author: Mayham, J.: Dandon, J.: Learned, P. J.

text:
    FRED H. MEAD, Individually and as Administrator of ABIGAIL D. MEAD, Deceased, Appellant, v. WILBER D. MABEN and Others, Respondents.

      Wills — absolute devises to several persons with a provision over to the survivors upon the death of any one without issue — the death intended is one occurring before that of the testator.

    'The general rule of construction of wills is that in the case of devises to one or more persons absolutely, followed by a provision that in the event of the death of any of them without issue, the same shall go to the survivors, the death referred to means a death in the lifetime of the testator,
    The will of a testator, after giving certain specific legacies, devised the residue of the estate to his executors, who were directed to convert his real estate into personalty, and to divide all such residue, and its income before such conversion, equally among his seven children.
    By the sixth clause he provided that if his daughter Diademia should die without a will her share should be equally divided among the other children; and by the seventh clause, that if his son Jonathan should die without a will his executors might give to Jonathan’s children the whole or any part remaining of liis share; otherwise that they divide his share equally among the testator’s other children. The eighth clause was as follows: “If any of my children, except Diademia, shall die without leaving surviving child or children, or heirs of the body, then the share or portion of my estate so given to such deceased child shall go equally to my other children, but in the manner and subject to the like limitations, as the specific bequests to each of them, as has been hereinbefore provided and given.”
    In an action brought to obtain a construction of the will:

      Held, that the death contemplated by the eighth clause thereof was a death occurring before that of the testator, and that this interpretation was not affected by the peculiar provisions in favor of Diademia and Jonathan contained in the sixth and seventh clauses of the will. (Learned, P. J., dissenting.)
    Appeal by Fred II. Mead, individually and as administrator of Abigail D. Mead (formerly Maben), from so mncli of a decree made •on the 12th day of June, 1890, and entered in the office of the surrogate of Greene county, as provided:

      “ That by the language of the eighth clause of the will of Buel Maben, deceased, he intended a death of any of his children, either before or after his death, and did not intend to limit it to a death prior to his death.”
    II. As finds, decides or determines that said Fred H. Mead, individually or as administrator, etc., of Abigail D. Mead, deceased, takes no interest, and is not entitled to any, in the estate of Buel Maben, deceased.
    III. As finds, decides and determines that said Fred II. Mead, either individually or as administrator aforesaid, is not entitled to any part of the net one-seventh part of said estate of Buel Maben, less the amount paid to the said Abigail D., in her lifetime, or that one-seventh part thereof did not vest absolutely and unconditionally in the said Abigail D. on the death of said testator; and
    IY. From that part of said decree that orders, adjudges and decrees “that the balance of the one-seventh share'of said estate given to Abigail D. by the will of said testator be distributed in equal parts, and which distributes the same to the four living children (and those deceased) of said testator, viz.: Wilber B. Maben, Alanson J. Maben, Diademia L. Maben and Fesie A. Shaver, and to Charles B. Teft, administrator, etc., of Antoinette Teft, deceased, and Charles B. Teft, executor, etc., of Jonathan A. Maben, deceased, to each of them $226.09 thereof.”
    This decree was made upon a final judicial settlement of the accounts of Wilber Maben and others, as executors of the last will and testament of Buel Maben, deceased.
    The settlement and distribution of the estate of the deceased involved a judicial construction by the surrogate of certain provisions of the will of the testator; and by the decree the surrogate gave a construction to the will and made a distribution of the estate in accordance with such construction.

      M. B. Mattice and B. Countryman, for -the appellant.

      Halloek, Jennings dh Chase, for Wilber D. Maben and others, respondents.

      J li. Allaben, for F. A. Shaver, respondent.

      James B. Olney, for Kate L. Maben and others, respondents.

      J. A. Griswold, for administrators of Antoinette Teft, deceased.
   Mayham, J.:

Buel Maben, by his will, bequeathed certain specific legacies, therein specified, to two of his children and one of his grandchildren ; and by the fourth clause of that instrument gave, devised and bequeathed all the rest, residue and remainder of his estate, real and personal, to his executors therein named, to be disposed of by them as thereafter provided in said will.

By the fifth clause of his will the testator authorized, empowered and directed his executors to sell his real estate, or any portion of the same, when they or a majority of them should deem it for the best interest of the estate, and execute deeds therefor; and in the same clause provides as follows :

“ I direct my said executors to divide my estate (not before devised and bequeathed) into seven equal parts; each of my children is to have one of said parts — my sons,Wilber B., one-seventh, Jonathan A., one-seventh, Alanson J., one-seventh, my daughter Antoinette, one-seventh, except that she, Antoinette, shall be charged with six hundred dollars heretofore advanced to her ; Diademia, one-seventh, Fesie S., one-seventh, Abigail D., one-seventh; and until my real estate shall be sold, the income arising from the said estate shall be paid to the several legatees and devisees hereinbefore named according to their respective or proportional interests thereof, as herein provided.”

The sixth clause, provides that if Diademia shall die without a will, her interest remaining shall be equally divided among his other children.

The eighth clause of the will is the one under which this controversy chiefly arises, and is as follows:

“If any of my children, except Diademia, shall die without leaving surviving child or children or heirs of the body, then the share or portion of my estate so given to such deceased child shall go equally to my other children; but in the manner and subject to the like limitation, as the specific bequests to each of them, as has been herein-before provided and given.”

After the death of the testator his daughter Abigail married Fred IT. Mead, and soon thereafter died intestate and without issue, and Fred II. Mead was duly appointed and qualified as administrator of her estate.

Jonathan A. Maben died after the testator, having made a will which has been admitted to probate, also leaving children him surviving. Antoinette Teft died after the testator, leaving children her surviving.

On the hearing before the surrogate Fred H. Mead, in person, and as administrator of his deceased wife, appeared before the surrogate and claimed the one-seventh of the residuum of the estate as devised and bequeathed by the testator to his wife, now deceased, under the prolusions of 'the will. This claim was resisted by the executors and other parties interested in the estate, and the surrogate thereupon adjudged and determined and ordered as follows:

“And it is further ordered, adjudged and decreed that by virtue of the provisions of said will the said Fred II. Mead, as administrator of the goods, chattels and credits of Abigial D. Mead (formerly Maben), deceased, takes no interest whatever in said estate as the said Abigial D. Mead (formerly Maben) died without leaving surviving child or children or heirs of the body.”

To this finding and determination Fred II. Mead duly excepted. This ruling, decree and determination, and the exception thereto bring up the only controverted question in this case. .

The question for determination on this appeal is sharply presented, and is: Did the conting’ency of the death of a legatee or devisee without issue refer to death before or after the death of the testator % The answer to this question is decisive of the point raised on this appeal.

If before, then the contention of the appellant is correct and the decree should be reversed; if after the death of the testator, then on the death of the appellant’s intestate without issue the devise and bequest to her failed, and the seventh devised and bequeathed to her fell back into the bulk of the estate to be distributed to the surviving, legatees and devisees of the testator, and the appellant, as personal representative or next of kin of his deceased wife, took no interest in the estate.

The rule seems well settled that, when a testator provides in his will that if one of his legatees or devisees die without children, the share devised to him shall go to the survivors, without anything in the will to qualify the effect of that language, the death must occur prior to that of the testator before the limitation over can attach, and on the death of the testator the title vests absolutely in the legatee or devisee.

In Vanderzee et al. v. Slingerland et al. (103 N. Y., 53), Andrews, J., says: “ This rule applies to both real and personal estate, and, so far as I know, the authorities in this country uniformly sustain the construction, that where there is a devise or bequest simpHeiter, to one person, and in case of his death to another, the words refer to a death in the lifetime of the testator.

In Quackenbos, Executor, v. Kingsland (102 N. Y., 128), the testator, after certain specific devises and bequests, gave the residue of his estate to his son Daniel and his heirs; then followed these words: “ But in case my son Daniel should die without lawful issue,. I give and bequeath it to my remaining children, share and share alike.” Daniel survived the testator, and it was held that, in the absence of other words showing a contrary intent, the death referred to was the death of the beneficiary during the life of the testator, and that upon his death Daniel took an absolute estate; and Danforti-i, J„ in delivering the opinion of the court, says: “ It (the will), gives the remainder of his estate to his son Daniel Kingsland and to his heirs. So far absolutely, but as this interest could not vest until his death, the testator, to provide against the consequence of a lapse, says: In case my son Daniel shall die without lawful issue, I give the estate to my remaining children.’ These words we must hold, upon principle and authority, relate to the death of the testator, and upon that event, during the lifetime of Daniel Kings-land, Jr., the latter became vested with the residuary estate, and was entitled to its possession. This conclusion is required by the decision of the courts in many similar cases.,” And the court cites, in support of this conclusion, Embury v. Sheldon (68 N. Y., 227), and Livingston v. Greene (52 id., 118), to which might be added Moore v. Lyons (25 Wend., 119); Kelly v. Kelly (61 N. Y., 17), and others.

In the recent case of Austin v. Oakes (117 N. Y., 595) the court reasserts the doctrine upon this point of Vanderzee v. Slingerland, (supra) so that the recent authoritative declaration and reiteration of this doctrine by the Court of Appeals make further discussion or citation of authority upon that point unnecessary. The general doctrine, that a devise or bequest to one or more persons absolutely and in case of the death of the devisee or legatee without issue then such share over to the survivor or survivors, that such words of contingency refer to a death of the devisee or legatee in the lifetime of the testator, is too thoroughly established by recent and controlling authority to be ignored or unheeded by this court; and must control in this case, unless there is a clear intention manifested by the testator in his will to apply that contingency of the death of a beneficiary without issue, to a time after as well as before the death of the testator.

The rule as above stated does not seem to be seriously attacked by the learned counsel for the respondents by a reference by them or either of them, to authorities, to overthrow the doctrine of the cases to which we have referred; but we are referred to the harshness of the rule as applied to the facts in the case, and urged to spell out from the will an intention on the part of the testator to retain this property entirely within the control of his lineal descendants, to the extent that, under certain conditions, it would be inalienable by his legatees and devisees. It is undoubtedly the duty of the court to give effect to the intention of the testator.

But the will should not be so read as to contradict itself, and if capable of two constructions, one consistent and the other inconsistent with the law, the former will be preferred, as it is presumed the testator intended to comply with the law. (Crozier v. Bray et al, 120 N. Y., 375.)

In the Matter of the Application of the New York, Lackawanna and Western Railroad Company (105 N. Y., 89), it was held that where there is a devise to one person absolutely, and in the case of his death to another,-the contingency referred to is the death in the lifetime of the testator; but that rule only applies where the context of the will is silent, and affords no indication of a different intention; and where the devise over is dependent upon death without issue the tendency of the court is to lay hold of slight circumstances in the will to vary the construction and give effect to the language in its natural import; but the intention of the testator in that case was clearly indicated in the will by a positive provision that “ the devise over to my husband, sister and brothers to depend upon the contingency of my daughter Monnie dying without issue.”

The daughter named survived the testatrix, and it was held That she took a conditional fee; that her children, should she leave any, would take from her by inheritance, but a conveyance by her in her lifetime would be effectual as against them.

In Beck, v. Ennis (54 Hun, 126) the contingency was in express terms made to depend not on the legatee’s death before the testator, but upon the death of a brother or sister in case the legatee died before them without issue. It is apparent that that case did not come within the rule to which we have referred, and the court so held.

In Goerlitz v. Malawista (56 Hun, 120), the contingency suggested was the death or marriage of the wife of testator, and the court held that the contingency related to the life-tenant, and not to that of the testator. It is apparent that the event upon which the estate was •contingent could not arise during the life of the testator, and was, therefore, upon the face of the will, not contingent upon the death •of the beneficiary before that of the testator. (Goerlitz v. Malawista, 56 Hun, 120.)

In the case at bar there is no express provision of the will from which it appears that the testator intended that the death referred to, and upon which the estate was contingent, might occur after or before that of the testator. The fact that the estate devised and bequeathed to Jonathan and Diademia depended upon the other conditions does not, we think, afford any evidence of the intent of the testator in reference to the share of Abigail to take her share out of the operation of the general rule of law applicable to devises and bequests of that character. We think the learned surrogate erred in ruling and holding, in effect, that the death of Abigail without issue after the •death of the testator carried her one-seventli of the estate back into the bulk of the estate, to be distributed to the surviving legatees and devisees.

As the question as to what interest the appellant took in her share, as her personal representative and husband, has not been raised on this appeal, we do not feel called upon to consider that question. Nor do we see that the point raised by the counsel for .the special •guardian of Tibbie and Frank Maben was raised before the surrogate. Tf the return is defective, we do not see how this court can furnish .relief, it should, we think, be first sought before the surrogate.

The decree must be reversed and the case remitted to the surrogate for a new trial.

Dandon, J.:

The general rule is, that in case of a devise or bequest to one or more persons absolutely, followed by a provision that in the event of the death of any one of them without issue, the same shall go to the survivors, the death referred to means a death in the lifetime of the testator. A death subsequent to that of the testator will not be inferred unless the language or terms of the will express or suggest it. It is unnecessary to repeat the authorities cited by my Brother Mayham.

The question here presented is, whether the language or terms of the will suggest that the testator, by the eighth paragraph of his will, intended to make an exception to the general rule. A careful examination of the entire will leads me to conclude that he did not. By the first, second and third paragraphs of the will the testator made absolute bequests of his household furniture, a musical instrument and also two pecuniary legacies. By the fourth paragraph he devised and bequeathed the rest and residue of his estate to his executors, to be disposed of by them as afterwards provided. By the fifth paragraph his executors were directed to convert his real estate' into personal, and to divide the whole residue of his estate into seven equal parts, and the testator gave one of such parts to each one of his seven children, and directed his executors to pay to each of his children one-seventh of the income accruing up to the time of the conversion of the real estate. Thus his whole estate ,was absolutely disposed of. Then follow four further paragraphs as follows :

“Sixth. If my said daughter Diademia shall die without leaving her will, all the share and interest remaining hereby given to her shall be equally divided among my other children.”

“Seventh. If my son Jonathan shall die without having left his will, then I direct my executors, if they shall deem it proper and expedient, that they may give to any child or children of my son Jonathan the whole or any part of the share remaining herein given him; otherwise such remaining share or interest shall be equally divided between my other children.

Eighth. If any of my children, except Diademia, shall die without leaving surviving child or children or heirs of the body, then the share or portion of my estate so given to such deceased child shall go equally to my other children, but in the manner and subject to the like limitations as the specific bequests to each of them as has been hereinbefore provided and given.

“Ninth. Any legatee or devisee who shall cause any trouble in law by contesting my will or any portion thereof, or the husband or wife of any of my children who shall make any claim against my estate, unless a written obligation with my signature thereto, the share or portion of said legatee or devisee who shall contest my will, or the child whose husband or wife shall make charge or claim, except as herein provided, shall receive no portion of my estate, but the share or portion of such shall be equally divided between those agreeable to and who acquiesce in this my will, in the manner of each original respective bequest.”

It will be seen that the sixth and seventh paragraphs provide for the contingency of Diademia and Jonathan dying without leaving a will, and that the eightfi paragraph provides for the contingency of any of his children, except Diademia, dying without leaving issue. For reasons which, in the testator’s mind, were applicable to Diademia and Jonathan, he made the peculiar provisions of the sixth and seventh paragraphs. Fie did not make any such provisions with respect to his other children. The circumstances detailed in the case indicate why the testator thought proper to try to dispose of whatever unspent part of the bequest to them, they themselves should not by will or otherwise dispose of. Plainly, the death specified in the sixth and seventh paragraphs means a death subsequent to that of the testator. The fact that no such exceptional provisions were made with respect to the whole or the- remaining part of the bequests given to the other children, is satisfactory evidence that the testator limited his exceptions to those to whom he applied them, namely, to Diademia and Jonathan.

The eighth paragraph expresses a different contingency, namely, death without child or children, or heirs of the body.” The contingency being different, and the testator refusing to suggest in this-paragraph, as he had done in the sixth and seventh paragraphs, that-the death he meant was death subsequent to his own, the general rule of construction applies and refers the death here spoken of to death in his own lifetime. Other considerations support this construction. The will converts the real into personal property, and bestows it as personal. The executors are not directed to hold it during the lifetime of the legatees. The testator left his executors at liberty to deliver to each legatee the greater part of his or her share in money. The futility of delivering cash to his legatee, and then trying to tie it up by a sort of entail, we learn from the sixth and seventh paragraphs of his will was present to the testator’s mind. Peculiar circumstances, applicable alone to Diademia and Jonathan, lead him to make provisions in their case to meet a possible contingency, which he probably felt would not occur in the case of any of the other children, or if it should occur would not require his control, and, therefore, he attempted no like ulterior disposition in their cases. If he intended to put any restrictions upon the shares of his other children after they received them, why did he not state them ? To name the second object of his bounty, in case death prevents the first named from receiving it, is an obvious caution; but to bestow it absolutely in the first instance upon the first named, and then to cut it down so that the second named shall finally receive it, requires a clear indication of such intention. We do not perceive that the testator anywhere expressed or suggested any such intention.

The seventh paragraph shows that the testator contemplated the probability that his son Jonathan would survive him and take his share; the eighth paragraph shows that the testator also contemplated the possibility that Jonathan might die without issue in the testator’s lifetime. Hence, the two alternative ulterior dispositions in his case depended upon one or the other contingency.

The exception of Diademia from the first clause of the eighth paragraph is due, I think, to the testator’s tenderness and delicacy of feeling. She was forty years of age, had never married, and had always resided with her parents. The testator distinguished her by the gift of additional bequests. He shrunk from contemplating her death as possible prior to his own, and from reminding her of her single and childless state. He could speak in the sixth paragraph of her remote death as a natural event, but could not speak of it in the eighth paragraph, as he spoke of it in respect of his other children, without doing violence to his feelings and sense of propriety.

The final clause of the eighth paragraph introduces no new rule. Thus, if Abigail had died in the testator’s lifetime, the surviving children would have taken one-sixth part upon the same terms as they now take one-seventh part. This clause preserves, as to each legatee, the same rule as to the addition to his or her one-seventh part as exists with respect to the one-seventh. It does not attempt to bestow or impose upon Alanson, Antoinette or Abigail any of the special and peculiar privileges or conditions bestowed or imposed upon Diademia or Jonathan. The samé may be said of the final clause of the ninth paragraph.

I concur in reversing the decree.

Learned, P. J.

(dissenting) :

The rule of construction is clearly stated in Britton v. Thornton (112 U. S., 526). “ When, indeed, a devise is made to one person in fee and ‘ in case of death ’ to another in fee, the absurdity of speaking of the one event which is sure to occur to all living as uncertain and contingent, has led the courts to interpret the devise over as referring only to death in the testator’s lifetime. But when the death of the first taker is coupled with other circumstances which may or may not ever take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect according to the ordinary and literal meaning of the words, upon death under the circumstances indicated, at any time whether before or after the death of the testator.”

And it is well said that this is the ordinary and literal meaning of the words.” Nó one would probably have any doubt as to what the testator intended. And when he declares that in the event of one child dying without leaving issue surviving, he wishes his property to go to another child, it is difficult to believe that he referred only to a death preceding his own. Testators expect that their children will survive them and they make their wills accordingly.

In O’Mahoney v. Burdett (L. B., 7 Eng. and Irish App., 388), this subject was very carefully considered in opinions by Lords Cairns, IIatherléy and Selburne. They held that a bequest to A, and if she shall die unmarried or without children to B, is an absolute gift to A, defeasible by an executory gift over in the event of 'A dying at any time unmarried or without children ; that this construction can be affected only by a context which renders a different meaning necessary. This is the doctrine of 2 Jarman on Wills (m. p., 688). 1

This rule is recognized in the opinion in Vanderzee v. Slingerland (103 N. Y., 54), citing Jarman, and stating that this rule relates to personal property, but giving a different rule in the case of real estate. And the court remarks, in regard to real estate, that the rule “ rests more upon authority and precedent than reason, for it is by no means certain that it was not the intention of the testator to-control and provide for the ulterior devolution of the title after it had been enjoyed during life by the primary devisee, in case lie then died without issue ; and such a construction would, it would seem, give effect more completely to the language used.” That last-remark is forcibly true. A testator looks forward to.time and to events after his death. He does not usually contemplate events-which may be previous thereto. If he does, he indicates this. by specific language. When he says if any of my children shall die ”” he speaks of their death after his. If he were thinking of the death of a child prior to his own he would say “ if any of my children shall die before me not leaving children.” And since the object of courts should be to carry into effect the intention of the testator, they would do this better by following the literal meaning, rather than artificial rules. The will directs the executor to sell the land. Therefore, there is a conversion into personalty, and the rule as to-real estate does not apply. All or nearly all the cases cited in opposition to the decree were cases of devises of real estate.

Nor do I see anything in other parts of this will to take it out of the rule laid down in Britton v. Thornton and O'Mahoney v. Burdett. On the contrary, item 7 provides for the distribution of Jonathan’s share, if he died intestate, among his own children,, according to the discretion of the executors. If he died before his-father, then he could not make a will which would dispose of his-share of his father’s estate. Therefore, this provision must have-, reference to Jonathan’s dying intestate after his father’s death.. In that case the executors were to distribute, in their discretion, his-share among his children. Hence Jonathan was not to take an absolute title, and his death mentioned in item 7 was a dealh at any time. There is no reason to suppose that the testator had any different time in his mind when in item 8 he provided for the contingency (in Jonathan’s case as well as in the case of others) of dying “ without leaving surviving child or children or heirs of the body.” He did not intend in any case that his property should, under the will, pass-from his descendants, at least till it had reached his grandchildren.

I think the decree should be affirmed.

Decree reversed and case remitted to surrogate for new hearing,, costs of appeal out of estate.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    ELIZABETH R. BRUYN, Respondent, v. BENJAMIN RUSSELL and Another, as Executors of JACOB DE WITT, Deceased, Appellants.

      Bills and notes — burden of proof — genuineness of a note — comparison of documents — verdict renewable on appeal.

    In an action brought to recover upon a promissory note the payee gave no evidence of the existence of any consideration for the note other than such as appeared by the words " value received ” contained therein. The defendants then recalled a witness (who had been previously sworn on behalf of the plaintiff), whose testimony, not denied by the payee, was that the plaintiff had stated to him, in substance, that the note was a gift.

      Held, that, under this testimony, the plaintiff was not entitled to succeed.
    That the burden of proving a consideration, notwithstanding the use of the words " value received,” remained, at all stages of the case, with the plaintiff, and that a charge to the jury which implied that it was for the defendants to show that the note was without consideration was erroneous.
    Where one of the defenses in an action is forgery, the evidence upon which point is confined to a comparison of documents, and these documents are produced before the appellate court, that court is competent to review the verdict of the jury upon the question as to the genuineness of the note.
    Appeal by tlie defendants, Benjamin Russell and James B. Keeler, as executors of Jacob De Witt, deceased, from a judgment, entered in the clerk’s office of Ulster county on the 5th day of November, 1890, with notice of an intention to bring up for review, upon such appeal, an order of June 20, 1889, denying their motion for a new trial, and to set aside the verdict, after a trial before the court and a jury at the Ulster Circuit.

      George G. Keeler and John J. Jinson, for the appellants.

      A. T. Clecvt'water, for the respondent.
   Learned, P. J.:

This is an action on a note alleged to have been made by Jacob De Witt, deceased, the testator of defendants. There are two grounds of defense: Eirst. That the note is a forgery. Second. That if not a forgery, it is without consideration. The case was tried before a jury and a verdict was rendered for the plaintiff. A motion to set ■aside the verdict was denied. An appeal is taken from the judgment and from the order denying such motion.

The case had been tried once before, and the judgment then entered was reversed by this court. (Bruyn v. Russell, 52 Hun, 17.) The note is in the ordinary form, payable to plaintiff or bearer three months from date, for $5,000, with interest. It is dated October 29, 1884. The testator died January 17, 1885, a short time, therefore, before the note by its terms became payable. The plaintiff produced the note and gave evidence tending to show that it was in the handwriting of the deceased. She also gave evidence tending to show that the deceased was at her. house the day of the date of the note. She gave no evidence of consideration other than the note itself containing the words for value received.” She then rested.

The defendants then gave evidence tending to show that the note was not in the handwriting of the deceased. They also recalled ■Charles I). Bruyn, who had been called as plaintiff’s witness, to prove the genuineness of the note. He testified that he first saw the note about a week before the suit was commenced, or before he was sworn (probably at the first trial); that the plaintiff brought it .and some other papers that have since been used in the case with her to the bank of which he was president; that she then stated the circumstances under which the note was given to her. She said that Mr. He Witt had stopped at her house one afternoon and .said that he might not see her again, and that he wished her to have $5,000 of his property, and that he did it in that way. He stood at the piano and wrote the note. The witness thought, she .said, that Mr. He Witt said it would be the last time she would see him.

After defendants had rested the plaintiff called one Russell as a witness, who testified to a conversation of the deceased, in 1853, in which he expressed a desire to marry the plaintiff. She also called her son, who stated that the deceased visited her the summer and fall prior to his death.

The plaintiff, also, was then sworn as a witness on her own behalf. She did not contradict the testimony of Charles H. Bruyn, above-mentioned, but she offered to testify that in her conversation with him she did not state all of the circumstances under which she received the note. This was excluded as improper under section 829.

The learned justice in charging the jury said that when the holder of a note written for value received produces it in evidence, the legal presumption is that it is given for a good and sufficient consideration. It casts the burden on the party denying that consideration to show that it was without consideration. After stating that the true consideration might be inquired into, the learned justice said: “ The law simply presumes, that is all, a consideration, so as to put the burden upon the defendant of showing that it was without any consideration.” And, again: “ You must find that the presumption, that, the legal presumption, that the note was valid, is overcome- by the-defendant’s evidence which he has produced before you.” And, again : “ It is only sufficient for the defendant to satisfy you from facts and circumstances, or positive testimony, to satisfy you that the note was without consideration to overcome the presumption which the law implies, and tlie burden which is cast upon him.” The defendant’s counsel excepted to these statements.

Now, undoubtedly, the learned justice was right in saying that the-words for value received were prima, facie evidence of a consideration. They are on the face of the paper an admission by the maker that he had received a consideration. But let us suppose that there is equally strong evidence on the part of the defense that there was no consideration, then the plaintiff must fail, because the existence of a good consideration is a necessary part of his cause of action. If, then, his evidence is met by other evidence to the contrary, equally strong, that is enough for the defendant. ITe has not the burden of showing that the note is without consideration. It is enough for him that on the whole evidence the plaintiff fails to show that there was a. consideration.

This view is peculiarly important in this case. We have, on the-plaintiff’s side, the admission by the maker of the note in the note itself of “value received.” We have, on the defendant’s side, the admission of the plaintiff herself to Mr. Charles I). Bruyn that there was no consideration, and the making of this admission she does not deny when she has the opportunity. Thus we have admission against admission. Further, there is no evidence given of any dealing between the parties of any money loaned, of any property conveyed, of any undertaking assumed, of any riglit relinquished.. Now, when we consider that, under the circumstances, this was a rather large note, we might reasonably expect that there would be some attainable proof of the transaction, in consideration of which such a large promise was made. We have, in fact, only the bare, promise and the plaintiff’s admission that it was a gratuity.

Now, on what principle shall it be said that in such circumstances the plaintiff may succeed ? The rule is otherwise. The plaintiff must, succeed by the preponderance of evidence on every point to maintain his action. The maker of the note has admitted in the note that he received value; the payee has admitted on the trial that he did not. Certainly there is no preponderance of evidence in her favor.

This question was considered in Perley v. Perley (144 Mass., 104). The court said of a note that its production and proof of defendant’s signature made a prima faeie case. “ But the burden of proving a consideration still remains upon the plaintiff, notwithstanding this presumption, and, if there is any evidence on this point on behalf of the defendant, the plaintiff must show by a preponderance of the whole evidence that the note was given for a valuable consideration.” The court pointed out that, if the defendant sought to meet the note, not by evidence showing want of consideration, but by proving another and distinct proposition, then the burden of proving the latter proposition was on him. For instance, if he attempted to meet the note by proving payment, the burden of that proof would be on him. But, on the other hand, when the defendant disputed the fact of a consideration and produced evidence to show that no-consideration existed, then, on that point, the burden remained with the plaintiff on the whole evidence.

This same doctrine is held in Simpson v. Davis (119 Mass., 269); Delano v. Bartlett (6 Cush., 364), where it was held that the evidence on both sides being applicable to the same issue of consideration, the jury were properly instructed that the burden was throughout on the plaintiff to satisfy them, on the whole evidence, of the consideration of the note. This doctrine is recognized in Carnright v. Gray (57 Hun, 518) in both the prevailing and dissenting opinions.

The rule is laid down in 1 Daniel on Negotiable Instruments. (§ 164), where it is said : If the whole evidence offered on both sides leaves it in doubt whether there was a good consideration or not, the plaintiff fails of- making out his case and the defendant will be entitled to a verdict.”

We have examined the cases cited by the plaintiff on this point, and we do not think that they hold the contrary of this proposition. Keteltas v. Myers (19 N. Y., 231) and Underhill v. Phillips (10 Hun, 591) and Peets v. Bratt (6 Barb., 663) presented questions of pleading. Foote v. Valentine (48 Hun, 475) held that affirmative proof of consideration was not necessary in the outset, when a note written for value received was given in evidence. Raubitscheck v. Blank (80 N. Y., 478) held that on the evidence there was no proof of want of consideration. The point was not involved in Kimball v. Huntington (10 Wend., 679).

The question presented in this case was not passed upon in these cases. General expressions may be found that the words “ value received ” ar aprima fade, sufficient, and that the plaintiff may rest on them; the defendant then being permitted to give evidence of a want of consideration. But the point we are considering is where the burden lies on the whole evidence, and we think it lies with the plaintiff.

And on this point it seems to us that the learned justice used language in his charge which would mislead the jury, and which would induce them to think that the defendant must satisfy them that the note was without consideration, while the true rule is that the plaintiff must satisfy them that the note had a good consideration. This view is strengthened by the remarks of the learned justice when the defendant moved for a nonsuit on the ground, among others, that it appeared that the note was without consideration. The learned justice said that there had been no abandonment by the plaintiff of her legal presumption in respect to the consideration of the note by the introduction of any testimony which showed or tended to show what the consideration of it was. This seems to imply that, if the plaintiff had given evidence tending to show the actual consideration, the introduction of such evidence would have been an abandonment of the legal presumption ; and hence that the failure to give such evidence made the legal presumption stronger than it would have been if such evidence had been given. This tends to show that-the meaning- of the charge was that the defendant must have a preponderance of evidence before the jury could find that there was no consideration. To test this, let us suppose that the plaintiff had herself been called as a witness and had testified to the same circumstances as to the execution of the note which she stated to Mr. Bruyn. Could there have been a recovery? Yet the testi- , mony of Mr. Bruyn, not contradicted by her, is almost as weighty as her own testimony would have been.

When we consider that Mr. Bruyn was the plaintiff’s own witness, and that she, therefore, must be held to have believed him to be truthful, and that she does not deny that she made the statement to which he testified, it is difficult to understand how the jury could have found that there was a good consideration, unless they gave to the words value received ” in the note some greater legal effect than they are properly entitled to have. They may have thought-that a legal presumption was weightier than the testimony of an honest witness.

When the genuineness of a signature is to be determined, not by the testimony of those who saw it written, or by any such direct evidence, but by the belief of witnesses as to its resemblance to other writings, and by the comparison of other writings, the appellate court, if such other writings are produced before it, is substantially as well able to judge as the jury. Therefore, a case like the present is one in which we feel at liberty to examine freely the matter of the genuineness of the signature.

The testimony of witnesses who had seen the deceased write, and who believed or who did not believe the note to be in his handwriting, is really only their belief or disbelief as to the resemblance of this writing to other writing known to be his. And while a familiarity with handwriting in general may enable one to detect resemblances or differences not noticeable to the ordinary observer, still the testimony is really founded solely on similarity or dissimilarity. And similarity and dissimilarity are things which can be seen by an appellate court.

But it is said, on this point, that the jury have twice held the note to be genuine. As to that it is sufficient to say that the former verdict was based on evidence which was decided to have been inadmissible, and, therefore, that verdict was not reached on competent evidence. And we may say that where the plaintiff is a woman •and the defendants are executors of a deceased old bachelor of good means, and where a glamour of elderly affection is hinted at in the evidence, we need not be surprised if a jury should find a note to be in the handwriting of the deceased, though it were printed on a typewriter.

We have examined the exhibits produced at the trial and now produced before us. They fail to satisfy us of the genuineness of •the note. But without passing on that jioint, we think there was error in the charges above stated. And we also think that the verdict was against the evidence on the question of consideration.

Judgment and order reversed, new trial granted, costs to abide ■event.

Landon, J., concurred; Mayham, J., concurred in the result.

Judgment and order reversed, new trial granted, costs to abide ■event.


text:
    In the Matter of the Application to Compel MARY SWAN, as Executrix of HIRAM SWAN, Deceased, to Give New or Further Security.

      Will — construction of— what words create a life estate.

    'Tlie will of a testator gave to Ms widow “ the use and benefit” of all Ms estate, real and personal, during the term of her natural life or so long as she remained his widow, except $500, directed to be paid to his son when he became twenty-one years of age. The will further directed that after the death or marriage of his widow “the balance” of the testator’s estate should be divided between his son and his daughter; but that, in case of remarriage, Ms widow should be first paid $200. His executors were authorized to sell hisproperty, real and personal, to pay off debts and “to put the balance at interest on good security, and to keep the same on interest until the property is divided as above (in the will) specified. ”

      Held, that the widow did not take a fee; that she was entitled only to the income of the estate for life or until her remarriage, and in case of her remarriage to $200.
    Appeal by tbe applicant in this proceeding, Rebecca A. Swan, from an order, entered in the office of the Surrogate’s Court of the county of Albany on the 3d day of October, 1890, denying her application for an order • compelling Mary Swan, as the executrix ■of. the last will and testament of Hiram Swan, deceased, to execute and file new or further security for the faithful performance by her of her duties as such executrix.

      Lansing Hotalmg, for the applicant, appellant.

      John B. Ora/nt, for the executrix, respondent.
   Learned, P. J.:

The learned surrogate in denying this application placed his decision not on grounds of discretion, but on the ground that, under the will, Mary Swan has a right to the principal as well as the interest of the estate after payment of the debts and of the legacy to Erskine. The appeal, therefore, requires us to construe the will in this respect.

It gives to Mary Swan “ the use and benefit of all my estate, real and personal, during the term of her natural life, or so long as she remains my widow.” It excepts, however, $500 to be paid testator’s son Erskine when he becomes twenty-one. This has been paid. It declares that after the death or marriage of Mary, the balance of my estate ” shall be equally divided between his son Erskine and his daughter Mary Etta, only that in case of the marriage of said Mary she be first paid $200 out of the balance.

It authorizes the executors to sell “ real estate, and to sell any or all of my farming utensils and stock, and also my plank-road stock and household furniture, and convert the same into cash, and with the proceeds to pay off my just and legal debts, and to put the balance at interest on good security, and to keep the same on interest until the property is divided as above specified.”

It will be seen, then, that the interest which the widow' Mary was to enjoy was to cease at her death or marriage; but on her marriage she was to have $200 before the residue was divided between Erskine and Mary Etta. That clause evidently shows that the testator had in mind that a certain sum at least would be kept of the principal of the estate. So, also, the item giving $500 to Erskine when he should become twenty-one (which would be seven years after testator’s death), shows that the testator did not intend that the whole estate should be used up before that time. To the same effect is the direction that the executors may sell the land and keep the avails at interest till the property is divided. This does not indicate that the principal was to be consumed.

In coming, then, to construe the gift to the widow we must notice that it is expressed to be during the term of her natural life, or as long as she remains his widow. It will be found that, in this respect, the language differs from many of the cases cited by respondent. A gift of the use and benefit of an estate does not mean more than the estate itself. And a gift of an estate to a person during the term of her natural life, or as long as she should - remain a widow, would not be understood to carry a fee.

The case of Campbell v. Beaumont (91 N. Y., 464) is one of the strongest in support -of the respondent’s views. But there the gift was not limited by the words “ during her life,” or any similar words. The question arose on the subsequent clause that, in ease of her decease, the same, or such portion as should remain, should be received by her son Charles. This clause was held not to limit the prior gift. The very words, “ such portion as should remain,” showed that some portion might be used. So, in Crain v. Wright (114 N. Y., 310), there were no words limiting the gift to life or widowhood.

In Smith v. Van Ostrand (61 N. Y., 278) there were the words “ during her natural life ” following a bequest of money in lieu of dower. The court said- that they should construe this to give only a life estate, except for a subsequent provision, viz., that fifty dollars was to be paid the widow as soon as practicable, and the residue in six months. The court thought that this peculiar provision showed that the testator intended that she should use what was necessary. If there had been no such provision she would have had only the use of the income. Nb such provision exists here. In Matter of Surrogate of Cayuga County (46 Hun, 657) the words “ during the term of her natural life ” were in the will. But there were also the words “ at her disposal,” and the bequest and devise after the death of the wife were of the estate “ that may remain at the decease of my wife.” These clauses were thought to give the wife more than a life estate. The question, however, arose only on an assessment of the inheritance tax. And there was no conflict on that point between the life tenant and the remainder.

In Cohen v. Cohen (4 Redf., 48) the will gave the residue of which the wife should die possessed to the children. This was construed as giving her a power of disposal. Similar in the case of Leggett v. Firth (6 N. Y. Supp., 158).

Now, in tlie present case, unlike those cited by the respondent, the gift to the wife is expressly stated to be during the term of her natural life or during widowhood, so that the gift is, by its express terms, limited to a life estate. Nor is there anything in the disposition of the remainder after her life indicating that such remainder was confined to what the widow should not have disposed of during life. The word “ balance,” used in the third item, evidently refers to the residue after paying Erskine his $500.

Indeed, it is evident that the testator could not have intended that the widow ¿should use up the principal, because he provided for two legacies therefrom, viz., that to Erskine and that to the widow on remarriage. If she was authorized to use the whole, there would be no need of giving her $200 of the principal at her remarriage.

The views above stated are supported by Taggart v. Murray (53 N. Y., 234); Millard's Estate (9 N. Y. Supp., 127); Carpenter v. Carpenter (2 Dem., 534), and they result from a consideration of the language of the whole will. (Roseboom v. Roseboom, 81 N. Y., 358.) They are consistent also with the circumstances at the time the will was made and at the time of testator’s death. The testator left surviving his widow, aged forty-four; his son, aged fourteen ; his daughter, Mary Etta, aged four. It was natural that he should give the use of the property to his widow for life, or till remarried, and the principal after her de.ath to his children.

The respondent appeals to our sympathy in behalf of the widow as against the appellant, whose interest is by marriage and by the death of Erskine. But these are considerations with which we have nothing to do. It is our duty simply to construe the will. We think the widow was, by the will, entitled only to the income and to the $200 in case of remarriage.

Decree reversed and matter sent back to the surrogate for action according to his discretion under this construction. Costs of this appeal to be paid to appellant out of estate.

Landón, J., concurred; Mayham, J., not acting.

Order reversed, matter sent back to surrogate for his action according to his discretion under the construction given by this court. Costs of appeal to appellant out of the estate.


author: Landon, J.:

text:
    CHARLES S. WESTON, Respondent, v. MARY R. STODDARD and BRIDGET DAIG, Appellants, Impleaded with Others.

      Pandition — effect of the failure of a defendant to serve her answer on her co-defendants — Code of Civil Procedure, secs. 452, 521, 975, 1543,
    In an action brought to make partition of certain premises, the complaint alleged that there were no general or specific liens against the premises, or against any of the shares therein. A defendant, one Stoddard, answered alleging that she owned a mortgage which was a lien upon the share of the plaintiff, ancl upon the shares of many of the defendants. This answer was not served by Stoddai'd on her co-defendants. The court found that the mortgage was given; that no payments had been made thereon, and that it was unsatisfied of record, but refused to decide whether it was a valid incumbrance.

      Held, that the determination of this question was not necessary to a partition, and that, as Stoddard had not served her answer on her co-defendants, the court, in its discretion, properly refused to decide the matter.
    The court found that Stoddard had been in possession of the promises since 1880, holding adversely. Stoddard claimed upon the trial that she was a mortgagee in possession, and as such entitled to hold possession until the mortgage was paid, and that consequently the decree for partition was improperly made.

      Held, that as she had not served her answer upon her co-defendants she was not entitled, as against them, to a judgment deciding as to the validity of her mortgage.
    That the effect of the court’s withholding a final judgment of partition would be to defeat, or at least to postpone, a final decision of the action, which would secure a substantial, and possibly unjust, victory to Stoddard, to which, in view of her not having served her answer upon her co-defendants, she was not entitled as against them.
    That if, as alleged, her mortgage was valid, she had a remedy by foreclosure.
    Appeal by the defendants, Mary R. Stoddard and Bridget Daig, from an interlocutory judgment, entered in the clerk’s office of Saratoga county on the 15th day of December, 1890.
    On April 3, 1855, the defendant Abiel Stoddard owned the premises described in the complaint, and on that day conveyed an undivided one-fourth part thereof to Haskell Weston, who, at the same date, gave to Stoddard his mortgage thereon to secure his bond, also given, for $1,000, the purchase-money thereof. The mortgage was duly recorded the same day and no payments have been made thereon, and it remains unsatisfied. Weston, June 2, 1857, conveyed his undivided one-fourth to Charles Lee and Samuel Weston. The plaintiff and several of the defendants have succeeded to, or acquired, the title to this undivided one-fourth. Mary R. Stoddard, in 1883, became the owner of the other undivided three-fourths. She has since sold some lots to the defendant Bridget Daig and others, not knowing anything of the deed to Haskell and his mortgage to Abiel Stoddard, but supposing she owned the entire premises. She has since obtained an assignment of the bond and mortgage of $1,000. Haskell Weston, from the date of the mortgage to his death, was a resident of Yermont, and never returned to this State. Charles Lee and Samuel Weston were also residents of that State.
    The complaint alleged the ownership by the plaintiff and Mary R. Stoddard and the defendants, Mary’s grantees, of the premises as tenants in common, and alleged “ that there are no general or specific liens or incumbrances against said premises or against any or either of the undivided shares in said premises.” Mary R. Stoddard by her answer denied this allegation and set up the $1,000 mortgage as a valid lien upon the undivided one-fourth part claimed by the plaintiff and other parties. The plaintiff replied to this .answer setting up payment and the statute of limitations.
    The court found the facts as above set forth, and also that Mary R. Stoddard has been in actual possession of the premises since 1880, but refused to pass upon the validity of the mortgage, or whether it was a lien upon the shares awarded to the plaintiff and the defendants, who have succeeded to the title of Haskell Weston, but •decided that such mortgage, if valid, should attach to such shares; .also, that the lots sold by Mary R. Stoddard should be embraced in the three-fourths to be set off to her.

      O. 8. Lester, for the appellants.

      W. JB. French, for the plaintiff, respondent.
   Landon, J.:

There was an issue joined between the plaintiff and the defendant Mary R. Stoddard, whether the purchase-money mortgage given by Haskell Weston April 3, 1855, upon an undivided fourth of the premises for $1,000 and interest, which mortgage is now ■owned by said defendant, is a subsisting incumbrance thereon. The -court found that the mortgage was given and that no payments have been, made thereon, and that it is unsatisfied of record. Also that the mortgagor and his grantees and those claiming the undivided one-fourth have been continuously non-residents of the State since the date of the mortgage. The plaintiff and seventeen of the defendants are found by the court to be the owners of the undivided one-fourth. The court refused to determine the question whether the mortgage was a subsisting incumbrance upon the share of the plaintiff and the said seventeen defendants, but adjudged that they were entitled to that share, and that the mortgage, if valid, should attach thereto to the exclusion of the remaining three-fourths, which were.allotted to the defendant and to the defendants holding under her, and that the mortgage “ should be subject to any defense that the plaintiff and said defendants (interested in the one-fourth set off to them) may have thereto, its validity as a mortgage or lien upon-said premises not being passed upon or adjudicated in this action.”

The defendant Mary R. Stoddard claims that since the plaintiff tendered the issue and she accepted it, and the issue was joined between them, the court erred in not determining it. It was, undoubtedly, competent for the court to determine the issue, but as it was joined only between the plaintiff and the defendant, and not between the defendant and the seventeen other defendants who were interested in the one-fourth part of the premises as to which the mortgage was alleged to be an incumbrance, it is obvious that the determination would bind only the parties to the issue, and leave the question open between the defendant Stoddard and the seventeen other defendants interested in the question. The determination of the issue was not necessary to the determination of the rights of the parties to a partition of the premises, and to the several allotment of their respective shares. Section 975, Code of Civil Procedure provides: “An issue, the disposition of which is not necessary to enable the court to render the appropriate judgment, is not required to be tried.”

Had the defendant Stoddard served her answer upon the seventeen other defendants pursuant to sections 521 and 1543, then the whole controversy as to this mortgage could have been brought before the court, as to all the parties interested in it, and the court, in its discretion, would either have determined it, or have directed judgment pursuant to Section 1204, substantially as has now been done, and tlien have severed the action, under section 1205, and directed that the same proceed between such of the parties as raised or were tendered issues as to the mortgage. The defendant has not improved her position by omitting to serve her answer upon the defendants interested in the claim raised by it. We think the procedure adopted by the court was within its discretion, and that the discretion was properly exercised.

The court found that the defendant Mary R. Stoddard had been in possession of the premises since 1880, holding adversely. It liad been previously determined that she was only entitled to hold as tenant in common. (Stoddard v. Weston, 25 N. Y. St. Rep., 922.) It is not claimed that her adverse holding, if her title was, in fact, nothing more than that of a tenant in common with the other parties, could defeat the action. (Sec. 1543.) Under the present Code it is what a party to the action rightfully holds, andmot what he may wrongfully claim, that determines the nature of the relief to be awarded respecting him. But the defendant claims that she was a mortgagee in possession, and as such entitled to retain possession until her mortgage is fully paid; and that since the action is a possessory one, and she is, by the judgment, to be ejected from such portion of the land as is allotted to others (§ 1558), she will, therefore, be turned out before her claim to stay in is determined, and hence her claim to have the validity of her mortgage and the amount due thereon determined was well founded, and it was error to reserve or postpone its determination. Whether the defendant Stoddard is mortgagee in possession we do not decide. We have already decided that her assignor of the mortgage was not. (Stoddard v. Weston, supra) The defendant Stoddard is not entitled to any such judgment against the parties upon whom she has not served her answer. (Edwards v. Woodruff, 90 N. Y., 391; Payn v. Grant, 23 Hun, 134.) Assuming that the court had sustained the defendant’s position, tlien plaintiff could not have procured final judgment of partition against her, for in such case her possession would have been that of holding the premises as security for payment of her mortgage, and not merely as tenant in common. Redemption would have to precede final judgment, since such judgment awards possession to the several parties. (Sec. 1528.) Plaintiff being defeated or postponed, and the non-answering defendants having no issues to bring before tbe court, this defendant would secure a substantial and, perhaps, unjust victory. She is responsible for withholding the issues from the other defendants, and though she may claim this relief only against the plaintiff, she, in fact, would obtain it for a time at least against the defendants, and the court, to prevent this injustice, may properly deny it until she brings before the court upon this issue all the parties interested in its determination. Such is the spirit, if not the exact letter, of section 452.

If the defendant’s mortgage is an incumbrance, her remedy by foreclosure is not prejudiced by this judgment. If she is a mort. gagee in possession and entitled to payment before partition, she has not so pursued that remedy as to justify the court in awarding it to her in this action. Whether the one course or the other is pursued is a mere question of the remedy, and, as the one left to her is sufficient, her rights of property remain unimpaired.

Interlocutory judgment affirmed, with costs.

Learned, P. L, and Mayham, J., concurred.

Interlocutory judgment affirmed, with costs.


text:
    JOSHUA P. DEMBY, Respondent, v. THE CITY OF KINGSTON, Appellant.

      Nuisance — recovery of the expenses of abating it — tenants by the entirety — when notice to a municipal corporation will be presumed — injunction.
    A person owned, two, nearly adjacent, lots of land in tlie city of Kingston, as to one of which, he and his wife were tenants by the entirety. A stream ran through this latter lot into which filth from a city sewer percolated, and to abate, in part, the nuisance, he covered this stream. In an action brought by him against the city for maintaining a nuisance, the plaintiff recovered his expenses of covering the stream, although during the pendency, and before the trial, of such action, the plaintiff sold the piece of land through which the stream ran,

      Held, that this was proper.
    That, in the case of a tenancy by the entirety, the husband was entitled to the use of the premises during the life of both parties, and to the damages sustained by reason of the maintenance of the nuisance.
    That his right to recover the damages was not parted with by the sale,

      That said premises were presumably injured by the nuisance to the amount of the expense incurred in restoring- them to their former state.
    That, upon said sale, the grantors, therefore, only received the value of the land in an undamaged condition.
    The sewer in question was built to carry olí storm water in 1879. In 1888 water was introduced into the city, and thereafter property owners connected their waste pipes with the sewer, but without any formal permission from the city. It was shown that complaint was made that a nuisance was thereby created, that the locus in quo was inspected by several aldermen, and the street superintendent testified upon the trial that it was offensive.

      Held, that it would be presumed, in support of the verdict, that the city allowed ■ private persons to connect their waste-pipes with the sewer, and hence it was. liable, without proof of actual or constructive notice thereof, for injuries resulting therefrom.
    Where it appears that a nuisance affects two lots formerly owned by the same person, one of which he had sold before the trial of an action brought to abate the nuisance, it is no objection to the granting of an injunction in such action that it would be beneficial to both lots.
    Appeal by the defendant, the City of Kingston, from a judgment, entered in the Ulster county clerk’s office on the 24th day of November, 1890, in favor of the plaintiff, declaring a sewer in said city to be a nuisance, perpetually enjoining said city from maintaining it as now constructed, and ordering a nuisance caused thereby to be abated, after a trial before the court and a jury at the Ulster Circuit, at which the jury found as follows in answer to the following questions:
    First question : “ Does the defendant maintain a nuisance at the place mentioned in the complaint and described in the evidence ? ” To this question the jury answered, “Yes.”
    Second question: “ Has the plaintiff sustained an injury special to himself in consequence thereof ? ” To which question the jury answered, “Yes.”
    Third question submitted to the jury: “ If the jury answer the above two questions in the affirmative, they will fix the amount of damages to be allowed him?” To which the jury answered, “We find for plaintiff in the sum of $524.”
    The complaint alleged the owners! lip in the plaintiff of two separate houses and lots in Kingston ; that the defendant maintained a sewer which discharged off ensive matter into a small stream running through one of the lots and near the other, creating and maintaining a nuisance which had damaged both lots, by fouling the air of both houses and lots and depositing offensive matter upon one of the lots, to the depreciation of their actual and rental value.

      O. D. B. LLasbrouok, for the appellant.

      F. A. Westbrook, for the respondent.
   Landon, J.:

The existence of the nuisance and its injurious effects were established. The plaintiff was permitted to recover damages with respect to two parcels of property, one of which was, when the action was commenced, owned by himself and wife as tenants of the entirety, but which, before trial, they sold without any reservation. While owning this parcel the plaintiff covered the small open stream which ran through it, into which stream the offensive matter creating the nuisance was discharged from the mouth of the sewer about thirty-six feet distant. He covered the stream to lessen, in part, the offensive smells spad gases, which, arising from it, pervaded his premises. The learned trial judge allowed him to recover for the expense of covering this stream, but denied recovery of any other damages with respect to this lot.

The husband was entitled to the use of the premises during the life of both parties (Berths v. Nunan, 92 N. Y., 152; Lord v. Lord, 33 N. Y. St. Rep., 753), and, therefore, it was not necessary to make his wife a jiarty; the damages he'was permitted to recover he sustained. The court submitted the question to the determination of the jury whether the plaintiff necessarily incurred this expense in remedying the nuisance, and the court approved the finding of the jury. The fact, then, is that the expense was not voluntarily or unnecessarily incurred, nor was it an expenditure indirectly caused, but was, in fact, directly compelled by the nuisance and its proximate result, and, therefore recoverable. Pending the action the plaintiff and his wife sold the premises, and, therefore, it is urged, parted with the right to damages. By the nuisance the premises were injured in value ju’esumably to the extent of the expense which the plaintiff incurred. By the expense the premises were restored to their former condition, and thus by their sale the grantors only received their value undamaged, not that value plus the expense to restore them to it. Just as if defendant bad destroyed the house and plaintiff had rebuilt and then sold the premises; he would not sell two houses and should recover for the one he lost.

The appellant urges that the plaintiff could have no injunction to abate the nuisance with respect to the parcel which he had sold. That is so, but the nuisance affects the parcel which he retains, and it is no objection to his injunction that it will beneficially affect the lot he sold and all the other lots in the neighborhood.

The sewer in question was a storm-water sewer, constructed in 1879. In 1883 water was brought' into the city, and thereafter private owners connected their closet and waste-pipes with this sewer. No formal leave of the city was obtained, and it does not appear that any was necessary. The court refused to hold, upon defendant’s request, that the plaintiff was not entitled to recover for injuries prior to the knowledge by the city of the condition causing the injuries. The action was commenced in December, 1887, and the recovery seems to be for damages from the beginning of the nuisance. Complaints were made to the common council in 1885, and in August, 1886, a formal resolution respecting .the matter was adopted. It was shown that different aldermen inspected the place of the offensive discharge from time to time, and one of them, in 1883, connected his closet pipe with the sewer. The superintendent of streets testified to its having become offensive in 1885. ¥e think it may be presumed, in support of the verdict, that the' city, upon the introduction of water, consented to the connection by private parties of their waste pipes with the sewer. The city, therefore, cannot be allowed to take the position that the wrong of private parties, done without its knowledge or consent and against its rules, created the nuisance, and that it is exempt from liability until it obtains actual or constructive notice.

The defendant urges that the injunction is improper because it cannot, in order to abate the nuisance, lawfully enter upon the premises of parties who discharge offensive matters into the sewer. Its powers for the protection of health and its own property are probably ample to enable it to sever any improper connection with the sewer, if it really should desire to do so to promote the public welfare. However this may be, the defendant can abate the nuisanee by extending the sewer along the open stream or by embracing it within it. We do not regard this objection as a substantial one. The city must be destitute of the usual municipal powers if it can neither protect its sewers nor extend them where extension is proper. The judgment should be affirmed, with costs.

LearNed, P. J., and Mayham, J., concurred.

Judgment affirmed, with costs.


author: MatiiaM, J.:

text:
    In the Matter of the Application for the Probate of an Instrument Alleged to be the Last Will and Testament of SAMUEL WESTURN, Deceased.
    Will— burden of proof where the draftsman was the sole beneficiary — fraud and, undue influence.

    A testator devised and bequeathed all bis property, amounting to $40,000, to one Burgess, tbe draftsman of tbe will, wbo was not an attorney, although be was a magistrate accustomed to drawing legal papers, and one who to some extent bad had charge of the testator’s business. The only heirs and next of kin of the testa tor were the children of a deceased brother. There was no proof that the will was read over to or by the testator, or that he knew its contents; nor was there any evidence of an intention previously expressed by him to make a will in favor of Burgess, or of any direction by the testator to the draftsman at the time it was drawn. After making the will the testator wrote a niece as follows: “I want you to come to make it your (her) home after I am dead and gone.”
    Upon an appeal from the decree of a Surrogate’s Court admitting the will to probate:

      Held, that, in addition to the ordinary evidence required on applications for the ' probate of wills, the burden was upon the proponent Burgess to show that the testator understood the provisions of the will, and that it was not the subject of artifice, fraud or undue influence.
    Appeal by tbe contestants, Harvey Westurn, Elmer Westurn, Adele Carney, Clement Westurn and Herbert Westurn, nephews and nieces of Samuel Westurn, deceased, from a decree, entered in the office of the surrogate of Warren county on the 24th day of November, 1890, admitting to probate the alleged will of Samuel Westurn after a trial in the Surrogate’s Court of Warren county.

      The deceased left no wife or children, his only heirs and next of kin being the children of a deceased brother, who appeared as contestants to the probate of the will and appellants on this appeal. Lewis Burgess, the proponent and sole executor named in the instrument, drew the same, and was the sole legatee and devisee named in the body of the instrument. On the margin of the will was anote directing a cheese factory to be given to Seymour L. Westurn. The property devised and bequeathed in the will was valued at from forty to fifty thousand dollars. The will was admitted to probate by the surrogate and letters testamentary were issued to the proponent and the-contestants appealed to this court.

      A. Armstrong and John 0. Keeler, for the contestants, appellants.

      H. A. Howard, for the proponent, respondent.
   MatiiaM, J.:

The position which the contestants seemed to take before the surrogate, that the testator was wanting in testamentary capacity, upon which subject considerable evidence was taken, does not seem to be urged here except as his physicial and mental condition can be made to bear upon the question of deception or undue influence, claimed to have been practiced by the proponent upon the testator in shaping-the provisions of the will.

It is quite apparent from all the evidence that the testator was not wanting in testamentary capacity to make a valid testamentary disposition of his property; and if this instrument was the free and voluntary act of the testator, with a knowledge of its provisions at-the time it was made, it must be upheld as his will.

It is urged by the contestants that the confidental relations that existed between the proponent and testator, the fact that the will was. drawn by the proponent in his own handwriting, and that he is made the sole beneficiary, to the exclusion of the kinsfolk of the testator who are the more natural objects of his bounty, and the failure of the proponent to prove that the will was read over to the testator, or by him, or that he knew its contents, raise the legal presumption of fraud or undue influence, or both; that such presumption is not overcome by evidence on the part of the proponent, and that the-probate of the instrument as a will should for that reason be denied..

The evidence discloses that the business relations between the proponent and testator in his lifetime had been close and somewhat of a confidental character; they had been partners in business years before and the proponent, although not an attorney, was a magistrate and accustomed to drawing business and legal papers, and to some extent had charge of testator’s business, there being no practicing lawyer in that town or vicinity.

While the relation of attorney and client did not exist between Westurn and Burgess, still it is apparent from the evidence that the former regarded the latter as a trusted business assistant, and to some extent confidential adviser in matters of a legal and business nature. It is most natural that the testator, in the absence of a lawyer to whom he could apply for the transaction of this important business, should select this proponent who had been accustomed to do his business for him, and who, to a certain extent, had had charge of his business, and who, as appears from the evidence, was the substitute for the lawyer in that community. Had not the proponent been named in the will as the principal beneficiary, no question could have arisen out of such a situation. But when we find that the trusted friend and draftsman of this will, is made in it not only the sole executor, but devisee and legatee of this entire estate, to the exclusion of all of the next of kin and heirs-at-law of the testator, we are called upon to inquire and determine whether, in the light of rules of law governing the. testamentary disposition of property, the proponent has, by his proof, overcome the legal presumptions that arise out of the circumstances of this case.

In pursuing this inquiry we must start with the concession and assertion of the testator’s absolute legal right and power to dispose of his property by will, as he pleases, without regard to any supposed claims founded upon kinship or ties of consanguinity or affinity.

These relations can only be considered as bearing upon the question of the probabilities of the instrument offered for probate, being the free and voluntary will of the testator. But the fact that a will is drawn by one who is a principal beneficiary in it has always been regarded as a suspicious circumstance tending to cast doubt upon the validity of the instrument. By the civil law, such a will drawn by a legatee is absolutely void. But the rule of the common law in England and in this State has not followed the civil law, and, while regarding it as a suspicious circumstance, it lias not alone been regarded as ground for declaring a will void.

In Marvin v. Marvin (3 Hun, 141), MasoN, J., in discussing tliis question, uses this language: “ Yet, the better rule to be deduced from the adjudged cases is, that a presumption of undue influence shall be indulged in against them when the testator is feeble, weak and in advanced old age. I do not mean to say that Such legal presumption will be indulged in, in every conceivable case, but the rule to be deduced from the adjudged cases in our own courts will fully justify this charge in its application to the case at bar.”

In that case the one who drew the will was a lawyer, and acted as the legal adviser of the testatrix.

In Newhouse v. Godwin (17 Barb., 236) the testator left a wife and sister in comparatively destitute circumstances, and gave the bulk of his estate to his counsel, who drew the will, and whose influence over the testator extended beyond professional matters. There being no evidence to show that it was in accordance with previous directions, or- that the testator had previously designed to give anything to him, and it being proved that the testator, in consequence of illness, was in a state of mind in which he readily yielded or assented to the suggestion of others, it was held that the will was invalid, as having been obtained by undue influence, and the decree of the surrogate refusing to admit the will to probate was affirmed by this court on appeal.

In that case the will was read to the testator, which does not appear to have been done in the case at bar. In that case SteoNG, J., delivering the opinion of the court, says: “ The appellant drew the will. There is nothing to show that it was in accordance with previous directions, or that any directions were "given. It is true that it was read to the testator and that he must have assented to it. Ilis assent does not, however, prove that it was his will, as the evidence shows that he readily assented to whatever was proposed to him. This peculiarity, coupled with the entire absence of any proof that the testator had previously designed to give anything to the appellant, or that he had given him any instructions to draw the will, lead strongly to the 'inference that it was the will of the appellant, and not of the testator.”

It is true that the case from which we have quoted differs from the one we are considering, in this, that the will was in that case read to tlie testator; but that, in consequence of mental and physical weakness, the will of the draftsman was deemed to dominate that of the testator; but in the case at bar, where it does not appear that the will was read by or to the testator, or that he knew its contents, and where the draftsman was the principal beneficiary, the conclusion is quite as irresistible that this was the will of the draftsman and not of the testator, as in the case from which we last quoted.

In this case, as in that, there is no evidence of a previously •expressed intention by the testator to make his will in favor of the proponent, or of any direction or instruction by the testator to the draftsman as to the disposition of the property under the will. In this case, as in that, the draftsman is a beneficiary under the will.

It is perhaps worthy of note, in this connection, that while the evidence discloses no previous expression of intent on the part of the testator to make the proponent the recipient of his property, there is in letters and corresjiondence of the testator with his brother Seymour and his wife and daughters such a cordial recognition of kinship as to raise a presumption that he intended them or some of them as the objects of his bounty; in one of which he expresses a wish that a niece make his home her home after his death.

It is true that this letter was written long after the date of the will, but as that instrument could take effect only at his death it may furnish some slight evidence of his understanding of the provisions ■of that instrument, especially when considered in connection with .the last clause before the attestation clause in the will, which reads as follows:

“ And I hope and believe that the said Lewis Burgess will use and dispose of my said property according to my wishes to him made and to the best of his judgment.”

While it is not, as we have seen, 'the province of the court to interfere with a testator’s right to exercise his free volition in the testamentary disposition of his property, the court may, in determining the question of fraud or undue influence, consider the relations existing between the testator and the natural objects of his bounty, and judging from the ordinary motives actuating men, inquire whether the will is unnatural and apparently contrary to the testator’s previously fixed and determined purpose, and in such case scrutinize closely with a view of ascertaining whether the act was free, voluntary and intelligent.

In McLoughlin v. McDevitt (63 N. Y., 213), it was held, that to establish fraud and undue influence in such a case, it is not necessary that the precise mode of committing the fraud should be proved; if it appears that the beneficiary under the will had an intent to defraud the testator in order to procure a personal advantage to himself in the will, and had the opportunity to practice deception, and a result was produced in his favor contrary to the known wishes and purposes of the testator, and no satisfactory explanation of the change is furnished, the will should be declared invalid.

It will be observed in this case that the will as presented and probated before the learned surrogate is entirely inconsistent with the express request of the testator in his letter to his niece of November 13, 1888, “ I want you to come to make it your home after I am dead and gone,” unless the testator had confided to the proponent some direction or instruction in reference to his property which he supposed the proponent, who is named as executor, would carry out as a part of the will of the testator.

It is urged by the appellant that this provision of the will, quoted above, is evidence, upon the face of the instrument itself, of the fraudulent design of the proponent in drawing the instrument to practice upon the credulity of the testator by inducing the belief in his mind, that some private instructions,. not written in the will, could be carried out by proponent as executor, which lie knew, at the time of drawing the same, could not be engrafted upon the same, or in any way affect the positive devise and bequest of the entire estate to him; and while there is no evidence aliunde the instrument in support of that subject, it is, perhaps, worthy of consideration in the case, in determining whether, under all the facts and circumstances, the proponent can stand upon the prima facie case made by him of testamentary capacity and due execution, or whether the contestants have not cast enough of suspicion upon the prima facie case to so shift the onus upon the proponent as to require explanation from him. ¡

The proponent insists that if the draftsman of a will takes a legacy under it, it is suspicious only in connection with other circumstances indicative of fraud or undue influence, and in support of that proposition cites Coffin et al. v. Coffin (23 N. Y., 1). In tliat case Comsto'ck, J., upon that subject, cites witli approbation tlie language of Baron Parke, in Butlin v. Barry (1 Curteis’ Ecc. Rep., 637), as follows: “All that can be truly said is, that if a person, whether an attorney or not,- prepare a will with a legacy to himself, it is, at most, a suspicious circumstance, of more or less weight according to the facts of each particular case, in some of no weight at all, as in the case suggested, varying according to circumstances ; for instance, the quantum of the legacy, the proportion it bears to the property disposed of, and numerous other contingencies.”

In Coffin v. Coffin (supra) the draftsman of the will, who was a nephew of the testator, took the same amount bequeathed to other nephews of the testator, and it was held not to vitiate the will.

The learned counsel for the proponent insists that, before the will can be assailed, where the draftsman is a beneficiary, some other facts must be established by the contestant, tending to show fraud or undue influence, and in support of that contention cites Post et al. v. Mason (91 N. Y., 539).

In this contention he is suj>ported by the last case cited, where, as in Coffin v. Coffin (supra), the attorney and draftsman receives a small share of the estate and shares with other relatives in an equal degree, whereas in another class of cases, such as Nexsen v. Nexsen (2 Keyes, 229), where the draftsman and attorney receives as a legacy a considerable portion of the estate, he is required to explain the transaction by more than usual formal proof.

In this case Davies, J., in discussing the duty of a beneficiary under such circumstances, at page 232, uses this language: “ It casts upon him, in addition to the ordinary burden of a proponent of a will, the additional one of establishing it by testimony of a more clear and satisfactory character. The courts demand, in such a case, satisfactory proof that the party executing the will clearly understood and fully intended to make that disposition of his property which tlie instrument purports to direct.”

It is true that in that case the will was admitted to probate, but it was upon the explanatory evidence of the draftsman, who testified to all the circumstances of the execution and of the testatrix’s knowledge of the contents of the will, which had been in her possession for some time before its execution. But it is urged by the learned counsel for tbe proponent that the legal presumption obtains- and exists, in support of his contention, that the testator knew the. contents of the will, and cites Matter of Coleman (111 N. Y., 227) upon that point. That was a case of the admissibility of attorneys who drew the will, as witnesses to its execution, and where objections were made under section 835 of the Code and upon the question of testator’s waiver of the privilege of the attorneys by making them subscribing witnesses, the court says: “ The law presumes knowledge on his (testator’s) part of its provisions,” etc.

We cannot believe that the court intended by that expression to extend that doctrine of presumption to a case like this. We think, therefore, in this case, the burden was cast upon the proponent of showing that the testator understood the provisions of this will, and that it was not the subject of artifice, fraud or undue influence, by proof in addition to the ordinary evidence required by statute to establish a will and admit it to probate. We do not see how this will can be declared a trust, as there is no cestui que trust named in it; and in such case if it created a trust the trustee would hold it without accountability to anyone, unless it should be held that a resulting trust was created in favor of the testator’s heirs-at-law or next of kin, in which case there is no apparent reason for declaring a trust, as the estate would descend to them by the laws of distribution or descent, either directly or through the medium of a personal representative.

The decree of the surrogate is reversed and an issue awarded to be tried by a jury, issues to be settled by a judge of this court,, unless fixed by the stipulation of the parties.

LEARNED, P. J., and LandoN, J"., concurred.

Decree reversed, issues ordered to be tried at circuit, order and issues to be settled by Mayham, J., costs to abide event.


author: LEARNED, P. J.:

text:
    JESSE ELTING, Respondent, v. CALVIN PALEN, Appellant.

      is apart of the freehold — an outgoing tenant who has not time, within the rules of good husbandry, to restore it to the land cannot dispose of it.

    Palen, under a lease expiring in April, 1887, occupied a farm wliicli had been sold in partition, in parcels, during the previous October, subject to the rights of Palen and to his possession until the expiration of his lease. One Biting purchased at such partition sale that portion of the farm containing the dwelling-house and a barn. At this time the barn contained very little manure. This had been largely increased by Palen, when he, in February, 1888, at the request of another purchaser at said sale, began to cart the manure away to the portion of the lands which had been acquired at the partition sale by said purchaser.
    an action brought by Elting

      Meld, that the manure belonged to sale of that portion of the land upon which it was accumulated.
    Palen as outgoing tenant no entitled to restore it to any of the land leased by him had his lease been for a sufficiently long term to have enabled him to do so within the rules of good husbandry.
    Appeal by tbe defendant Galvin Palen from a judgment, entered in the office of tbe clerk of tbe county of Ulster on tbe 2d day of May, 1890, in favor of plaintiff, adjudging that tbe defendant be perpetually restrained from removing certain manure mentioned in tbe complaint in tbis action; and also from an order denying a motion to set aside tbe verdict and for a new trial, after a trial before tbe court without a jury, at tbe Ulster Circuit.

      A. T. Clearwater, for tbe appellant.

      Bernard <& Fiero, for tbe respondent.
   LEARNED, P. J.:

Tbe defendant occupied, as tenant, a acres, and bis lease expired April 1, 1887. A partition sale of tbe premises was had October 14, 1886, at which tbe plaintiff bought forty-five acres, which contained tbe barn and dwelling-house. Other persons bought other parcels; among them, Mrs. Yarick bought about forty-seven acres. Tbe terms of sale as to all the land stated that it was sold “subject to tbe rights of Galvin Palen, as tenant, and tbe possession of said premises will be reserved until April 1,1887, and also the winter grain sown thereon will be reserved and the right to the tenant of coming upon the said premises after April 1, 1887, an<j gathering same.” On the farm, not on the part bought by the plaintiff, was also another barn used for storing hay. At the time of the purchase by plaintiff there were two or three loads of manure in the yard of the barn bought by him. On the seventeenth of February following the time of the commencement of this action there were 130. Just prior to the commencement of this action the defendant began carting away this manure from the plaintiff’s barnyard and depositing it on that part of the farm purchased by Mrs. Yarick. This he did at her request. He had carted away about thirteen loads. Thereupon the plaintiff commenced this action and obtained an injunction jpendente lite, forbidding the defendant from ■ carting away any more manure. On the trial this injunction was made final. And from the judgment the defendant appeals.

It does not distinctly appear whose tenant the defendant had 3_>een; probably the tenant of the deceased owner. Nor does it distinctly appear whether the heirs reserved to themselves the rent to become due from defendant up to April fi rst. This may be possible, although contrary to the general rule. (Washburn on Real Property, 337; Van Rensselaer v. Gallup, 5 Denio, 454, 461.) The terms of sale reserve only the possession. It would seem, then, that the title passed to the several purchasers at the time they received their deeds; but that, owing to the defendant’s existing lease, they could not take actual possession. The terms of the sale seem to have been intended simply to protect the rights of defendant as tenant, and to prevent any claim by the several purchasers that the contract of sale was broken by their inability to turn the defendant oxxt of possession. The several purchasers, therefore, becoming owners of their several parcels, must have acquired severally the rights towards the defendant which a land-owner would have in respect to a tenant in such circumstances. And these ■several purchasers were not co-tenants or joint-tenants. They held their respective purchases in severalty.

If the defendant’s lease had continued for another year, then it is very probable that, in the ordinary course of good husbandry, he could have spread tliis manure upon any proper part of tbe farm, because tlie annual spreading of tlie manure is tbe ordinary mode, lie would have been entitled to have, by this mode of use, the benefit of thfe accumulated manure. But his lease -was to expire April first. His carting this manure to a part of the farm bought, not by the plaintiff, but by some other person, was tlie same as if he had carted it to some land which had never been part of the farm. The previous owners of the farm had, by the partition sale, divided it, and each purchaser held his purchase separately.

In Middlebrook v. Corwin (15 Wend., 169), the landlord sued the tenant for manure taken away from the farm shortly before the expiration of the term, and it was held that he could recover. The court said the manure belonged to the farm, and the tenant had no more right to remove it than lie had to remove a fixture. Such is the rule in 2 Kent’s Commentaries, 347.

In Goodrich v. Jones (2 Hill, 142), the court held that manure made a part of the freehold, though laid up in heaps in the barnyard. This was said to be the doctrine between landlord and tenant, and to be stronger as between vendor and vendee.

The same is held in Daniels v. Pond (21 Pick., 367) and Kittredge v. Woods (3 N. H., 503), which last case is approved in Goodrich v. Jones (supra); see, also, Lassell v. Reed (6 Greenleaf [6 Me.], 222).

It is worth noting also that this is a rule not of our law only. By the Boman law manure went to the purchaser of the farm, whether the manure was in a heap or in a stable. Fundo vendÁio vel legato sterculinum et stramenta emtoris et legatarii sunt * * * nee interest in stdbulo jaceat an acervus sit. (Dig. XIX, 1,17, 2; see, also, Dig. XLIII, 24, 7, 6.)

It is urged by the defendant that this manure was not in existence when the plaintiff purchased, but was made subsequently. Then, as we have above seen, the defendant was, after the purchase, in the position of tenant to the plaintiff. And the rule is equally applicable in that relation.

In regard to the case cited by defendant of Ruckman v. Oatwater (28 N. J. L., 581), holding that manure in a barnyard does not pass to the grantee, we can only say that it is contrary to the decisions of our State above cited, and, however well considered, we cannot follow it.

The defendant urges the rights of co-tenants or joint-tenants as to personal property. But we think that those rights are not here involved. Of course, there is a certain difficulty in treating such an article as manure in a farm barnyard as real estate. But the difficulty is no greater than in the case of hop-poles. (Bishop v. Bishop, 11 N. Y., 123.) And the rights of all parties seem to be best settled when the manure is said to belong to the farm, and not to the tenant.

Nor do we think that any difficulty arises from the fact that the tenant’s lease extended over the whole 300 acres. He had no right to the manure as owner, though he might, as above stated, have restored it to the land. And when the owners of the land divided it by their sale, we see no injustice in saying that the manure belonged to that separate portion of the farm on which it was accumulated. Bor, as above pointed out, it could not, in good husbandry, during what remained of defendant’s term, have been applied for his benefit over the farm generally.

Judgment affirmed, with costs.

LaNdoN, J., concurred ; Mayuam, J., not acting.

Judgment affirmed, with costs.