dependent upon the same question,
are not parties to the action. Abbott
v. James.
673

2. B. died, leaving no parent, child
or descendant him surviving, but
leaving a widow and certain heirs.
at-law. By his will he gave to his
wife the use of all his estate dur-
ing her life or widowhood, the
remainder to three charitable socie-
ties named. Then followed this
clause: "Should any of the prop-
erty hereby devised to said three
societies, upon the death or remar
riage of my said wife, consist of
real estate, I direct my executor
herein named to sell the same and
divide the proceeds between the
said three societies." Plaintiff, as
administrator, with the will an-
nexed, after the death of the
widow, contracted to sell the real
estate to defendant, who refused
to complete the purchase. In an
action to compel specific perform
ance, the complaint alleged that B
left no personal estate, but died
seized of the real estate in ques-
tion; defendant demurred. Held,
that, as under the statute (Chap.
360, Laws of 1860), the testator
could not give to the charitable
societies more than one-half of his
property, the other half was not
disposed of by the will; that the
question as to whether the failure
of the attempted legacies beyond
one-half of the estate affected or
destroyed the power of sale was of
so doubtful a nature it should not
be determined in an action wherein
the heirs were not parties, and so
would not be bound by the deci-
sion; that the question was not
purely one of law, for while the
facts were admitted by the demur-
rer and so settled in this case,
the
heirs might show them to be en-
tirely different, and in case it ap-
peared that there was personal
property sufficient
pay the
shares the societies could lawfully
take without resort to the realty
this might affect, if it did not con-
trol, the decision.

to

Id.

by B. to the Board of Claims these
facts appeared. Prior to 1840
there was a sewer in J. street in
the city of U., constructed by or
under the authority of the city,
into which the owners of lots ad-
joining the street drained their
respective lots. In that year the
state constructed a sewer in said
street for the purpose of conduct-
ing the water from a weigh-lock
on the Erie canal, and took up the
old sewer. Those engaged in the
construction of the state sewer re-
quested the adjoining lot owners
to point out places where they de-
sired openings to be left in the
sewer so that their drains could be
connected therewith. In compli-
ance with this request the com-
plainant, who owned an adjoining
lot, pointed out the places for
such openings opposite his lot.
The openings were left accordingly
and through them the claimant
thereafter drained his lot. Since

the construction of the state sewer
there has been no other sewer in
the street or any other means by
which the lots could be drained.
In 1876 the state sewer became ob-
structed by deposits therein caus-
ing the water to set back into the
basement of a store on the claim-
He
ant's premises.
gave the
superintendent of the canal notice
of this occurrence, requesting him
to close the gate at the weigh-lock.
This request was not complied
with, and no action was taken on
the part of the state to repair
the sewer or remove the obstruc-
tions. Thereafter the water from
the sewer again came into the
basement, doing the damage com-
plained of. The board decided
that the claimant was not entitled
to any damages. Held, error;
that the state was bound to use
reasonable care in keeping the
sewer in repair, and in its manage-
ment; and for damages caused by
a neglect to perform this duty it
was properly chargeable. Ballou
V. State.
496

STATE.

Upon hearing of a claim presented

STATUTES.

Chap. 218, Laws of 1839.
Chap. 140, Laws of 1850.
Chap. 252, Laws of 1884.

Chap. 268, Laws of 1886.
Chap. 271, Laws of 1886.
Chap. 310, Laws of 1886.
1 R. S. 601, §§ 9, 10.
See People v. O'Brien, 1.

Chap. 130 U. S. Laws of 1862.
Chap. 318, Laws of 1840.
Chap. 261, Laws of 1841.
Chap. 460, Laws of 1863.

Chap. 585, Laws of 1865, § 5.
Chap. 481, Laws of 1866.
Chap. 317, Laws of 1880.
1 R S. 460, § 36.

See In re McGraw, 66.

Chap. 600, Laws of 1875.

See B. E. S. R. R. Co. v. B. S. R.
R. Co., 132.

Chap. 215, Laws of 1882.
Chap. 26, Laws of 1884.
1 R. S. 727, § 45 et seq.

See Goebel v. Iffla, 170.

1 R. S. 727, § 44.

See Van Brunt v. Van Brunt, 178.
2 R. S. 90, § 45; Id. 92, § 52, et
seq; Id. 116, § 18.

See Butler v. Johnson, 204.

1 R. S. 749, § 4.

See Meyer v. Cahen, 270.

Chap. 550, Laws of 1880.
See Diefenthaler v. Mayor, etc., 331.
Chap. 335, Laws of 1873, § 105.
See Jex v. Mayor, etc., 339.

Chap. 483, Laws of 1885.
Chap. 713, Laws of 1887.

See In re Cager, 343.

Chap. 454, Laws of 1885.
See People ex rel. v. D'Oench, 359.
Chap. 509, Laws of 1860.

Chap. 382, Laws of 1870, § 11.
Chap. 9, Laws of 1872.

See Mayor, etc., v. Tenth National
Bank, 446.

Chap. 153, Laws of 1884.
Chap. 215, Laws of 1885.

See Prentice v. Weston, 460.

2. R. S. 96, § 75.

See Greenwood v. Holbrook, 465.
2 R. S. 87, § 27.
See Smith v. Cornell, 554.

Chap. 279, Laws of 1833.
2 R. S. 136. § 5.
See Siedenbach v. Riley, 560.
2 R. S. 89, § 37.

See Hopkins v. Lott, 577.

Chap. 451, Laws of 1884.
See In re Bd. St. Opening, etc., 581.
Chap 672, Laws of 1886, § 5.
See People ex rel. v. Grant, 584.
Chap. 140, Laws of 1850, §§ 14,

15.

Chap. 833, Laws of 1872.
Chap. 636, Laws of 1881.

1. In an action to recover possession
of property alleged to have been
wrongfully detained, plaintiff
claimed under a bill of sale which
the evidence showed was intended
as a mortgage. The instrument
was not filed as a chattel mortgage.
The property was at the time in
store, and was subsequently levied
on by defendant's intestate by
virtue of an attachment. There
was sufficient evidence to justify a
finding that it never went into
plaintiff's possession prior to the
levy under the attachment. Held,
that as against the attaching cred-
itor the mortgage was void under
the statute (Chap. 279, Laws of
1833); that a mere constructive
possession would not answer the
requirements of the statute, Sie-
denbach v. Riley.

560

2. Also, held, that if the instrument
was intended as a pledge, there
was a similar infirmity in plaintiff's
position, as a pledge could not be-
come operative without delivery to
the pledgee.
Id.

3. Also held, that a similar infirmity
attaches if the instrument was to
be considered as a bill of sale, in
the absence of proof that it was
made in good faith and without
intent to defraud, as the sale not
having been accompanied by im-
mediate delivery and followed by
a continued change of possession
was presumptively fraudulent as
against creditors of the vendor.
(2 R. S. 136, § 5.)

Id.

of by the opinion in the case. Held,
that, as the opinion was thus in-
corporated into the decision, and
as, in the opinion, the surrogate
stated his conclusion to be to dis-
regard such evidence, this was
substantially granting the motion.
Id.

13. Under the Code of Civil Pro-
cedure (S$ 2557-2559, 2570), it is
within the discretion of a surrogate,
upon the settlement of the accounts
of an executor or testamentary
trustee to award costs "payable by
the party personally or out of the
estate or fund as justice requires;"
and while the exercise of this
discretion is so qualified by the
words, as justice requires'
as to authorize the interposition of
the General Term, where there has
been an abuse of discretion and a
violation of justice, it has no other
power of review. In re Selleck. 284

14. On settlement of the accounts of
a testamentary trustee the claim
of an administrator, with the will
annexed, to commissions was re-
jected, and the question as to his
right to commissions reserved until
his accounting as administrator.
Held, no error. Matter of Paton.

480

SUSPENSION OF POWER OF
ALIENATION.

1. M. died leaving eight children,
seven of whom were married and
had children. By her will she
gave the whole of her residuary
estate to her executors, in trust,
to pay over the rents, income
and profits to her children equally
during their natural lives, and after
their decease to their respective
wives or husbands during their
lives or until they should re-
marry. The will then provided :
"If any of my children should
die without issue, or without leav-
ing a husband or wife him or her
surviving, then I give, devise and
bequeath his or her share to the
survivor or survivors of them.
** *If he or she leaves a
husband, him or her surviving,
then I give, devise and bequeath
his or her share to the survivor or

SICKELSVOL. LXVI.

97

2.

3.

*

* *

survivors of my said children
after the decease or re-
marriage of said husband or wife."
The executors were authorized to
sell any of the residuary estate and
invest the proceeds. In an action
for partition, held, that the trust
was valid and there was no un-
lawful suspension of the power of
alienation; that the words husband
and wife, as used in the will, re-
ferred to those living at the death
of the testatrix, and so the limita-
tion as to each part of the devis-
able trust ran for two lives in
being at its creation. Van Brunt
v. Van Brunt.

178

It seems that the power of sale
conferred upon the executors did
not effect an undue suspension of
the power of alienation.

Id.

The residuary clause also provided
that, in case any of the testator's
children should die leaving issue,
"said issue shall represent their
parent per stirpes and not per
capita, and receive their parent's
share of the rents and profits after
the death of their surviving parent
until they became of age, when
their interest shall be given to
them Held, that upon the death
of any child, and of the husband
or wife of that child who was liv-
ing at the death of the testatrix,
the portion or share of such child
vested at once in his or her child-
ren, each one of whom taking his
or her proportion in fee, subject
only to a postponement of pos-
session during his or her minority,
and to the execution of the trust
upon the rents and profits during
that period; and there was, there-
fore, no unlawful suspension of
the power of alienation; that the
fact that the issue of each child
were to take per stirpes does not
make them joint tenants as the
statute fixes how they shall take as
between themselves (1 R. S. 727,
§ 44), and makes them tenants in
common, in the absence of an ex-
press provision for a joint tenancy.
Id.

TAXATION.

See ASSESSMENT AND TAXATION.

TENANTS IN COMMON AND

JOINT TENANTS.

M. died leaving eight children,
seven of whom were married and
had children. By her will she
gave the whole of her residuary
estate to her executors, in trust, to
pay over the rents, income and
profits to her children equally dur-
ing their natural lives, and after
their decease to their respective
wives or husbands during their
lives or until they should remarry.
The will then provided that, in
case any of the testator's children
should die leaving issue, "said
issue shall represent their parent
per stirpes and not per capita, and
receive their parent's share of the
rents and profits after the death of
their surviving parent until they
became of age, when their interest
shall be given to them." Held,
that upon the death of any child,
and of the husband or wife of that
child who was living at the death
of the testatrix, the portion or share
of such child vested at once in his
or her children, each one of whom
taking his or her proportion in fee,
subject only to a postponement of
possession during his or her
minority, and to the execution of
the trust upon the rents and prof-
its during that period; and there
was, therefore, no unlawful suspen-
sion of the power of alienation;
that the fact that the issue of each
child were to take per stirpes does
not make them joint tenants as the
statutes fixes how they shall take
as between themselves (1 R. S. 727,
§ 44), and makes them tenants in
common, in the absence of an
express provision for a_joint
tenancy. Van Brunt v. Van Brunt.

TRADE-MARKS.

178

3.

Id.

M. for the purpose of defrauding
his creditors, deeded certain real
estate to G. without consideration,
upon a verbal agreement that the
latter should hold the same for
the benefit of M., and dispose of
the same as he might direct. Sub-
sequently M. procured G. to exe-
cute a mortgage on the premises to
C., plaintiff's intestate, for the
amount of a debt due by M. to her.
The mortgage was delivered by G.
to M. with authority to deliver it
to C., and M. caused it to be re-
corded. He did not himself de-
liver it to C., and the latter died a
few weeks after the mortgage was
so delivered to M. About the
time of receiving the deed, G.,
without consideration, executed
and delivered to M. a deed convey-
ing the premises to his wife M.,
retained it for about two years
after the recording of the mortgage,
and then caused it to be recorded.
In an action to foreclose the mort-

gage, held, the facts justified a find-
ing of delivery and acceptance of
the mortgage; and that the mort-
gage had a preference over the deed.

Id.

4. M., as a witness for defendants,
testified to certain facts, as to
which there was no direct contra-
dictory testimony. This testi-
mony was, however, in conflict
with legal presumptions arising