author: O’BeieN, J.:

text:
    In the Matter of the Distribution of the Proceeds of the Real Estate of Elizabeth A. Stilwell, Deceased. Frances Dixon, Appellant; Hannah M. Stilwell, Respondent.

      Distribution of surplus moneys — sales of a decedents realty in foreclosure — jurisdiction of Surrogated Courts — determination of conflicting claims.

    When surplus moneys arising on a mortgage foreclosure sale of a decedent’s real estate have been paid into the Surrogate’s Court, as provided by section 2798 of the Code of Civil Procedure, and the surrogate has jurisdiction over the subject-matter and of the parties claiming an interest therein, he may proceed to finally distribute the fund, and is not obliged to stay his proceedings because of the pendency in the Supreme Court of an action of ejectment between parties to the proceedings before him, for the recovery of the real estate from which the fund was derived.
    Sections 2797 and 2798 of the Code of Civil Procedure, which relate to the effect of the pendency of actions upon proceedings in Surrogates’ Courts, for the disposition of a decedent’s real estate, and to the distribution of surplus moneys arising from the sale of a decedent’s real estate in foreclosure, do not, deprive the Supreme Court of jurisdiction, and are not open to the charge of. unconstitutionality on that ground.
    The provisions of section 2798 of the Code of Civil Procedure do not compel the". Supreme Court to direct the payment over to the surrogate of surplus moneys, arising from a sale of a decedent’s real property under its judgment, but that, court may direct such payment, and thus transfer to the surrogate jurisdiction over the distribution of such moneys.
    Although when, after the death of the owner of real property, an action is commenced in the Supreme Court to foreclose a mortgage thereon, and the property is sold pursuant to the judgment in the action, the surplus moneys arising upon the sale may be distributed under the direction of. that court, yet,, when the judgment in such action directs the deposit of the surplus moneys with the surrogate for distribution, and no appeal is taken from, or objection made to, such direction, and the fund has been deposited in pursuance thereof in the Surrogate’s Court, it is too late, in the proceeding before the surrogate, tO' make the point that, his authority and jurisdiction being limited, he cannot determine all the questions that will arise between the parties as to their conflicting claims to the fund.
    This is so, even though such claims may involve the title to real estate or the' validity of a will of real estate.
    Appeals by Frances Dixon, claiming to be the sole beir at law of Elizabeth A. Stilwell, deceased:
    (1) From a decree of the surrogate of New York county, entered on the 13th day of February, 1893, decreeing distribution of surplus, moneys arising from a sale under foreclosure of real estate owned, by said decedent in an action of foreclosure brought in the Supreme. Court.
    (2) From an order of the surrogate, entered on the 9th day of. February, 1893, in effect denying her application for a stay of proceedings, pending the determination of an action of ejectment in the Supreme Court begun by appellant against devisees under the will and others, to recover possession, among other real estate, of the premises so sold.

      John Q. Agar and Abram F. Servin, for the appellant.

      Fayson Merrill, for the respondent.
   O’BeieN, J.:

Elizabeth A. Stilwell died in 1890, seized of premises No. 214 West Thirty-fourth street, in the city of New York. Her will was subsequently, in 1891, admitted to probate in this county. This property, at the time of Mrs. Stilwell’s death, was subject to a mortgage. An action to foreclose this mortgage was commenced in July, 1891, and judgment therein entered in November, 1891, and thereunder the premises were sold and the surplus money arising therefrom was paid into the Surrogate’s Court, pursuant to section 2798 of the Code. An application was then made by one of the devisees of Mrs. Stilwell, in which proceeding the other devisees and the appellant Frances Dixon, who claims to be a daughter of Mrs. Stilwell, were parties, to distribute this surplus among the parties entitled thereto.

In answer to this application, Mrs. Dixon showed that on the 14th ■of September, 1891, she had commenced an action of ejectment to recover possession of the mortgaged premises, which was then and ■still is pending.

Though at first inclined to a different view, the surrogate, on .further consideration, decided that the pendency of the ejectment action was no obstacle to the proceeding in the Surrogate’s Court, and that that court had jurisdiction to try and decide the issues involved in the proceeding, and directed the parties claiming the fund to present, their proof before him. Thereupon, Mrs. Dixon 'filed an answer, but on the hearing presented no proof.

The conclusion reached by the surrogate, as shown in his opinion, is based upon three propositions :

First. That appellant’s rights to the land were cut off from the land by the sale in foreclosure and transferred to the surplus, and -could only be asserted in a proceeding for its distribution.

Second. That the provisions of the Code imperatively require that the surplus moneys be paid into the Surrogate’s Court.

Thwd. That these provisions, from the nature of the case, ■necessitate the jurisdiction by him commensurate with the purpose of this proceeding.

It appears that the appellant was a party to the foreclosure suit, •and that by the judgment, as amended, the surplus was directed to be paid into the Surrogate’s Court. There is nothing to show that ;any objection was made by the appellant to this provision of the * ■judgment, and we fail to see, therefore, how, many of the questions' now sought to be raised can be presented, or how they could be presented except by an appeal from the judgment.

If, however, we briefly consider tbe positions so ably presented by appellant, tbe conclusion will be similar to tbat reached by tbe learned surrogate. Tbat tbe claim of tbe appellant is subordinate to tbe lien of the mortgage, and by tbe sale was cut off and transferred to tbe surplus is evident. And even though a.claim or right originally existing against land might be litigated in an independent action, and the party not to be confined to the surplus proceeding — which is seemingly contrary to the view of the cases referred to by the surrogate — yet we think it clear that subsequent to the sale of the property an independent action in ejectment would not lie. The object of such an action is to put the plaintiff in possession of the land, and where the object sought to be accomplished no longer exists, it would be requiring of the court to litigate a purely abstract question; and though the court should take the appellant’s view that the surplus money had been substituted for the land, we cannot imagine what judgment in an action of ejectment could be rendered which would affect such surplus.

What was said in People ex rel. Morgan v. Rollins (33 Hun, 48, head-note), is here applicable: “ Where a court has acquired jurisdiction over a subject-matter, and the parties in interest, in the course of the exercise of its right of authority, it is its duty to proceed with the hearing until a final determination is made of the matters presented for its consideration and under its- control, unless it be prevented from so doing by an injunction or some other legal process rendering such a proceeding impracticable. A mere objection, or an objection followed by an ineffectual action in another court, will not justify a delay or a refusal to exercise its own rightful authority.”

We regard it as clear that, if the surrogate had jurisdiction of the subject-matter and the parties, he was not obliged to delay exercising such jurisdiction because similar questions were pending and under consideration in another forum. In other words, where there are concurrent remedies which are resorted to by different parties, the judge or court called upon to determine questions then before them, in the absence of any good reason for not exercising jurist diction, should not delay and await the result of an action or proceeding in another court. Of course there are instances where the facts would warrant a court in waiting for the conclusion of an action or proceeding in another court, but the present is not one of those, and for the reasons which we have already pointed out. "We are of opinion, therefore, that upon the facts appearing before the surrogate he was justified in proceeding, unless he was without jurisdiction over the subject-matter and the parties.

We are thus brought to a consideration of one of the most strenuous grounds relied upon by appellant, who takes this very position, claiming that sections 2797 and 2798 of the Code of Civil Procedure, if construed as a direction to pay all surplus moneys, after an action of foreclosure in the Supreme Court, into the Surrogate’s Court, are inoperative and void because unconstitutional. The further position is taken that, though these sections should be held not to be unconstitutional, they do not authorize direct payment into the Surrogate’s Court of the surplus arising from a sale in a foreclosure suit.

If the language of these sections should be held to be mandatory, requiring and directing the payment into the Surrogate’s Court of the surplus arising from a sale in a foreclosure suit brought in the Supreme Court, and thus depriving, the Supreme Court of part of the jurisdiction conferred upon it in all cases of law and equity by the Constitution, we should be inclined to hold that so much of the sections as tend to such a result would be unconstitutional. It has been held, however, by this court, construing chapter 658 of the Laws of 1867, as afterwards amended by chapter 170 of the £aws of 1870, which law is embodied in section 2798 of the Code, that it did not apply to sales made pursuant to judgments. (German Savings Bank v. Sharer, 25 Hun, 409.) That case is authority for the view that where, after the death of the owner of real property, an action is commenced to foreclose a mortgage thereupon, and the property is sold pursuant to the judgment in the action, the surplus moneys arising upon the sale might be distributed under the direction of the court.

While, therefore, the Supreme Court may proceed to distribute the surplus, and is not prevented from distributing the same by force of any seeming direction requiring that it should be deposited in the Surrogate’s Court, it does not from this follow that, because the Supreme Court has jurisdiction, it must itself proceed and exercise it. . Many instances might be suggested and thought of wherein,, there being no dispute or questions to be passed upon, it might be-entirely proper to relegate the subject of distribution to the Surrogate’s Court or to another jurisdiction. And it would seemingly follow that the power thus conferred by the Supreme Court upon either its own officer or referee, or subordinate tribunal, to distribute,, would include the necessary power to pass upon all questions essential to a just and equitable distribution of such surplus. However this may be, we do not think it can be seriously contended that, the Supreme Court in every case would be bound itself to proceed and distribute, or that it would have no right, upon proper facts, appearing, and where it would be for the advantage of all interested in the fund, to direct, by its order or judgment, the deposit of such surplus in the Surrogate’s Court, and leave to that court its distribution. That, in effect, is what was here done. The judgment of this, court, made in an action in which this very appellant was a party, as already stated, directed the deposit in the Surrogate’s Court; and. if there was any good reason why this provision of the -judgment, should not have been made, the time to object would have been when the judgment was rendered, and,' if aggrieved thereby, an appeal would supply a remedy to review the merits of such a grievance. 'Where, however, no objection was made and no appeal taken, and the fund has been deposited pursuant thereto in the Surrogate’s-Court, it is too late, upon the proceedings before the surrogate, to make the point that, his authority and jurisdiction being limited, he cannot determine all the questions that will arise between the parties-as to their conflicting claims to the fund.

We think, therefore, that the appellant is not in a position to-question the power of the surrogate or to now insist that he is without authority to pass upon the priority of conflicting chums between heir and devisee to the fund, as distinguished from their validity. Were the question, however, before us, we should be inclined to adopt the conclusion reached by the learned surrogate, that the subject having been referred to him, this, by force of the judgment and tne provisions of the Code, would necessitate the possession by the-Surrogate’s Court of a commensurate power and jurisdiction.

This conclusion is equally fatal to appellant’s further contention, that, as her answer presented questions involving the title to real estate or the validity of a will of real estate, the surrogate had no jurisdiction to decide upon such issues.

Our opinion, therefore, upon all the questions raised is that the surrogate was right in his conclusions, and that both the order and the decree should be affirmed, with costs.

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

Order and decree affirmed, with costs.


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    John L. Gross, Plaintiff, v. William L. Moore, as Administrator, with the Will Annexed, of Harriet Gross, Deceased, and Others, Defendants.

      Construction of a will — trust void because of a failure to designate beneficia/ries — exclusion of next of kin.

    The residuary clause of a will was as follows: “I give, devise and bequeath unto my executor hereinafter named all the rest, remainder and residue of my personal estate, to be distributed by him according to instructions given to him by me.” The only evidence as to instructions from the testatrix to the executor, was that she had instructed him to dispose of the residuary portion as he pleased “ only so that neither my brother normy sisters can get any part of it.”

      Held, that even if this evidence was competent and was given full effect, and the clause were .to be construed as a trust, the only trust suggested was one to keep the property out of the hands of the next of kin, which was neither a valid trust nor within those enumerated and permitted by statute;
    That upon the theory of a trust, it was void for uncertainty, because no beneficiaries were designated, nor was there anything from which the court could determine who were intended to-be the beneficiaries of the testatrix’s bounty;
    That under the clause quoted the executor-did not take an absolute interest for his own use personally ; and the trust attempted to be created being void for uncertainty, the testatrix died intestate as to the residuary portion of her estate.
    As the law requires a valid disposition of one’s property, in order to prevent the heirs and next of kin from taking, an intention to exclude them cannot be rendered effectual where the decedent, without having made any disposition of a portion of her property, with respect thereto has died intestate.
    Motion by the defendant, William L. Moore, as administrator witb the will annexed, of Harriet Gross, deceased, for a new trial upon exceptions taken at a trial before the court, at the New York Special Term, which resulted in an interlocutory decree, made on the 14th day of November, 1892, which directed judgment against the said defendant Moore, as administrator, and in favor of the plaintiff and the other defendants, in an action brought to obtain a construction of the residuary clause of the will of Harriet Gross, deceased.

      Cephas JSrainerd, for the plaintiff.

      H. Keitel, for the defendant Moore, administrator.

      Timothy Dammport, for the other defendants.
   O’Brien, J.:

By this action it is sought to invalidate the residuary clause in the will of Harriet Gross, deceased, which reads as follows: I give, devise and bequeath unto my executor hereinafter named all the rest, remainder and residue of my personal estate, to be distributed by him, according to instructions given to him by me.”

Upon the trial it was not shown, either by writing or by parol, what these instructions were. The ¿mly testimony looking to this end was that given by a son of the executor, who testified that his father told him “ that he had received instructions from Harriet Gross to dispose of that residuary portion as he pleased, ‘ only so that neither my brother nor my sisters can get any part of it.’ ” This evidence was objected to on the grounds, (1) that this witness could not testify to communications received by him from his father, the executor, as to oral communications made by the testatrix to the executor; (2) that parol declarations made by the testatrix as to her intention are not admissible in construing the will; (3) that the executor, if living, could not have testified to such oral communications under section 829 of the Code, and (4) that such evidence was purely hearsay.

¥e think that the objection to such evidence was valid upon the last ground stated, if upon no other, but it is not necessary to place our decision upon this ruling, because if regarded as competent evidence, and full force and effect be given to it, it would not change the conclusion to be reached. For it will be observed that no suggestion is made as to who were to be the beneficiaries under the-residuary clause, the testimony being directed to showing that the testatrix expressed a wish and gave instructions to exclude her brother and sisters, towards whom it would appear she occupied an unfriendly attitude.

If, therefore, the clause is to be construed as a trust, and not as an absolute gift, to the executor personally, then the only trust suggested is one to keep the property out of the hands of the next of kin. That such a trust is neither valid nor within those enumerated and permitted by statute, requires no discussion. As said in Holland v. Alcock (108 N. Y. 312): The existence of a valid trust capable of enforcement, is consequently essential, to enable one claimi’-g to hold as trustee, to withhold the property from the legal representatives of the alleged donor.” And upon the theory of a trust, it is void for uncertainty, because no beneficiaries are designated, nor is there anything from which the court can determine who were intended to be the beneficiaries of the testatrix’s bounty.

In Tilden v. Green (130 N. Y. 29, p. 45) the court say: The remark of Judge Weight in Levy v. Levy (33 N. Y. 107), that ‘ if there is a single postulate of the common law established by an unbroken line of decisions, it is that a trust without a certain beneficiary who can claim its enforcement is void,’ has been repeated and reiterated by recent decisions of this court (Prichard v. Thompson, 95 N. Y. 76; Holland v. Alcock, 108 id. 312; Read v. Williams, 125 id. 560), and the objection is not obviated by the existence of a power in the trustee to select a beneficiary unless the class of persons in whose favor the power may be exercised has been designated by the testator with such certainty that the court can ascertain who were the objects of the power.”

It is unnecessary, however, to further pursue the question of whether this is or is not a trust, for we do not think that the appelant relies upon this ground, his contention being that the executor under the bequest takes the absolute interest in the property bequeathed. It is insisted that the language used gave to the ■executor, in trust for himself, an absolute interest; that the beneficiary was definite and certain, and he was to do with the property' as he pleased. That this contention is unsound we think is apparent not only from the wording of the residuary clause itself, but by a consideration of the entire will. We think that the language directing that the residuum “ be distributed by him according to' the instructions given him by ” the testatrix negatives the view that the executor was to keep the property as his own. It equally negatives the idea that he was vested with a discretion which, had it been conferred, might have induced the court to construe this into a power of appointment.

Apart, however, from this clause itself, if resort be had to the entire will, it will be found that when the testatrix intended to make an absolute gift of her property, she used apt and technical language to express her intention. Thus with respect to the nine bequests given in other portions of the will she adds, after designating the legatee, that he is to take absolutely and forever.” In the residuary clause the language used is entirely different and is consistent only with the view that he was to take the property, not personally and for his own use, but as executor in trust for distribution in such proportions and to such beneficiaries as she by her instructions to him had designated. Having reached the conclusion, therefore, that by the residuary clause a beneficial interest therein is not given to the executor personally, and it being clear that the trust attempted to be created is void for uncertainty, the learned trial judge was correct in his conclusion that as to that portion of the estate the testatrix died intestate.

It is suggested that the effect of this construction is to permit the very persons to obtain a large portion of her estate, whom the testatrix intended to exclude. We are not responsible, however*, for her failure to carry out her verbally-expressed intention to exclude her brother and sisters, who were her only heirs and next of kin. Under the law these would take property which by will had not been otherwise disposed of. And as the law requires a valid disposition of one’s property in order to prevent his heirs and next of kin from taking, an intention to exclude them cannot be rendered effectual where the person, without having made any disposition of the property, with respect thereto dies intestate.

We are of opinion, therefore, that the exceptions should be over-, ruled and the motion denied, with costs and disbursements.

YaN BeuNt, P. J., and Follett, J., concurred.

Exceptions overruled and motion denied, with costs and .disbursements.


author: YaN BeüNt, P. J.:

text:
    Fred Williams, Appellant, v. Thomas J. Montgomery and Others, Respondents.

      Agreement to pool corporate stock — not enforcible by injunction.

    An agreement in writing, executed by persons interested in property which had heen transferred to a corporation then recently organized, provided, among other things, for the allotment of certain amounts of the corporate stock to the several parties to the agreement, and that the stock certificates to be issued therefor should be deposited with a certain trust company, “ and shall not be withdrawn for the period of six months from this date, without the written consent of each and every party hereto.”
    One of the parties to this ageeement having brought an action against the other parties thereto, to compel a specific performance thereof, applied for an injunction pendente lite restraining the defendants from delivering to any person other than the trust company designated in the agreement, any certificates of the stock of the corporation standing in their names, which motion for the injunction was denied.

      ■Held,, that the injunction was properly refused,, on the ground that the agreement was impossible of enforcement, for the reasons:

      Mrst. That if the agreement was intended to restrain the disposition of the property for a period of six months from the date of the agreement, it was inconsistent with the statutory provisions, and against public policy; and,

      Second. That the agreement imposed no restraint upon the disposition of the stock in question; that all that it would have prevented, if it had been carried out, was the actual handing over of the certificates of stock to the purchasers thereof, and the transfer of the same upon the books of the company; and that the plaintiff, by the breach of the provisions in reference to the deposit of the certificates under these circumstances, could have sustained no damage, and had no cause of action.
    Appeal by tbe plaintiff, Fred Williams, from an order of the Supreme Court, made at the New York Special Term, held at Chambers, and entered in the office of the clerk of the city and county of New York on the 10th day of February, 1893, denying the plaintiff’s motion for an injunction pendente lite, and dissolving a preliminary injunction theretofore granted.

      G. M. Pirmey, Jr., for the appellant.

      W. W. Oooh, for respondent Powell.

      J. PI. Miller, for respondent Montgomery.

      Stern <& Pushmore, for respondent Lande.
   YaN BeüNt, P. J.:

It appeared from the papers, that in September, 1892, the Hydraulic Brake Company was organized under the laws of the State of New Jersey, with a total capital stock of $5,000,000, which was to be issued for certain patents covering a railway train brake; and that prior to the month of November, 1892, the plaintiff was jointly interested with the defendants, Montgomery, Powell & Lande, in»said patents, which bad been theretofore transferred by the patentee, one Guernsey, to said company.

On the 16th of November, 1892, said Powell, Lande, Montgomery and Williams entered into an agreement in respect to the disposition of the stock of the corporation when it should be issued, which agreement bears date the 2d of November, 1892, and is as follows:

“ This agreement, made this second day of November, 1892, by and between John B. Powell, Bernard Lande and Thos. J. Montgomery, all of the city of New York, and Fred Williams, of London, England, witnesseth:

“ For and in consideration of one dollar paid by each of the parties hereto to each other, the receipt whereof is hereby respectively acknowledged, it is agreed as follows :

“ That of the capital stock of the Hydraulic Brake Company, one million ($1,000,000) dollars shall be put into the treasury of the company for working capital;

“Four hundred and fifty thousand ($450,000) dollars shall be issued to Messrs. Montgomery and Powell, as trustees;

“Four hundred thousand ($400,000) dollars to Messrs. Montgomery and Powell, as trustees;

“ One million and six thousand two hundred and fifty ($1,006,250) dollars to Thos. Montgomery;

“ Seven hundred and seventy-five thousand ($775,000) dollars to-John B. Powell;

“ Seven hundred and seventy-five thousand ($775,000) dollars to Bernard Lande; and'

“ Five hundred and forty-three thousand seven hundred and fifty ($543,750) dollars to Fred Williams.

“ We also agree that the above certificates to Montgomery, Powell, Lande and Williams, shall be deposited in the Central Trust Company, with a copy of this agreement, and shall not be withdrawn for the period of six months from this date, without the written consent of each and every party hereto; but with this proviso : That if sufficient treasury stock shall he sold to realize the sum of thirty thousand ($30,000) dollars in cash, then and in that event the stock which has been deposited in the Central Trust Company may be withdrawn by either of the parties, provided said party shall first notify the other parties hereto in writing, at least five days before said withdrawal.”

Attached to said instrument was this agreement:

“ Regarding the notification clause of 5 days in the within agreement, I hereby agree that any notice served upon my attorney, George M. Pinney, Jr., No. 96 Broadway, is binding upon me the same as if served upon myself.

“FRED WILLIAMS.”

Subsequent to the execution of said agreement there was issued to the said defendants, Montgomery, Powell & Lande, the stock of said company which they were respectively entitled to receive in accordance with said agreement; and the plaintiff, in his complaint, alleges that he has no knowledge or information sufficient to form a belief as to whether any certificate representing the plaintiff’s interest in said stock had been issued or delivered to any person whatsoever, and that no notice of such issue of stock had been given to the plaintiff, and that the fact that any part of said stock had actually been issued was concealed and withheld from the plaintiff by the defendants for the purpose of fraudulently carrying out a scheme to render that part of said agreement of November 2, 1892, providing for the deposit of certificates in the Central Trust Company, wholly inoperative, and for the further purpose of wrongfully and illegally securing to the defendant Montgomery a controlling interest in the stock of said brake company.

The complaint further alleged that after the stock of said brake company to which Powell and Lande were respectively entitled had been issued to them, the defendant Montgomery purchased, or “ agreed to purchase from said Lande and Powell, enough of their stock to give him, with his own stock, control of the capital stock of said brake company, and that pursuant to such agreement, the certificates representing tbe respective interests of said Lande and Rowell in said stock were deposited witb tbe defendant, tbe State Trust Company, together witb tbe agreement or agreements, under and pursuant to wbicli tbe said Montgomery bad purchased, or agreed to purchase, tbe stock of tbe said Lande and Powell.” Tbe complaint further alleges that none of 'the certificates of stock of said brake company issued to tbe defendants, Montgomery, Powell & Lande, or either of them, have been deposited in tbe Central Trust Company as provided in said agreement, and that no certificate representing tbe interest of this plaintiff in tbe stock of said company had ever been deposited in tbe Central Trust Company, as provided in said agreement.

The complaint further alleges : “ That this plaintiff did not until •January 24th, 1893, or thereabouts, ascertain that said agreement of November 2d, 1892, bad been broken by tbe defendants, Montgomery, Powell and Lande, and an attempt made to render tbe same wholly inoperative, and that immediately upon making such discovery, tbe plaintiff demanded of tbe defendants, Montgomery, Powell and Lande, that tbe certificates of tbe stock of said brake company, issued to tbe said defendants, and tbe certificates issued, or to be issued to this plaintiff, as provided in said agreement, be at once deposited in tbe Central Trust Company, together witb a copy of said agreement, but that tbe said defendants, Montgomery, Powell and Lande, having wholly refused, and still refuse to comply with said demand.”

The complaint further states that unless tbe defendants and each of them be enjoined and restrained from making any other disposition of tbe certificates of said stock now in possession of the defendant, tbe State Trust Company, standing in tbe names of Montgomery, Powell & Lande, than to deliver same to ' the Central Trust Company, as provided in said agreement, tbe plaintiff will suffer irreparable and incalculable loss and damage, and tbe control of said brake company will become vested, in Montgomery contrary to and in defiance of tbe spirit and intention of said agreement; and that tbe whole object and purpose of tbe plaintiff and of tbe defendants, Montgomery, Powell & Lande, in executing said agreement, a£ was fully understood by each of them, was to place defendants and plaintiff on an equal footing as regarded tbe control of said company for a period of six months after the stock had been issued, and also to prevent for the same period any sales by said defendants or by plaintiff of their respective individual holdings of said stock, Unless in the meantime a sufficient part of the treasury stock of said company should be sold to realize $30,000 in cash for the use of the company, and “ that if the scheme of said Montgomery to obtain a controlling interest in the stock of said brake company by violating-said agreement of November 2d, 1892, is carried out, it will, as the plaintiff is advised and believes, be impossible to sell any part of the treasury stock of said company for the purpose of meeting the obligations of the company and of paying its necessary current-expenses ; that said Montgomery already has or pretends to have a. first claim against said company to the extent of five thousand dollars ($5,000) for moneys advanced to said company to pay two-certain notes made by it to one Guernsey, and that a part of the-scheme of said Montgomery in acquiring a controlling interest in the company is to have the company and this plaintiff as a minority stockholder, absolutely at his, the said Montgomery’s, mercy, as a. creditor of said company and in defiance of said agreement of November 2d, 1892.”

Wherefore the plaintiff demanded judgment, among other things,, for an injunction restraining defendants from delivering to any person other than the Central Trust Company any certificates of the stock of the Hydraulic Brake Company standing in the names of' or issued to the defendants, Montgomery, Powell & Lande, and the-plaintiff, or either of them, as trustees or otherwise.

The defendants admit the making of the agreement in question and some of the alleged objects of the agreement, and allege that, despite the efforts of all persons interested in said company no saleeould be made of any of said treasury stock, and that in December, 1892, the difficulties of the company and its financial embarrassments became pressing and were discussed by the defendants, Montgomery, Powell & Lande, and the defendant Montgomery informed them that he was unable to obtain assistance from his friends unless he-might own and control a majority of the stock, and that if an agreement could be made whereby said Powell and Lande would sell to him out of their interests, whereby he might obtain a majority of the stock, he thought he could obtain the necessary assistance to pay tlie debts of tlie company, and that an agreement was reached whereby Powell and Lande agreed to sell sufficient of their stock to give him control of the company, and the amount of shares belonging to Powell and Lande, together with the agreement of Montgomery to purchase, were deposited with the State Trust Company, and that after this arrangement had been made Montgomery obtained from his friends the assistance desired to relieve the company temporarily from its financial embarrassments.

The defendants deny the concealment of the issue of stock,.or' that such issue of stock had anything to do with any fraudulent scheme, or otherwise to render the agreement inoperative or void. And defendants deny that the object and purpose of said agreement was to place defendants and the plaintiff upon an equal footing as regards the control of said company, or that said agreement prohibited sales by any of the parties of their respective holdings unless sufficient treasury stock was sold to realize $30,000 for the use of the company And defendants allege that the intention of the parties was that they should be prohibited from offering to the public, or on the market generally, their respective sha,res at such a price or under conditions that would interfere with the value of the stock, or the possibility of realizing an amount of money to the extent of at least $30,000 by the sale of the whole or any portion of the treasury stock. And the defendants deny that the fact that Montgomery has obtained control will render it impossible to sell any of the treasury stock.

Up'on this state of facts the court dissolved the preliminary injunction which had been procured upon the application of the plaintiff at the commencement of the action, .and from the order thereupon entered this appeal is taken.

The case of the plaintiff, as alleged in his complaint, seems to be based upon assumptions as to the object and purpose of the agreement of November, 1892, which are not contained therein, and which form no part thereof.

If it was the intention of these parties by the deposit of these certificates in the Central Trust Company, to prevent any disposition of this stock by the parties owning the same for the period of six months, such an arrangement, if not void as being contrary to the statute, is certainly unenforcible as against public policy.

Persons cannot agree to surrender the control and ownership of property belonging to them for a definite period, and enforce such an agreement in any court of justice.

And furthermore, it is urged that the object and purpose of the deposit of this stock was to prevent the defendant Montgomery from obtaining control of this corporation. It is not alleged that any such agreeement was entered into between these parties, and it is not contained in the written instrument under consideration. And that such was not the understanding of the parties seems to be evident from the fact that the ownership of any number of shares of stock of this corporation for this period of six months within the first year of its organization, would give the defendant no greater control of the corporation than he had at the time of the execution of this agreement. There was no allegation that there was to be any election of trustees or directors, or that the ownership of this stock could be used for any purpose in reference to the conduct of the business of the corporation.

The claim that it was the understanding of the parties that this deposit was to be made in order that these parties should be upon an equality in reference to this corporation, seems upon its face to be absolutely incredible, in that no reason whatever is assigned why the parties owning the greater number of shares in this stock should surrender any advantage which such ownership could possibly give.

It is admitted that the object of these parties was to prevent this stock from getting upon the market until some of the treasury stock, might be sold to provide funds for carrying on the business of the company. But there is nothing in this agreement which prevented the defendant Montgomery either from purchasing the stock of Powell and Lande, or from purchasing the debts due from the corporation, and thus obtaining any advantage which might accrue from such purchase and ownership.

Indeed, the learned counsel for the plaintiff, in one portion of his brief, urges that Montgomery’s purchase Powell and Lande’s shares was plainly contrary to the agreement of November, 1892; and in another part claims that the legal objection urged by the counsel for the defendant, that the agreement is void and against public policy and in restraint of trade, is untenable because there is nothing in the agreement which restrains the defendants from agreeing to transfer their shares for the period of six months, but that they are simply prohibited from making title by the transfer and delivery of the certificates, which, in the present case, they attempted to do, as the certificates are to be delivered to Montgomery upon the payment of his notes, the last of which matures on the sixteenth of March.

Now, it is idle to say that the mere want of possession of these certificates of stock prevented the transfer of the title thereto. It may be true that, without the surrender of the certificates, Montgomery could not become the holder of the stock upon the books of the company. But there is no intimation that there was any advantage to be gained by having the stock transferred to Montgomery’s name upon the books of the company. Therefore, it is conceded, as well as denied, by the plaintiff’s counsel, that Montgomery had a right to purchase this stock and become the owner thereof, and the only thing that he was prohibited from doing was to have the manna! possession of the certificates and to have them transferred to his own name. What possible advantage the mere prohibition of the manual possession of these certificates could be to the plaintiff, it is difficult to imagine. As already seen, the title to the stock could be transferred, perhaps not with equal facility, but with equal security, the certificates being in the hands of a responsible depositary.

Some point seems to have been made upon the part of the plaintiff that no notice of the issue of this stock had been given to him, and that his stock had not been deposited with the Central Trust Company. There is no obligation contained in the agreement to notify the plaintiff of the issue of the stock to him. Nor is there any undertaking upon the part of the defendants to deposit his stock with the trust company. And the point that these various notices might have been given to the plaintiff through his attorney because of the addendum to the agreement of November, 1892, is certainly not well taken, because if it had been necessary to give the plaintiff notice of any of these facts in order to have protected the defendants, and a notice had been given to his attorney and the plaintiff had desired to repudiate that notice, he would have said at once, “ I did not agree to accept the notice that way,” and he would have referred to the only agreement which he executed authorizing notice to be given to his attorney, and that is expressly limited to the' notification clause of five days, which related to the authority of any of the parties to withdraw the stock if - $30,000 in cash of treasury stock had been sold, upon giving five days’ notice to the other parties in writing.

It seems to us upon the whole case, entirely independent of the question as to whether it was necessary for Montgomery to acquire the title to this stock in order that he might procure money to relieve the company from embarrassment, and as to what his purpose was, that the agreement under consideration was impossible to be enforced:

First. Because if it was intended to restrain the disposition of this property for a period of six months from the date of the agreement, it was against the statute and public policy; and,

Secondly. Because the agreement imposed no restraint upon the disposition of the stock in question. All that it prevented, if it had been carried out, was. the actual handing over of the certificates of stock to the purchasers thereof, and the transfer of the same upon 'the books of the company, and it is evident that the plaintiff, by the breach of the provisions in reference to the deposit of these certificates under these circumstances, could have sustained no damage, and has no cause of action.

The order should be affirmed, with costs.

O’Brien and Follett, JJ., concurred.

Order affirmed, with costs.


author: Yan Brunt, P. J.:

text:
    Patrick J. Murphy, Appellant, v. Mary Naughton, Individually and as Administratrix, etc., of Thomas J. Naughton, Deceased, Respondent.

      Oomplaint against an executor as such and individually —joinder of causes of action — costs on sustaining a demurrer — funeral expenses.

    By force of section 1815 of tbe Code of Civil Procedure, a complaint may contain a cause of action against an executor or administrator, personally and in his representative capacity, without there being any misjoinder of causes of action.
    Where a complaint against a defendant, individually and as administrator, states facts sufficient to constitute a cause of action as against the defendant individually, but not as administrator, and tbe words “individually and as administrator” cannot be treated as surplusage, for the reason that the body of tbe complaint shows that the pleader intended to hold the defendant liable in both capacities, it is proper to allow costs against the plaintiff on sustaining a demurrer, setting forth several grounds of objection to the complaint, on the single ground that the complaint fails to state facts sufficient to charge the defendant as administrator.
    Debts incurred by an executor or administrator subsequent to the death of his decedent, including those for funeral expenses and proper to be allowed on tbe passage of his accounts, do not create a liability against him in his representative capacity, but create a personal liability only.
    Appeal by the plaintiff, Patrick J. Murphy, from an interlocutory judgment of the Supreme Court, rendered at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 24th day of February, 1893, sustaining the defendant’s demurrer to the complaint.

      F. Solinger, for the appellant.

      M. Fsberg, for the respondent.
   Yan Brunt, P. J.:

This action is brought against Mary Naughton, individually and as administratrix of the goods, etc., of Thomas J. Naughton, deceased. The complaint alleges the death of Thomas J. Naughton, and the issuance of letters of administration upon his estate to the defendant, and her qualification ; that the plaintiff is an undertaker, and at the request of the defendant furnished casket, hearse, carriages and other necessaries for the funeral of deceased, which services and material were reasonably worth the sum of $376.90, and that the whole of said sum was due and judgment was demanded therefor.

The defendant demurred to the complaint upon three separate and distinct grounds:

First. That it appeared upon the face of the complaint that it did not state facts sufficient to constitute a cause of action.

Second. That in the complaint two causes of action had been improperly united, to wit: an action against the defendant, Mary Naughton, individually, and an action against her as administratrix.

Thi/rd. That the complaint did not state facts sufficient to constitute a cause of action to charge the defendant as administratrix.

The court below sustained the demurrer as to the second and third grounds, and an interlocutory judgment was thereupon entered from which this appeal is taken.

It is not claimed upon this appeal that the complaint does not state a good cause of action as against the defendant individually, but it is urged that there is no misjoinder of causes of action for the reason that the facts stated in the complaint constituted but one cause of action; and that having failed to sustain the demurrer on the second ground, costs should not have been awarded against the appellant.

In the consideration of these questions it is necessary to refer to ■section 1815 of the Code; because cases may exist where an action is brought for hut one cause of action in which a person may be sued both in an individual and in a representative capacity. This section so far as applicable to the case at bar is as follows: An action may be brought against an executor or administrator personally, and also in his representative capacity in either of the following cases: First, where the complaint sets forth a cause of action against him in both capacities, or states facts which render it uncertain in which capacity the cause of action exists against him.” A complaint may, therefore, contain a cause of action against an executor or administrator personally, and in his representative capacity without there being any misjoinder of causes of action. Consequently the court erred in sustaining the demurrer upon the ground of misjoinder of causes of action.

Rut upon an examination of the complaint it will be seen that no cause of action whatever is alleged against the defendant in a representative capacity. She is not liable in her representative capacity for debts incurred subsequent to the death of the deceased, even though they may be incurred in respect to the administration of the estate, and although upon the passage of her accounts such indebtedness might be proper to be allowed to an administratrix. It is only a personal liability, and the defendant could only be charged personally in an action for the funeral expenses. There is, therefore, no cause' of action set out against the defendant in her representative capacity. In view of the provisions of the Code, the words “ individually and as administratrix ” cannot he treated as mere surplusage, because it was the evident intention of the pleader to hold the defendant liable in both capacities, the allegation in the complaint of the appointment of the defendant as administratrix being only pertinent to a claim against her in her representative capacity.

In view of the fact that no cause of action was set out against the defendant in such representative capacity we do not think that the court erred in allowing costs upon the demurrer.

The judgment must, therefore, be modified by sustaining the demurrer only as to the third ground, and, as modified, affirmed without costs of this appeal to either party.

O’Brien and Follett, JJ., concurred.

Judgment modified by sustaining the demurrer only as to the third ground, and, as modified, affirmed without costs of this appeal to either party.


text:
    Michael Edesheimer and Another, Appellants, v. Amos Quackenbush, Respondent, Impleaded with Huldah Ann Wicks.

      Lease made by joint owner's — covenant for quiet enjoyment — breach by one owner, binding upon the other.

    In an action by a lessee, for the breach of a covenant of quiet enjoyment in a lease, of premises owned by two persons, executed by the two owners jointly, and in which action both lessors are named as defendants, but only one has. been served with process, evidence tending to show acts on the part of the defendant not served, but with whom the negotiations for the lease were had, whereby the covenant of the lease was broken, as, e. g., in permitting a former subtenant of a prior lessee, whose lease had expired, to retain possession of part of the leased premises, is competent as against the defendant served and in court, when the evidence in the case is such as to warrant the inference of authority upon the part of the defendant not served to act in regard to the property and to bind the other defendant in reference thereto.
    Appeal by the plaintiffs, Isaac Edesheimer and Michael Edesheimer, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 1st day of July, 1892, in favor of the defendant, Amos Quackenbush, upon the dismissal of the complaint on the merits at the New York Circuit.

      JB. Loewy, for the appellants.

      G. A. Hart, for the respondent.
   Yan Brunt, P. J.:

This action was brought against the defendant, Amos Quackenbush, and his mother, Huldah A.Wicks, to recover damages claimed to have been sustained by the plaintiffs for breach of the covenant of quiet enjoyment in a lease executed by said Wicks and Quackenbush to the plaintiffs.

The complaint alleged the execution of the lease, which was admitted by the answer; and that the defendants unlawfully and in violation of the terms and covenants of the lease have wholly neglected and refused to give possession to the plaintiffs of the entire buildings and premises leased, but have unlawfully seized and kept the plaintiffs from the possession and occupancy of a valuable part of ■said premises, to the damage of the plaintiffs. The summons and complaint herein were served upon the defendant Quackenbush ■only, and he only answered.

Upon the trial it appeared that the plaintiffs had been in possession of a portion of the premises in question for a considerable period of time under a sublease executed by one Storz, who held a lease of the whole premises from the defendants, and that one McMahon was a subtenant of said Storz of the balance of the premises in question. Prior to the 1st of May, 1890, the date of the •expiration of the Storz lease, the plaintiffs had negotiations with the defendant Wicks for a lease of the premises in question. These negotiations resulted in the signing and acknowledging by the defendants on the 14th of April, 1890, of an instrument leasing the whole of the premises in question to the plaintiffs; the execution of which lease was completed on the 3d of May, 1890, by the signing and acknowledging thereof by the defendants, and delivery to the plaintiffs. The plaintiffs being unable to get possession of the whole of the premises, because of the occupancy of McMahon of the part which he had leased from Storz, brought this action, claiming among other things, that McMahon remained in said premises by and with the consent of the defendants; and that, therefore, there was a breach of the covenant of quiet enjoyment.

It was attempted to be proved upon the trial that McMahon remained in tbe premises in pursuance of some arrangement or agreement with the defendant "Wicks in respect thereto. This evidence was excluded upon the ground that the defendant Wicks had not. been served with process, and was not in court, and that she could not bind the defendant Quackenbush. The complaint was subsequently dismissed, and an exception taken, and from the judgment thereupon entered, this appeal is taken.

It is urged upon the part of the respondent, that this action cannot be maintained, because the defendants were under no obligation to place the lessees in possession of the premises in question under the authority of Gardner v. Keteltas (3 Hill, 330). But it seems-to us that in view of the evidence which was offered upon the trial of this action, the case of Gardner v. Keteltas is not a controlling-authority.

There is no question but that if McMahon was in possession of' the premises by and with the consent of the landlords, this action would lie; and, therefore, the point presented, is whether there was. an attempt to prove such consent by competent evidence.

We think that proof tending to show that McMahon was in the premises by the consent, and under an agreement with one of the joint lessors named in this lease, and one of the common owners of the premises in question, was competent.

It appears from the evidence which was actually admitted, that-the owners of the premises in question did not each act for themselves, but that Mrs. Wicks acted on behalf of both, and that the renting of this property was attended to on behalf of both for a considerable period of time, as it might be most convenient for each to attend to the same. And it appears from the evidence that the-negotiations for the renting of the premises to the plaintiffs was had with the defendant Wicks alone, and that the lease was subsequently-executed by the defendants Wicks and Quackenbush. From all these facts, if for no other reason, it was within the province of the jury to infer an authority upon the part of the defendant Wicks to-act in regard to this property and to bind the defendant Quackenbush. And it must be borne in mind that in respect to the terms-of this lease, the defendants Wicks and Quackenbush are joint obligors. They both executed the lease; they both entered into the covenants therein contained, and, therefore, it may well be urged that the action of either in respect to premises over which they both, assumed control, whereby the covenants of a lease which they both executed were broken, made both liable to the penalties thereby incurred.

We think, therefore, it was error to take the case from the jury and also to exclude the evidence tending to show that the trespasser who withheld possession of a portion of the premises leased to the plaintiffs, did so by and with the consent of one of the lessors named in the lease.

The judgment should be reversed and a new trial ordered, with costs to appellants to abide event.

O’Brien and Follett, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellants to abide event.


text:
    Henry W. T. Steinway, Respondent, v. William Steinway and Steinway & Sons, Appellants.

      Pleading — compelling a reply to nexo matter in an answer — Code of Oivil Procedure, g 516.
    A party is not required to admit or deny evidence set out in a pleading, and Fence a plaintiff will not be compelled, under section 516 oí tlie Code of Civil Procedure, to reply to new matter in an answer consisting of tlie statement of evidentiary facts, and not the tendering of an issue of fact, or the allegation of a conclusion of fact.
    A complaint prayed that an individual defendant be adjudged to pay over to a corporate defendant, of which the plaintiff was a stockholder and the individual defendant president, certain profits received from transactions set up in the complaint.
    The answer alleged, as new matter in avoidance, the offer by the individual defendant of certain property to the corporate defendant at a meeting of its trustees, at which the plaintiff was present, the unanimous acceptance of the offer in the presence of the plaintiff, without objection by him, and the ratification of the action of the trustees by all the stockholders of the corporation, including the plaintiff.

      Reld, that this defense tendered an issue of fact, in respect to which the defendants were entitled to a reply, in order to know whether the issue tendered was to be admitted or denied, and, if admitted, how the plaintiff would seek to avoid the legal effect of the admission, so that the defendants should not be surprised upon the trial.

      Appeal by the defendants, William Steinway and Steinway & Sons, from an order of tlie Supreme Court, made at the New York Special Term at Chambers, and entered in the office of the clerk of the city and county of New York on the 13th day of January, 1893, denying the defendants’ motion, under section 516 of the Code of Civil Procedure, to require the plaintiff to reply to new matter set up in the answer.
    It is stated in the complaint that the defendant, Steinway & Sons, is a domestic corporation; that the plaintiff is a stockholder of record therein, and that the defendant, William Steinway, is, and has been since the organization of the corporation, its president and one of its trustees.

      George IF. Gotterill, for the appellants.

      JVm. J. Curtis, for the respondent.
   Yan Brunt, P. J.:

This action was brought praying judgment that the defendant William Steinway be adjudged to pay over to the defendant Steinway & Sons certain profits which accrued to and were received by him from certain transactions set up in the complaint, which are alleged to have been received in violation of the rights of the defendant Steinway & Sons.

The answer denies many of the allegations contained in the complaint and sets up a large amount of new matter by way of defense; and a motion was made to compel the plaintiff to reply to this new matter, which motion was denied, and from the order thereupon entered this appeal is taken.

In respect to a large part of the matter set up in the answer by way of defense, the difficulty in compelling a reply thereto is that it consists of the setting'j.orth of evidentiary facts, and not the tendering of an issue of fact, or the allegation of a conclusion of fact; and, therefore, a reply should not be compelled, as a party is not required to admit or deny evidence set out in a pleading.

But there is one defense set up in the answer which does seem to tender an issue of fact, and in respect to which the defendants are entitled to know whether the issue tendered is to be admitted or denied, and if admitted, how the plaintiff will seek to avoid the legal effect of tlie admission, so that the defendants shall not be surprised upon the trial. And this is the defense contained in the tenth paragraph of the answer.

In that (paragraph it is alleged, perhaps more in detail than is consistent with good pleading, that in December, 1889, at a meeting of the board of trustees of Steinway & Sons, at which the plaintiff was present, and all the trustees, except one, who was then in Europe, the defendant, William Steinway, offered in writing to Steinway & Sons the business established in Hamburg, the German patents, trademarks, good will and personal property upon certain terms therein specified; and that at said meeting the offer of said defendant was accepted unanimously in the presence of the plaintiff, who offered no opposition, and that said written offer and proceedings of the board accepting the same were duly entered upon defendants’, Steinway & Sons’, minutes; and that such action of the board of trustees was ratified by the then absent trustee upon his return from Europe; and that at said meeting all of the capital stock of the defendant corporation was duly represented, and all the stockholders ratified the acts of the trustees, including the plaintiff; and that agreeably to said offer and acceptance the said business, personal property and good will were turned over to Steinway & Sons, who have ever since enjoyed and possessed the same.

The defendants are entitled to know whether the plaintiff admits or denies these allegations in respect to the proceedings which resulted in a ratification by him of the transfer of this property to the defendants, Steinway & Sons; and if he admits the facts how he proposes to avoid their legal effect, which matter in avoidance it may be impossible for the defendants to anticipate or be prepared for, if they have no notice of its nature before it is produced upon the trial.

I am of the opinion, therefore, that the order should be modified by requiring plaintiff to reply to the allegations contained in said, tenth paragraph, and as modified, affirmed, without costs.

O’Brien and Eollett, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed,, without costs.


text:
    Alfred Hopcraft, Respondent, v. Henry Lachman and Albert Lachman, as Sole Surviving Partners of the Firm of S. Lachman & Company, Appellants.

      Contradictions between letters written by a pa/rty and the testimony of his witnesses— charge to the jury.

    Contradictions' between letters written by tbe plaintiff and tbe testimony of bis witnesses, held, not to be of such a character as to call for tbe reversal of a verdict in bis favor, upon tbe ground that tbe contradictions rendered tbe testimony of tbe witnesses insufficient to justify tbe jury in basing a verdict upon it.
    Where tbe court has covered a point in its original charge, it is not required to ' repeat tbe same, and it is not error to refuse so to charge.
    Appeal by the defendants, Henry Lachman and Albert Lachman, as sole surviving partners of the firm of S. Lachman & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 23d day of November, 1892, upon a verdict rendered at the New York Circuit, and from an order denying the defendants’ motion for a new trial made upon the minutes.

      H. Frank, for the appellants.

      P. Carpenter, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover damages for the defendants.” breach of a contract according to which the plaintiff was to manufacture 500 ornamental signs, and the defendants were to pay him four dollars and fifty cents each for them.

The main question presented upon this appeal is whether the evidence was sufficient to justify the jury in finding a verdict in favor of the plaintiff. It must be conceded that upon the oral testimony-given upon the trial a case upon the part of the plaintiff was made out. But it is claimed that certain correspondence between the plaintiff and the defendants was so far at variance with and in contradiction of the testimony of the plaintiff’s witnesses, that it showed that such testimony was unreliable, untrustworthy and insufficient to justify the jury in basing a verdict upon it.

It is to be observed that the plaintiff in respect to the material parts of the contract in question, was unable to testify in consequence of the death of one of the members of defendants’ firm with whom such contract was made, consequently the letters in question were not relied upon as in contradiction of the testimony of the plaintiff himself, but of witnesses who testified as to conversations had between the plaintiff and the deceased partner in their presence.

It seems to be true that there are contradictions between some of the expressions contained in these letters and the version of the transaction as given by the witnesses upon the part of the plaintiff. But we do not think that these contradictions are of such a character as to call upon us for a reversal of the verdict of the jury. The jury heard the witnesses testify, heard the correspondence read, and had their attention called to the contradictions; and, notwithstanding, found a verdict in favor of the plaintiff. We find no sufficient reason suggested upon the part of the appellant for disturbing that verdict.

It is not necessary in the consideration of this appeal to rehearse in detail the testimony and the letters.

The principal controversy between the parties related to the question as to who was to approve of the plans of the work proposed to be done, it being claimed upon the part of the plaintiff, that such approval was to be made, and was made by Samuel Bachman, the deceased partner, leaving only a few immaterial parts thereof to be approved by his son Albert, and the contention of the defendants being that the whole plan, of the work was to be approved by the son Albert. This issue was distinctly submitted to the jury, and their attention called to the testimony and to the letters which had been offered in evidence. And the question submitted was whether the contract was such as claimed by the plaintiff, or as claimed by the defendant. And they were instructed by the court that if the contract was as claimed by the plaintiff, tli(e plaintiff was entitled to a verdict; but if, on the other hand, the contract was as claimed by the defendants, the plaintiff was not entitled to recover; and upon this issue, plainly presented, the jury found a verdict in favor of the plaintiff.

"Various exceptions to the charge are called to our attention, and urged as matter of error upon this appeal. It will be found, however, upon an examination of the pase, that the court charged all that tbe defendants were entitled to. And where the court has covered 'a point in its original charge, it is not required to repeat the same ; and it is not error to refuse so to charge. If a party is not satisfied with a point clearly and squarely covered by the charge, he must take the effect upon the jury of a direct refusal to repeat the charge if he makes a request.

The requests in regard to the right of the jury to reject any and all evidence as to conversations between Samuel Lacliman and the witnesses, was entirely covered by the statement of the court that he left it to the jury to judge of the value of the testimony and its probative force, even if the request had not been previously covered by the language of the court in its charge.

The claim that the court charged that the decorations were one of the immaterial parts of the work, is not well taken, because the court did not so charge. "What the court did say, was that such was the testimony offered upon the part of the plaintiff, and did not charge it as a fact.

The objections taken to the admission and exclusion of testimony, are not of sufficient importance to need special comment.

The judgment should be affirmed, with costs.

O’Brien and Pollett, J.J., concurred.

Judgment affirmed, with costs.


author: O’Brien, J.: Van Brunt, P. J.:

text:
    Walter Carter, as Executor, etc., of John Spaulding, late of the City, County and State of New York, Deceased, Respondent, v. The Board of Education of the Presbyterian Church of the United States of America, and Others, Appellants, and Abel Spaulding, and Others, Respondents.

      Sight of an executor to compel repayment of money paid by him on void legacies — bequests to Pennsylvania religious corporations — general and specific residuary clauses in wills.

    The fact that an executor may he exempt from liability for payments made by him in good faith, under the terms of the will, on account of legacies which are subsequently held to he void, does not preclude him from recovering the money from the parties to whom it was paid without right, or invest such parties with the title to the money.

      The doctrine established by Kerr v. Dougherty, 79 N. Y. 327 — that a legacy, given by the will of a resident of the State of New York, executed less than one month before his death, to a religious corporation of the State of Pennsylvania, is void, because of the Pennsylvania statute which prohibits devises or bequests to any body politic, or person in trust, for religious or charitable uses, unless by will made at least one month before the death of the testator — applied.
    A will, after directing the executors to convert the testator’s property into money and “to pay and dispose of the proceeds thereof as herein directed,” gave four-legacies of the same amount each to certain religious corporations, and then provided as follows: “ And whatever moneys may remain in the hands of my said executors after the payment of the foregoing bequests, I hereby direct my said executors to divide into three equal parts and to pay one-third thereof ” to-each of three other religious and charitable corporations ; two of the four legacies first provided for proved to be void.

      Held, on a consideration of the whole will, that the -residuary clause above quoted was general and not specific, and, hence, that the amount of the void legacies should go to the legatees -named in the residuary clause, and not to the next of kin as undisposed of by the will.
    Appeals by the defendants, the Board of Education of the Presbyterian Church in the United States of America, the Presbyterian Board of Relief for Disabled Ministers and the Widows and Orphans of Deceased Ministers, the Board of Church Erection Fund of the General Assembly of the Presbyterian Church in the United States of America, and the Presbyterian Board of Aid for Colleges and Academies, from parts of a judgment of the Supreme Court, rendered upon the decision of the court at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 20th day of December, 1892.
    The case of Kerr v. Dougherty (79 N. Y. 327, approved in Hollis v. Drew Theological Semincvry, 95 id. 166), referred to in the following opinion, establishes the doctrine, among others, that the provision of the act of the Legislature of Pennsylvania of' 1853, relating to corporations, etc., which prohibits devises or bequests to any body politic, or person in trust, for religious or charitable uses, unless by will executed at least one month before the death of the testator, relates to and affects the power to take as. well as the power to devise, and, therefore, that a religious corporation of that State cannot take a bequest to it in trust for such purposes contained in a will executed in the State of New York by a. citizen thereof within one month of his death, and such a bequest is void.
    The defendants, the Board of Education and the Board of Relief for Disabled Ministers, are religious and charitable corporations of the State of Pennsylvania. None of the societies mentioned herein were formed under the general act of 1848 of the State of New York for the incorporation of benevolent, charitable and missionary societies.

      John JE. Parsons, for the appellants.

      Delos MoOurdy, for the plaintiff (respondent).

      John P. Ola/rk, for the defendants (respondents).
   O’Brien, J.:

John Spaulding, the testator, executed his will March 21, 1889. He died March 30, 1889. He left surviving him no issue, or widow, father or mother, but did leave certain next of kin and heirs at law, brothers and sisters, nephews and nieces, all parties to this action.

At the time of his death he was 'seized and possessed of real and personal property situate within this State to the value of $45,000.

By his will he directed his executors to convert his estate into money as soon as convenient, and to pay and dispose of the proceeds as directed.

He made these specified bequests to certain charitable organizations and corporations of the Presbyterian church:

Board of Home Missions, $3,000. There is no controversy as to this. Board of Foreign Missions, $3,000. There is no controversy as to this. Board of Education, $3,000. Declared to be invalid. Board of Relief for Disabled Ministers, etc., $3,000. Declared to be invalid.

The will then proceeded:

“And whatever moneys may remain in the hands of my said executors after the payment of the foregoing bequests, I hereby direct my said executors to divide into three equal parts, and to pay one-tliird thereof ” to the American Seaman’s Friend Society, one-third thereof to the Board of Church Erection Fund, and one-third thereof to the Board of Aid for Colleges.

This clause was held by the court below to be a specific residuary clause, and, therefore, the amount of the invalid legacies passed to the next of kin as undisposed of by the will.

The different appeals bring up these three points:

1. That it was error to allow the plaintiff to recover back the amounts he had paid on account of the legacies now found to be void — brought up by the appeals of the Board of Relief and the Board of Education.

2. That it was error to adjudge void the legacy to the Board of Education — brought up by the appeal of that board.

3. That it was error to hold that the void legacies, if any, did not fall into the residuum and pass to the residuary legatees — brought up by the appeals of the Board of Church Erection and Board of Aid for Colleges.

To sustain the contention that it was error to allow the plaintiff to recover back the amounts he had paid on account of the void legacies, it is insisted that there was no evidence to support the finding that the executor made these payments under a mistake of fact; and that, even though there had been, nevertheless, it was error to conclude as a matter of law that these boards must refund to the executor the amounts already paid by him on account of their legacies. Appellants invoke the well-settled rule, that to warrant a court of equity to relieve against mistake of fact, it must be the mutual mistake of both parties, or there must be the mistake of one and the fraud of the other in taking advantage of it; and another rule, equally well settled, that, where the executor volunteers to pay the whole or any portion of a legacy, and it subsequently appears that the assets are not sufficient to justify a payment to that extent, the loss must fall upon the executor, and he cannot compel the legatee to refund.

This last rule we do not think can apply to a case such as this, where the payment is not made voluntarily and upon an assumption that there are assets sufficient, which assumption subsequently turns out to be erroneous. Here the executor, under the terms of the will, was directed and required to pay these legacies, and, having no reason to believe that the legacies themselves were void, it was in the discharge of his duty as executor that the payments were made. The legacies themselves, however, having by the judgment been declared void, we can think of no principle that would protect the legatees from being obliged to refund the amounts thus paid to them. The right to require such a payment is in no way affected by the fact that the executor would be protected from personal liability for such payments made by him. In other words, the exemption from liability with which the law might clothe the executor for payments made in good faith could not be extended so as to preclude him from recovering back from the parties to whom the money was paid without right, or invest such parties with the title to such moneys.

The analogy sought to be drawn between a payment made by an executor of a legacy held to be void, and a payment made by an assignee under the terms of an assignment held to be void, is illusory, as the distinction between the two makes clearly evident. In the case of an assignment subsequently held to be void, a payment by the assignee to a preferred or general bona fide creditor before action brought to attack the assignment would not make the assignee responsible for such payment. But is there any doubt as to the right of the assignee to recover back moneys paid to a supposed creditor, whether general or preferred, who after such payment is shown never to have had any valid or legal claim against the assigned estate ? Undoubtedly, the assignee who made the payment in good faith, before action brought to determine the validity of such a claim, would be protected, as he would in the case of a payment made to a preferred creditor, although the assignment should be subsequently set aside and adjudged to be fraudulent and void. "With respect to a valid claim, the ground upon which it could be urged that the assignee could not recover a payment made to a bona fide creditor could be sustained, as it has been, by the view that the creditor received but his due out of the debtor’s property. But with respect to an invalid claim, just as here in the case of a void legacy, the determination being that the party never had any claim against the estate, the right to compel a repayment seems, in the absence of any authority to the contrary, reasonably free from doubt.

The point that it was error to adjudge void the legacy to the Board of Education we regard as equally untenable. Upon this question we agree with the conclusion of the learned trial judge in holding that the cases of Kerr v. Dougherty (79 N. Y. 327, and Hollis v. Drew Theological Seminary (95 id. 166), are direct authorities and controlling.

The remaining question is, whether the void legacies passed to the residuary legatees, or are to be regarded as so much of the estate of the testator remaining undisposed of and which descends to his next of kin. In passing upon this question it becomes necessary to examine the language of the will, in order to determine whether the residuary clause is. general or specific and restricted.

After a direction to his executors to convert his property into money and “ to pay and dispose of the proceeds thereof as herein directed,” the testator gives four legacies of $3,000 each, and then 'directs as follows: And whatever moneys may remain in the hands of my said executors after the payment of the foregoing bequests, I hereby direct my said executors to divide into three equal parts.” Then follows the designation of the three legatees, each of whom was to receive one-third. The question is, did the testator by this language intend to make a general residuary disposition of his property ? If he did, then the law is well settled that in a will of personal property the general residuary clause carries whatever is not otherwise legally disposed of, or otherwise stated. A general residuary clause includes not only what is not specifically given, but also what is ill-given, or whatever fails by lapse, indefiniteness or invalidity.

The canons of construction to determine whether a residuary clause is general or not are thus stated in Lamb v. Lamb (131 N. Y. 227):

The construction of residuary clauses in wills has been frequently before the courts. The intention of the testator is to be followed if the actual intention is discoverable from the language employed. There is no rule of law which prevents a testator from restricting the operation of a residuary clause to a particular or specific residue. He may make the residuary clause general and comprehensive, so that it shall carry any residue, whether of personalty or realty, or both; or he may confine its operation to property of a particular class or to a particular interest. But where the language of a residuary clause is ambiguous, the leaning of the courts is in favor of a broad rather than a restricted. construction. It prevents intestacy, which, it is reasonable to suppose testators do not contemplate. And if the mind is left in doubt upon the whole will as to the actual testamentary intention, a broad rather than a strict construction seems more likely to meet the testamentary purpose, because such a clause is usually inserted to provide for contingencies or lapses, and to cover whatever is left after satisfying specific and special purposes of the testator manifested in other clauses of his will.”

The court, in Floyd v. Carow (88 N. Y. 560), in construing the construction of a residuary clause in a will, said: “ The intention of the testator to restrict the operation of the residuary clause cannot, however, be deduced from the mere absence of words in the will denoting that a particular interest or estate, upon which the residuary clause is claimed to operate, was in th^contemplation of the testator when the will was made, or from the fact that the reversion was a mere expectancy, dependent upon the failure of issue or other improbable contingency. A general residuary devise carries every real interest, whether known or unknown, immediate or remote, unless it is manifestly excluded. The intention to include is presumed, and an intention to exclude must appear from other parts of the will, or the residuary devisee will take.” And, in Riker v. Cornwell (113 N. Y. 115), Gray, J., said: “ I think the doctrine is firmly established, by reported cases and by the text-books, that, where the residuary bequest is not circumscribed by clear expressions in the instrument, and the title of the residuary legatee is not narrowed by special words of unmistakable import, he will take whatever may fall into the residue by lapse, invalid dispositions or other accident.”

In the case last above cited (Riker v. Cornwell) it is further said: “ In ascertaining the intention of the will. maker, we should not seek it in particular words and phrases nor confine it by technical objections.. Ve should find that intention by construing the provisions of the will with the aid of the context and by considering what to be the entire scheme of the will.”

It is clear, construing the language of this will, that if the testator had omitted the words “after the payment of the foregoing bequests,” no doubt could arise but that a general residuary clause would have been created. And while there is much force in the suggestion that those words give the clause a restrictive meaning, still when we consider the language of the entire will, we think it consistent with the view that the testator did not intend to limit his residuary legatees to what would remain after deducting the amounts provided to be paid by the former bequests. As stated, there was a direction to his executors to convert all his property into money and to pay and dispose of the proceeds thereof as hereinafter directed.” Here is an expressed intention that all his property was to be disposed of by his will, and after providing for certain bequests which he undoubtedly assumed to be valid, he left the entire remainder to the residuary legatees. This view of the testator that all of the bequests were valid would explain the presence in the will of the expression remaining after the payment of the foregoing bequests,” which, it is insisted, gives to the clause a restrictive meaning.

As said in The Matter of Bonnet (113 N. Y. 522): “We hold that unless a contrary intent unequvuoGall/y appears elsewhere in the will, a lapsed or void legacy will be carried by a general gift of the residuum of the testator’s estate. If the title of a residuary legatee is not narrowed by special words of unmistakable import, the gift will carry with it all that falls into the residue, whether by lapse, invalid disposition or other accident.”

We fail to find in this will the intent “ unequivocally expressed,” or "by special words of unmistakable import” that the title of the residuary legatee is limited to a jrarticular fund or to a certain residuum; and though some authorities and expressions of opinion may be found to the contrary, notably in The Matter of Benson (96 N. Y. 499), the trend of the more recent decisions, and particularly that of Lamb v. Lamb (supra), is, as stated, that “ where the language of a residuary clause is ambiguous, the leaning of the courts is in favor of a broad rather than a restricted construction. It prevents intestacy, which it is reasonable to suppose testators do not contemplate. And if the mind is left in doubt upon the whole will as to the actual testamentary intention, a broad rather than a strict construction seems more likely to meet the testamentary purpose. * * * ”

We do not think that the intention is so clearly expressed as not to raise a doubt. Still, upon a consideration of tbe entire will, we have reached the conclusion that it was the intention of the testator not to confine or circumscribe the residuary legatees to a particular fund or residuum, but that he intended by that clause in his will to create a general residuum, under which the legatees would take all his property, except such as was specifically bequeathed. And upon this view, it would follow that the void legacies fall into the residuum, and should be divided among the residuary legatees.

The judgment should, therefore, he affirmed in all respects, except as to the disposition made of the void legacies, which should pass into the residuary estate, to be disposed of as therein directed, without costs to either party upon this appeal.

Van Brunt, P. J.:

I concur. The case of Kerr v. Dougherty seems to have been repeatedly overruled in respect to the rule governing the disposition of void or lapsed legacies.

Follett, J., concurred.

Judgment affirmed in all respects as to the disposition made of the void legacies, which should pass With the residuary estate, to be disposed of as therein directed, without costs to either party upon this appeal.

      Sic.