the license was served, the defendants had thus: “I give and devise all the rest, residue, the right to proceed and build up the new and remainder of my real and personal eswall, so as to sustain the walls of the plain- tate, goods, and chattels, of what nature and tiffs' building, and for that purpose had the kind soever, to my four children, viz., Kate right to enter upon so much of the plaintiffs' L., C. J., Sarah, and the above-named Charles lands as was necessary, before they could be W., to be divided equally between them, or required to remove the needles from the their heirs and assigns, share and share premises. Undoubtedly, it was the duty of alike.” The will was executed about eight the defendants to proceed with reasonable years before the testator's death. At that dispatch, without unnecessary delay, to per- time he had no money or securities, but his form the job in a good, workman-like man- whole personal estate consisted of the usual ner, with as little injury and inconvenience farm property, such as stock and grain, and to the plaintiffs as possible; but in so doing was in value no greater than it proved to be they cannot be regarded as trespassers, and at the time of his death. It appears that no recovery could be maintained against such value was not in excess of $1,500. At them as such. Whether or not the defend the date of the execution of the will he seems ants had the right to proceed and shore up to have been substantially free from debt, but other portions of the plaintiffs' building after thereafter gradually accumulated liabilities, service of the notice of revocation, it is not which at his decease his personal estate was necessary to now consider; for, under the insufficient to pay. The widow and son took charge of the court, the defendants were re- their legacies in the land by the process of garded as trespassers from the time of the rev- buying in the interests of the other children. ocation of the license, if they thereafter act. The debts were paid, which more than exed under it. For the reasons stated, the hausted the personal estate, and the widow, judgment must be reversed, and a new trial who finally bought out Charles, and became ordered, with costs to abide the event. All sole owner of the land, promised to pay the concur.

plaintiff's legacy, but has been unable to do

She mortgaged the property, and it has (117 N. Y. 288)

been sold on foreclosure to the defendant, BRIGGS 0. CARROLL.1

who bought with notice of the plaintiff's (Court of Appeals of New York. Nov. 26, 1889.) claim against the land. On this state of facts LEGACIES-CHARGES ON LAND.

the courts below have held that plaintiff's Testator gave a legacy of $2,500 to his wife legacy was a charge upon the realty, and the in lieu of dower, another of $1,500' to a son to be defendant app-als

from that decision. used for his education, and another of $500 to plaintiff, all to be paid within a year after testator's In Brill v. Wright, 112 N. Y. 129, 19 N. E. death. These were followed by a disposition of Rep. 628, the rule prevailing in this state is the entire residue of the estate, without distinguish- held to be that a residuary clause coming after ing realty from personalty. At the time of the execution of the will, testator's personalty consisted a bequest of legacies, and disposing of both of only $1,500 worth of farm stock and implements, the real and personal estate together, and by and he was substantially free from debt. Soon one form of expression, will not alone justify thereafter he purchased more land, using a part of his personalty to make the first payment, and gradu- a construction that the legacies are charged ally accumulated additional liabilities, which, at upon the land, but will do so where it appears his death, his personal estate was insufficient to in addition, from such extrinsic facts as may pay. Held, that the legacies were a charge on the be resorted to, that there was in truth an in. realty.

tention to charge the debts upon the land; Appeal from supreme court, general term, and we have inferred that intention where fifth department.

the personal estate of the testator was, at the Action by William B. Briggs, by his guardo date of the will, largely and clearly insuffiian, against Peter D. Carroll, to charge a leg- cient for the payment of the legacies given, acy on real estate. From a judgment af- and the testator must have known and unfirming a judgment of the special term for derstood that they could not be paid except by plaintiff, (3 N. Y. Supp. 686,) defendant ap- the aid of the real estate. That was the docpeals.

trine of McCorn v. McCorn, 100 N. Y. 511,3 M. A. Seary, for appellant. Chas. S. N. E. Rep. 480, the facts in which case, it Baker, for respondent.

must be admitted, were stronger than in this.

Nevertheless, we are of opinion that the FINCH, J. The testator by his will gave courts below were right in their disposition to his wife a legacy of $2,500, to be accepted of the case. Here were legacies of $4,500, by her in lieu of dower; to his son Charles, with but $1,500 worth of personal property $1,500, “to be held and used by his mother out of which to pay them. One of these was as necessity might require for his education;" in lieu of the wife's dower, and another for and to his grandson, the plaintiff, $500. He the education of the son Charles. The dedirected these legacies to be paid within one clared purpose of each gift leads strongly to year after his death. Their bequest was fol- an inference that the testator did not suppose lowed by a residuary clause, which reads that they would, or mean that they should, 1 Affirming 3 N. Y. Supp. 686.

abate, and be largely reduced. Very soon 8 As to when legacies will be held to be charged after the execution of the will we find him on lands, see Brill v. Wright, (N. Y.) 19 N. E. Rep. buying more land, and using $700 of his per628, and note.

sonal estate in making the first payment.

And during the remainder of his life he not about the amount due on the land, also showed only steadily failed to increase his personal should be applied in payment of the amount which

that the surrogate had decreed that this balance estate, but continuously depleted it as a the vendee had appropriated from the assets of his source of payment of the legacies by a per- brother's estate. Held, that the application was sistent accumulation of debt which in the end conclusive on defendants. more than absorbed the whole personal as- land from the surviving brother, with notice of his

2. Defendants, having taken a mortgage on the sets. The testator must have realized the defect of title, and without knowledge of the state situation. He could not have been deceived of the account between the brothers, had no legal or mistaken, and so we are shut up between right to appear in the accounting, and cannot obtwo alternatives. Either he intended to ject to the application made in the surrogate's de

it on sacrifice the comfort and welfare of his wife price of the land. and son Charles for the benefit of his older

3. Evidence that an account of the mutual and married children, and deliberately con- the survivor, that they lived together, and that the

transactions between the two brothers was kept by tinued to make their situation worse by put- deceased had opportunities to inspect the account, ting personal estate into land, and incurring and had occasionally done so, and that at his death debts, or he supposed that their lezacies would there was a balance of only $1,683.14 in his favor, vest upon his real estate. I think we are rants an inference that the annual balances of the

the purchase price of the land being $3,300, warjustifiel in holding that the latter was his un- account in favor of the surviving brother were apderstanding of the will. We are very far plied by the brothers in payment of the purchase from saying that a residuary clause, blending price of the land, and interest thereon.

4. But there is no presumption that items addin its form of disposition both real and per-ed to the account after the death of the vendor sonal estate, will produce a charge upon the brother were intended to operate as payments on former for the payment of legacies wherever the purchase price. the personal estate proves insufficient. No of the time within which they were allowed to

5. Defendants cannot complain of an extension such doctrine can be justified. The deficiency satisfy a vendor's lien, though the extension was must exist when the will is executed, and be illegal. so great and so obvious as to preclude any

Appeal from supreme court, general term, possible inference that the testator did not realize it, or that he may have expected and

fourth department.

M. M. Waters, for appellants. Edwin D. intended before his death to remove the dif

Wagner, for respondents. ficulty. If the disparity, even though serious, is such that the testator might have been RUGER, C. J. The plaintiffs brought this unconscious of its existence, or so dependent action to obtain partition of the lands deupon estimates of value that in the decedent's scribed in the complaint. They alleged title judgment it might have been adequate to the to such lands as heirs at law of John Grant, burden imposed, or such that he might rea- deceased, who, with William Ward Grant, sonably expect to repair the deficiency before inherited them from Avery Grant, their fithis death, the ground for inferring an inten- ther, and were tenants in common thereof tion to charge the land would disappear. at the death of John Grant, in 1869. The But none of these things are found in the appellants claimed title to the lanıls under a present record. The legacies were three foreclosure sale and purchase by them upon times the value of the personal estate, and it a mortgage given thereon by William Ward is impossible to imagine that the testator did Grant, April 20, 1875, to secure a prior innot know it. They were provisions in lieu debtedness from him to Chaunc.y and Jane of dower and for the support and education S. Keator, and an alleged parol sale of said of a minor child which it is hard to suppose lands, made in 1855, by John Grant to Willwere ineant to abate; and the subsequent ac- iam Ward Grant, and payment by him of tion of the testator strongly indicates that he such purchase price to John Grant. The meant to impose their payment upon his answer also asked, in case it should be found lands. We think the facts of this case bring that such purchase price had not been paid it up to the required standard. The judg- in full, that the said appellants should be afment sliould be affirmed, with costs. All forded leave to pay such amount as remained concur.

unpaid thereon, and be decreed, in case such

payment was made, a conveyance of the lands (117 N. Y. 369)

by the heirs at law of said John Grant. The GRANT et al. v. KEATOR et al.'

principal controversy on the trial was wheth(Court of Appeals of New York. Nov. 26, 1889.) er such purchase price had been paid to John APPLICATION OF PAYMENTS-RES ADJUDICATA. Grant during his life-time, or to his personal

1. In an action for partition of land which had representatives thereafter. No question is formerly been owned by two brothers, defendants made in the case but that John Grant, after claimed title to the entire tract from one of the brothers who had purchased the other's interest succeeding to the title of the lands with his for $3,300. To show that the price had been paid, brother, William Ward Grant, contracted by they produced the record of an accounting in the parol, in 1855, to convey his interest therein as administrators of the vendor brother, to which to bis brother on payment of the sum of $3,all of the latter's heirs and next of kin were par-300, and certain other considerations; and ties, which, while it showed that a mutual account the question litigated was whether this sum had existed between the brothers in the vendor's had been paid during John Grant's life-time, life-time, with a balance in the vendee's favor of

and, if not, whether the defendants should 1 Affirming 45 Hun, 593, mem.

have leave to pay the sum remaining unpaid,

and be decreed a conveyance of the premises. plication thereon of the annual balances, un. The evidence failed to show that the purchase til in 1869, when the balance in favor of price of said land had been paid. The appel- John, including the amount of the purchase lants attempted to prove this fact by showing price, was $1,683.14. Certain items were that between the date of said parol contract added after that time; and it cannot be inof sale, and the death of John Grant, in 1869, ferred, as to such items, that John ever saw a mutual account existed between the broth-them, and they bear inherent evidence of beers, upon which, at the time of the death of ing reviewed and entered in the book after John Grant, there was an apparent balance John's death, and consist of items inadein favor of William Ward Grant of $3,152.34, quately proved. With reference to those exclusive of the amount of the purchase price items, there can be no presumption that they of said land. Upon the death of John Grant, were intended to operate as payments upon Fanny Grant, his widow, and William Ward the purchase price of said land. Grant, his brother, were appointed adminis It was also found by the trial court that on tratrix and administrator of his estate, and the 20th of April, 1875, at the time the apqualified as such. In 1876 an accounting on pellants acquired, by mortgage, the interest the part of the administrators of John Grant's of William Ward Grant in such lands, said estate was had before the surrogate of Del- William Ward Grant was indebted to the esaware county, to which all of the heirs and tate of John Grant, aside from the balance next of kin of John Grant were parties, due on said purchase, in a sum greater than and such proceedings were had therein that the balance of his account against such estate, said surrogate decreed that the whole balance and that said mortgagees acquired by such of the account of William Ward Grant against mortgage no equitable right to have such the estate of John Grant, uxcluding the balance applied upon the said William Ward amount due for such real estate as exhibited, Grant's indebtedness for the purchase price · amounting to the sum of $3,152.34, should of such lands. The trial court sustained the be applied in payment of a deficiency of as- defense set up, to the extent of holding that sets in such estate caused by the appropria- $1,616.86 and interest to November, 1869, tion by William Ward Grant, as administra- | had been paid on the purchase price of said tor, of the funds of said estate. The record lands, and that said appellants were entitled of this accounting was introduced in evidence to pay the balance remaining unpaid thereon, by the defendants, and they are not in posi- and in that event have a conveyance from tion to dispute its force as proof, or its effica- the heirs at law. The decree gave them 30 cy as an adjudication between the parties days in which to make such payment, and in thereto.

default thereof decreed partition of the lands It was found by the court below, on the as prayed in the complaint. trial under review, that it was never agreed The appellants raised a number of quesor understood between John Grant and Will- tions upon the authority of the court to grant iam Ward Grant that any of the items of ac- the relief which it awarded to them, which count between them were received, or should seem to us to be unworthy of serious considbe applied, in payment of the balance due eration. Such relief was based altogether upon the purchase price of said lands. But upon the allegations of the answer and the it was also found that William Ward Grant claim for relief contained in it; and, whathad paid to John Grant the interest on said ever may have been its force or effect, the sum of $3,300 up to November 1, 1869, and defendants are not injured by a privilege $1,616.86 upon the principal, leaving unpaid awarded to them at their request, and inthereon the sum of $1,683.14 of principal and tended for their benefit. The court gave the $1,800.81 of interest, amounting at the time defendants an opportunity to defeat the plainof the trial to $3,283.95. This finding was tiffs' action altogether, if they chose, but, if apparently based upon an inference that there they did not elect to avail themselves of this had been an application by the parties of the privilege, they were at liberty to refuse; and, annual balances of the account, previous to in that event, nothing was left to stand in the year 1869, in favor of William Ward the way of the enforcement of the plaintiffs' Grant to the purchase price of said land, legal rights. They could in no sense be agwhich had reduced the amount thereof to $1,- grieved by the extension of a privilege which 683.14. We think there was evidence from they did not elect to avail themselves of. which such an inference might properly be The defendants had no legal right to an drawn. The account, which was proved only extension of time within which to satisfy by the records of the surrogate's court, was the vendor's lien; and the act of the court in shown to have been kept by William Ward giving them 30 days to do so was an act of Grant upon an account-book formerly belong- pure grace, enabling them to avoid the effect ing to his father. Until 1866, William Ward of a long-continued default in the performGrant and his brother, John Grant, lived to-ance of the obligations to pay the purchase gether, in the same house, and John had an price. They chose not to pay and take a conopportunity to examine this book and inspect veyance, and the necessary effect of this dethe account, and had been seen, sometimes, termination was to leave the title of the land looking over it. That account showed, in- in the vendor's heirs, with all the rights and ferentially, that the amount of the purchase privileges pertaining to such title, among price had been reduced each year, by the ap- which was the right of partition. Wain

man v. Hampton, 110 N. Y. 429, 18 N. E. cured indebtedness of the debtor, strangers Rep. 234.

to the transaction have no right to complain. The defendants, by their mortgage, ac- The appellants were not parties to that acquired such right in the lands as William counting, and had no legal right to appear Ward Grant possessed at the time it was therein, or litigate the question of the appligiven, and that was the right to pay the un- cation of such account; and the disposition paid purchase price, and entitle himself to a then made of it is conclusive upon them. convevance thereof.

William Ward Grant O'Blenis v. Karing, 57 N. Y. 649. was then indebted to John Grant's estate, The questions presented by the appellants not only in the amount of $1,683.14, for the as to the respective rights of the heirs at law unpaid balance on the purchase price of this and the representatives of John Grant in the land, but also in other amounts sufficiently unpaid balance of the purchase price of the large to extinguish any account which he had land in question do not concern them, and against such estate. The balance of such need not be determined in this litigation. account was then an open, unliquidated ac We have examined other questions raised count, no part of which had been applied as by the appellants' counsel upon the argupayment upon any particular demand of the ment, but are of the opinion that none of estate, and, in the settlement of its accounts, them require serious notice. The judgment the surrogate, upon the request of William of the court below is therefore affirmed. All Ward Grant, applied it to the extinction of concur. the unsecured demands of the estate against

(117 N. Y. 241) William Ward Grant, to the exclusion of the

PEOPLE V. AMERICAN BELL TEL. Co.1 sum due upon the purchase price of said land; and this, we think, the representatives (Court of Appeals of New York. Nov. 26, 1889.)

BELL TELEPHONE COMPANY-TAXATION. and heirs of John Grant had a right to insist upon, and the surrogate lawful authority to Massachusetts corporation, engaged in manufact

1. The American Bell Telephone Company, a make. No application having been made of uring telephones under its patents, and licensing this account by the parties at the date of the their use by others, leases its instruments, costing mortgage in question, except, perhaps, the about three dollars apiece, and licenses their use

in New York to local corporations. The entire sum of $1,616.86, William Ward Grant did business of furnishing telephonic facilities to the not, by giving it, bar the right of the parties public, which, in addition to the instruments, into make such disposition of the balance of the volves the maintenance of an expensive plant, conaccount as they might deem proper to do. sisting of wires, poles, etc., .is carried on by these

local bodies, who receive the compensatior paid by The appellants took their mortgage with no- the public, which constitutes the entire earnings tice of their mortgagor's want of title, and arising from the use and employment of the comwithout knowledge of the state of the ac- pany's instruments in New York. The Bell Comcounts between their mortgagor and his pany receives from the local companies, as com

pensation for the use of its instruments, at its of. vendor; and they cannot object to any appli- fice in Boston, a royalty payable monthly, in adcation made of this indebtedness which the vance, without regard to whether the instruments parties interested should agree to make. are used or not. It has no office or officer, unless

it be these local companies, in New York, and has Harding v. Tifft, 75 N. Y. 461.

no direct business relations with the public. Held, The trial court have given to the appel- that the local companies were its licensees, and lants, as a payment upon the purchase price not its agents; and that it was not doing busiof said land, the benefit of the balance of ac- N. Y. 1881, c. 361, $ 6, taxing the gross earnings of

ness” in New York, within the meaning of Laws count, viz., $1,616.86, appearing to be due to telephone companies “doing business” in this William Ward Grant at the death of John state. Grant, although William Ward Grant seems

2. The contracts, in addition, provide for the

use of private lines, and require leases for the use also to have received credit for the same of telephonic instruments to the patrons of such amount on his accounting before the sur. lines to be made in the name of the Bell Company; rogate. Certainly, the appellants have no but it was stipulated that the provision is inserted right to complain of this disposition of the private lines by unauthorized persons, and to guard

in the contracts to prevent the illegitimate use of account. They have secured a credit amount against infringements of the company's patents, ing to one-half of the balance appearing upon It also appeared that the management and control the account, as a payment upon the land: of the entire business is confided to the local corand they now claim that the other half shall weeu the various classes, and that they collect the

porations, without any material distinction bealso be so applied, although it has been other dues for the private lines, as in other cases, paywise applied by the parties and the surrogate. ing the Bell Company a royalty for the use of the As against the representatives of John Grant, private lines the local corporations were not the

instruments. Held, that even in respect to the the appellants have shown no right, either agents of the Bell Company. by proof of the items of the account or of any 3. The fact that the Bell Company is a stockagreement of the parties, to have this amount holder in the local corporations does not render its applied as a payment upon a demand for Y. 1881, 3. 361, $ 3, taxing the capital stock of all

capital stock taxable in New York, under Laws N. which they held security, to the exclusion of corporations doing business in the state. unsecured debts. There was nothing to prevent the parties to this indebtedness, at the first department.

Appeal from supreme court, general term, date of the surrogate's decree, from making James C. Carter, for appellant. Wm. A. such application thereof as they might agree Poste, Dep. Atty. Gen., for the People. upon, and haviny, under the sanction of the surrogate's court, applied it upon the unse 1 Reversing 3 N. Y. Supp. 733.

RUGER, C. J. The controversy in this the laws of Massachusetts, and located and case is presented by an agreed statement of doing business in that state. It is authorfacts submitted by the parties to the supreme ized by its charter “to carry on the busicourt, under section 1279 of the Code, for its ness of manufacturing, owning, selling, usdecision. The plaintiff claims the right to ing, and licensing others to use, electric recover taxes from the defendant for five speaking telephones, and other apparatus and years between 1881 and 1887, upon some appliances pertaining to the transmission of portion of its capital stock and upon its gross intelligence by electricity.” Practically, its earnings in this state, by virtue of the pro-whole business consists in manufacturing visions of chapter 542 of the Laws of 1880, under its patents, and leasing to and licensing as amended by chapter 361 of the Laws of the use of telephones by others in the various 1881 and chapter 501 of the Laws of 1885. states of the Union. In the state of New The taxes contemplated by the statutes re- York, these licensees are corporate bodies, ferred to are a certain percentage upon the formed therein, to carry on, in certain defined amount of the capital stock of “every corpo-localities, the business of furnishing teleration, joint stock company, or association phonic facilities to the citizens of such comwhatever, now or hereafter incorporated or munities, and they are entitled to the excluorganized under any law of this state, or now sive privilege of doing so under the Bell sysor hereafter incorporated or organized by or tem. The conduct of the business is carried under the law of any other stite or country, on under authority obtained from the Bell and doing business in this state.' Section Telephone Company, upon the conditions and 3, c. 542, Laws 1880; section 3, c. 31, Laws regulations contained in contracts with that 1881. By chapter 501 of the Laws of 1885 company. The entire receipts for the use of the tax upon the capital stock of corporations, telephonic facilities from the citizens of New when such stock was only partially employed York are paid by the customers of the rein this state, was limited to so much only of spective local companies to the company of such capital stock as was thus employed. which they are respectively patrons or lesSection 6, c. 542, of the Laws of 1880, and sees; and such receipts constitute the entire section 6, c. 361, of the Laws of 1881, au- income and earnings accruing to the Bell thorize, in addition to other taxes, and among Telephone Company from the use and emother corporations, as a tax upon its corpo-ployment of its telephonic instruments in the rate franchise or business in this state, a cer- state of New York. The contracts under tain percentage upon the gross earnings of which this business is done by the licensees

every telegraph company or telephone com- are made at the defendant's office in Boston, pany incorporated under the laws of this or and the rentals or royalties due to it are payany other state and doing business in this able monthly, in advance, at that place. The state." The taxes authorized by these stat. telephones are delivered to each licensee at utes are in addition to the usual and ordinary the general office or factory of the defendant taxes levied upon property, and were intend company, in Boston, as often as requested, ed to reach and tax only the business and and not elsewhere. The licensee transports franchise of the corporations designated. them, at his own risk and expense, wherever

The main question presented is whether he wishes, and lawfully may use them, or the defendant is a corporation "doing busi- furnish them to others for use. The licenness in this state,” within the meaning of see, when he sees fit, may return them to the those words as used in the statutes. No dif-defendant company at Boston, but, so long ference exists between the authority to im- as he retains them, is bound to pay the roypose a tax upon capital stock under the act alties thereon, whether they be used or not. and that conferred to tax gross earnings, and The business, as conducted by the local comthe right to levy both taxes, therefore, rests panies, requires, in addition to the telephones upon the same ground, and stands or falls furnished by the Bell Telephone Company, upon the simple question whether the de- the use and employment of an expensive fendant is doing business in this state. plant; the construction and maintenance of Whether the defendant during this period extensive lines of poles, wires, switches, and was in fact doing business in this state must switch-boards; the services of numerous be determined from the actual character of agents and employes; and the management the business carried on, as disclosed by the and control of an extensive business, calling facts contained in the submission, and not for the employment of a large capital, and from the existence of any unexercised powers the incurrence of serious risks in its prosecureserved to it by its contracts; for the mate- tion. rial question is whether it has in fact done The Bell Telephone Company has no ofbusiness within the state, and, if so, what fice or officer, agent or employe, in the state of was its nature, character, and extent, and New York, unless the local corporations can not whether it possesses the natural or con- be so denominated. It has no direct business tractual right to carry on business therein. relations with the public, from whose patronSome of the leading features of the business age the income for telephonic facilities is deunder consideration may be concisely referred rived; and such income is always collected to, as having an important, if not contro)- by and paid to, and becomes the property of, ling, bearing upon the subject. The defend the local companies. The profits derived ant is a foreign corporation, chartered under from the business thus carried on belong

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