could not open his mouth as a wit- the act of Feb. 17, 1848. This acness without disclosing something tion was brought against defendin the nature of a communication ant, as a stockholder of said cormade to him by his client. That poration, to recover said debt from the Code does not place such a him upon an alleged individual weapon for the defeat of wills in liability therefor arising by reason the hands of any one seeking to of the fact that the entire capital overthrow a will propounded for stock of the company had not been probate which presumably it was paid in.

paid in. It appeared that a certhe intention of the testator should tificate had been filed stating that be sustained by the testimony of said capital stock had all been paid his counsel and adviser who pre- in by the issue thereof in payment pared it.

of the purchase money for the Decree affirmed.

mines, etc., acquired by the comOpinion by Davis, P.J.; Brady pany; but it was alleged by plainand Daniels, JJ., concur.

tiff that said mines, etc., were not worth the value put upon them,

and that such value was a frauduPRACTICE. CORPORATIONS.

lent overvaluation. It appeared N. Y. SUPREME COURT. GENERAL situated in a country prolific in

upon the trial that said mines were TERM. FIRST DEPT.

ore, that adjoining mines then beJohn L. Dodge, applt., v. James ing actually worked were known Havemeyer, respt.

to be of enormous value, and that Decided Dec. 31, 1886.

the veins of these adjoining minés

were supposed to extend into the When defendant moves at the conclusion of plaintiff's evidence for a dismissal of property sold to this company. the complaint, and plaintiff fails to ask

The evidence also tended to show to go to the jury upon any question of that plaintiff was a stockholder of fact, the effect is to submit such ques

the corporation, and became such tions to the court upon the evidence, and it is too late, upon an appeal from the apparently at the time when the judgment dismissing the complaint, to company contracted the debt to urge that certain questions of fact should him which this action was brought have been submitted to the jury.

to recover. At the close of plainA stockholder of a mining corporation, who

tiff's evidence defendant moved is also a creditor thereof, cannot maintain an action to recover such debt from a for a dismissal of the complaint fellow stockholder upon the latter's indi- upon the ground that no frauduvidual liability for the debts of the com- lent overvaluation of the property pany arising from the fact that the entire

for which the company's stock was capital stock has not been paid in. The remedy in such a case is by a suit for an issued had been proved; and that accounting to fix the pro rata liability of plaintiff, being himself a stockthe stockholders.

holder in said company, could not Plaintiff was a judgment cred- maintain this action. Plaintiff itor of the Bald Mountain Mining did not ask to have the question Co., a corporation organized under of fact as to whether the valuation put upon the property purchased tiff's remedy was by a suit for an by the company was fraudulent, or accounting to fix the pro rata liaas to whether plaintiff was or was bility of the stockholders, and not not a stockholder, submitted to the by an action at law to recover the jury.

whole debt from an individual The complaint was dismissed stockholder. 72 N. Y., 100; 29 for the reasons advanced by de- Hun, 542; 3 Hill, 188; 43 Barb., fendant.

162. Smith & Bowman, for applt. Judgment affirmed. Thomas H. Barrowsky, for respt. Opinion by Davis, P.J.; Brady

Held, That the effect of submit and Daniels, JJ., concur. ting the motion to dismiss to the decision of the court and the omis

WILLS. TRUSTS. sion of plaintiff to ask to go to the jury upon the questions of fact N. Y. COURT OF APPEALS. specified as grounds for the action,

Weeks et al., applts., v. Cornor any other question of fact, was

wall et al., respts. to submit to the court those ques

Decided Feb. 1, 1887. tions upon the evidence; and appellant was not at liberty, upon

Testator, after creating certain trusts for

the lives of beneficiaries and devising & appeal, to say that it ought to

lot to one P. in fee, gave the residue of his have been submitted to the jury estate to his executors to use as in their to determine whether or not there judgment they deemed for the best interest was a fraudulent overvaluation of of the estate, with power to mortgage it

for that purpose, and after the terminathe property for which the stock

tion of the real estate trusts he devised of the company was issued, or

the fee to his legatees in the proportion whether or not plaintiff was a their specified legacies bear to each other. stockholder of said company.

Held, That the residuary clause effectually That the evidence failed to show

devised the land referred to, and that the

devisees in fee were the persons mena fraudulent overvaluation of the

tioned as beneficiaries and P., and that property purchased by the issue of

the proceeds of a sale on partition should the company's stock, but rather be divided as to the beneficiaries in prothat such valuation was put upon

portion to the value of the real estate from

which they were respectively entitled to it in good faith upon an erroneous the income and as to P. in proportion to estimate of its value produced by the value of the fee of the land given to deceptive appearances.


Fraud him; that the trust created by the residumust be affirmatively shown. 13

ary clause was invalid. Hun, 408; 80 N. Y., 650 ; 57 id., affirming S. C., 17 W. Dig., 495. 133; 63 id., 95; 90 id., 93; 73 id., This was an action in partition. 104.

The premises in question beThat the court, having deter-longed to one W., who, in 1881, mined that plaintiff was a stock - died leaving a widow and no deholder of the company, was right scendants. He left a will by which in holding that there could be no he disposed of a large amount of recovery in this action, for plain personal property, giving to his widow certain real and personal ed bear to each other, the heirs of property absolutely, and a life in- such legatee as may have died to terest in four lots situated in take the share to which the legathe city of New York. The will

The will tee would if living have been encontained seventeen clauses, in titled.”

titled.” The succeeding clause in each of which the testator devised the will provided that “upon the certain parcels of land to his exec- termination of the real estate utors in trust, to pay the net in- trusts herein contained, where I come to a devisee named for life, have not hereinbefore disposed of and upon the death of such de- the fee of my real estate, I do visee, the land specified was de- hereby give, devise and bequeath vised to the wife and heirs of such the fee of the said real estate trust devisee, and if there was no wife, property to his “legatees, except to his heirs or issue. Several said servants, to be divided among of the clauses provided that them in the proportion specified in in case of the death of the the residuary clause. The heirs of life beneficiary his children such legatees as may have died, to should take the parent's share. take the share to which legatee, The testator devised a lot to P. in if living, would be entitled; meanfee, and one to each of his servants, ing and intending by this, to reD. and C. By a residuary clause gard each of my legatees, except he gave the residue of his real and said servants,” naming them, personal property, not “ bequeath- “a legal heir to my estate, limited ed in fee or in trust,” to his execu. to the said trust property in the protors “to use the same as in their portion named.” The real estate judgment they deem to be for the referred to in the residuary and best interest of my whole estate, succeeding clause of the will emand in order to raise money for braced the four lots devised to the that purpose, I empower them to testator's widow for life. mortgage the piece or parcel of E. Ellery Anderson, S. H. land, being the residue and remain- Thayer, A. H. Stoiber, F. E. der of my estate, and not herein Smith, W. T. Graff and W. B. disposed of in fee or in trust, and Putney, for applts. after paying and keeping paid all Flamen B. Candler, Abner C. taxes and assessments upon said Thomas, John F. Coffin, Martin property” and expending suffi- J. Keogh and J. Montgomery cient to keep the premises in re- Peters, for respts. pair, and for insurance, “to divide Held, That the residuary clause and pay the remainder at any time legally and effectually devised the within ten years, to each and land referred to in it, and that the every of my legatees hereinbefore devisees in fee were the sevennamed,” except the two servants, teen persons mentioned as benefi“in the proportion in which his, ciaries in the seventeen trusts creher, or their specified legacies ated by the will together with P., hereinbefore named and bequeath- and that the proceeds of sale in a

partition of the property should be and were voidable at the election of the divided as to the seventeen benefi- railway company with the exception of ciaries in proportion to the value

those which had passed into the hands of

holders for value without notice, and that of the specific real estate from

as to such bonds the action could be which they were respectively en- maintained. Held, That it was not nectitled to the income, and as to P., essary upon such decision for the court

to make findings and to enter an interlocin proportion to the value of the fee

utory judgment of foreclosure and sale of the land given to him. The only

with a reference to ascertain the amount real estate trust attempted to be due upon the bonds, but that a mere created by the residuary clause is order of reference to inquire who were

the holders of the bonds in controversy one to mortgage the real estate

and for what they had been acquired therein mentioned; that this trust

and what consideration had been paid was invalid because the mort- therefor by their present or preceding gage was not for the benefit of holders was proper and sufficient. legatees or for the purpose of satis- Such an order of reference affected a subfying any charge upon the land, 1

stántial right and was appealable. R.S., 728, $ 55, and if valid it would Action to foreclose a mortgage have vested no estate in the trus

upon the property of defendant, tees, $ 56, but would have been the N. Y. City & N. RR. Co., valid only as a power, and the given to secure bonds issued by it power of alienation was not un- to the amount of $4,000,000. The duly suspended.

answer of the railroad company Order of General Term, denying alleged that said bonds had been motion for a new trial, after entry issued in pursuance of a frauduof interlocutory judgment, af- lent scheme contrived by one R., firmed.

the contractor who had built the Opinion by Earl, J. All concur, road, and were invalid for that except Andrews, J., not voting. reason. The issues raised by the

pleadings were tried at Special

Term and an opinion was rendered PRACTICE MORTGAGE. by the court to the effect that said

bonds had been unlawfully issued N. Y. SUPREME COURT. GENERAL

and were voidable at the election TERM. FIRST DEPT.

of the railroad company, with the The Central Trust Co., of N. Y., exception of those which had passed applt., v. The N. Y. City & & into the hands of holders for value Northern RR. Co., respt.

without notice. Decided Dec. 31, 1886.

After the rendering of said de. Action to foreclose a mortgage upon the

cision plaintiff submitted to the property of a railroad company given to

court findings of fact and conclusecure bonds issued by said company. sions of law embodying an interThe defense was that the bonds had been locutory judgment of foreclosure fraudulently issued and were invalid.

and sale, which provided for a The issues were tried at Special Term

reference to ascertain the amount and a decision rendered to the effect that said bonds had been unlawfully issued due upon the bonds. The court

refused to make such findings and visions directing that a report shall denied the application for the in- be made and filed relates only to terlocutory judgment, but made the determination of the whole an order of reference to inquire issue in the action. SS 1022, 1221, who were the holders of the bonds subd. 3. That it was not intended in controversy and for what they to be obligatory upon the court to had been acquired and what con- make and file this decision before sideration had been paid therefor the final determination of the acby their present or preceding hold- tion is further evident from the ers.

latter portion of $ 1013 of the Code, Plaintiff appealed from this or- which permits the court of its own der, and defendants moved to dis-motion, in an action triable withmiss said appeal upon the ground out a jury, to direct a reference to that said order was not appealable. a referee to report his finding upon

Wm. Allen Butler, Julien T. one or more specific questions of Davies and Edward Lyman Short, fact involved in the issue. That for applt.

must necessarily be done before James C. Carter and Lewis Cass the complete determination of the Ledyard, for respt.

action, and it is after that and Held, That the present system of when the remaining issues in the practice contains no direction that case have been tried that it has an interlocutory judgment shall be been provided by $ 1226 for the enentered upon the determination of try of the judgment, and that the the court as to the controlling reference in this case seemed to be rights of the parties in such a liti- within the language of this secgation. The Code has been framed tion, That by $ 1015, also, the in such language as to permit, court has been authorized of its without requiring, an interlocu- own motion to direct a reference tory judgment, and to provide for to take an account either after inexceptions to be filed, and a review terlocutory or final judgment, or to be had by appeal or motion for when it is necessary to do so for a new trial. SS 1200, 1349, 1001 the information of the court. And and 1231. But even such an ap- that under this authority this refpeal or motion is not indispensa- erence seems to have been provided ble for the review of the judgment, for, 86 N. Y., 433; Story's Eq. for that may be had upon an ap- Jur., 5th ed., SS 441, 453, since the peal from the final judgment. SS subjects referred to the referee 1230, 1301, 1316 and 1350. But were in the nature of an accountthat neither of these sections re- ing. That while proof upon the quires the entry of an interlocu- essential issues, as the pleadings tory judgment, but they at most presented them, had been conregulate the practice authorized to cluded, and the court upon that be pursued when such a judgment part of the case had reached what shall have been entered in the ac- was considered a final conclusion, tion. That the mandatory pro- it was not in a condition finally to

Vol. 25—No. 22b.

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