the court, recognized the general rule as to parties not in being, but he said: "In every case there must be such parties before the court as to insure a fair trial of the issue in behalf of all.” The parents of the plaintiffs in that action were parties, but, as stated by the court, had no interest to support the will though they had an interest to destroy it. There were charges in the complaint that the suit was fraudulent, but these were denied by the answer, and the court held that they should be considered as disproved. The decision rested on the ground that there was no real representation in the action of the subsequently accruing interests. This is made plain in a later case where Mr. Justice Bradley, in commenting upon McArthur V. Scott, said: “There was no party in the case to represent the will, or the interests created by it, or the legal estate which supported those interests. This was the special ground on which the decision in McArthur V. Scott was placed, as is fully expressed in the opinion.” Miller v. Texas & Pac. Ry. Co., 132 U. S. 662, 671, 10 Sup. Ct. 206, 33 L. Ed. 487.

In the present case, by the conveyance from her brothers, the plaintiff had acquired the first freehold estate, namely, the remainder in fee after her own life estate, subject to be divested by her leaving issue before her death. Therefore she held the estate which in the ordinary course of things would make it to her interest to uphold the deed, but she was the very party who was trying to destroy it. She could not be plaintiff and defendant in the same suit. She in fact represented herself only and could not represent her after-born children or those of her brothers. The interest of her brothers was the same as her own, because they had their warranty of title to protect. We

are inclined to the opinion, therefore, that the judgment recovered by her did not bar the title of persons born after the judgment was rendered who were not represented by any party to the action. At least, the question is too doubtful to warrant the courts in compelling the purchaser to take title under such circumstances, for the persons entitled to raise the question are not parties to this controversy. As, since the date of the judgment of reformation, children have been born, it may be that the plaintiff can bring a new action, and by making them parties clear the title. In such an action those children would represent all who might be born thereafter, for they would have a common interest. That remedy, however, can have no effect on this action, and our present duty is to affirm the judgment appealed from. While in this case, as we feel well assured, there was neither furtive motive nor evil result in the judgment of reformation, still, if we sustain the position of the plaintiff, our adjudication will declare the law to govern all cases of like character arising hereafter, and the next to come before us may involve the robbery of children by a judgment rendered before they were born, with no one to represent or defend them. general rule, established by the decision of a question of law, is much more important than the effect in a particular case.

The judgment should be affirmed, with disbursements, but, under the circumstances, without costs.

CULLEN, O. J., and O'BRIEN, HAIGHT, WERNER, and HISCOCK, JJ., concur; WILLARD BARTLETT, J., not sitting.

Judgment affirmed.

(185 N. Y. 308)

Dollars each. This certificate is issued and TAUTPHOEUS v. HARBOR & SUBURBAN accepted subject to the Articles of AssociaBUILDING & SAVINGS ASS'N.

tion By-Laws and Terms and conditions ex(Court of Appeals of New York. June 5, 1906.)

pressed on back hereof and is transferable

only on the books of the Association, after 1. BUILDING AND LOAN ASSOCIATIONS By. LAWS.

its surrender properly assigned. Given unWhere a certificate of stock of a building der the Seal of the Harbor and Suburban association certified on the face thereof that it Building and Savings Association at New was issued and accepted “subject to the articles

York City this first day of December, 1899. of association, by-laws, and terms, and condi. tions expressed on the back hereof," the by-laws

Alexander S. Bacon, President. [Seal.] Wm. and articles of association formed a part of the Oppenheim, Secretary.” On the back of the contract, though they did not appear on the certificate appears the following guaranty: back.

“This certificate is guaranteed: Against any 2. SAME--MATURITY OF STOCK. A stock certificate of a building association

assessments. As to payment of dividends made the articles of association a part of the of $1.50 per share, on the first days of contract, and provided that the principal should January, April, July and October of each be payable at any time after 12 months from

year. As to payment of principal sum in date of the certificate, but by the articles of association payments were to be made in the

United States Gold Coin of standard weight order of application for withdrawals, and it and fineness, or its equivalent, on thirty was provided that the association should not be

days' written notice given by the holder to obliged to pay out on withdrawing or matured

the Secretary, at the Principal Office of the stock more than one-half of the amount received from dues and stock payments in any month.

Association, at any time after 72 months Held that, the provisions of the articles of as from date hereof. As equal to a payment sociation and the stipulation of the certificate

of cash for its face value in the purchase being inconsistent, the stockholder was entitled to hold the association to the provisions of the

of any piece of real property from the Ascertificate for withdrawal after 72 months. sociation." The back of the certificate also 3. ACTION-EQUITABLE RELIEF.

contains blank forms of assignment and withWhere, in an action at law on a certificate

drawal receipt unnecessary to quote. of stock of a building association, it appeared that a certificate of a number of shares was

Hector M. Hitchings, for appellant. Alex. surrendered by the owner in order to have the same split up, and the result was the issuance

ander S. Bacon, for respondent. of the certificate in question and others, the court was authorized to find that the certificate

EDWARD T. BARTLETT, J. (after stating should have been dated as of the date of the original certificate.

the facts). This action is brought on a certif

icate of guarantied 6 per cent. income stock, Appeal from Supreme Court, Appellate Divi.

issued by the defendant, dated December 1, sion, First Department.

1899. A copy of the certificate is printed Action by Christopher F. Tautphoeus

above. The plaintiff's contention is that, unagainst the Harbor & Suburban Building &

der the guaranty printed on the back of the Savings Association. From an order and

certificate, the stock is due and payable at judgment of the Appellate Division (93 N. Y.

any time after 72 months from date by its Supp. 916, 104 App. Div. 451), reversing express terms; that the date of the certificate upon the law and the facts a judgment of

is an error, and should have been February the Special Term in favor of plaintiff and 3, 1897, instead of December 1, 1899. If the ordering a new trial, plaintiff appeals. Or

certificate properly bears date December 1, der and judgment of the Appellate Division 1899, this action was prematurely brought; if reversed. Judgment of the Special Term

the correct date is February 3, 1897, the 72 affirmed.

months, set forth in the contract of guaranty, The plaintiff appeals from the order and had expired before the summons was served Judgment, stipulating that upon affirmance herein. This question of date lies at the by this court judgment absolute may be ren foundation of the action. dered against him. This action is brought The defendant makes the technical claim on a certificate of guarantied, 6 per cent. that this is an action at law and the alleged income stock, issued by the defendant, a erroneous date of the certificate cannot be building and savings association, which reads changed; that the proper remedy of the as follows:

plaintiff is a suit in equity to reform the "Number 1,504A. Shares, 10. Shares certificate and to recover upon it as so re$100.00 each. Harbor and Suburban Build formed. In the case at bar there is no dising and Savings Association of New York. puted question of fact. It appears without Chartered 1888. Operating under New York contradiction by plaintiff's evidence that one State Banking Laws. This certifies that George V. Morton was the owner of a certifChristopher F. Tautphoeus of Manhattan Bo- icate of the defendant for 25 shares, par ro, County of New York, State of New York, value $2,500, which was dated February 3, is a member of the Harbor and Suburban 1897; that on or about December 1, 1899, Building and Savings Association, and has he surrendered this certificate to the defendsubscribed for and is the owner of Ten shares ant to have the same split up; the result of Guaranteed 6% Income Stock therein of was that a certificate for 10 shares was isthe par or maturity value of One Hundred sued by the defendant and is, in part, a

duplicate of the certificate for 25 shares so surrendered and dated February 3, 1897. This duplicate certificate was transferred by Morton to the plaintiff and is the one now sued upon. The evidence of the defendant, which covers less than two printed pages of the record, not only fails to contradict the facts as established by plaintiff's witnesses, but is, on the contrary, confirmatory. William Oppenheim, the secretary of the defendant and as a witness for the defendant, testified: "I remember the circumstance of the certificate, Plaintiff's Exhibit 3, being exchanged for another. The old certificate was cut up.” This is clearly an action at law, the trial of which was begun before a justice of the Supreme Court and a jury. After a colloquy between the court and counsel before taking testimony, it was agreed that the jury should be discharged and the issue tried by the court. Long findings were made and the learned trial justice passed upon requests to find. Thereupon judgment was entered in favor of the plaintiff. The Appellate Division reversed the judgment upon the law and facts, and ordered

new trial. The plaintiff thereupon appealed to this court, stipulating for judgment absolute in the event of affirmance.

As the facts in this case are undisputed we are of opinion that the learned trial justice was justified, although sitting in a court of law, to find as he did, as follows: (6) That the date on the certificate so, as aforesaid, issued to this plaintiff on December 1, 1899, was by an error made December 1, 1899, instead of February 3, 1897, which was the true date thereof, when said certificate was first issued, and that the seventy (72) months from the date of the original certificate expired on the 3d day of February, 1903, at which time this plaintiff became entitled to a repayment of the entire principal sum of said bond, to wit: One thousand ($1,000.00) dollars, and any and all dividends unpaid on the same.” The certificate being dated February 3, 1897, and the action properly brought, we reach the important question in the case. The defendant insists that the plaintiff, as the holder of the certificate in question, is bound not only by the certificate of guaranty printed upon the back of the stock certificate, but also by the articles of association and by-laws as recited on the face of the certificate. The plaintiff argues that owing to a lack of punctuation on the face of the certificate it is not possible to read that the articles of association and by-laws are a part of the contract, for the reason that they are not printed on the back of the certificate. In other words, the plaintiff's contention is that the face of the certificate, properly read as punctuated, states that the certificate is issued and accepted subject to the articles of association, bylaws and terms and conditions expressed on the back thereof. We are of opinion

that this contention is unsound, as it is clear that the articles of association and bylaws formed a part of the contract entered into by the plaintiff with the defendant when he purchased his certificate of stock.

In this we differ in opinion from the learned trial justice, who refused to find, at the request of the defendant, that a certain portion of section B, of article 18, of the articles of association of the defendant, was a part of the contract between the parties. That portion reads as follows: “All withdrawals shall be subject to such terms and conditions relative thereto as shall be expressed in these articles, the by-laws of the association and resolutions of the board of directors, and the certificate of shares, provided, however, that all certificates sought to be withdrawn must be filled with the secretary. * * * Thirty days' written notice of intention to withdraw may be required to be given therewith.

Payments shall be made in the order of the applications for withdrawals, but the association shall not be required to pay out on withdrawing or matured stock more than 'one-half of the amount received from dues and stock payments in any month.'” It, therefore, follows that reading into the contract the articles of association, as insisted upon by defendant, we have therein utterly inconsistent provisions impossible to be read together and harmonized. The certificate of guaranty printed upon the back of the stock certificate states that the principal sum is payable in United States gold coin on 30 days' notice at any time after 72 months from date. The provisions of the articles of association already quoted provide that “payments shall be made in the order of the applications for withdrawals, but the association shall not be required to pay out on withdrawing or matured stock more than 'one-half of the amount received from dues and stock payments in any month.'" We thus have, in that portion of the contract contained in the stock certificate, a definite time fixed for the payment of matured stock. This is the provision that a purchaser of the stock has placed before him. He may or may not have his attention called to the articles of association, which contain a clause that provides for a time of payment impossible of definite ascertainment even by the experienced officers of the association. The extract from the articles of association quoted above, from defendant's requests to find at Trial Term, discloses that not only are the articles of association and by-laws a part of the contract, but it is also subject to resolutions of the board of directors. A more uncertain and obscure provision it is difficult to imagine. If it was the intention of the defendant to pay off the plaintiff's matured certificate only at the indefinite time provided by the articles of association, then there is no possible justification in printing upon the back of the certificate a positive guaranty that it was payable at any time after 72 months from

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date. The guaranty is wholly misleading

and absolutely inconsistent with the articles of the certificate at the time when it was

of association. If the conditions of payment due upon its face, it would effect the responsicontained in the by-laws had been printed bility of the defendant, and possibly result upon the back of the certificate in the place in its bankruptcy. The opinion states, in of the absolute guaranty, a purchaser would answer to this suggestion in regard to the deenter into the contract with a full knowledge fendant, as follows: "It is better that it of all its uncertain provisions. If, indeed, should fail than that it should continue to the absolute guaranty of payment printed on hold out false hopes to investors who may the back of the certificate had been omitted not only be deprived of their promised profits, and the articles of association were made a but may ultimately lose the principal as part of the contract, then the purchaser would well." No such suggestion is made in the naturally examine them to ascertain when case at bar by counsel for defendant in rehis certificate was payable. We have pre gard to the strict enforcement of this consented under this state of facts the single tract of guaranty, and we do not intend to question whether these inconsistent provi intimate that the responsibility or solvency sions of the contract can stand together and of the defendant as a going association will be enforced according to their letter and be placed in jeopardy by our decision. We spirit. We are of opinion that it is impos are, therefore, of opinion that there is now sible to reconcile the guaranty and the arti due and owing by the defendant to the plaincles of association, and that the plaintiff is tiff the sum of $1,000, with interest. entitled to hold the defendant to its contract, The order and judgment of the Appellate that this certificate was payable at any time Division appealed from should be reversed. after the expiration of 72 months, on a writ The judgment of the Special Term should be ten notice of 30 days.

affirmed, with costs to the plaintiff in all The counsel for plaintiff insists that our the courts. decision in this case is controlled by Vought V. Eastern Building & Loan Association, CULLEN, C. J., and HAIGHT, HISCOCK, 172 N. Y. 508, 65 N. E. 496, 92 Am. St. Rep. and CHASE, JJ., concur. O'BRIEN and 761, while the defendant's counsel argues GRAY, JJ., absent. that the case is distinguishable from the one at bar. We are of opinion that the Vought Ordered accordingly. Case presented a state of facts differing in many respects from the one we are now considering. It is, however, to be observed that

(185 N. Y. 295) there is a kindred principle involved in the

MONJO et ux. V. WOODHOUSE. two cases. In the case cited, this court stat (Court of Appeals of New York. June 5, 1906.) ed, among other things, in its opinion, as 1. POWERS-EXECUTION-CONDITION_VALIDfollows: “At the threshold of this investi ITY. gation we find an absolute and unqualified

Where testator gave his widow power to

devise a house and lot to any or all of their promise upon the part of the defendant to

children or grandchildren or both, in such shares pay to each of the holders of the stock own or proportions as the widow should elect, the ed by the plaintiff the sum of $100 for each imposition in her will of a charge on the share share at the end of 78 months from the

devised to a grandchild for debts of the grand

child's father and brother to testatrix's estate, date of the certificate, and also an indorse

made for the purpose of equalizing the respecment thereon of the actual time when the tive shares in such property, was a valid execushares were to mature.” After commenting

tion of the power. upon the various provisions of the by-laws


CLAUSE-VALIDITY-CONDITIONS. that were urged by defendant as qualifying

Testatrix devised an interest in certain this absolute promise, the opinion further real estate to her granddaughter on the express states: "If such change or modification is condition that it should be charged with the wrought, it can only be upon the ground

indebtedness of the granddaughter's father and

brother to testatrix with interest, and directed that the provisions of the contract relied

that the payment of the indebtedness so charged upon by the defendant are inconsistent with

should be made to testatrix's executor, “as a the promise to pay at the time named, and part of testatrix's residuary estate." Held, that clearly show that the intention of the parties

the indebtedness under such provision did not

become a part of testatrix's residuary estate was that such payment should be made only

for the purpose of paying debts and administrain the event that upon the shares owned by tion expenses, but should only be treated as a the plaintiff there had been paid a sum part of the residue for the purpose of distribuwhich, together with the profits apportioned

tion among the persons entitled to share there

in, and hence such provision was valid. to them, would amount to the face of the shares. In other words, the defendant's con Appeal from Supreme Court, Appellate tention is that these provisions were sufficient Division, First Department. to change an absolute promise to pay into a Action by Ferdinand N. Monjo and wife conditional one, dependent upon the success against Addie Woodhouse and others. From of its enterprise." We have in the case be a judgment in favor of plaintiffs, affirmed fore us precisely the same situation presented by the Appellate Division (97 N. Y. Supp. on a different state of facts. In the case 653, 111 App. Div. 80), defendant Addie cited, it was argued that, if the construction Woodhouse appeals. Affirmed.


Robert B. Honeyman, for appellant. Eu ment of the said indebtedness and the ingene L. Bushe, for respondents.

terest thereon, and also all other sums in

which either of them may be indebted to me HISCOCK, J. The controversy submitted at the time of my decease, and the interest for our determination arises in an action thereon, upon the said 1 part of the said of partition. It presents the question wheth house and lot hereinabove given and devised er the requirement that the appellant, to to my said granddaughter Addie Woodhouse, whom was appointed under a power an in and direct that out of the said 15 part of terest in real estate, should pay to the the said house and lot the said indebtedness executor of the person making the appoint- shall be paid to my executor as part of my ment a certain sum of money to be distribu- residuary estate.” ted among persons to whom said real estate There were other clauses reiterating the might have been appointed, is invalid; idea that the interest in said house and lot whether appellant is entitled to take said appointed to appellant should be charged interest under said appointment freed from with the payment of the indebtedness mensaid condition and charge as excessive and tioned, and that the amount so paid into the invalid. For the reasons which we shall set estate upon said indebtedness should constiforth we think that all of the substantial tute part of the residuary estate, which latprovisions making the appointment and char ter was directed to be divided among various ging the real estate with the payment of the children and grandchildren who might have money were legal and proper, and that, been the objects of an appointment under therefore, we should affirm the judgment ap the power already referred to. It was still pealed from, which overruled appellant's con further provided that the interest of said tention to the contrary.

appellant in said residuary estate should also Appellant's grandfather, originally owning be subject to the payment of the indebtedthe real estate in question, made a will duly ness of her father and brother in case the admitted to probate which contained the fol Interest in the real estate appointed to lowing clause: “I hereby give and devise to her should not be sufficient to pay the same. my said wife, Johanna B. Widmayer, my It was also provided in substance that the inhouse and lot

to have and to hold terest in said real estate appointed to a the same to her for and during the term son of the testatrix should be subject to the of her natural life with full power and payment into her residuary estate of indebtauthority to my said wife to devise the same edness due from him, and also that there by her last will and testament, or by an in should be deducted from the property bestrument in writing in the nature thereof queathed and devised to other children and to any or all of our children or grandchildren grandchildren and paid into the residuary esor both in such shares or proportions as to tate any amounts advanced to them respecher shall seem best.” And said clause fur tively. ther provided that in case said wife did not A consideration of the entire will shows so dispose of said house and lot the same that the testatrix desired that both the propshould go to the testator's children equally erty of her husband and of herself should be and to certain grandchildren per stirpes as considered together for the purposes of distenants in common. The testator's wife, said tribution amongst their children and grandJohanna B. Widmayer, executed a will duly children, and that she intended that their admitted to probate, which, after proper ref respective shares should be placed upon an erence to the foregoing clause in her hus equitable and common basis, through charband's will, provided as follows: "Now, I ging each one with any sums which might do hereby exercise the power and authority have been loaned or advanced to him or her, given to me in and by my husband's said will or, as in the case of appellant, to immediate to dispose of said house and lot, and I do relatives in her branch of the family. Her give and devise the said house and lot scheme of distribution involved as its con*

* to and among our children and trolling thought that the property of her grandchildren; that is

is to

husband and of herself and advances and (Amongst others) One-fifth thereof to our loans during life to children and grandchilgranddaughter, Addie Woodhouse." Said dren, should all be taken into account in will also contained the clause: "Whereas the making up the different shares. above devise by me to my granddaughter pose plainly accounts for the provisions as a Addie Woodhouse is made to her upon the whole framed with reference to the appelexpress condition on my part that the said lant. Their ultimate and clear effect is to 46 part shall be charged with the payment of appoint to her an interest in the real estate the indebtedness of my said son Harry E. charged with the payment of a sum, to be Widmayer to me, and of my grandson Harry ascertained by reference to the indebtedness Widmayer to me, and, whereas, my said son of her father and brother, to the executor of Henry E. Widmayer and Harry Widmayer, the donee for the purpose of being distribeach is now indebted to me in a large uted amongst the children and grandchildren amount, together with the interest thereon who were proper objects of an appointment. for moneys loaned by me to each of them, Passing for the moment the criticised provirespectively, I do hereby charge the pay sion that the sum charged upon the real

This pur

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