(178 N.Y.S.)

"It was not error for the court not to charge as a matter of law that the witness Mancini was an accomplice."

The case was presented both before the trial court and upon the appeal with Mancini occupying merely the position of a material witness held under bail and not as an accomplice. He was produced before the jury as apparently, and on this motion is asserted to be, one who was merely a spectator or "innocent bystander" to the criminal conspiracy, not as a principal then under secret indictment as a coconspirator. By some arrangement he was not required to plead to the indictment until June 25, 1918, after the trial of this defendant, and then he pleaded not guilty, which plea on December 13, 1918, he changed to a plea of manslaughter in the second degree, and thereupon his sentence was suspended. In reality his position was similar to that of the three witnesses in the first Becker trial who were concededly implicated with him and obtained immunity by giving evidence tending to convict the defendant in that case. That conviction was reversed (People v. Becker, 210 N. Y. 274, 104 Ν. E. 396) largely because the court held that it was questionable whether there was any testimony corroborating the testimony of these witnesses as to the guilt of the defendant. Upon the appeal from the second trial the court held that there was evidence in the case other than that of the accomplices, tending to connect the defendant with the commission of the crime. In reviewing the second trial the Court of Appeals said:

"The jury were properly warned that, in weighing the words of Rose, Valion, and Webber, the fact that these witnesses had been granted immunity, provided they did not actually fire the fatal shots, should be taken into account, and the further fact that they had an interest to shield themselves in the testimony they should give." 215 N. Y. 126, 140, 109 Ν. Ε. 127, 131, Ann. Cas. 1917A, 600.

In the case at bar no such warning was given with regard to Mancini, and in that respect the Becker jury was in a better position to pass upon the credibility of the witnesses referred to than the jury in the present case, if, as seems not unlikely, an arrangement for immunity had been made with Mancini.

The assistant district attorney who opposed the present application contends that, even without regard to the testimony of Mancini, there was sufficient corroboration of the story told by Daniello to support the conviction of the defendant; but he does not specify how otherwise it was corroborated. I regret that I cannot concur in the contention. Such corroboration as there was came from the mouths of other members of the conspiracy who were equally steeped in the crimes committed. If, then, we regard Mancini as an accomplice in the crime, his testimony is valueless as corroboration of the testimony given by Daniello, also an accomplice. I am accordingly forced to the conclusion that the jury would in all probability not have found a verdict of guilty against the defendant, if the real facts which are now known concerning Mancini's indictment as a principal in one of the murders had been known to the trial court and explained, in its legal effect, to the jury. Indeed, I am not at all sure that, if the facts concerning his indictment and the suspension of his sentence had been disclosed to the Court of Appeals, a different result would not have been reached in that court. [9] There remain for consideration certain matters involved in the decision of this application which are discussed in the brief submitted in opposition by the district attorney. He cites the case of People v. Priori, 164 N. Y. 459, 58 N. E. 668, in which the Court of Appeals declares the rule applicable to such a motion as this as follows:

"Newly discovered evidence in order to be sufficient must fulfill all the following requirements: (1) It must be such as will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such as could not have been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be cumulative to the former issue; and (6) it must not be merely impeaching or contradicting the former evidence." 164 N. Y. 472, 58 Ν. Ε. 672.

As to the first of these conditions, I assume that the language employed by the court is equivalent to the language used in section 465 of the Code of Criminal Procedure, viz.:

"Where it is made to appear, by affidavit, that upon another trial the defendant can produce evidence such as, if before received, would probably have changed the verdict."

This phase of the case has already been considered and requires no further comment. As to the second and third conditions, the moving affidavit of defendant's counsel states:

"At the close of the trial of this defendant, the court not being aware that Mancini had been indicted in this conspiracy and the counsel for the defendant and defendant not having been able to obtain such information, the following discussion took place between the trial court, the trial district attorney, and the counsel for the defendant."

And in his memorandum, submitted to the court, he says that he had stated under oath that he did not know the fact that Mancini had been indicted in this conspiracy. The district attorney does not meet these statements with anything more substantial than surmises that defendant and his counsel must have known of Mancini's indictment for the murder of Ferrazano.

The question of Mancini's participation in the conspiracy as a principal as affecting the right of the prosecution to use him as a material and disinterested witness to corroborate Daniello was a close one. Good faith, not alone to the court presiding at the trial, but also to the jury and to the defendant on trial for his life, demanded that the district attorney reveal the fact to them, if he was aware of it, that Mancini was under indictment as a principal, and not merely held as a material witness under bail. Moreover, if it were the fact, as the defendant now claims, that an agreement then existed between the district attorney's offices in New York and Brooklyn to permit Daniello and Mancini to plead to crimes of a lesser degree and to obtain suspended sentences in consideration of giving evidence against this defendant upon his trial, then that scrupulous good faith which is expected of a prosecuting officer required a disclosure of the fact of the indictment of Mancini so that court and jury might judge the weight to be given to his evidence in the light of such agreement. On the contrary, however, it appears, as has already been stated, that Mancini has been charged with the crime of murder of one of

(178 Ν.Υ.S.)

the three members of the Morello gang, whose death was one of the objects of the conspiracy. This had been done by a secret indictment on the same day on which the defendant herein had been indicted for the murder of another one of the three victims of the conspiracy. The statement to this effect in the moving affidavit is not contradicted by the answering affidavits, and, as to its having been secret, it is corroborated by the affidavit of Higgins, a county detective, who avers that the deputy clerk of the Court of General Sessions of New York City informed him that the original indictment was secret by order of the court, and that the names of the other defendants could not be disclosed to him, because some of them had not been apprehended. Under all these circumstances, I am of opinion that the defendant has met the conditions stated as to discovery and due diligence as to the indictment of Mancini.

As to the fourth, fifth, and sixth conditions above stated: The evidence in question is certainly material (see 5 Chamberlayne on Evidence, § 3754), and it was not cumulative in its nature, nor does it merely impeach or contradict the former evidence.

To my mind the fact that no affidavit by the learned district attorney or his trial assistant is submitted in contradiction of the statement that the fact of Mancini's indictment was known to the district attorneys of Kings and New York counties at the time of defendant's trial is significant. Their silence upon this point seems quite remarkable, in view of the serious charge made in the moving affidavit. In my opinion, the answering affidavits are singularly unsatisfactory and incomplete, and were it not for that fact, I should have less difficulty in reaching a conclusion more satisfactory to my own mind and conscience and one which would not involve the expense and labor of a new trial of this defendant.

In the light of all that has been stated in this memorandum, which I fear only inadequately covers the matters involved in this application, I have concluded, in the exercise of the judicial discretion which the law reposes in the court, to grant a new trial to this defendant.

Motion granted. Settle order on notice.

(108 Misc. Rep. 514)

UNITED STATES TRUST CO. OF NEW YORK v. TAYLOR et al.
(Supreme Court, Special Term, New York County. July 7, 1919.)

1. WILLS 524(6)634(15)-VESTING OF REMAINDERS AND TIME OF ASCERTAIN

MENT OF CLASS.

On a bequest to trustees, in trust to collect and pay over the income of a fund to a life tenant, and after the death of the life tenant to pay over and distribute the fund, the remainder will not vest in the beneficiaries until the time for payment arrives, and the class of beneficiaries is fixed as of the date of the life tenant's death, and not as of testator's death.

2. WILLS 552(5), 634(13)-REMAINDER TO NEXT HEIRS GIFT TO CLASS.

Under a will directing the income from a trust fund to be paid to testator's sister during her life, and on her death the capital to be distributed among his "next heirs" by blood according to the statute of distribution, held, on the death of life tenant after testator, that the "next heirs" took as members of a class, no vested remainder to testator's next of kin being intended, so that his nephews and nieces did not take by representation from their ancestors, but in their own rights, and his grandnephews and grandnieces took the share of their immediate ancestor.

Action by the United States Trust Company of New York, as trustee under the will of Peter B. Taylor, deceased, against Irving K. Taylor and others, to construe the will. Order of construction entered.

Stewart & Shearer, of New York City, for plaintiff. Larkin & Perry, of New York City, for defendant Perry. Taylor, Jackson, Brophy & Nash, of New York City, for defendant Pemberton.

Whitridge, Butler & Rice, of New York City, for defendant Fannie T. Taylor.

John F. Coffin, of New York City, for defendants Fannie T. Baldwin and others.

Maurice J. Moore, of New York City, for defendants Irving K. Taylor and others.

John Francis Moore, of New York City, for defendants Buchanan and Adelaide B. Baldwin.

LEHMAN, J. The testator, Peter B. Taylor, died in the city of New York on or about the 4th day of January, 1909, leaving a last will and testament which was duly admitted to probate. In his will he provided among other things:

"Fourth. I direct my executors hereinafter named, to divide all the rest, residue and remainder of my estate, real and personal, of whatsoever kind or nature and wheresoever situated, of which I may die seized or possessed or be in any way entitled to, into twenty-two equal parts or portions, which parts or portions I give and bequeath and direct my executors to pay over and distribute as follows: * * Four other of said twenty-two parts to my sister, Jeannie McKewan, if she be living at the time of my death, for her own use and benefit forever, and if she be then dead, then to my next heirs by blood to be distributed between them by my executors according to the statute of distribution of the state of New York.

*

"Fifth. If my sister, Jeannie McKewan, shall be living at the time of my death then in that case I give and bequeath four other of said twenty-two parts to the United States Trust Company in the City of New York, upon the

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

(178 Ν.Υ.Σ.)

trusts and to and for the uses and purposes following, that is to say: in trust to collect and receive all the rents, profits, dividends, interest moneys and income arising therefrom and after paying all taxes, charges, costs and expenses thereon and incident thereto, to pay over the net annual income thereof in quarterly payments to my sister, Jeannie McKewan, for and during her life, and on her death to convey, pay over and distribute the whole capital of such four parts to and among my next heirs by blood according to the statute of distribution of the state of New York."

The testator's sister survived the testator and died on April 13, 1918. The trustee now asks for a construction of the fifth paragraph of the will and a direction as to the distribution of the trust fund provided for in that paragraph. Inasmuch as the fund must be regarded as personal property and the testator expressly provided that it be distributed according to the statute of distributions, it is quite evident that he has used the words "next heirs by blood" in the sense of next of kin, and it is not disputed that they should be given this construction. The serious question involved in this case, however, is whether the distribution must be made among the next of kin living at the testator's death or among those persons who would have stood in the relation of next of kin to him at the time of his death, if he had survived the life tenant.

[1,2] "The next heirs" under the will take as members of a class. There is no present gift in express terms to the members of that class, but they take only under the provision of the will that after the death of the life tenant the trustees should "convey, pay over and distribute" this fund among them. Under well-established canons of construction, ordinarily where there is a bequest to trustees in trust to collect and pay over the income of a fund to a life tenant and after the death of the life tenant to pay over and distribute the fund, the remainder will not vest in the beneficiaries until the time for payment arrives (Wright v. Wright, 225 N. Y. 329, 122 N. E. 213, and cases there cited), and the class of beneficiaries is fixed as of the date of the death of the life tenant, and not as of the death of the testator.

The testator left him surviving a brother and sister and descendants of a predeceased brother and sister. At the time of the death of the life tenant, Jeannie McKewan, one son of the life tenant, survived, and numerous other nephews and nieces, as well as the descendants of a deceased nephew and niece, of the testator. If the remainder after the death of the life tenant vested in the testator's next of kin at the death of the testator, the descendants of each brother and sister take the share which their ancestor would have taken. If, on the other hand, the will is to be interpreted in accordance with the usual canons of construction, and the gift over gave to the members of the beneficiary class living at the death of the testator no vested interest, then their ancestors will take, not by representation from their ancestors, but as present next of kin.

The contention is now urged by some of the nephews and nieces, or their assignee, that this rule of construction has no application to the present case, because the word "heirs" means those persons who succeed to an estate upon the death of their ancestor or kin by descent or the right of relationship, and the class must therefore of necessity