Supreme Court, January, 1918. [Vol. 102. right to sue is Princess Thurn and Taxis v. Moffitt (1914, 31 Times L. R., 24), where Sargent, J., held that the subject of an enemy State who was registered under the Aliens Restriction Act of 1914 as an alien and subject of an enemy State, is entitled to sue in the King's Courts. This decision is, in our opinion, clearly right. Such an alien is resident here by tacit permission of the Crown (Porter v. Freudenberg, L. R. 1915, 1 K. B., 857, 868). This man's position as alien enemy is quite clear upon the authorities. The plaintiff is in protection, and he is entitled to enforce any civil rights he may have in this country. As a prisoner of war his position, upon the authorities, is quite clear. He is in no worse position than any other individual who is in custody for an offense. Therefore, in whatever way his position is considered, he is entitled, upon the authorities, to maintain an action (Schaffenius v. Goldberg, L. R. 1916, 1 K. B. 284, 303)." Vice-Chancellor Lane, of New Jersey, wrote as follows: "The modern trend is to discourage interference with property rights, whether of friends or enemies, in time of war, except so far as may be necessary to effectively accomplish the objects of the To shut the door of the court in the face of an alien enemy resident here would be a distinct violation of not only the spirit but the letter of this proclamation." Posselt v. D'Espard, 100 Atl. Repr. 893. By The Hague Convention it was forbidden " to declare abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile parties." 36 U. S. Stat. at Large, pt. 2, 227. The vice-chancellor of New Jersey, above quoted, stated obiter that an alien enemy domiciled in his own country should be enabled to sue here as well as the alien resident. The dictum is founded on the liberal terms of the proclamation. That phase of the ques war. Misc.] * ** Supreme Court, January, 1918. * tion, however, is not material here, and it has been otherwise decided by me in this court (Norddeutsche Ins. Co. of Hamburg, Germany, v. John L. Dudley, Jr., Co., N. Y. Law Journal, January 11, 1918) on the authority of Rothbarth v. Herzfeld, decided by the Appellate Division and reported in 179 App. Div. 865. And on the same subject the Canadian court wrote as follows: "I adopt the opinion of Kent, C. J., in the case of Clarke v. Morey (10 Johnson, 68). In this judgment it is said that the result would be otherwise if the foreigner resided in the enemy country. The reason of this rule is founded upon this, that our courts in time of war cannot enforce the execution of contracts, the effect of which would be to aid the enemy. If the judgment condemns the British citizen to pay it, there is a presumption that this sum will aid the enemy. But this presumption does not exist in the case of a foreigner dwelling in our country; there would then be a presumption that the sum recovered would aid our own country." Viola v. Mackenzie Mann & Co., 24 Dom. L. R. 208. While I should be inclined to hold that the plaintiff is entitled to maintain her action on the ground that within the purview of the act she is not an alien enemy engaged in trade subject to suspension by the federal government I prefer to deny the motion on the broad ground that the resident subjects of an enemy nation are entitled to invoke the process of our courts so long as they are guilty of no act inconsistent with the temporary allegiance which they hold for this government. Motion denied. Supreme Court, January, 1918. [Vol. 102. Matter of the Application of CAROLINE HURRY, EDWARD TEMPLE HURRY and WILLIAM A. BRACKENRIDGE, as Trustees under the Last Will and Testament of WILLIAM HURRY, Deceased, for the Guidance and Instruction of the Court as to Their Duties under the Will of Said Deceased. (Supreme Court, New York Special Term, January, 1918.) Wills construction of- trusts - taxes - real property. In an action for the construction of a will held, that the entire trust fund created thereby should be treated as a single fund and that all taxes on and carrying charges of certain real estate with a valuable building thereon, which by reason of a change in the character of the neighborhood had greatly decreased both in rental and fee value, were not properly chargeable against the corpus of the trust fund but should be paid out of the gross income thereof from whatever source received. MOTION by the petitioners, Caroline Hurry, Edward Temple Hurry and William A. Brackenridge, as trustees under the last will and testament of William Hurry, deceased: That this court determine and adjudge whether under the terms and provisions of the will of William Hurry, deceased, and under the intention of the testator to be derived therefrom and under all the facts and circumstances, it is the duty of said trustees to sell the said Sixth avenue property for the best price obtainable therefor and out of the proceeds thereof to pay all the expenses of said property aforesaid, from the month of February, 1915, to the date of the completion of said sale, thereby restoring to said estate so much of the income as has been or may be used for such expenses, to be distributed to the beneficiaries under said trusts of said will. That this court determine and adjudge whether Misc.] Supreme Court, January, 1918. under the terms and provisions of the will of William Hurry, deceased, and under the intention of the testator to be derived therefrom, and under the facts and circumstances hereinbefore stated, whether it is the duty of said trustees to raise by mortgage from time to time on said Sixth avenue property a sufficient sum or sums to pay all the expenses of said property aforesaid from the month of February, 1915, to the present time, thereby restoring to said estate so much of the income as has been used for such expenses to be distributed to the beneficiaries under said trusts of said will, and also to pay all future expenses of said property until the rental or income therefrom is sufficient to provide for such expenses. That this court determine and adjudge whether or not under the terms and provisions of said will of William Hurry, deceased, or under the intention of the testator to be derived therefrom and under the facts and circumstances hereinabove stated, it is the duty of the said trustees, or whether they can legally pay the necessary expenses of the said Sixth avenue real estate from the corpus of the trust in so far as the income from said Sixth avenue real estate has not been sufficient to pay such expenses. On August 2, 1893, William Hurry died leaving a last will and testament which was admitted to probate by a surrogate of New York county on November 2, 1893. Included in the large amount of real and personal property possessed by him at the time of his death were the following described premises: "All those certain premises situated in the City, County and State of New York, and known as numbers 339 and 341 Sixth avenue and 105 West 21st street, and bounded and described as follows: Beginning at the northwesterly corner of Sixth avenue and Twentyfirst street, running thence northerly along the west Supreme Court, January, 1918. [Vol. 102. erly side of Sixth avenue, fifty-two feet six inches to the centre of the party wall between this property and number 343 Sixth avenue, thence westerly through the centre of said party wall and on a line in continuance thereof 85 feet, thence southerly and through the centre of a party wall between this property and number 107 West 21st street, fifty-two feet six inches to the northerly side of 21st street, and thence easterly along the northerly side of 21st street, 85 feet to the Sixth avenue, at the place of beginning, be the said several dimensions more or less." That by the said last will and testament the residue of his real and personal property, including the premises above described, was devised to his executors, the petitioners herein, in ten individual shares, in trust as to each of said shares, to receive the income therefrom, and after the payment of taxes, assessments, and carrying charges, as well as the expenses incidental to the execution of the trust, to pay over the remainder of the income from each share to the beneficiaries specified. The petitioners as such executors and trustees executed and delivered to Samuel Adams and John Flanagan a lease of said premises for a term of twenty-one years to commence on July 1, 1902, for the gross rental of $20,000 per year, with the option of a further term of ten years, provided said lessees should have constructed upon said premises a building as therein provided. Said lease was assigned to the Adams Dry Goods Company and subsequently to the O'Neill-Adams Company, which continued to occupy said premises and pay the rent therefor down to the month of February, 1915. A substantial six story, modern fireproof building, suitable for dry goods business was erected upon the |