executed, and delivered to said James F. Brown, on August 5th, 1878, a deed of said premises, in the usual form of executor's deed, for the consideration of $400; that the said James F. Brown paid the sum of $400, to said Doherty, and

*

thereupon entered into possession of said premises," and the deed was duly recorded. Brown, in the same year, conveyed the premises to one Bauer, who, immediately, reconveyed to Brown's wife, this plaintiff. It was found that she, immediately, entered into possession of the premises under her deed; that she has been in continuous possession thereof ever since and that she has paid the taxes since assuming such possession. Upon these facts the legal conclusions were reached that the title to the premises, upon the death of Thomas Doherty, was vested in his surviving children, subject to be divested by the exercise of the power of sale vested by his will in the executors thereof; that that power had been duly exercised by the executors and the defendants were divested of their title to the premises and that the same had become vested in the plaintiff; that Lunny, as one of the executors, participated in and approved and ratified the sale and the consummation thereof by the delivery of the deed of his coexecutor to Brown; "that the plaintiff having been in possession of the premises for more than 20 years and more than 10 years after the defendants had attained their majority, the defendants are precluded from setting up their claim by reason of the statute of limitations." Judgment was entered in favor of the plaintiff, barring the defendants from any claim of title to or estate in the premises described, and adjudging that plaintiff is the owner in fee simple absolute thereof. The judgment was affirmed by the Appellate Division in the First Department, and the defendants have appealed to this court.

George W. Carr, for appellants. A. C. & F. W. Hottenroth, for respondent.

GRAY, J. (after stating the facts). This action, which is brought under the provisions of article 5 of title 1 of chapter 14 of the Code of Civil Procedure, is peculiar in its features and is not, perhaps, free from difficulty, with respect to the determination of the conflicting claims to the title to the premises described in the complaint. I have reached the conclusion that the judgment was correct in adjudging the title to the plaintiff, upon the ground that there was a sale by the executors, in execution of the power of sale, and, under the facts of the case, that the ownership, and the right to the possession, of the property sold have become vested in her.

The fifth clause of the testator's will contained an imperative power to dispose of his residuary estate. It was not dependent upon the will of the executors and the testator's purpose was to create from a residue, which

should remain after the payment of his debts, an interest-bearing fund for the benefit of his children, while minors. The power was given to the executors, qua executors, and they, accordingly, proceeded to execute it as such.. The finding of fact is that they did sell the real estate at public auction, through an auctioneer, upon a published notice, over their names, of the time and place, and that the premises in question were struck down by the auctioneer to Kedney, as the highest bidder. Kedney assigned his bid to Brown, who paid to Doherty, one of the executors, the sum at which the premises had been struck down at the sale, and received a deed thereof from Doherty, as executor. For no assigned reason the other executor did not join in the conveyance and died some years later and 12 years before the plaintiff commenced her action without contesting plaintiff's title. These defendants, who were infants when the testator died, are his sole surviving children and heirs at law and they became of age some 10 and 11 years, respectively, after the sale and the plaintiff's entry into possession. During the 12 or 13 years intervening before this action was commenced, no proceeding was taken by them with reference to the sale, or to the plaintiff's possession. We have, therefore, in the facts established by the findings, upon evidence, and by the affirmance of the judgment by the Appellate Division, an execution of the power of sale by the executors through a public sale to the highest bidder. The auctioneer was the agent of the executors for making the sale, as he was for the vendee for the purpose of the memorandum of sale. See McComb v. Wright, 4 Johns. Ch. 659; also, 3 Amer. & Eng. Ency. of Law, 509. The assignee of the purchaser at the sale paid the whole of the consideration money to one of the executors and all that was needed to perfect the transaction of sale was that Lunny should unite with his coexecutor in the deed or himself execute a deed. This was not a case of the nonexecution of the power of sale, but of a defective execution; because the intention to execute the power was effectuated by the actual sale. The deed was but an incident, and the final consummation, of a sale under which the plaintiff, or her predecessor in the title, was let into possession. The case is one where equity should grant relief, which may be administered through these provisions of the Code. Brown v. Crabb, 156 N. Y. 447, 51 N. E. 306. The general rule, undoubtedly, is that trustees must unite in a disposal of the trust estate and a deed of land from less than all the living trustees is invalid. Brennen v. Willson, 71 N. Y. 502. But this case is not, by reason of the circumstances, bound by the rigid requirements of that general rule. The requirement of our Statutes, that, where a power is vested in several persons, all must unite in its execution, was 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 ap pear 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 affirmance of the judgment below, with costs.

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

Judgment affirmed.

(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. §§ 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 to 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

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

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 statutory 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. §§ 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 availed 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 Criminal 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 judgment 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.

CULLEN, C. J., and EDWARD T. BARTLETT, WERNER, WILLARD BARTLETT, and CHASE, JJ., concur. VANN, J., not voting.

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, providing 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 succeeding to his title or interest, against the execu tor of a deceased person concerning a personal transaction or communication between the witness and a deceased person, testimony of plain

tiff, in an action to have a will declared void, as to personal transactions with the testator, were inadmissible, either on her own behalf or on the behalf of defendants, who also sought to have the will declared void.

[Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 582-597.]

2. APPEAL-HARMLESS ERROR-EXCLUSION OF

EVIDENCE.

In an action to have a will declared void, any error in excluding parts of a deposition given in behalf of plaintiff was without injury, where the parts excluded were insufficient to warrant a finding against the validity of the will.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4189.]

3. WILLS-CAPACITY OF TESTATOR-INSANITY OF RELATIVES EVIDENCE.

In the absence of any proof of insane conduct on the part of a testator, the existence of insanity in him cannot be inferred from evidence that his ancestors or relatives were insane.

[Ed. Note. For cases in point, see vol. 49, Cent. Dig. Wills, §§ 122, 150.]

Appeal from Supreme Court, Appellate Division, First Department.

Action by Eliza Pringle against Fannie Louise Burroughs, née Temple, individually and as executrix and trustee under the will of Joseph Hamilton Bryan, and others. From a judgment of the Appellate Division of the Supreme Court in the First Department (91 N. Y. Supp. 750, 100 App. Div. 366), affirming a judgment on a verdict directed by the court at Trial Term in favor of defendant Burroughs, plaintiff and defendants Bryan appeal. Affirmed.

Lewis E. Carr, for appellants. Henry L. Scheuerman, for respondent.

WILLARD BARTLETT, J. In this action, which is brought under section 2653a of the Code of Civil Procedure, tue plaintiff and the appealing defendants attack the validity of the will of Joseph Hamilton Bryan, which purports to have been executed on September 6, 1899, and was admitted to probate in the Surrogate's Court of the county of New York on the 6th day of November in the same year. In this will the testator bequeathed to the plaintiff, who was his aunt, an annuity of $200 to commence from the date when she should cease to reside with his sisters, and to continue until her death. The plaintiff sued as a legatee under an earlier will alleged to have been executed by the testator in 1894, containing a devise and bequest to her for life of one-fourth of the net income yielded by the property devised to the testator by his father, and also a specific legacy of $5,000, payable upon the death of the testator's sisters, in case the plaintiff should survive them. The will here in controversy was assailed on the grounds of lack of testamentary capacity and undue influence. The defendants are Fannie Louise Burroughs, a cousin of the testator, who is the principal legatee thereunder and is named in the will as executrix; the two sisters of the testator, Eliza J. Bryan and Charlotte

J. Bryan, who are suffering from mental derangement, but have not been judicially declared to be insane, and who are represented by a guardian ad litem; and Esther Du Puy Bryan, who is alleged in the complaint to be the widow of the testator, although no evidence of that fact was adduced upon the trial. All these defendants, except Fannie Louise Burroughs, the executrix, join with the plaintiff in alleging the invalidity of the instrument admitted to probate. At the close of the evidence in behalf of the parties attacking the will, the learned trial judge directed a verdict sustaining its validity. The judgment entered upon that verdict has been affirmed by the Appellate Division, and the plaintiff and contesting defendants have appealed to this court.

The evidence introduced upon the trial was so clearly insufficient to establish a lack of testamentary capacity or undue influence that we do not deem it necessary to discuss the testimony in detail. Under the authority of Dobie v. Armstrong, 160 N. Y. 584, 55 N. E. 302, the trial judge was clearly right in directing a verdict, and the judgment must be affirmed, unless some error was committed in the exclusion of evidence which requires a reversal. The testimony of the plaintiff, who is an aged lady, was taken out of court and her deposition was read upon the trial. Counsel for the respondent objected to portions of it on the ground that they related to personal transactions between the plaintiff and the testator, and were therefore inadmissible under section 829 of the Code of Civil Procedure. The objections were overruled when made, but subsequently the trial judge struck out of the record those parts of the deposition relative to such personal transactions, and an exception was taken in behalf of the appellants. Their counsel then insisted, and now insists, that even if these portions of the plaintiff's testimony were inadmissible in her own behalf they should, nevertheless, have been received in behalf of the testator's sisters whose interest in the event of the action is different from that of the plaintiff herself. His argument is that the plaintiff claims under the prior will, which gave her a larger share in the estate than she receives under the will which has been admitted to probate, while the sisters of the testator claim nothing under the prior will, but seek merely to establish the invalidity of the instrument here in controversy in order that they may take the entire estate as in case of intestacy. The answer which was interposed in behalf of the sisters, however, by their guardian ad litem, hardly justifies this distinction. It merely denies the validity of the probate of the instrument and prays for judgment accordingly, that it be declared not to be the last will and testament of Joseph Hamilton Bryan, deceased. So far as this litigation is concerned, the only issues which could be determined therein relate to the validity of the instrument

which has been admitted to probate by the Sarrogate'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 v. Greene, 38 App. Div. 431, 56 N. Y. Supp. 551. In the case first cited the husband of the plaintiff was held to be incompetent to testify in her behalf to personal transactions with 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 the 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 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 admitted 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