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executed, and delivered to said James F. should remain after the payment of his debts, Brown, on August 5th, 1878, a deed of said an interest-bearing fund for the benefit of his premises, in the usual form of executor's children, while minors. The power was givdeed, for the consideration of $400; that the en to the executors, qua executors, and they, said James F. Brown paid

the accordingly, proceeded to execute it as such. sum of $400, to said Doherty,

* and The finding of fact is that they did sell the thereupon entered into possession real estate at public auction, through an of said premises," and the deed was duly re auctioneer, upon a . published notice, over corded. Brown, in the same year, conveyed their names, of the time and place, and that the premises to one Bauer, who, immediate the premises in question were struck down ly, reconveyed to Brown's wife, this plaintiff. by the auctioneer to Kedney, as the highest It was found that she, immediately, entered bidder. Kedney assigned his bid to Brown, into possession of the premises under her who paid to Doherty, one of the executors, deed; that she has been in continuous pos the sum at which the premises had been session thereof ever since and that she has struck down at the sale, and received a deed paid the taxes since assuming such posses thereof from Doherty, as executor. For no sion. Upon these facts the legal conclusions assigned reason the other executor did not were reached that the title to the premises, join in the conveyance and died some years upon the death of Thomas Doherty, was ves later and 12 years before the plaintiff comted in his surviving children, subject to be menced her action without contesting plaindivested by the exercise of the power of sale tiff's title. These defendants, who were invested by his will in the executors thereof; fants when the testator died, are his sole surthat that power had been duly exercised by viving children and heirs at law and they bethe executors and the defendants were di came of age some 10 and 11 years, respectivevested of their title to the premises and that ly, after the sale and the plaintiff's entry inthe same had become vested in the plaintiff; to possession. During the 12 or 13 years inthat Lunny, as one of the executors, partic- tervening before this action was commenced, ipated in and approved and ratified the sale no proceeding was taken by them with referand the consummation thereof by the delivery ence to the sale, or to the plaintiff's possesof the deed of his coexecutor to Brown; "that sion. We have, therefore, in the facts estabthe plaintiff having been in possession of the lished by the findings, upon evidence, and by premises for more than 20 years and more the affirmance of the judgment by the Appelthan 10 years after the defendants had at late Division, an execution of the power of tained their majority, the defendants are pre sale by the executors through a public sale to cluded from setting up their claim by reason the highest bidder. The auctioneer was the of the statute of limitations.” Judgment agent of the executors for making the sale, was entered in favor of the plaintiff, bạrring as he was for the vendee for the purpose of the defendants from any claim of title to or the memorandum of sale. See McComb v. estate in the premises described, and adjudg

Wright, 4 Johns. Ch. 659; also, 3 Amer. & ing that plaintiff is the owner in fee simple | Eng. Ency. of Law, 509. The assignee of the absolute thereof. The judgment was affirm purchaser at the sale paid the whole of the ed by the Appellate Division in the First De

consideration money to one of the executors partment, and the defendants have appealed

and all that was needed to perfect the transto this court.

action of sale was that Lunny should unite George W. Carr, for appellants. A. C. & with his coexecutor in the deed or himself exF. W. Hottenroth, for respondent.

ecute a deed. This was not a case of the

nonexecution of the power of sale, but of a , )

defective execution ; because the intention to action, which is brought under the provi execute the power was effectuated by the sions of article 5 of title 1 of chapter 14 of actual sale. The deed was but an incident, the Code of Civil Procedure, is peculiar in its and the final consummation, of a sale under features and is not, perhaps, free from dif which the plaintiff, or her predecessor in the ficulty, with respect to the determination of title, was let into possession. The case is the conflicting claims to the title to the prem one where equity should grant relief, which ises described in the complaint. I have may be administered through these provisions reached the conclusion that the judgment was of the Code. Brown v. Crabb, 156 N. Y. 447, correct in adjudging the title to the plaintiff, 51 N. E. 306. The general rule, undoubtedupon the ground that there was a sale by the ly, is that trustees must unite in a disposal executors, in execution of the power of sale, of the trust estate and a deed of land from and, under the facts of the case, that the less than all the living trustees is invalid. ownership, and the right to the possession, uf Brennen v. Willson, 71 N. Y. 502. But this the property sold have become vested in her. case is not, by reason of the circumstances,

The fifth clause of the testator's will con bound by the rigid requirements of that gentained an imperative power to dispose of his eral rule. The requirement of our Statutes, residuary estate. It was not dependent upon that, where a power is vested in several perthe will of the executors and the testator's sons, all must unite in its execution, was purpose was to create from a residue, which complied with, in effect, by the actual sale

made by the executors. It would be a most harsh and inequitable application of the statute, if, after executing the power by this sale, the subsequent death of one of the executors, who had united in the selling, but who had not joined in a conveyance, should, from the impossibility of procuring or compelling his deed, result in avoiding the plaintiff's title. The estate of the testator received the consideration moneys and neither executor, nor devisee, at any time attempted to rescind the sale, or to contest the title. If Lunny, unreasonably, or without any reason, neglected, or refused, to execute a deed in consummation of the sale, he must be regarded as refusing to perform his duty under the will. If his death prevented any legal steps from being taken against him, equally, can it be said that it terminated what opposition he could have made to the plaintiff's ownership. The surviving executor had given a deed, and there is nothing that can now be done, further, to complete the plaintiff's title.

The plaintiff was the owner of the whole equitable title, having the possession and the right to the possession. The sale and the agreement of purchase having been perform. ed by the payment of the price and the taking of possession, equity will now regard as done what should have been done. The most that can be said of the defendants' position is that if, by the failure of the purchaser to receive an adequate conveyance, upon the execution of the power of sale by the executors, the legal title has not passed, then they, as heirs, are trustees of the legal title for the plaintiff's benefit. See Brown v. Crabb, supra. While an action for specific performance may not be maintainable by the plaintiff, in this action the provisions of the Code, previously referred to, sufficiently warranted the court in rendering the judgment below, which barred the defendants' claim of title and which established the ownership of the plaintiff. I think that the Code provisions fulfill the equitable rule by permitting the court to establish by a judgment, in such an action that which ought to have been done.

In the view I have taken, it becomes unnecessary to discuss the question of whether title has been gained by the plaintiff through an adverse possession during the 23 years of her occupation. Upon the authority of Howell V. Leavitt, 95 N. Y. 617, it would hardly appear that the facts of this case bring the defendants, who were infants at the time of the sale, within the provisions of section 375 of the Code of Civil Procedure.

For the reasons given, I advise the affirm. ance of the judgment below, with costs.

(185 N. Y. 504) PEOPLE ex rel. JEROME, Dist. Atty., V. COURT OF GENERAL SESSIONS OF

THE PEACE et al. (Court of Appeals of New York. June 21, 1906.) 1. PROHIBITION-GROUNDS OF REMEDY-ADEQUACY OF OTHER REMEDY.

Prohibition is the appropriate remedy, under Code Civ. Proc. $ 2029, when the Court of General Sessions is about to exceed its powers, prescribed by Code Cr. Proc. $8 51, 52, and grant a new trial after judgment, since the people cannot, under section 518, appeal. 2. CRIMINAL LAW-JURISDICTION — STATUTES.

The jurisdiction and procedure of the Court of General Sessions are governed by the provisions of the Code of Criminal Procedure. 3. SAME--NEW TRIAL-POWER OF COURT.

The Court of General Sessions possesses no inherent power to grant a new trial in a criminal case, and its authority is derived from Code Cr. Proc. $$ 463, 465, 466. 4. SAME MOTION FOR NEW TRIAL AFTER JUDGMENT.

Code Cr. Proc. $ 463, declares that a new trial can be granted only in the cases provided in section 465, which provides the cases in which a new trial can be ordered. Section 466 requires that the application for a new trial must be made before judgment, except where it is made on the ground of newly discovered evidence. Held, that the Court of General Sessions has no authority after judgment cu grant a new trial in a criminal case on the ground that the evidence disclosed the running of limitations against the prosecution.

Appeal from Supreme Court, Appellate Division, First Department.

Application by the people, on the relation of William Travers Jerome, district attorney, for a writ of prohibition against the Court of General Sessions and others. From a judgment of the Appellate Division (98 N. Y. Supp. 557), granting a motion for an absolute writ, defendants appeal. Affirmed.

James W. Osborne, for appellants. Wm. Travers Jerome, Dist. Atty. (Robert C. Taylor of counsel), for respondent.

GRAY, J. This appeal is from an order of the Appellate Division, in the First Department, granting a motion for the issuance of an absolute writ of prohibition, after reversing an order of the Special Term, which had denied such an application and had vacated an alternative writ, commanding the Court of General Sessions of the Peace in and for the county of New York, the recorder of the city of New York, as judge of the said court, and one John Blake, to refrain from any further proceedings upon a motion for a new trial made by, or on behalf of, the said Blake. It appears, from the answer made to the alternative writ, that the said John Blake had been indicted for the commission of the offense of selling an article of merchandise, falsely described upon the label on the vessel containing the same. He was tried at the General Sessions, the recorder presiding at the trial, upon his plea of not guilty to the charge, and was found guilty by the verdict of a jury. After

CULLEN, C. J., and EDWARD T. BART. LETT, HAIGHT, WERNER, and HISCOCK, JJ., concur. O'BRIEN, J., absent.

Judgment affirmed.

the rendition of the verdict and before sentence, he moved that the verdict be set aside upon all the grounds specified in the Code of Criminal Procedure; that a new trial be had upon the minutes, upon all the stat. utory grounds, and for an arrest of judgment. The motions were denied by the recorder and the defendant was sentenced to three months in the penitentiary. Thereafter, a motion was made, and was entertained by the recorder, for a new trial and for an arrest of judgment on all the grounds stated in the Code of Criminal Procedure for such applications and, especially, upon the ground that, it affirmatively appearing upon the face of the indictment and by the testimony upon the trial that a period of more than two years had elapsed after the commission of the alleged offense and before the indictment was found, therefore, all prosecution for the offense had been barred by the statute of limitations. Pending the hearing upon the motion before the recorder, the district attorney applied to the Special Term of the Supreme Court for a writ of prohibition against any further proceedings in the matter of the motion for a new trial. The alternative writ was issued and, upon the return thereto, the application of the district attorney was denied, whereupon, an appeal being taken by the people, the order was made by the Appellate Division from which the appeal is now taken.

The question presented is whether the Court of General Sessions, a court of limited jurisdiction (Code Cr. Proc. 88 51, 52), in which the trial of the defendant Blake was had, had the power to entertain the motion for a new trial after the judgment. We think that it did not possess that power and that the appropriate remedy was avail. ed of by the district attorney, in behalf of the people. Code Civ. Proc. $ 2092; Quimbo Appo v. People, 20 N. Y. 531, 540. The grievance of the people, if the trial court was about to exceed its powers, was one which could not be redressed by an appeal (Code Cr. Proc. § 518), and, therefore, a writ of prohibition properly issued (People ex rel. Hummel v. Trial Term, 184 N. Y. 30, 76 N. E. 732). The jurisdiction and procedure of the criminal court were governed by the provisions of the Code of Crimi. nal Procedure. People v. Hovey, 92 N. Y. 558; People v. Glen, 173 N. Y. 395, 66 N. E. 112.

The trial court possessed no inherent power to grant a new trial and its authority in that respect was derived from sections 463, 465 and 466 of that Code. Section 463 provides that "a new trial can be granted by the court in which the former trial was had, only, in the cases provided in section 465." Section 465 provides, in seven subdivisions, the cases in which a new trial can be ordered, and section 466 requires that "the application for a new trial must be made before judgment,” except where it is made

under subdivision 7 of section 465, upon the ground of newly discovered evidence, etc. In the present case the application was not based upon any newly discovered evidence, but, solely, upon the fact that the evidence upon the former trial disclosed the running of the statute of limitations against any prosecution. Section 466 is explicit and it was controlling upon the trial court. There had been judgment, because sentence had been pronounced (People v. Bradner, 107 N. Y. 1, 11, 13 N. E. 87; People v. Bork, 78 N. Y. 346, 350), and the recorder had lost jurisdiction of the defendant's case for the purpose of a motion for a new trial. The only method of review which the law allowed the defendant was by way of appeal (People v. Proiri, 163 N. Y. 99, 101, 57 N. E. 85), where the appellate court could administer relief. The case of People v. Bradner, supra, is in point as an authority upon the power of the criminal court. At the time it was decided, section 466 had not been amended so as to allow a period of one year after judg. ment within which to make application for a new trial and because the motion there was made after judgment, it was held by this court that it had been properly denied upon the ground of a want of power to grant the same. (It may be noted, in passing, that the words “improperly denied,” in the text of the opinion, at page 10, should read "properly denied.") The case of Quimbo Appo v. People, supra, is of no application, having been decided prior to the enactment of the Code of Criminal Procedure, otherwise than as sustaining the propriety of the Issuance of an absolute writ of prohibition to restrain an inferior court, or tribunal, from proceeding beyond its legitimate, or statutory, powers. It was there held that the Court of Oyer and Terminer was propperly prohibited from granting a motion for a new trial in a capital case, because lacking the power to do so, whether the power was sought for at common law, or in the statutes.

No other questions need discussion, and the order appealed from should be affirmed.


Order affirmed.

(185 N. Y. 375) PRINGLE V. BURROUGHS et al. (Court of Appeals of New York. June 12, 1906.) 1. WITNESSES — COMPETENCY – TRANSACTIONS WITH PERSONS SINCE DECEASED.

Under Code Civ. Proc. § 829, providi that a party or person interested in the event shall not be examined as a witness in his own behalf or in behalf of the parties succeed. ing to his title or interest, against the execu. tor of a deceased person concerning a personal transaction or communication between the wit. ness and a deceased person, testimony of plain

tiff, in an action to have a will declared void, J. Bryan, who are suffering from mental as to personal transactions with the testator,

derangement, but have not been judicially were inadmissible, either on her own behalf or on the behalf of defendants, who also sought

declared to be insane, and who are representto have the will declared void.

ed by a guardian ad litem; and Esther Du [Ed. Note.-For cases in point, see vol. 50, Puy Bryan, who is alleged in the complaint Cent. Dig. Witnesses, $$ 582-597.]

to be the widow of the testator, although no 2. APPEAL-HARMLESS ERROR-EXCLUSION OF evidence of that fact was adduced upon the EVIDENCE.

trial. All these defendants, except Fannie In an action to have a will declared void. any error in excluding parts of a deposition

Louise Burroughs, the executrix, join with given in behalf of plaintiff was without in the plaintiff in alleging the invalidity of the jury, where the parts excluded were insufficient instrument admitted to probate. At the close to warrant a finding against the validity of the

of the evidence in behalf of the parties atwill. [Ed. Note.-For cases in point, see vol. 3,

tacking the will, the learned trial judge Cent. Dig. Appeal and Error, $ 4189.]

directed a verdict sustaining its validity. 3. WILLS-CAPACITY OF TESTATOR-INSANITY

The judgment entered upon that verdict has OF RELATIVES-EVIDENCE.

been affirmed by the Appellate Division, and In the absence of any proof of insane con

the plaintiff and contesting defendants have duct on the part of a testator, the existence of

appealed to this court. insanity in him cannot be inferred from evidence that his ancestors or relatives. were in The evidence introduced upon the trial sane.

was so clearly insufficient to establish a lack [Ed. Note.-For cases in point, see yol. 49, of testamentary capacity or undue influence Cent. Dig. Wills, $$ 122, 150.]

that we do not deem it necessary to discuss Appeal from Supreme Court, Appellate the testimony in detail. Under the authority Division, First Department.

of Dobie v. Armstrong, 160 N. Y. 584, 55 N. Action by Eliza Pringle against Fannie E. 302, the trial judge was clearly right in Louise Burroughs, née Temple, individually directing a verdict, and the judgment must be

and as executrix and trustee under the will affirmed, unless some error was committed

of Joseph Hamilton Bryan, and others. in the exclusion of evidence which requires From a judgment of the Appellate Division a reversal. The testimony of the plaintiff, of the Supreme Court in the First Depart who is an aged lady, was taken out of court ment (91 N. Y. Supp. 750, 100 App. Div. 366), and her deposition was read upon the trial. affirming a judgment on a verdict directed Counsel for the respondent objected to porby the court at Trial Term in favor of de tions of it on the ground that they related fendant Burroughs, plaintiff and defendants to personal transactions between the plaintiff Bryan appeal. Affirmed.

and the testator, and were therefore inad

missible under section 829 of the Code of Lewis E. Carr, for appellants. Henry L Scheuerman, for respondent.

Civil Procedure. The objections were over

ruled when made, but subsequently the trial WILLARD BARTLETT, J. In this ac judge struck out of the record those parts tion, which is brought under section 2653a of the deposition relative to such personal of the Code of Civil Procedure, tue plaintiff transactions, and an exception was taken in and the appealing defendants attack the behalf of the appellants. Their counsel then validity of the will of Joseph Hamilton insisted, and now insists, that even if these Bryan, which purports to have been execut- portions of the plaintiff's testimony were ined on September 6, 1899, and was admitted admissible in her own behalf they should, to probate in the Surrogate's Court of the nevertheless, have been received in behalf county of New York on the 6th day of of the testator's sisters whose interest in the November in the same year. In this will the event of the action is different from that of testator bequeathed to the plaintiff, who was the plaintiff herself. His argument is that his aunt, an annuity of $200 to commence the plaintiff claims under the prior will, from the date when she should cease to reside which gave her a larger share in the estate with his sisters, and to continue until her than she receives under the will which has death. The plaintiff sued as a legatee under been admitted to probate, while the sisters an earlier will alleged to have been executed of the testator claim nothing under the prior by the testator in 1894, containing a devise will, but seek merely to establish the invalidand bequest to her for life of one-fourth of ity of the instrument here in controversy in the net income yielded by the property de order that they may take the entire estate as vised to the testator by his father, and in case of intestacy. The answer which was also a specific legacy of $5,000, payable upon interposed in behalf of the sisters, however, the death of the testator's sisters, in case the by their guardian ad litem, hardly justifies plaintiff should survive them. The will here this distinction. It merely denies the validin controversy was assailed on the grounds of ity of the probate of the instrument and lack of testamentary capacity and undue in prays for judgment accordingly, that it be fluence. The defendants are Fannie Louise declared not to be the last will and testaBurroughs, a cousin of the testator, who is ment of Joseph Hamilton Bryan, deceased. the principal legatee thereunder and is named So far as this litigation is concerned, the in the will as executrix; the two sisters of only issues which could be determined therethe testator, Eliza J. Bryan and Charlotte in relate to the validity of the instrument

which has been admitted to probate by the Surrogate's Court; and it would seem that the interests of the sisters of the testator and of the plaintiff in the present suit, or so far as they can be affected by the present suit, are precisely the same that is to say, the sisters and the plaintiff are both interested in having the alleged will adjudged invalid.

If this view be correct, the plaintiff was just as incompetent to testify in behalf of the sisters in reference to any personal transaction between her and the deceased as she was to give such testimony in her own behalf. Redfield v. Redfield, 110 N. Y. 671, 18 N. E. 373; Squire y. Greene, 38 App. Div. 431, 56 N. Y. Supp. 55.1. In the case first cited the husband of the plaintiff was held to be incompetent to testify in her behalf to personal transactions with his deceased father because, although the witness was not a party to the action, his testimony would tend to relieve him from a claim that his wife might otherwise have against him. In the second case the opinion of the Appellate Division was written by Mr. Justice Cullen and the question was as to the competency of the testimony of one Kearney concerning a personal transaction with a deceased person under whom both parties claimed. The action was to set aside the lien of a mortgage. Kearney was liable for the deficiency, but the amount of his liability would have been much larger if the plaintiffs prevailed than it would have been in the event of the success of the defendant. Judge Cullen said: "Kearney was not called as a witness in his own behalf, but as a witness on behalf of tne respondents. This does not relieve him from the disqualification of section 829. By this section he is excluded, not only from being a witness in his own interest even though he is not a party to the action at all, or if a party, is called to give evidence on behalf of some other party whose interests are the same as his." But even if it be conceded that the plaintiff was competent to testify in behalf of the testator's sisters as to personal transactions between herself and the decedent, it is apparent that the appellants suffered no injury by the action of tue court in reference to those portions of the depositions which were stricken out after being read to the jury. Allowing the deposition to stand in its entirety as evidence in the case, it contains nothing which would warrant a finding in favor of the appellants against the validity of this will. It merely shows that the testator at the time of the execution of the will was weak in body but not in mind, and that the respondent had abundant opportunity to exercise influence upon him in regard to the disposition of his property, but not that she actually exercised any influence whatever.

The only other serious question relative to the rulings of the trial court arises in reference to the exclusion of evidence designed to show that the mental derangement from

which it was conceded that the testator's sisters were suffering was due to an inherited tendency. The question may be stated thus: “In the absence of any proof whatever of insane conduct on the part of the testator, may the existence of insanity in him be inferred from evidence to the effect that his ancestors or relatives were insane?" We think not. The weight of judicial authority in this country, both in criminal and civil cases, is to the effect that evidence as to the insanity of the ancestors or other relatives of a person whose sanity is called in question is not receivable except in support of proof of acts or language of an insane character on the part of the individual whose mental capacity is in question. Such evidence has frequently been characterized by the courts as cumulative or supplementary, being offered in support of testimony indicating actual insanity. Thus, it was said by this court in the case of Walsh v. People, 38 N. Y. 458, 467: "It

was competent for the prisoner to prove in aid and corroboration of other proof or of circumstances creating a presumption or tending to justify an inference of insanity at the time of the commission of the act that he inherited a desease which predisposed him to insanity. The insanity of parents or relatives is also admissible upon the issue of insanity. It tends to show an hereditary taint, and supplements evidence of insanity of the accused." The admissibility of proof of hereditary tendency upon the issue of insanity has been asserted in many cases and in many jurisdictions, but as a rule such proof is held to be receivable only in aid or support of other evidence going directly to establish the existence of a disordered mind in the person whose competency is the subject of inquiry. Shailer v. Bumstead, 99 Mass. 112, 131. "No case is cited in which such evidence has been admitted in aid of the proof showing mere weakness of mind or eccentricity.” In People v. Smith, 31 Cal. 467, the Supreme Court of California recognized and applied the rule that evidence as to hereditary insanity offered in behalf of the defendant in a criminal case is admissible where there is other proof in the case at the time when it is offered tending to establish the personal insanity of the defendant. A court is not bound to hear evidence of the insanity of a man's relatives," said Agnew, C. J., in Laros v. Commonwealth, 84 Pa, 200, 209, "as grounds of a presumption of possible insanity until some evidence has been given that the prisoner himself has shown signs of his own insanity.” To the same effect are the views expressed by the Supreme Court of Iowa in State v. Van Tassel, 103 Iowa, 6, 72 N. W. 497, where it is said that in a criminal case proof of hereditary insanity is ad. mitted as cumulative evidence, but the insanity of ancestors is of itself no defense in the absence of evidence that the defendant himself is insane or has shown symptoms of insanity.

Upon the trial of an indictment in Indiana

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