Cole agt. Cole et al.

visions made for the plaintiff by the will must be regarded as having been intended by the testator in lieu of dower.

Where there is no direct expression of intention that the provision contained in the will shall be in lieu of dower, the question always is whether the will contains any provision inconsistent with the assertion of a right to demand a third of the land to be set out by metes and bounds for dower (Matter of Zahrt, supra). The intention of the testator need not be declared in express words; it may be implied if the claim of dower would be plainly inconsistent with the will.

The will under consideration gives all the testator's real and personal estate to this plaintiff as executrix, and John M. Corliss and William Curley as executors, in trust for uses and purposes therein stated, among which are the following as

stated in the will:

"First. To receive and collect the income thereof, and to pay the same for my debts and the incumbrances upon my estate, after the payment of such sums as may be necessary for the support and education of my family and children, in which matters I desire my executrix and executors to be liberal.

"Second. To purchase in their own names as such executrix and executors a homestead for my wife and family, if I shall not do so in my lifetime, and in such homestead all my children shall be entitled to a home while they remain unmarried.”

It was conceded on the argument (as I understood it) that the testator in his lifetime purchased the homestead and owned it at the time of his death. I take it that the intention of the testator is reasonably clear that the widow should take all of her interest in that homestead under the will. She is given an interest equal to that of each child. The devise must contemplate a homestead discharged of dower, otherwise the object of the testator, as expressed, might be defeated by assumption of dower right and possible sale of the homestead under such claim (Miall agt. Brain, 4 Mad. Rep., 119; Roadley agt. Dixon, 3 Russ. Rep., 192; Sanford agt. Jackson, 10 Paige, 270).

Birney agt. Wheaton.

In Lewis agt. Smith (supra) the court says: "There is no person who takes an interest under the will during her (the widow's) lifetime with which the claim of dower will conflict." This can hardly be said of the will in the case at bar.

Other provisions of the will, in connection with those I have mentioned, indicate to my mind that the intention of the testator was that the widow's interest in his estate should be in common with his children so long as she remained his widow; that it should arise from the will, and that she should have no other or further interest. The testator directs that in case of the remarriage of his wife all of his estate shall be divided equally among his four children, and be paid to them respectively as they arrive at full age. If one-third of the real estate were to be set apart to the widow as dower, a division of all of the estate among such children could not take place until the widow's death, notwithstanding a remarriage by her. Thus a provision of the will would be defeated.

If the view I have taken is erect, this action cannot be maintained. Plaintiff's application for final judgment is therefore denied. An order to carry out this decision will be settled by me upon notice to counsel.

NEW YORK CITY COURT.

EMMA BIRNEY agt. JONAS S. WHEATON.

Married women ·

- Separate personal effects - When may be detained by virtue of innkeeper's lien — Evidence.

Where husband and wife board at a hotel the husband is presumptively liable for the bill, but it is competent for the hotel-keeper to show that the husband was impecunious, and that credit was given to the wife so as to justify the detention of her property by virtue of the hotelkeeper's lien.

General Term, November, 1885.

Before MCADAM, C. J., NEHRBAS and HYATT, JJ.

Birney agt. Wheaton.

APPEAL from judgment, entered on verdict in favor of the plaintiff.

MCADAM, C. J.-Independently of the statute of 1884 (chap. 381), enacted after the board bill herein was contracted (and on that account inapplicable to the present contention), a married woman might have contracted a board bill on her own credit and responsibility. In the present case the defendant, in order to establish his lien upon the plaintiff's property, offered to prove that the plaintiff was the head of the family, was the guest in the defendant's house, and the person who was trusted; that she had money and credit and her husband none; and all this testimony was ruled out under exception. We think the testimony was competent and ought to have been admitted. If upon such evidence the jury had found that the credit was given to the plaintiff, and not to her husband, the defendant, as a hotel-keeper, had the right to detain the plaintiff's property until the board bill was paid, and was not liable to her in the present action of claim and delivery without proof of tender of the amount due and refusal to deliver after tender made. The case of McIlvaine agt. Hilton (7 Hun, 594) only applies where the wife is supported by the husband, and the credit is given to him.

We cannot imagine why a wife with credit cannot take her husband, who has none, to a hotel, and in order to procure board and shelter for her family arrange that she and not the impecunious husband shall pay the bills (Maxon agt. Scott, 55 N. Y., 247; Tiemeyer agt. Turnquist, 85 N. Y., 516). If this were not so, a wife, however wealthy, might find it difficult to find rooms in a hotel, simply because her husband was unfortunate enough to be impecunious. These observations are made simply to show that the rulings made at the trial might lead to the impracticable results suggested.

It follows, therefore, that the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event, to the end that the proof excluded

Scott and others agt. Reed.

may be admitted upon the new trial, and the question of fact whether the credit was given to the husband or wife submitted to the jury.

NEHRBAS and HYATT, JJ., concurred.

SUPREME COURT.

JAMES SCOIT and others, respondents, agt. ALEXANDER REED, Jr., appellant.

Arrest― Sufficiency of proof to support order of - Code of Civil Procedure, section 550.

Proof that one of two partners withdrew a large amount of money from the business of the firm for the reason that it had suffered severe losses, and that the other partner had already transferred a large portion of his property to his wife without consideration, will not support an order of arrest against the partner who withdrew the money, without further proof that he had either disposed of any part of this sum or intended to do so to defraud his creditors.

First Department, General Term, November, 1885.

Before DAVIS, P. J., BRADY and DANIELS, JJ.

APPEAL from an order denying a motion to vacate an order of arrest.

James M. Smith, for appellant.

F. N. Bangs, for respondents.

DANIELS, J. The order was made under the authority of subdivision 2, section 550 of the Code of Civil Procedure. The application for it depended wholly upon two affidavits, one of which was devoted to proof of the indebtedness in this action, and of other indebtedness owing by the defendant who VOL. II 66

Scott and others agt. Reed.

has appealed, and his copartner. By the other affidavit it was stated that the partner of the appellant had informed the person making it, that the appellant had withdrawn $4,80 in cash, being the larger portion of his capital, from the firm, and had concealed its withdrawal by false entries made by himself in the copartnership books. This statement was commu nicated to Reed,.the appellant, who admitted that he had with drawn this amount from the funds of the firm, but excused himself for doing so by the statement that losses had been suffered in the business, and that his partner Atwater had transferred a large portion of his property to his wife without consideration. From this statement and a statement exhibiting the financial condition of the firm to a mercantile agency, the conclusion was drawn by the persons making the affidavit that both defendants, since the making of their purchases, had removed or disposed of their property, or were about to do so, with intent to defraud their creditors. And the latter part of the statement made by the appellant as it was further sustained by the information received from Mr. Bradley, showing the transfer of corporate stock by Atwater to his wife, may have been sufficient to support an order for his arrest on this ground against Atwater. But the fact that he may have disposed of his property to defraud his creditors, or the creditors of the firm, will not support an order for the arrest of his copartner Reed. To entitle the plaintiff to such an order the law requires that the charge of fraudulent misconduct of the alleged description shall be sustained against the person to be arrested, and that will not be proved simply by showing such misconduct on the part of his partner (National Bank, &c., agt. Temple, 39 How., 432; Hathaway agt. Johnson, 55 N. Y., 93; Sherman agt. Smith, 42 Пow., 198).

But neither of the affidavits establishes the fact that any fraudulent disposition was made or intended by Reed. All that has been proved against him is that he drew this amount of money from the business of the firm for the reason that it had suffered severe losses, and his partner Atwater had already