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upon this theory, we are still unable to see that a sufficient cause of action is stated therein. It does not appear therefrom but that the plaintiff had a simple and sufficient remedy at law for the injuries complained of, and, although it was necessary for him to set aside the award referred to before he could avail himself of the remedy provided by statute, no reason is suggested why such relief was not obtainable in a direct proceeding to review the determination of the assessors. His failure to prosecute this remedy to a successful termination furnishes no ground for the exercise of the jurisdiction of this court to entertain an independent action to set aside the award. The allegations of the complaint in respect to the alleged fraud are quite indefinite and vague, and do not suggest the idea that they were draughted for the purpose of setting aside the award alone. The only fraud suggested is that implied from the conduct of the board of assessors in proceeding to a hearing of the claim for damages without notice to or affording the plaintiff an opportunity to be heard thereon. Even assuming that this was fraudulently done, it constituted an irregularity merely, which was open to review and correction upon certiorari, and afforded no ground for an independent action to assail the award of a judicial tribunal.
It was said by Judge ANDREWS in Smith v. Nelson, 62 N. Y. 288, that "the jurisdiction in one court to vacate, in an independent proceeding, the judgment of another having power to render it, is, in its nature, so extraordinary as to demand a close adherence to principles and precedents in exercising it. Courts do not exercise it when there has been negligence on the part of the party seeking the relief. That a judgment is final and conclusive of the right or thing which is adjudicated by it is the rule, and judgments and decrees of a competent court will not be annulled for a suspicion of fraud, or because the party complaining may, in fact, have been unjustly cast in judgment." See, also, Stilwell v. Carpenter, 59 N. Y. 414.
The statements in the complaint are manifestly insufficient to bring it within the rule regulating actions to set aside judicial determinations for fraud, and it is not sustainable upon such a theory. The judgment should therefore be affirmed.
(All concur.) (104 N. Y. 125) KONVALINKA, Ex'r, etc., 0. SCHLEGEL, impleaded, etc., and another."
(Court of Appeals of New York. January 18, 1887.) WILL-PROVISIONS IN LIEU OF LOWER—WIDOW'S ELECTION.
A widow is not put to her election between dower and a provision made for her in her husband's will, except by express words, or by a clear incompatibility arising on the face of the will between a claim of dower and a claim to the benefit given by the will. Accordingly, where a testator, after directing the payment of his debts and funeral expenses, and after dividing the furniture in his dwellinghouse in a specified manner between his wife and children, gave the residue of his estate, consisting of both real and personal property, to his executors, to sell and divide the proceeds among his wife and children, held, that the widow was entitled both to her dower and to the benefit of this provision in addition. Appeal from supreme court, general term, Second department.
John W. Konvalinka, Henry McCloskay, and W. E. Glover, for appellant, Konvalinka, Ex'r, etc. George Bliss, for respondents, Maria Schlegel and another.
ANDREWS, J. The question is whether the widow of the testator is put to her election between dower and the provision in the will. The estate of the testator consisted of both real and personal property. The will, after directing the payment of the testator's debts and funeral expenses, and after giving to his wife the bedroom furniture in his dwelling-house, and to his children the rest of the furniture therein, proceeds as follows: "All the rest, residue, and remainder of my estate, property, and effects of every nature, kind, and description I give, devise, and bequeath to my executors and executrix hereinafter named, and I authorize and direct them to sell and dispose of the same at such time, and on such terms, as to them shall seem best, and to divide the proceeds thereof equally among my wife and children, share and share alike." There can be no controversy as to the general principles governing the question of election between dower and a provision for the widow in the will. Dower is favored. It is never excluded by a provision for a wife except by express words, or by necessary implication. Where there are no express words, there must be, upon the face of the will, a demonstration of the intention of the testator that the widow shall not take both dower and the provision. The will furnishes this demonstration only when it clearly appears, without ambiguity or doubt, that to permit the widow to claim both dower and the provision would interfere with the other dispositions, and disturb the scheme of the testator as manifested by his will. The intention of the testator to put the widow to an election cannot be inferred from the extent of the provision, or because she is devisee under the will for life or in fee, or because it may seem to the court that to permit the widow to claim both the provision and dower would be unjust as a family arrangement; or even because it may be inferred or believed, in view of all the circumstances, that, if the attention of the testator had been drawn to the subject, he would have expressly excluded dower. We repeat, the only sufficient and adequate demonstration which, in the absence of express words, will put the widow to her election, is a clear incompatibility arising on the face of the will between a claim of dower and a claim to the benefit given by the will. We cite a few of the cases in this state showing the general principle, and the wide range of application. Adsit v. Adsit, 2 Johns. Ch. 452; Sanford v. Jackson, 10 Paige, 266; Church v. Bull, 2 Denio, 430; Lewis v. Smith, 9 N. Y. 502; Fuller v. Yates, 8 Paige, 325; Havens v. Havens, 1 Sandf. Ch. 331; Wood v. Wood, 5 Paige, 599.
1 Affirming 39 Hun. 451.
In view of these settled rules, we think the widow in this case was not put to her election. The devise to the executors was void as a trust, but valid as a power in trust, for the sale of the lands and a division of the proceeds, and the lands descended to the heirs of the testator subject to the execution of the power. 1 Rev. St. p. 729, § 56; Cooke v. Platt, 98 N. Y. 35.
It is strenuously urged that, the power of sale being peremptory, it worked an equitable conversion of the land into personalty, as of the time of the testator's death, and created a trust in the executors in the proceeds for the purpose of distribution, which trust it is alleged is inconsistent with a claim of dower. The doctrine of equitable conversion, as the phrase implies, is a fiction of equity, which is frequently applied to solve questions as to the validity of trusts; to determine the legal character of the interests of beneficiaries; the devolution of property, as between real and personal representatives; and for other purposes. It seems to be supposed that there is a necessary repugnancy between the existence of a trust in real property created by a will and an outstanding dower interest of a widow in the trust property. We perceive no foundation for this contention. If the purposes of a trust, as declared, require that the entire title, free from the dower interest of the widow, should be vested in the trustees, in order to effectuate the purposes of the testator in creating it, a clear case for an election is presented. Vernon v. Vernon, 53 N. Y. 351. But the mere creation of a trust for the sale of real property, and its distribution, is not inconsistent with the existence of a dower interest in the same property. There is no legal difficulty in the trustee executing the power of sale, but the sale will necessarily be subject to the widow's right of dower, as it would be subject to any outstanding interest in a third person paramount to that of the trustee.
In the cases of Savage v. Burnham, 17 N. Y. 577, and Tobias v. Ketchum, 32 N. Y. 327, the widow was put to her election, not because the vesting of the title in trustees was per se inconsistent with a claim for dower, but for the reason that the will made a disposition of the income, and contained other provisions which would be in part defeated if dower was insisted upon. There is language in the latter case which, disconnected from the context, may give color to the contention of the appellant. But it is the principle upon which adjudged cases proceed which is mainly to be looked to, because a correct principle is sometimes misapplied. There is, however, no ground for misapprehension of the meaning of the learned judge in that case, interpreting his language with reference to facts then under consideration.
It has frequently been declared that powers of or in trust for sale are not inconsistent with the widow's right of dower. Gibson v. Gibson, 17 Eng. Law & Eq. 349; Bending v. Bending, 3 Kay & J. 257; Adsit v. Adsit, supra; In re Frazer, 92 N. Y. 239. And it was held in Wood v. Wood, 5 Paige, 596, that the widow was not put to her election, where the testator devised all his property to trustees, with a peremptory power of sale, and directed the payment to the widow of an annuity out of the converted fund. The same conclusion was reached, under very similar circumstances, in Fuller v. Yates, 8 Paige, 325; and in Re Frazer, supra, the widow's dower was held not to be excluded by a provision in the will, although as to a portion of the realty the power of sale given to the executors was peremptory.
The general doctrine is very clearly stated by the vice-chancellor in Ellis v. Lewis,'3 Hare, 310: “I take the law to be clearly settled at this day that a devise of lands eo nomine upon trusts for sale, or a devise of lands eo nomine to a devisee beneficially, does not, per se, express an intention to devise the lands otherwise than subject to its legal incidents, dower included.” This remark of the vice-chancellor also answers the claim that the testator, when he described as the subject of the dower “all the rest, residue, and remainder of my estate," meant the entire title, or the estate as enjoyed by him. · A similar argument was answered by Lord THURLOW in Foster v. Cook, 3 Brown, Ch. 347. “Because,” he said, “the testator gives all his property to the trustees, I am to gather, from his having given all he has, that he has given that which he has not."
The argument that the testator intended equality of division between his wife and children is also answered by the same consideration. The proceeds of the testator's estate were by the will to be equally distributed. It left untouched the dower of the widow, which he could not sell or authorize to be sold, and which was a legal right not derived from him, and paramount to all others. It may be conjectured, perhaps reasonably inferred, that the testator really intended the provision for his wife to be exclusive of any other interest, but so it is not written in the will, and we are not permitted to yield any force to the suggestion. It is a question of legal interpretation, which has been settled.
The judgment should therefore be affirmed. (All concur.)
(104 N. Y. 108)
FAIRBANKS, Jr., v. SARGENT, Ex'r, etc.1
(Court of Appeals of New York. January 18, 1887.) 1. ATTORNEY AND COUNSEL-SPECIAL AGREEMENT—EQUITABLE ASSIGNMENT-PRIORITY.
A creditor having a claim against a debtor placed it in the hands of an attorney, under an agreement by which the latter was to have one-third "of whatever amount of money, securities, or property shall be collected, or in any way realized or re
Reversing 39 Hun, 588.
ceived, (whether on settlement or without settlement,)" on account of such claims as shall be put in suit, the creditor to have the right to decide upon the terms and mode of settlement. Suit
was brought against the debtor, and thereafter the creditor assigned the claim, as collateral, to a party to whom he was indebted. At the request of his assignee, the creditor compromised the suit without his attorney's knowledge, by accepting certain non-negotiable bonds for a large amount, which were made over to the assignee. Held, in an action by the attorney to recover from the assignee one-third of the bonds, that the agreement with his client operated as an equitable assignment of one-third of the amount recovered, and that it took priority over the subsequent assignment by the client, notwithstanding the fact that
the assignee had no notice of it. 2. SALE-CONSIDERATIONRELEASE OF WORTHLESS CLAIM-ASSIGNMENT OF WORTHLESS
Where a creditor, to whom a chose in action has been assigned as collateral, executes, on the conipromise of a suit upon such chose, a release of his claims against his debtor, who is insolvent, and also two reassignments of collateral security held by him,-one of the chose in action, which, by reason of the compromise and settlement is now of no value, and the other of a certain claim which is also worthless,-he does not part with any valuable consideration such as will make him a bona fide purchaser of non-negotiable bonds received from the defendant in settlement of the suit.
Action by an attorney to recover, under an agreement with his client, onethird of certain bonds which were alleged to have been accepted by the client in settlement of a suit brought by the client, and transferred to the defendant by an assignment subsequent to the date of the agreement with the plaintiff. The transactions out of which the action arose are fully stated in the opinion. Judgment for the defendant by the special term of the supreme court for the city and county of New York; affirmed by the general term, First department. Plaintiff appeals.
Beach & Brown, for plaintiff and appellant.
The agreement between the plaintiff and his client was lawful. They had the right to determine the measure and mode of compensation to be made to the plaintiff for his services. Rooney v. Second Ave. ‘R. Co., 18 N. Y. 368, 373; Ely v. Cooke, 28 N. Y. 365; S. C. 2 Hilt. 406; Coughlin v. New York Cent. & H. R. R. Co., 71 N. Y. 443, 449; Fowler v. Callan, 102 N. Y. 399; S. C. 7 N. E. Rep. 169.
The court below erred in holding that the agreement constituted no assignment of the action against Zabriskie to the plaintiff, nor of the cause of action therein, or any part thereof, nor of the proceeds of any settlement or judgment therein, and in no respect constituted him either an actual or an equitable assignee of the same, or any part thereof. Trist v. Child, 21 Wall. 441; Hoyt v. Story, 3 Barb. 262; and Wright v. Wright, 70 N. Y.96,-cited by the court,-are not in point. These cases only establish that an agreement merely to pay a debt out of a designated fund does not give an equitable lien upon the fund, or operate as an equitable assignment thereof. The matter in controversy falls within the principles laid down in Wylie v. Coxe, 15 How. 415; Creighton v. Ingersoll, 30 Barb. 541; Coughlin v. New York Cent. & H.R. R. Co., 71 N. Y. 443; Williams v. Ingersoll, 89 N. Y. 508; Wheeler y. Wheeler, 9 Cow. 34. In Brown v. Mayor of New York, 9 Hun, 587–596, (cited by the trial judge,) it was held that persons merely occupying the relation of counsel could have no lien on the recovery; but in Harland v. Lilienthal, 53 N. Y. 438, it was decided that an attorney, although not admitted to practice in the court in which the services were performed, could nevertheless recover for his services as an attorney; and in Zogbaum v. Parker, 55 N. Y. 120, it was decided that counsel, under an agreement therefor, had a lien on the recovery. In Davies v. Lowndes, 3 C. B. 823, approved in Slater y. Mayor of Sunderland, 33 Law J. (N. S.) Q. B. 37, it was held that the lien of an attorney attached upon money received by way of compromise, although the verdict and judgment in the case were against his client; and in Adams v. Fox, 40 N.
Y. 578, it was held that an agreement might make the services in two actions a lien upon the judgment in one of them. The agreement operated as an equitable assignment, pro tanto, of the cause of action. In Brown v. Mayor of New York, supra, it was held that an assignment of “claims” (which, of course, are “causes of action") was an assignment of the fund realized. Assuming that there was no assignment of the cause of action, there was an equitable assignment of the fund as soon as it should be realized. Creighton v. Ingersoll, 30 Barb. 541; Slater v. Mayor of Sunderland, 33 Law J. (N. S.) Q. B. 37.
The general term having held that the plaintiff had a lien upon the bonds, in order to entitle the defendant's testator to protection as a bona fide purchaser, the bonds must be held to have been negotiable, and the defendant's testator must be held to have taken them without notice of plaintiff's lien, and for value. But the bonds were non-negotiable. No statute of New York makes the bonds of an individual negotiable. In the only statute providing for the negotiability of the obligations of an individual, (1 Rev. St. N. Y.C. 4, tit. 2,) promissory notes alone are mentioned, and there is no usage or custom in the commercial world conferring negotiability on the bonds of individuals. They are still in the business community promissory notes, under seal, secured by a mortgage. They are what is known as "single bills," or "bills obligatory," i. e., "written engagements, under seal, for the payment of money without a penalty.” 1 Burrill, Law Dict. "Bills, Single and Penal;” 2 Bur. rill, Law Dict. 470: “Bonds without conditions,
* and differing from promissory notes in nothing but the seals.” Bouv. Law Dict. “Bills Obligatory;" Farmers' & Mechanics' Bank v. Greiner, 2 Serg. & R. 115. The special contract embraced in the bonds in suit, for securing the payment of money, did not deprive them of the character of promissory notes. Arnold v. Rock River Valley Union R. Co., 5 Duer, 207. Nor did the annexing of interest warrants change their character. Hodges v. Shuler, 22 N. Y. 114. They therefore differed in no essential particular from the instrument in question in Merritt .v. Cole, 9 Hun, 98, which was held to be a promissory note under seal. But a promissory note under seal, where the seal is mentioned in the note, is not negotiable. 1 Pars, Cont. 26; Chit. Bills, marg. 166; Clark v. Farmers' Woollen Manuf"g Co., 15 Wend. 256; Warren v. Lynch, 5 Johns. 239; Helfer v. Alden, 3 Minn. 332, (Gil. 232;) Covell v. Tradesman's Bank, 1 Paige, 131; Foster v. Floyd, 4 McCord, 159; Conine v. Junction, etc., R. Co. 3 Houst. 288; Hooker v. Gallagher, 6 Fla. 357; Dinsmore v. Duncan, 57 N. Y. 573, 577; Merritt v. Cole, 9 Hun, 98; Rawson v. Davidson, 49 Mich. 607; S. C. 14 N. W. Rep. 565; Walker v. Scott, 13 Ark. 644; Miller v. McIntyre, 9 Ala. 638; Sayre v. Lucas, 2 Stew. 259; Parks v. Duke, 2 McCord, 381; Mann v. Sutton, 4 Rand. 253; Brown v. Jordhal, 32 Minn. 135; S. C. 19 N. W. Rep. 650; Osborn v. Kistler, 35 Ohio St. 99; Biddle, Stock Brok. 157. Special contracts, other than bills of exchange and promissory notes, are not negotiable instruments. Birckhead v. Brown, 5 Hill, 635, 646. See, also, Glyn v. Baker, 13 East. 509; Crouch v. Credit Foncier of England, 29 Law T. (N. S.) 259; Dinsmore v. Duncan, 57 N. Y. 577; Railroad Co. v. Howard, 7 Wall. 415; Richards v. Warring, 39 Barb. 42; affirmed, 40* N. Y. 576; Daniel, Neg. Inst. (3d Ed.) 488. He who takes a non-negotiable obligation takes it “subject to every legal defense arising on the contract." Edw. Bills, (20 Ed.) marg. 209; Hopkins v. Railroad Co., 3 Watts & S. 410.
These non-negotiable bonds were choses in action, and the defendant's testator was the assignee thereof, of Underwood, the plaintiff's client. But the assignee of a chose in action can take no greater right than his assignor possessed, and is chargeable with all the equities that apply to him; and this is so, even though he purchases without notice, and for value. Ely v. McNight, 30 How. Pr. 97; Commercial Bank of Rochester v. Colt, 15 Barb. 506; Blydenburgh v. Thayer, 42* N. Y. 295; Weaver v. Barden, 49 N. Y. 286;