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estate should be paid to the executor as part | is irregular and invalid, and avoids the of the residuary estate of the donee of the charge attempted to be made by the testatrix. power, and which we think may be regarded | We do not agree with this contention, which, as a matter of more detail rather than of if sustained, would enable the appellant insubstance, we have no doubt that the ap equitably to secure an interest in the lands pointment with the charge upon the real es at the expense of her co-heirs greater than tate was a good execution of the power con her grandmother intended to give her. As ferred upon the testatrix. It is to be noted already indicated, we think that this clause at the outset that the testatrix did not simply provides a detail of the manner in execute the power and make the charge in which the substantial plan of the testatrix pursuance of any agreement with the heir

should be worked out. The provision for or seeking any benefit for herself or for her this payment to her executor does not seek or estate, or trying to accomplish some forbid contemplate the slightest benefit to the testaden or unauthorized purpose, and, therefore,

trix or her estate. It was evidently framed as the execution does not all come within the

affording the best method to secure a marprinciples of cases condemning an execution

shaling of the property of the donor of the of a power as fraudulent and invalid for

power and of the testatrix and consideration such reasons, and some of which have been

of all advances and loans by herself, in order called to our attention. They are not appli to secure equality of distribution amongst cable, and it is not necessary or useful to

those who were natural heirs. If appellant review them.

were in a position to complain of it, and it Upon the other hand, the testatrix having

were essential so to do, we should have no the conceded power to appoint the real estate

doubt of the power to cut out this provision to any or all of the children and grandchil

and to substitute in its place some other undren, in equal or unequal shares, and to give objectionable one for the purpose of carrying all of it or none of it to the appellant, has

out the intention of the testatrix and securmade an appointment to her of a certain

ing the distribution of the property which she interest, and charged it with the payment of

had before her mind. This we believe could certain moneys for the sake of making an

be done under that power, which unquestion. equitable distribution amongst all of the per

ably belongs to a court of equity, of correct sons designated by her husband as proper

ing and supplementing a defective execution subjects of appointment. The narrow ques

of a power of appointment. Story's Eq. Jur. tion, therefore, is whether a person having

(13th Ed.) § 169, etc.; Wilkinson v. Nelson, the power by appointment to divide and dis

7 Jurist (N. S.), 480; Lucena v. Lucena, 5 tribute real estate amongst certain people Beavan, 249; Morris v. Morris, 33 Grat. (Va.) may accomplish such division and distribu

51, 79; Morse v. Martin, 34 Beavan, 500. tion by appointing real estate to one object

We do not, however, feel compelled to do of the power upon condition of payment of a

this for various reasons. certain sum to other objects. While this

In the first place we doubt whether the apquestion does not seem definitely to have

pellant is in position to complain of this probeen settled in this country, it has long been

vision. The other children and grandchilheld in England that such a course may be

dren who will take the residuary estate into pursued, and we see no reason for not adopt

which the sums charged upon the real estate ing the rule there laid down, that real estate

are directed to be paid are not parties to may be appointed to one subject to a charge

this appeal, although they were parties to by way of payment of money in favor of

the action and appeared upon the entry of and another. Farwell on Powers (2d Ed.), p. 320;

are obviously interested in the judgment apRoberts v. Dixwell, Sug. on Powers, 930; pealed from We are aware that this conRicketts v. Loftus, 4 Y. & C. Ex. 519; Thway-sideration doubtless affects all of the appeltes v. Dye, 2 Vern. 80; Long v. Long, 5 Ves.

lant's rights upon this appeal, but we have 445. It has even been held in England that

preferred to consider the questions discussed the power to appoint real estate gives the

upon their merits. power to sell and appoint the proceeds. Ken

In the second place, it appears from the worthy v. Bates, 6 Ves. 793. While this record that the amount charged against aplatter doctrine has been denied in this coun pellant's interest in the real estate and also try (Stephenson v. Richardson, 88 Pa. 40;

against her share of the residuary estate exAlley v. Lawrence, 12 Gray [Mass.] 373), we

ceeds by many thousands of dollars the do not regard such denial as involving or im amount realized from the sale of her interest pairing the power to make an appointment

in the real estate in the partition action. subject to a charge, and which is less a de

Therefore it is difficult to see how she has parture from the simple and strict exercise

any actual interest in the proceeds of the of the power to appoint the real estate.

real estate and in the question whether it is Passing by the provisions discussed, which we paid to the persons indicated through the regard as the substantial ones, it may be. and residuary estate or by some other manner. possibly is, urged that the provision that the But independent of these difficulties standmoneys charged upon appellant's real estate ing in the way of appellant, we see nothing should be paid to the executor of the testa so objectionable in the provision for the paytrix “as part of her (iny] residuary estate" ment of the sum charged to the executor of

the testatrix as to compel us to declare it

(185 N. Y. 574) illegal. It is true that in terms she directs

In re THOMPSON. said sum to be paid to him as part of her (Court of Appeals of New York. May 25, 1906.) residuary estate, and if the fair construction

COURTS-JURISDICTION OF SURROGATE. and effect of this language was to make the The Surrogate's Court has no jurisdiction same so a part of her residuary estate as to of an action in the nature of a creditors' bill be subject to the contingencies and expenses

to reach the part of the insurance on the life

of deceased in favor of his wife, the executrix, of administration and the payment of debts, purchased with the part of the premium paid we should regard such feature as too objec from deceased's property in excess of $500 a tionable to be permissible. But the language

year; such money not being part of the general used is to be construed with due reference to

assets of the estate; and the fact that the wife

and executrix is a nonresident is immaterial. the general purposes and plans of the testa

Motion for return of remittitur for amendix and in the light of other provisions of

ment and application for reargument. Denied. the will

For former opinion, see 76 N. E. 870. It was quite essential that the testatrix as a mere detail of administration should con Louis Cohen, for the motion. Henry Hill fer upon some person the power to ascertain, Pierce, opposed. compute, and distribute the sums charged upon the real estate subject to her appointment PER CURIAM. This is the second motion in accordance with the plan and amongst made by the respondent for a return of our the persons outlined and specified by her. At remittitur for amendment, the first having the time of executing the will which dischar been denied and no leave given to renew. ged her power of appointment, she could not The motion also includes an application very well effectuate her theory of division by for a reargument, based mainly upon the appointing directly to the persons who were fact that the executrix is a nonresident of the objects of appointment, for she could not

the state, but it appears that she became at that time certainly know what debts and a nonresident in May, 1902, more than three advances might be chargeable to each one. years before the appeal was argued in this Therefore she made the provision in question, court. Both applications are predicated suband, interpreting it as we think we may, it stantially upon the inconvenience to the did not contemplate that the sums charged creditors in this state of going to the state of upon the real estate should become a part of New Jersey in order to sue the former exher residuary estate in any general and un ecutrix, Mrs. Thompson. This fact did not limited sense. They could not strictly be give the Surrogate's Court jurisdiction of an come part of her residuary estate made up action in the nature of a creditor's bill to of her own property at the time of her death, reach assets not belonging to the estate. We and it would be illegal for her, if she could, did not pass upon the merits in our decito subject such proceeds to the discharge of sion, but simply held that the surrogate had her own debts and obligations. We not only no jurisdiction of such a controversy. Matare not called upon to presume any unlawful ter of Thompson, 184 N. Y. 36, 76 N. E. 870. and improper intent upon her part; but, upon Outside facts, not appearing in the record but the contrary, she makes very plain her in shown only by the affidavit of the attorney tention that the sums charged should simply for the creditors, cannot give the surrogate be considered a part of and in connection with jurisdiction if the statute never conferred it. whatever residuary estate she might have Either the surrogate had or had not jurisdicafter payment of expenses, debts and obliga tion to decide the question which arose betions for the purposes of distribution. The tween the creditors and the executrix as to executor is to be regarded as holding such the title to the moneys purchased by the exproceeds simply for the purpose of paying cess of insurance under the statute. It the them to the persons indicated in such respec surrogate had jurisdiction our decision was tive amounts as might be determined by the wrong. If he had no jurisdiction under any directions of the testatrix, and as such in his circumstances, as we unanimously held, then hands they will not be subject to expenses of no outside fact could confer jurisdiction upadministration or debts of the testatrix. Un on him. There is no inconsistency between der this construction so placed by us upon the our decision in this case and that made in provisions of the will we do not see but what Kittel v. Domeyer, 175 N. Y. 205, 67 N. E. the method adopted by the testatrix for divid 433. That was an action in the Supreme ing the real estate or the sums charged there Court in equity and did not directly or inon amongst the different children and grand- | directly involve any question as to the jurischildren will be as simple and safe as any diction of a surrogate. We followed that deother which could have been devised.

cision and made it the basis of our judgment The judgment should be affirmed, with in the case before us as to the rights of costs.

creditors to the excess of insurance and the

basis upon which they rest, namely, legislaCULLEN, C. J., and GRAY, EDWARD T.

tive grant. We held, as we had held before, BARTLETT, WERNER, and CHASE, JJ.,

that such insurance moneys are not general concur. O'BRIEN, J., absent.

assets of the estate but constitute a special Judgment affirmed.

fund created by statute for a special pur

Clarence L. Barber, for plaintiff. Alexander Thain, for defendant.

pose, to be applied on the claims of creditors only after a decree in a court of equity. There is nothing to call for a reargument or for an amendment of the remittitur, and the motion should therefore be denied, with $10 costs.

CULLEN, C. J., O'BRIEN, HAIGHT, VANN, WERNER, and HISCOCK, JJ., concur. WILLARD BARTLETT, J., not sitting.

Motion for reargument denied.

(185 N. Y. 560)

DEERING V. SCHREYER. (Court of Appeals of New York. May 15, 1906.) 1. INTEREST-ATTORNEY AND CLIENT-FUND ON DEPOSIT.

Where a sum was awarded to an owner of land taken for a city street, and a part of it was paid to the city chamberlain pending a controversy as to its distribution between the owner and his attorney in the proceedings, neither of them is entitled to recover interest from the other for the time it was in possession of the city chamberlain, but interest paid by that officer should be treated as principal and divided on the same basis.

[Ed. Note.For cases in point, see vol. 29, Cent. Dig. Interest, § 41.] 2. SAME-FUND IN CUSTODY OF PARTY.

In a controversy as to the distribution of a fund, where one party at times had more than his equitable share, he should pay interest to the other on the excess during the period of his custody.

[Ed. Note.For cases in point, see vol. 29, Cent. Dig. Interest, 8 23.] 3. JUDGMENT-MATTERS CONCLUDED.

Where, in a controversy between an attorney and client as to distribution between them of a sum awarded to the client on the taking of his land for a city street, it was adjudged that the attorney was entitled to one-half the fund after the deduction of taxes due the city, and the part of the judgment relating to deduction of the taxes was not appealed from, but the city afterwards formally disclaimed the taxes before final settlement of the controversy as to the balance of the fund, no deduction should be made on account of taxes.

Cross-Appeals from Supreme Court, Appellate Division, First Department.

Action by James A. Deering against John Schreyer and another. From a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (97 N. Y. Supp. 14), modifying and affirming a judg. ment entered on the decision of the court after a trial at Special Term, cross-appeals are taken, Reversed, and new trial ordered.

PER CURIAM. The essential facts of this case have been stated many times during its passage through the courts. Matter of Lexington Avenue, 30 App. Div. 602, 52 N. Y. Supp. 203; Id., 157 N. Y. 678, 51 N. E. 1092; Deering v. Schreyer, 27 Misc. Rep. 237, 58 N. Y. Supp. 483; Id., 40 App. Div. 633, 58 N. Y. Supp. 1139; Id., 58 App. Div. 322, 68 N. Y. Supp. 1015; Id., 171 N. Y. 451, 64 N. E. 79; Id., 88 App. Div. 457, 85 N. Y. Supp. 275; Id., 110 App. Div. 200, 97 N. Y. Supp. 14.

The main controversy at the present stage of the litigation is over the items of interest and taxes, and we lay down the following as the rules to govern the distribution of the fund with reference to those subjects:

1. Neither party should pay to the other interest on the fund or any part thereof while it was in the custody of the city chamberlain. The interest paid by that officer should be treated as principal and divided on the same basis. The party who has had more than his equitable share of the fund in his custody should pay interest to the other on the excess during the period of such custody.

2. The claim of the city for taxes having been formally abandoned by the disclaimer, dated May 4, 1905, there should be no deduction from the fund, on account of taxes, before division is made between the parties. The judgment rendered on a former trial whereby the city was directed to pay to the defendant Schreyer the sum retained as security for taxes, with interest thereon, did not adjudicate as between the plaintiff and the defendant Schreyer that said amount should belong to the latter finally and absolutely, with no right in the court on the new trial that was ordered to charge the same to Mr. Schreyer as so much paid to him from the fund.

Neither judgment below was in accordance with these rules, and hence we reverse both, and order a new trial, with costs to abide the final award of costs.

CULLEN, C. J., O'BRIEN, HAIGHT, VANN, WERNER, WILLARD BARTLETT, and HISCOCK, JJ., concur.

Judgment reversed, etc.

(166 Ind. 537)

NULL V. WILLIAMSON. (No. 20,626.) (Supreme Court of Indiana. May 29, 1906.) 1. EASEMENT ACQUISITION PRESCRIPTION -EVIDENCE.

Where there has been open and continuous use of an easement for the period of limitation concerning ejectment, the owner of the seryient tenement may not show that there was no grant, but he may show by facts and circumstances that there was not such a holding as would ripen into a legal title.

[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Easements, § 91.] 2. SAME-PERMISSIVE USE.

Where the facts and circumstances of a case show that the use of a way was merely permissive, they are fatal to an easement by prescription.

[Ed. Note. For cases in point, see vol. 17, Cent. Dig. Easements, § 24.] 3. SAME-PRESUMPTION-ADVERSE USE.

Where the use of a space, left open by the owner, by one who claimed an easement was shared by the public, it is presumed that the use was not under an exclusive or particular claim of right.

[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Easements, $ 89.] 4. SAME-SUFFICIENCY OF EVIDENCE.

Evidence held to show that the use of the way was not adverse, but permissive.

Appeal from Circuit Court, Allen County ; E. O'Rourke, Judge.

Action by Jessie C. Williamson against Lycurgus S. Null. From a judgment in favor of plaintiff, defendant appeals. Transferred from Appellate Court, under section 1337u, Burns' Ann. St. 1901. Reversed, with direction to grant a new trial.

W. & E. Leonard, for appellant. Harper & Eggeman, for appellee.

graph, some facts can only be said to appear, if at all, as matters of necessary inference from facts well pleaded. As to the extent that some essential matters may be said to thus appear, the views of the members of this court are quite divergent. However, as doubt does not exist as to the requirements of a prescription in such an action, and as the case must be reversed, as there is a failure of proof, we shall put our reversal on that ground. As to the second paragraph of the amended complaint, we may say, in passing, that its validity is a moot question. The evidence, as it developed on the trial, had no tendency to show the existence of a public alley, out of which a subsidiary right in appellee could grow, and, therefore, the existence of said paragraph may be disregarded. We proceed to the question as to whether the court erred in overruling appellant's motion for a new trial. As conducive to a more ready understanding of the matter, we exhibit the following plat of the locus in quo:

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GILLETT, J. Appellee filed a complaint in two paragraphs against appellant. The first was to establish, and to enjoin the obstruction of, a private way, extending along the north end of certain lots in the town of New Haven, from a public street to a barn which was situate about 215 feet from said street. The other paragraph seems to have been founded on the theory that the strip of land in controversy is a public alley, and that, as it had been obstructed, and as the obstruction caused a special injury to appellee, she was entitled to maintain a suit to enjoin appellant from obstructing the alleged way.

As every easement lies in grant, actual or presumed, appellee might have greatly simplified the first paragraph of her amended complaint by alleging her ownership of the way claimed, leaving to the evidence to disclose whether she had an easement by prescription. Hall v. Hedrick, 125 Ind. 326, 25 N. E. 350; Mitchell V. Bain, 142 Ind. 604, 606, 42 N. E. 230. The elements which constitute a prescriptive easement are well understood. Davis v. Cleveland, etc., R. Co., 140 Ind. 468, 39 N. E. 495, and cases there cited. Owing to the existence of a recital in said para

Appellee is the owner of lots 21, 22, 23, and 24, exhibited on said plat, and her effort upon the trial was to establish a private driveway, 10 feet wide, immediately north of said lots, on the berm or heel path of what was the Wabash & Erie Canal, from Broadway street to a barn which stands 12 feet south of the north line of said lot 24. Appellee deraigns her title to said lots from the canal company. About 1858 a gristmill was erected on lot 21, about forty feet south of said berm, and this mill was operated by various persons until 1881 or 1882, when it was destroyed by fire. There was also, during a few of the earlier years of said time, a shingle mill on lot 21, situate north of the gristmill. From 1860 to 1881 there was a hogpen in the northeast corner of lot 23. Hogs were kept in said pen by the gristmill people from 1860 until 1866, and it was the practice

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to feed them from the north end thereof. The barn above mentioned was erected in 1863, and, until the burning of the gristmill, it was used as a stable for the horses that were used in connection with said business. Lots 21 and 22 were not inclosed by a fence until long after the destruction of said mill. The other lots had a fence along the north line thereof. The canal was abandoned as a waterway in 1881. As will be observed from the plat, there was a space left between the waterway and the lots to the south thereof through said addition. This space was occupied by the berm of the canal; the purpose of it being, as we judicially know, to afford a level space which would keep dirt that might be further back from falling into the water. The north end of lots 23 and 24 was low, and, as there was a good path on the berm from Broadway, it became the habit of the men who operated the mill to use the berm as a means to get to and from the barn. They and their customers also made frequent use of the east end of the way in passing to the north of said mill. The regular dock was on the east side of Broadway, but until the canal was abandoned boats occasionally tied up, and loaded and unloaded freight, opposite lots 21 and 22, since there were no dock charges made for landing at that point. Some of this freight was consigned to the proprietors of said mill, and, as it was customary to store freight on the berm, near to the canal, the way along said lots 21 and 22 was used by the people who were shipping or receiving freight. To the west of lot 22 the berm grew narrower, and, presumably because it was not wide enough to pile freight on and yet leave a driveway, it was the practice for boats to land as near to the bridge over Broadway as possible. To the west of the barn the berm could not be traveled except at times of low water, and there was no evidence of any substantial use of it for the purpose of travel beyond that point. On three occasions said mill owners placed a number of loads of gravel on the alleged way next to the barn, in order to make the way easier to travel at that point. Appellee's former husband, one Volney Powers, acquired an interest in lots 21 and 22 in 1857, and he also acquired an interest in lots 23 and 24 in 1864, and from the latter date forward, with the exception of a short time prior to April 6, 1882, the title to said property has been either in said Powers or in appellee. During the time the mill was in operation, however, there were outstanding interests in said property held by persons who were engaged in the business of operating the mill. April 6, 1882, appellee became the sole owner of said lots, and during the most of the time down to the latter part of April, 1902, at which time appellant obstructed the alleged way, the barn has been occupied by tenants.

We may say, however, in passing, that the evidence of the extent of the user since 1897

(after a brick sidewalk was built along the west side of Broadway) is very vague, and it is scracely sufficient to warrant an affirmative finding that it was continuous. There has never been an assertion of a right to use the strip in question, and the tenants used it, without any direction from the owner, simply because it was the only convenient way to the barn. Appellant has a record title from the canal company. So far as the statement of facts is concerned, it but remains to call attention to the evidence bearing on the question as to whether the user was under claim of right and exclusive. Appellee's counsel asked of her witness, Allen H. Dougal, who had been a part owner of said lots and a partner in the business from 1866 to 1875, the following question concerning said way: "You may state whether, how it was used, by the acquiescence of the canal company, or by agreement, or how?” The witness answered: “Why, we used it because we had to use it, and we were never denied the use of it.” This witness subsequently testified that he never claimed any exclusive right in said way; that he thought it belonged to the public. Another witness for appellee, Charles E. Stapleford, who had also been a part owner of said lots and engaged in the business, testified that he made no claim whatever to the berm of the canal. Appellee, who was a witness on her own behalf, was asked the following question on her direct examination: “You may tell the court whether or not you always claimed the right to enter the mill and the shingle mill, while it was there, and the stable, from the heel path.” She answered: "We simply used it. We always used it without any objection from any one." We take the following further questions and answers from her examination, for the purpose of showing her understanding of the facts: “Q. There was no permission given you by anybody. You simply used it? A. We used it without any permission that I know about. Q. The very reason you used that was because the canal company left that space open? Wasn't it because of that? A. We used it because it seemed to be the only way to get to the stable. Q. You didn't claim the exclusive right to it? Is that it? A. I don't know as we did. We used it and took the right to go there all the time. Q. Anybody else who wanted to go there used it too? Did they use it generally? A. They used it just as they do in such towns. You go anywhere you please. Q. Can you explain why you didn't build the fence north of this line, taking in your easement, instead of south of it? A. We didn't claim it. We used it. We didn't claim it as our own. Q. You didn't claim to own that strip? A. No, sir; if we had claimed it, we would have fenced it in. Q. You merely claimed the right to use it? A. We considered that we had the right to use it because we had always used it for years before." Allen M. Hartzell, who, with

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