erty, expressed in the strongest terms, and | commenced this action against him as execuwhich was enforceable as a covenant run- tor, and in their complaint they alleged the ning with the land, and was not a condition foregoing facts, and the further facts that the subsequent, imposed for the personal benefit merchandise was necessary for the conduct of the grantors and their heirs. of the business carried on by the defendant, and that the estate of Mrs. Sharp had the full benefits thereof; that the defendant individually is irresponsible, and that there is no way for the payment of plaintiffs' debt except out of the estate; that there are sufficient funds and property belonging to the estate and in the hands of the defendant as executor For the reasons stated, the judgment appealed from should be affirmed, with costs. All concur, (ANDREWS, J., in result,) except RUGER, C. J., not voting. (115 N. Y. 664) POST et al. v. BERNHEIMER. (Court of Appeals of New York. Oct. 8, 1889.) for the payment thereof; and the complaint Appeal from supreme court, general term, first department. See 1 N. Y. Supp. 805. PER CURIAM. In this appeal is involved the same question which has been discussed by us in the case of Post v. Weil, ante, 145, and for the reasons stated in the opinion in that case the judgment here appealed from should be affirmed, with costs. (115 N. Y. 396) WILLIS et al. v. SHARP.1 (Court of Appeals of New York. Oct. 8, 1889.) DISTRIBUTION OF ESTATES-RECEIVERS. Under the New York statutes providing that claimants against decedents' estates are to be cited in the surrogate's court, and heard in reference to their respective claims upon any distribution of the estate, an order appointing a receiver, and directing the executor to deliver the estate to him, that such receiver might pay a judgment recovered against a decedent's estate, is unauthor ized where there are other creditors. Appeal from supreme court, general term, second department. demanded judgment against the defendant as executor, and that the defendant as executor be required to pay the judgment out of the funds and property in his hands belonging to the estate, and prayed for such other and further relief as to the court might seem just and proper. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and judgment was entered for the plaintiffs against the defendant as executor for the amount claimed, with interest and costs, and Alex. V. Campbell, for appellant. Walter Fida C. Sharp died in April, 1885, leaving a will, in which she nominated her husband and Elsie Sharp as executors, and, after the payment of her debts, gave, devised, and bequeathed all the residue of her property to her executors, to be held by them in trust, the income thereof to be used for the maintenance and education of her son, Harry, until he should arrive at the age of 25 years, when the property was to be divided equally between her husband and son. The fourth clause of the will is as follows: "It is my wish, and I hereby direct, that after my death some legitimate business shall be carried on by my executors for the benefit of my said son, Harry, and that my said husband shall be retained as the manager thereof at a salary of $1,500 per annum. And I do hereby auEARL, J., (after stating the facts as thorize and empower my executors to sell or above.) By the order appealed from, the make such other disposition of my real or whole estate of the testatrix is taken out of personal estate as the safe conduct of such the hands of the executor, and placed in the business shall seem to them to require." The hands of a receiver, the executor is absodefendant alone qualified as executor, and lutely restrained from the performance of his letters testamentary were issued to him. duties, and the debt of this plaintiff is orUnder the will he continued the tailoring dered to be paid in preference to all other business which had before been carried on by debts of the testatrix. We are unable to perhis wife, and in that business became in-ceive any ground upon which such an order debted to the plaintiffs, between July 15 can be maintained. There was no allegation and October 31, 1885, for merchandise pur- in the complaint in this action that the estate chased of them, in the sum of $1,380.71. The defendant having neglected to pay such indebtedness, in March, 1886, the plaintiffs 1Reversing 46 Hun, 540. of Mrs. Sharp was, at her death, solvent or insolvent, and no claim was there put forth that the plaintiffs were entitled to payment of their debt in preference to other creditors of the testatrix, and there is no determina tion as to the priority of payment by the | the executor. Stanwood v. Owen, 14 Gray, judgment in the action. All that is deter- 195; Pitkin v. Pitkin, 7 Conn. 307. But if mined by the judgment is that the plaintiffs the business was carried on by the executor had a debt for the amount claimed, and that with the consent of the original creditors, that debt is to be paid out of the estate of then different principles must apply in the Mrs. Sharp. By the general rules of law, the distribution of the estate among all the credexecutor becomes personally liable for plain-itors. Then the creditors of the business tiffs' debt contracted by him after the death must either share pro rata with the other of the testatrix, and they could only resort to creditors in the whole estate, or they must him for payment. But because of his insolv- first be paid out of that portion of the estate ency they could, in equity, resort to the es- used in the business; and we are inclined to tate for the payment of their debt, and the think that the former is the correct rule. If sole effect of the judgment, aside from deter- the business was carried on without the conmining the amount of plaintiffs' claim, is to sent of the creditors, and the estate has been make it payable out of the estate. The other thereby increased, then the original creditors creditors of the testatrix have had no hear- should probably alone share in the estate as ing, and no opportunity to be heard as to it came to the executor, and the creditors of their claims upon the estate, and they should the business should alone have the increase not, without any hearing, have their claims made by their contribution to the capital of first passed until after the plaintiffs' claim the business. As these questions have not has been paid in full. For the purpose of been argued, we ought not now to determine distribution of an estate among the creditors them, as they are new in this state, and not of a decedent the executor does not represent without some difficulty. The order of the the creditors as to their respective claims up- special and general term (46 Hun, 540) should on the estate as between each other. He be reversed, and the motion should be denied, represents the estate as to all claims made with $10 costs of the motion, and the costs of against it, but not as to the mode of its dis- the appeal to the general term and to this tribution among the various claimants there- court. All concur; DANFORTH, J., in the on. The statutes provide that such claim-result. ants are to be cited in the surrogate's court, and then heard in reference to their respective claims upon any distribution of the estate. Here, in opposition to this motion, it (Court of Appeals of New York. Oct. 8, 1889.) was shown that Mrs. Sharp at her death owed a large amount of debts, and that her WILLS-CONSTRUCTION-TRUSTS-PER STIRPES ET estate was in fact insolvent. Under such circumstances, the plaintiffs can proceed to collect their judgment only in the modes prescribed by law. The estate is to be settled and administered in the surrogate's court, and the judgment may there be presented upon the final settlement of the accounts of the executors, and ordered to be paid pro rata with other debts; or the plaintiffs may obtain payment of the same, or of its proper proportion, in the surrogate's court, under sections 1825, 1826, 2717, 2718 of the Code. How the surrogate sball adjust the various claims upon the estate in the hands of the executor need not now be finally determined. The estate of a decedent who leaves debts is, at his death, impounded by the law for all his creditors, and they must share therein, if it is insufficient, pro rata, except as the statute in a few cases gives preferences. The creditors are not bound without their consent (115 N. Y. 346) WOODWARD v. JAMES.1 PER CAPITA. 1. A testator, who left surviving him only his wife and collateral relatives, gave to her one-half the income of all his property for and during her life, "without restraint, deduction, or interference come" accruing during her life, "after the payment of any kind," and gave the "remainder of the inand discharge of all taxes, assessments, and charges," and the reversion, after the death of his tion, exception, and direction that, in the event of wife, to his "legal heirs, with the express reservaany of my legal heirs making any attempt, directly or indirectly, in any manner or form, to interfere with or restrain, in any manner, my beloved wife from the full enjoyment, use, management, and direction and disposition of the property and income" as therein devised, such heir should be forever barred from "any part, parcel, interest, or ownership or inheritance of any of my property, and the divided among the remaining heirs according to share that would have gone to him or her shall be law." The wife was appointed executrix. Held, that a trust was imposed by implication upon the entire estate, and to collect and distribute the inwife for life to take possession of and manage the come, which requires that the legal title should be vested in her as trustee for life. to designate those of his collateral kindred to whom 2. By the term "legal heirs "the testator meant the law would have given the property in case of intestacy, and the children of deceased brothers and sisters take per stirpes and not per capita. bution of personalty, representation goes no fur3. As, under the New York statute of distrither than children of brothers and sisters, a grandchild of testator's deceased brother takes no inter by any provisions contained in a will for the to an excess of current expenses beyond the moiety 4. In the absence of any positive direction as of the income given to the heirs, such excess must be charged upon the wife's moiety. Modifying 44 Hun, 95. Appeal from supreme court, general term, first department. Two things are made manifest by these testamentary provisions. The burden of all taxes and charges, and of all interest and ob Frank E. Smith, for appellant. Franklin Bartlett and Wm. H. Amoux, for re-ligations, was thrown upon the moiety of the spondent. of the property "as devised," that is, in accordance with the provisions of the will; and so the duty was confided to her, as it seems to me, of ascertaining and paying over, every year during her life, the balance of income which might be due to the heirs. That income given to the heirs, and the half bequeathed to the wife was relieved from that FINCH, J. This action was brought to deduction, and she, as executrix, was to have obtain a construction of the will of Frederick the management, direction, and disposition P. James, and for a partition of the real es- of the property and income "as devised." tate which he left, upon the theory that the She was to have its management and direcremainder-men took vested legal estates un- tion. That involved the collection and reder that will. The right of the plaintiff to a ceipt of the income and rents and profits of partition has thus far been denied, upon the the estate, the investment of its funds, and ground that the executrix took the whole es- the leasing of its lands. It involved also the tate in trust, to invest and manage and con- payment by her, out of the income, of the trol the same, to pay taxes, expenses, and in- charges existing and thereafter to accrue durterest, and, after reserving to herself annual-ing her life. She was to have the disposition ly one-half of the gross income, to pay the balance remaining from the other half to the remainder-men, such trust continuing during her life. The testator left no children, and no father or mother, his wife alone surviving him. His relatives were collaterals, to whom he owed no duty, and who had no rights in his We are of the opinion that the authority property, moral or legal, as against his own and duty thus conferred and imposed upon choice and preference in its disposition. He the widow respects the whole estate, and remade his wife executrix, and for her support quires that the legal title should be vested in and future welfare he carefully provided. her as trustee for the term of her life. It is He gave her for her life the use of his city true that the testator does not, in direct and country residences, and absolutely the words, devise to her such an estate, or use furniture therein and pertaining thereto, and the expression "trust" or "trustee." one-half the income of all his property, of ev-fact is one to be noted and weighed, but does ery kind of which he should die possessed, not prevent the creation of a trust by implialso, for and during her life, "without re- cation, where the exigencies of the situation straint, deduction, or interference of any require it, and such an intention is indicated. kind." The remainder was devised and be- Here the duties explicitly imposed upon the queathed to his "legal heirs," but in a man- widow belong to one of the authorized trusts ner, and under conditions, manifesting a permitted and defined by the statute,-that very decided purpose to postpone their es- is, to receive the rents and profits of lands, tates in remainder until the death of his wife. and apply them to the use of the persons deHe gives to such heirs "the remainder of the scribed; and, under the power of sale given, income" from his property, accruing during it is to sell lands for the purpose of satisfyhis wife's life, "after the payment and dis- ing a charge thereon. The objection taken charge of all taxes, assessments, and charges, to the implication of a trust is of a twofold interest, and obligations against" his estate, character. It is argued that the testator does and then "the reversion and ownership" of not direct the executrix to collect and receive all his property "after the death" of his wife, the rents, or to pay them over to the use of with an express "reservation, exception, and the parties entitled. We think that he does. direction," the terms of which throw a strong The management and direction of the estate light upon his intention, and indicate quite on the one hand, and its disposition on the clearly the result which he desired to accom- other, "as devised," or in ac ordance with plish. It is thus expressed: "That in the the terms of the will, are explicitly confided event of any of my legal heirs making any to the executrix; and the purpose to exclude attempt, directly or indirectly, in any manner all interference with, or restraint upon, her or form, to interfere with or restrain, in any control and administration of the property is manner, my beloved wife from the full en- emphasized by the provision for the forfeitjoyment, use, management, and direction ure of the share of any one of the devisees of and disposition of the property and income the remainder who should, in any manner, of my estate as herein devised, then, and in interfere with her management and disposithat event, such one of my legal heirs as tion. It is to be remembered, also, that the shall do or perform or aid or abet the per- widow is given one-half of the income of the formance of such an act, or cause the same to whole estate, and not the income of one-half be done, shall be forever debarred from any of the property. The two things are very part, parcel, interest or ownership or inher- different; and so, to reach the testator's reitance of any of my property, and be exclud-sults, and accomplish his purposes, it was ed from sharing in the same, and the share necessary that somebody should lease and inthat would otherwise have gone to him or vest the whole estate, collect and receive the her shall be divided among the remaining income and profits, pay taxes, debts, and anheirs according to law." nual charges, and distribute to the heirs so But the objection is further pressed that the law will not imply a trust where, in the moment of its creation, it will be invalid; and that, as the same person cannot be both trustee and beneficiary, the trust to Mrs. James must fail. It is undoubtedly true that the same person cannot be at the same time trustee and beneficiary of the same identical interest. To say that he could would be a contradiction, in terms, as complete and violent as to declare that two solid bodies can occupy the same space at the same instant. Where, however, the trustee is made beneficiary of the same estate both in respect to its quality and quantity, the inevitable result is that the equitable is merged in the legal estate, and the latter alone remains. If, then, it be granted that as to her half of the income the widow was not trustee, and took what was given to her by a direct legal right, it does not follow that her trust-estate in the corpus of the property is in any manner destroyed, or that there is any the less a necessity for its existence. She can be trustee for the heirs, and that trust ranges over the whole estate, for the purpose of its management and disposition. If there be other difficulties as to the trust implied, it is sufficient to say that they have not been raised or argued. It follows, therefore, that the remedy of a partition was properly denied. much of the one-half of the gross income as testator, I think, himself indicated the sense should remain annually as a surplus. That in which he used the phrase, and what he person was the testator's wife, for no one meant by it. Where he declares the conseelse could do these things without an inter-quences of the forfeiture of any share, he ference with her management and control, uses this language: "The share that would which was forbidden under a serious penal- otherwise have gone to him or her shall be ty. We think there was a necessity for a divided among the remaining heirs according trust, and an intention to create one. to law." This undoubtedly means according to the law which governs in a case of intestacy. It evidently respects the quantity of interest as well as the persons who are to take; for the division-that is, the proportion-is to be according to law. This language tends to explain the meaning of the testator in the use of the word "heirs" in the devise of the remainder. It is qualified by the word "legal," which seems to have been used in the same sense, and to express the same idea, as the phrase "according to law" in the provision carrying a share over in case of forfeiture. In Luce Dunham, 69 N. Y. 42, it was said that, where a will gives real and personal estate to heirs without mentioning next of kin, the question of the testator's intention may arise. That is so, for the reason that the one word is appropriate to the descent of real estate, but inappropriate to the disposition of personal property, and the sense in which the word was used may become open to inquiry. This testator knew that there was a wide difference in the relationship to him of his heirs. He had a brother living. His brother Reuben, who was dead, left seven children. Did the testator mean that each one of these should take as much of his estate as his living brother, and so that one brother, through his descendants, should take seven times as much as the brother living? If he intended such a discrimination, we should expect to find some decided manifestation of it. The conclusion to be reached on this will is not altogether clear and obvious, but I am inclined to agree with the general term that the testator meant by the phrase "legal heirs" those who would take in case of intestacy and in the proportions prescribed by the statute; grounding such conclusion, not merely on the situation, but also upon the language of the will, since, as was said in Ferrer v. Pyne, 81 N. Y. 284, the rule of a per capita division will yield to a very faint glimpse of a different intention. It may be that we should follow the rule, prevailing in many other states, that a devise to heirs, which compels a reference to a statute to ascertain who should take, makes the same statute the guide to the manner and proportion also. Richards v. Miller, 62 Ill. 417; Bassett v. Granger, 100 Mass. 348; Baskin's Appeal, 3 Pa. St. 304; Bailey v. Bailey, 25 Mich. 185; Cook v. Catlin, 25 Conn. 387. But, for the present purpose, we hold that the will discloses an intent that the remainder-men should take as in a case of intestacy, and so per stirpes. I think it follows, necessarily, that the plaintiff takes no interest in the personal property, as the general term decided. Under the statute of distribution, representation goes no further But the question of the construction of the will in some other respects remains. At the date of his death the testator left his brother, Edward D. James; his two half-sisters, Cornelia James and Judith Prescott; nine nephews and nieces, who were the children of a brother, a half-brother and half-sister, who were respectively deceased; and the plaintiff, who is a grandchild of a deceased brother. Whether these persons take their share of the remainder per stirpes or per capita, and whether the plaintiff has any interest whatever in so much of the estate as is personalty, are two of the questions raised. We are thus required to determine whom the testator meant by "legal heirs," and whether he intended to designate by that phrase the individuals merely who should take, or to fix also the quantity of interest which should devolve upon each. If he used the words "legal heirs" solely to identify the individuals who were to take as devisees, they would be deemed in general to take as purchasers, as if all had been named, and, in the absence of any modifying language of the will, would take as tenants in common and per capita. That, of course, assumes that the interest devised is in some way different from that which would have descended had no will been made. But the ceived benefits under the contract, and conducted manner that the directors must have known of it. its business in compliance therewith in such a than brothers' and sisters' children, and, the | ors, is binding on the corporation when it has rerule of intestacy applying as to the quantity of interest to be taken, it results that the statute deprives the plaintiff, who is a grandchild of a brother, of all interest in the personal estate. It remains to consider the conclusion of Appeal from supreme court, general term, second department. Action by James Jourdan, receiver of the Brooklyn, Flatbush & Coney Island Railway Company, against the Long Island Railroad Company. Judgment was rendered by circuit court on a verdict in favor of plaintiff, and was affirmed by general term. Defend ant appeals. Calvin Frost and E. B. Hinsdale, for appellant. Wm. C. De Witt, for respondent. the general term in another respect, wherein it agreed with the trial court and affirmed its judgment. An emergency was suggested as likely, or, at least, possible, to arise in which some source of payment should be designated for an excess of current charges beyond the half of the income upon which that burden was imposed. It is evident that if such charges exhausted the moiety of the income not given to the wife, and still some portion DANFORTH, J. This action was begun in remained unpaid, the balance could only be November, 1884, to recover, damages from met from one of two sources,-either the in- the Long Island Railroad Company for breach come of the wife, or the corpus of the estate. of a written contract, purporting to have The special term declared in and by its judg- been made on the 31st day of May, 1879, bement that the latter should bear the burden, tween the Brooklyn, Flatbush & Coney Island and that conclusion is challenged on this ap- Railway Company, of the first, part, Thomas peal. We are referred to our own decision, R. Sharp, as receiver of the property, etc., recently made, (In re Albertson, 113 N. Y. of the Long Island Railroad Company, of 434, 21 N. E. Rep. 117,) in which we said, the second part, the Long Island Railroad per GRAY, J., that, to sustain a construction Company, of the third part, and the Atlantic whereby capital is impaired in the payment | Avenue Railroad Company of Brooklyn, of of taxes, expenses, and interest, the direction the fourth part. It was by its terms to conshould be unequivocal and unmistakable. tinue for a period of five years from its date. There is no such direction. The testator ev- The Brooklyn, Flatbush & Coney Island Railidently did not contemplate that emergency. road Company and the Long Island Railroad He doubtless supposed, as he might have Company were severally the owners and opdone quite reasonably, that the moiety of in-erators of railways; and, so far as is material come given to the heirs would be not only to any question calling for our discussion, ample for the burden which he imposed upon the terms of the contract were such that it, but sufficient besides to supply a surplus for division among them. In the absence of a positive direction as to an excess of current expenses beyond the moiety of income charged with their payment, the general rule must prevail, and such excess be charged upon the moiety given to the widow. The language of the will, freeing her half from any deductions, was used in connection with the provision imposing the burden on the other half, and without reference to an emergency which the testator did not contemplate, and for which, therefore, he did not provide. the first-named company was required to extend and maintain its track at its own expense, but in a manner satisfactory to the other company, from its then terminus at Bedford Station, so that it should connect with the tracks of the Long Island Railroad Company on Atlantic avenue, and thus form continuous lines of double-track railroad between the depots of that company at Flatbush avenue and East New York, and the depot of the Brooklyn, Flatbush & Coney Island Railway Company at Brighton Beach, on Coney island, and, as it pleased, run trains over We do not think the question of forfeiture the lines so made continuous between Flatis properly in the case, and therefore express bush avenue and Brighton Beach. The Long no opinion upon the subject. The judgment Island Railroad Company, and Sharp, its reof the general term should be modified, in re- ceiver, agreed to furnish it with "all necesspect to current charges remaining unpaid sary depot facilities for its trains and passenafter the moiety given to the heirs is ex-gers" at Flatbush avenue, and through its hausted, in accordance with this opinion, and, as modified, should be affirmed, with costs payable out of the estate. All concur, All concur, except RUGER, C. J., not voting. (115 N. Y. 380) agents sell the tickets at that place; and the party of the first part agreed to pay to the Long Island Railroad Company in compensation "for the use of its tracks, the sale of its tickets and for depot facilities, twenty per cent. of all moneys earned by it for the transportation of passengers between Flatbush avenue and any and all points on the line of the party of the first part south of Bedford Station." Similar rights were secured to the A contract executed and sealed in the name Long Island Railroad over the continuous of a corporation by its president and secretary, line, and a described portion of the plaintiff's though without the express consent of the direct-tracks and depot facilities secured to it at 1Affirming 42 Hun, 657, mem. JOURDAN v. LONG ISLAND R. Co. (Court of Appeals of New York. Oct. 8, 1889.) CORPORATIONS-CONTRACTS. Brighton Beach, and for this use and these |