N. Y. SURROGATES COURT. In re estate of Frederick B. Noyes, deceased.

Decided Dec., 1886.

The will of testator contained the provision following: "I direct my executors to cause my seat in the New York Stock Exchange to be sold as soon after my decease as possible, and also to collect and receive the amount of insurance upon my life from the New York Stock Exchange, and out of the proceeds thereof and out of the proceeds of my estate to pay the sum of $20,000 to my beloved aunt. Miss Elizabeth Cottam." The so-called insurance was a gratuity, which on his death became payable to said aunt, who collected it. Held, That the executors were entitled to treat the legatee's receipt of the $10,000 from the Stock Exchange as a payment pro tanto on account of the $20,000 legacy, and that the legatee is entitled to legal interest upon the remaining $10,000 from one year after the death of the testator until her claim shall be fully discharged.

Application by a legatee to compel the executors of decedent to pay her a legacy of $20,000 bequeathed to her by testator's will.

The second article of the will is in the words following: "I direct my executors to cause my seat in the New York Stock Exchange to be sold as soon after my decease as possible, and also to collect and

receive the amount of insurance upon my life from the New York Stock Exchange, and out of the proceeds thereof and out of the proceeds of my estate to pay the sum of $20,000 to my beloved aunt, Miss Elizabeth Cottam of Chatham Four Corners, Columbia County, State of New York; I direct that this legacy be paid as speedily as the law will permit."

The executors have paid to Miss Cottam the sum of $10,000, and now claim that this payment should be taken as in full satisfaction of her legacy, for the reason that she collected the $10,000 from the New York Stock Exchange referred to in the will as "insurance upon my life from the New York Stock Exchange." By the by-laws of the New York Stock Exchange, whenever a member of the Exchange dies there is levied and assessed against every surviving member the sum of ten dollars, and the faith of the Exchange is pledged to pay, within one year after proof of the deceased member's death, the sum of $10,000, or so much of that sum as shall be yielded by such levy and assessment, as a gratuity from the surviving members of the Exchange to the person or persons specified in a subsequent section of the 24th article of its by-laws. Such subsequent section declares that in the event that a deceased member shall leave no wife or children him surviving (and such was the situation of this testator), the gratuity is declared to be payable to his next of kin, and under these provisions of the by-laws of the New York

Stock Exchange the $10,000, as has been stated, was paid to Miss Cottam as being the next of kin of the decedent.

Ed. Goldschmidt, for executors.
Beale & Beale, for legatees.

Held, That the executors were entitled to treat the legatee's receipt of the $10,000 from the Stock Exchange as a payment pro tanto on account of her $20,000 legacy.

The familiar doctrine of election, as applied to wills, may be thus stated: A beneficiary who chooses to accept the bounty of a testator must do so upon such terms and conditions as the testator has seen fit to impose. He cannot insist that provisions in his favor shall be enforced and that those to his prejudice shall be ignored or set at naught. No person shall claim any benefit under a will without, as far as he is able, conforming and giving effect to everything contained in it, whereby any disposition is made showing an intention that such a thing shall take place without reference to the circumstance whether the testator had any knowledge of the extent of his power or not. Whether he thought he had the right, or, knowing the extent of his authority, intended by arbitrary exertion of power to exceed it, no person taking under the will shall disappoint it. If a testator disposes of the estate of A., to whom he gives some interest by his will, A. shall not take that unless he gives up his own estate to that amount.

It was incumbent upon Miss Cottam, therefore, if she accepted the benefit of testator's will, to Vol. 25-No. 10b.

conform and give effect to all its provisions.

By one of those provisions the executors were directed to collect and receive the life insurance. It was in the power of Miss Cottam to enable them to carry out this direction by giving them an assignment or power of attorney. If the gratuity fund had thus come into the hands of the executors, and if, out of that fund and out of the proceeds of the sale of testator's seat in the Stock Exchange and out of the proceeds of the estate generally they had paid the legacy of $20,000, they would thereby have fully satisfied the bequest provided for in the second clause of the will. Miss Cottam having elected to collect the gratuity fund for her own benefit and use, equity will therefore appropriate so much of the $20,000, the legacy bequeathed to her by the will, as shall satisfy the persons whom she has disappointed by the assertion of her rights. 2 Ves., 367; 13 id., 220; 1 Swan., 395; 13 N. Y., 365.

Held further, That generally a pecuniary legacy given without a direction by the testator for the time of its payment does not begin to bear interest until a year after the testator's death. This is well settled. 74 N. Y., 136; 79 id., 327; 3 Dem., 349.

Miss Cottam is entitled to interest on the $10,000 from November 21, 1885, one year after the death of the testator. She is entitled to no interest on the remaining $10,000, as by her agreement with the Stock Exchange she received $9,

When a case is one purely of fact, dependent in part, at least, on the testimony of witnesses whose testimony is conflicting, it is peculiarly a case for a referee to determine, and his conclusion cannot be properly disturbed on appeal.

Appeal from judgment rendered upon the report of a referee in favor of plaintiff and against defendant Vetter.

Action for goods sold and delivered by plaintiff to defendant Vetter and one William Hettel as copartners. Judgment was entered against defendant Hettel by default. Vetter defended the action on the ground that he was not liable with Hettel as partner. There was no dispute as to the delivery of the property, or its value,

nor as to the liability of Hettel. It appeared that defendants had been and were copartners in business for a considerable time prior to and until about Feb. 5, 1884, just before which date they dissolved their partnership. That while they were such partners they had dealt with plaintiff as such, and the goods sued for were delivered in the same way, and on the same direction, as goods had been theretofore delivered to them; and further, that no notice of the dissolution had been published, or general public notice thereof given. The goods were delivered in February and March, 1884, immediately after the dissolution. Vetter's defense rested on the alleged fact of actual notice to plaintiff, both written and oral, of the dissolution. On the trial the evidence upon the question of notice was directly conflicting. Upon that evidence the referee found for plaintiff, and that plaintiff sold and delivered the goods in good faith, without notice of the dissolution, believing the partnership to be yet continuing.

Wm. F. Rampe, for applt.
Geo. H. Stevens, for respt.

Held, That the case was one purely of fact, dependent, to a considerable extent, if not entirely so, on the credibility of witnesses; and that, this being so, it was peculiarly a case for the referee to determine, and his conclusion could not be properly disturbed on appeal.

Judgment affirmed, with costs.

Opinion by Bockes, J.; Learned, P.J., and Landon, J., concur.

PUBLIC POLICY. POOLING AGREEMENTS.

N. Y. SUPREME COURT. GENERAL

TERM. FIRST DEPT.

James R. Keene, respt., v. Elmore A. Kent et al., applts.

Decided Dec. 31, 1886.

A contract to withdraw from the market large quantities of a certain commodity owned by the parties to such contract for the purpose of raising the price of such commodity is unlawful and will not be enforced by the courts between the parties thereto.

Plaintiff, defendants Kent and Poole, and others, entered into an agreement whereby they were to form a pool or combination for the purpose of buying and selling 120,000 tierces of lard, and by which they agreed to withhold from the market large quantities of lard of which the several parties were owners until the said 120,000 tierces should have been accumulated and sold. Defendants Kent and Poole acted for the other parties in carrying on the business of said combination, and this action was brought to compel them to account for their transactions. An order was made directing defendants to furnish a bill of particulars

of said transactions, and from that order this appeal was taken.

Joseph H. Choate, for applts.
H. S. Bennett, for respt.

Held, That the law will not sanction such an agreement as that entered into by the parties to this action. That such a combination is an unlawful conspiracy, punishable as a crime. When it may be successfully carried out its effect

is to impose upon the public and oblige individuals having occasion. to purchase the article dealt in to pay more for it than its market value. So far as such combination or scheme may be rendered successful, it is little, if anything, less than respectable robbery, which the law will not permit or sustain. 68 N. Y., 558; 3 Seld., 176.

That, where such a combination or conspiracy may have been carried into effect, the law will not aid either of the parties in any endeavor, by means of legal proceedings, to secure or obtain his share of the plunder. 57 N. Y., 518. On the contrary, it will leave the parties precisely where they have placed themselves. It will not interpose to secure to either that advantage which, under the terms of the agreement entered into and executed, he had reason to expect would be conceded to him by the other parties to the unlawful transaction. If persons devise and enter into schemes or conspiracies of this character, they must depend for their remedy upon the application of the rule which may be observed by other confederates requiring that there shall be honor among certain classes of persons who violate the laws of the State. They cannot appeal to the courts. for redress, or for any aid or assistance in endeavoring to enforce the contract so far as it may be in favor of one of the parties against the others.

Order reversed and motion denied.

Opinion by Daniels, J.; Brady, J., concurs in result.

INDICTMENT. LARCENY. EVIDENCE. MARINE

INSURANCE.

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

The People, respts., v. Lorenzo Dimick, applt.

Decided Oct., 1886.

For the purpose of determining the sufficiency of an indictment containing several counts, upon a demurrer it is enough that any one count is sufficient. The crime "may be charged in separate counts to have been committed in a different manner, and by different means." Upon an indictment of this character it is not error for the court to refuse to compel the prosecution to elect upon which count it will proceed.

The description of the subject of larceny as "money of a kind and description to the grand jury unknown," with an allegation that a more particular description cannot be given, is sufficient.

To constitute the crime of larceny by obtaining money by false representations, the act by which it is consummated must be illegal, whatever may have been the intent or purpose of defendant in doing such act, and defendant has the right that the jury be so advised.

Where an important proposition is errone

ously stated to the jury, such error is not cured by the fact that the rule is correctly stated in other parts of the charge, unless the erroneous proposition is distinctly withdrawn.

Belief of a defendant that he had a right to do an act charged as constituting the crime of larceny by obtaining money by false and fraudulent representations, is not inconsistent with the intent to de

fraud, and in case of such intent, without any right to do the act, his belief would not protect him against a charge of the crime.

Where the acts constituting or requisite to the offense of larceny by obtaining money by false and fraudulent representations are made in one county, and the money is paid by the means of such representations in another county,

although the obtaining of the money is the consummation of the offense, the courts of either county have jurisdiction over the crime.

The validity of a marine insurance effected after the loss of the subject of insurance depends upon the good faith of the assured, but no agency however general in terms will be deemed to embrace the power to insure property after knowledge of its loss.

When a paper as a whole is not competent evidence, though some parts of it are competent, and may have a tendency to arouse the prejudices of the jury, although the court qualifies the purpose for which it is received in evidence, it cannot be deemed harmless, and its admission is error.

Appeal from judgment of Erie Oyer and Terminer, convicting defendant of the crime of grand larceny in the first degree.

The indictment contains three counts and charges. First, that on Dec. 10, 1883, at the city of Buffalo, defendant did feloniously, falsely and fraudulently represent to the Thames & Mersey Marine Ins. Co., Limited, of Liverpool, London and Manchester, England, that it had made and effected through its general agents, Crosby & Dimick, insurance upon the cargo of the schooner, James Wade, in the sum of $5,000; that a loss of the cargo had thereafter occurred whereby the liability of the company had become fixed to that amount; that the company, believing the false representations so made to be true, and relying upon them, was thereby induced to and did pay over to defendant, and he feloniously and fraudulently obtained from the possession of the company $4,975 in money of a kind and description to the grand