mortgages made by E. to deceased, made in 1866 and 1867, and a receipt and note made in Feb., 1874. They were excluded. Held, No error. They were not connected with the note of April, 1874, in suit, and were therefore immaterial. They had no legitimate bearing on the issues as to the note in suit, and were therefore properly excluded. Judgment and order affirmed, with costs. Opinion by Hardin, P.J.; Boardman, J., concurs; Follett, J., dis sents. USURY. ESTOPPEL. AP- N. Y. COURT OF APPEALS. Lewis, applt., v. Barton et al., respts. Decided June 7, 1887. Plaintiff advanced $4,500 on a note for $5,000 at nine months, indorsed by defendant B. for accommodation of the makers, which note had its inception on transfer to plaintiff. Plaintiff testified and an extension of time. The answer alleged that B. & Co., the makers of the note, to which the mortgage was collateral, applied to plaintiff for a loan of $5,000 for nine months, and that it was thereupon agreed between them that plaintiff would loan to B. & Co. for the time stated $3,000, and transfer to them three notes he then held against third parties, amounting in the aggregate to $1,500, upon receiving the note of B. & Co. for $5,000 payable in nine months with interest, and that the transaction was consummated as proposed and the note of $5,000 given indorsed by defendant B. and another for the accommodation of the makers, and that the mortgage sought to be foreclosed was a further security for the loan. Plaintiff swore upon the trial that he advanced only $3,000 in money and $1,500 in notes for the $5,000 note and the mortgage. It was not disputed on the trial that said note had its that he took it as business paper, and inception on its transfer to plain tiff, or that defendant B. was an accommodation indorser for the and on the faith of a certificate and affidavit that it was such and that there was no defense of want of consideration, usury or otherwise. Evidence was given show-makers. Plaintiff testified in subing that he had notice that the note was accommodation paper when he took it. Held, That defendant was not estopped from setting up the defense of usury. When an order of reversal does not state that the reversal was made on the facts and the contrary appears from the opinion, the Court of Appeals is bound to presume that the reversal was on questions of law only. This action was brought for the foreclosure of a mortgage given as collateral security for a note. The defenses interposed were usury stance that he bought the note as business paper at the time; that it was such and he took it in reliance upon the credit of the parties to the paper and the mortgage, and also upon the certificate of the makers and indorsers of the note and the affidavit of the mortgagor, executed contemporaneously with the note, that it was business paper and given for a full consideration and was subject to no defense of "want of consid eration, usury or otherwise." Defendants gave evidence tending to show that plaintiff when he took the note and mortgage had notice that the note was accommodation paper. J. E. Roe, for applt. George Yeoman, for respts. Held, That defendant was not estopped from setting up the defense of usury. The usual rule for the construction of pleadings applies as well to an answer of usury as to one setting up any other defense. 75 N. Y., 516. The order of General Term reversed the order of Special Term, but did not state that the reversal was made upon the facts. The contrary appeared from the opinion of General Term. Held, That this court is bound to presume that the reversal was on questions of law only. Judgment of General Term, reversing judgment of Special Term, reversed, and judgment of Special Term affirmed. Appeal from judgment entered on report of a referee. Action of ejectment. Plaintiff entered into a contract in writing, March 31, 1858, whereby he agreed to sell certain real estate to defendant for $700, to be paid in four annual payments. They had other mutual dealings and had accountings thereof in Feb., 1869, and May, 1872, at each of which new contracts for said land were entered into. Defendant went into possession under the first contract and has since remained in possession. The consideration for the 1872 contract was agreed upon at $711.33, which was to be paid in five annual installments and interest on sums unpaid. It was further provided that "In case of failure on the part of said party of the second part to fulfill this contract or any part of the same the party of the first part shall, immediately after any such failure, have the right to declare the same void, and retain whatever may have been paid on said contract Opinion by Andrews, J. All and all improvements that may concur. EJECTMENT. LAND CON TRACT. N. Y. SUPREME COURT. GENERAL Decided April, 1887. A refusal by a vendee in possession under a contract of sale to make payment of the amount due on the contract authorizes the bringing of an action in ejectment without notice to quit or demand of possession. have been made on said premises." The referee found that several payments had been made on this contract and that there remained due $630.80, and that immediately before the commencement of this action and while defendant was in default in his payments plaintiff took his accounts and papers pertaining to this matter to defendant and demanded from him a settlement and payment of the balance due on said contract, which defendant refused to make. The referee found the title to be in plaintiff, declared the amount due to plaintiff at date of report to be $891.71, awarded possession to plaintiff unless defendant redeemed within forty days, and required plaintiff, if such redemption took place, to execute and deliver a deed as provided in the contract. S. N. Dada, for applt. Howe & Rice, for respt. Held, No error. From the date of the first contract in 1858 down to the time of the demand plaintiff has held the legal title as trustee for the purchaser. 63 N. Y., 303. When plaintiff took his accounts to defendant "and demanded from defendant a settlement and payment of the balance due on said contract, which defendant refused to make," plaintiff had an election to stand upon his legal title and to maintain an action for the recovery of the possession of the premises in question, or to bring an action in equity for specific performance on the part of defendant. In the event that an action had been brought in the latter aspect, to compel a specific performance, a tender of the deed simultaneously with the demand would have been proper, and in accordance with the cases bearing on that aspect of the rights of the parties. While the absence of the tender of the deed might not have defeated the right of recovery had the complaint contained an offer to convey, and while the omission to tender the deed might have been considered in the question of costs, Vol. 26-No. 22a. 25 N. Y., 194, we think the refusal of defendant to make payment of the amount due upon his contract authorized the bringing of the action in ejectment, and that "such vendee is not entitled to notice to quit or demand of possession if he is in default in making any of the payments, or in performing any of the conditions or covenants specified in the contract of sale." 53 Barb., 167. That the provisions of 2 R. S., 312, § 57, do not apply. That statute cut off the remedy of a mort.. gagee theretofore existing by way of an action in ejectment to recover possession of mortgaged premises. 31 N. Y., 899; 13 id., 485; 52 id., 251. In the case before us the legal title resided in plaintiff. He has never parted with it. Besides, by the judgment entered he is not allowed to recover until defendant's right of redemption has been foreclosed by the expiration of the time within which he is allowed to redeem. If that time shall be suffered to expire the title of plaintiff will be as absolute and unquestioned as though he was purchaser at foreclosure sale. On cross-examination plaintiff was asked if he was a partner in pool A., being a bucket shop arrangement for gambling at Oswego, in which his son was one of the managers. This was objected to as immaterial, incompetent and improper, and the objection was sustained. Held, No error. It is not apparent from the case that the question called for any evidence N. Y. SURROGATE'S COURT. In re estate of John B. Tilford, deceased. Decided July 2, 1887. The testator left him surviving a widow and three infant children, and his will, after bequeathing, by the first clause, certain small pecuniary legacies to specified persons, proceeded as follows:Second: I give to my wife $6,000 per year during her life for her support. Third: I give to each of my children not less than $600 nor more than $1,500 per year for their education and support until they become twenty-five years of age as my executor and executrix may think proper. As each of my children becomes twenty-five years of age, my executor and executrix shall give each child $50,000. My executrix and executor are given full power and authority to make any investments of my estate as they may think proper without regard to any laws regulating trusts or other estates, and to make private sales of any of my property. Held, That the gifts of $6,000 per year to his wife and of $600-$1.500 to his children were in the nature of annuities, chargeable upon both the income and corpus of his estate and were alienable, and that therefore no unlaw ful suspension of the power of alienation was created, and that the legacies of $50,000 to each of the testator's children as they became twenty-five years of age were contingent and not vested. Testator left him surviving a wife and three infant children. The first clause of his will bequeathed small pecuniary legacies to certain specified persons. The 66 second clause was as follows:"I give to my wife $6,000 per year during her life for her support." The third was as follows:"I give to each of my children not less than $600 nor more than $1,500 per year for their education and support until they become twenty-five years of age, as my executrix and executor may think proper. As each of my children becomes twenty-five years of age, my executrix and executor shall give each child $50,000. My executrix and executor are given full power and authority to make any investments of my estate as they may think proper without regard to any laws regulating trusts or other estates, and to make private sales of any of my property." Upon the proceedings for the probate of this will the validity, construction and effect of certain portions of it were put in issue, and the surrogate was required to determine these in accordance with 2624 of the Code of Civ. Pro. It was claimed that, as no particular portion of the residuary estate was directed to be set apart for the satisfaction of each of the foregoing bequests, the testator undertook to constitute his entire residuary estate a trust fund, age, continue to be held for the benefit of the survivor or survivors, then the will certainly contemplated an unlawful suspension of the power of alienation. single and indivisible, for the annual payment of the $6,000 to his wife and the $600-$1,500 to each of his children, and for the payment to each of the children of $50,000 upon their severally attaining the age of twenty-five years; and that this attempted trust was invalid and ineffectual, for the reason that its enforcement would involve a suspension of the absolute ownership of personal property for a longer period than two lives in being at the testator's death. Hawksworth & Rankine, for tion. Indeed the will contained executors. Eustace Conway, special guardian for contestant. Held, That this contention involved the notion that the testator contemplated that no part of the corpus of his estate should be distributed until the death of the last survivor of the four persons interested in the provisions above quoted except that the sum of $50,000 should be distributed to each of the children upon his attaining the age of twenty-five years, and that save for this exception the entire estate must, if the will be obeyed, be held intact to supply the income for the discharge of the annual payments directed by the will. That if it be true that the corpus of the estate must, even in the event of the death of two or more of the children in the lifetime of the widow and before reaching the age of twenty-five years, or in the event of the death of the widow and of one or two of the children not having attained that But that this was not the purpose of the testator. The provision for the benefit of the widow was a simple annuity. There was no designation of the source from which it must be paid, nor was there any intimation of a wish that the income rather than the corpus should be exclusively or primarily devoted to its satisfac no express authorization for the collection or the disposition of the income; and though such authority was probably implied in the direction to invest and charge investments, that direction by no means justified the inference that the testator intended that the annuity for his widow should be paid out of the income alone or that the income should be exhausted before resort could be had to the principal for its satisfaction. That the income would naturally be the primary source from which, if the provisions in question were upheld, it would in fact be satisfied, but the beneficiary could compel a resort to the corpus at any time if the income should prove inadequate. The annuity being thus charged upon both the corpus and the income, and not being connected with any trust, was an interest which the law regards as alienable at the pleasure of the beneficiary, and was not therefore under the bar |