the time it is made. Meeker v. Meeker, 16 Conn. 387; Sherwood v. Smith, 23 Conn. 521; Jackson v. Matsdorf, 11 Johns. 91; Hine v. Hine, 39 Barb. 507; Proseus v. McIntyre, 5 Barb. 424.

As bearing upon the question of intent, it should be remembered that the larger part of the estate was retained by the donor, and not given away, but is distributed under the will. The intent is generally arrived at by what took place at the time, or by a charge made by the parent against the child, or by some writing given to the parent by the child. Kingsbury's Appeal, 44 Pa. St. 460.

The doctrine of advancement means that the property must be accounted for as a part of the estate, in order that when an equal division is made the donee shall receive his share only, including the advancement. Grattan v. Grattan, 18 Ill. 170.

In Camp v. Camp, 18 Hun, 217, the testator, by will, directed his executor to sell his estate, both real and personal, and divide the proceeds thereof equally among his 10 children, naming them. Prior to his death the testator had advanced several sums of money to several of his children, taking from them papers acknowledging the receipt of the different sums as a part of my apportionment of his estate, to be deducted out of the estate of the said testator, etc. It was held that, as the will did not direct these advances to be charged against the several children, they were not to be considered in dividing the estate.

DANFORTH, J. On the sixteenth of April, 1878, Charles Morgan made a will in these words: "All my property, real and personal, is hereby devised and bequeathed as provided by the laws of the state of New York in cases of intestacy." He appointed his wife, Mary J. Morgan, executrix, and on the eighth of May died. Letters testamentary were duly issued, and in February, 1880, the executrix applied to the surrogate for a judicial settlement of her account. Among other things, (not material upon any question before us,) she charged herself with 17,940 shares of the capital stock of Morgan's Louisiana and Texas Railroad and Steam-ship Company. Objections were filed in behalf of several grandchildren and great-grandchildren, to the effect that she should have charged herself with, and accounted for, 32,000 other shares of that stock. The testator, besides his widow and these objectors, also left surviving two married daughters, Mrs. Frances E. Quintard and Mrs. Maria L. Whitney, and a grandson, Richard J. Morgan; and, anticipating a claim that these shares had been transferred by the testator before the execution of his will, the contestants also objected that there never was complete delivery of the shares, but, if there were, then it was the result of undue influence; and, if not that, the account was wrong, because it fails to charge such of the above-named persons and Mrs. Mary J. Morgan, the widow of the testator, with 7,500 shares of that stock, "as advancements to each of them by the decedent within thirty days previous to his death."

By consent of all parties, the surrogate sent the account to a referee, with directions "that he proceed to take testimony as to the facts in relation thereto, to examine the account rendered, to hear and determine all disputed claims and other matters relating to said account, and to make report thereon with all convenient speed, subject to the confirmation of the surrogate."

The referee, after a protracted hearing of testimony offered by all the parties, made a report, by which he found that none of the objections were well taken. Upon motion, the surrogate confirmed the report of the referee, and, upon appeal to the general term, that decision of the surrogate was affirmed. In all these tribunals it was held that the transfers of the 32,000 shares were complete and effectual before the execution of the will, and that the principle of advancement was not applicable. It thus appears that the arguments of the appellants have failed to convince either one of the three

tribunals that the positions lying at the bottom of their contention were well founded, and, after the most careful consideration, we find no error in the determination of which they now complain. So far, indeed, as Mr. Quintard and Mr. Whitney are concerned, I do not understand that the learned counsel for the appellant makes any claim that the shares transferred to them are to go back to the estate, or be taken account of in any way, as against the executrix. So far as the shares claimed by Mrs. Morgan are concerned, they cannot be affected by any considerations growing out of the statute relating to advancements, for such a set-off is allowed only against children. 1 Rev. St. p. 754, § 23. So far as the validity of the transfer of that portion, and the residue of the 30,000 shares, depends upon a perfected delivery to the donees, the evidence warrants the conclusion that nothing was left undone which was necessary to be done to deprive Mr. Morgan of the title thereto.

Upon the question of advancement, the cases cited by the appellants are numerous; but, upon the circumstances of the case, ineffectual to change the result reached by the court below. They do not show, nor has any case been found to show, that a gift to one, entitled as a child to share in the estate of the donor, will be held to be an advancement when it expressly appears to have been the intention of the father that the gift should not be considered as such. The evidence goes to that length in this case, and overcomes the presumption which might otherwise attach. It sustains the finding of the surrogate that "the transfers were not made by Charles Morgan as advancements, or by way of settlement or portion in life, but were made for business reasons, connected with or growing out of the operations and prospects of the said corporation, and with the intent on his part that, by means of said transfers and other dispositions of property, simultaneously made by him, a controlling interest in the capital stock of the said corporation should be vested in his said transferees."

The acts of the testator, and his declarations, permit no other interpretation. If by his will it is apparent that he intended all his children to share in the distribution of his estate, his conduct and his words in parting with portions of it before he made the will show clearly that he did not intend they should share equally. Circumstances of his own creation leave no doubt as to his design, and show that in his mind inequality was equity. It would, we think, defeat his purpose if the court should hold that the gift under the will should be impaired or lessened by his previous bounty.

I do not intend, however, to discuss this case at any length. It has been sufficiently examined and discussed by the courts below, and it would be a useless repetition to do more than announce our conclusions.

In the first place, we are of opinion that the evidence warrants the conclusions of the surrogate that the transfers of stock were complete, and that the legal title of the shares passed to the donees before the execution of the will; (2) that none of the stock thus transferred was intended by the donor to be advances by way of settlement or portion, but the contrary. These propositions depended upon inferences from evidence which, if not all one way, was certainly not altogether in favor of the appellants' view. On the part of the donor was the expression of an intention to give, the actual delivery of written instruments declaring that intention, and sufficient to warrant the transfer of title upon the records of the corporation, and which proved to be legally available for that purpose. Every act essential to deprive the donor of his possession and title was performed, and the actual as well as the apparent title vested in the donees. The evidence allows this view. If, as the appellant claims, the testimony of the witness Margaret Dobson, or some expressions in that of others, permits in either respect a different conclusion, neither the referee nor surrogate nor general term deemed it satisfactory or controlling. It follows that neither the shares of stock, nor the value thereof, were to be reckoned as part of the testator's estate, nor the donees, who were

distributees also, to be charged therewith in estimating the amount of their respective shares under his will.

A single question remains. An exception was taken before the referee to evidence, but, so far as appears, not presented to the general term. One L. was called by the proponent. It appeared at the outset of his examination that he was a lawyer, residing in New Orleans, holding there the relation of attorney and counsel to Mr. Morgan, (the testator,) and that at his request he came to New York, where he was consulted and employed by him, among other things, in relation to the stock in question, its certificates and transfer, and other affairs connected with it, his property, and his plans and desires in regard to it. The examination of the witness on these subjects continued to such length that in the printed record it covers nearly nine pages, with only a single objection, interjected at a point where the witness was speaking of one of his interviews with Mr. Morgan in regard to the law of this state relating to the distribution of the property of an intestate. The witness had stated that on the second of April he made a brief statement to the testator in regard thereto, and subsequently, on the day before he made his will, a very full statement. He was then asked, "What was that statement?" and the counsel for contestants objected as immaterial and incompetent. It is obvious that this objection was too general, and did not raise the question now presented. It was overruled and the witness answered fully, and continued in regard to the execution of the transfers the day before the will was executed, saying: "I did not, at that time, state to him anything about the law of New York as to wills." "At this point the contestant's counsel (Mr. Parsons) objected to any testimony as to what passed between the witness and Mr. Morgan preliminary to the execution of the will, or anything about the subject of his property, as immaterial and incompetent. Mr. Davison, on behalf of the minors, represented by himself and Mr. Burrill, unites in the objection. Mr. Choate, for the executrix, suggests that the objection ought not to apply to what has already come from the witness. The counsel should not wait until they hear what the evidence is before objecting to its incompetency, and that such objection can only be properly applied to what is to come hereafter. Mr. Parsons makes the further objection that what passed between this witness and Mr. Morgan is privileged, and protected by the relation of client and counsel. Mr. Davison joins in the objection, as before. Objection overruled. Exception."

This is the exception relied upon. It can have no force, so far as the testimony which preceded it is concerned. To that extent the witness had gone without interruption, and he must be deemed to have been thought competent, and his evidence admissible, by both parties. Moreover, at the precise point where the objection was made, the witness was testifying in answer to the question, "Tell what he [Mr. Morgan] said." To that question no objection was interposed, and he had completed his answer and narration as to what occurred at the interview of which he was speaking. Then came the objection. If, as would seem, it had reference to testimony already given, it came too late. It is entirely clear that a party who has sat by during the reception of incompetent evidence without properly objecting thereto, and thus taken his chance of advantage to be derived by him therefrom, has not, when he finds such evidence prejudicial, a legal right to require the same to be sticken out. But even if the referee or surrogate could, in their discretion, strike out any of the testimony, no request was made that either should do

If the objection related to evidence which might follow, it was too general. There was no new question to the witness, nor any offer of evidence. As to what followed, therefore, the objection was premature. It was not repeated. But assuming it to be good as to all that followed in the answer of the witness before the next question was put, it becomes unimportant. So much might be stricken out without impairing the weight of the evidence or V.9N.E.no.10-55

in any way affecting the conclusion reached upon the merits by either court. In no aspect could the exception require a new trial, for the evidence admitted under it fails to create even a suspicion that the exceptant was necessarily prejudiced thereby. Code, § 2545.

The judgment should be affirmed, with costs to the respondents, to be paid by the appellants.

(All concur.)

(104 N. Y. 68)

HEISER v. MAYOR, ETC., OF NEW YORK.

(Court of Appeals of New York. January 18, 1887.)

1. MUNICIPAL CORPORATIONS STREET IMPROVEMENTS - DAMAGES THEREFOR BOARD-LAWs N. Y. 1872, CH. 729.

Laws N. Y. 1872, c. 729, provide a remedy for abutters whose property is damaged by change of grade of Eighth avenue, New York city, by means of an assessment of damages ordered to be made by the board of assessors, and the delivery by the comptroller of assessment bonds in the amount awarded. Held, that this remedy is exclusive, and that the city cannot be held liable for damage suffered, or for fraud or breach of duty on the part of the assessors in proceedings under the statute.

2. JUDGMENT--SETTING ASIDE FOR FRAUD-SEPARATE ACTION.

Held, also, that allegations of fraud on the part of the assessors in making an award without notifying complainant, or giving him an opportunity to be heard, would not sustain a complaint to set aside or vacate the award, as the remedy by certiorari or other direct proceeding was ample, and the failure to prosecute that remedy to a successful termination furnished no ground for entertaining a separate

action.

Appeal from supreme court, first department.

Action for damages, and to vacate an award. Defendant had judgment below, and plaintiff appealed.

N. C. Moak, for appellant, Heiser. D, J. Dean, for respondent, Mayor, etc., of New York.

RUGER, C. J. At the trial the complaint was dismissed upon the opening, on the ground that no cause of action was stated. The language of the opening is not set forth in the case, but is conceded to have been no broader than the complaint, and that, if no legal cause of action is stated therein, the action must fail. The complaint alleges substantially that, by chapter 729 of the Laws of 1872, the defendant became liable to persons owning lots on Eighth avenue, in the city of New York, upon which buildings were erected, for such damages as had been or might be occasioned to them by reason of change of grade in that street; that plaintiff's testator was the owner of a certain lot and buildings on said avenue which had been seriously damaged by such changes; and that the board of assessors of the city of New York, with intent to injure and defraud the plaintiff, did, on the twenty-eighth of March, 1876, illegally, covertly, and fraudulently make and file, in the finance department in the city of New York, a statement and award of the amount of damages, loss, and injury sustained by Christina E. Smith, the plaintiff's testator, for damages to her said property, amounting to $5,000, and “at or about the same time the board made and filed in the said finance department an assessment and certificate thereof against said property, for benefit by reason of said changes of grade of said avenue, in the sum of five thousand dollars;" that said assessors proceeded without any notice, and in violation of the promise and agreement of said board with the plaintiff, to fix a time for hearing the proofs and arguments of the plaintiff; "that the said board of assessors, without due and proper or any actual notice to the plaintiff, proceeded to and did make the assessment, and file the certificate required by said act;"

1Affirming 29 Hun, 446.

that said assessments and certificate were so made and filed "unlawfully and fraudulently, and with the intent to deprive the plaintiff of the damages" inflicted upon her premises. The relief prayed for was that the certificates of assessment for damages and for benefit might both be vacated, and that the plaintiff might recover damages against the defendants for $150,000,

In dismissing the complaint, the court below acted upon the assumption that the gravamen of the complaint was fraud, and the damages claimed were those suffered by the plaintiff from the illegal and fraudulent conduct of the board of assessors in making the award and assessment in the manner described, and held that the defendant was not responsible for such damages. It was very properly held that the members of the board of assessors did not, in performing the duties enjoined upon it by the act of 1872, act as the servants or officers of the defendant, but constituted an independent tribunal, deriving their whole authority from the statute, and owing no duty to, and subject to no direction or control by, the defendant. Maxmilian v. The Mayor, 62 N. Y. 160; Tone v. The Mayor, 70 N. Y. 157.

Before the act of 1872, no liability, either at common law or by statute, existed on the part of the defendant to owners of real estate for injuries occasioned to them by changes of grade in the streets adjoining their premises. Conklin v. New York, O. & W. R. Co., 102 N. Y. 109; S. C. 6 N. E. Rep. 663; Radcliff's Ex'rs v. The Mayor, 4 N. Y. 195; Wilson v. The Mayor, 1 Denio, 595; Lynch v. The Mayor, 76 N. Y. 60. Neither did the act of 1872 purport to create any such liability, except in the mode pointed out, and to the extent prescribed by such act. An approval by the board of assessors was, by the statute, made a condition precedent to the recovery of any compensation on the part of the injured party. The amount thereof was required to be assessed upon the premises thereby benefited. The right to enforce payment was predicated upon such approval, and was limited to a claim for the delivery of assessment bonds by the comptroller for the amount of the award made. No provision was made for the payment of such damages by the city at large, or in any other manner.

The statute assumed to create a right where none existed before, and it defined, not only the extent of the right, but also the method of its enforcement. It is well settled in the case of public improvements authorized by statute, in the course of which a mode of compensation is provided for persons injured thereby, that such mode is exclusive, and no right of action exists in their favor except that directed in the statute. Dill. Mun. Corp. § 993; Calking v. Baldwin, 4 Wend. 668; Dudley v. Mayhew, 3 N. Y. 9.

As was said by the court below: "The only means of redress afforded to the plaintiff, therefore, were those provided for by this act." It follows, therefore, that no right of action existed against the defendant, either at common law or by statute, to recover, by an action at law, the damages incidentally occasioned to the land in question by changes in grade in Eighth avenue, and, unless some other cause of action is discovered, the judgment of the court below must be sustained. It was insisted before us that such a cause was found in the claim made to vacate and annul the award and assessment of the board of assessors by reason of the alleged fraud of the assessors in making it. It cannot be questioned but that courts have the power, in proper cases, in actions brought for that purpose, to investigate, set aside, and vacate the judicial declarations of other tribunals, when they have been obtained by fraud. The rule, as stated in Dobson v. Pearce, 12 N. Y. 165, is "that a court of chancery has power to grant relief against judgments when obtained by fraud. Any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not avail himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an interference by a court of equity.' Assuming, for the purpose of the argument, that the complaint was framed