the license was served, the defendants had the right to proceed and build up the new wall, so as to sustain the walls of the plaintiffs' building, and for that purpose had the right to enter upon so much of the plaintiffs' lands as was necessary, before they could be required to remove the needles from the premises. Undoubtedly, it was the duty of the defendants to proceed with reasonable dispatch, without unnecessary delay, to perform the job in a good, workman-like manner, with as little injury and inconvenience to the plaintiffs as possible; but in so doing they cannot be regarded as trespassers, and no recovery could be maintained against them as such. Whether or not the defendants had the right to proceed and shore up other portions of the plaintiffs' building after service of the notice of revocation, it is not necessary to now consider; for, under the charge of the court, the defendants were regarded as trespassers from the time of the revocation of the license, if they thereafter acted under it. For the reasons stated, the judgment must be reversed, and a new trial ordered, with costs to abide the event. All

concur.

(117 N. Y. 288)

BRIGGS v. CARROLL.1

(Court of Appeals of New York. Nov. 26, 1889.)

LEGACIES-CHARGES ON LAND.

ing realty from personalty. At the time of the ex

thus: "I give and devise all the rest, residue, and remainder of my real and personal estate, goods, and chattels, of what nature and kind soever, to my four children, viz., Kate L., C. J., Sarah, and the above-named Charles W., to be divided equally between them, or their heirs and assigns, share and share alike." The will was executed about eight years before the testator's death. At that time he had no money or securities, but his whole personal estate consisted of the usual farm property, such as stock and grain, and was in value no greater than it proved to be at the time of his death. It appears that such value was not in excess of $1,500. At the date of the execution of the will he seems to have been substantially free from debt, but thereafter gradually accumulated liabilities, which at his decease his personal estate was insufficient to pay. The widow and son took their legacies in the land by the process of buying in the interests of the other children. The debts were paid, which more than exhausted the personal estate, and the widow, who finally bought out Charles, and became sole owner of the land, promised to pay the plaintiff's legacy, but has been unable to do So. She mortgaged the property, and it has been sold on foreclosure to the defendant, who bought with notice of the plaintiff's claim against the land. On this state of facts the courts below have held that plaintiff's legacy was a charge upon the realty, and the defendant appeals from that decision.

Testator gave a legacy of $2,500 to his wife in lieu of dower, another of $1,500 to a son to be used for his education, and another of $500 to plaintiff, all to be paid within a year after testator's In Brill v. Wright, 112 N. Y. 129, 19 N. E. death. These were followed by a disposition of Rep. 628, the rule prevailing in this state is the entire residue of the estate, without distinguish-held to be that a residuary clause coming after ecution of the will, testator's personalty consisted a bequest of legacies, and disposing of both of only $1,500 worth of farm stock and implements, and he was substantially free from debt. Soon thereafter he purchased more land, using a part of his personalty to make the first payment, and gradually accumulated additional liabilities, which, at his death, his personal estate was insufficient to pay. Held, that the legacies were a charge on the realty.2

the real and personal estate together, and by one form of expression, will not alone justify a construction that the legacies are charged upon the land, but will do so where it appears in addition, from such extrinsic facts as may be resorted to, that there was in truth an intention to charge the debts upon the land; and we have inferred that intention where the personal estate of the testator was, at the Action by William B. Briggs, by his guard- date of the will, largely and clearly insuffiian, against Peter D. Carroll, to charge a leg-cient for the payment of the legacies given, acy on real estate. From a judgment affirming a judgment of the special term for plaintiff, (3 N. Y. Supp. 686,) defendant appeals.

Appeal from supreme court, general term, fifth department.

M. A. Seary, for appellant. Chas. S. Baker, for respondent.

FINCH, J. The testator by his will gave to his wife a legacy of $2,500, to be accepted by her in lieu of dower; to his son Charles, $1,500, "to be held and used by his mother as necessity might require for his education;" and to his grandson, the plaintiff, $500. He directed these legacies to be paid within one year after his death. Their bequest was followed by a residuary clause, which reads

and the testator must have known and understood that they could not be paid except by the aid of the real estate. That was the doctrine of McCorn v. McCorn, 100 N. Y. 511, 3 N. E. Rep. 480, the facts in which case, it must be admitted, were stronger than in this. Nevertheless, we are of opinion that the courts below were right in their disposition of the case. Here were legacies of $4,500, with but $1,500 worth of personal property out of which to pay them. One of these was in lieu of the wife's dower, and another for the education of the son Charles. The declared purpose of each gift leads strongly to an inference that the testator did not suppose that they would, or mean that they should, abate, and be largely reduced. Very soon after the execution of the will we find him

buying more land, and using $700 of his personal estate in making the first payment.

about the amount due on the land, also showed that the surrogate had decreed that this balance should be applied in payment of the amount which the vendee had appropriated from the assets of his brother's estate. Held, that the application was conclusive on defendants.

5. Defendants cannot complain of an extension of the time within which they were allowed to satisfy a vendor's lien, though the extension was illegal.

And during the remainder of his life he not only steadily failed to increase his personal estate, but continuously depleted it as a source of payment of the legacies by a persistent accumulation of debt which in the end more than absorbed the whole personal as-land from the surviving brother, with notice of his 2. Defendants, having taken a mortgage on the sets. The testator must have realized the defect of title, and without knowledge of the state situation. He could not have been deceived of the account between the brothers, had no legal or mistaken, and so we are shut up between right to appear in the accounting, and cannot object to the application made in the surrogate's detwo alternatives. Either he intended to cree, and insist that it be made on the purchase sacrifice the comfort and welfare of his wife price of the land. and son Charles for the benefit of his older 3. Evidence that an account of the mutual and married children, and deliberately con- the survivor, that they lived together, and that the transactions between the two brothers was kept by tinued to make their situation worse by put- deceased had opportunities to inspect the account, ting personal estate into land, and incurring and had occasionally done so, and that at his death debts, or he supposed that their legacies would there was a balance of only $1,683.14 in his favor, the purchase price of the land being $3,300, warvest upon his real estate. I think we are rants an inference that the annual balances of the justified in holding that the latter was his un-account in favor of the surviving brother were apderstanding of the will. We are very far plied by the brothers in payment of the purchase from saying that a residuary clause, blending price of the land, and interest thereon. 4. But there is no presumption that items addin its form of disposition both real and per-ed to the account after the death of the vendor sonal estate, will produce a charge upon the brother were intended to operate as payments on former for the payment of legacies wherever the purchase price. the personal estate proves insufficient. No such doctrine can be justified. The deficiency must exist when the will is executed, and be so great and so obvious as to preclude any possible inference that the testator did not realize it, or that he may have expected and intended before his death to remove the difficulty. If the disparity, even though serious, is such that the testator might have been RUGER, C. J. The plaintiffs brought this unconscious of its existence, or so dependent action to obtain partition of the lands deupon estimates of value that in the decedent's scribed in the complaint. They alleged title judgment it might have been adequate to the to such lands as heirs at law of John Grant, burden imposed, or such that he might rea- deceased, who, with William Ward Grant, sonably expect to repair the deficiency before inherited them from Avery Grant, their fahis death, the ground for inferring an inten-ther, and were tenants in common thereof tion to charge the land would disappear. at the death of John Grant, in 1869. The But none of these things are found in the appellants claimed title to the lands under a present record. The legacies were three foreclosure sale and purchase by them upon times the value of the personal estate, and it a mortgage given thereon by William Ward is impossible to imagine that the testator did | Grant, April 20, 1875, to secure a prior innot know it. They were provisions in lieu debtedness from him to Chauncy and Jane of dower and for the support and education S. Keator, and an alleged parol sale of said of a minor child which it is hard to suppose lands, made in 1855, by John Grant to Willwere meant to abate; and the subsequent ac- iam Ward Grant, and payment by him of tion of the testator strongly indicates that he such purchase price to John Grant. meant to impose their payment upon his answer also asked, in case it should be found lands. We think the facts of this case bring that such purchase price had not been paid it up to the required standard. The judg-in full, that the said appellants should be afment should be affirmed, with costs. All

concur.

(117 N. Y. 369)

GRANT et al. v. KEATOR et al.'

(Court of Appeals of New York. Nov. 26, 1889.) APPLICATION OF PAYMENTS-RES ADJUDICATA.

1. In an action for partition of land which had formerly been owned by two brothers, defendants claimed title to the entire tract from one of the brothers who had purchased the other's interest for $3,300. To show that the price had been paid, they produced the record of an accounting in the surrogate's court by the vendee brother and others, as administrators of the vendor brother, to which all of the latter's heirs and next of kin were parties, which, while it showed that a mutual account had existed between the brothers in the vendor's life-time, with a balance in the vendee's favor of 1Affirming 45 Hun, 593, mem.

Appeal from supreme court, general term, fourth department.

M. M. Waters, for appellants. Edwin D. Wagner, for respondents.

The

forded leave to pay such amount as remained unpaid thereon, and be decreed, in case such payment was made, a conveyance of the lands by the heirs at law of said John Grant. The principal controversy on the trial was whether such purchase price had been paid to John Grant during his life-time, or to his personal representatives thereafter. No question is made in the case but that John Grant, after succeeding to the title of the lands with his brother, William Ward Grant, contracted by parol, in 1855, to convey his interest therein to his brother on payment of the sum of $3,300, and certain other considerations; and the question litigated was whether this sum had been paid during John Grant's life-time, and, if not, whether the defendants should have leave to pay the sum remaining unpaid,

and be decreed a conveyance of the premises. | plication thereon of the annual balances, unThe evidence failed to show that the purchase til in 1869, when the balance in favor of price of said land had been paid. The appel- John, including the amount of the purchase lants attempted to prove this fact by showing price, was $1,683.14. Certain items were that between the date of said parol contract added after that time; and it cannot be inof sale, and the death of John Grant, in 1869, ferred, as to such items, that John ever saw a mutual account existed between the broth- them, and they bear inherent evidence of beers, upon which, at the time of the death of ing reviewed and entered in the book after John Grant, there was an apparent balance John's death, and consist of items inadein favor of William Ward Grant of $3,152.34, quately proved. With reference to those exclusive of the amount of the purchase price items, there can be no presumption that they of said land. Upon the death of John Grant, were intended to operate as payments upon Fanny Grant, his widow, and William Ward the purchase price of said land. Grant, his brother, were appointed administratrix and administrator of his estate, and -qualified as such. In 1876 an accounting on the part of the administrators of John Grant's estate was had before the surrogate of Delaware county, to which all of the heirs and next of kin of John Grant were parties, and such proceedings were had therein that said surrogate decreed that the whole balance of the account of William Ward Grant against the estate of John Grant, excluding the amount due for such real estate as exhibited, amounting to the sum of $3,152.34, should be applied in payment of a deficiency of assets in such estate caused by the appropriation by William Ward Grant, as administrator, of the funds of said estate. The record of this accounting was introduced in evidence by the defendants, and they are not in position to dispute its force as proof, or its efficacy as an adjudication between the parties thereto.

It was also found by the trial court that on the 20th of April, 1875, at the time the appellants acquired, by mortgage, the interest of William Ward Grant in such lands, said William Ward Grant was indebted to the estate of John Grant, aside from the balance due on said purchase, in a sum greater than the balance of his account against such estate, and that said mortgagees acquired by such mortgage no equitable right to have such balance applied upon the said William Ward Grant's indebtedness for the purchase price of such lands. The trial court sustained the defense set up, to the extent of holding that $1,616.86 and interest to November, 1869, had been paid on the purchase price of said lands, and that said appellants were entitled to pay the balance remaining unpaid thereon, and in that event have a conveyance from the heirs at law. The decree gave them 30 days in which to make such payment, and in default thereof decreed partition of the lands as prayed in the complaint.

It was found by the court below, on the trial under review, that it was never agreed The appellants raised a number of quesor understood between John Grant and Will- tions upon the authority of the court to grant iam Ward Grant that any of the items of ac- the relief which it awarded to them, which count between them were received, or should seem to us to be unworthy of serious considbe applied, in payment of the balance due eration. Such relief was based altogether upon the purchase price of said lands. But upon the allegations of the answer and the it was also found that William Ward Grant claim for relief contained in it; and, whathad paid to John Grant the interest on said ever may have been its force or effect, the sum of $3,300 up to November 1, 1869, and defendants are not injured by a privilege $1,616.86 upon the principal, leaving unpaid awarded to them at their request, and inthereon the sum of $1,683.14 of principal and tended for their benefit. The court gave the $1,800.81 of interest, amounting at the time defendants an opportunity to defeat the plainof the trial to $3,283.95. This finding was tiffs' action altogether, if they chose, but, if apparently based upon an inference that there they did not elect to avail themselves of this had been an application by the parties of the privilege, they were at liberty to refuse; and, annual balances of the account, previous to in that event, nothing was left to stand in the year 1869, in favor of William Ward the way of the enforcement of the plaintiffs' Grant to the purchase price of said land, legal rights. They could in no sense be agwhich had reduced the amount thereof to $1,- grieved by the extension of a privilege which 683.14. We think there was evidence from they did not elect to avail themselves of. which such an inference might properly be The defendants had no legal right to an drawn. The account, which was proved only extension of time within which to satisfy by the records of the surrogate's court, was the vendor's lien; and the act of the court in shown to have been kept by William Ward giving them 30 days to do so was an act of Grant upon an account-book formerly belong-pure grace, enabling them to avoid the effect ing to his father. Until 1866, William Ward of a long-continued default in the performGrant and his brother, John Grant, lived to-ance of the obligations to pay the purchase gether, in the same house, and John had an price. They chose not to pay and take a conopportunity to examine this book and inspect veyance, and the necessary effect of this dethe account, and had been seen, sometimes, termination was to leave the title of the land looking over it. That account showed, in- in the vendor's heirs, with all the rights and ferentially, that the amount of the purchase privileges pertaining to such title, among price had been reduced each year, by the ap- which was the right of partition. Wain

man v. Hampton, 110 N. Y. 429, 18 N. E. | cured indebtedness of the debtor, strangers Rep. 234.

The defendants, by their mortgage, acquired such right in the lands as William Ward Grant possessed at the time it was given, and that was the right to pay the unpaid purchase price, and entitle himself to a conveyance thereof. William Ward Grant was then indebted to John Grant's estate, not only in the amount of $1,683.14, for the unpaid balance on the purchase price of this land, but also in other amounts sufficiently large to extinguish any account which he had against such estate. The balance of such account was then an open, unliquidated account, no part of which had been applied as payment upon any particular demand of the estate, and, in the settlement of its accounts, the surrogate, upon the request of William Ward Grant, applied it to the extinction of the unsecured demands of the estate against William Ward Grant, to the exclusion of the sum due upon the purchase price of said land; and this, we think, the representatives and heirs of John Grant had a right to insist' upon, and the surrogate lawful authority to make. No application having been made of this account by the parties at the date of the mortgage in question, except, perhaps, the sum of $1,616.86, William Ward Grant did not, by giving it, bar the right of the parties to make such disposition of the balance of the account as they might deem proper to do. The appellants took their mortgage with notice of their mortgagor's want of title, and without knowledge of the state of the accounts between their mortgagor and his vendor; and they cannot object to any application made of this indebtedness which the parties interested should agree to make. Harding v. Tifft, 75 N. Y. 461.

The trial court have given to the appellants, as a payment upon the purchase price of said land, the benefit of the balance of account, viz., $1,616.86, appearing to be due to William Ward Grant at the death of John Grant, although William Ward Grant seems also to have received credit for the same amount on his accounting before the surrogate. Certainly, the appellants have no right to complain of this disposition of the account. They have secured a credit amounting to one-half of the balance appearing upon the account, as a payment upon the land; and they now claim that the other half shall also be so applied, although it has been other wise applied by the parties and the surrogate. As against the representatives of John Grant, the appellants have shown no right, either by proof of the items of the account or of any agreement of the parties, to have this amount applied as a payment upon a demand for which they held security, to the exclusion of unsecured debts. There was nothing to prevent the parties to this indebtedness, at the date of the surrogate's decree, from making such application thereof as they might agree upon, and having, under the sanction of the surrogate's court, applied it upon the unsev.22N.E.no.25-67

to the transaction have no right to complain. The appellants were not parties to that accounting, and had no legal right to appear therein, or litigate the question of the application of such account; and the disposition then made of it is conclusive upon them. O'Blenis v. Karing, 57 N. Y. 649.

The questions presented by the appellants as to the respective rights of the heirs at law and the representatives of John Grant in the unpaid balance of the purchase price of the land in question do not concern them, and need not be determined in this litigation.

We have examined other questions raised by the appellants' counsel upon the argument, but are of the opinion that none of them require serious notice. The judgment of the court below is therefore affirmed. All concur.

(117 N. Y. 241)

PEOPLE v. AMERICAN BELL TEL. Co.1

(Court of Appeals of New York. Nov. 26, 1889.)

BELL TELEPHONE COMPANY-TAXATION.

1. The American Bell Telephone Company, a Massachusetts corporation, engaged in manufact uring telephones under its patents, and licensing their use by others, leases its instruments, costing about three dollars apiece, and licenses their use business of furnishing telephonic facilities to the in New York to local corporations. The entire public, which, in addition to the instruments, involves the maintenance of an expensive plant, consisting of wires, poles, etc.,.is carried on by these local bodies, who receive the compensation paid by the public, which constitutes the entire earnings arising from the use and employment of the company's instruments in New York. The Bell Company receives from the local companies, as com pensation for the use of its instruments, at its office in Boston, a royalty payable monthly, in advance, without regard to whether the instruments are used or not. It has no office or officer, unless it be these local companies, in New York, and has no direct business relations with the public. Held, that the local companies were its licensees, and not its agents; and that it was not "doing busiN. Y. 1881, c. 361, § 6, taxing the gross earnings of ness" in New York, within the meaning of Laws telephone companies "doing business" in this state.

2. The contracts, in addition, provide for the use of private lines, and require leases for the use of telephonic instruments to the patrons of such lines to be made in the name of the Bell Company; but it was stipulated that the provision is inserted private lines by unauthorized persons, and to guard in the contracts to prevent the illegitimate use of against infringements of the company's patents. It also appeared that the management and control of the entire business is confided to the local cortween the various classes, and that they collect the porations, without any material distinction bedues for the private lines, as in other cases, paying the Bell Company a royalty for the use of the private lines the local corporations were not the instruments. Held, that even in respect to the agents of the Bell Company.

3. The fact that the Bell Company is a stockholder in the local corporations does not render its Y. 1881, 3. 361, § 3, taxing the capital stock of all capital stock taxable in New York, under Laws N. corporations doing business in the state.

Appeal from supreme court, general term, first department.

James C. Carter, for appellant. Wm. A. Poste, Dep. Atty. Gen., for the People.

1 Reversing 3 N. Y. Supp. 733.

RUGER, C. J. The controversy in this the laws of Massachusetts, and located and case is presented by an agreed statement of doing business in that state. It is authorfacts submitted by the parties to the supreme ized by its charter "to carry on the busicourt, under section 1279 of the Code, for its ness of manufacturing, owning, selling, usdecision. The plaintiff claims the right to ing, and licensing others to use, electric recover taxes from the defendant for five speaking telephones, and other apparatus and years between 1881 and 1887, upon some appliances pertaining to the transmission of portion of its capital stock and upon its gross intelligence by electricity." Practically, its earnings in this state, by virtue of the pro- whole business consists in manufacturing visions of chapter 542 of the Laws of 1880, under its patents, and leasing to and licensing as amended by chapter 361 of the Laws of the use of telephones by others in the various 1881 and chapter 501 of the Laws of 1885. states of the Union. In the state of New The taxes contemplated by the statutes re- York, these licensees are corporate bodies, ferred to are a certain percentage upon the formed therein, to carry on, in certain defined amount of the capital stock of "every corpo- localities, the business of furnishing teleration, joint stock company, or association phonic facilities to the citizens of such comwhatever, now or hereafter incorporated or munities, and they are entitled to the excluorganized under any law of this state, or now sive privilege of doing so under the Bell sysor hereafter incorporated or organized by or tem. The conduct of the business is carried under the law of any other state or country, on under authority obtained from the Bell and doing business in this state." Section Telephone Company, upon the conditions and 3, c. 542, Laws 1880; section 3, c. 361, Laws regulations contained in contracts with that 1881. By chapter 501 of the Laws of 1885 company. The entire receipts for the use of the tax upon the capital stock of corporations, telephonic facilities from the citizens of New when such stock was only partially employed York are paid by the customers of the rein this state, was limited to so much only of spective local companies to the company of such capital stock as was thus employed. which they are respectively patrons or lesSection 6, c. 542, of the Laws of 1880, and sees; and such receipts constitute the entire section 6, c. 361, of the Laws of 1881, au- income and earnings accruing to the Bell thorize, in addition to other taxes, and among Telephone Company from the use and emother corporations, as a tax upon its corpo-ployment of its telephonic instruments in the rate franchise or business in this state, a certain percentage upon the gross earnings of "every telegraph company or telephone company incorporated under the laws of this or any other state and doing business in this The taxes authorized by these statutes are in addition to the usual and ordinary taxes levied upon property, and were intended to reach and tax only the business and franchise of the corporations designated.

state."

state of New York. The contracts under which this business is done by the licensees are made at the defendant's office in Boston, and the rentals or royalties due to it are payable monthly, in advance, at that place. The telephones are delivered to each licensee at the general office or factory of the defendant company, in Boston, as often as requested, and not elsewhere. The licensee transports them, at his own risk and expense, wherever The main question presented is whether he wishes, and lawfully may use them, or the defendant is a corporation "doing busi- furnish them to others for use. The licenness in this state," within the meaning of see, when he sees fit, may return them to the those words as used in the statutes. No dif-defendant company at Boston, but, so long ference exists between the authority to im- as he retains them, is bound to pay the roypose a tax upon capital stock under the act alties thereon, whether they be used or not. and that conferred to tax gross earnings, and the right to levy both taxes, therefore, rests upon the same ground, and stands or falls upon the simple question whether the defendant is doing business in this state. Whether the defendant during this period was in fact doing business in this state must be determined from the actual character of the business carried on, as disclosed by the facts contained in the submission, and not from the existence of any unexercised powers reserved to it by its contracts; for the material question is whether it has in fact done The Bell Telephone Company has no ofbusiness within the state, and, if so, what fice or officer, agent or employe, in the state of was its nature, character, and extent, and New York, unless the local corporations can not whether it possesses the natural or con- be so denominated. It has no direct business tractual right to carry on business therein. relations with the public, from whose patronSome of the leading features of the business age the income for telephonic facilities is deunder consideration may be concisely referred rived; and such income is always collected to, as having an important, if not control- by and paid to, and becomes the property of, ling, bearing upon the subject. The defend- the local companies. The profits derived ant is a foreign corporation, chartered under from the business thus carried on belong

The business, as conducted by the local companies, requires, in addition to the telephones furnished by the Bell Telephone Company, the use and employment of an expensive plant; the construction and maintenance of extensive lines of poles, wires, switches, and switch-boards; the services of numerous agents and employes; and the management and control of an extensive business, calling for the employment of a large capital, and the incurrence of serious risks in its prosecution.