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estate should be paid to the executor as part of the residuary estate of the donee of the power, and which we think may be regarded as a matter of more detail rather than of substance, we have no doubt that the appointment with the charge upon the real estate was a good execution of the power Conferred upon the testatrix. It is to be noted at the outset that the testatrix did not execute the power and make the charge in pursuance of any agreement with the heir or seeking any benefit for herself or for her estate, or trying to accomplish some forbidden or unauthorized purpose, and, therefore, the execution does not all come Within the principles of cases condemning an execution of a power as fraudulent and invalid for such reasons, and some of which have been called to our attention. They are not applicable, and it is not necessary or useful to reView them. Upon the other hand, the testatrix having the conceded power to appoint the real estate to any or all of the children and grandchildren, in equal or unequal shares, and to give all of it or none of it to the appellant, has made an appointment to her of a certain interest, and charged it with the payment of certain moneys for the sake of making an equitable distribution amongst all of the persons designated by her husband as proper subjects of appointment. The narrow question, therefore, is whether a person having the power by appointment to divide and distribute real estate amongst certain people may accomplish such division and distribution by appointing real estate to one object of the power upon condition of payment of a certain sum to other objects. While this question does not seem definitely to have been settled in this country, it has long been held in England that such a course may be pursued, and we see no reason for not adopting the rule there laid down, that real estate may be appointed to one subject to a charge by way of payment of money in favor Of another. Farwell on Powers (2d Ed.), p. 320; Roberts v. Dixwell, Sug. on Powers, 930; Ricketts V. Loftus, 4 Y. & C. Ex. 519; Thwaytes V. Dye, 2 Vern. 80; Long v. Long, 5 Wes. 445. It has even been held in England that the power to appoint real estate gives the power to sell and appoint the proceeds. Kenworthy v. Bates, 6 Wes. 793. While this latter doctrine has been denied in this Country (Stephenson v. Richardson, 88 Pa. 40; Alley v. Lawrence, 12 Gray [Mass.] 373), we do not regard such denial as involving or impairing the power to make an appointment subject to a charge, and which is less a departure from the simple and strict exercise of the power to appoint the real estate. Passing by the provisions discussed, which We regard as the Substantial ones, it may be, and possibly is, urged that the provision that the moneys charged upon appellant's real estate should be paid to the executor of the testa

trix “as part of her [my] residuary estate” .

is irregular and invalid, and avoids the charge attempted to be made by the testatrix. We do not agree with this contention, which, if sustained, would enable the appellant inequitably to Secure an interest in the lands at the expense of her co-heirs greater than her grandmother intended to give her. As already indicated, we think that this clause Simply provides a detail of the manner in which the substantial plan of the testatrix Should be worked out. The provision for this payment to her executor does not seek or contemplate the slightest benefit to the testatrix or her estate. It was evidently framed as affording the best method to Secure a marshaling of the property of the donor of the poWer and Of the testatrix and consideration of all advances and loans by herself, in order to Secure equality of distribution amongst those who were natural heirs. If appellant Were in a position to complain of it, and it were essential so to do, we should have no doubt of the power to cut out this provision and to Substitute in its place Some other unobjectionable one for the purpose of carrying Out the intention of the testatrix and Securing the distribution of the property Which She had before her mind. This We believe could be done under that power, which unquestionably belongs to a court of equity, of correcting and supplementing a defective execution of a power of appointment. Story’s Eq. Jur. (13th Ed.) $169, etc.; Wilkinson v. Nelson, 7 Jurist (N. S.), 480; Lucena V. Lucena, 5 Beavan, 249; Morris V. Morris, 33 Grat. (Va.) 51, 79; Morse V. Martin, 34 Beavan, 500. We do not, however, feel compelled to do this for Various reasons. In the first place we doubt whether the appellant is in position to complain of this proVision. The other children and grandchildren Who Will take the residuary estate into which the SumS charged upon the real eState are directed to be paid are not parties to this appeal, although they were parties to the action and appeared upon the entry of and are obviously interested in the judgment appealed from. We are aware that this consideration doubtless affects all of the appellant's rights upon this appeal, but We have preferred to consider the questions discussed upon their merits. In the second place, it appears from the record that the amount charged against appellant's interest in the real estate and also against her share of the residuary estate exceeds by many thousands of dollars the amount realized from the sale of her interest in the real estate in the partition action. Therefore it is difiicult to See how She has any actual interest in the proceeds of the real estate and in the question whether it is paid to the persons indicated through the residuary estate or by some other manner. But independent of these difficulties standing in the way of appellant, we see nothing so objectionable in the provision for the payment of the sum charged to the executor of the testatrix as to compel us to declare it illegal. It is true that in terms she directs Said sum to be paid to him as part of her residuary estate, and if the fair construction and effect of this language was to make the same so a part of her residuary estate as to be Subject to the contingencies and expenses of administration and the payment of debts, we should regard such feature as too objectionable to be permissible. But the language used is to be construed With due reference to the general purposes and plans of the testatrix and in the light of other provisions of the Will. It was quite essential that the testatrix as a mere detail of administration should confer upon Some person the power to ascertain, compute, and distribute the sums charged upon the real estate subject to her appointment in accordance with the plan and amongst the persons outlined and specified by her. At the time of executing the will which discharged her power of appointment, she could not very well effectuate her theory of division by appointing directly to the persons who were the objects of appointment, for she could not at that time certainly know What debts and advances might be chargeable to each one. Therefore she made the provision in question, and, interpreting it as we think we may, it did not contemplate that the sums charged upon the real estate should become a part of her residuary estate in any general and unlimited sense. They could not strictly become part of her residuary estate made up of her own property at the time of her death, and it would be illegal for her, if She could, to subject such proceeds to the discharge of her own debts and obligations. We not only are not called upon to presume any unlawful and improper intent upon her part; but, upon the contrary, she makes very plain her intention that the sums charged should simply be considered a part of and in connection with whatever residuary estate she might have after payment of expenses, debts and obligations for the purposes of distribution. The executor is to be regarded as holding such proceeds simply for the purpose of paying them to the persons indicated in Such respective amounts as might be determined by the directions of the testatrix, and as such in his hands they will not be subject to expenses of administration or debts of the testatrix. Under this construction so placed by us upon the provisions of the will we do not see but what the method adopted by the testatrix for dividing the real estate or the sums charged thereon amongst the different children and grandchildren will be as simple and Safe as any other which could have been devised. The judgment should be affirmed, with

costs.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, WERNER, and CHASE, J.J., concur. O'BRIEN, J., absent.

... Judgment affirmed.

(185 N. Y. 574) In re THOMPSON.

(Court of Appeals of New York. May 25, 1906.)

CouRTs—JURISDICTION OF SURRoGATE. . . . The Surrogate's Court has no jurisdiction of an action in the nature of a creditors' bill to reach the part of the insurance on the life of deceased in favor of his wife, the executrix: purchased with the part of the premium paid from deceased's property in excess of $500 a year; such money not being part of the general assets of the estate; and the fact that the wife

and executrix is a nonresident is immaterial. Motion for return of remittitur for amendment and application for reargument. Denied.

For former opinion, see 76 N. E. 870.

Louis Cohen, for the motion. Henry Hill

Pierce, Opposed.

PER CURIAM. This is the second motion made by the respondent for a return of Our remittitur for amendment, the first having been denied and no leave given to renew.

The motion also includes an application for a reargument, based mainly upon the fact that the executrix is a nonresident of the State, but it appears that she became a nonresident in May, 1902, more than three years before the appeal Was argued in this court. Both applications are predicated Substantially upon the inconvenience to the creditors in this state of going to the state of New Jersey in order to sue the former executrix, Mrs. Thompson. This fact did not give the Surrogate's Court jurisdiction of an action in the nature of a creditor's bill t0 reach assets not belonging to the estate. We did not pass upon the merits in our decision, but simply held that the surrogate had no jurisdiction of such a controversy. Matter of Thompson, 184 N. Y. 36, 76 N. E. 870. Outside facts, not appearing in the record but shown only by the affidavit of the attorney for the creditors, cannot give the surrogate jurisdiction if the statute never conferred it. Either the surrogate had or had not jurisdiction to decide the question which arose betWeen the creditors and the executrix as to the title to the moneys purchased by the excess of insurance under the statute. It the surrogate had jurisdiction our decision was Wrong. If he had no jurisdiction under any circumstances, as we unanimously held, then no outside fact could confer jurisdiction upon him. There is no inconsistency between our decision in this case and that made in Kittel V. Domeyer, 175 N. Y. 205, 67 N. E. 433. That was an action in the Supreme Court in equity and did not directly or indirectly involve any question as to the jurisdiction of a surrogate. We followed that decision and made it the basis of our judgment in the case before us as to the rights of creditors to the excess of insurance and the basis upon which they rest, namely, legislative grant. that such insurance moneys are not gelle'll assets of the estate but constitute a special fund created by statute for a Special pur

We held, as we had held before, .

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1. INTEREST-ATTORNEY AND CLIENT—FUND ON DEPOSIT. Where a sum was awarded to an owner of land taken for a city street, and a part of it was paid to the city chamberlain pending a controversy as to its distribution between the owner and his attorney in the proceedings, neither of them is entitled to recover interest from the other for the time it was in possession of the city chamberlain, but interest paid by that officer should be treated as principal and divided on the same basis. [Ed. Note.—For cases in point, see vol. 29, Cent. Dig. Interest, $41.]

2. SAME-FUND IN CUSTODY OF PARTY. In a controversy as to the distribution of a fund, where one party at times had more than his equitable share, he should pay interest to the other on the excess during the period of his custody. [Ed. Note.—For cases in point, see vol. 29, Cent. Dig. Interest, § 23.] 3. JUDGMENT—MATTERS CONCLUDED. Where, in a controversy between an attorney and client as to distribution between them of a sum aWarded to the client on the taking of his land for a city street, it was adjudged that the attorney was entitled to one-half the fund after the deduction of taxes due the city, and the part of the judgment relating to deduction of the taxes was not appealed from, but the city afterwards formally disclaimed the taxes before final settlement of the controversy as to the balance of the fund, no deduction should be made on account of taxes.

CrOSS-Appeals from Supreme Court, Appellate Division, First Department.

Action by James A. Deering against John Schreyer and another. From a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (97 N. Y. Supp. 14), modifying and affirming a judgment entered on the decision of the Court after a trial at Special Term, cross-appeals are taken. Reversed, and new trial Ordered.

Clarence L. Barber, for plaintiff. Alexander Thain, for defendant.

PER CURIAM. The eSSential facts Of this case have been Stated many times during its passage through the courts. Matter of Lexington Avenue, 30 App. Div. 602, 52 N. Y. Supp. 203; Id, 157 N. Y. 678, 51 N. E. 1092; Deering V. Schreyer, 27 Misc. Rep. 237, 58 N. Y. Supp. 485; Id., 40 App. Div. 633, 58 N. Y. Supp. 1139; Id., 58 App. Div. 322, 68 N. Y. Supp. 1015; Id., 171 N. Y. 451, 64 N. E. 79; Id., 88 App. Div. 457, 85 N. Y. Supp. 275; Id., 110 App. Div. 200, 97 N. Y. Supp. 14. The main controversy at the present Stage of the litigation is over the items of interest and taxes, and we lay down the following as the rules to govern the distribution of the fund With reference to those subjects: 1. Neither party should pay to the other interest on the fund or any part thereof While it was in the custody of the city chamberlain. The interest paid by that officer should be treated as principal and divided on the same basis. The party Who has had more than his equitable share of the fund in his custody should pay interest to the other on the excess during the period of Such Custody. 2. The claim of the city for taxes having been formally abandoned by the disclaimer, dated May 4, 1905, there should be no deduction from the fund, on account of taxes, before division is made between the parties. The judgment rendered on a former trial whereby the city was directed to pay to the defendant Schreyer the sum retained as security for taxes, with interest thereon, did not adjudicate as between the plaintiff and the defendant Schreyer that Said amount should belong to the latter finally and absolutely, with no right in the court on the new trial that was ordered to charge the same to Mr. Schreyer as so much paid to him from the fund. Neither judgment below was in accordance With these rules, and hence we reverse both, and order a new trial, with costs to abide the final award Of COStS.

CULLEN, C. J., O'BRIEN, HAIGHT, VANN, WERNER, WILLARD BARTLETT, and HISCOCK, J.J., concur.

Judgment reversed, etc.

(166 Ind. 537) NULL v. WILLIAMSON. (No. 20,626.) (Supreme Court of Indiana. May 29, 1906.) 1. EASEMENT - ACQUISITION – PRESCRIPTION —EVIDENCE. Where there has been open and continuous use of an easement for the period of limitation concerning ejectment, the owner of the servient tenement may not show that there was no grant, but he may show by facts and circumstances, that there was not such a holding as would ripen into a legal title. [Ed. Note.—For cases in point, see Vol. 17, Cent. Dig. Easements, § 91.]

2. SAME—PERMISSIVE USE. Where the facts and circumstances of a case show that the use of a way was merely permissive, they are fatal to an easement by prescription. [Ed. Note.—For cases in point, see vol. 17, Cent. Dig. Easements, $ 24.]

3. SAME-PRESUMPTION.—ADVERSE USE. Where the use of a space, left open by the OWner, by one who claimed an easement was shared by the public, it is presumed that the use Was not under an exclusive or particular claim of right. [Ed. Note.—For cases in point, see Vol. 17, Cent. Dig. Easements, $89.]

4. SAME-SUFFICIENCY OF EVIDENCE. Evidence held to show that the use of the way was not adverse, but permissive.

Appeal from Circuit Court, Allen County; E. O'Rourke, Judge.

Action by Jessie C. Williamson against Lycurgus S. Null. From a judgment in favor of plaintiff, defendant appeals. Transferred from Appellate Court, under Section 1337u, Burns' Ann. St. 1901. Reversed, With direction to grant a new trial.

W. & E. Leonard, for appellant. Harper & Eggeman, for appellee.

GILLETT, J. Appellee filed a complaint in tWO paragraphs against appellant. The first was to establish, and to enjoin the obstruction of, a private way, extending along the north end Of Certain lots in the town of New Haven, from a public street to a barn which was situate about 215 feet from said Street. The Other paragraph seems to have been founded on the theory that the strip of land in controversy is a public alley, and that, as it had been obstructed, and as the obstruction caused a special injury to appellee, she was entitled to maintain a suit to enjoin appellant from obstructing the alleged Way.

AS every easement lies in grant, actual or presumed, appellee might have greatly simplified the first paragraph of her amended complaint by alleging her ownership of the way claimed, leaving to the evidence to disclose whether she had an easement by prescription. Hall V. Hedrick, 125 Ind. 326, 25 N. E. 350; Mitchell V. Bain, 142 Ind. 604, 606, 42 N. E. 230. The elements which constitute a prescriptive easement are well understood. Davis V. Cleveland, etc., R. Co., 140 Ind. 468, 39 N. E. 495, and cases there cited. Owing to the existence of a recital in Said para

graph, Some facts can only be said to appear, if at all, as matters of necessary inference from facts well pleaded. As to the extent that some essential matters may be said to thus appear, the views of the members of this court are quite divergent. However, as doubt does not exist as to the requirements Of a prescription in Such an action, and as the case must be reversed, as there is a failure of proof, we shall put our reversal on that ground. As to the second paragraph of the amended complaint, we may say, in passing, that its validity is a moot question. The evidence, as it developed on the trial, had no tendency to show the existence of a public alley, out of which a subsidiary right in appellee could grow, and, therefore, the existence of Said paragraph may be disregarded. We proceed to the question as to Whether the court erred in Overruling appellant's motion for a new trial. As conducive to a more ready understanding of the matter, We exhibit the following plat of the locus in QuO:

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Appellee is the owner of lots 21, 22, 23, and 24, exhibited on said plat, and her effort upon the trial was to establish a private driveway, 10 feet wide, immediately north of said lots, on the berm or heel path Of What Was the Wabash & Erie Canal, from Broadway street to a barn which stands 12 feet South of the north line of Said lot 24. Appellee deraigns her title to said lots from the canal company. About 1858 a gristmill was erected on lot 21, about forty feet South of said berm, and this mill was Operated by various persons until 1881 or 1882, when it was destroyed by fire. There was also, during a few of the earlier years of said time, a shingle mill on lot 21, situate north of the gristmill. From 1860 to 1881 there was a hogpen in the northeast corner of lot 23. Hogs were kept in said pen by the gristmill pe0ple from 1860 until 1866, and it was the practice to feed them from the north end thereof. The barn above melltioned Was erected in 1863, and, until the burning of the gristmill, it Was used as a stable for the horses that Were used in connection With Said business. Lots 21 and 22 were not inclosed by a fence until long after the destruction of said mill. The other lots had a fence along the north line thereof. The canal was abandoned as a waterway in 1881. As will be observed from the plat, there was a space left between the WaterWay and the lots to the South thereof through said addition. This space was occupied by the berm of the canal; the purpose of it being, as we judicially know, to afford a level space which would keep dirt that might be further back from falling into the Water. The north end of lotS 23 and 24 was low, and, as there was a good path On the berm from Broadway, it became the habit of the men who operated the mill to use the berm as a means to get to and from the barn. They and their customers also made frequent use of the east end of the way in passing to the north of said mill. The regular dock was on the east Side of Broadway, but until the canal was abandoned boats occasionally tied up, and loaded and unloaded freight, opposite lots 21 and 22, since there were no dock charges made for landing at that point. Some of this freight was consigned to the proprietors of Said mill, and, as it was customary to store freight on the berm, near to the canal, the way along said lots 21 and 22 was used by the people who were shipping or receiving freight. To the west of lot 22 the berm grew narrower, and, presumably because it was not wide enough to pile freight on and yet leave a driveway, it was the practice for boats to land as near to the bridge over Broadway as possible. To the West Of the barn the berm COuld not be traveled except at times of low water, and there was no evidence of any substantial use of it for the purpose of travel beyond that point. On three occasions said mill owners placed a number of loads of gravel on the alleged way next to the barn, in order to make the way easier to travel at that point. Appellee's former husband, one Wolney Powers, acquired an interest in lots 21 and 22 in 1857, and he also acquired an interest in lots 23 and 24 in 1864, and from the latter date forward, with the exception of a short time prior to April 6, 1882, the title to said property has been either in said Powers or in appellee. During the time the mill was in operation, however, there were outstanding interests in said property held by persons who were engaged in the business of operating the mill. April 6, 1882, appellee became the Sole OWner of Said lotS, and during the most of the time down to the latter part of April, 1902, at which time appellant obstructed the alleged way, the barn has been occupied by tenants. We may say, however, in passing, that the evidence of the extent of the user Since 1897

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(after a brick sidewalk was built along the West side of Broadway) is very vague, and it is Scracely Sufficient to Warrant an affirmative finding that it was continuous. There has never been an assertion of a right to use the strip in question, and the tenants used it, without any direction from the owner, Simply because it was the Only Convenient way to the barn. Appellant has a record title from the canal company. So far as the Statement of facts is concerned, it but remains to Call attention to the evidence bearing on the question as to whether the user was under claim of right and exclusive. Appellee's counsel asked of her witness, Allen H. Dougal, who had been a part owner of said lots and a partner in the business from 1866 to 1875, the following question concerning said way: “You may state whether, how it was used, by the acquiescence of the canal company, or by agreement, or how?” The Witness answered: “Why, We used it because We had to use it, and We Were never denied the use of it.” This Witness Subsequently testified that he never claimed any exclusive right in said way; that he thought it belonged to the public. Another witness for appellee, Charles E. Stapleford, who had also been a part Owner of Said lots and engaged in the business, testified that he made no claim Whatever to the berm Of the Canal. Appellee, who was a witness on her own behalf, was asked the following question on her direct examination: “You may tell the court whether or not you always claimed the right to enter the mill and the shingle mill, while it was there, and the stable, from the heel path.” She answered: “We simply used it. We always used it without any objection from any one.” We take the following further questions and answers from her examination, for the purpose of showing her understanding of the facts: “Q. There was no permission given you by anybody. You simply used it? A. We used it without any permission that I know about. Q. The very reason you used that was because the canal company left that space open? Wasn’t it because Of that? A. We used it because it seemed to be the only way to get to the stable. Q. You didn’t claim the exclusive right to it? Is that it? A. I don’t know as we did. We used it and took the right to go there all the time. Q. Anybody else who wanted to go there used it too? Did they use it generally? A. They used it just as they do in such towns. You go anywhere you please. Q. Can you explain why you didn’t build the fence north of this line, taking in your easement, instead of south of it? A. We didn’t claim it. We used it. We didn’t claim it as our own. Q. You didn’t claim to own that strip? A. No, sir; if we had claimed it, we would have fenced it in. Q. You merely claimed the right to use it? A. We considered that we had the right to use it because we had always used it for years before.” Allen M. Hartzell, Who, with

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