(202 N.Y.S.) ters, that a refusal to testify may be punished by the court or magistrate as for a criminal contempt in the manner provided in the Judiciary Law. [2] The relator claims that the magistrate was a city magistrate, and as such he had no power to punish him as for a criminal contempt for the acts set forth in the commitment. It is my opinion that in this proceeding Judge Crain was not a city magistrate, acting under the limited authority of city magistrates, but was a magistrate, within the meaning of section 619 of the Code of Criminal Procedure, and had full authority to commit as for a criminal contempt in the cases specified in that section of the Code. One of the defenses to the charge of criminal libel was that the publication charged as libelous was true, and was published with good motives and for justifiable ends. The purpose of the question which it is claimed relator refused to answer was to show that certain high police officials had purchased from the relator or his brother a certain quantity of liquor in violation of law. The materiality of the question put to the relator appears obvious from the alleged libelous telegram. It is as follows: "Albany, N. Y., April 22, 1923. "Magistrate Joseph E. Corrigan, 3 East Tenth Street, New York City: As a member of the Legislature I am doing all in my power to have a legislative investigation of the police department of the city of New York. There are in the safe of the Assembly documents, correspondence, and letters showing that the Mullan-Gage Law is an instrument of oppression, and is being used as a black jack by high officials of the police department to extort money from the citizens of New York, as well as giving the opportunity to the police to engage in bootlegging themselves. Do you know that the police are fighting among themselves as to the division of spoils from bootlegging? "Call a mass meeting appealing to Governor Smith to remove Enright pending a legislative investigation of the police department. Ninety per cent. of the police are honest and want to do their duty, but as Enright and his graft collectors in the department are using their power to make the citizens pay up or shut up, the Legislature will pass a bill to rid the police department of the crooks in it. You can publish this telegram if you desire. "Louis A. Cuvillier." The inquiry being material to the issue involved, was Judge Crain authorized to determine whether the relator's response, "I cannot remember," was in fact a refusal to answer? It might be an answer, or it might not be. If the witness truthfully stated that he could not remember, it would be a sufficient answer to the inquiry; but if he gave that response, when in fact he did remember, it is not an answer, and such a response under the circumstances would amount to a contempt. And when the magistrate, after a consideration of all the accompanying circumstances, including the demeanor of the witness on the stand, comes to the deliberate conclusion that the witness does remember, notwithstanding his denial of recollection, his decision upon that question ought not to be disturbed. He alone is the judge of the fact, and where it appears, as here, that he acted with extreme deliberation, and with a due regard to the rights of the relator, his findings will be upheld. The writ of habeas corpus is dismissed, and the relator remanded. Ordered accordingly. (121 Misc. Rep. 639) BANKERS' TRUST CO. v. NEW YORK FOUNDLING HOSPITAL et al. (Supreme Court, Special Term, New York County. October, 1923.) Wills 634 (12)-Where testator died intestate as to remainder, and his children, life tenants, left brothers and sisters, last surviving child held to take. Where a will directed that income be paid to testator's children, and that on the death of any child his portion of the fund should pass to his heirs, and each child left his surviving brothers and sisters as his heirs, except the last survivor, who left no heirs, held that, as testator died intestate as to the remainder held in trust for the last survivor, title vested in all his children in equal shares, though enjoyment was postponed, and, where the other children did not dispose thereof, the last surviving child became entitled to the whole thereof. Proceeding to construe a will by the Bankers' Trust Company against the New York Foundling Hospital and others. Will construed. Lord, Day & Lord, of New York City, for plaintiff. ERLANGER, J. Bernard Graham at the time of the factum of his will had eight children, and at the time of his death he left them all surviving him. For two of his sons he provided that during their lives a small annuity be paid to them. Upon their death the amount invested to produce such annuities was to revert to and become part of his estate. He then directed that his residuary estate be divided into six equal parts, and that the yearly income of each part be semiannually paid to each of his other six children during their lives, "so that each one-sixth part be a separate fund for income for each of said last named six children during life exclusively." Upon the death of any or either of said six children the portion or portions from whence the income was directed to be applied was to pass to the next lawful heirs of the child or children so dying. The trusts were set up as directed. Six of the eight children died prior to the 16th day of August, 1895, leaving at the time of their several deaths as their only heirs at law and next of kin the then surviving brothers and sisters and none other. On the latter date William H. J. Graham, the seventh child, died, leaving no widow. and leaving as his only heir and next of kin his sister, Mary T. Hillyer, and she became entitled to that onesixth part of the corpus of the estate which had theretofore been held in trust for her said deceased brother. On May 29, 1896, Mary T. Hillyer died, leaving her surviving neither husband, heir, nor next of kin, and with her death the family stock became extinct. This last child of the testator left a will in and by which, after certain bequests, she gave her entire residuary estate to the three institutions designated by her in the fourth clause of her will. Among the property so disposed of by her is included the one-sixth part set aside for her life. The state claims this part by escheat, because Mary T. Hillyer at the time of her death left her surviving no one who could answer to the description of "lawful heirs," while, on the other hand. the three institutions assert a right to it by the aforesaid bequest to them. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (202 N.Y.S.) This action was brought to have the will of Bernard Graham construed, and to have determined in whom said property vested, and who is entitled thereto. That the said testator did not dispose of the remainder held in trust for the last survivor is admitted by all, and it is clear that as to that part he died intestate. In who:n, then, did the principal of that trust fund vest, and at what time? Under the wellestablished rules of construction, the absolute ownership thereof became vested eo instanti the testator's death in all his children in equal shares. Though the vesting occurred at that time, enjoyment was postponed until the life estate fell in. The record discloses no other heirs or next of kin save the eight children of the testator, and as no attempt was made in the lifetime of any to dispose of their shares by will or otherwise, Mary T. Hillyer became entitled to the whole thereof, which was alienable and devisable by her. That she was at the same time the beneficiary of the income did not affect her rights. We need not discuss the question as to whether or not, before her death, the lesser estate was merged in the greater, for the reason that she alone could assert that claim, but apparently never did so. My conclusion is that her will passed the property to the three beneficiaries. Ordered accordingly. (121 Misc. Rep. 602) FERAYORNI v. WALTER et al. (Supreme Court, Queens County. October, 1923.) 1. Elections 84-Citizen naturalized on December 2, 1921, not entitled to vote without producing literacy certificate. Where relator became a citizen by naturalization on December 2, 1921, but has never voted, he is not entitled to be registered as a voter in August, 1923, without producing a certificate of literacy, in view of Const. art. 2, § 1, and Election Law, § 150, as amended by Laws 1923, c. 809, providing that only naturalized citizens who are naturalized at least 90 days prior to the election are entitled to vote, and requiring voters becoming entitled to vote, after January 1, 1922, to produce a certificate of literacy. 2. Elections 84-Voter reaching majority In January, 1922, or thereafter, must produce literacy certificate. Under Const. art. 2, § 1, and Election Law, § 150, as amended by Laws 1923, c. 809, a native-born citizen or one moving into the state, reaching majority prior to January, 1922, is entitled to vote without producing a literacy certificate but one reaching majority in January, 1922, or thereafter, must produce such a certificate. 3. Elections 84-One who has been entitled to vote for years, but has not availed himself of that privilege, not subject to literacy test. A person who has been entitled to vote in this state for years, but has never availed himself of that privilege, is not subject to the literacy test provided for by Const. art. 2, § 1, and Election Law, § 150, as amended by Laws 1923, c. 809. In the matter of the motion of Arnoldo Feravorni for an order of mandamus against William Walter and others, constituting the Board of Inspectors of Election for the Twenty-Eighth Election District of For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes the First Assembly District, Borough of Queens, City of New York, and John R. Voorhis and others, constituting the Board of Elections of New York City. Application denied. Joseph Lonardo, of Flushing, for petitioner. George P. Nicholson, of New York City (Russell L. Tarbox, of New York City, of counsel), for defendants. DIKE, J. This is an application for a peremptory order of mandamus requiring the inspectors of election to reconvene and register the applicant and his wife in the Twenty-Eighth election district of the First assembly district, borough of Queens, and requiring the inspectors of election in each of the other election districts of the city to reconvene and register all other persons claiming to be similarly situated. It appears by the petition of the relator that an enrollment was refused to the relator and registration denied upon the ground that he failed to present proof that he had passed a literacy test as required by section 150 of the Election Law. [1] The facts are not disputed. The relator became a citizen by naturalization on December 2, 1921. He has never voted, and the defendants claim that their action was proper in that the relator is a new voter within the meaning of section 150. The relator became a duly naturalized citizen on December 2, 1921, has resided 12 years in the state of New York and made proper application at No. 385 Broadway, Astoria, Long Island City, Queens county, in the TwentyEighth election district of the First assembly district of Queens county. He sought to be registered on October 11 and October 12, 1923, as a qualified voter, having exhibited at those times to the inspectors and officials his certificate of naturalization. No certificate of literacy was presented to the board either time. Upon the argument the Deputy Attorney General of the state appeared, also a representative of the New York county Democratic committee, and urged with the relator that the motion should be granted; the corporation counsel of the city of New York arguing in opposition. At the outset I wish clearly to be understood as deciding this particular case, and those that may clearly come within the purview of my decision; that the plea requiring all boards of inspectors and boards of registry in and throughout all of the boroughs of the city of New York to reconvene and meet for the purpose of permitting all persons to register as duly qualified voters whose right to so register has been refused similarly to petitioner is in no wise and in no manner by this decision ordered or directed. That would be tantamount to ordering an additional day of enrollment and put in motion all of the elaborate and enormously expensive machinery for such purpose in this city, and, on the other hand, every provision should now be made, and a method of correcting the books of registration adopted, which will involve the least confusion in the election machinery, and will at the same time in no case deprive any citizen justly entitled to vote at the coming election from having his name duly enrolled by the proper board and every proper legal means invoked which will completely and generously safeguard to any citizen duly entitled his right to take part in the selection. (202 N.Y.S.) of his public servants. Much confusion seems to have arisen between the term "new voter" and "first voter." Section 1 of article 2 of the state Constitution reads in part: "Every citizen of the age of twenty-one years, who shall have been a citizen for ninety days and an inhabitant of this state one year next preceding an election, and for the last four months a resident of the county, and for the last thirty days a resident of the election district in which he or she may offer his or her vote, shall be entitled to vote at such election in the election district of which he or she shall at the time be a resident. * * Notwithstanding the foregoing provisions, after January 1, 1922, no person shall become entitled to vote by attaining majority, by naturalization or otherwise, unless such person is also able, except for physical disability, to read and write English; and suitable laws shall be passed by the legislature to enforce this provision." Section 150, of the Election Law (as re-enacted by Laws 1922, c. 588) reads as follows: "Sec. 150. Qualifications of Voters. A person is a qualified voter in any election district for the purpose of having his or her name placed on the register if he or she is or will be on the day of the election qualified to vote at the election for which such registration is made. A qualified voter is a citizen who is or will be on the day of election twenty-one years of age, and who has been an inhabitant of the state for one year next preceding the election, and for the last four months a resident of the county, and for the last thirty days a resident of the election district in which he or she offers his or her vote. If a naturalized citizen, such person must, in addition to the foregoing provision, have been naturalized at least ninety days prior to the day of election, or, if a citizen by marriage, must have been an inhabitant of the United States for five years and married' ninety days prior to such day. In the case of a person who became entitled to vote in this state by attaining majority, by naturalization or otherwise after January first, nineteen hundred and twenty-two, such person must, in addition to the foregoing provisions, be able, except for physical disability, to read and write English. A new voter,' within the meaning of this and the next article, is a person who, if he is entitled to vote in this state, shall have become so entitled on or after January first, nineteen hundred and twenty-two, and who has not already voted at a general election in the state of New York after making proof of ability to read and write English, in the manner provided in section one hundred and sixty-six." As amended by chapter 809, Laws of 1923. [2, 3] Construing these sections it would clearly appear that a nativeborn citizen who became 21 years of age in December, 1921, may vote, if otherwise qualified, without taking a literacy test, but if the same native-born citizen became of age in January, 1922, he must take the test provided by law before he could vote. This same rule would apply to those citizens who moved into the state, and their status having been acquired before January 1, 1922, such persons would not be required to take the literacy test. After that date such persons could not vote without taking the literacy test. A person may have been entitled to vote in this state for years, and yet never have availed himself of the privilege. To hold that such a person should be obliged to take the literacy test unless he could show that he had voted prior to January 1, 1922, would be a wrong construction. This has not been directly judicially passed upon, but an opinion of the corporation counsel of the city of New York, issued in September, 1922, would seem to share this view. It is as follows: "I am of the opinion that residents of this state possessing all the qualifications required of voters prior to January 1, 1922, but who have never hereto |