executors continued to carry on the business for a number of years in accordance with the provisions of the will. In the account filed by them they charged against the income of the life tenants losses by bad debts, amounts expended for personal property worn out or used in the business and for ordinary repairs of the real estate. These charges were allowed by the surrogate.

Luther R. Marsh, for applt. Martin J. Keogh, for respts. Held, No error; that such charges were properly made upon the income of the life tenants by the provisions of the will; that it was not necessary that the testator should have expressed in his will in more specific terms what items should be deducted. He evidently intended by the language employed to include all losses and expenses necessarily incurred in the management of the estate and the conduct of the business.

Order of General Term, affirming decree of surrogate, affirmed. Opinion by Miller, J. All con

cur.

JUDICIAL SALE. PARTITION.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

Laura A. Prior, by guardian, applt., v. Thomas E. Prior and Jacob V. Hall, respts.

Decided Oct., 1886.

Ordinarily when the question of adequacy of price is a disputed one of fact a judicial sale will not be set aside on the

ground of mere inadequacy of the sum produced on the sale.

When purchasers at a judicial sale have sold to bona fide purchasers any portion of the premises such persons have a right to be heard on a motion to set aside the sale.

It is well settled, and the rule is distinctly declared by § 1533, Code Civ. Pro., that a party having an estate in remainder or reversion cannot compel a present partition and sale of land against the consent of the life tenant. If, however, the parties are all sui juris, all objection to such sale might be overcome by consent of all parties.

A motion to set aside a judicial sale is addressed to the discretion of the court, and the General Term will not review the exercise of such discretion.

Appeal from order of Erie County Court, denying motion to set aside a judicial sale of real property made pursuant to a judgment in partition.

Defendant Jacob V. Hall was a life tenant of the premises and plaintiff and the other defendant

had the remainder of the estate in the land. The action was partition. The premises were sold, the life tenant was paid from the proceeds the estimated value of his estate, and the residue was paid into court for the other parties, who were infants. This sale was made Dec. 10, 1881, and the proceedings for the motion were taken in Feb., 1886, and the motion heard in April, 1886, in behalf of the infant parties. The motion was denied, and Laura E. and Thomas Prior appeal.

Roberts, Alexander & Messer, for applts.

O. O. Cottle, for respt.

Held, Ordinarily when the question of adequacy of price is a dis

puted one in fact, a judicial sale will not be set aside on the ground of mere inadequacy of the sum produced on sale.

The relation of the parties to the land which was sought to be partitioned in this action comes within the provisions of § 1533, Code Civ. Pro., but the direction to sell and the sale are not void, because the court had jurisdiction of the subject matter of the action and of the parties thereto. 97 N. Y., 209.

It is well settled, and the rule distinctly declared, that a party having an estate in remainder cannot compel a present partition and sale against the consent of the life tenant. 66 N. Y., 37; 63 How. Pr., 408.

And therefore when a partition cannot be made between those having an estate in remainder or reversion the action should proceed no further. In this case the sale of the entire estate in the land was directed, and the life tenant does not object, but consents to take a gross sum ascertained by means of the recognized rules for computing the value of life estates and takes the sum set apart for him. If all the parties had then been sui juris the sale might be supported, so far as this question is concerned, by consent to the sale and distribution. The infancy of the appellants, however, presents a question which might lead to a different conclusion. 31 Hun, 183. But without expressing any opinion upon this question, this case cannot be intelligently disposed of on the proofs before the court.

The motion papers show that portions of the premises have been sold by the purchasers at the judicial sale by other parties who have purchased in good faith and made improvements on them. These parties have a right to be heard; and as it is evident that the facts would not be undisputed this is not a proper case to be disposed of on affidavits.

There is another difficulty in the way of considering the decision of the motion by the County Court. That court was called upon to exercise its discretion. This court cannot review the discretion of that court.

Order affirmed.

Opinion by Bradley, J.; Smith, P.J., Barker and Haight, JJ., concur.

VARIANCE. WASTE.

N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Elizabeth Stillwell, exrx., respt., v. August Zinsser, applt.

Decided Dec., 1886.

The complaint alleged that defendant maliciously destroyed grass and sod of plaintiff and took it away, and prayed for relief under the statute to prevent malicious mischief. She proved the wrongful cutting and carrying away. Held, That there was no variance, and that she was entitled to recover for the injury to the freehold.

Appeal from judgment in favor of plaintiff.

Plaintiff's complaint alleged ownership of a farm in Kings Co., and that defendant maliciously destroyed, injured and defaced the grass and sod of plaintiff and car

March 25, 1885, and also a warrant of attachment.

On motion to set them aside, affidavits made by plaintiff and one D. were read, showing the nonresidence of defendant and diligence to find him in the State to serve with summons.

An order was made May 8, 1885, that on paying defendant $10 plaintiff have leave to amend his proceedings by filing said affidavits nunc pro tune as of March 25, and that the order and other proceedings be amended so as to conform thereto, and that being done the motions denied, but if not motions to be granted. The $10 was immediately paid. Defendant's attorney subsequently offered to return it, but it was refused and he still retains it.

E. D. Cummings, for applt. George A. Fisher, in person. Held, No error. We may observe that the record brought before us does not indicate any objection taken in Special Term to the offer to read the affidavit of plaintiff and D. 31 Hun, 424. However, 724, Code Civ. Pro., confers upon the court power in its discretion to allow an amendment of proceedings had. 16 Hun, 349; 76 N. Y., 601. In that case the power of the court was distinctly declared to grant amendments nunc pro tunc, although it was said, "such an order is not operative as against persons who are not parties to the action." The question before us only relates to the parties to the action. The court exercised its discretion and named the terms, and plaintiff complied.

We may approve of the exercise of the power. Defendant having accepted the money paid to comply with the terms of the order, and in the discretion of the court deemed proper, ought not now to be heard to complain of the course the discretion of the court took. 2 Civ. Pro., 300; 93 N. Y., 93; Code Civ. Pro., § 723.

It may be remarked that it does not appear by the appeal papers that any rights had intervened between March 25 and May 8, 1885, and no question in that regard need be passed upon.

Order affirmed, with $10 costs and disbursements, and motion to dismiss denied, without costs.

Opinion by Hardin, P.J.; Boardman and Follett, JJ., con

cur.

LARCENY. PRACTICE. EVIDENCE.

N. Y. COURT OF APPEALS. The People, respts., v. McCallum, applt.

Decided Dec. 7, 1886.

The court has a right to reserve the question of presumption of guilt until all the testimony is in, and cannot be called upon to pass upon abstract theories in advance.

If a charge as a whole conveys the correct rule of law the judgment will not be reversed, although detached sentences may be erroneous.

Admissions of defendant made after being told by the officers that she might as well own up as they had proof to convict her and that she might consider herself under arrest, are admissible.

Defendant was indicted for the crime of grand larceny in the first degree and convicted of grand lar

ceny in the second degree. She was charged with stealing from one H. a trunk containing $550 in money and two pairs of socks. Upon the trial the court refused to bold that upon a presumption that a larceny had been committed no presumption can be founded that defendant committed the crime, and that as matter of law no presumption of guilt can be raised from the possession of stolen property, except where the possession is conscious and exclusive on the part of defendant.

Watson M. Rodgers, for applt.
E. C. Emerson, for respt.

Held, No error; that the court had the right to reserve the disposition of these questions until the entire testimony was in, and could not be required to pass upon the abstract questions presented, or to deal in abstract theories which would not serve to elucidate or explain the case as presented by the testimony.

If a charge as a whole conveys to the jury the correct rule of law upon the question at issue the judgment will not be reversed, although detached sentences may be erroneous. If the language employed be capable of different constructions that one will be adopted which will lead to an affirmance of the judgment unless it fairly appears that the jury were or might have been misled.

Upon the trial a motion was made by defendant's counsel to strike out all the evidence given by one K. in regard to admissions made by defendant after certain statements made by an officer to

her, and also all the evidence as to the admissions made by defendant that certain tracks testified to were hers and her daughter's, on the ground that they were made under threats by the officers, and that defendant was told she might as well own up as they had proof to convict her, and that she might consider herself under arrest. The motion was denied.

Held, No error; that conceding that the declarations made by defendant can be regarded as confessions, under the testimony introduced and under § 395 of the Criminal Code, the evidence was competent; that what was said by the officers could not be regarded as threats which can be said to have induced defendant to make any statement as to the alleged offense. offense. 37 N. Y., 304.

The only evidence as to the amount of money lost was that of H., who swore upon his direct examination that he lost $540. It was claimed that his cross-examination showed that he was uncertain what amount of money was in fact in the trunk. The court charged the jury that if they were convinced the value of the property was over $500 and that defendant took it they might convict her of grand larceny in the first degree, and if the property taken was less than $500 and more than $25 they might convict her of grand larceny in the second degree, and if less than $25 the verdict might be for petit larceny. Held, No error.

Judgment of General Term, affirming conviction, affirmed.