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the deceased. Previous to the commence- | property of said Pardee should prove insuffiment of this action the plaintiff requested cient to pay." As we have seen, the debts of Smith, as administrator and trustee, to com- Pardee amounted to the sum of $171,715.15; mence an action against Mrs. Moses to compel her to pay over the rents and profits collected by her, and Smith neglected or refused to commence the same.

that the personal property amounted to the sum of $3,893.60, and the real estate to $26,077.91, leaving a deficiency of upwards of $141,000, for which sum she would be liable under this finding. If this conclusion is to be sustained, it will become necessary for devisees in the future to act with great caution in reference to the accepting of devises of real estate. They will not only require the advice of a skilled lawyer upon the subject,

The statute provides that "a devise of lands to executors or other trustees, to be sold or mortgaged, where the trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees; but the trust shall be valid as a power, and the lands shall descend to the heirs, or pass to the dev-but will have to wait until the time is up isees of the testator, subject to the execution within which creditors can prove their claims of the power." 1 Rev. St. p. 729, § 56. Under before they can know the amount of their liathis statute it was found by the trial court, bility, or safely accept or enter into the posas a conclusion of law, and appears to be con- session of devised 'property. The authority ceded, that no trust was created by the will upon which this conclusion was reached is of Pardee with respect to his real estate, and doubtless that of Brown v. Knapp, 79 N. Y. therefore no such title thereto was vested in 136-143. That case, however, had reference his executors or trustees as would entitle to a legacy which was directed to be paid by them to receive the rents and profits of the the person to whom the real estate was dereal estate; that the will created a valid pow-vised, and it was there held that by the acer in trust in the executors and trustee to sell the real estate for the purposes of paying the debts; that the real estate passed to Mrs. Moses, the devisee, at the death of Pardee, subject to the execution of the power in trust, and the title immediately became vested and remained in her until divested by the execution of the power of sale; that from the time she accepted the devise until the execution of the power in trust no one but her was entitled to the possession of the premises, or could lawfully receive the rents and profits there-a lhere to this conclusion, for in awarding from.

ceptance of the devise the devisee became personally bound to pay the legacy. In that case the amount of the legacy was specified in the will, and the devisee, in accepting, knew the precise sum that he became liable to pay. The same rule may prevail in reference to some particular debt in which the amount is known and specified; but no such rule can prevail in reference to the general debts of the testator, where their amount is unknown. The trial court evidently did not

judgment it allowed only for the rents reThere does not appear to be any question ceived by Mrs. Moses, and the interest acbut that an heir at law or a devisee under a crued thereon. There are cases in which a will, where there is no charge upon the real charge is made upon the real estate devised estate, or where the real estate is not con- in such form as to make a devisee personally verted into personalty, is entitled, as against responsible for the payment of the charge in the personal representatives or creditors of case he accepts the devise; as, for instance, the deceased, to receive and retain as his own where the devise is upon condition that the the rents and profits arising from the realty, devisee pay the legacy or some specified sum, until the same is sold for the purpose of pay- (Glen v. Fisher, 6 Johns. Ch. 33; Gridley v. ing the debts. Wilson v. Wilson, 13 Barb. Gridley, 24 N. Y. 130;) but, where land is 252; Schouler, Ex'rs, § 216; 2 Williams, devised charged with the payment of debts Ex'rs, 893, (see note, and authorities there generally, an acceptance of the devise does cited.) It is contended, however, that the tes- not create a personal liability to pay, but intator, by his will, charged his real estate, to- stead thereof a lien is created in favor of the gether with the personal, with the payment creditors, who can enforce it as against the of his debts and legacies, and that he devised land devised, (3 Pom. Eq. Jur. § 1244.) them to Mrs. Moses subject to such charge; In the will under consideration there is no and that, where lands are so devised, the cred-provision devising the real estate to Mrs. itors have a lien upon the rents and profits of Moses upon condition that she pay the debts, the land, as well as upon the land itself, and may require the devisee to account therefor. In considering this question, for the purpose of the argument we will first assume that there is a charge of the debts upon the real estate. It then becomes important to determine the nature of the charge. The trial court has found "that, by the acceptance of said devise, and the collection of the rents of the devised property, the defendant Mary E. Moses became liable to pay the creditors of said Pardee, severally and respectively, all the debts of said Pardee that the personal

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nor is there any provision of similar import. It is true she was appointed executrix, in connection with another person, by the provisions of the will, and as such they were ordered and directed to pay the debts and funeral expenses as soon after the testator's decease as could conveniently be done. The chief import of this direction pertains to time, and, as we have already seen, it cannot be construed as making her personally liable upon accepting the devise. The most that can, with any propriety, be claimed is that the debts were made a charge upon the real

estate so as to become a lien, which could be sell the real estate for the payment of the enforced in equity. Being a lien, equity debts. So, in construing this will, the direcwould enforce it upon the same principles tion to pay the debts and funeral expenses that it enforced other liens. In case it should "as soon as can conveniently be done" is but be made to appear that the estate was insolv- a usual formula, and, standing alone, indient, and that the real estate was insufficient cates no intention to make any charge upon to pay the debts, the court might appoint a the real estate. In re City of Rochester, 110 receiver to take charge of the real estate, and N. Y. 159, 17 N. E. Rep. 740. The clause · collect the rents, issues, and profits. But we giving to the executors the real and personal are aware of no case in which equity, in the property in trust for the purpose of paying enforcement of liens against real estate, has debts and legacies, together with a power to required rents, issues, or profits previously sell, mortgage, or convey for that purpose, received or collected to be accounted for and may indicate an intention to charge the legpaid over to apply upon the lien, unless it acies upon the real estate. But such intent may be under circumstances in which a trust does not necessarily follow as to the debts, has been created or implied. The manage- for, as we have seen, this power of sale may ment of real estate so as to obtain rents, is- have been inserted for the sole purpose of sues, or profits requires time, labor, and enabling the executors to dispose of the real judgment, and may involve contracts in estate, if necessary, without resorting to the which liabilities are incurred. The creditors long and expensive proceedings provided for of Pardee have no equitable claim upon the by the statute. In determining the purpose time, services, skill, or management of Mrs. it becomes important to consider the circumMoses; neither have they any right to the stances of the testator, and the relation of the benefit of her contracts. Had they desired parties: Mrs. Moses was an adopted daughthe rents and profits of the real estate, they ter. He gave her the household furniture; to should have taken upon themselves, through another person he gave his gold watch; and, a receiver, the expenses of the management, aside from that, he gave to three women a and the collection of the proceeds thereof. legacy of $100 each. His estate was largely In the absence of a personal liability of Mrs. insolvent at the time of his death, but whethMoses to pay all the debts of the testator, er it was so known to be by him at the time (the existence of which liability we do not of making the will does not appear. He believe to be seriously claimed,) there is no must have understood, however, that his element of trust by which she can be made personal estate was insufficient to pay his liable to account as a trustee. debts and the legacies bequeathed. The deWe are, however, of the opinion that there vise to the executors in trust embraced the is no charge upon the real estate of the debts personal as well as the real estate, thus indiof the testator beyond that provided for by cating that there was no intention on the the statute. In construing the will the in- part of the testator to relieve the personal tention of the testator must control, and, in property from being used in the payment of order to justify the finding that there was an the debts. It would rather indicate an intent intent to make a charge upon the real estate, that the personal property should be used for such intent must appear from express direc- such purpose. We are therefore unable to tion, or be clearly gathered from the provis- discover any motive or object in making the ions of the will. Taylor v. Dodd, 58 N. Y. debts a charge upon the real estate, beyond 335-344; Hoyt v. Hoyt, 85 N. Y. 142-146. that which is provided by the statute; and Under the statute the real estate becomes lia- we are inclined to the view that the purpose ble for the payment of the debts, and it may of the power of sale was to enable his execube sold by the surrogate for that purpose if tors to sell at private or public sale, to close the personal estate is insufficient. With leg-up and settle the estate as speedily after his acies it is different. They are payable out of the personal estate, and the real estate cannot be made liable for their payment unless they are charged thereon by the provisions of the will. Debts and legacies stand upon a different basis, and consequently words that would indicate an intention to charge one upon the real estate might not convey any such intention as to the other, as, for instance, the giving of a power of sale of the real estate to pay legacies would indicate an intention that the legacies be paid out of the real estate; but it does not follow that a power of sale to pay debts indicates an intention to charge the debts upon the real estate, for, the real estate being liable after the personal property is exhausted, the power of sale may have been incorporated in the will for the purpose of avoiding long and expensive proceedings in the surrogate's court to

decease "as can conveniently be done."

Again, it is contended that the real estate was converted into personalty as of the date of the testator's death, and this appears to have been the opinion of the trial court. That court, however, found that the real estate passed to Mrs. Moses, the devisee named in the will, at the death of Pardee, subject to the execution of the power in trust, and that the title to the real estate became vested and remained in her until divested by the execution of the power of sale; and that, from the time she accepted the devise until the execution of the power, no one but she was entitled to the possession of the devised premises, or could lawfully receive the rents and profits therefrom. This being true, we hardly see how there could be a conversion of the real estate as of the date of the death, for in that case the real estate became personal

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property, and the executor, not the devisee, was entitled to its possession, and to recover the rents and profits. Conversion arises only from an express, clear, and imperative direction, or from a necessary implication of such express direction. 6 Amer. & Eng. Cyclop. Law, 665; 3 Pom. Eq. Jur. § 1159.

The

and devisees of a testator, are respectively liable for the debts of the decedent, arising by simple contract or by specialty, to the extent of the estate, interest, and right in the real property, which descended to them from, or was effectually devised to them by, the decedent." This provision is, substantially, a The question of conversion is one of inten- re-enactment of the Revised Statute. 2 Rev. tion, and the question is, did the testator in- St. 452, § 32. The liability under this protend to have his real estate converted into vision extends only to the real property acpersonalty immediately upon his death? If quired by descent or devise at the time of the he did, a court must give such intent effect, decease, and we do not understand it to reach and treat the realty as personal property from that which may be made out of it by the that time. If, however, he intended to give skill, management, or labor of the heir or the executor or trustee under his will a power devisee. But we do not understand this acto convert, leaving it discretionary with them tion to have been brought under the provisto convert or not, the conversion will depend ions of that section, or that the plaintiff is on the will or discretion of the executor or now in position to avail himself of it. trustee, and will not be regarded as consum-sections which follow provide the cases in mated in law until it is consummated in fact. which the action may be maintained, and secKing v. King, 13 R. I. 501-507, and authori- tion 1851 provides that the complaint must ties there cited. In Re Will of Fox, 52 N. describe, with common certainty, the real Y. 530-537, ANDREWS, J., in delivering the property descended or devised to the defendopinion of the court, says: "The statute in ant, and must specify its value. No such this state has provided an ample remedy for allegations appear in the complaint in this creditors for the collection of their debts out action, and the question does not appear to of the real property of a decedent, and the have been raised or considered by either the implication of a power of sale in executors, trial court or general term. from a simple charge of the debts upon the lands, is unnecessary and ought not to be indulged. But the mere power of sale, if it existed in the executors, would not work a constructive change of the property. To do this, the duty to sell must be imperative, and when there is no out and out conversion, and lands are charged only with the payment of the debts, they retain their character of realty until actually converted." In the case of Fisher v. Banta, 66 N. Y. 468, the will di- (Court of Appeals of New York, Second Divisrected the executor to divide the real estate equally between two sons. A codicil directed his executor to sell his real estate. It was held that the direction to sell operated as a conversion of the real estate into personalty, upon the death of the testator, and that the land became money for the purposes of the administration. But in that case it will be observed that no discretion was left with the executor, but he was commanded to sell. This we do not regard as in conflict with the authorities referred to. See, also, Lent V.

v.

Howard, 89 N. Y. 169. In the will under consideration a power to sell, mortgage, or convey any or all of the real estate is given. It is not directed or commanded to be done. It is left entirely discretionary with the executor or trustee whether the sale shall be made or not, and as to whether the whole or a portion only shall be sold. It follows that there was no conversion until the executor exercised the power and consummated the sale. Henderson v. Henderson, 20 N. E. Rep. 814; Parker v. Linden, Id. 858, 861; Chamberlain v. Taylor, 105 N. Y. 185, 11 N. E. Rep. 625.

It is further contended that this action may be maintained under section 1843 of the Code of Civil Procedure. That section provides that "the heirs of an intestate, and the heirs

We are consequently of the opinion that the order of the general term should be affirmed, and that judgment absolute should be ordered for the respondents, with costs, upon the stipulation. All concur, except FOLLETT, C. J., and VANN, J., not sitting.

(116 N. Y. 649) GARWOOD v. NEW YORK CENT. & H. R. R. Co.1

ion. Oct. 8, 1889.) DIVERSION OF STREAM-EVIDENCE.

In an action for damages for taking water from a creek, it is competent for the plaintiff to there was less water in the stream during the sumshow that, after defendant began taking water, mer months than there was before.

Appeal from supreme court, general term, fifth department.

This was an action brought by John Garwood against the New York Central & Hudreferred, and on the report of the referee the son River Railroad Company. The case was reversed the judgment dismissing the comcomplaint was dismissed. The general term plaint, and defendant appeals.

Daniel H. McMillan, for appellant. James B. Perkins, for respondent.

PER CURIAM. The defendant began taking water from the creek about November, 1869. The plaintiff was not permitted to prove that after this date there was less water in the stream during the summer months than before. This was a relevant fact. Its probative force would depend upon a variety of other facts, like the rainfall of the particular season, to be developed upon cross-ex~ amination, or by the examination of other

1Affirming 41 Hun, 637, mem.

witnesses. For this error of the referee the order of the general term must be sustained, and a judgment absolute ordered in favor of the plaintiff, with costs.

All concur, except BRADLEY and HAIGHT, JJ., not sitting.

enter the bumper of the stationary car. The bumper of the moving car passed under the bumper of the stationary car, and in attempting to withdraw his hand it was caught between the dead-woods and severely crushed. The dead-woods were about eight inches on each side of the bumpers. Their purpose was to prevent the cars coming together, and

(116 N. Y. 398) GOODRICH v. NEW YORK CENT. & H. R. thus afford protection to a person standing

R. Co.1

between them. The bumper on the moving

(Court of Appeals of New York, Second Divis- car was not broken, but hung lower than the

ion. Oct. 22, 1889.) DEFECTIVE APPLIANCES.

1. A railroad company is responsible to its brakemen for injuries caused by such a defect in the coupling machinery of a foreign car used upon its road as could be discovered by ordinary inspection; and, where it brings upon its road cars with bumpers of different heights, it does not fulfill its duty by simply furnishing coupling links which might be used safely on such cars, as it is not the duty of the brakeman to inspect the cars to ascertain whether the coupling appliances are safe.

2. Where the accident occurs when the cars are moving slowly, the fact that when the cars are moving rapidly such an accident might occur, though the car was in good order, does not bring the accident within the ordinary risks of the brakeman's employment.

3. In such case, where the brakeman only discovers his danger at the moment of the accident, the question of contributory negligence is for the jury.

FOLLETT, C. J., and POTTER, J., dissenting.

one on the stationary car, and lower than it was intended to hang, for the reason that the staple or strap which surrounded it, and in which it played, was broken on one side. It is customary, in coupling cars of which the bumpers are of different heights, to use a crooked link, and such links are supplied by the company, and were in the caboose which plaintiff and his fellows took with them from Albany to Fishkill. The link in the bumper at the time of the accident was a straight one. After the accident a crooked link was used, and the coupling was made, and the car was thus used while on defendant's road. The bumpers are backed by strong springs, and it frequently happens that, when the cars meet with considerable force, the bumpers are pressed in upon the springs, and the dead-woods come together; but when the Appeal from a judgment of the general cars approach each other at a slow, or, as the term of the third judicial department, which witnesses, term it "ordinary," speed, the affirmed a judgment entered upon an order bumpers receive the shock, and a space is at the circuit dismissing the plaintiff's com- left between the dead-woods of from two to plaint. This action was brought to recover eight inches. It further appeared that in damages for injuries received by the plain-making the coupling the plaintiff's hand tiff, a brakeman in the employ of the defend- would necessarily be between the dead-woods ant, while engaged in coupling cars. It apof the two cars. Plaintiff appeals. peared from the testimony that on the morning of the 17th of October, 1882, the plaintiff and other employes of the defendant were directed to go from Albany to Fishkill, and BROWN, J., (after stating the facts as take charge of a circus train which was to above.) It was decided in Gottlieb v. Railcome upon defendant's road from the New road Co., 100 N. Y. 462, 3 N. E. Rep. 344, England road. The circus train reached that a railroad company is bound to inspect Fishkill about 3 o'clock in the afternoon, and the cars of another company used upon its was switched upon a side track north of the road, just as it would inspect its own cars; depot. In the evening, between 7 and 8 that it owes this duty as master, and is reo'clock, the plaintiff was directed by the con- sponsible for the consequences of such defects ductor to couple some of the cars of the cir- as would be disclosed or discovered by orcus train to some stationary cars further dinary inspection; that when cars come to it north on the same track, and this he proceed- from another road which have defects, visible ed to do. He stood on the east side of the or discernible by ordinary examination, it track as the cars were moving north at a must either remedy such defects, or refuse to slow gait. It was dark, and plaintiff had a take them. This duty of examining foreign lantern. When the cars to be coupled were cars must obviously be performed before such within a few feet of each other, he stepped cars are placed in trains upon the defendant's between them for the purpose of inserting road, or furnished to its employes, for transthe link which was in the bumper or draw-portation. When so furnished, the employes head of the stationary car. When the cars whose duty it is to manage the trains have a were three or four feet apart, he discovered right to assume that, so far as ordinary care that the bumper of the moving car was lower can accomplish it, the cars are equipped with than the bumper of the stationary car. He safe and suitable appliances for the discharge testified that he thought, by raising the link, it would enter the bumper of the stationary He took hold of the link with his left hand to raise it up, but found it would not

car.

'Reversing 37 Hun, 642, mem.

Amasa J. Parker, for appellant. Hamilton Harris, for respondent.

of their duty, and that they are not to be exposed to risk or danger through the negligence of their employer. The defect complained of in this case was obvious and discernible to the most ordinary inspection, and could have been easily remedied. It is ar

in good order; and, unless the proof showed (which it did not) that plaintiff himself was in some way responsible for that condition of the car, the negligence of the defendant was established.

gued by the defendant that it had fulfilled its | car, and permitted the dead-woods to come duty when it had furnished for the use of its together. The defective bumper was thus employes crooked links, which could be used | shown to have been the proximate cause of in coupling together cars upon which the the accident. It was literally the causa bumpers were of different heights. We do causans. Its immediate effect was to pernot think that in this case that fulfilled the mit the dead-woods of the two cars to come measure of defendant's obligation. It could together, and the plaintiff was from that not be so held, unless it was the duty of the cause exposed to a danger not within the orplaintiff to examine and inspect the cars to dinary risks of his employment. This result ascertain whether the coupling appliances was traceable directly to the defendant's failwere in proper condition. The duty of ex-ure to provide the moving car with bumpers amination, like the duty of furnishing proper machinery and appliances, in the first instance rests upon the master. Fuller v. Jewett, 80 N. Y. 46; Gottlieb v. Railroad Co., supra. And the degree of vigilance required from a railroad corporation in this respect is measured by the danger to be apprehended and avoided. Ellis v. Railroad Co., 95 N. Y. 546; Salters v. Canal Co., 3 Hun, 338. While, in the case of corporations, the performance of this duty must be committed to employes, there is no presumption that it rests upon any particular individual. It is not within the apparent scope of a brakeman's duty, and does not necessarily rest upon him. In the absence of all evidence upon the subject, we cannot, therefore, presume that the examination and inspection of the particular cars in question had been committed to the plaintiff; and, unless it had, he had a right to assume that the master's duty had been performed by those having it in charge, and that the coupling appliances upon the cars were adequate to the performance of his work without ex-duced, as it was, to some extent, by defendtraordinary risk or danger.

The question as to the plaintiff's contributory negligence was, I think, one of fact for the jury. He testified that, when the cars were four or five feet apart, he saw that the bumper of the moving car was lower than the bumper of the stationary car. It does not appear that he observed that it would pass under the bumper of the stationary car, or that there was any danger that the dead-woods would come together. On the contrary, he appears to have thought that the coupling could be made with the straight link that was in the draw-head. He had a right to assume that fact, and that the coupling appliances were in good order. It was only at the moment that the cars were about to collide that he discovered his error. The court cannot affirm that for such an error of judgment, in

All concur, except FOLLETT, C. J., and POTTER, J., dissenting, and HAIGHT, J., not voting.

ant's neglect, he is to be held to have been It is further contended by defendant that careless. Under such circumstances, when the accident was one of the ordinary risks of the whole transaction is the occurrence of a plaintiff's employment, and was liable to moment, a man is not to be held responsible happen in coupling any cars. Some evidence if he errs as to the estimate of the danger to which our attention is called, given by that confronts him. If he acts the part of a plaintiff on his cross-examination, standing prudent man, willing to and intending to alone, would give some color to this claim, perform the duty to which he has been asbut, read in connection with the other testi- signed, he has done all that the law demands mony, shows that it is only when the cars are of him; and whether he acted such a part unpropelled against each other with great force der the circumstances of this case was for the that the dead-woods are liable to come to- jury to determine. The order of the general gether, and thus endanger the brakeman mak-term should be reversed, and a new trial ing the coupling. The evidence is that when granted, with costs to abide event. the moving cars are backed upon the stationary car at a slow rate of speed, or at a speed ordinarily used in making couplings, the bumpers or draw-heads will take the whole shock, and the dead-woods will not meet, but there will be a space between them of from two to eight inches. Doubtless, the danger of injury arising from the engineer's backing the train upon the stationary car with great force is a risk which the brakeman must assume, and for which the corporation would not be responsible; but that was not the risk to which the plaintiff was exposed. The evidence is that the train was backing up slowly, and at a rate of speed that would not have brought the dead-woods in contact if the bumper had been in order. Because the bumper of the moving car was defective, and hung lower than it should have done, it passed under the bumper of the stationary

(116 N. Y. 61) MCGOVERN et al. v. MATTISON et al. (Court of Appeals of New York, Second Division. Oct. 8, 1889.)

PARTNERSHIP-LIABILITY TO THIRD PERSONS. 1. Defendants agreed with a third person that they would indorse his notes for a certain amount, tion thereof, they were to have an interest in the to be used in carrying on a store. In consideragoods in the store to the amount of their indorsement, and also a certain share of the net profits of the business. In case the venture proved a loss, a sufficient amount of the goods should be turned over to them to secure them from liability on their indorsement. Held, that the defendants, having a proprietary interest in the business and its profits, were liable as partners for goods purchased for

the business.

2. A stipulation that defendants should not be

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