TRIAL. be null and void, and that other partics had engaged in such business. The ans SUPREME COURT-GENL TERM, FIRST wer further contained a general denial DEPT. Walsh et al, Plffs. and Respts. V. Mehrbach, Deft. and Applt. Appeal from a judgment on verdict directed by the Court at Circuit. of all the allegations of the complaint, not admitted by the answer. A copy of the bond was not set forth in the complaint, nor was the bond produced in evidence on the trial. On the trial, defendant's counsel moved to dismiss the complaint, on Issues must be met and determined. Province of court and jury. Bond ground that the action was brought on a of indemnity, damages under must bond of indemnity, and contained no albe assessed. legation of damage; that the damages are not liquidated by the contract, as set forth in the complaint; that the contract is void, being in restraint of trade. Motion was denied, and exception taken. At the conclusion of the evidence the judge directed a verdict for $5,000, on the ground that there was no conflict of evidence as to a breach of the agreement with respect to the use of the tools by Thomas H. Smith. This action was commenced to recover the damages sustained by the plaintiff, in consequence of the violation by one Thomas N. Smith of his agreement with them, that he would not for the period of three years, directly or indirectly, engage in the business of unloading any marble vessel or sailing craft of any kind, that might come to the port of New York from any other port or place, and that he would not use, or permit to be used, the tools then used by him in such business. The complaint set forth the execution of a bond on a certain date by defendant; which bond was made the basis of the cause of action in this suit; wherein the defendant bound himself in the penalty of five thousand dollars, the obligation to be void if Thomas N. Smith performed the agreement aforesaid made with plaintiff; which agreement was annexed to complaint. The complaint further alleged the breach of the agreement above mentioned by Smith; that the damages for a breach of such agreement were duly liquidated at $5.000, and demanded judgment for that sum. Held, That the answer put in issue the allegation that the bond by its ternis liquidated the damages for a breach of the contract at the sum of five thousand dollars, and proof to sustain that averment was not given by the plaintiffs. The case, therefore, stood on the bond as one conditioned for the performance by Smith of the contract he had entered into with the plaintiffs. And they should have shown the damages sustained by them for the breach, if anything of that kind was in truth established in the case. If the evidence established anything at all in the plaintiff's favor, it was that Smith had violated his agreement without proving any consequential loss by means of the breach to the plaintiff. There should have been an assessment of The answer admitted the making of damages upon proof of breach of the the agreement, but alleged the same to agreement, unless upon production of be in restraint of trade, and void; and fur- the bond a plain and clear contract of ther alleged that by the agreement between liquidation appeared upon its face.. BeSmith and plaintiff, it was provided that side the questions should have gone to should any other parties engage in the the jury, on the question of breach. business of unloading any marble vessel Opinion by Brady, J., Davis, P. J., or sailing craft, the said agreement should and Daniels, J., concurring. TRUSTS. N. Y. GENL TERM--FIRST DEPT. Fairchild, et al., v. Fairchild, et al. Decided Cctober 29th, 1875. tion of $9.930; which deed was duly recorded. This deed was taken in the name of Egbert N. Fairchild alone. The other members of the firm consented that he take the title in his own name, but not without recognizing the in Partnership interests. Assignment of terests of the other members of the firm interest of heir of real property. Appeal from a judgment upon the decision of a Judge, rendered at the Special Term. This action was brought by the plaintiffs who are children of Egbert N. Fairchild and some of his heirs-at-law for the partition of real estate in the City of New York. in the property, and were ignorant that the deed to Fairchild omitted to recognize the interests of the other partners. The lands were paid for out of copartnership funds, and also purchased for the firm's benefit. Fairchild & Brown died in 1864; Fairchild leaving eight children as specified in the complaint, and Brown leaving his widow Cornelia J. Brown and their children, David W., Henry V., and Harriet. Harriet afterwards died in her infancy, leaving her mother and brothers her heirs. A part only of the premises have been sold. The following facts were established by the testimony given on the trial. Egbert N. Fairchild, Stephen C. Walker, Isaac D. Coleman and Henry J. Brown in 1858, formed a co-partnership for the purpose of constructing the new reservoir It also appears that on the 31st of in Central Park, which was not to be Dec. 1866, the deft. Julia A. Schreiner, terminated by the death of any partner, one of the children of Fairchild, and one but to continue until the work was com- of his heirs, and her husband executed to pleted. The firm name was Fairchild, the defts. Beach and Borrowe, an assignWalker & Co. They began and com- ment of all her right, title and interest, pleted the work, and while it was in prog-estate, property and demand as legatee, deress took other contracts and did other visce, heir at law, and otherwise of, in and work on firm account. In January, 1860, to the estate, real and personal, of her late Gustavus H. Sacchi was the owner of the father, Egbert N. Fairchild, "and the rent real estate and premises described in the profit and income thereof," to be held complaint, situated on the Harlem river, until Beach & Borrowe should realize and offered the same for sale, at auction. therefrom, $2.250, and costs and charges The advertisement was seen by Fairchild, in consideration that they should relcase Walker & Co., and the purchase of the her husband Horace A. Schreiner, from land talked over by them. Fairchild, arrest on a civil action, which sum has Walker and Coleman went up to look at not been realized by said Beach & Borthe property, and concluded to buy it for rowe. firm use. Fairchild was authorized to attend the sale, and purchase at his discretion. Walker however, attended the sale, and bid in the property, giving the firm name to the auctioneer, as the name of the purchasers. The Court below held on the facts, that the real estate mentioned belonged to the firm named, but that the assignment mentioned was a mortgage and covered the undivided one-eighth part of the premises in question; and that if the share of Mrs. Schreiner therein, four oneOn the 24th January, 1860, a deed hundreths, was not sufficient to pay said was executed and delivered by Mr. Sacchi, indebtedness to Beach & Borrowe, it conveying to Egbert N. Fairchild the should be assessed pro rata upon the premises in question, for the considera- remaining ninety-six one-hundredths not to exceed in the whole one eighth of the intention of the parties, but there is no the whole real estate. Plaintiffs appealed power of sale given by it, and no right is from the whole judgment. The defend- conferred to sell or dispose of the property ants Coleman, Walker and the represent- to which it relates. The alienees took atives of Brown appealed from that part only what their covenantor had the power which holds that Beach & Borrowe held to transfer, and nothing more; a mortgage upon the undivided oneeighth part of said premises; and which directed payment thereof, out of anything more than Mrs. Schreiner's four one-time of its execution, is affirmed. hundredths. The judgment modified so as to direct the sum secured to be paid out of 4-100th interest owned by Mrs. Schreiner, at the Opinion by Brady, J., Daniels, J., On the appeal, it was argued by plain- concurring; Davis, P. J., concurs in the tiff that upon the facts in this case no re-result. sulting trust was created for the benefit of the other members of the firm of Fairchild, Walker & Coleman, under the provisions of § 51, p. 728, 1 vol. R. S. WILL. SUPREME COURT OF PENNSYLVANIA. Decided Oct. 18, 1875. Disinheriting heirs by construction. Error to Common Pleas of Cumberland County. John Rupp died in Jar.uary, 1834, leaving one daughter, Elizabeth, wife of Henry Buttorff. By his will, which had been executed in May, 1833, he devised his house and ten acres of land to his grand-daughter, Mary Buttorff, the only child of his daughter Elizabeth. The concluding clause of the will was in the fol Held. That the facts being as above stated, the other members of the firm were protected by the modifications of § 51, contained in § 53, 1 vol., R. S., p. 178, Foote v. Bryant, 47, N. Y., 551. That section 51 providing "that when a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made" should not be held applicable here. This is not the precise case contemplated by the Statute, as in this case the deed is to one who paid the consider-lowing words: "It is my will, that in ation out of a joint fund, of which he case my said daughter Elizabeth should owned a share, but for the benefit of all. happen to have more lawful issue, then In such case, the Court will not be as- and in such case, * * tute to force it within §51. That a re- my real estate shall be equally divided to sulting trust was created for the benefit and among all my grand-children of my of the other members of the firm, and said daughter Elizabeth, and their heirs that the decree, so far as it directed the and assigns forever: Provided, neverthedistribution of the proceeds of the estate, less, That in case of more issue, I direct according to the shares of the respective that all my real estate be valued and appartners, must be affirmed. praised, and my said granddaughter But Held, that that portion of the de- Mary, shall possess and hold said ten cree holding that the assignment of Mrs. acres of land and premises as part of her Schreiner to Beach & Borrowe, was a legacy." This action of ejectment was mortgage, protected against the resulting brought to recover an acre of land belongtrust, and a lien on the whole estate ing to the testator's estate, and not inmust be reversed. The instrument is an cluded in the ten acres devised to the assignment in form and legal effect; it granddaughter, now Mrs. Eberley, one of appears by its language that such was the plaintiffs below. The defendants * the whole of Buttorff and her husband. In the charge to the jury the court said: "This is not a very explicit devise, but it is an inference which seems inevitable, that the testator intended to devise his real estate to Mary, his granddaughter, in fee, subject to open and let in after-born children of her mother, if any be born; but in fact none were, and Mary got the whole." were in the possession as lessees of Mrs. the proceeds paid all the indebtedness of the testatrix, except a judgment recovered against them by defendant for $1.931 93, on which they had paid $1.000. Defendant having petitioned for an accounting as a creditor, plaintiff rendered an account of the personal estate of the testatrix, and included in it a statemant of the amount realized from the sales of real estate, which was about $20.000, stating that they had used $6. 548 91 of that sum in the payment of a mortgage on a farm remaining unsold, and for repairs on the same. The executors claimed that they had paid out $1.025 91 more than they had received. 2. There are no words in the will The Surrogate in his decree, charged which can be stretched so as to give the them with the amount so paid upon the grand-daughter any interest in the gen-mortgage and for repairs, leaving a baleral real estate, except in the event of ance of $5.523 02 to be accounted for, out no other issue of her mother. Held. 1. "That an heir can be disǝnherited only by express devise or necessary implication, and that implication has been defined to be such a strong probability that an intention to the contrary cannot be supposed." Opinion by Woodward J. NEW YORK COURT OF APPEALS. of which they were directed to pay defendant's claim. Held, No error; that by the terms of the will the executors could only sell the real estate to pay debts not secured by mortgage, and were not charged with the payment of the mortgage, as the Van Vechten, Appl't, v. Keator, Res'p. devisee of the farm was bound to satisfy Decided Oct. 5, 1875. Devise of land to pay debts. Mortgage on land devised. Executors. Credi tors. This is an appeal from a decree of the Surrogate of Ulster County on the final accounting of plaintiff as executor of the will of E. The testatrix, by the first clause of her will, charged her real estate with the payment of her debts, and empowered her executors to sell so much therefore as should be necessary for that purpose. By the second clause he bequeathed all her personal property to her daughter-in-law, and by the third and last clause she devised all her real estate to her executors in trust for the same daughter-in-law for her life and the life. of her husband, with remainder to their children, The executors sold a large amount of the real estate, and out of and discharge it, and could not resort to the executors, there being no express direction in the will that the executors should pay it. 1 R. S., 749, § 4, 11 p. 265; 10 id. 158. It is only when the different clauses of a will are irreconcilable upon any reasonable interpretation that effect will be given to the last expressions of the testator to the disregarding of the earlier clauses. 55 N. Y., 12. Judgment affirmed. SUPREME COURT OF PENNSYLVANIA. Saxton, et al., v. Mitchell. Construction of will. Derise. Ease ment. "The case stated does not set forth the whole will. We are, therefore, de Error to Common Pleas of Cumber-prived of any light which other portions land County. Case stated. The presiding elder of the M. E. Church was plaintiff, and the nieces of testator were defendants. might throw on the part we are called John Dunlap, by his will, gave to his wife the income of his real property for her life, and provided, that after her death, his exccutors should sell all his real estate, "except such portions of it as are specificially devised and reserved to an occupancy of the land for the ro hereafter; and the proceeds arising from ligious worship named. The Legisla my tract of land" (describing a certain ture, then, had no power to authorize tract), "except twenty acres of wood- the title to the heirs to be divested." land" (fully described), which I hereby Decree reversed, and judgment entered reserve forever for the use of the members in favor of the plaintiffs in error, with of the Methodist Episcopal Church to hold their camp meetings on, shall be equally divided between all my nephews and nicces who may be living at my wife's decease." At the time of the suit the widow was living. An Act was passed February 10, 1871, authorizing the Court of Common Pleas Cumberland County, upon the petition of the plaintiff, to appoint a trustee to sell the twenty acres, and to direct him to invest the proceeds in a more suitable tract, to be held for the same purposes. This petition was presented, and a rule was granted on the defendants, under which rule the case was made. The Court below made a decree in compliance with the special Act, and defendants took a writ of error thereon. On appeal. Held. "The land passed to the testator's heirs, subject to the perpetual easement for the religious worship named. All the rights in the land not in conflict with the worship designated by the testator remained in his heirs. They were obliged to suffer this land to be used by the persons and for the object stated. They took it thus charged." costs. Opinion by Mercur, J. WITNESS. PHILADELPHIA ORPHAN'S Court. Watson's Estate. Competency of widow to testify to the On Auditor's report. A creditor presented a bond of the decedcnt to the auditor that the amount of it might be allowed him. The widow was offered as a witness to prove that the bond had been paid during her husband's lifetime, but the Auditor rejected her as incompetent. Held. Dwight J. That the witness was competent. The Act of April 15, 18C9, (P. L.) was designed to exclude the surviving parties to the thing or contract in action, and not persons who have merely an interest in the residuum of an estate. Report recommitted to the auditor to take the testimony of the witness, and to weigh it in coming to his conclusions of fact. |