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 de

fendant 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. A 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.


WERNER, and HISCOCK, J.J., concur; WILLARD BARTLETT, J., not Sitting.

Judgment affirmed.

(185 N. Y. 308)

(Court of Appeals of New York. June 5, 1906.)
LAWS. - - -

Where a certificate of stock of a building association certified on the face thereof that, it was issued and accepted “subject to the articles of association, by-laws, and terms, and conditions expressed on the back hereof,” the by-laws and articles of association formed a part of the £act. though they did not appear on the ack. 2. SAME-MATURITY OF STOCK.

A stock certificate of a building association made the articles of association a part of the contract, and provided that the principal should be payable at any time after 72 months from date of the certificate, but by the articles of association payments were to be made in the order of application for withdrawals, and it was provided that the association should not be obliged to pay out on withdrawing or matured stock more than one-half of the amount received from dues and stock payments in any month. Held that, the provisions of the articles of association and the stipulation of the certificate being inconsistent, the stockholder was entitled to hold the association to the provisions of the certificate for withdrawal after 72 months. 3. ACTION-EQUITABLE RELIEF.

Where, in an action at law on a certificate of stock of a building association, it appeared that a certificate of a number of shares was surrendered by the owner in order to have the same split up, and the result was the issuance of the certificate in question and others, the court was authorized to find that the certificate should have been dated as of the date of the original certificate.

Appeal from Supreme Court, Appellate DiviSion, First Department.

Action by Christopher F. Tautphoeus against the Harbor & Suburban Building & SavingS ASSOciation. From an Order and judgment of the Appellate Division (93 N. Y. Supp. 916, 104 App. Div. 451), reversing upon the law and the facts a judgment of the Special Term in favor of plaintiff and ordering a new trial, plaintiff appeals. Order and judgment of the Appellate Division reversed. Judgment of the Special Term affirmed.

The plaintiff appeals from the order and judgment, stipulating that upon affirmance by this court judgment absolute may be rendered against him. This action is brought on a certificate of guarantied, 6 per cent. income stock, issued by the defendant, a building and Savings aSSOciation, Which reads as follows:

“Number 1,504A. Shares, 10. Shares $100.00 each. Harbor and Suburban Building and Savings Association of New York. Chartered 1888. Operating under New York State Banking Laws. This certifies that Christopher F. Tautphoeus of Manhattan Boro, County of New York, State of New York, is a member of the Harbor and Suburban Building and Savings ASSOciation, and has Subscribed for and is the OWner of Ten Shares of Guaranteed 6%. Income Stock therein of the par or maturity Value of One Hundred

Dollars each. This certificate is issued and accepted Subject to the Articles of ASSOcíation By-Laws and Terms and conditions expressed on back hereof and is transferable only on the books of the Association, after its surrender properly assigned. Given under the Seal Of the Harbor and Suburban Building and Savings Association at New York City this first day of December, 1899. Alexander S. Bacon, President. [Seal.] Wm. Oppenheim, Secretary.” On the back of the certificate appears the following guaranty : ‘This certificate is guaranteed: Against any assessments. As to payment of dividends of $1.50 per share, on the first days of January, April, July and October of each year. As to payment of principal sum in United States Gold Coin of Standard Weight and fineness, or its equivalent, on thirty days' written notice given by the holder to the Secretary, at the Principal Office of the Association, at any time after 72 months from date hereof. As equal to a payment of cash for its face value in the purchase of any piece of real property from the AsSOciation.” The back Of the Certificate also contains blank forms of assignment and Withdrawal receipt unnecessary to quote.

Hector M. Hitchings, for appellant. Alexander S. Bacon, for respondent.

EDWARD T. BARTLETT, J. (after stating the facts). This action is brought on a certificate of guarantied 6 per cent. income stock, issued by the defendant, dated December 1, 1899. A copy of the certificate is printed above. The plaintiff's contention is that, under the guaranty printed on the back of the certificate, the stock is due and payable at any time after 72 months from date by its express terms; that the date of the certificate is an error, and should have been February 3, 1897, instead of December 1, 1899. If the certificate properly bears date December 1, 1899, this action was prematurely brought; if the correct date is February 3, 1897, the 72 months, set forth in the contract of guaranty, had expired before the summons was served herein. This question of date lies at the foundation of the action.

The defendant makes the technical claim that this is an action at law and the alleged erroneous date Of the Certificate cannot be changed; that the proper remedy of the plaintiff is a suit in equity to reform the certificate and to recover upon it as so reformed. In the case at bar there is no disputed question of fact. It appears without contradiction by plaintiff’s evidence that one George V. Morton was the owner of a certificate of the defendant for 25 shares, par value $2,500, which was dated February 3, 1897; that on or about December 1, 1899, he Surrendered this Certificate to the defendant to have the same split up; the result Was that a certificate for 10 shares Was issued 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 a 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 filed 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 date. The guaranty is wholly misleading and absolutely inconsistent With the articles of association. If the conditions of payment contained in the by-laws had been printed upon the back of the certificate in the place of the absolute guaranty, a purchaser would enter into the Contract With a full knowledge of all its uncertain provisions. If, indeed, the absolute guaranty of payment printed on the back of the certificate had been Omitted and the articles of association Were made a part of the contract, then the purchaser would naturally examine them to ascertain when his certificate was payable. We have presented under this state of facts the Single question whether these inconsistent provisions of the contract can stand together and be enforced according to their letter and spirit. We are of opinion that it is impossible to reconcile the guaranty and the articles of association, and that the plaintiff is entitled to hold the defendant to its contract, that this certificate was payable at any time after the expiration of 72 months, on a Written notice of 30 dayS. The counsel for plaintiff insists that our decision in this case is controlled by Vought V. Eastern Building & Loan ASSOciation, 172 N. Y. 508, 65 N. E. 496, 92 Am. St. Rep. 761, while the defendant's counsel argues that the case is distinguishable from the one at bar. We are of opinion that the Wought Case presented a state of facts differing in many respects from the one we are now considering. It is, however, to be observed that there is a kindred principle involved in the two cases. In the case cited, this court stated, among other things, in its opinion, as follows: “At the threshold Of this in Vestigation we find an absolute and unqualified promise upon the part of the defendant to pay to each of the holders of the stock owned by the plaintiff the sum of $100 for each share at the end of 78 months from the date of the certificate, and also an indorsement thereon Of the actual time When the shares were to mature.” After commenting upon the various provisions of the by-laws that were urged by defendant as qualifying this absolute promise, the Opinion further states: “If such change or modification is wrought, it can only be upon the ground that the provisions of the contract relieft upon by the defendant are inconsistent with the promise to pay at the time named, and clearly show that the intention of the parties was that such payment should be made only in the event that upon the shares owned by the plaintiff there had been paid a sum which, together With the profits apportioned to them, would amount to the face of the shares. In other words, the defendant’s contention is that these provisions were sufficient to change an abS0lute pr0mise to pay into a conditional One, dependent upon the Success of its enterprise.” We have in the case before us precisely the same situation presented On a different State of facts. In the case cited, it Was argued that, if the construction

was adopted that led to the absolute payment Of the Certificate at the time When it Was due upon its face, it would effect the responsibility of the defendant, and possibly result in its bankruptcy. The opinion states, in answer to this suggestion in regard to the defendant, as follows: “It is better that it Should fail than that it Should continue to hold Out false hopes to investors who may not only be deprived of their promised profits, but may ultimately lose the principal as Well.” No Such suggestion is made in the Case at bar by counsel for defendant in regard to the strict enforcement of this contract of guaranty, and we do not intend to intimate that the responsibility or solvency of the defendant as a going association will be placed in jeopardy by our decision. We are, therefore, of opinion that there is now due and owing by the defendant to the plaintiff the sum of $1,000, with interest.

The order and judgment of the Appellate Division appealed from should be reversed. The judgment of the Special Term should be affirmed, with costs to the plaintiff in all the COurtS.

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2. WILLS – CONSTRUCTION – RESIDUARY CLAUSE—VALIDITY—CONDITIONS. Testatrix devised an interest in certain real estate to her granddaughter on the express condition that it should be charged with the indebtedness of the granddaughter's father and brother to testatrix with interest, and directed that the payment of the indebtedness so charged should be made to testatrix's executor, “as a part of testatrix's residuary estate.” Held, that the indebtedness under such provision did not become a part of testatrix’s residuary estate for the purpose of paying debts and administration expenses, but should only be treated as a part of the residue for the purpose of distribution among the persons entitled to share therein, and hence such provision was valid.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Ferdinand N. Monjo and wife against Addie Woodhouse and others. From a judgment in favor of plaintiffs, affirmed by the Appellate Division (97 N. Y. Supp. 653, 111 App. Div. 80), defendant Addie Woodhouse appeals. Affirmed.

Robert B. Honeyman, for appellant. Eugene L. Bushe, for respondents.

HISCOCK, J. The controversy submitted for Our determination arises in an action of partition. It presents the question whether the requirement that the appellant, to whom Was appointed under a power an interest in real estate, should pay to the executor of the person making the appointment a certain Sum of money to be distributed among persons to whom said real estate might have been appointed, is invalid; whether appellant is entitled to take Said interest under said appointment freed from Said condition and charge as excessive and invalid. For the reasons WLich We Shall Set forth We think that all Of the Substantial provisions making the appointment and charging the real estate with the payment of the money were legal and proper, and that, therefore, we should affirm the judgment appealed from, which overruled appellant's contention to the contrary.

Appellant's grandfather, originally owning the real estate in question, made a Will duly admitted to probate which contained the following clause: “I hereby give and devise to my said wife, Johanna B. Widmayer, my house and lot * * * to have and to hold the same to her for and during the term of her natural life with full power and authority to my said wife to devise the same by her last Will and testament, or by an inStrument in Writing in the nature thereof to any Or all Of Our children Or grandchildren or both in such shares or proportions as to her Shall Seem best.” And Said clause further proVided that in Case Said Wife did not SO dispOSe Of Said house and lot the Same should go to the testator's children equally and to certain grandchildren per stirpes as tenantS in Common. The testator's Wife, Said Johanna B. Widmayer, executed a will duly admitted to probate, which, after proper reference to the foregoing clause in her husband's will, provided as follows: “Now, I do hereby exercise the power and authority given to me in and by my husband's said will to dispose of Said house and lot, and I do give and devise the Said house and lot * * * to and among our children and grandchildren; that is to say: * * * (Amongst others) One-fifth thereof to our granddaughter, Addie Woodhouse.” Said Will also COntained the clause: “Whereas the above devise by me to my granddaughter Addie Woodhouse is made to her upon the express condition on my part that the said %; part shall be charged with the payment of the indebtedness Of my Said Son Harry E. Widmayer to me, and of my grandson Harry Widmayer to me, and, Whereas, my Said Son Henry E. Widmayer and Harry Widmayer, each is now indebted to me in a large amount, together with the interest thereOn for moneys loaned by me to each of them, respectively, I do hereby charge the pay

ment of the said indebtedness and the interest thereon, and also all other Sums in which either of them may be indebted to me at the time of my decease, and the interest thereon, upon the said 3% part of the said house and lot hereinabove given and devised to my Said granddaughter Addie Woodhouse, and direct that out of the said 3% part of the Said house and lot the Said indebtedness Shall be paid to my executor as part of my residuary estate.” There were other clauses reiterating the idea that the interest in said house and lot appointed to appellant should be charged With the payment of the indebtedness mentioned, and that the amount So paid into the estate upon Said indebtedness Should constitute part of the residuary estate, which latter was directed to be divided among various Children and grandchildren Who might have been the objects of an appointment under the power already referred to. It was still further provided that the interest of Said appellant in Said residuary estate should also be subject to the payment of the indebtedneSS Of her father and brother in case the Interest in the real estate appointed to her should not be sufficient to pay the same. It was also provided in Substance that the interest in Said real estate appointed to a son of the testatrix should be subject to the payment into her residuary estate of indebtedness due from him, and also that there should be deducted from the property bequeathed and devised to other children and grandchildren and paid into the residuary eState any amounts advanced to them respectively. A COnSideration Of the entire Will ShOWS that the testatrix desired that both the property of her husband and of herself should be considered together for the purposes of distribution amongst their children and grandchildren, and that she intended that their respective shares should be placed upon an equitable and common basis, through charging each one With any sums which might have been loaned Or advanced to him. Or her, Or, as in the case of appellant, to immediate relatives in her branch of the family. Her Scheme of distribution involved as its Controlling thought that the property of her husband and of herself and advances and loans during life to children and grandchildren, Should all be taken into account in making up the different shares. This purpose plainly accounts for the provisions as a Whole framed with reference to the appellant. Their ultimate and clear effect is to appoint to her an interest in the real estate charged with the payment of a Sum, to be ascertained by reference to the indebtedness of her father and brother, to the executor of the donee for the purpose of being distributed amongst the children and grandchildren who were proper objects of an appointment. Passing for the moment the criticised proviSion that the Sum charged upon the real

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