ness of his principal is done by the Opinion by Davis, P.J.; Brady principal. That while his agree- and Daniels, JJ., concur. ment as to the terms of the loan was with the agent, it was an agreement to make the loan to the

WILLS. DOWER. borrowers and to be paid a bonus

N. Y. COURT OF APPEALS. for making such loan. To such a transaction the law against usury

Konvalinka et al., exrs., applts., clearly attaches, for it is a neces- v. Schlegel, applt., et al., respts. sary consequence that the bonus

Decided Jan. 18, 1887. paid to the lender by the agent for

To put a widow to her election between the loan to the borrowers is, in

dower and a provision in the will, in the legal effect, paid by the principal absence of express words, there must be as a bonus or excessive interest a clear incompatibility arising on the for the use of the money beyond

face of the will between a claim of dower

and a claim to such provision. The mere the legal rate reserved in the mort

creation of a trust for the sale of real gages.

estate and its distribution is not inconThat it is no answer to say that sistent with the existence of a dower in. if the loan in fact had been ob

terest in the same property.

Testator devised the residue of his estate to tained without any bonus the

his executors, to be sold by them and the agents could have kept the whole

proceeds divided between his wife and of the $1,500. That whether they children share and share alike. Held, could have done so or not without

That the widow was not put to her elec

tion; that the devise was void as a trust, affecting the validity of the loan

but valid as a power in trust to sell and was not a question in the case, for divide, and that the lands descended to the fact was that they had paid the heirs subject to the execution of the the sum of $695 which they were power. authorized by their principals 'to This action was brought for the use for that purpose if necessary construction of the will of S., deas a bonus to secure the loan to a ceased. After providing for the party who made the loan on the payment of his debts and certain condition that that bonus should specific legacies, it was provided be paid.

that the residue, which consisted Condit v. Baldwin, 21 N. Y., of both real and personal property, 219; Bell v. Day, 32 id., 165; Gug- should go to his executors and genheimer v. Geizler, 81 id., 293; | that they should sell and dispose Madison University v. White, 25 of the same, and “divide the proHun, 490; Estevez v. Purdy, 66 N. ceeds thereof equally among my Y., 446 ; Wheaton v. Voorhis, 53 wife and children, share and share How. Pr., 319, distinguished.

alike." Order reversed, and order en- John W. Konvalinka and Henry tered directing that the amount to McCloskey, for applts. be paid upon the mortgages should W. E. Glover, for respts. be ascertained as provided by the Held, That testator's widow was statute of N. J.

not put to her election between dower and a provision in the will, valid as a power in trust for the but was entitled to both.

sale of the lands and a division of Dower is favored. It is never the proceeds, and the lands deexcluded by a provision for a wife, scended to the heirs of the testaexcept by express words or by tor subject to the execution of the necessary implication.

Where power.

1 R. S., 729, § 56 ; 98 N. there are no express words there Y., 35. must be upon the face of the will The mere creation of a trust for a demonstration of the intention the sale of real property and its of the testator that the widow distribution is not inconsistent shall not take both dower and the with the existence of a dower inprovision. The will furnishes this terest in the same property. 5 demonstration only when it clearly Paige, 596; 8 id., 325; 3 Hare, 310; appears that to permit the widow 3 Brown's Ch., 347. to claim both dower and the pro- Savage v. Burnham, 17 N. Y., vision would interfere with the 577; Tobias v. Ketchum, 32 id., other dispositions and disturb the 327, distinguished. scheme of the testator as mani- Judgment of General Term, affested by his will. The intention firming judgment in favor of the of the testator to put the widow widow, affirmed. to an election cannot be inferred Opinion by Andrews, J. All from the extent of the provision concur. . or because she is devisee under the will for life or in fee, or because it

ADMINISTRATOR. ACCOUNTmay seem to the court that to per

ING. mit the widow to claim both the provision and dower would be un

N. Y. SUPREME COURT. GENERAL just as a family arrangement, or

TERM. FIFTH DEPT. even because it may be inferred or In re estate of Charles Hurlburt, believed, in view of all the circum- deceased. stances, that if the attention of

Decided Jan., 1887. the testator had been drawn to the subject he would have expressly

A petition praying that administrators be

required to render an intermediate acexcluded dower. To put the

count, commencing: “The petition of M. widow to her election in the ab

H., an infant, by I. G., her general guardsence of express words there must ian,” and signed “I. G.,” and verified be a clear incompatibility arising

by him in the usual form, that he was on the face of the will between a

general guardian, etc., is proper in form.

A citation issued to the administrators, and claim of dower and a claim to a

requiring them to show cause why the benefit given by the will. 2 Johns. prayer of such petition should not be Ch., 452; 10 Paige, 266; 8 id., 325;

granted, may be issued by the clerk. 5 id., 599; 9 N. Y., 502; 1 Sandf. Appeal by administrators from Ch., 331.

an order of surrogate directing Also held, That the devise to the them to render an intermediate executors was void as a trust, but account.

The proceedings were com- would have been properly executed menced by “The petition of Maud if it had been signed “Maud HurlHurlburt, an infant, by I. Gifford, burt, by I. Gifford, her general her general guardian,” and was guardian," instead of being signed signed by Gifford, and was veri- simply “I. Gifford;” but by referfied by him in the usual form, that ring back to the body of the petihe was the general guardian, etc. tion we see that it was the petition A citation was issued to the ad- of Maud Hurlburt, by I. Gifford, ministrators requiring them to her general guardian. The signashow cause why the prayer of the ture of Gifford at the end of the petition should not be granted. petition must, therefore, be deemed The citation was attested in the to have been written in that causual form with the seal of the pacity. In Hyatt v. Seeley, 11 N. Surrogate's Court, and was signed Y., 52, 58, Selden, J., in describing by the clerk. The administrators the proper mode of executing a appeared and made objection to deed by a guardian directed to conthe petition and citation, which vey the interest of infants, says: were overruled by the surrogate. “The precise form, however, is not Thereupon the surrogate made the essential; but the order of the court order appealed from, and ad

from, and ad- | must be followed in substance.” journed the proceedings until the He further remarked that it did day named upon which the ac- not appear upon the face of the count was to be made. Appellants deed that any of the grantors were contended that the petition does infants, or that they had a guardnot show facts upon which a de- ian ad litem ; that in naming the cree could be made; that it is only parties to the deed there was no signed by Gifford, who is not indi- allusion to the guardian, nor to vidually entitled to any share in the fact that any were infants. the estate, and that consequently The deed in that case was signed the court acquired no jurisdiction by the infants themselves, and by to proceed.

the guardian, but not in his caCharles McLouth, for applts. pacity as such. Had the deed deS. N. Sawyer, for respt.

scribed the grantors as infants, Held, That the petition states all and named the guardian, a differthe facts necessary to give the ent question would have been precourt jurisdiction. It states that sented. Maud Hurlburt is one of the heirs, The petition prayed that a citaetc., of Charles Hurlburt, deceased, tion should issue. The only object and that she is entitled to a dis- of the citation was to inform the tributive share of his estate. appellants of the presenting of the True, it does not state the share petition, and giving them an opwhich she is entitled to, but this portunity to be heard. It issues fact may properly be ascertained as of course, and is sanctioned by and determined by the surrogate the uniform practice of the court, upon the hearing. The petition and we think it may properly be

issued by the clerk under subd. 2 the issue of a marriage which took place of $ 2509 of the Code. If, however, after the making of a will disposing of

the whole estate of the testator and is in we are in error in this regard it

no wise provided for or referred to in was but an irregularity, and was such will, such will will be deemed recured by the appearance of the ad- voked, and of course such infant has a ministrators. They did not appear

status as contestant. Sections 43 and 49, specially, as is claimed by the ap

tit. 1, Chap. 6, part 2, Rev. Stat. pellants, for the case only shows Motion to admit to probate two that they appeared and, by their papers propounded as together attorney, objected. The subse- constituting the will of decedent, quent statement in the case, after notwithstanding the objections inthe ruling of the surrogate, that terposed in behalf of one Caroline no further appearance was made, Gall, an infant, who is claimed by does not change or alter the gen- her special guardian to be deceeral appearance previously shown. dent's posthumous child.

No final order has been made, By the objections filed the connor any order that affects a sub- testant challenges the jurisdiction stantial right. A serious question of the court, and then alleges that is thus presented as to whether this “subsequent to the making of the is an appealable order; but under said will” the testator married one the view which we have taken of Amelia Steel; that said Amelia the other question it does not be- Steel thereafter gave birth to the come necessary to determine this. infant whom such special guardian Order affirmed.

here represents, and that such inOpinion by Haight, J.; Bradley fant is issue of such marriage. It and Angle, JJ., concur.

is further set forth that the said will undertakes to dispose of the

decedent's entire estate, that it PROBATE. STATUS.

contains no provision for such inN. Y. SURROGATES COURT. fant and makes no mention of her, In re estate of Joseph Gall.

and that the decedent has not pro

vided for her apart from such Decided Feb. 25, 1887.

alleged will by settlement or otherWhere in objections, interposed in behalf wise. of a special guardian for an infant to

Samuel G. Barnard, for C. F. the probate of a will, it appears that the infant contestant was born after the

Gall. death of the decedent and is the issue of A. Simis, Jr., special guardian. a marriage contracted before the making M. J. McKenna, for admr. of the will, and that such infant is unprovided for by any settlement and not men

Held, That the objections of the tioned in the will, the will must be ad-special guardian may be so amendmitted to probate notwithstanding such ed as to distinctly disclose whether objections, as such infant takes as if the the execution of the codicil prefather had died intestate, and must resort

ceded the decedent's marriage or to the remedies provided by $ 1868 of the Code.

was after. If by such amendment Where, however, such infant contestant is it appears that the marriage took

Vol. 25–No. 20a.

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place after the execution of the argument of the appeal herein, codicil the motion must be denied, on the ground that since the deif otherwise it must be granted. cision of this court, Dec. 17, 1886,

If the marriage took place after it has obtained from the General the making of the will, $ 43, tit. 1, Term of the Supreme Court an Chap. 6, part 2, R. S., is applica- order to show cause why the reble to this case, and the will is to be port of the commissioners should deemed revoked, which would give not be remanded to them for furthe contestant a status. But if ther hearing, which order to show the marriage took place before the cause is now pending, and that in making of the will, and the infant order to comply with the opinion is the issue of such marriage, then of this court the petitioner has § 49, tit. 1, Chap. 6, part 2, R. S., taken proceedings for the amendis applicable and the contestant is ment of its articles of association not a party in interest in this in those particulars

in those particulars which this proceeding, the statute providing court have held them to be dethat in such case the infant shall | fective. take as if the father died intestate, William M. Evarts, Robert Sewand she must resort for her reme- ell and Everett P. Wheeler, for dies to $ 1868 of the Code.

motion. Opinion by Rollins, S.

William C. Trull and Wheeler H. Peckham, opposed.

Held, That even if the proceedAPPEAL. RAILROADS.

ings to amend were effectual, they N. Y. COURT OF APPEALS. would not afford ground for a reIn re petition of the N. Y. Cable argument of the appeal, the jurisCo., applt., v. The Mayor, etc.,

diction of this court being confined

of N. Y., respt.

to a review of determinations ac

tually made by the Supreme Court, Decided Feb. 8, 1887.

which must be had upon the same Proceedings taken to obviate defects point- papers which were before the Gen

ed out by the decision of the Court of Ap- eral Term.
peals cannot afford ground for a reargu-
ment in that court, the court being con-

The order made by this court fined to a review of determinations actu- affirming the order of the General ally made by the court below; but the Term denying the application of order affirming the order below is no ob- the petitioner will be no obstacle stacle to a rehearing at General Term or to a new application based on new facts.

to a rehearing of the matter at the Where a power is conferred upon a corpora

General Term on the alleged new tion duly formed it will not be defeated state of facts, or to a new applicasimply because the corporation has done

tion based upon new facts. 74 N. or omitted some act which may be a

Y., 370. cause of forfeiture of its rights and franchises, for it rests with the State to deter

In order to sustain proceedings mine whether such forfeiture shall be by which a body claims to be a enforced.

corporation, and as such empowThe petitioner moved for a re- ered to exercise the right of emi.


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