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(178 N.Y.S.)

their par value. The other 5 shares out of the 20 subscribed were added to the principal.

In these accounting proceedings these 15 shares have been regarded as principal. The accounting trustee has been charged with $2,640, the full market value of such shares. An allowance of $750 was made to the special guardian.

Argued before JENKS, P. J., and MILLS, RICH, PUTNAM, and BLACKMAR, JJ.

William W. Scrugham, of Yonkers, for appellants.

John Q. A. Johnson, of Yonkers (Frederick Hughes, of Yonkers, on the brief), for respondents Caroline C. Johnson and others and for special guardian of infant respondents.

PER CURIAM. It has been settled that the Rome Brass & Copper Company stock dividend, declared in 1910, was income, and as such passed to the life beneficiary, instead of becoming an accretion to the principal trust fund. 74 Misc. Rep. 341, 133 N. Y. Supp. 1109; 157 App. Div. 897, 142 N. Y. Supp. 1107; 209 N. Y. 601, 103 Ν. Ε. 734.

After such final decision in December, 1913, and the surrogate's decree entered thereon, directing the trustee to deliver such 105 shares to the life beneficiary, the trustee further transferred to such beneficiary the 15 shares of new treasury stock which he had subscribed for, taking reimbursement for the amount advanced. This was right, as the determination that the stock dividend was income carried also the appurtenant subscription right, as both were from accumulated profits. United States Trust Co. v. Heye, 224 N. Y. 242, 120 N. Ε. 645. The subscription right to the 15 shares here in dispute followed the ultimate title to the 105 shares for which the trustee subscribed on behalf of whoever should be finally entitled thereto.

In view of the situation of the infant parties to this accounting, the $750 allowance to the special guardian is reduced to $500.

Therefore so much of the decree of the Surrogate's Court of Westchester County is reversed as charges against the trustee the value of 15 shares of the Rome Brass & Copper Company transferred to Frederick H. Curtiss. The allowance to the special guardian is reduced from $750 to $500. The trustee's account, as amended and filed, is settled, with costs to the appellants, also to the respondents who have appeared, payable out of the estate.

BIGIO et al. v. STEINBRUGGE et al.

(Supreme Court, Appellate Term, First Department. October 17, 1919.)

SALES 411-COUNTERCLAIM FOR FAILURE TO DELIVER MUST ALLEGE ABILITY TO PAY.

A counterclaim, based on plaintiffs' failure to deliver goods bought by defendants, is insufficient to set out a cause of action, where it was not alleged that at appointed time of delivery defendants were able and willing to make the payment required.

Appeal from City Court of New York, Special Term.

Action by Jacques Bigio and another against Edward Steinbrugge, Jr., and others. From an order denying plaintiffs' motion to vacate an order for their examination before trial, plaintiffs appeal. Order reversed.

Argued October term, 1919, before GUY, BIJUR, and DELEHANTY, JJ.

Ferris, Dannenberg & Ansbacher, of New York City (Jacob Ansbacher, of New York City, of counsel), for appellants.

Anton Gronich, of New York City (Ira J. Schuster, of New York City, of counsel), for respondents.

BIJUR, J. The examination was ordered in support of defendant's counterclaim. Whatever view we may take of other alleged defects in the counterclaim, which is based on plaintiffs' failure to deliver goods purchased by defendant, it is manifest that it fails to set out a good cause of action, because of the absence of an allegation that at the appointed time of delivery defendant was ready and able to make the payments required. See Stern v. McKee, 70 App. Div. 142, 75 Ν. Υ. Supp. 157; Pope v. Terre Haute Mfg. Co., 107 N. Y. 61, 13 Ν. Ε. 592; Reid v. America Co., 136 N. Y. Supp. 75.

Order reversed, with $10 costs and disbursements, and motion to vacate examination granted. All concur.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (109 Misc. Rep. 62)

(178 N.Y.S.)

In re DURANT'S ESTATE.

(Surrogate's Court, New York County. October 9, 1919.)

1. WILLS 498-INTENT SHOWN TO LIMIT "ISSUE" TO CHILDREN ONLY.

The rule that the word "issue" will be construed to mean descendants generally yields to an intent manifested in some part of the will to limit the meaning to children only.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Issue.]

2. WILLS

533-LIMITATION OF REMAINDER OF TRUST FUND TO CHILDREN OF

LIFE TENANT.

In view of other clauses of will, testator's intention in providing that a fifth of the residuary estate should be held in trust for a daughter for life, and on her death leaving "issue" to pay over to such issue the principal for equal division, held to have been to limit the distribution of the remainder to children of the life beneficiary and the issue of any of them dead on distribution, such issue to take parent's share.

In the matter of the estate of Charles W. Durant. On objections to the account of a trustee under a clause of the will. Decree directed in accordance with the opinion.

Geller, Rolston & Horan, of New York City, for trustee. Harris & Towne, of New York City, for Ray D. Bowers. Arthur Sutherland, of New York City, for Durant Bowers. Henry De Forest Weekes, of New York City, special guardian of infants Estelle and Alice D. Weeks.

Thomas B. Gilchrist, of New York City, for Henry Dearborn, general guardian.

Laurence Millet, of New York City, for Margaret D. B. Dearborn.

FOWLER, S. The trustee under the ninth clause of the will of the deceased has filed its account, and objections thereto have been filed by one of the children of the life beneficiary. The objections put in issue the construction of the ninth clause of the will adopted by the trustee, and the correctness of this construction is therefore presented to the court for determination. That clause provides that one-fifth of the residuary estate of the deceased shall be held in trust and the income applied to the use of Estelle Durant Bowers, a daughter of the deceased, during her natural life, "and upon the death of my said daughter, leaving lawful issue her surviving then to pay over to such issue the principal of such share so devised in trust, to be equally divided between them."

Estelle Durant Bowers remarried and became known as Estelle Durant Weeks. She died on December 24, 1918, and was survived by five children. One of these children, Margaret D. B. Dearborn, had two children living at the date of death of the life beneficiary, and it is contended on their behalf that they are entitled to share in the remainder after the life estate of Estelle Durant Weeks equally with their mother and the other children of the life beneficiary.

[1] This contention would unquestionably be correct if the testator

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

in the ninth clause of his will intended by the words "lawful issue" to refer to the descendants generally of his daughter Estelle, and that such descendants should take per capita. While it is the rule in this state that the word "issue" will be construed to mean descendants generally (Schmidt v. Jewett, 195 N. Y. 486, 88 Ν. Ε. 1110, 133 Am. St. Rep. 815), nevertheless this rule will yield to an intent manifested in some part of the will to limit the meaning of issue to children (Matter of Union Trust Co., 170 App. Div. 176, 156 N. Y. Supp. 32; Brown v. Tanz, 176 App. Div. 795, 163 N. Y. Supp. 372).

There are in the will of the testator many manifestations of an intent to give his property to his children to the exclusion of his grandchildren. Thus, in paragraph third, the will provides that any income derived from his estate in excess of $20,000 a year shall be divided among his children living at the end of such year. In paragraph eighth he provides that if either of his sons die before the life tenant, leaving no lawful issue him surviving, his share shall go to his surviving brothers and sisters in equal shares-none going to their children. In paragraph tenth he provides that in case his daughter should die leaving no issue her surviving, then the principal of the trust fund is to go to his sons, to be divided equally between them-no part going to their children. In paragraph fifteenth he provides that upon the death of his son Thomas, the trust fund held for his benefit shall be paid "to my other children living at the death of said Thomas, equally, to be divided among them"-not among them and their children.

There is therefore throughout the will of the testator a manifest intent to limit the distribution of his estate to his children living at the time of such distribution, and to exclude his grandchildren when the parent or parents of such grandchildren are living. There is also manifest an intention that such distribution shall be equal among his children or his grandchildren. A construction of the ninth clause of the will which would hold that the testator intended by the words "lawful issue" a per capita distribution among descendants would result in three-sevenths of the trust fund being paid to one child and her issue, while each of the other children would receive only one-seventh. There is nothing in the will to sustain the contention that such was the intention of the testator and nothing to support such an inequitable distribution of the trust fund.

[2]. I will therefore hold that the testator intended to limit the distribution of the remainder of the trust fund referred to in the ninth clause of his will to children of the life beneficiary and the issue of any of them who should be dead at the time of distribution, such issue to take its parent's share, and that the corpus of the trust fund should be divided equally among the children of Estelle Durant Weeks.

Settle decree accordingly.

(178 N.Y.S.)

KIPS BAY BREWING & MALTING CO. v. J. H. TOOKER PRINTING CO. (Supreme Court, Appellate Term, First Department. October 17, 1919.)

COSTS 275-PAYMENT AS CONDITION TO PLEADING OVER AFTER DEMURRER.

An order granting defendant's motion to withdraw its demurrer, and to plead over after judgment on the pleadings for plaintiff, should be conditioned upon the payment of taxable costs to date, but not upon additional costs.

Appeal from City Court of New York, Special Term.

Action by the Kips Bay Brewing & Malting Company against J. H. Tooker Printing Company. From so much of an order of the City Court of the city of New York as refused to vacate the judgment and imposed any more than taxable costs, together with costs of motion, upon defendant as a condition for withdrawing demurrer and filing answer, defendant appeals. Order modified, by reducing award of costs, and affirmed.

See, also, 174 N. Y. Supp. 686; 176 N. Y. Supp. 65. Argued October term, 1919, before GUY, BIJUR, and DELEHANTY, JJ.

Herman Kahn, of New York City, for appellant.

Paskus, Gordon & Hyman, of New York City (Arthur B. Hyman, of New York City, of counsel), for respondent.

PER CURIAM. In order to determine the amount of costs which should have been allowed to the plaintiff, it is necessary to recall the various motions that have been made herein.

Defendant demurred to the complaint, and plaintiff moved to strike out the demurrer as frivolous and for judgment on the pleadings. This motion was granted, with costs, and the defendant appealed. On appeal the judgment was vacated, and costs were awarded to the defendant; the court stating that the demurrer should have been brought on for hearing in the usual manner. Plaintiff paid the costs awarded and again moved for judgment on the pleadings. Judgment was granted a second time in the court below, and upon appeal the same was affirmed, but with an allowance for disbursements only, and with leave to the defendant to apply at Special Term for further relief or to take such proceedings as counsel may advise.

The papers presented indicate that the disbursements on this appeal amounted to $10.57. Defendant thereupon moved in the lower court to vacate the judgment entered against it, and for leave to serve an answer to the complaint. The order made upon this motion refuses to vacate the judgment, and grants defendant leave to withdraw its demurrer and serve its answer upon payment of $118.89 costs. This appeal by the defendant is from so much of said order as imposes any more than taxable costs to defendant with costs of motion, as a condition of pleadings, and also from the order in so far as it refuses to vacate the judgment.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 178 N.Y.S.-8

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