could not open his mouth as a witness without disclosing something in the nature of a communication made to him by his client. That the Code does not place such a weapon for the defeat of wills in the hands of any one seeking to overthrow a will propounded for probate which presumably it was the intention of the testator should be sustained by the testimony of his counsel and adviser who prepared it.

Decree affirmed.

Opinion by Davis, P.J.; Brady and Daniels, JJ., concur.

PRACTICE.

CORPORATIONS.

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

John L. Dodge, applt., v. James Havemeyer, respt.

Decided Dec. 31, 1886.

When defendant moves at the conclusion of plaintiff's evidence for a dismissal of the complaint, and plaintiff fails to ask to go to the jury upon any question of fact, the effect is to submit such questions to the court upon the evidence, and it is too late, upon an appeal from the judgment dismissing the complaint, to urge that certain questions of fact should have been submitted to the jury.

A stockholder of a mining corporation, who is also a creditor thereof, cannot maintain an action to recover such debt from a fellow stockholder upon the latter's individual liability for the debts of the company arising from the fact that the entire capital stock has not been paid in. The remedy in such a case is by a suit for an accounting to fix the pro rata liability of

the stockholders.

Plaintiff was a judgment creditor of the Bald Mountain Mining Co., a corporation organized under

the act of Feb. 17, 1848. This action was brought against defendant, as a stockholder of said corporation, to recover said debt from him upon an alleged individual liability therefor arising by reason of the fact that the entire capital stock of the company had not been paid in. paid in. It appeared that a certificate had been filed stating that said capital stock had all been paid in by the issue thereof in payment of the purchase money for the mines, etc., acquired by the company; but it was alleged by plaintiff that said mines, etc., were not worth the value put upon them, and that such value was a fraudulent overvaluation. It appeared upon the trial that said mines were situated in a country prolific in ore, that adjoining mines then being actually worked were known to be of enormous value, and that the veins of these adjoining mines were supposed to extend into the property sold to this company. The evidence also tended to show that plaintiff was a stockholder of the corporation, and became such apparently at the time when the company contracted the debt to him which this action was brought to recover. At the close of plaintiff's evidence defendant moved for a dismissal of the complaint upon the ground that no fraudulent overvaluation of the property for which the company's stock was issued had been proved; and that plaintiff, being himself a stockholder in said company, could not maintain this action. Plaintiff did not ask to have the question of fact as to whether the valuation

put upon the property purchased by the company was fraudulent, or as to whether plaintiff was or was not a stockholder, submitted to the jury.

The complaint was dismissed for the reasons advanced by defendant.

Smith & Bowman, for applt. Thomas H. Barrowsky, for respt. Held, That the effect of submitting the motion to dismiss to the decision of the court and the omission of plaintiff to ask to go to the jury upon the questions of fact specified as grounds for the action, or any other question of fact, was to submit to the court those questions upon the evidence; and appellant was not at liberty, upon appeal, to say that it ought to have been submitted to the jury to determine whether or not there was a fraudulent overvaluation of the property for which the stock of the company was issued, or whether or not plaintiff was a stockholder of said company.

That the evidence failed to show a fraudulent overvaluation of the property purchased by the issue of the company's stock, but rather that such valuation was put upon it in good faith upon an erroneous estimate of its value produced by deceptive appearances. Fraud must be affirmatively shown. 13 Hun, 408; 80 N. Y., 650; 57 id., 133; 63 id., 95; 90 id., 93; 73 id.,

104.

That the court, having determined that plaintiff was a stockholder of the company, was right in holding that there could be no recovery in this action, for plain

N. Y. COURT OF APPEALS. Weeks et al., applts., v. Cornwall et al., respts.

Decided Feb. 1, 1887.

Testator, after creating certain trusts for the lives of beneficiaries and devising a lot to one P. in fee, gave the residue of his estate to his executors to use as in their judgment they deemed for the best interest of the estate, with power to mortgage it for that purpose, and after the termination of the real estate trusts he devised the fee to his legatees in the proportion their specified legacies bear to each other. Held, That the residuary clause effectually devised the land referred to, and that the devisees in fee were the persons mentioned as beneficiaries and P., and that the proceeds of a sale on partition should be divided as to the beneficiaries in proportion to the value of the real estate from which they were respectively entitled to the income and as to P. in proportion to the value of the fee of the land given to him; that the trust created by the residuary clause was invalid.

Affirming S. C., 17 W. Dig., 495.

This was an action in partition. The premises in question belonged to one W., who, in 1881, died leaving a widow and no descendants. He left a will by which he disposed of a large amount of personal property, giving to his

widow certain real and personal property absolutely, and a life interest in four lots situated in the city of New York. The will contained seventeen clauses, in each of which the testator devised certain parcels of land to his executors in trust, to pay the net income to a devisee named for life, and upon the death of such devisee, the land specified was devised to the wife and heirs of such devisee, and if there was no wife, to his heirs or issue. Several of the clauses provided, that in case of the death of the life beneficiary his children should take the parent's share. The testator devised a lot to P. in fee, and one to each of his servants, D. and C. By a residuary clause he gave the residue of his real and personal property, not "bequeathed in fee or in trust," to his executors "to use the same as in their judgment they deem to be for the best interest of my whole estate, and in order to raise money for that purpose, I empower them to mortgage the piece or parcel of land, being the residue and remainder of my estate, and not herein disposed of in fee or in trust, and after paying and keeping paid all taxes and assessments upon said property" and expending sufficient to keep the premises in repair, and for insurance, "to divide and pay the remainder at any time within ten years, to each and every of my legatees herein before named," except the two servants, "in the proportion in which his, her, or their specified legacies hereinbefore named and bequeath

ed bear to each other, the heirs of such legatee as may have died to take the share to which the legatee would if living have been entitled." The succeeding clause in the will provided that "upon the termination of the real estate trusts herein contained, where I have not hereinbefore disposed of the fee of my real estate, I do hereby give, devise and bequeath the fee of the said real estate trust property to his "legatees, except said servants, to be divided among them in the proportion specified in the residuary clause. The heirs of such legatees as may have died, to take the share to which legatee, if living, would be entitled; meaning and intending by this, to regard each of my legatees, except said servants, naming them, "a legal heir to my estate, limited to the said trust property in the proportion named." The real estate referred to in the residuary and succeeding clause of the will embraced the four lots devised to the testator's widow for life.

E. Ellery Anderson, S. H. Thayer, A. H. Stoiber, F. E. Smith, W. T. Graff and W. B. Putney, for applts.

Flamen B. Candler, Abner C. Thomas, John F. Coffin, Martin J. Keogh and J. Montgomery Peters, for respts.

Held, That the residuary clause legally and effectually devised the land referred to in it, and that the devisees in fee were the seventeen persons mentioned as beneficiaries in the seventeen trusts created by the will together with P., and that the proceeds of sale in a

partition of the property should be divided as to the seventeen beneficiaries in proportion to the value of the specific real estate from which they were respectively entitled to the income, and as to P., in proportion to the value of the fee of the land given to him. The only real estate trust attempted to be created by the residuary clause is one to mortgage the real estate therein mentioned; that this trust was invalid because the mortgage was not for the benefit of legatees or for the purpose of satis fying any charge upon the land, 1 R.S., 728, § 55, and if valid it would have vested no estate in the trustees, § 56, but would have been valid only as a power, and the power of alienation was not unduly suspended.

Order of General Term, denying motion for a new trial, after entry of interlocutory judgment, affirmed.

Opinion by Earl, J. All concur, except Andrews, J., not voting.

PRACTICE. MORTGAGE.

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

The Central Trust Co., of N. Y., applt., v. The N. Y. City & Northern RR. Co., respt.

Decided Dec. 31, 1886.

Action to foreclose a mortgage upon the property of a railroad company given to secure bonds issued by said company. The defense was that the bonds had been fraudulently issued and were invalid. The issues were tried at Special Term and a decision rendered to the effect that said bonds had been unlawfully issued

and were voidable at the election of the railway company with the exception of those which had passed into the hands of holders for value without notice, and that as to such bonds the action could be maintained. Held, That it was not necessary upon such decision for the court to make findings and to enter an interlocutory judgment of foreclosure and sale with a reference to ascertain the amount due upon the bonds, but that a mere order of reference to inquire who were the holders of the bonds in controversy and for what they had been acquired and what consideration had been paid therefor by their present or preceding holders was proper and sufficient. Such an order of reference affected a substantial right and was appealable.

The

Action to foreclose a mortgage upon the property of defendant, the N. Y. City & N. RR. Co., given to secure bonds issued by it to the amount of $4,000,000. answer of the railroad company alleged that said bonds had been issued in pursuance of a fraudulent scheme contrived by one R., the contractor who had built the road, and were invalid for that reason. The issues raised by the pleadings were tried at Special Term and an opinion was rendered by the court to the effect that said bonds had been unlawfully issued and were voidable at the election of the railroad company, with the exception of those which had passed into the hands of holders for value without notice.

After the rendering of said de-. cision plaintiff submitted to the court findings of fact and conclusions of law embodying an interlocutory judgment of foreclosure and sale, which provided for a reference to ascertain the amount due upon the bonds. The court

refused to make such findings and denied the application for the interlocutory judgment, but made an order of reference to inquire who were the holders of the bonds in controversy and for what they had been acquired and what consideration had been paid therefor by their present or preceding hold

ers.

Plaintiff appealed from this order, and defendants moved to dismiss said appeal upon the ground that said order was not appealable.

Wm. Allen Butler, Julien T. Davies and Edward Lyman Short, for applt.

visions directing that a report shall be made and filed relates only to the determination of the whole issue in the action. §§ 1022, 1221, subd. 3. That it was not intended to be obligatory upon the court to make and file this decision before the final determination of the action is further evident from the latter portion of § 1013 of the Code, which permits the court of its own motion, in an action triable without a jury, to direct a reference to a referee to report his finding upon one or more specific questions of fact involved in the issue. That must necessarily be done before

Held, That the present system of practice contains no direction that an interlocutory judgment shall be entered upon the determination of the court as to the controlling rights of the parties in such a litigation. The Code has been framed in such language as to permit, without requiring, an interlocutory judgment, and to provide for exceptions to be filed, and a review to be had by appeal or motion for a new trial. S$ 1200, 1349, 1001 and 1231. But even such an appeal or motion is not indispensable for the review of the judgment, for that may be had upon an appeal from the final judgment. $$ 1230, 1301, 1316 and 1350. But that neither of these sections requires the entry of an interlocutory judgment, but they at most regulate the practice authorized to be pursued when such a judgment shall have been entered in the action. That the mandatory pro

Vol. 25-No. 22b.

action, and it is after that and when the remaining issues in the case have been tried that it has been provided by § 1226 for the entry of the judgment, and that the reference in this case seemed to be within the language of this section.

And

That by 1015, also, the court has been authorized of its own motion to direct a reference to take an account either after interlocutory or final judgment, or when it is necessary to do so for the information of the court. that under this authority this reference seems to have been provided for, 86 N. Y., 433; Story's Eq. Jur., 5th ed., §§ 441, 453, since the subjects referred to the referee were in the nature of an accounting. That while proof upon the essential issues, as the pleadings presented them, had been concluded, and the court upon that part of the case had reached what was considered a final conclusion, it was not in a condition finally to