385; Clark v. N. Y. C. & H. R. R. R. Co., 191 N. Y. 416, 84 N. E. 397.

The judgment appealed from must be reversed, and a new trial granted, with costs to appellant to abide the event.

In re BARRETT'S ESTATE.

(Supreme Court, Appellate Division, Second Department. April 30, 1909.) 1. WILLS (8 858*)-RIGHTS OF LEGATEES-LAPSED LEGACIES-EFFECT OF RESIDUARY PROVISIONS.

A legacy which lapses by the legatee's death before the testator passes to the residuary legatees, and not to the next of kin.

[Ed. Note. For other cases, see Wills, Cent. Dig. § 2177; Dec. Dig. § 858.*]

2. WILLS (8 529*) - CONSTRUCTION - DESIGNATION OF LEGATEES

"GIFT TO A CLASS."

CLASSES

A gift in a will to a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or some other definite proportion; the share of each being dependent for its amount upon the ultimate number.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1142; Dec. Dig. § 529.*]

3. WILLS (§ 523*) ·

CONSTRUCTION-DESIGNATION OF LEGATEES-CLASSES-DEVISE TO CLASS OR TO INDIVIDUALS.

After naming the residuary legatees, testatrix added the words, "all brothers of my deceased husband, John Barrett." Held, that they took as individuals, and not as a class, and, one having died in the lifetime of the testatrix, his share passed to her next of kin as property undisposed of by the will, and not to the surviving residuary legatees.

[Ed. Note. For other cases, see Wills, Cent. Dig. § 1115; Dec. Dig. § 523.*]

Appeal from Surrogate's Court, Dutchess County.

Petition by Walter Farrington for a compulsory accounting of John J. C. Barrett, executor of Margaret Barrett, deceased. From an order of the Surrogate's Court directing accounting, the executor appeals. Affirmed.

The opinion of Surrogate C. A. Hopkins, referred to by the court, is as follows:

Margaret Barrett, late of East Fishkill, died May 30, 1907, leaving a will which was duly admitted to probate by the surrogate of this county September 23, 1907, and on that day letters testamentary were issued to John J. C. Barrett, the executor named therein. Walter Farrington, who is conceded to be one of the next of kin of the deceased, presents a petition to this court, asking for a compulsory accounting of the executor, and for a distribution of the estate to the legatees named in the will, and for a decree directing the distribution of a general legacy which has lapsed by reason of the death of the legatee during the lifetime of the testatrix, and a residuary legacy which has elapsed by reason of the death of the residuary legatee during said time. amongst the next of kin of said deceased. Twelve months having elapsed since letters testamentary were issued to the executor, the petitioner is entitled to an accounting, providing he is in any way interested in the funds of

the estate. His interest, therefore, depends upon a construction of two clauses of the will of said deceased, which will be taken up separately.

Under the second clause of said will the testatrix makes the following bequest: "Second—I give and bequeath to my brother, Peter F. Mead, the sum of one thousand dollars." Said Peter F. Mead having died during the lifetime of said testatrix, the question arises as to what becomes of this legacy. In consequence of the death of Peter F. Mead during the lifetime of the testatrix, the legacy lapses, and, under the general rule of law applicable to general legacies which may lapse or may be invalid for any reason, such lapsed legacy becomes a part of the residuary estate in all cases where the testator has made such provision. It appears that said testatrix created a general residuary clause in her will, giving to persons therein named all the rest and residue of her property after the payment of the general legacies to certain legatees named therein.

The general proposition of law is that a general residuary bequest of personal property carries to the residuary legatee, not only such estate and such interest therein as the testatrix did not attempt to dispose of by other provisions of his will, but every part of his property which by lapse or otherwise is not effectually bequeathed and disposed of to others. Matter of Benson, 96 N. Y. 499, 48 Am. Rep. 646; Moffett v. Elmendorf, 152 N. Y. 475, 46 N. E. 845, 57 Am. St. Rep. 529; Langley v. Westchester Trust Co., 180 N. Y. 326, 73 N. E. 44; Leggett v. Stevens, 185 N. Y. 79, 77 N. E. 874. Therefore it is my conclusion that the legacy to Peter F. Mead, which lapsed by reason of his death before the testatrix, goes into the residuum of the estate and inures to the benefit of each of the residuary legatees capable of taking at the death of the testatrix, share and share alike, and that the petitioner herein, said Walter Farrington, has no interest whatever in such legacy.

The second question involved in this matter arises from the fact that Isaac D. Barrett, one of the residuary legatees, died in the lifetime of the testatrix, and it is necessary for a construction of the residuary clause of said will to ascertain what becomes of his share, and as to whether his share passes to the surviving residuary legatees or passes to the next of kin as property undisposed of by the will. The residuary clause in said will reads as follows: "Eighth-I give and bequeath unto Simeon Barrett, Moseman Barrett, Isaac D. Barrett, Wright Barrett, all brothers of my deceased husband, John Barrett, all the rest and residue of my property to share and share alike, except the sum of three hundred dollars, which I give and bequeath unto Louisa Ostrom, wife of Richard Ostrom, Sarah Miles, Harriet Miles, the said sum of three hundred dollars to share and share alike." The petitioner contends that the legacies were intended to go to these four persons in equal shares as tenants in common, and that, Isaac D. Barrett having died during the lifetime of said testatrix, his one-fourth share passes to the next of kin of said deceased, and not under the will; but the contention made by the executor is that under the language of the residuary clause it was the intent of the said testatrix to have the four people named in said clause take the residuary as joint tenants, and in such case the three surviving residuary legatees would take the share of the one who died-in other words, the executor contends that the gift under the residuary clause was to a class, and not to the individuals.

Whether a devise or bequest in a will is to a class or to the individuals as tenants in common must depend upon the language employed by the testatrix in making the gift. All the provisions of the will may be consulted, and sometimes aid may be sought from the situation and relation of the parties. In this case there is nothing in the will, outside of the residuary clause itself, that throws any light on this question, and I have not been able to find in any of the cases cited any attempt to define or formulate with much accuracy the language or circumstances necessary to constitute a gift to a class. Perhaps, from the nature of the question, it is impossible to lay down any general rule, or to do more than to determine every case upon its own facts, and to construe every will with reference to the language employed by the testatrix and the surrounding circumstances. The language and the circumstances are so seldom identical that it is not often that one case can be determined upon the authority of some other case or class of cases. But there are some prin

ciples and canons of construction recognized by all authorities, which, when employed to the particular case, will ordinarily enable the courts to arrive at a reasonable and just conclusion. When stated and applied to this case, it will be seen that there will be little difficulty in determining the nature and character of the gift to Simeon Barrett, Moseman Barrett, Isaac D. Barrett, and Wright Barrett, whether collectively as a class or distributively as tenants in common.

In legal contemplation, a gift to a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or some other definite proportion; the share of each being dependent for its amount upon the ultimate number. Matter of Kimberly, 150 N. Y. 90-93, 44 N. E. 945; Matter of Russell, 168 N. Y. 169, 61 N. E. 166; Langley v. Westchester Trust Co., 180 N. Y. 326, 73 N. E. 44. Here, in this case, the number of persons was certain at the time of the gift; the share each was to receive was also certain, being onequarter of the residuary estate, and was in no way dependent for its amount upon the number who should survive; and, therefore, this case is not within the principle invoked by the executor, and to which he applies the decision in Hoppock et al. v. Tucker et al., 59 N. Y., at page 202, and in which case the court says that their conclusion is arrived at with some hesitation.

The executor also contends that it was the intention of the testatrix, by the language employed in the residuary clause, to give the residue of her property to the four people named therein as a class, and not as an individual, because, after naming them, she added the words, "all brothers of my deceased husband, John Barrett," and that thereby she intended to designate them by such reference to be a class, and to take the residuary property as if their names had not been mentioned in such will, but the clause had read, “I give and bequeath unto all brothers of my deceased husband, John Barrett, all the rest and residue of my property, share and share alike." I cannot agree with this contention, as it seems to me that the words, "all brothers of my deceased husband, John Barrett," following the names of the individuals in the resid uary clause, were merely descriptive, and inserted therein for the purpose of identifying each particular Barrett, in order, perhaps, to distinguish them from other Barretts of the same name, or in the same locality. If the testatrix had intended to make her gift to these four people as a class, it would have been a very simple and easy matter to have inserted in her will a reference that all the residuary legatees were "all the brothers of her deceased husband," and such language might have then been construed as intending a class, including all the brothers of her said husband without naming them; and I conclude that, from the language employed in the residuary clause in this will, she intended these four people to take as individuals and as tenants in common, and not as joint tenants.

The legatee died in the lifetime of the testatrix, and was related to her deceased husband, and she must be presumed to have known of his death. The will spoke at her death and then first took effect. It must be treated as though the testatrix had made no disposal of the portion bequeathed to the residuary legatee, Isaac D. Barrett, and that she had intentionally died intestate as to such portion. I therefore conclude that the portion or share of the estate which would have gone to Isaac D. Barrett, had he survived the testatrix, does not pass to the surviving residuary legatees under the will, but must be distributed among the next of kin of the deceased as property undisposed of under the will, and, therefore, the petitioner is entitled to a share in said portion and to an accounting by the executor.

Let an order be entered directing the executor to account, the time and manner to be fixed by consent or upon three days' notice by either party.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

Palmer & Fagan, for appellant.

PER CURIAM. Order of the Surrogate's Court of Dutchess county affirmed, with $10 costs and disbursements, on the opinion of the surrogate.

GAETJENS v. CITY OF NEW YORK et al.

(Supreme Court, Appellate Division, Second Department. May 7, 1909.) 1. MUNICIPAL CORPORATIONS (§ 747*)-Torts or NegliGENCE OF CITY DEPARTMENTS, OFFICERS, OR EMPLOYÉS-LIABILITY THERefor.

The city of New York is not liable for the torts of its departments of police, fire, education, or charity, or of any official or employé thereof, as such departments are not agencies of the city in its corporate capacity, but public agencies created by law to discharge state duties, and not corporate duties or business, so that the rule of respondeat superior does - not apply to the city in respect of them.

(Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1570-1577; Dec. Dig. § 747.*]

2. MUNICIPAL CORPORATIONS (§ 747*)—LIABILITY FOR NEGLIGENCE OF FIRE DEPARTMENT.

The fire department of New York City having put up and used a wire in discharge of its duties, the city cannot be made liable for its negligence therein, nor for suffering the wire or poles carrying it to wear out or decay and fall; the city not being bound to inspect or care for the wires or poles, which are under the control of the department as a state agency.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1574; Dec. Dig. § 747.*]

3. APPEAL AND ERROR (§ 1173*)-REVERSAL AS TO ONE OR MORE COPARTIES. Where the theory on which a case went to the jury in respect to one defendant is so erroneous that the verdict against others probably resulted therefrom, the judgment should be reversed as to all.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4562; Dec. Dig. § 1173.*]

On rehearing. Judgment and order denying new trial reversed, and new trial granted.

For former report, see 129 App. Div. 919, 114 N. Y. Supp. 1128. Argued before HIRSCHBERG, P. J., and WOODWARD, GAYNOR, JENKS, and MILLER, JJ.

Thomas P. Magner, for plaintiff.

James D. Bell (P. E. Callahan, on the brief), for defendant city of New York.

John J. Kuhn (Owen N. Brown, on the brief), for defendant gas company.

Alexander Cameron (William D. Stiger and Arnold W. Sherman, on the brief), for defendant telephone company.

GAYNOR, J. I suppose it to be indisputable that the city is not liable for the tortious acts or neglects of its departments of police, fire, education or charity, or of any official or employé thereof. These departments are not agencies of the city, but public agencies, i. e., they are created by law for the discharge of governmental, i. e., state duties, and not city duties or business; and therefore the rule respondeat

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

superior does not apply to the city in respect of them. Wilcox v. City of Rochester, 190 N. Y. 137, 82 N. E. 1119, 17 L. R. A. (N. S.) 741. I have heretofore had to consider this same question. Peatty v. City of New York, 33 Misc. Rep. 231, 67 N. Y. Supp. 276. The fire department having put up and used the wire in the discharge of its duties, the city cannot be made liable for any negligence of the said department therein. That the said department should suffer the said wire, or the posts or poles upon which it was carried to wear out or decay and fall, would be its negligence alone. The city owed no duty of inspection or care of wire or poles; they were under the control and charge of the state through a state agency. The city had nothing to do with them. To say that the city had the duty of inspection to see that a worn out or unused wire or rotted post was replaced, would be erroneous. But the present case is much worse. The learned trial judge ruled that the city was responsible for the wire; he did not and would not recognize at all the non-liability of the city for the negligence of the fire department. The case does not rest on the wire being an obstruction and danger on the surface of the street after it fell which the city should have removed. No such question was presented to the jury. It would involve the length of time the wire lay on the street, which seems to have been only a few hours, and may not have been long enough to attribute that notice to the city on which its liability would depend. Nor was the case put to the jury on the ground of negligence of the city in not removing the wire from the poles before it broke, on the ground that the fire department abandoned it and it had grown obviously dangerous. If it had been they might have negatived the facts on which such ground depended. The city was treated as having put the wire up, as being in control and use of it, and therefore responsible for it.

The theory on which the case went to the jury in respect of the city was so erroneous that the verdict as to the other defendant's probably resulted therefrom, and the judgment should therefore be reversed as to all.

Judgment and orders reversed and new trial granted; costs to abide the event. All concur.

CATTERSON v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department. May 7, 1909.) 1. PLEADING (§ 34*)-CONSTRUCTION OF COMPLAINT ON MOTION TO DISMISS. Code Civ. Proc. § 519, requires that a complaint on motion to dismiss be liberally construed, and its construction, so far as matters of form are concerned, must be in favor of the pleading.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 66; Dec. Dig. § 34.*]

2. CARRIERS (§ 314*)-CARRIAGE OF PASSENGERS-PERSONAL INJURIES-SETTING DOWN PASSENGERS-ACTIONS-COMPLAINT.

In an action for injuries to plaintiff's wife, a complaint is sufficient, on motion to dismiss, where under it plaintiff could prove that defendant was a street railroad operating its cars on a specified avenue; that on