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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

we agree, that the contingent provision in stated than of any recognized exception to favor of surviving brothers and sisters of a that rule, and, this being so, the general rule niece leaving no issue did not extend to is-should be applied, rather than an unnatural sue of such a brother and sister who died exception ingrafted upon it. before her. But, passing to the next contin We now come to the second question, gency, the learned surrogate reached the con- whether we are prevented from giving to clusion that the principal was to be distribut this will the construction which we think it ed amongst the issue of such of the testa- should receive because certain surrogate's tor's nephews and nieces named in this decrees and a judgment of the Supreme Court clause as died prior to Annie leaving such is- hereinbefore referred to, or either of them, sue, as well as amongst surviving nephews are binding adjudications upon the questions and nieces. The Appellate Division, on the now before us, and embody different deterother hand, took the view that the princi- minations thereof than those just stated. It pal was to be paid over to such nephews and does not seem to be very seriously contended nieces as survived Annie McMahon, and that by any of the parties that the two decrees the issue of one who had predeceased her made in Surrogate's Court affecting this esdid not take the share which his parent tate are such adjudications. They were rewould have taken if surviving.

spectively made on accountings by the execuWe agree with the latter view. The only tors in respect of other interests under the provision in favor of said nephews and nieces will, and it is conceded by the appellants that is contained in the clause:

such adjudications would not be control"Should any of my nieces, however, die with-ling upon a future accounting for another out leaving issue or brothers or sisters, then share. Moreover, the last of these decrees, her share is to revert to the general fund of my if binding at this time, would be in support estate, to be divided equally among my remaining nephews and nieces."

of the views which we entertain, rather than If, as we think to be the case, this entire of opposing ones. clause is to be construed as an ordinary pro

[4] In the determination of this question of vision directing conversion of an estate into a prior adjudication, we are therefore submoney and payment to and distribution stantially left to a consideration of the judgthereof among a certain class on the death ment of the Supreme Court. of the beneficiary for life under a trust es- brought by the executors of McCahill, setting tate, it is well settled that no interest vests forth the clauses already quoted in favor of until the death of the life tenant occurs, and his wife, the latter's death, the disposition that the distribution will be to those of the by them of the house and lot in which she class then surviving. Matter of Crane, 164 had a life estate, and that there remained N. Y. 71, 58 N. E. 47; Salter v. Drowne, 205 in their hands a certain sum of money realN. Y. 204, 98 N. E. 401.

ized upon such sale, and also the principal It is argued that within the terms of the sum invested to provide for the payment of entire will are to be found indications of an the annuity created for her under the will, intent upon the part of the testator which and which moneys on account of her death renders the ordinary "pay over" rule, as it they were anxious to distribute, and also is called, inapplicable, and that the purpose setting forth the eleventh clause of said will, of the testator was that this principal should hereinbefore considered, and various facts be distributed amongst all of his nephews arising thereunder in connection therewith, and nieces named in this clause; the share and asking instructions of the court as to of any one dying before the time arrived the distribution of the proceeds of the sale for distribution to be paid to such issue. of the house and lot and of the principal Without discussing these arguments

arguments at created for the purposes of the annuity given length, it may be said that they do not seem to the wife, and whether said latter fund to us to present sufficiently substantial and became part of the residuary estate, to be satisfactory reasons for making this case an paid over to the nephews and nieces under exception to the general rule which has been the eleventh clause of the will, and, if so, stated. On the other hand, if we follow in what manner, and also whether the inthem, we fear we should build up some more terest of the nieces in said funds could be artificial and visionary distinctions and add paid to them, or should be held in trust for some more perplexities to those which al-life. ready surround the interpretation of wills. The court found various facts covered by The will before us was unskillfully drawn, the allegations of said complaint, and also and in various places it contains words that a fund had been created for the purpose which are not entirely appropriate to any of carrying out the provisions of the ninth theory which ought to be applied to its inter- clause of the will, hereinbefore quoted, for pretation, and this condition perhaps gives an annual sum of $1,500 to be expended for weak support to some interpretation other the education of young men for the priestthan that being adopted by us. But we think hood, and then the conclusions of law were, that the will as a whole does better sustain the and the judgment provided, so far as is maapplication of the general rule which we have terial here, that the proceeds of the sale of

the house and lot and the principal of the WILLARD BARTLETT, C. J., and CHASE, annuity created for the benefit of the wife CUDDEBACK, HOGAN, CARDOZO, and should be distributed amongst nephews and POUND, JJ., concur. nieces and the respective issue of nephews

Order affirmed, etc. and nieces, and which nephews and nieces were amongst those named in the eleventh clause, although they were not described as

(218 N. Y. 505) such in the judgment and findings, and no

PEUSER V. MARSH, reference in the latter was made to said (Court of Appeals of New York. July 11, 1916.) clause. Of course this action related to and

SALES 479(6)-REMEDIES OF BUYER-REprovided for the distribution of different

COUPMENT FOR BREACH OF WARRANTY IN funds than those which are in terms covered CASE OF CONDITIONAL SALE-STATUTE. by the eleventh clause, which we are now sale seeks to reclaim it by means of an action

Where the seller of a chattel by conditional considering. It is possible that, in adjudg-1 of replevin, the buyer may defend by pleading a ing the distribution of said funds, said judg- breach of warranty by way of recoupment in dim. ment might have passed at least one of them, inution or extinction of the price, as provided the principal for the widow's annuity, into by the Uniform Sales Act (Laws 1911, c. 571) $

150. and through the residuary estate created by

[Ed. Note.-For other cases, see Sales, Cent. the eleventh clause, and thus have necessi- Dig. § 1426; Dec. Dig. 479(6).] tated an interpretation of that clause. On the other hand, it is conceivable that the

Appeal from Supreme Court, Appellate Ditrial judge may not have deemed this to be vision, Third Department. .

Action by Peter C. Peuser against Elizanecessary. He may have decided that the principal of the annuity which was created beth D. Marsh. From a judgment of the Apby the same clause as that which gave the pellate Division (167 App. Div. 604, 153 N. Y. use of the house and lot to the wife was to Supr. 381), reversing a judgment sustaining be distributed in the same manner as the plaintiff's demurrer to affirmative defenses proceeds of the house and lot, and which set up in an amended answer, plaintiff ap

peals by permission. Judgment affirmed, and distribution was provided for by the same clause which gave the house and was not at questions certified answered in the negative all dependent on the eleventh clause. As a The order allowing the appeal certifies the matter of fact it is difficult to determine on following questions to this court: First. Is what theory the judgment which was render the defense, consisting of new matter, pleaded could have been reached. It is sufficient ed as a first and separate defense and set to say that it does not appear on the face forth in the first subdivision of the amended of the findings or of the judgment that the answer, insufficient in law upon the face eleventh clause now before us was construed thereof? Second. Is the defense, consisting in reaching the results which were adopted. of new matter, pleaded as a second and sepIf we are at all correct in our views of the arate defense, and set forth in the second clause, it never could have been adopted as subdivision of the amended answer, insuffithe guide and authority justifying the dis- cient in law upon the face thereof? tribution which was then made.

Thomas B. Merchant, of Binghamton, for Under these circumstances, we think that appellant. H. J. Hennessey, of Binghamton, the appellants, upon whom the burden rested for respondent. of showing that there was a prior adjudication of the questions now before us, have WILLARD BARTLETT, C. J. This appeal failed in their attempt so to do. As confirm- presents the question whether in the case of ing this view it is significant that one of the a conditional sale, where the seller seeks to decrees in Surrogate's Court, made after the reclaim the goods by means of an action of judgment in the action, and which unques- replevin, the buyer may defend by pleading tionably involved a construction of the elev- a breach of warranty by way of recoupment enth clause, adopted a method of distribution in diminution or extinction of the price. By radically opposed to that adopted in the ac- the Uniform Sales Act, adopted in this state tion in Supreme Court, and it is not to be be- in 1911 and made article 5 of the Personal lieved that such a course would have been Property Law (Laws of 1911, c. 571), it is exfollowed by the surrogate, if it had appear- pressly provided that where there is a breach ed or had been understood that the questions of warranty by the seller the buyer may at which he was considering had already been his election "accept or keep the goods and passed on and the clause interpreted in such set up against the seller the breach of waraction.

ranty by way of recoupment in diminution In accordance with these views, we think or extinction of the price." Section 150. It that the order of the Appellate Division is contended, however, that this provision should be affirmed, with costs, and the case does not apply to conditional sales at all remitted to the Surrogate's Court for dis- where the title has not passed from the seller tribution of the share here involved in ac- to the buyer; or, if it does apply to condicordance with the views expressed.

tional sales, it is only where the seller sues en For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

for the purchase price of the goods and not purchase price or sues to recover back the where he is endeavoring to get them back. goods.

In the present action the plaintiff sues to The judgment of the Appellate Division recover possession of a piano, together with should be affirmed, with costs, and both quesa stool and scarf. The complaint alleges that tions certified answered in the negative. the said chattels were purchased by the de fendant from an agent of the plaintiff under

HISCOCK, CHASE, CUDDEBACK, HOa contract of conditional sale whereby the GAN, CARDOZO, and POUND, JJ., concur. title was not to vest in the defendant until

Judgment affirmed. the payment of $260, of which $25 was to be paid in merchandise, $16 in cash, and the balance in monthly installments of $6 each,

(218 N. Y. 525) and that the defendant has failed to pay the

SILBERSTEIN V. SILBERSTEIN. sum of $141, with accrued interest thereon, (Court of Appeals of New York. July 11, 1916. which was due and payable on the 1st day of 1 DIVORCE 172-DECREE-CONCLUSIVENESS August, 1914. Each of the defenses which is

-MATTERS CONCLUDED.

Where, in a wire's action for separation, the assailed by the demurrer sets up certain war- husband filed no counterclaim, but merely al. ranties and the breach thereof to the defend-leged defensive matter, judgment therein renant's damage in the sum of $200. The de dered, which, being adverse to the wife, furthe: fendant further avers that, relying upon the decreed that she was at fault in abandoning and

deserting the husband, is not conclusive as to warranties, he had paid to the plaintiff $119 abandonment in her subsequent action for septo apply upon the purchase price, and that aration, when after the former decree she ofby reason of the premises the defendant fered to live with him and he refused reconcilia

tion. has become the owner of the piano and the plaintiff is indebted to him in the sum of $59. Dig. $$ 559-561; Dec. Dig. w172.]

(Ed. Note.-For other cases, see Divorce, Cent. This is in effect a plea that the breach of

2. JUDGMENT

951(1)–CONCLUSIVENESS-warranty has operated to extinguish any

MATTERS ASIDE FROM PLEADINGS-BURDEN further liability on account of the purchase OF PROOF. price. The position of the defendant is that It is for the party who in order to take adhe has paid all that he is legally obligated vantage of a former judgment, asserts that mat

ters outside the pleadings are adjudicated to to pay under the contract, and therefore that show that there was actually an adjudication he is entitled to consider and does consider thereon. the goods as his own. He claims to be exer [Ed. Note.-For other cases, see Judgmen:, cising the right given by the statute to the Cent. Dig. $ 1809; Dec. Dig. '951(1).] buyer where there is a breach of warranty 3. DIVORCE 37(5)—"ABANDONMENT"-TEZIby the seller, namely, to keep the goods and

PORARY ABSENCE. set up the breach of warranty by way of re- but the absence must be coupled with an interit

Temporary absence is not "abandonment," coupment in extinction of the price.

not to return. It is clear that conditional sales fall within (Ed. Note.-For other cases, see Divorce, Cent, the purview of Uniform Sales Act, & 82. Al-Dig. 88 27, 111; Dec. Dig. 37(5). though replevin is strictly a possessory action

For other definitions, see Words and Phrases, (Roach v. Curtis, 191 N. Y. 387, 84 x. E. 283), First and Second Series, Abandonment.] and the term "recoupment" generally signi Appeal from Supreme Court, Appellate Difies a deduction from a money claim (Deeves vision, First Department. & Son v. Manhattan Life Ins. Co., 193 N. Y. Action for separation by Nellie Silberstein 324, 336, 88 N. E. 395), the right to possession against George Silberstein, From an order in a case like this depends upon the payment of the Appellate Division (156 App. Div. 689, of the purchase price; and as the statute 141 N. Y. Supp. 376), reversing an order of provides that the purchase price may be ex- the Special Term overruling demurrer to the tinguished (which is equivalent to saying it complaint, plaintiff appeals by permissio?. may be paid) by recouping such damages as The Appellate Division certified the question the buyer may have sustained by the seller's whether the complaint stated facts sufficient breach of warranty, we can see no sufficient to constitute a cause of action, Order rereason for holding that such a defense is not versed and question certified answered in the available in a replevin suit. Where a ques- affirmative. tion as to the construction of a statute relating to legal procedure is evenly balanced in

Harold M. Phillips, of New York City, for other respects, that view should prevail appellant. Otto A. Samuels, of New York which tends to promote the welfare of lit- City, for respondent. igants by preventing circuity of action. It is obviously to the interest of both parties to a CARDOZO, J. The case is here on a decontract of conditional sale like that in suit murrer to a complaint. The plaintiff sues here to have their respective claims adjusted for a separation from her husband. Sine and determined in one lawsuit; and we think alleges that she sued him once before, and that the legislative intent to permit this to failed. After the dismissal of that action, be done is discoverable in the language of she asked him to take her back, but he refusthe statute-whether the seller sues for the ed to live with her or contribute to her sup

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

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