parker, J.:

text:
    Elias M. Ball and Another, Respondents, v. George B. Stover and Another, Appellants.

      Verbal contract of employment — when deemed renewed for a second yea/r.

    A verbal agreement was entered into in September, 1890, between two persons, by which, the one was employed as the selling agent of the other for the period of one year from January 1, 1891, which agreement for such year was fully kept and performed by both parties, without modification thereof, or a suggestion in regard thereto by either of the parties, and the employee continued to serve the employer in the same capacity, receiving therefor the same rate of compensation, until February 25, 1892, when he was discharged without cause.

      Held, that the contract of employment would be considered to have been renewed for the period of one year from January 1, 1892;
    That the result would be the same whether the original employment was at a yearly salary or the compensation consisted of commissions;
    That although the original contract of employment might not have been enforcible so long as it remained executory, yet, when fully and voluntarily performed by both of the parties thereto, its invalidity could no longer be asserted by either, and that it afforded an adequate basis upon which to predicate an inference of fact as to the intention of the parties in proceeding in accordance with 5ts terms upon a term additional to that provided for therein.
    Appeal by tbe defendants, George B. Stover and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the Uth day of April, 1894, upon the report of a referee, with notice of an intention to bring up for review upon such appeal said judgment and the decision of the referee.

      H. Y. Borst, for the appellants.

      Louis LI. HaMo, for the respondents.
   Parker, J.:

The referee found that in September, 1890, a verbal agreement was entered into between plaintiffs and defendants, by which the former were employed as the selling agents of the latter for a period of one year from January 1, 1891; that the agreement for such year was fully kept and performed by both parties, and that without a modification of the original agreement, or a suggestion in that direction by either of the parties, the plaintiffs continued to serve the defendants in the same capacity, and received ' therefor the same rate of compensation until February 25, 1892, when plaintiffs were discharged without cause. Upon this conduct of the parties the referee has based an inference of fact that the contract of employment was renewed for the period of one year from January 1,1892, and has awarded to the plaintiffs the damages sustained by reason of their discharge.

Ilis conclusion in such respect is in accord with the established rule where the employment is for a year’s service at a yearly salary. (Adams v. Fitzpatrick, 125 N. Y. 124; Wallace v. Devlin, 36 Hun, 275.) The same rule applies where the employment is by the year, the compensation to consist of commissions instead of a salary. (Dean v. Woodward, 52 Hun, 421.) Appellants’ contention, that the general rule will not apply, because the contract of employment for 1891 was within the Statute of Frauds and void, is not well grounded. While the original contract was unenforcible so long as it remained executory, yet, when fully and voluntarily performed by both parties, its invalidity could no longer be asserted by either, and it afforded an adequate basis upon which to predicate an inference of fact as to the intention of the parties in proceeding, in accordance with its terms, upon a further term than that provided by it. (Adams v. Fitzpatrick, supra; Hodge v. Newton, 13 N. Y. St. Repr. 139.)

The finding of the referee to the effect that the first employment was f®r the year 1891, is challenged by the defendants. The evidence upon that subject is not so full as could be wished, but such as there is tends to and is sufficient to sustain the finding. One of the defendants said, on his direct examination, that the contract for plaintiffs was for the year 1891. On cross-examination lie said that his testimony referred to the contract set up in his answer as the con ■ tract made for the year 1891. It is now urged that his evidence does not amount to an admission that the contract upon which plaintiffs have recovered was for the year 1891. But the suggestion is without force. Defendants had but one contract with the plaintiffs prior to the renewal contract. It was made in September, 1890, and both the complaint and answer referred to it, although differing as to its terms. It was while speaking of the terms of this contract that defendants said it was for the year 1891. The record contains no evidence to the contrary.

The judgment should be affirmed, with costs.

Tan Brunt, P. J., and Eollett, J., concurred.

Judgment affirmed, with costs.


author: Parker, J.: '

text:
    Evelena Dunning, Respondent, v. Edgar F. Dunning and Another, Appellants, Impleaded with Others.

      Devise chan'ged with the payment of a legacy — ■bequest in lieu of dower not liable for debts — action to enforce a charge on land — manner of sale of the real estate of a decedent for his debts.

    Where a bill by positive language charges the costs of the redemption of certain stock, pledged by the testator during his lifetime, upon certain land devised thereby to the testator’s three children, the acceptance of the devise by them, if there is no other fund or estate to bear the burden of such redemption, gives the legatee of such stock the right to have the cost of such redemption adjudged to be charged upon the property devised to the testator’s children, and the land devised to them will, if necessary, be decreed to be sold for the purpose of securing the necessary funds with which to effect such redemption.
    Where a bequest is made by a testator to his widow in lieu of her dower, and is accepted by her, she holds the bequest by the right of purchase, and it should not bear any portion of the debts of the testator.
    A person has the right to bring and maintain an action in equity for the purpose of enforcing the lien, of a legacy bequeathed to her, on the lands in the same will devised charged therewith, making the executors of such estate and all parties interested therein, save the creditors of the deceased, parties in the action, where it appears that the executors have advertised for claims and pro1 ceeded in the regular course of administration of the estate to a point which discloses that there is no personal estate of the testator applicable to the payment of the legacies in such will contained or to the payment of the claims presented against his estate which had been allowed by the executors or even to the expenses of the administration of his estate.
    The lands of a decedent can only be sold for the payment of his debts in the manner provided by statute, which requires that the creditor shall establish his claim in proceedings had in a Surrogate’s Court for the purpose of selling lands to pay debts, and, as a general rule, the real estate of a decedent cannot be ordered sold for the purpose of the payment of his debts in an action (to which the decedent’s creditors are not parties) brought to charge the payment of a legacy bequeathed to the plaintiff by the testator’s will on land devised thereby.

      Appeal by the defendants, Edgar F. Dunning and Lillie E. Henderson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of June, 1894, upon the decision of the court rendered after a trial at the New York Special Term, and also an appeal by the defendant Edgar F. Dunning from an order made at the New York Special Term and entered in said clerk’s office on the 29th day of May, 1894, granting the plaintiff an extra allowance.

      A. Britton Hrnens and 3. A. Brcmn, for the appellants.

      William O. Bussey, for the respondent.
   Parker, J.: '

William Dunning died July 6, 1891, leaving him surviving his widow, this plaintiff, and three children, all of full age, Lillie E. Henderson, Edgar F. Dunning and Hattie C. Chase.

By his last will and testament, which has been duly probated, he devised and bequeathed to his wife, in lieu of dower, certain property, including 114 shares of the Consolidated Gas Company’s stock, Avhicli is specially referred to in the eighth clause óf his will, which is hereafter quoted in full.

Prior to his death lie conveyed to his wife real estate referred to in the devise to her, and transferred to her the personal property referred to in the bequest, with the exception of the furniture in the house in which they resided, the gas company stock and $5,000 in cash. The latter constituted the only property she received under the bequest in lieu of dower.

To his daughter Hattie C. Chase he devised three houses and lots ; to his son, Edgar F. Dunning, two houses and lots, and to his daughter Lillie E. Henderson three houses and lots, and to his three children jointly a block of ground bounded by One Hundred and Thirtieth street, One Hundred and Thirty-first street, Twelfth avenue and the Hudson River railroad. By the second clause of the will he charged the payment of the $5,000 legacy left to his widow upon each of the devises and bequests made to his three children, and upon them as his legatees and devisees, and upon the share of each, of them in the estate. Shortly after the will was probated, the devisees, upon whose devises this sum was charged, paid to her the amount of this legacy, with interest.

The seventh and eighth clauses of the will, which are mainly the cause of this litigation, read as follows : “ The three thousand and five hundred dollars of bonds and mortgages made to me by my daughter Lillie E. Henderson, and now due and owing to me, I give and bequeath to my wife, Evelena, together with all interest now due or to become due thereon; and I hereby charge the payment thereof by my daughter Lillie E. Henderson upon the devises and bequests herein made by me to her, and declare the same to be subject thereto.

As at the time of the execution of this my will the 114 shares of the Consolidated Gas Co.’s stock hereinbefore bequeathed to my wife is pledged with C. A. Earned & Co., brokers, as margin on account of the stocks they are carrying for me, it is my will, and I hereby direct that in case the said 114 shares of the stock so pledged shall become in any way involved or incumbered, or shall so remain or shall have been disposed of upon such pledge or otherwise before or after I die, that then the same shall be redeemed and delivered to my wife; and, in case the said 114 shares aforesaid shall have been sold upon said ¡fiedge, I hereby direct that 114 shares of the same stock shall be procured in place thereof; and, in either event, the said 114 shares of stock so redeemed or procured shall be delivered to my said wife for her sole use and benefit. And that all the costs of such redemption, or of the purchase of new shares for the substitution, shall -be a charge upon and against my three aforementioned children and their shares in the devises and bequests in my real and personal estate under this my will, one-third thereof to each of my three children.”

The executors filed an inventory on December 16, 1891. This inventory showed a balance of cash belonging to the testator of $342.53. Also, of furniture, etc. (devised to the widow under the second clause in the will in lieu of dower), appraised at $3,500. The mortgages (the amount due on which and interest was devised to the widow and charged upon real estate by the seventh clause of the will) were appraised at $4,207.75, and a large quantity of stocks and bonds amounting to about $32,000 (including the gas stock devised to the widow under the second and eighth clauses of the will). All of the stocks and bonds were pledged by the testator for money advanced, amounting to $28,327.70. All of these stocks and bonds were sold except the gas stock, and $23,113.75 was realized from the sale and paid to the brokers, leaving the gas stock pledged-for a balance of $5,312.95. By hrutual consent of all parties, the* firm of Randolph & Randolph paid the balance due on the pledge and substituted themselves in the place of ilarned & Co. as pledgees. This gas stock still remained at the time of the commencement of this action in the hands of Randolph & Randolph, subject to the payment of $3,213.95, vfith interest.

The $3,500, with interest thereon, left to the plaintiff by the seventh clause of the will, was collected by the executors from Lillie E. Henderson, the executors and the plaintiff signing a certificate that the amount had been paid and the mortgage satisfied, the plaintiff understanding at the time that the money was being collected for her. She demanded the money of the executors, but they did not pay it over to her. The executors have advertised for claims against the estate, and the total amount of claims presented and accepted amount to $2,957.03, which consist chiefiy of charges for funeral expenses and medical services, outside of a note for $1,500. They have no moneys in their hands whatever, except the moneys received by them from Lillie E. Henderson in payment of the legacy given to the plaintiff, and charged upon the devise to her.

The executors have, therefore, been unable to redeem and deliver to the plaintiff the Consolidated Gas stock as by the will they were directed, hence this suit, the principal object of which is to compel redemption of the gas stock by the defendants Dunning, Chase and Henderson, upon whose devises such redemption is sought to be charged by the will; and to compel the executors to pay over to the plaintiff the amount of her legacies under the seventh clause of the will, which they received from LiJlie E. Henderson, and to-have the furniture declared exonerated from liability for the debts..

Bearing in mind the eighth clause of the will, it will be readily-observed that the contingency contemplated by it, which should charge upon the devises and bequests to his children all the costs of redemption of the 114 shares of Consolidated Gas stock, or in the event of redemption being impossible, the purchase of new shares for the plaintiff, has happened. The stock was pledged with C. A. Harned & Co., brokers, at the time of testator’s death, as margin, for him and was incumbered to the extent of over $5,000, and it still continues to be incumbered to that extent. The executors have had at no time in their possession funds applicable to the redemption of such stock, and they have failed to provide the necessary funds, not through any neglect' of duty on their part, but because of their inability to do so.

In view of the positive language of the will, charging the costs of the redemption of this stock upon the devises to the three children, the acceptance of the devises by them, and the further fact that there is no other fund or estate to bear such burden, the conclusion seems inevitable that it is the plaintiff’s right to have the cost of such redemption adjudged to be a charge upon property devised to the children, and it decreed to be sold for the purpose of securing the necessary funds with which to effectuate such redemption.

The contention that this stock- when redeemed should jbear its proportion of the debts of the' testator, is not well taken, for the reason, if there were no other,- that the bequest having been made and accepted by the plaintiff in lieu-'of dower, she holds the same by right of purchase.

Nor do we see any reason for differing with the learned trial court in its conclusion, that it was -the intention of the testator that his widow should receive the legacy of $3^500, bequeathed to her by the seventh clause of the will, at all events, and that Lillie E. Henderson should not receive the real estate devised to her unless the legacy should be paid to -his widow in accordance with his request. The clause admits, and indeed, we think, requires, the construction, that this legacy was not a specific legacy, but a pecuniary one -charged upon land.

The face value of the mortgage was $3,500, and covered lands of Lillie E. Henderson other than those devised to her by the will. Neither at the time of making the will, nor at testator’s death, had these mortgages been -recorded or any of the interest due thereon been paid to the testator. If the testator had simply bequeathed these mortgages to the plaintiff the legacy would be a specific one, but the clause further -charged the payment upon the devises and bequests in the will to Lillie E. Henderson, which devises and bequests are declared to be subject hereto. Its language clearly manifests the intention of tile testator to have been to provide for the payment to bis widow of the amount represented by the bonds and mortgages rather than that the bonds and mortgages should be transferred to her. By its terms, if the bonds and mortgages cannot be enforced against Lillie E. Henderson, or for any reason should not be, or the security should prove insufficient to realize the sum represented by them, nevertheless it was provided that such sum should be realized for the benefit of his widow by charging the same upon the devise and bequests to Lillie E. Henderson. This was a bequest of money and not of the specific bonds and mortgages. H this construction may be said to need the support of authority it would seem to be furnished by Giddings v. Seward (16 N. Y. 365), where the bequest was of the sum of $1,200 and interest on the same contained in a bond and mortgage.” The court held that the leading subject of the gift was not the bond and mortgage, but the sum of money mentioned. It belongs (said the court) to a peculiar class of legacies usually termed demonstrative, which partakes so far of the nature of specific legacies that the security referred to in the bequest, if in existence and belonging to the testator at the time of his death, is set apai't as a primary fund for the payment of the legacy.” It is admitted that the defendant Lillie E. Henderson accepted and took possession of the property devised to her and afterwards paid to the executors the sum of money charged upon the devises and bequests to her by the seventh clause of the will. This sum, the court properly held, belonged to the widow. If the position be well taken, that it was the intention of the testator, by liis will, to charge the legacies to which we have referred upon the lands devised, it would seem to follow, under the authority of Hogan v. Kavanaugh (138 N. Y. 417), that it was the right of the plaintiff to resort to equity to have the legacies declared to be a charge upon the lands devised and to enforce her lien as legatee.

In that case the action was brought to have the legacy bequeathed by the will of Edward Hogan made a special lien on certain real estate; that the lien be enforced by a sale and the legacy paid out of the proceeds. The judgment, which went in favor of the plaintiff, further provided that the debts of the testator should be first paid out of the proceeds of the sale, although it then appeared that no proceedings had been taken in the Surrogate"’s Court, under the statute, for the purpose of selling the lands of testator to provide for their payment, nor had the claims been proved in the manner provided by the statute. This part of the judgment the court so modified as to provide for the payment of the debts before the legacy, but only after the debts should have been duly established in the Surrogate’s Court, and such proceedings had as would authorize a sale of the real estate of the testator for such purpose, and affirmed the judgment in other respects. The court said: That part of the judgment, therefore, which declares the legacies to be a charge upon, the land is correct, nor can there be any objection to the maintenance of an action in a court of equity to procure a judgment for that purpose, though it might not be proper in all cases and under all circumstances to direct a sale of the land for their payment.

The primary fund for the payment of debts and legacies is the personal estate, and the land cannot be resorted to for that purpose until the personal is exhausted in the ordinary course of administration, and under the authority of the statute.”

In this case the executors and all parties in interest save the creditors were parties to the action, and it appears from the stipulation made by the parties, and the evidence adduced, that the executors had advertised for claims and proceeded in the regular course of administration to a point which disclosed that there was no personal estate whatever applicable to the payment of the legacies.

Indeed, there was not personal estate sufficient to defray the expense of administration, let alone pay the claims against the deceased, which had been presented and accepted by the executors, and which it is conceded by the stipulation was due the claimants. This being so, the right of the plaintiff to maintain this suit for the purpose of enforcing the legatees’ lien upon the lands devised is fully established by Ilogarís case.

The trial court, proceeding upon the theory that when a court of equity has obtained jurisdiction of a case for one purpose, it may retain it for all purposes, and appreciating the legal right of the creditors of the testator to be paid out of the proceeds of the sale of his real estate, before the legacies charged therein can be paid, provided in the judgment, decreeing a sale of the property, that next after the payment of the expenses of the sale the proceeds should be applied “ to the payment of such debts of said decedent as may have been proved upon an accounting, together with the expenses of administration.” This provision of the decree seems to be condemned by Hogan's case (supra), which proceeds upon the view that the lands of a decedent can only be sold for the payment of his debts in the manner provided by statute, which requires that the creditor shall establish his claim in proceedings had in a Surrogate’s Court for the purpose of selling land to pay debts. Counsel relies upon an expression contained in the opinion of the court to distinguish this case from that one. The court, in considering whether a creditor who happens to be a party to an action of this kind can in any case assert his claim to the real estate of the deceased in a court of equity, said: Possibly it might be done in a case where the regular process of administration had reached the stage where real estate ■could be sold for the payment of debts, and the executor or admin, istrator who could represent creditors and the personal estate was a party.”

Because the executors were parties to this suit, and that point had been reached in the regular course of administration where the executors could have instituted proceedings for the sale of testator’s real estate for the payment of debts, appellant contends that this case comes within the exception which the court suggested might qmssibly exist.

In the first place, it should be said that the court did not decide that the case which it put would constitute an exception to the general rule, but a further and conclusive answer is that this case does not come within the supposed case suggested as a possible exception, in that the creditors, whose claims the decree undertakes to provide for, are not parties to the action.

The case suggested by the court was one where the creditor was made a party to the action for some purpose.

The creditors of the testator Dunning are not parties to this action; their claims have been admitted by the executors, it is true, but that fact does not entitle them to payment from the proceeds ■of the real estate. Under the statute it is necessary that they shall still establish their claims by competent evidence before a proper tribunal before they can receive any part of the proceeds of the real estate in payment of their claims.

The modification of the judgment in Hogarís case suggests the necessary modification to be made in this case.

The judgment should be modified by striking out the provision, numbered second, and by substituting in place thereof the following : “ To the'payment of such debts of said testator as may hereafter be duly established in the Surrogate’s Court, in proceedings taken to procure a sale of real estate for the payment of such debts; The sale and execution under this judgment to be stayed until such proceedings are had.”

As thus modified, the judgment should be affirmed, without costs.

The discretion of the court was not improperly exercised in granting an extra allowance to the plaintiff, and the order relating thereto-should be affirmed, with ten dollars costs.

Van Brunt, P. J., and Eollett, J., concurred.

Judgment modified as directed in opinion, and affirmed as modified, without costs, and order granting allowance affirmed, with ten dollars costs.


author: Yan Brunt, P. J.:

text:
    Annie Aletta Elwell Moffett, Plaintiff, v. Mary S. Elmendorf, and Others, Respondents; Annie Coe King and Others, by Joshua M. Van Cott, their Guardian ad Litem, and Others, Appellants.

      What determines the construction of a will — a codicil is a republication — when devisees take as tenctnts in common and when as a class — •rights of the survivors.

    Whether a will should bo construed as of the time of the execution of the same or as of the date of the death of the testator depends upon the peculiar circumstances of each particular case. The intention of the testator must determine the construction to be placed upon his will and must be gathered from the will itself, the court being aided in its construction thereof by the testator’s situation at the time of the making of the will and at the time of his death. .
    The making of a codicil to a will is substantially a republication of the will.
    The presumption is where a will directs land to be divided share and share alike, amongst individuals by name, that it was intended that the devisees should take as tenants in common and not as joint tenants, and the interests of those dying before the testator are deemed to have lapsed, but whenever a will clearly indicates that the devise is to a class, and was intended to benefit a particular class, and not the particular individuals of that class, the survivors of the class at the time of the death of the testator have the right to take the whole devise.

      Appeal by tbe defendants Annie Coe King and others, by Joshua M. Yan Cott, their guardian ad litem, and by Harman us B. Duryea and Pierrepont H. Duryea, from so much of an interlocutory judgment of the Supreme Court, entered in the office of the cleric of the county of New York on the 26th day of June, 1894, upon the report of a referee, as overrules their exceptions to the report of the referee named therein, and from so much thereof as confirms the said report of the said referee in respect to the matters so excepted to, and from so much thereof as adjudges that the defendants Annie Coe King, Edith King and Gertrude King are neither of them seized or possessed of, or entitled to, any share or interest whatever in the premises described in the complaint in this action, or any part thereof; and from so much thereof as adjudges that the defendant Kate Duryea is seized and possessed o'f two undivided one-eighth parts of the said premises.
    Also an appeal by the defendant John D. El well from so much of the interlocutory judgment of the Sjupreme Court, entered herein on the 26th day of June, 1894, as overrules the exceptions taken by this defendant to the report made by the referee in this action, as confirms the said report, as adjudges that this defendant is entitled to only one-eiglith share or interest in the premises described in the complaint in this action, and as adjudges that the defendant Kate Duryea is seized and possessed of two undivided one-eighth parts of the said premises.

      Joshua M. Yan Cott, J. M. Bowers, James W. Gerard, Jr., and Eustace Conway, for the appellants.

      J. G. Elcmders and Francis Jjynde Stetson, for. the respondent Kate Duryea.
   Yan Brunt, P. J.:

In view of the conclusion at. which I have arrived it will not be necessary to discuss some of the points which have been presented upon the part of the appellants. In the brief statement of facts, therefore, no mention is made of the particular circumstances under which such questions arise, and only such facts are stated as seem to be necessary to a comprehension of the points directly involved.

Samuel B. Duryea died in the city of Brooklyn on the 7th of June, 1892, without issue, leaving him surviving a widow, and having duly made his last will and testament, dated June 18, 1877, and a codicil thereto, dated June 2,1887, which were duly admitted to probate. The real estate sought to be partitioned in this action ivas devised, by the sixth clause of the will, to certain persons, two of whom died before the testator, and the first question presented is Avhetlier the shares which these tivo persons would have taken if living lapsed, or whether the devise was a devise to a class, those living at the death of the testator taking the Avliole. The next question is, if these shares did lapse did the same pass to the testator’s widoAV under the second clause of the will, or to his heirs at law under the tenth clause ?

For a solution of these questions it will be necessary to consider the whole of the testator’s will and codicil, and gather from them the general intention of the testator, and then particularly consider the clauses of the will and codicil which seem to illustrate more pointedly such intention.

Considerable stress has been laid by the appellants upon what is called an error of the referee in the method pursued by him in determining the true construction to be placed upon the will in question. And it is urged that the referee erred in considering the will as speaking as of the death of the testator rather than as of the time when the will in question was made. And our attention is called to various adjudications upon this subject tending to sIioav that in these particular cases the will was held to speak as of the date of its execution rather than as of the date of the death of the testator. But the question as to the. rule of construction is one which must necessarily depend upon the peculiar circumstances of each particular case. It is the intention of the testator which is to determine the construction to be placed upon the will; and in reaching a conclusion as to what such intention was, adjudicated cases in respect to other Avills afford but little aid, because no tivo wills are alike. It lias become almost a maxim of the law that no will has a brother. The language used in each is different; the situation of tlie testator is different, and the ends to be accomplished are different. Therefore, the intention of a testator must be gathered from the will itself, the court being aided in its construction by his situation at the making of the will and at his death. In the case at bar, in order to arrive at tlie intention of the testator, it is necessary to consider not only the will, but also the codicil which the testator made to said will some ten years after its execution. It is a familiar principle of law that the making of a codicil is substantially the republication of the will. And this rule is invoked upon the part of some of the appellants for the purpose of showing that the testator did not intend that-the legacies in question should lapse.

Having these general rules in view, and having in mind the fact that the testator did not intend to die intestate, we shall proceed to consider the particular clauses of the will which form the subject-matter of this controversy.

As already stated, the testator left a widow, but no issue, and, therefore, only collateral relatives.

The first clause of the will is as follows:

First. I give to my beloved wife, Kate Duryea, all my personal property and estate not herein otherwise bequeathed, unless in the contingency of my surviving her, or of her and my decease on the same day, or by occasion of the same wreck or casualty proving fatal to both, and in that case I bequeath said personal estate to my next of kin. The provisions of this will in favor of my wife are made by me, and are to be accepted by her, in lieu of all claims of flower in my real estate, or any portion thereof.”

The second clause is as follows:

“ Second. All my real estate, except the portions thereof hereinafter otherwise given or disposed of, I give, in like manner, to my said wife, if I leave no issue, but if I leave any children living or after born, or the descendants of any deceased child, I give the real property in this clause devised to my wife and such issue in equal shares, that is, each child, the representatives of each deceased child, as a class, and my wife, are severally and respectively to take equal shares therein.”

By the third, fourth and fifth clauses he makes certain disposition of the remainders in real estate.

The sixth clause, which is the clause under which the question as to the lapsed legacies arises, is as follows:

Sixth. I give and devise to my aunt, Catherine Elwell, and my -cousins, Mary S. Elmendorf, John D. Elwell, Joseph S. Elwell, Cornelius A. Elwell, Annie E. Elwell, James II. Elwell and Sarah E. Elwell (each to take an equal share therein), my lots on the southerly side of Sixtieth street, between First avenue and Avenue A, in the city of New York; also my lots on the southerly side of Sixty-first street, between First avenue and Avenue A, in the city of New York; also my lots_ and premises now or heretofore known as No, 276 Mott street, in the city of New York; and also my house and lot now or heretofore known as No. 143 Mercer street, in the city of New York.”

By the eighth clause of the will he gave to the Brooklyn Children’s Aid Society of the city of Brooklyn a considerable amount of real estate. By the ninth clause he gave legacies to divers persons.

The tenth clause is as follows:

“ Tenth. All the residue of my real estate (if any there prove to be) I give and devise to those who may be my heirs at law at the time of my decease, and in the same proportion in which they would have taken if as to such residue I should have died intestate.”

This will, as already stated, was executed on the 18th of June, 1877. On the 2d of June, 1887, the testator made a codicil to his will by which he revoked the fifth item or section of his will in relation to the Brooklyn Children’s Aid Society of the city of Brooklyn, New York, by which also he requested his wife to pay so long as-she lived $500 annually to the Tree Planting and Fountain Society of the city of Brooklyn;” by which also he bequeathed to the Long Island Historical Society his library 'and manuscripts; and then made some directions in regard to the bmial of his remains and provision for the keeping of the burial plot in order.

Catherine Elwell and Cornelius Elwell, two of the devisees named in the sixth clause of the will, died before the testator; and the first question is, did their share in the devise lapse, or was the devise to a class, the survivors taking the whole ? In support of the contention that the survivors took the whole, our attention is called to the cases of Hoppock v. Tucker (59 N. Y. 204); Manier v. Phelps (15 Abb. N. C. 127); Clark v. Lynch (46 Barb. 69); Magaw v. Field (48 N. Y. 668); Page v. Gilbert (32 Hun, 303); In Matter of Seebeck (63 Hun, 179), and Ferrer v. Pyne (81 N. Y. 285). These cases, however, all depend upon the particular language which was there being construed, and establish no general rule which is to control. It is to be observed that the presumption is, where a will directs an aggregate fund to be divided, share and share alike, amongst individuals by name, that it was intended that the devisees or legatees should take as tenants in common, and not as joint ten* ants; and, hence, that the interests of. those dying before the testator are deemed to have lapsed. This was the rule laid down in the case of Savage v. Burnham (17 N. Y. 561), and it has not been departed from. Wherever the will clearly indicates that the devise is to a class, and was intended to benefit a particular class and not the particular individuals of that class, the right of the survivors to take the whole has been maintained. In the case at bar, there are no words of class used, except that the testator speaks of the devisees as his aunt and cousins. But these words were undoubtedly used merely to designate the persons. If others of the same name existed, they could not claim because they were not of the relationship named in the will. It was simply for the purpose of definiteness in designation that these words of relationship were used. The devise is to his aunt (naming her) and to his cousins (naming them), an equal share of the property devised being given to each. Here, clearly, there was no intention to designate the devisees as a class.

It is urged that one of the devisees named in this will died in December, 1877, and in 1887 the testator made a codicil apparently principally for the purpose of revoking one of the provisions contained in the will, and no mention is made of the lapsing.of any of the legacies therein contained ; and it is contended that, if the testator had supposed that the legacy to Catherine Elwell had lapsed, he undoubtedly would have made some other disposition of her shard of the estate. The force of this argument, however-, we do not perceive, because the testator, having made the provision for the Elwells which he desired to make, and having made a disposition of the balance of the estate, whatever it might prove to be, evidently, when one of these legatees died, saw no reason for a change in his will, or the making of a different disposition, the lapsed portion- of his estate going under his will as the testator had provided. This view is emphasized by the fact that, although in the codicil he revokes a gift of a large amount of real estate to the Brooklyn Children’s Aid Society, he makes 110 disposition except that which is generally made by his will of such portion of his estate. As already stated, it is manifest that the testator did not intend to die intestate; and he knew when he revoked this legacy that he had made a provision iii his will for the disposition of whatever should not pass under these sjieeific devises of his will, and with that disposition he was satisfied. Hence, he simply revoked the legacy, allowing the subject-matter thereon to pass under the general provisions of his will.

This brings us to the consideration of the other question involved, namely: Under the jirovisions of the will, does the wife take the legacies which have lapsed, or do they go under the tenth clause to the heirs at law of the testator ? It seems to me, when we consider the intent of the testator as disclosed by all the provisions of his will and codicil, that the conclusion must be arrived at that the tenth clause was not intended by the testator to be a general residuary clause except in the event of the^ death of his wife during his lifetime under such circumstances that he could not recast his will, .and that he intended that all his real estate which did not pass by his will should go to his wife unless he had issue. And in arriving at this conclusion I have been very much influenced by the provisions of the first clause of his will disposing of his personal estate not therein otherwise bequeathed. It must be conceded that if any of the pecuniary legacies lapsed, they were covered by this first clause and would have gone to the widow unless the contingencies therein mentioned prevented such devolution, amongst which was the death of the wife during the lifetime of the husband, and by this clause the testator bequeathed his residuary personal estate in case of the happening of these contingencies to his next of kin. Here we have -in respect to the personal estate the scheme of a bequest of specific legacies to persons named and a bequest of the balance of the personal estate to his wife, if living, and if she should die before him, to his next of kin. Then when the testator comes to deal with his real estate he uses the following language: All my real estate, except the portions thereof .hereinafter otherwise given or disposed of, I give, in lilce manner, to my said wife if I leave no issue.”

What did the testator mean by giving his real estate “ in like manner ? ” Did he not mean that his wife should enjoy all the real estate which he left and which was not disposed of by his will, jmovided she survived him ? Of course, if she died in his lifetime the gift would necessarily lapse. If she was living he desired her to enjoy all the residue of his real estate precisely the same as he had provided that she should en joy all the residue of his personal estate, and this was the like manner ” which the testator had in mind. He never could have intended by these informal words to have imported into the clause relating to the real estate the important words of contingency contained in the first clause relating to his personal estate. The will in question was carefully drawn, was intended to meet every contingency, and to dispose of each and every part of the testator’s estate; and, in view of -the disposition made in regard to the personalty, it is evident that he intended that all parts of his estate undisposed-of by his will should be enjoyed by his wife as above stated. In respect to the real estate he provides differently for the case of the death of his wife, he surviving and not having made any alterations in his will consequent upon this changed state of affairs. If he left children, under the provisions of his will the children were to equally enjoy his estate, even though the provision made for his wife in case of the leaving of children should have lapsed, because, if the testator had died leaving children him surviving, his wife being dead, the provision that his wife should share equally with the children would lapse, and the testator would have died intestate as to the share of the wife, were it not for the tenth clause of the will. And it is evident that he intended to provide for these contingencies of the death of his wife during his life, he dying without issue, and having been unable to make any change in his will, and of his wife having died in his lifetime, and he dying leaving children, and having made no other disposition of his estate than that contained in his will. In either case the share of the wife would lapse and pass by the tenth clause; and it was this contingency which the tenth clause was intended to meet. This view is further reinforced by the action of the testator in reference to the provisions contained in the eighth clause for the Brooklyn Children’s Aid Society. By his codicil he revokes this provision, and says nothing in regard to what shall be the disposition of the property devised by the will for this society, but leaves it to be disposed of under his will. It was clearly the intention of the testator that his wife should enjoy that part of his estate which he did not otherwise devise by his will. This he declared when he executed this codicil by the republication of the will which the law presumes. Tie revoked the legacy to the Children’s Aid Society; and, the will and codicil being read together, it was as though the eighth clause had never existed, and, hence, that the property therein mentioned became a portion not disposed of by the will which went to the wife. So it wa's with these legacies which lapsed. They were not disposed of by the will to the testator’s* knowledge. In view of this construction placed upon this provision for the wife by the testator himself, can it be said that he intended that any portion of this estate should go under this tenth clause, his wife living at his death ? It seems to me, when we take the whole will together and ’consider all its terms and provisions, and the construction of his will by the testator evidenced by his codicil, we must come to the conclusion that he intended his wife to be the residuary legatee, and that the tenth clause should have operative effect only in case of the death of his wife during the testator’s lifetime, he not having had any opportunity to make any change in the testamentary disposition of his property; thus placing his real estate in precisely the same position as his personal estate in this respect, because that is the disposition which he has unequivocally made of his personal estate.

The judgment should be affirmed, with costs to the various parties to be paid out of the estate.

Follett and Parker, JJ., concurred.

Judgment affirmed, with costs to the various parties to be paid out of the fund.