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plied is another and a different thing." In City disapproving terms of investments in so-called of St. Louis v. Bell Tel. Co. (96 Mo., 623, 10 "mortgage participation certificates " used by S. W., 197) it was held that neither under its the Title Guarantee and Trust Company of authority to regulate the use of streets, nor the New York city for trust purposes. In his power to license, tax and regulate various pro- opinion the surrogate says : fessions and businesses, nor the general welfare “ Each certificate represents that the Title clause permitting the passage of all such ordi- Guarantee and Trust Company has received nances not inconsistent with the provisions of $1,000 from the purchaser thereof for investthe charter or the laws of the State as may be ment in the purchase of an undivided interest expedient in maintaining the peace, good gov- in a certain described bond and mortgage ernment, health and welfare of the city, its made to said Title Guarantee and Trust Comtrade, commerce and manufactures, can the pany, bearing four and a half per cent. intercity of St. Louis regulate by ordinance the est, payable semi-annually. The mortgage is tariff of charges of a telephone company. In upon improved real estate situate in this State. the opinion the court says: We are at a loss The bond and mortgage are deposited with the to see what this power to regulate the use of guarantor, as well as policies of fire insurance the streets has to do with the power to fix tele- of a certain designated amount, which amount phone charges. The power to regulate the the guarantor agrees to keep continuously in charges for telephone service is neither included force until the payment of the bond and mortin nor incident to the power to regulate the use

gage.

In said certificate it is mutually agreed of streets, and the ordinance cannot be upheld between the holders thereof and the holders of on any such grounds.” Under the section of all the other certificates and the title company, our statute herein before fully quoted a gas or first, that the title company is appointed irre water company may lay its pipes and mains vocably the agent and attorney of all owners through the streets of a city only with the con

of certificate for the purpose (a) of collecting sent of the municipal authorities, and under the interest and principal of said bond and such regulations as they may prescribe, but mortgage and of satisfying and discharging the the regulations are only as to the laying of

same in its own name on receiving full paypipes and mains, and have nothing to do ment; (b) of deciding when and how any prowith the price of the gas

water pass

vision of the bond and mortgage shall be ing through the pipes, and supplied to con

enforced and of enforcing it accordingly; (c) sumers. Counsel for the respondent cite the of granting any extension of time of payment leading case of Munn v. Illinois, 94 U. S.

of the bond and mortgage.

113, and others of like character, to the effect that,

Further, the title company is to determine where the owner of property devotes it to a use

whether

any

action is to be brought respectin which the public have an interest, he must, ing the certificates, and in case it decides that to the extent of the interest thus acquired by an action is to be brought they are to be transthe public, submit to the control of such prop- ferred to the company, which issues a trust reerty by the public for the common good.

But ceipt in

therefore. Such agreement in these cases the control was exercised by the further provides that if the company elects 'to Legislature either directly or through muni-extend the time of payment it shall at once cipalities or agencies clothed by it with the notify the holders of certificates and shall be power. In the present case the legislative

bound to take an assignment of all certificates, authority is wanting. We must therefore hold which shall, within thirty days thereafter, be that said Ordinance No. 368 is inoperative and tendered to it and pay for the same in cash, and void as to said Pryor & Paulin, their heirs and that out of the moneys collected by the coniassigns, in so far as the same purports to estab- pany it shall pay semi-annually interest, at the lish the price for gas furnished by them to pri- rate of four per cent per annum, to the holders

of certificate coupons, and any excess of inter

est collected it shall retain as compensation for Surrogate Fitzgerald of New York city, in its services. The original bond and mortgage the Estate of Cheeseborough, has decided in contains the following covenant: 'No payment

or

return

vate consumers.

Of course,

or release of the principal of said debt or of give a comparatively small portion for each any part thereof, or of the mortgage security beneficiary. To tie up such shares in trust therefor, shall be valid as against any subse-simply on general principles is a great mistake, quent debt, unless the fact of the payment or which, unless there be some positive reason, release is indorsed on said bond, save that full should be advised against. An insignificant payment shall be sufficiently evidenced by the fixed annual income will not be as advantageous delivery of a satisfsction piece in proper form to a beneficiary as the absolute ownership of the to discharge the record of said mortgage. This principal, wherewith, for instance, to acquire covenant shall be binding on and inure to the the equity in a home of bis own. benefit of the parties hereto and their heirs,

there is the chance that the beneficiary may be successors, representatives and assigns; and improvident and lose the money ; but, if the any assignee of the whole or any part of said objects of a testator's bounty be fairly prudent debt, on taking such assignment, may rely upon persons, it would seem better in the long run to the indorsements on said bond and upon the take such risk, than to certainly debar them absence thereof.' This clause, while protecting from substantial benefit from their portions. a subsequent assignee, under the circumstances

Where, however, testator's are determined, stated, against the previous · release of the either with or without special reasons, to create mortgage debt or of the mortgage security, small trusts, the restriction of the field and the seems to recognize the right of the company to practical difficulty of investments should be release the debt or the security after making an brought to their minds, and it should be ascerssignment thereof, and thus limit the protec- tained whether they wish to widen the field by tion of the assignee to the unsecured obliga- special authority in the will. tion or liability of the company and its guiar The courts lean toward restricting a trustee antor.”

to legal investments, and toward holding him Substantially similar schemes have been responsible for loss if other investments are adopted by real estate companies in other cities made, whenever the language of a will admits to enable investors to speedily obtain slices of of doubt as to the scope of his power. In a mortgage where they have not sufficient funds King v. Talbot. supra, it was held that comto take the whole loaf. But it would seem mitting the investment to the “discretion ” of that, in any such form of investment, there the trustee gives no additional authority as to must be so much discretionary power of con the class of securities; that the discretion is trol retained in the holder of the mortgage, controlled by the rule and must be exercised and so little right of management and freedom within its limits. Words authorizing investof action in the different assignees of interests ment“in such manner, and upon such securitherein, that, under the surrogate's decision, this ties as to the trustee) shall seem advisable," do general field is not open to trustees.

not enlarge the usual power. Matter of KetelWe are not prepared to advocate statutory tas, 1 Connolly 468. The language, “in such extension of the classes of trust investments suitable manner as may be for the best interests sanctioned in New York. (See Smith v. Smith, of my estate to be determined by my said ex4 Johns. Ch. 281; King v. Talbot, 40 N. 1ecutors,” does not authorize an investment on 76; Mills v. Hoffman, 26 Hun, 594; Ormiston personal security. (Matter of Cant, 5 Dem. 269; v. Olcott, 84 N. Y. 339; Judd v. Warner, 2

see, also, Adair v. Brimmer, 74 N. Y. 539; Den. 104; Laws of 1889, Ch. 65.) Neverthe Matter of Petrie, 5 Dem. 352 ; Pray's Appeal, less, the restriction to first mortgage loans and 34 Pa. St. R. 100.) public securities makes it exceedingly difficult But when the language used is specific and for trustees in this city to obtain advantageous unambiguous, it would seem safe to act upon investments for comparatively small funds. its authority. In Matter of Wolfe (1 Connoly,

The average lawyer is constantly called upon 102), the will provided that the trustees might to draw wills of persons who have accumulated continue to hold the testator's estate in the a respectable competency, which, when divided form in which it was invested at his death, and among a considerable family of children, will they were “in view of the express language,"

exonerated from liability for losses incurred by cision, is somewhat peculiar. It is apparent reason of stock bought by testator selling for that under the laws of Illinois she is single, and less than its inventoried value. In Clark v. may again marry. Under the laws of South Ry. Co., 58 How. Pr. 21, the court said : Carolina and under the laws of New York she " When a deed of trust directs, in plain terms, is still Mrs. McCreery. This may at first seem in what particular securities funds coming into to be a most ultra case showing the unfortunate the hands of trustees shall be invested, and result of lack of uniformity in State laws, but how, until so invested, they shall be held, the many similar decisions may easily be found court cannot by its judgment, defeat the inten- which illustrate the necessity for some immeditions of the creator of the trust and the bene ate and radical action. ficiaries thereunder by directing other investments.” To the same effect is Burrill v. Shiel, 2 Barb. 457, where a testator directed an in- DECREE OF SURROGATE'S COURT ADvestment to be made in England, and the court

MITTING WILL TO PROBATE BINDING

ONLY AS TO PERSONALTY. declared it had no power to divert the investment from that country.

ACTION FOR PARTITION OF REAL ESTATE MAINIn order to render it safe for trustees to make TAINABLE BY HEIR IN WHICH QUESTION OF VAinvestments other than those expressly sanc

LIDITY OF WILL MAY BE LITIGATED De Novo. tioned by law, authority should be given by Supreme Court General Term, First Departmentioning other securities, or at least the gen- ment. October, 1895. Present: Hons. Charles H. eral nature of permissible securities.

Van Brunt, P.J.; David L. Follett and Alton B.

Parker, JJ. Speaking of uniformity in State laws a recent Michael Bowen, respondent, v. Michael Sweeney case decided by the Supreme Court of Alabama and Catharine Gallagher, appellants, impleaded demonstrates the absolute necessity for some

with others. such scheme, and that it should be done at the Appeal from an order denying a motion to set earliest possible moment. In the case of Mc- aside the verdict, from the interlocutory judgment

entered on said verdict and on a decision of the Creery v. Davis, it appeared that a citizen of

Special Term, and from the final judgment entered South Carolina had married in New York a

on the report of a referee to sell in an action of citizen of that State and immediately thereafter

partition. the parties continued to reside in South Caro

August 27, 1885, Mary T. Hatton died seized in lina, luntil the wife left the husband and went

fee simple of a piece of land situate at the northto live in Illinois. In that State the wife west corner of First avenue and Thirteenth street, obtained a divorce entirely in accordance with which is 43 feet and 3 inches wide on the avenue, the laws of Illinois, but without personal ser

and 80 feet long on the street. She left a last will, vice or the appearance of the husband, and on

executed April 17, 1880, by which she devised and a ground not recognized in either New York bequeathed all of her estate to Michael Sweeney

and Catharine Gallagher, to be divided equally beor South Carolina as a cause for divorce. In

tween them. The will was admitted to probate South Carolina in the case under discussion, it October 18, 1886, by the Surrogate's Court of the was subsequently held that the Illinois judg- city and county of New York (3 N. Y. St. Rep. ment was void and that article 4, section 1, of 213). August 20, 1887, the decree of the Surrothe United States Constitution providing that gate's Court was reversed by the General Term of full faith and credit shall be given in each State

the Supreme Court (10 N. Y. St. Rep. 19), which to the judicial proceedings of every other State, ordered the following issues to be tried before a and the act of Congress providing that records jury in the Court of Common Pleas:

First. Whether the decedent ever saw the paper and proceedings thereof, properly authenticated, shall have full faith and credit given them in propounded for probate as her last will and testa

ment until it was presented to her for execution. every court of the United States, as they have Second. Whether the paper propounded for proin said State from whence they came, does not bate, as the last will and testament of Mary Teresa prevent an inquiry into the jurisdiction of the matten, was read by her or anyone aloud in her court which rendered the judgment. The bearing previous to the signing thereof. position of Mrs. McCreery, owing to this de Tbird. Whether the decedent at the time of sign

ing the paper propounded for probate as her last 2. Was the said paper writing obtained from said will and testament had full knowledge of the con Mary Teresa Hatten by undue influence exercised tents of the said paper.

upon her by the defendants Michael Sweeney, CathUpon the trial of these issues all were answered erine Gallagher and Francis Gallagher, some or one in the affirmative by the jury. On the 16th of of them ? November, 1888, the proceedings upon the trial 3. Was the said paper writing obtained from said were returned to the Surrogate's Court, and on that Mary Teresa Hatten by a conspiracy entered into date a decree was entered confirming the probate by the defendants Michael Sweeney and Catherine of the will. The litigants in this action were

Gallagher and some other person or persons for the parties to the proceedings in the Surrogate's Court purpose of fraudulently procuring a will in favor of and appeared on the trial in the Court of Common

said Michael Sweeney and Catherine Gallagher, in Pleas. No appeal was taken from the final decree

pursuance of which conspiracy they procured the of November 16, 1888, of the Surrogate's Court. October 10, 1898, this action was begun to partition Teresa Hatten?

said paper writing to be signed by the said Mary said real estate, pursuant to § 1537 of the Code of

4. Was the said testatrix, Mary Teresa Hatten, at Civil Procedure, upon the theory that the plaintiff the time she executed said paper writing, of sound was an heir at law of Mary T. Hatton, and that her

mind ? apparent devise of the property to Michael Sweeney

5. Is or is not the said paper writing executed and Catherine Gallagher was void.

by the said Mary Teresa Hatten the last will of The contesting defendants, Michael Sweeney,

the said testatrix ? Catherine Gallagher and Francis Gallagher, her

The first question was answered in the affirmative husband, denied in their answers that the devise by the direction of the court, the second and third, was void, and set up as a bar to the action the final

in the affirmative, by the jury, and the fourth and decree of the Surrogate's Court admitting the will fifth, in the negative, by the jury. Upon the rento probate. The other defendants who answered

dition of the verdict a motion was made in behalf admitted the allegations in the complaint.

of Michael Sweeney and Catherine Gallagher to In November, 1889, the action was tried at Cir

set it aside, which was denied, and an order cuit, before a jury, and the following questions sul)

entered. Thereafter the trial was continued at mitted :

Special Term, by which the verdict was confirmed (1) Did Mary T. Hatten know that the paper she

and a decision rendered directing an interlocutory executed was a last will and testament?

judgment, which was entered July 13, 1893, ad(2) Was Mary T. Hatten procured to execute the judging that the property be sold. By the interpaper, purporting to be a will, by the conspiracy of locutory judgment it is adjudged that the plaintiff Michael Sweeney, Catherine Gallagher and others ? is entitled to one-fourth of the premises; Thomas

(3) Had Mary T. Hatten capacity to make a will? Bowen, defendant, Michael Bowen, Fanny Mc

The first two questions were answered in the af- | Queeny, one-twelfth each; Patrick Ford, Francis firmative and the third question in the negative by Ford, Michael Ford, Thomas Ford, one-sixteenth the jury. Thereafter the trial was concluded at each: Mary Ann Cane and Catharine Ward, oneSpecial Term, the verdict confirmed and a judg-eighth each. ment of sale ordered, in accordance with which a In June, 1894, a motion for a new trial was made judgment was entered September 22, 1890. Upon on the judgment roll and a case at General Term in an appeal to the General Term this judgment was behalf of Sweeney and Gallagher for a new trial. reversed, and a new trial granted, on the grounds The motion was dismissed for want of jurisdiction that the Circuit erroneously allowed the complaint (79 Hun, 319), and an order entered which was to be amended, and excluded competent evidence. affirmed by the Court of Appeals (143 N. Y. 349). (63 Hun, 224.)

February 7, 1895, the property was sold, pursuant In March, 1892, the plaintiff, pursuant to leave to the interlocutory judgment, for $51,000, and on gravted, served a second amended complaint, and filing the report of sale a final judgment was, the issues joined thereon were tried at Circuit in March 4, 1895, entered. June, 1893, and the following questions submitted William H. Arnoux for appellants; Flamen B. to the jury :

Candler for plaintiff, respondent; S. B. Chittenden 1. At or immediately after the time when Mary and William J. Kelly for certain defendants, reTeresa Hatten signed the said paper writing, dated spondents. the 17th day of April, 1880, purporting to be her last will and testament, and mentioned in the com FOLLETT, J.- As all of the litigants assume that plaint herein, did she publish and declare the same Mary T. Hatten died seized in fee simple of the to be her last will and testament?

whole of the premises, we shall rest our judgment

on that assu

sumption, without considering its valid a court of equity to be tried by a jury in a court of ity.

law to determine the validity of a will. (Rogers v. All of the litigants in this action were parties to Rogers, 3 Wend. 505.) Vanderheyden v. Reid (1 the proceedings in the Surrogate's Court to probate lopk. 408) was an appeal from a surrogate's decree the wili, to the appeal to the General Term and to admitting it will to probate, which related to real the trial before the Common Pleas. The first ques and personal property, and turned upon the question presented is whether the decree of the Surro- tion of the sanity of the testator. Tive question gate's Court, affirming the original probate, entered arose as to whether this issue could be sent by the on the verdict rendered in the Court of Common Court of Chancery to a court of law to be deterPleas, is a lar to this action. At common law the

mined by a jury. In discussing this question the probate of a will in an ecclesiastical court was not learned chancellor said: “Thus, a will of personal conclusive against the heir, and a judgment in an and real estate may be there adjudged both valid action at law, at the suit of the heir, that the testa- and void by different tribunals. This result of an tor was incapable of making a will, was not conclu- artificial division of jurisdictions can never be sive against the executor as to the personalty, who, proper where it may be avoided. That a will notwithstanding the judgment at law respecting the should be adjudged valid, because the testator who realty, might, if he could, establish the will as to inade it was of sound mind, and that the same will the personalty in an ecclesiastical court. (Montgom- should be a ljudged void, because the same testator ery v. Clark, 2 Atk., 378; Hume v. Burton, 1 Ridg. was insane, is a result which should never take P. C., 277; Bogardus v. Clarke, 1 Edw. Ch., 266; place under one system of laws. But still more 4 Paige, 623.) Lord Hardwicke said, in Montgom- singular would be the anomaly, if the same court ery's case: “I bave often thought it a very great were, in the case of a contested will of real and perabsurdity that a will which consists both of real sonal estate, bound to send the disputed question and personal estate, notwithstanding it has been set to i jury, in respect the land, and also bound to aside at law for the insanity of the testator, shall decide the same disputed question, without a jury, still be litigated upon paper depositious only in the in reference to another species of property. ecclesiastical court, because they have a jurisdiction “Such an incongruity is avoided by taking one on account of the personal estate disposed of hy it." course of investigation, whether the bill is of real By chapters 77, 20 and 21 Victoria (1857), the rule or of personal estate, or of both comprised in one of the common law has been changed in England, instrument. This court now having jurisdiction and a decree of a probate court admitting it will to of wills of personal goods, and also of wills of land, probate, which relates to realty and personalty; is it may most fitly apply the same method of investibinding on the heir in case he had notice. (Sec. 62. gating facts to both cases. chap. 77, 97 Pick. Stat. at Large, 420-437.) The rule

This language seems to indicate that the chanof the common law arose from its tenderness to

cellor was of the opinion that a decree entered upon heirs and from the idea that none should be de

the verdict would be conclusive upon the heirs. prived of land, except by a judgment of a court of This judgment was, however, reversed (5 Cow., law after trial of the issues of fact before a jury. 719) ; but not upon the point discussed in the foreUnder the first Constitution of this State, wills re

going quotation. lating to realty might be proved in the Court of

In Brick's Estate (15 Abb. Pr., 12) and in 1 E. Commom Pleas (1 R. L., 1801, 179), and after 1813 in

1. Smith's Rep. XVII, will be found a learned and the Supreme Court or in the Court of Common Pleas instructive history of the Probate Courts of this (1 R. L.., 1813, 364), and surrogates had the power State, prior to the Revised Statutes, by Charles P. to admit to probate wills relating to personalty and Daly, the accomplished chief judge of the Court to real estate so far as it was necessary to authorize

of Common Pleas. the issuing of letters testamentary. (1 R. L., 1801,

Under the Revised Statutes wills of real and 317; id., 1813, 444.) Persons aggrieved by any

de

personal property, or both, were provable before cree of a surrogate were authorized to appeal to the

the surrogate of the proper county (2 R. S., 57, Court of Probates (1 R. L., 1801, 325; id., 1813,

sec. r ; id., 60, sec. 23). Any person deeming 454). Under the second Constitution the Court of himself agyrieved by the decree of a surrogate was Probates was abolished, and persons aggrieved by authorized to appeal to the circuit judge of the the decree of a surrogate were authorized to appeal Circuit (2 R. S., 66, sec. 55), who, in a case of a reto the chancellor (chap. TO), L. 1823). But the Court versal upon a question of fact was required to of Chancery could not by its decree bind the heir formulate issues of fact and order them tried before in respect to the validity of a will unless the ques a jury ( sec. 57), which were to be tried in the same tion of fact had been determined in a court of law manner as issues awarded by the Court of Chanon the issue «lerisuvit vel non-- an issue directed by i cery, and new trials could be granted by the

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