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sult of them is thus summed up by Mr. Justice Cullen, speaking for this court in this department, in the Matter of Robinson, supra:
"We think the Holden Case is authority for the general proposition that no allowances can be made for counsel in a litigation beyond taxable costs (which would include any extra allowance authorized by sections 3252 and 3253 of the Code of Civil Procedure), except in the case of trustees who represent the fund, or of one who has recovered the fund for the benefit of himself and others."
Of course the power to allow the guardian ad litem compensation, payable out of the interest of the infant, is undoubted, and we do not decide whether an additional allowance, under section 3253 of the Code, was justified.
The judgment, so far as appealed from, should be reversed, and the case be remitted to the Special Term.
Judgment, in so far as appealed from, reversed, without costs, and case remitted to the Special Terin. All concur.
(63 Misc. Rep. 111.)
DONOHUE v. DONOHUE.
(Supreme Court, Special Term, Erie County. April, 1909.)
MARRIAGE (§ 3*)—WHAT LAW GOVERNS-ANNULMENT.
A marriage was consummated in Canada between residents of New York under the age of 18 years, under a license procured in Canada on the affidavit of the man that they were over 18 years of age, and after the marriage the parties lived together as husband and wife. Held, that the marriage is not voidable; the law of Canada allowing a marriage between persons under the age of 18, where the consent of the father or mother or guardian has been obtained, and making a marriage valid after the parties have lived together as husband and wife if it was invalid at the time of its consummation, as the right to annul the marriage must be tested by the law of Canada, and, the parties to the contract being competent under the law of Canada and it being consummated through the fraud of the parties, the court will not aid them to avoid the consequences of their own fraud.
[Ed. Note. For other cases, see Marriage, Cent. Dig. § 23; Dec. Dig. §3.*]
Action by Frank J. Donohue, an infant, by Mary Donohue, his guardian ad litem, against Ada Donohue, to annul the marriage of the plaintiff and the defendant, on the ground that the plaintiff was under 18 years of age when the marriage was consummated. Complaint dismissed.
Hamilton Ward, for plaintiff.
WHITE, J. The plaintiff and defendant were married at Ridgeway, province of Ontario, Canada, on the 18th day of August, 1908. They then were, ever since have been, and now are residents of the city of Buffalo, in the state of New York. Neither the plaintiff nor defendant was 18 years of age at the time of the marriage, nor has either For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 116 N.Y.S.-16
of them yet attained that age. After their marriage the parties lived and cohabited as husband and wife, and the defendant is about 6 months advanced in pregnancy as a result of such cohabitation. By the law of the province of Ontario, Canada, it was necessary for the parties to procure a marriage license, and they did procure one, based upon the affidavit made by the plaintiff that he was 21 years old and that the defendant was 19 years old at the time the license was procured, which was just prior to the marriage. The law of the province of Ontario also provided that the marriage of persons under the age of 18 years must be preceded by the consent of father, mother, or guardian, except where such person was a widow or widower. Neither of the parties to the action was a widow or widower, nor had either of them secured such consent.
We must assume that the Canadian officials acted in good faith in issuing the license, and therefore that the condition from which the plaintiff now seeks to be relieved was created solely by his own fraud, perpetrated upon the Canadian government, in which he was aided and abetted by the defendant. The parties were competent to contract a lawful marriage in the province of Ontario, Canada, and the marriage was lawful there, and therefore is valid in this state. Having lived and cohabited together as man and wife after the ceremony, the marriage for that reason became indissoluble in the province of Ontario, Canada, even if they were residents of that country and subject to its laws. By the terms of the statute law of this state a marriage between persons under 18 years of age without the consent of parent or guardian is voidable at the option of either party, unless the marriage is ratified by cohabitation after arriving at that age. All agree that the marriage in question, both in Canada and in this state, rests solely upon a civil contract, and that the parties were competent to make it. It was made and consummated in Canada, and therefore must be treated as a Canadian contract in this case. The question of its voidability at the option of the parties, or at all, was determined by the law of the province of Ontario, Canada, and, as has already been said, it would not have been voidable there, even if the parties were residents of that country. The operation and effect of our statute upon the subject of annulling marriages is confined to the state of New York, and in the nature of the case can have no effect upon the status of the parties at the time of their marriage in Canada. If the marriage had taken place in this state, the contract would have been voidable. In the province of Ontario, Canada, it was not voidable, and the parties, as between themselves, must be held to have so understood it at the time.
To hold, as contended by the plaintiff, that residents of the state of New York sojourning in another state or country, where marriage by them is permitted without restriction or conditions of any character, may marry there and forthwith return to this state and procure the marriage to be annulled under our statute prescribing the age of legal consent is abhorrent, not only to a proper sense of justice, but also to the well-settled rule that a marriage valid where it is entered into is valid here. Furthermore, the parties to this action being competent to
seeks to be relieved, plaintiff should be treated precisely as though he were an adult, in so far as his prayer for relief is concerned. The situation from which he desires to escape was created by his own fraud, in which, as has already been said, he was aided and abetted by the defendant. Under such circumstances the court will not aid the parties to avoid the consequences of their own moral turpitude, but leave them as it finds them.
The case of Kinnier v. Kinnier, 45 N. Y. 535, 6 Am. Rep. 132, relied upon by the plaintiff, does not seem to me to be in point; nor has my attention been called to any other decision of the courts of this state that is. The Kinnier Case holds simply, first, that a judgment or decree of divorce of another state, in the absence of fraud in its recovery pleaded and proved, binds the parties in this state; and, second, that after marriage the parties are relegated to the lex loci when they seek remedies for violations of their marital rights.
I am of the opinion that the complaint herein should be dismissed, with costs.
In re COLLINS.
(Supreme Court, Appellate Division, First Department. April 23, 1909.) WILLS (§ 531*)-CONSTRUCTION-SHARES DEVISED-Per Stirpes OR PER CAPITA. A will devised property in trust for each of testator's three daughters for her life, with payment to her issue on her death and on the issue becoming of age, and provided that, on "either" of the daughters dying without issue or descendants of issue, the share should be divided among her sisters, children of a first wife, and that, on death of "either" leaving issue or descendants of issue, the share should be divided so that the children or descendants of each of the sisters should take one share thereof. Two of the daughters were born of a first marriage and the third of a second marriage. The first two daughters died, leaving one child and three children, respectively. Subsequently the third daughter died. Held, that the third daughter's share passed to her sisters' children per stirpes, and not per capita.
[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1143, 1144, 11481152; Dec. Dig. § 531.*]
Appeal from Surrogates' Court, New York County.
In the matter of the settlement of the accounts of Stephen W. Collins, substituted trustee under Stacy B. Collins' will. From a decree ordering a distribution, John Murray appeals adversely to Frederick Hussey and others. Reversed and remitted.
Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ.
Morris Hillquit, for appellant.
HOUGHTON, J. Stacy B. Collins died in 1873, leaving a last will and testament by which, after the making of certain bequests. and devises, he directed that the residue of his estate should be divided into three equal parts. He had three daughters, and he directed
For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
his executors to hold one part in trust for each daughter during her life, and on her death to pay the same to her issue in equal shares, on their arriving at the age of 21 years. If a daughter died without issue the will made the following provision:
"In case it shall so happen that either of my said daughters shall depart this life without leaving lawful issue or descendants of issue her surviving, then upon her decease the said one-third shall be equally divided among her sisters, children of my first wife, or in case of the death of either leaving children or descendants of children surviving, then the said one-third shall be divided in such way that the children or descendants of each of her said sisters shall take one share thereof."
Mary and Cornelia were daughters by the first wife, and Mary died leaving one child, this appellant, and Cornelia died leaving three children, these respondents. After their death the daughter Sarah by the second wife died without issue, and, all the trusts being terminated, the trustees petitioned for final accounting. On that accounting the surrogate decided that the fund held in trust for the daughter Sarah, who died without issue, passed to the children of the two deceased half-sisters per capita, and ordered distribution to them on that basis. The appellant, Murray, insists that the learned surrogate erroneously construed the will in this regard, and that the fund should be distributed per stirpes, instead of per capita, and that he is entitled to one half, and that the three respondents are entitled to the other half, to be divided amongst them equally.
We are of the opinion that such is the proper construction of the will, and that the learned surrogate was in error in construing it otherwise. While it is true that the issue of both daughters are grandchildren of the testator, and thus belong to the same class of relationship, there are many indications in the will, aside from the language of the clause under consideration, showing that the testator intended, in case one of his daughters should die without leaving issue, that the fund held in trust for her should be distributed to the children of the other daughters through representation of the parent, and hence per stirpes, and not per capita. In an earlier provision of his will with respect to a division of his library, engravings, and paintings amongst his children, he provided that, in case any child should die leaving lawful issue, such issue should take the share of the parent or parents. In directing how the share held in trust for each daughter should be distributed on her death, he provided that it should be divided equally amongst her children, and if any child should be dead, leaving issue, such issue to take the share which its parent would have taken. The idea of the testator seems to have been to make division of his property amongst his grandchildren and great-grandchildren, if any, through representation of their parents, and not to them as a gen
It is urged that the testator did not contemplate the death of both of his daughters by his first wife, because he provided that, in case of death of any daughter without issue, the one-third held in trust should be divided equally "among her sisters, children of my first wife, or in case of the death of either" to her children, and hence, both having
left no issue, all the grandchildren formed a class which should take equally. The event of the death of "either" applies to the death of both the daughters by the first wife, and the will provides that the one-third held in trust "shall be divided in such way that the children or descendants of each of her sisters shall take one share thereof." While the language may not be entirely apt to the event of the death of both daughters leaving issue, still the intent of the testator is clear that his two daughters by the first marriage should take equally, and, if either or both should die leaving issue, such issue should take the share which the parent would have taken.
The provisions of the will are quite different from those under consideration in Bisson v. W. S. R. R. Co., 143 N. Y. 125, 38 N. E. 104, upon which the respondents rely. Our conclusion is that the surrogate erred in ordering a distribution of the fund in equal proportions to the grandchildren, and that the correct interpretation of the will is that one half passed to the three children of Cornelia, to be divided between them equally, and that the other half passed to the one child of Mary.
That part of the decree of the surrogate appealed from, therefore, must be reversed, and the matter remitted to the Surrogate's Court for distribution in accordance herewith, with costs to the appellant payable out of the estate. All concur.
In re BERGSTROM & CO.
(Supreme Court, Appellate Division, First Department. April 23, 1909.) ATTORNEY AND CLIENT (§ 182*)-LIENS-PAPERS SUBJECT TO.
An attorney has no lien for his fees on copies of the printed record on an appeal to the Court of Appeals, which under the rules must be filed in court, and which have been delivered to and received by him for that purpose.
[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 399, 403; Dec. Dig. § 182.*]
Appeal from Special Term, New York County.
Application by Bergstrom & Co. for an order to A. Livingston Norman to deliver certain papers. From an order denying the application, petitioners appeal. Reversed, and application granted.
Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.
Oscar B. Bergstrom, for appellants.
John R. Delafield, for respondent.
INGRAHAM, J. The papers of which the petitioners sought to obtain possession consisted of the printed record of a case on appeal to the Court of Appeals; the petitioners being parties to the action. in which the appeal was pending. The petition alleges that the petitioners were defendants in an action pending in the Supreme Court of Kings county wherein one Ridgeley was the plaintiff. One of the *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes