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it will not be terminated or extinguished by the union of the interests of the life tenant and the reaminder-men in one person.

Such is the clear doctrine of the cases of Greer v. Chester, 62 Hun, 329, 17 N. Y. Supp. 238, affirmed in court of appeals, 131 N. Y. 629, 30 N. E. 863, and Asche v. Asche, 113 N. Y. 232, 21 N. E. 70; and both the rule and the reason of it are well stated in the opinion of Adlington, in Re Lewis' Estate, 3 Misc. Rep. 164, 23 N. Y. Supp. 287. In the first of the cases cited, it resulted, from the declared invalidity of certain provisions of the will, that the beneficial interest in a trust for life, and the estate in remainder in the same fund, became at once united in the same person. The court at general term in the third department say:

"There is nothing inconsistent in the fact that the trustee should have an estate in trust for the life of the beneficiary, and that the beneficiary should have the remainder in fee. * He can dispose of the remainder in the half of the estate in which he has a beneficial interest, subject to the trust. But, notwithstanding this, the object of the testatrix, (as we may suppose,) viz. to secure the income to the grandson for life against the risks of business or improvidence, should be carried out."

And in Asche v. Asche, the widow, as in this case, was the beneficiary of the trust for her life, and the remainder-men were her own two children; and it was argued that, upon the death of both children, the widow, as their heir, and at the same time the sole beneficiary of the trust, would become entitled to the immediate possession and control of the trust fund. But the court say:

"We do not think so. The object of the creation of the trust estate would not then have been accomplished. The intention of the testator to put the corpus of the fund beyond the hazard of impairment and waste during the life of his wife cannot be defeated or affected by the acquisition by her of the estates in remainder created by the will."

This statement discloses an apparently sufficient reason for the rule previously stated, and it is applicable, in terms, to the case before us.

The question propounded by this submission must be an. swered in the affirmative, and judgment accordingly directed in favor of the defendant. So ordered, with costs to the defendant payable out of the fund.

All concur.

(15 Hun, 204.)


(Supreme Court, General Term, Fifth Department. January 18, 1894.) 1. WITNESS-CORROBORATION.

A witness for plaintiff testified as to the execution of the contract sued on, and stated that he drew it after consulting plaintiff's attorney, to whom he showed the contract after it was executed. Held, that the failure of the attorney to testify in corroboration of such witness was no ground for discrediting his testimony, as it did not appear that the attorney could testify to the execution of the contract, and also because

it is improper for an attorney to testify in favor of his client. 2. TRIAL-STRIKING OUT TESTIMONY.

Evidence offered in behalf of plaintiff, which is stricken out on plaintiff's motion, may afterwards be reinstated at plaintiff's instance.

Appeal from judgment on report of referee.

Action by Jennette E. Gardner against Charles B. Benedict, as executor. From a judgment entered in Wyoming county, defendant appeals. Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

Bowen & Washburn, for appellant.
M. E. & E. M. Bartlett, for respondent.

DWIGHT, P.J. The action was on an alleged antenuptial agree ment of the defendant's testator, Henry W. Gardner, with the plaintiff, who is the widow of the deceased. The parties were married in May, 1882, and lived together until the death of the husband, in December, 1891. At the time of their marriage the deceased was a widower, of the age of 73 years, and the plaintiff, of the age of 62 years, was the widow of one Patrick R. Gardner, to whom she was married at the age of 17, and who died in 1870. The complaint alleged that Patrick Gardner was the owner at the time of his death of a farm of 140 acres and "a large amount of personal property;" that by his last will he gave the use of all his property, real and personal, to his widow, the plaintiff, during her life or widowhood, and provided that upon her death or remarriage the whole of the property should go to his children; that such provision was made and accepted by the widow in lieu of dower, and that at the date of the contract in question she was enjoying the possession, rents, profits, and income of all the property above mentioned. It is further alleged that when, in March, 1882, the defendant's testator proposed marriage to the plaintiff, she informed him of the provisions of her late husband's will, and of her acceptance thereof in lieu of dower, and spoke of the consequences to her, in a pecuniary point of view, in case she remarried; and that the deceased thereupon proposed to give her the sum of $3,000 if she would marry him, and to secure that sum to her in a manner satisfactory to her; and that it was agreed between them that the matter of securing the payment of the $3,000 should be arranged by the deceased with the son of the plaintiff, Charles J. Gardner, acting for her; and that on the 9th day of May, 1882, the deceased duly executed, acknowledged, and delivered to the plaintiff an instrument in writing, under his hand and seal, whereby, in contemplation of marriage with the plaintiff, he promised and agreed that, in the event of such marriage, his personal representative should pay to her, or to her personal representatives, the sum of $3,000, 90 days after his death, which she accepted, and in consideration thereof was married to him on the next day, and continued to live with him as his wife until he died.

The only issue made by the answer of the defendant which is discussed by counsel for the defendant on this appeal is the simple issue of fact which is joined by the defendant's denial, on information and belief, that the promise was ever made, or that the instrument in writing was ever executed by the deceased. A careful examination of the evidence satisfies us that the finding of the learned and

experienced referee upon that issue in favor of the plaintiff cannot be disturbed. The case was completely established by the testimony of her son, Charles J. Gardner, if credit is to be given to him; and, as the case stands on the record, we should have been greatly surprised if credit had been denied him. The witness, as he is presented by the record, is altogether worthy of credit. The testimony he gives is altogether credible in itself, and it is not contradicted in any particular. It is sought to be discredited only by evi . dence of declarations of the plaintiff, soon after her husband's death, that she did not know of any claims against his estate, and that she had none, and by the fact that a person who, it is assumed, might have corroborated the testimony in question, was not called to do so. It is unnecessary to dwell upon the alleged declarations of the plaintiff. The testimony on that subject is given by the defendant and a grandson of his testator. The courts are constantly mindful of the liability of such testimony to be mistaken when the witness is honest, and of the facility with which it may be fabricated if he is otherwise, and it is apparent that the declarations may even have been made, and yet not discredit the testimony of Charles J. Gardner in any degree. It was for the referee to say how far they did so, if at all, in this case.

The same may, and indeed must, be said in respect to the other alleged ground for discrediting the testimony of the principal witness, but so much stress is laid upon it in the argument of counsel that it is proper to give it a moment's attention at this point. Charles Gardner testified that he prepared the written contract for the signature of the deceased, mainly at the dictation of Judge Byron Healey, then, as for many years, county judge and surrogate of Wyoming county. Mr. Gardner had lately ended a second term as county clerk of the county, and at that time had an office in the courthouse, across the hall from Judge Healey's. He testifies that, having it in his mind to prepare such a contract, he stepped into Judge Healey's office, to ask his advice how to do it, and that the latter substantially dictated for him the contract which he wrote. He also testifies that within a few minutes after the contract was executed he took it into Judge Healey's office, and showed it to him. Judge Healey appeared as counsel for the plaintiff on the trial of this action, and himself conducted the examination of the witness Gardner in which these facts were elicited, but he did not, himself, take the stand to testify in the case. It is strongly urged by counsel for the defendant that this fact should have discredited the testimony of Mr. Gardner. The conclusion is by no means a necessary one. In the first place, the testimony of the proposed witness would probably not have been admissible except as to the single fact that the contract was exhibited to him after it was executed, and hardly then unless he was prepared to verify the signature of the deceased. All that preceded the execution of the instrument was res inter alios, and the fact that Charles Gardner wrote it in Judge Healey's office, and at his dictation, afforded no presumption that it was ever executed by the deceased; and the testimony of Gardner does not go far enough to show that Judge Healey had the oppor

tunity to examine the signature, nor that he would have been able to verify it if he had done so. But, besides all this, Judge Healey was counsel for the plaintiff on the trial, and, being such, his declining to be at the same time a witness for his client was only consistent with a rule of professional conduct, which could not have been violated with propriety; so that it was, at the outset, a question of choice with the plaintiff whether she could best dispense with his services as her counsel or refrain from calling him as a witness, if, indeed, he could give any testimony which would be admissible in the case.

But, after all, the inference, if any; to be drawn from the omission to call Judge Healey as a witness, was a question for the referee, and the court will certainly not interfere with his conclusion in that respect.

Only one other question was presented by the argument of counsel for the defendant which seems to call for consideration here. That question arises upon rulings of the referee in striking out, and afterwards reinstating, (both on motion of the plaintiff,) certain evidence in the case which had been introduced by her and objected to by the defendant. The evidence related to the provisions of the will of Patrick Gardner, the former husband of the plaintiff, and to the amount and value of the property the use and income of which the plaintiff was to enjoy during her widowhood. We think it an answer to all the criticism of counsel on the course of the trial in this respect that the evidence was entirely admissible, that it was an excess of caution on the part of the plaintiff to move to strike it out, and that there was no error in its readmission. The facts involved were, as we have seen, substantially alleged in the complaint. They were treated as issuable facts by the defendant by admitting them in part and denying them in part by his answer. They were recited in the written instrument, itself, on which the action was brought, as inducement and consideration thereof, and as such they are inseparable from the plaintiff's case. We find no exception in the record which points to error either on the trial or in the findings or refusals to find by the referee. The judgment should therefore be affirmed.

Judgment appealed from affirmed, with costs. All concur.

(75 Ilun, 30; 31 Abb. N. C. 81.)

TALLMAN v. BERNHARD. (Supreme Court, General Term, First Department. January 12, 1894.) Costs--SUSTAINING DEMURRER.

Where a demurrer is sustained, the demurrant is entitled to costs, unless an issue of law and an issue of fact are joined, and the issue of fact remains undisposed of, in which case, under Code Civil Proc. $ 3232, the costs are in the discretion of the court.

Appeal from special term, New York county.

Action by Cornelius H. Tallman, as executor, against Adolph Bernhard. From so much of an interlocutory judgment as refused to allow costs on sustaining a demurrer to the complaint, defendant appeals. Reversed.

Argued before VAN BRUNT, P. J., and O'BRIEN and PARKER, JJ.

Carlos C. Alden, for appellant.
James M. Smith, for respondent.

PER CURIAM. The court, in sustaining the demurrer, erred in refusing to grant the demurrant costs. There is only one exception to the rule that costs are absolute where a demurrer to a complaint in a common-law action is sustained, and that is furnished by section 3232 of the Code, which provides that where an issue of law and an issue of fact are joined, and the issue of fact remains undisposed of, it is in the discretion of the court to deny costs to either party, or award costs, either absolutely, or to abide the event. So much of the order and interlocutory judgment as refuses to allow costs should be reversed, with $10 costs and printing disbursements.

(75 Hun, 185.)

In re SCHEIDLER'S ESTATE. (Supreme Court, General Term, First Department. January 12, 1894.) EXECUTORS AND ADMINISTRATORS—COMPELLING PAYMENT OF LEGACY.

The surrogate may order an administrator to pay a legacy, though an action by the administrator is pending in the supreme court for a construction of the will, where it appears that the administrator had there tofore been compelled to account, as he could have obtained a construction of the will on the accounting. Appeal from surrogate's court, New York county.

Proceeding to compel the administrator of the estate of Theodore Scheidler, deceased, to pay a legacy. From an order directing payment of the legacy, the administrator appeals. Affirmed.

Argued before VAN BRUNT, P. J., and O'BRIEN and PARKER, JJ.

John Branden, for appellant.
Henry Schmitt, for respondent.

PER CURIAM. It appears that this will was admitted to probate on November 30, 1886, and that the administrator failed to account until compelled to do so by order of the surrogate, dated November 11, 1892. Upon such accounting, the administrator, if he had desired a construction of the will, could have had the proper parties brought in, and the will construed, and there was no necessity for the filing of a bill in the supreme court for that purpose, the evident object of which, in view of his delay and failure to serve the necessary parties, was to secure additional delay. Under these circumstances, we think the surrogate was entirely justified in directing payment of the legacy, notwithstanding the pendency of the action for the construction of the will; particularly as it appeared that the plaintiff had not taken any steps even to serve most of the defendants in the action. The order appealed from should be affirmed, with costs and disbursements.

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