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ently testatur's intention that the lands in-, comparatively simple by keeping in mind volved here should be held, owned, and en- the various estates and interests created in joyed as lands under the various estates cre- the lands by the will. In a general way, the ated therein, until title became absolute, un- course should be as follows: The costs and der the terms of the will. While, as we have expenses of the proceeding should be paid out said, the courts by virtue of the compelling of the funds, since such costs and expenses force of some necessity have the power to are incurred for the benefit of all persons encroach upon the intention of the testator, interested therein. A trust thereupon of in order that the estate may be preserved necessity arises involving the residue of the and the interests of the beneficiaries protect-fund. Such trust should be administered ed, such power should not be exercised be- and executed under the guidance and superyond the scope of influence of such neces- vision of the court, and in so doing the tessity. The separation of the life estates from tator's intent should be carried out as nearthe estates in remainder by estimating the ly as possible. To that end, the net income values of the former and paying such values should be paid to the widow during her life. to the life tenants is not required here by the If, at the decease of the widow, the sons are exigencies of the situation. To do so would living, the net income from one-half of the constitute an unnecessary and therefore un- fund should be paid to each son during the authorized infringement upon the testator's remaining portion of his life. . There can be intention. The payment to the life tenants a final distribution of one half the fund on of the estimated values of their life estates the decease of a son, the widow having thereand allowing the residue to accumulate at tofore died, and of the other half under like interest for the benefit of the contingent circumstances. On the decease of a son, a owners would doubtless accomplish the le- child or children having been born alive to gal equivalent of holding the entire fund in him, the widow having theretofore died, distrust as hereinafter indicated. It is not tribution of one-half the fund should be to likely, however, that by the former method such child or children or their heirs or legathe practical equivalent of the latter would tees. On the decease of the other son, under be attained. It is within the power of the like circumstances, there should be a distri. court, in its discretion, to dispose of the fund bution of the remaining one-half of the fund. in the former method. 16 Cyc. 639 and 616; On the decease of a son, no child having been 30 Cyc. 291; Swain v. Hardin, 64 Ind. 85; born to him, the widow having theretofore Russel v. Russel, 48 Ind. 456; Datesman's died, and the brother surviving, distribution Appeal, 127 Pa. 348, 17 Atl. 1086, 1100. Un- of half of the fund should be to the heirs der the special circumstances of this case, or legatees of the deceased son, to the heirs however, we do not believe that such discre or legatees of the widow, and to the survivtion should be exercised.

ing son. On the decease of the other son, In Ruggles v. Tyson, supra, under facts under like circumstances, distribution should similar to those involved here, it is expressly be as aforesaid of the other one-half of the held, after a full examination of the decided fund, except of course, to his heirs or legacases, that the court, in the absence of some tees instead of to him. The decease of a son overpowering necessity, held not to exist within the lifetime of the widow would not there and not shown to exist here, has no change the course of distribution from as power to direct the separation of the life es- above indicated; it would simply postpone tate from the estate in remainder by estimat- it until the decease of the widow. These ing the value of the former, and paying such general observations are made for the guidvalue to the life tenant. As is said there, ance of the court in entering its decree. such a course would substitute an expectancy

The judgment is reversed, with instrucfor a certainty. The remaindermen here, on tions to the court to restate its conclusion of the termination of the life estates, the con law in harmony with this opinion, and to detingency having happened, are entitled, under cree accordingly. the will, to the undiminished body of the es

(218 N. Y. 589) tate. Likewise, the lands being transformed WADSWORTH et al. v. HINCHCLIFF et al. into money, they are entitled to the undi

(Court of Appeals of New York. July 11, minished body of the fund. The exigency of

1916.) the situation loses its force on the conversion WILLS 430-PROBATE-VALIDITY-METHOD of the real estate into personalty. To meet OF ATTACK. such exigency fully, a separation of the life that a decree admitting to probate a will of real

Under Code Civ. Proc. $ 2625, providing estates from the estates in remainder is not or personal property, or both, is conclusive as required. As to whether the remainderman an adjudication of the validity of the will, exwould receive the equivalent of the body of cept in an action in the Supreme Court under

section 2653a, providing for determining the the fund, by the separation of the life estates validity of a will by jury trial in the Supreme as indicated, and by allowing interest to ac-Court, next of kin cannot have partition as procumulate on the residue, is speculative.

vided for by section 1537, unless he attacks The problem of handling the fund and its the validity of the probate under section 2653a.

[Ed. Note.

For other cases, see Wills, Cent. final distribution, while complex, is rendered | Dig. & 919; Dec. Dig. 430.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from Supreme Court, Appellate Di- Until the amendment made to the Code by vision, Fourth Department.

chapter 578 of the Laws of 1910, a decree adAction by Zouve J. Wadsworth and oth- mitting to probate a will of real property esers against E. Elizabeth Hinchcliff and oth- tablished presumptively only the matters de ers. From a judgment of the Appellate Di- termined by the surrogate. Section 2627 of vision (163 App. Div. 266, 148 N. Y. Supp. Code of 1909; Hoyt v. Hoyt, 112 N. Y. 493, 798), affirming judgment of the Trial Term 504, 23 N. E. 402. Under the statutes as dismissing the complaint, plaintiffs appeal. they stood prior to the amendments of 1910, Affirmed.

it was competent for a party in an action for Henry F. & James Coupe, of Utica, for ap- partition of real property, brought under secpellants. William A. Matteson, of Utica, fortion 1537, to attack the validity of a will respondent Hinchcliff. George E. Dennison, even though it had been already admitted to of Utica, for respondents Mather and Com- probate in the Surrogate's Court. By chap stock, executors.

ter 578 of the Laws of 1910 the Code was

so amended that sections 2626 and 2627 of SEABURY, J. This action was brought to section 2625 of the Code was adopted. Sec

the Code of 1909 were expressly repealed and partition real estate and to set aside the tion 2625 as it stood in 1913 provided as follast will and testament of Frank G. Wads

lows: worth, deceased. The testator died April 10,

"A decree admitting a will of real or person1913, seised of real estate. In 1912 he made al property, or both, to probate, is conclusive his last will under the provisions of which, as an adjudication of the validity of the will, after providing for certain legacies, he gave and of the question determined under section all the residue of his property, real and per-erwise provided.

2624 of this act, except as in this chapter othsonal, to E. Elizabeth Hinchcliff, and appointed Louis R. Mather and Willard G.

The exception referred to in the last line Comstock executors. Proceedings were insti- of this section relates to section 2653a of tuted for the probate of said will before the the Code which permits a party to bring an surrogate of Oneida county. The plaintiffs action under that section to set aside a will in this action filed answers in the Surrogate's and confers upon such party the right to a Court objecting to the probate of said will jury trial in the Supreme Court in that acon the ground of want of capacity, undue in- tion. Under the statute as amended the de fluence, and fraud. After a hearing duly had cree of the surrogate admitting the will to a decree was made by the surrogate over- probate is conclusive, whether the will deals ruling the objections set up in the answer with real or personal property, except that and admitting said will to probate. This de- in either case the issue as to the validity of cree was made June 30, 1913. On August 13, the will could have been tried in an action 1913, the present action was commenced under section 2653a of the Code, as that secThe plaintiffs are the next of kin of the tes- tion stood at the time this controversy arose. tator. The complaint alleges that the writ. In effecting this change in the law the Legising admitted to probate is not the last will lature endeavored to simplify the practice and testament of the testator and alleges relating to the probate of wills, and to pre that the testator was of unsound mind. The vent the confusion that had arisen under the trial court held that section 2625 of the Code former practice by reason of rehearings. Matmade the decree of the Surrogate's Court ad- ter of Fischer, 153 App. Div. 603, 138 N. Y. mitting the will to probate conclusive, and Supp. 917; Bowen v. Sweeney, 89 Hun, 359, that, therefore, the plaintiffs could not suc- 363, 35 N. Y. Supp. 400. ceed in their action for a partition of the

The plaintiffs claim the right to maintain real estate. The trial court, however, of the action in partition under section 1537 of fered to allow the plaintiffs to amend their the Code with the right to establish that, at complaint so as to bring the action within the time the apparent devise in said will and section 2653a of the Code and to permit the the apparent grant in said deed were made, plaintiffs to proceed under that section. The the deceased was of unsound mind, and menplaintiffs refused to avail themselves of the tally incapable of making a will or deed. permission to amend the complaint granted and that the pretended execution of the same by the trial justice, and insisted upon their were obtained by fraud, coercion, and undue right to maintain the action as an action for influence, and are void. Section 1537 of the partition. The trial court thereupon dis-Code provides as follows: missed the complaint. The action of the trial

“A person claiming to be entitled, as a joint court in dismissing the complaint was af- his being an heir of a person who died, holding

tenant or a tenant in common, by reason of firmed at the Appellate Division.

and in possession of real property, may mainPrior to the amendment of the statute in tain an action for the partition thereof, wheth1910, a decree admitting to probate a will of er he is in or out of possession, notwithstanding personal property was conclusive as an ad-cedent, and possession under such a devise.

an apparent devise thereof to another by the dejudication upon all questions determined ex- But in such an action, the plaintiff must allege cept in an action brought under section and establish that the apparent devise is void." 2653a, to determine the validity or invalidity In so far as the plaintiffs seek to attack of such a will. Section 2626 of Code of 1909. the effect of the decree of the Surrogate's

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Court admitting the will to probate, they could, as the statute stood when this action was commenced, do so only in an action contemplated by Section 2653a. That section expressly provides for determining the validity of the will by a trial by jury in the Supreme Court. The method thus prescribed is exclusive. If the parties do not avail themselves of the method sanctioned by law, they Cannot complain that the decree of the Surrogate is conclusive. In discussing this question at the Appellate Division, Mr. Presiding Justice Kruse said: “If parties neglect to avail themselves of that remedy (section 2653a), I do not see how it can be justly said that the Legislature has failed to preserve the right of trial by jury. If an heir at law desires to challenge the effect of a decree of the Surrogate's Court admitting the will to probate, I think he must resort to an action under section 2653a, otherwise he is concluded.” In thus determining the case, the learned court below did so, on the assumption and without so deciding that the constitutional right of trial by jury applies to a judicial contest by an heir at law of an apparent devise of real estate. Upon the assumption upon which the Court below discussed the case, we think the conclusion reached that an heir at law is limited to attacking the effect of the surrogate's decree to an action under Section 2653a is correct. The decree of the surrogate admitting the will to probate is expressly ueclared by section 2625 of the Code of Civil Procedure to be conclusive except as otherwise provided in that chapter of the Code. Section 2653a is included in the same chapter and provides for determining the validity of the will in an action in the Supreme Court and authorizes a jury trial in such an action. The present action is not such an action as is contemplated by section 2653a of the Code. If the decree of

the surrogate admitting the will to probate ||

is conclusive upon the question of the validity of the will it becomes immaterial whether the deed is void or not, since under the will the plaintiffs cannot take title to the property as heirs at law. The decree of the surrogate admitting the will to probate was conclusive, except in so far as it was subject to attack under Section 2653a. That section prescribed the only method sanctioned by law in which the plaintiffs could challenge that decree and try the issues raised in reference to it before a jury. In prescribing a method by which a jury trial might be obtained, any right to such a trial which the plaintiffs may have had was fully recognized. They could not refuse to avail themselves of the method sanctioned by law in which the issues in reference to the validity of the will could be tried by a jury and at the same time complain that they were denied the right to a trial by jury. Under this construction the right to a jury trial in an action of partition brought under section 1537 of the Code is in no way im

paired, but the validity of a will which has been admitted to probate by the Surrogate's Court is not open to attack in such an action. If the plaintiffs seek to attack the validity of the will after it has been admitted to probate they are, under the amendment of 1910, limited to bringing an action under section 2653a. In 1914 the Legislature revised the practice of the Surrogate's Court. Under section 2538 of the Code provision is made for a jury trial of the question of the validity of a will provided a party demands such a trial, either in the Surrogate's Court or in the Supreme Court. Laws of 1914, c. 443. Before the enactment of this last-mentioned statute and since the amendment of 1910 the right to a jury trial in cases where it was sanctioned by law was recognized, but such a trial could only be had in an action brought under section 2653a of the Code. The present action not being brought under section 2653a, and the plaintiffs having refused the opportunity to amend their complaint so that an action of this character might be brought, the complaint was properly dismissed. It follows that the judgment appealed from should be affirmed, with costs.

WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, and POUND, J.J., concur.

Judgment affirmed.

(218 N. Y. 737) SPITZER. v. HEALY et al.

(Court of Appeals of New York. July 11, 1916.)

1. APPEAL AND ERROR 3-1083(1)—DECISIONS

TEVIEWABLE – DECISION OF INTERMEDIATE

COURT-LAW OR FACT.

The Court of Appeals cannot review an Ap

pellate Division order, made prior to September o 14, when the amendment to Code Civ. Proc. § 1346, took effect, reversing a judgment for plaintiff and ordering a new trial, unless it shows whether the reversal was upon the law or facts, or whether the facts as found by the verdict were approved.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4273—4277, 4345, 4346; Dec. Dig. 3-1083(1).]

2. APPEAL AND ERROR 3-2 — CONSTRUCTION OF STATUTE—RETROACTIVE OPERATION. Code Civ. Proc. § 1346, effective September 1, 1914, providing. that appeals may be taken to the Appellate Division upon questions of law or fact or both, does not apply to Appellate Division judgments rendered prior to that date. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3–7, 1882, 2421; Dec. Dig. 3-2.] Appeal from Supreme Court, Appellate Division, First Department. Action by Flora Spitzer, as administratrix of estate of Joseph Spitzer, deceased, against A. Augustus Healy and others. From an order of the Appellate Division (159 App. Div. 505, 144 N. Y. Supp. 828), reversing a judgment for plaintiff and granting a new trial, she appeals. Appeal dismissed.

&=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Moses Feltenstein and Morris Cukor, both of New York City, for appellant. James J. Mahoney and Robert B. Livingston, both of New York City, for respondents.

PER CURIAM. This action was brought to recover damages by reason of the death of plaintiff's intestate resulting, as alleged, from the negligence of defendants. Upon the trial the plaintiff recovered a verdict. Defendants moved to set aside the verdict and for a new trial, upon the several grounds enumerated in section 999, Code of Civil Procedure, which motion was denied and an exception granted defendants. From the judgment entered upon the verdict of the jury, and the order denying the motion made for a new trial and to set aside the verdict, defendants took an appeal to the Appellate Division. The latter court on the 19th of December, 1913, made an order in the following language: “Ordered and adjudged that the judgment and order so appealed from be and the same are hereby reversed and a new trial granted, with costs to the appellant to abide the event.” [1, 2] The order of reversal does not state whether the reversal was upon the law or upon the facts, or whether the facts as found by the verdict. were affirmed or approved by the court. It follows that this Court has no jurisdiction to review the order appealed from. Schryer v. Fenton, 162 N. Y. 444, 56 N. E. 997. While the amendment to section 1346 of the Code, which took effect September 1, 1914, has effected a change in the practice theretofore existing, such amendment does not apply to judgments of the Appellate Division rendered as was the judgment in question prior to September 1, 1914. Middleton v. Whitridge, 213 N. Y. 499, 505, 108 N. E. 192. The only remedy of plaintiff is a new trial pursuant to the Order of the Appellate Division. The appeal must be dismissed, with costs.

WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, J.J., concur.

Appeal dismissed.

(218 N. Y. 513) In re LEONARD.

MAJOR et al. V. LEONARD et al. In re McCAHILL’S WILL. (Court of Appeals of New York. July 11, 1916.)

1. WILLS @-671–CONSTRUCTION.—NATURE OF ESTATE CREATED. A will directing the conversion of the estate into money and the payment and distribution thereof among certain persons, but directing that only the interest on certain shares shall be paid to them during life, and upon their death that the principal shall be divided among designated persons creates a trust for life, and does not vest an absolute estate in such legatees. [Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1577, 1578, 1586; Dec. Dig. 3-671.]

2. WILLS 6-671—ConstEUCTION.—NATURE OF ESTATE CREATED. The specific use of the word “trust” is not essential to the creation of a trust by will, but the question whether, a trust has been created is to be determined by a consideration of the substance of the provision and of the rights and duties thereby imposed. [Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1577, 1578, 1586; Dec. Dig. 3-671.]

3. WILLs <>524(6)—CoNSTRUCTION.—NATURE OF ESTATE CREATED. Under a will bequeathing to a niece a share of the estate for life, the same upon her death without issue to be divided among her brothers and sisters, or, should she leave surviving no brothers or sisters, then her share to revert, to the general fund of the estate, to be divided equally among the remaining, nephews and nieces of testator, upon the death of such niece without issue, brothers, or sisters, her share went to the nephews and nieces of testator living at the time of her decease. [Ed. Note.—For other cases, see Wills, Cent. Dig. § 1122; Dec. Dig. 3-524(6).] 4. JUDGMENT 3-735—CoNCLUSIVENESS—CONSTRUCTION OF WILL–BURDEN OF SHOWING. Judgment in a proceeding by executors, asking for instructions as to the distribution of the estate, in which the construction of a particular clause does not appear to have been determined, held not a prior adjudication of the distribution of the share of one of such heirs, who has since died intestate, under the rule that the burden of showing prior adjudication rests on the party claiming it. [Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1263, 1265; Dec. Dig. 3-735.]

Appeal from Supreme Court, Appellate Division, First Department.

Proceeding for the distribution of a share of the estate of Bryan McCahill, deceased. From an order of the Appellate Division (168 App. Div. 12, 153 N. Y. Supp. 852), modifying a decree of the surrogate, Construing the will of said deceased and directing distribution, Katherine Major and others appeal. Affirmed.

Charles Meyers, of New York City, for appellants. Frederić N. Gilbert, of New York City, for respondents Leonard and others. Albert Ritchie, of New York City, for respondent McCahill.

HISCOCK, J. Bryan McCahill died, leaving him surviving a widow, no children, or descendants of Children, and 16 nephews and nieces. He left a will which, in addition to making certain specific bequests, contained clauses which are of varying importance in the disposition of the questions presented on this appeal. One of these provided as follows:

“Second. I give and bequeath unto my wife Bridget McCahill the house and lot owned by me known as number one hundred and forty-five East Forty-Ninth street, in the city of New York, together with all the household furniture, * * * during the natural life of said Bridget McCahill, and on her decease the proceeds arising on the sale of said house and furniture to be divided equally between my nephews and nieces hereinafter named, the survivor or survivors of them. I also give and bequeath to my wife Bridget McCahill an annuity of one

6- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

thousand two hundred dollars per annum to beond, whether such disposition is now conpaid by my executors, quarter-yearly in ad-trolled either by two decrees in Surrogate's vance commencing at my decease.

Court or a judgment of the Supreme Court as The ninth clause provided:

binding adjudications, even though we should "I give, devise and bequeath to my executors disagree with the conclusions embodied in and survivor or survivors of them, the sum of said decrees or judgment. fifteen hundred dollars per annum during the lifetime of my executors James Brady and [1] Taking up these questions in the order Thomas J. McCahill and the survivor of them, stated, the first inquiry is as to the nature of in trust nevertheless for them to pay for the the interest which Annie McMahon took in education of young men who wish to study for the Catholic priesthood, such young men to be the share created for her benefit by said selected by my executors."

clause, it being urged by some of the appelThe eleventh clause, most important of all, lants that she took an absolute and unqualiprovided:

fied interest which permitted her to dispose "Immediately after my decease, I direct that of the same by will, while other parties inall my real and personal estate be sold at pub- sist that her only interest was under a trust lic auction by my executors hereinafter named of the share which directed the interest thereand after paying the legacies above mentioned, of to be paid to her for life. We do not think the proceeds thereof be divided equally between that there can be any serious dispute over my nephews and nieces, etc., Ellen McCahill and Mary McCahill, the children of my brother this question. While the first words of the James, deceased; Mary McMahon, Kate McMa-eleventh clause do by themselves import a hon, Margaret McMahon, Philip McMahon, Jr., division amongst the nephews and nieces, in. Annie McMahon and Ellen McMahon, children of my sister Margaret McMahon; Thomas J. cluding Annie McMahon, of shares with abMcCahill, Margaret T. Mullane, Bernard F. Mc-solute ownership, these words are so intiCahill, Terrence J. McCahill and Ellen McCa-mately connected with subsequent ones aphill, children of my brother Terrence, deceased; James Brady and Terrence Brady, children of plicable to the cases of the nieces that all my sister Rose Brady; James McCahill, son are to be considered as a single provision in of my brother Patrick, deceased, in equal shares, determining the interest taken by a niece, share and share alike. My nephew Terrence and there is no opportunity for the applicaBrady, being now absent and should he remain so absent for the next five years his share is tion of the rule which declares that, where to go to his brother James Brady. The shares, an absolute estate has been given under one however, of my, nieces, Ellen McCahill, now complete provision of a will, it will not be Ellen Leonard; Mary McCahill, now Mary Curtin, Mary McMahon, now Mary Dorian;' Kate regarded as cut down by another and subMcMahon, Margaret McMahon, Annie McMa- sequent one unless the intent so to do is very hon and Ellen McMahon, I direct my executors clear. Here there is not one provision giyto invest in bond and mortgage, and the interesting an absolute estate and another one purthereon of the several shares to be paid them semi-annually, and in case of any of the above porting to cut it down, but various directions named nieces dying without issue, then her share embraced in the same clause, and all of shall be divided equally among her brothers which are to be construed together as one and sisters, and in case of the death of any of them leaving issue, the interest on her share provision in determining the interest of a shall be divided equally between her said chil- niece. Thus construed we have no hesitation dren, and upon their attaining the age of twen- in determining that the provision for the ty-one years the principal shall in the same various nieces named in this clause did not

. Should any of my nieces, however, die without give them an absolute interest in the shares leaving issue or brothers or sisters, then her created for them respectively, but simply share is to revert to the general fund of my es created trusts for life with the principal to tate, to be divided equally among my remaining nephews and nieces. I direct, and it is my be disposed of at death as in said clause will, however, that my nephew, Bryan McCahill, provided. shall not receive any share of my estate, real

[2] It is true that the specific word "trust" or personal, at my decease, he having already received what I consider his just share of the is not employed in dealing with these shares, same."

but it has often been said that this is not After the death of the widow, one of the essential to the creation of a trust, and that 7 nieces mentioned in the will, Annie Mc- the question whether a trust has been creatMahon, died leaving her surviving no issue ed by a given provision or not is to be deteror brothers or sisters, but leaving her sur-mined by a consideration of the substance of viving descendants of brothers and sisters such provision and of the steps and duties who had died after the testator, and certain which are imposed thereby. When we apply of the 16 nephews and nieces mentioned in this test to the clause in question, it is very the testator's will, and also issue of some of evident that the share of Annie McMahon said nephews and nieces respectively who had was bequeathed to the persons designated as died intermediate the deaths of the testator executors, in trust to hold and invest and pay and of said Annie McMahon. Under these the income to the beneficiary during life. conditions the two questions are presented: [3] Adopting this theory, we then come to First, as to the disposition of the share creat a more difficult question involving the dised for the benefit of said Annie McMahon position of said share on the death of said under the eleventh clause of her uncle's will life beneficiary. Both the surrogate and the as an original and open question; and, sec- Appellate Division took the view, with which

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