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The doctrine of equitable conversion_rests upon that principle. 1 Pom. Eq. Jur. § 161. The power to receive the rents and profits of the land intermediate the death of the testatrix and the sale did not qualify the character as personalty of the land in the hands of the executors. That is incidental to the direction to sell, and the rents and profits so received also have the character of personalty, and are assets in the hands of the executor. Stagg v. Stagg v. Jackson, 1 N. Y. 206; Lent v. Howard, 89 N.Y. 169. The title to the personalty vested in the executors. by operation of law; and, to accomplish the purposes of the imperative direction in the will in that respect, it was within their power, and imposed upon them as a duty, by virtue of their office, to execute the power of sale. Lockman v. Reilly, 95 N. Y. 64; Meakings v. Cromwell, 5 N. Y. 136; Bogert v. Hertell, 4 Hill, 492. As the consequence of this, the proceeds of the sale, when received by the executors, would be legal assets in their hands, for which they would be required to account, (Hood v. Hood, 85 N. Y. 561;) and if any duties were to follow in respect to one-third of the fund which would require the function of a trustee to execute, the executors, as such, would remain responsible for it until the severance, in some manner, by them of the trust fund, (In re Hood, 98 N. Y. 363.)

We have proceeded far enough to show the relation of the executors, as such, to the powers given by the will, sufficiently for the purpose of the question here; and it is unnecessary to consider the nature of the duties which would be assumed after the sale, in the management of the fund, the income of which they were directed to pay Mrs. Bush. The power of sale was vested in the executors; and, in view of the later authority giving construction to the statute in that respect, (2 Rev. St. p. 72, § 22,) that power of sale would be taken by an administrator with the will annexed. Mott v. Ackerman, 92 N. Y. 539. It is, however, contended by the plaintiff's counsel that, notwithstanding the correctness of the proposition just stated, the power given to sell created a trust for that purpose, and as such came within the jurisdiction of the supreme court, and therefore the acceptance of the resignation of Boerum as trustee, and the appointment of Mrs. Bush as such by the court, pursuant to the statute, was effectual to vest in the latter the power to make the sale. 1 Rev. St. p. 730, 88 69-71. There is no doubt about the power of the court to provide the means for the execution of a trust when there ceases to be a trustee to complete it. The statute provides that, in case of death of a trustee of an unexecuted express trust, the trust shall vest in the court of chancery, (now in the supreme court,) with all the powers and duties of the original trustee, and shall be executed by some person appointed for the purpose under the direction of the court, (Id. § 68;) and that provision is applicable to powers in trust, (Id. p. 734, § 102.) It is said by text v.22N.E.no.16-24

and judicial writers to the effect that the court of equity will not permit a trust to fail for want of a trustee to execute it. This means that the power of appointment of a trustee will be exercised by the court when occasion properly arises requiring it. Such were the cases of Leggett v. Hunter, 19 N. Y. 445; Delaney v. McCormack, 88 N. Y. 174; Farrar v. McCue, 89 N. Y. 139; Cooke v. Platt, 98 N. Y. 35; Rogers v. Rogers, 111 N. Y. 228, 18 N. E. Rep. 636; and they are cited by counsel to support the contention that the trustee appointed by the court in the present case was vested with the power to make the sale and conveyance in question. It may be observed that those cases presented express trusts and powers in trusts within the Revised Statutes, and therefore came within the statute before referred to providing for the appointment of trustees to execute such trusts, and the appointments were essential for the execution of the trusts. The power of sale given by the will in question is not within the statutory term of express trusts, and no title passed to the executor of the land as such; and "a general power is in trust when any person or class of persons other than the grantee of such power is designated as entitled to the proceeds, or any portion of the proceeds or other benefits, to result from the execution of the power." 1 Rev. St. p. 734, § 94.

The statute upon the subject of trusts is not applicable to that created by this will, although analogous principles, to some extent, at least, are applied to those of personal property. Kane v. Gott, 24 Wend. 641; Cutting v. Cutting, 86 N. Y. 545. It may be assumed that the power is inherent in the supreme court, without the aid of the statute, to administer trusts, in so far that it may, upon the death or disability of a trustee of an unexecuted trust, appoint another to execute it; and for adequate cause may remove a trustee, and supply his place with another to complete the execution of a trust. This proposition is not applicable to an executor so far as relates to the duties of his office as such. As applied to him, the power is exclusively in the probate court. The acceptance of the resignation, as trustee, of the person named as executor in the will did not, therefore, have the effect to relieve him from the execution, so far as it remained unexecuted, of the trust which was devolved upon him by virtue of the office of executor. 1 Perry, Trusts, § 281. In re Van Wyck, 1 Barb. Ch. 565; Quackenboss v. Southwick, 41 N. Y. 117. While his relation as trustee, as distinguished from that of executor, may be treated as terminated by force of the order of the court, that of executor remained; and, as held in Mott v. Ackerman, supra, the power to make the sale being within the functions of the office of the executor, there is no occasion to extend the inquiry whether it would be in the jurisdiction of the supreme court to appoint a trustee to execute such a trust or power as that in question, in the

bell, 3 Ves. 363; Patterson v. Ellis, 11 Wend. 259; Warner v. Durant, 76 N. Y. 133; Delaney v. McCormack, 88 N. Y. 174, 183. Such suspension being for a time not dependent upon lives, and not more than two, in being at the time of the death of the testatrix, renders the limitation over void, unless it is saved by some provision of the statute. We find none in its support. While the suspension of the absolute power of alienation of real estate may be extended beyond two lives limited, so as to embrace the period of minority of a child to whom the remainder is limited, and such suspension may be created by

St. p. 723, §§ 15, 16; Id. p. 726, § 37,) our attention is called to no statute qualifying, in that or any manner, the effect of the provision before referred to, limiting the time of suspension of the absolute ownership of personal property. The consequence seems to be that the direction of the testatrix, by her will, to pay the fund to such children in the event mentioned, or, on their failure to arrive at the age of majority, to pay it to Mr. Boerum and Mrs. Vanderveer, was in con

event of a vacancy in the office of executor, | may arise, if Mrs. Bush should leave children or whether the power must, in such case, nec- her surviving, the observance of the direction essarily be executed by an administrator with of the will will operate to suspend the abthe will annexed. While the executor re-solute ownership of the fund for some period mains in his relation as such, the court can- of time after her death. Batsford v. Kebnot appoint a trustee to supersede him in the exercise of his functions as executor. It cannot be assumed, upon the findings of the trial court, that all the duties of that officer had been discharged by him at the time his resignation of trustee was accepted by the court. The conclusion must follow that the power to make the sale and conveyance remained in the executor, and that Mrs. Bush did not, through her appointment as trustee, take such power. This was the ground upon which the general term placed its determination, and, so far as appears, the inquiry there was not extended further than that. There is a further question, having rela-a contingent limitation of the fee, (1 Rev. tion to the validity of the provisions of the will by which the testatrix sought to give the fund to the children of Mrs. Bush, if she left any surviving her, and in the event there mentioned. This question arises upon the statute, which provides that "the absolute ownership of personal property shall not be suspended, by any limitation or condition whatever, for a longer period than during the continuance, and until the termination, of not more than two lives in being at the date of the instrument containing such limi-travention of the statute, and void. Manice tation or condition; or, if such instrument be a will, for not more than two lives in being at the death of the testator." 1 Rev. St. p. 773, § 1. At the time of the death of the testatrix Mrs. Bush had no children living, and she never has had any; but, assuming that she does not survive her husband, and that on her death she leaves children surviv-sonalty, will, unless given other direction in ing her under the age of 21 years, the inquiry arises whether the limitation over to them is valid, and that depends upon the determination of the further question, whether the absolute ownership would then vest in such children. If it would, there would be no unlawful suspension. Otherwise, it is difficult to see how the provision made for them by the will can be supported. The will does not, in terms, give the fund to the children, Such issue of Mrs. Bush, if she should but directs the executors, in the events men- leave any her surviving, will therefore have tioned, to pay it to them. The postponement no interest in this fund or property derived of the time of payment of a gift is not im- from the provisions of the will; and, in the portant; that alone will not qualify the abso- event she does not survive her husband, her lute character of the ownership. The vest-interest is limited to a life-estate, or to the ing of it is suspended if some period in the income of the fund during her life. As a future is annexed to the substance of the consequence, then, and in that case, her gift. In the present case the conditions up- brother and sister will be the only heirs and on which the right of the children to take next of kin of the testatrix. They have conthe fund depend are to or may arise in the veyed and transferred their unconditional future, beyond the time of the death of the and contingent interest in the property to mother, and the contingency is uncertain. her. By that conveyance Mrs. Bush acquired The children must reach the age of 21 years, the entire beneficial interest in the property. and, if they do not, the fact that the direction This enabled her, individually, to convey it is that the fund go to Mr. Boerum and Mrs. to the plaintiff. Her deed to the plaintiff Vanderveer is not consistent with the vest- had the effect to vest in him the title to the ing of the absolute ownership in the children land. Since all the parties having any beneon the death of their mother. It is therefore ficial interest in it or its proceeds have thus clear that, in the case supposed, and which joined in and made the conveyance, there re

v. Manice, 43 N. Y. 303. It follows that, if Mrs. Bush does not survive her husband, the testatrix will have died intestate as to that fund, or, in case the power of sale is not exercised by sale of the land during her life, the intestacy may be applicable to it as real estate; and such property, either as land or per

the mean time by those having a contingent interest in it, go to the heirs or next of kin of the testatrix,-those who were such at the time of the death of the testatrix; and not to those who will be such at the time the contingency occurs which produces the intestacy. 1 Rev. St. p. 751; 2 Rev. St. p. 96; Hoes v. Van Hoesen, 1 Barb. Ch. 379; In re Kane, 2 Barb. Ch. 375.

mains no occasion for the exercise of the maturity, commenced this action. The depower of sale given by the will; and, upon fendants, E. D. Bradshaw and Reuben Rowthe principle that the beneficiaries in the eq-land, suffered default. This defendant in uitable conversion of real property into per- and by his answer, and upon the trial, consonalty may effectually elect to have a re-tended that he was not liable as indorser upon conversion into realty, and take it as land, the note for the reason that, when the note rather than the proceeds of it, we think the exercise of such power of sale may be deemed dispensed with and defeated. 2 Story, Eq. Jur. § 793; Hetzel v. Barber, 69 N. Y. 1; Prentice v. Janssen, 79 N. Y. 478; Armstrong v. McKelvey, 104 N. Y. 179, 10 N. E. Rep. 266. In this case the beneficiaries are in a situation to do so, as the title of the property, treating it as land, was in those three, (brother and two sisters,) or some of them, and was nowhere else. There is therefore no intervening right of any other party to be prejudiced. The contingent and unconditional estates were united in Mrs. Bush by the conveyance to her.

became due, it was not presented to the maker for payment, and notice of its dishonor given. Upon the trial plaintiff insisted that demand and notice of maturity had been waived by the defendant prior to the date whereon the note became due; and the plaintiff testified to a conversation which he claimed to have had with the defendant which it was insisted constituted, in legal effect, a waiver of his right to have a demand for payment made, and notice of non-payment thereof given to him. The defendant denied having the conversation testified to by the plaintiff. In submitting the question to the jury the court charged that if they believe the plaintiff's version of what took place between him and the defendant there was a waiver, otherwise not. The jury found in favor of the plaintiff, and the judgment entered thereupon was affirmed by the general term. In the disposition of the case then, by this court, the facts most favorable to the plaintiff must be deemed to have been found in his favor. The liability of an indorser of a note to pay it is made to depend upon the implied condition that payment shall be demanded of the maker at maturity, and, in the event of default, that notice of non-payment shall be immediately given to the indorser. These conditions are (Court of Appeals of New York, Second Divis- for the benefit of the indorser, to enable

These views lead to the conclusion that the defendant has taken, by the conveyance to him, the title which the plaintiff undertook to convey; but, as the determination is made upon a ground not presented to or considered by the court below, the plaintiff should not have costs.

The order of the general term should be reversed, and the judgment entered upon the decision of the trial court affirmed. All con

cur.

(116 N. Y. 188)

CADY v. BRADSHAW et al.1

ion. Oct. 8, 1889.)

PROMISSORY NOTE-WAIVER OF DEMAND AND
NOTICE.

1. Before the date when the note matured the defendant, indorser, asked the holder to extend it another year. The holder said he was willing if defendant would let his name be on it, and let it be as it was, and further asked defendant if he and R., another indorser, would let their names remain on the note. Defendant said yes, if plaintiff would let the note stand just as it was. Before maturity, the holder saw R., who consented to an extension. Held, that the facts constituted a waiver of fendant's right to demand of payment and notice of non-payment.

2. It was proper to show, on cross-examination of defendant, that the maker of the note had failed in business. The jury had a right to take into consideration the extent of the interest of the witness, and such fact would show that, in the event of defeat, the witness would have to pay the whole judgment without any prospect of reimbursement from the maker.

Appeal from supreme court, general term, fifth department.

John H. Camp, for appellant. E. W. Hamm, for appellee.

PARKER, J. The defendant Hiram Bradshaw indorsed a promissory note made by E. D. Bradshaw to the order of Reuben Rowland, and indorsed by him. The note was for $1,000, payable one year after its date, which was July 11, 1882. It was not paid when due, and thereafter this plaintiff, who became the owner and holder thereof before

1 Affirming 40 Hun, 632, mem.

him to have prompt notice of the default, so that he may immediately take steps to provide for his indemnity. The indorser may, however, prior to maturity, waive the conditions of demand and notice of non-payment. The waiver may be made either verbally or in writing. It is not necessary that the waiver should be direct and positive. It may result from implication and usage, or from any understanding between the parties which is of a character to satisfy the mind that a waiver is intended. 1 Pars. Notes & B. 594. The assent must, however, be clearly established, and will not be inferred from doubtful or equivocal acts or language. Ross v. Hurd, 71 N. Y. 14.

The facts which are relied upon to constitute a waiver, on the part of the indorser, of demand and notice of non-payment, and which must be assumed by this court to have been found in favor of the plaintiff, are as follows: Prior to the date at which the note matured this defendant called upon the plaintiff, and asked him if he would extend the note another year if the interest should be paid up. He said he wanted it extended another year, and Ed. (meaning the maker) Plaintiff rewould pay up the interest. sponded that he was willing, if the defendant would let his name be on it, and let it be as it was. Plaintiff further asked the defendant if he and Mr. Rowland would let their names remain on the note, and the defend

think the ruling of the court was not error. The judgment appealed from should be affirmed, with costs. All concur, except BRADLEY and HAIGHT, JJ., not sitting.

(116 N. Y. 193)

PATTERSON v. ROBINSON et al.1 (Court of Appeals of New York, Second Division. Oct. 8, 1889.)

TEES-PAYMENT.

ant said yes, if plaintiff would let the | have the right to take into consideration the note stand just as it was. Before the ma- extent of the interest of a witness in deterturity of the note, plaintiff saw Rowland, mining the measure of credibility which who consented to the extension. The ques- ought to be given to his testimony. That tion presented, therefore, is whether the rule would seem to make it proper to show facts proven constituted a waiver of the in- on cross-examination, as was done in this dorser's right to a demand of payment and case, that in the event of defeat the witness notice of non-payment thereof. Now it is would have to pay the whole judgment, withtrue that the indorser did not say in so many out any prospect of reimbursement from the words, "I waive demand and notice of non-maker, as might otherwise be expected. We payment;" but, when he asked that the time of payment be extended a year, he in effect requested that no demand of payment be made at maturity. That request, coupled with his promise to let his name remain on the note, if the time of payment should be extended, must, we think, be held to constitute, in legal effect, a waiver of demand and notice of non-payment. Cady v. Bradshaw, 23 Wkly. Dig. 559; Pars. Notes & B. 587; CORPORATIONS-INDIVIDUAL LIABILITY OF TRUSLeonard v. Gary, 10 Wend. 508; Spencer v. Harvey, 17 Wend. 489; Hunter v. Hook, 64 Barb. 475; Leffingwell White, 1 Johns. Cas. 99; Rope v. Van Wagner, 3 N. Y. St. Rep. 157; Pugh v. McCormick, 14 Wall. 361; Reynolds v. Douglass, 12 Pet. 497; 2 Daniel, Neg. Inst. 144, 145. The case of Sheldon v. Horton, 43 N. Y. 93, seems to be decisive of the question presented. In that case the holder of the note went to the indorser and told him that the maker wanted the note to remain another year, and asked him if he were willing; and he said he was willing to let it remain; and he took the note and looked it over, and said it was a good note. The court held that the reply of the indorser constituted a waiver of demand and notice at maturity, and their omission did not discharge the indorser. The case of Bank v. Dill, 5 Hill, 403, pressed upon our attention by appellant's counsel, we regard as clearly distinguishable from the case under consideration. In that case the proposition of the

1. In an action by a bank receiver against certhe mill was indebted in excess of its capital stock tain trustees of a mill company, it appeared that to the bank; that a contract was made by which the bank agreed to treat the debt as dead or suspended, and thereafter to cash the mill paper when indorsed by one of the defendants and the bank president individually, and that subsequent mill deposits were to be credited on the new account. They were credited on the old account, and the innotice of its dishonor. Held, that defendants were dorsers of the paper under the new account had no not liable under section 23, c. 40, Laws N. Y. 1848, making trustees individually liable for indebtedness to which they have assented in excess of the made by the mill under the contract was paid, so capital stock of the company, as the new paper far as defendants were concerned.

2. The burden was on plaintiff to show that the ized or was not ratified by the boards, and in the contract between the corporations was unauthorabsence of such proof the presumption is in favor of its validity.

Appeal from a judgment of the general term of the third judicial department, affirming a judgment entered on the report of a referee, dismissing the complaint.

indorser was to the effect that the maker Since 1865 the "Schaghticoke Woolen Mill" would pay the note in part, and give a re- has been a manufacturing corporation, duly newal note for the balance. No time was incorporated under chapter 40 of the Laws asked in which to make this part payment of 1848, with a capital stock of $250,000. and give the renewal note, and no agreement Its affairs have been managed by five truswas made to extend the time of payment; tees. Daniel Robinson was a trustee from while in the case under review the agreement was not only to extend the time of payment for one year, but it was also distinctly agreed that the note should remain as it was, with the name of the indorser

thereon.

The appellant calls our attention to but one other question. Against the defendant's objection, Hiram Bradshaw was compelled to answer this question: "Did your brother fail in business?" An exception was duly taken, and then the defendant answered, "Yes, sir." Now it is quite clear that this evidence was not of any materiality whatsoever upon the question directly in issue, as to whether defendant waived demand and notice at maturity; but that question depended solely upon the testimony of the plaintiff and defendant, who emphatically contradicted each other. Now it is the rule that the jury

its organization until its failure, in November, 1878, and James E. Pinkham was superintendent of the mill from 1866 until its failure, and June 18, 1878, he also became a trustee and the treasurer of the corporation, and so remained until its failure. For several years before May 1, 1875, the woolen mill kept its account with the Merchants' & Mechanics' Bank of Troy; and, under a mutual arrangement, the bank paid the checks and commercial paper of the mill when presented, without regard to the state of its bank account. When the account showed a balance to the credit of the mill, the previously paid checks would be first charged to the account, and, after they were charged, the oldest past due commercial paper was charged as rapidly as it could be without causing an

1 Affirming 47 Hun, 637, mem.

this commercial paper of the mill, represent-
ing $419,361, and January 24, 1879, began
this action to recover of the trustees of the
mill the sum by which its indebtedness ex-
ceeded its capital stock, upon the ground that
they were liable for the excess, under the
twenty-third section of chapter 40, Laws
1848, which provides: "Sec. 23. If the in-
debtedness of any such company shall at any
time exceed the amount of its capital stock,
the trustees of such company assenting there-
to shall be personally and individually liable
for such excess to the creditors of such com-
pany."
Esek

Edwin Countryman, for appellant.
Cowen, for respondents.

apparent overdraft. Checks and paper paid when the account was not good were carried by the bank as cash items until they were charged up. May 1, 1875, the mill owed the bank $300,776, which was $50,776 in excess of its capital stock, and it was owing other creditors such sums that its indebtedness then exceeded its capital stock by more than $185,000. At this date D. Thomas Vail was the president and a director of the bank, and the president and a trustee of the mill. On the date last mentioned Mr. Vail, assuming to act as president for both corporations, entered into the following oral contract with Daniel Robinson: "That the debt of the Schaghticoke Woolen Mills, then due to the Merchants' & Mechanics' Bank of Troy, should be treated as dead or suspended debt; that said Vail, as president of the woolen company, should make drafts on the treasurer of said company, which after acceptance by him should be indorsed by Vail and Robinson individually; that they should also individually guaranty other paper of said company the failure of the bank, a new indebtedness, when advisable, which paper, so indorsed and guarantied, should be used in the purchase of wool for the mills in manufacturing cloth; that such wool, and the cloth manufactured therefrom, should be the property of Vail and Robinson until the cloth was disposed of, and that the proceeds thereof should be applied to the payment of the supplies, labor, and current expenses of the mills and of the paper so indorsed and guarantied, and no part of such proceeds were to be applied to the payment of the old or suspended debt held by the bank until all outstanding claims for such paper, supplies, labor, and current expenses were satisfied."

Between May 1, 1875, and November 1, 1878, the business of the mill was carried on under this contract, Vail and Robinson indorsing, for the accommodation of the mill, such paper as it made in the course of its business. This paper was presented to and paid by the bank; but, instead of canceling and charging it to the account of the mill, the bank held the paper as a liability against the mill. No notice of the dishonor of this paper was given to the indorsers. After May 1, 1875, the bank charged to the account of the mill its current checks, but, instead of charging to its account its commercial paper made and paid after that date, it charged up to the account, as rapidly as could be done without producing an apparent overdraft, the indebtedness which had accrued prior to May 1, 1875; so that when the bank failed, the debt, $300,776, existing May 1, 1875, had been wholly paid, and the bank had in its possession the commercial paper of the mill made and paid since May 1, 1875, to the amount of $419,361, which had been indorsed by Vail and Robinson. October 31, 1878, the bank failed, and November 27, 1878, the plaintiff was duly appointed its receiver. In November, 1878, the woolen mill failed, and Mr. Julliard was appointed its receiver. The receiver of the bank found

FOLLETT, C. J., (after stating the facts as above.) The plaintiff asserts that the claims, amounting to $300,776, held by the bank against the mill on the 1st day of May, 1875, have been fully and legally paid, and that between May 1, 1875, and the date of

amounting to $419,361, was incurred by the mill to the bank, with the assent of the defendants, and that they are liable to the receiver of the bank for the sums by which the indebtedness exceeds the capital stock of the mill. The referee found as a fact: "(8) That to the creation of the debt of the Schaghticoke Woolen Mills to the Merchants' & Mechanics' Bank of Troy, existing on the 1st day of May, 1875, or to any part thereof, the defendant Daniel Robinson did not assent." As a conclusion of law: "(1) That neither of the defendants are liable for any part of the indebtedness of the Schaghticoke Woolen Mills in excess of its capital stock existing on the 1st day of May, 1875." The plaintiff insists that the eighth finding of fact is without any evidence tending to sustain it; that it is a ruling upon a question of law; and that the referee erred in finding it, and the general term in sustaining it. If the plaintiff's position is, in fact, well taken, he should have excepted to the eighth finding, pursuant to section 993 of the Code of Civil Procedure. Brush v. Lee, 36 N. Y. 49, 53; Gidley v. Gidley, 65 N. Y. 169, 171; Sickles v. Flanagan, 79 N. Y. 224; Mead v. Smith, 28 Hun, 639. But no exception was taken to this finding, nor was an exception taken to the conclusion of law above quoted, which seems to be a sequence to the finding of fact above quoted. Neither did the plaintiff request the referee to find the converse of this finding of fact, pursuant to section 1023 of the Code of Civil Procedure. It does not appear that the case contains all of the evidence, or all bearing upon the eighth finding; and on such a record this court must presume that the finding was sustained by the evidence. Porter v. Smith, 107 N. Y. 531, 14 N. E. Rep. 446; Billings v. Russell, 101 N. Y. 226, 4 N. E. Rep. 531; Cox v. James, 45 N. Y. 557. However, it is quite unnecessary to determine whether Robinson assented, within the meaning of the section, to the creation of the

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