and 85 New York State Reporter. not furnished to these carpenters with which to prosecute their work. All that appears is that they had in actual use the appliances described. There was no attempt to prove whether or not others were provided for the use of this gang. It would be sheer assumption for a jury, in the face of our common knowledge with reference to such matters, to say that none others had been provided. "The motion should therefore be denied, with $10 costs." Argued before HARDIN, P. J., and FOLLETT, ADAMS, GREEN, and WARD, JJ. W. H. Sullivan, for appellant. Albert H. Harris, for respondent. PER CURIAM. Judgment and order affirmed, with costs, on the opinion of YEOMAN, J., delivered at the circuit. (28 App. Div. 308.) STARBUCK v. FARMERS' LOAN & TRUST CO. et al. (Supreme Court, Appellate Division, First Department. April 15, 1898.) 1. EQUITY-DEMURRER-ADMISSIONS. The allegation of a complaint in equity, that plaintiff has no adequate remedy at law, is a conclusion of law, and is not therefore admitted by a demurrer. 2. SAME-CLAIMS OF EXECUTOR-ADEQUATE REMEDY AT LAW. Code Civ. Proc. § 2731, providing that the claim of an executor against the estate may be proved before the surrogate upon the judicial settlement of his accounts, is still in force, and provides an adequate remedy at law for the settlement of such claims without the intervention of a court of equity. Appeal from special term, New York county. Action by Matilda E. Starbuck against the Farmers' Loan & Trust Company and another. From an interlocutory judgment sustaining a demurrer to an amended complaint, plaintiff appeals. Affirmed. Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, O'BRIEN, and INGRAHAM, JJ. Artemas H. Holmes, for appellant. MCLAUGHLIN, J. The plaintiff instituted this action against her. self, as executrix, and the Farmers' Loan & Trust Company, as executor, of the last will and testament of William A. Starbuck, deceased, to recover a sum of money alleged to be due her from the estate which she and the trust company represent. The trust company demurred to the complaint, upon the grounds (1) that it did not state facts sufficient to constitute a cause of action; (2) that the plaintiff did not have the legal capacity to maintain a suit against herself as executrix and her co-executor to recover a personal claim. The complaint charged, among other things, that the plaintiff had no adequate remedy at law to establish her claim, and it is urged that this is admitted by the demurrer. A demurrer admits every fact properly pleaded, but does not admit a conclusion of law. Institute v. Bitter, 87 N. Y. 250: Bogardus v. Insurance Co., 101 N. Y. 328, 4 N. E. 522; U. S. v. Ames, 99 U. S. 35. The allegation that the plaintiff has no adequate remedy at law is nothing more or less than the conclusion of the pleader, and But, if it was, it might therefore is not admitted by the demurrer. then be seriously questioned whether a court of equity in this state has or would take jurisdiction of a suit of this character. Kyle v. Kyle, 67 N. Y. 400; Snyder v. Snyder, 96 N. Y. 88; Hogan v. Kavanaugh, 138 N. Y. 417, 34 N. E. 292. The jurisdiction of the supreme court of this state in equity, under the provisions of the constitution. includes the jurisdiction which was possessed and exercised by the supreme court of the colony of New York at any time, and by the court of chancery in England on the 4th day of July, 1776, with the excep tions, additions, and limitations created and imposed by the constitution. On the 4th day of July, 1776, the court of chancery in England had no jurisdiction over suits brought by an executor against the estate which he represented, for the reason that such a thing as an executor suing his estate, or claiming against the estate he represented, was unknown. The only instances in which the court of chancery of England at that time exercised jurisdiction in behalf of an executor suing were suits brought by an executor against his co-executor for something connected with or growing out of the administration of the estate, something which inhered in the plaintiff by reason of his official capacity, and not based upon a personal demand belonging to the individual who happened to be an executor. It was something in favor of the estate, and not antagonistic to it. At common law, and in the state of New York, until the Revised Statutes were passed, in 1828, an executor had the right to retain out of the assets of the estate a debt due to him personally. This right of retention, however, was taken away by the Revised Statutes, and an executor could not thereafter apply funds belonging to the estate to the payment of a personal claim until allowed to do so by the surrogate. But it is not necessary at this time to determine whether the supreme court has jurisdiction to entertain a suit of this character, for the reason that the plaintiff has an adequate remedy at law. By the Revised Statutes above referred to, it was provided that an executor, before his individual claim could be enforced, must have it presented to and approved by the surrogate. The right of an executor to establish a personal claim against the estate he represents, before the surrogate, still exists, under section 2731 of the Code of Civil Procedure. This section provides that the claim of an executor against an estate may be proved before the surrogate upon the judicial settlement of the accounts of an executor, and meanwhile the statute of limitations against such claim is suspended. Therefore there can be no question with reference to a court of equity having jurisdiction because of there being an insufficient or inadequate remedy at law, for the reason that a remedy is thus afforded by the statute which is just as much a legal remedy as though it were one afforded by a common-law action. It is a remedy exclusive of. and which does not require for its enforcement a resort to, a court of equity. The plaintiff, having the right to present her claim to, and have it passed upon by, the surrogate, under the section of the Code. of Civil Procedure above referred to, is confined to the remedy thus afforded, and there is no occasion for the interference of a court of equity. The judgment should be affirmed, with costs. All concur. (28 App. Div. 319.) and 85 New York State Reporter. FLANAGAN v. STAPLES et al. (Supreme Court, Appellate Division, First Department. April 15, 1898.) WILLS-DEVISE-NATURE OF ESTATE. * A testator's will provided that: "Upon the death of my wife, I give, bequeath, and devise all my said estate and property unto my children, in equal shares or portions, share and share alike, absolutely and forever. In the event of the death of any of my children, leaving issue, such issue shall take the share or portion ** which the parent would have taken if living." Held, that each child of the testator took a vested remainder, subject to being devested, in case of his death before the decease of the widow, in favor of his surviving issue. Appeal from special term. Action by William C. Flanagan against Deborah Staples and others to construe a will. From the decree, defendants appeal. Affirmed. Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, O'BRIEN, and INGRAHAM, JJ. Charles A. Runk, for appellants. MCLAUGHLIN, J. Joseph Staples died in 1888, leaving, him surviving, his widow, Deborah, and four children,-two sons, Joseph and Julius T., and two daughters, Josephine A. Elser and Emma M. Flanagan. He left a will and a codicil thereto, which shortly after his death were admitted to probate, and letters testamentary thereon issued to the plaintiff, one of the executors therein named. The subject-matter of this controversy relates to the construction to be given to a portion of the fourth clause, and which was not changed or modified by the codicil. So much of this clause of the will as is material to the question presented reads as follows: "Upon the death of my said wife, I give, bequeath, and devise all my said estate and property unto my children, in equal shares or portions, share and share alike, absolutely and forever. In the event of the death of any of my children, leaving issue him or her surviving, such issue shall take the share or portion of my said estate and property which the parent would have taken if living." The son Joseph died in 1892, leaving, him surviving, four infant children. He also left a will, in and by which he gave to his sister Mrs. Elser and to his brother, Julius, the share or portion of his father's estate which he was entitled to take and receive under his father's will. The widow, Deborah, died in 1896. The sole question presented for our determination is whether the interest which Joseph would have taken in his father's estate, had he been living at the time of Deborah's death, now belongs to the four infant children under the will of their grandfather, or whether that interest passed under the will of the son Joseph, and now belongs to his brother, Julius, and his sister Mrs. Elser. The answer to this question depends entirely upon whether this interest so far vested in Joseph that he could effectually dispose of it by will, and this must be ascertained, if it can be, by what the testator intended in that respect. Turning then to the will, it will be found that the intent of the testator is perfectly clear on that subject, and expressed in such a way that it cannot be misunderstood. The testator desired that his widow, Deborah, should have the use of his property during her life, and at her death whatever remained should be equally divided among his four children, and if any of them should, prior to that time, die, leaving issue, such issue was to be substituted in the place of the parent. The words selected to express this desire are: "Upon the death of my said wife I give property unto my children, in equal shares. death of any of my children, leaving issue, share or portion * * all my said estate and In the event of the such issue shall take the which the parent would have taken if living." The son Joseph immediately upon the death of his father took a vested remainder in his father's estate, the enjoyment of which, however, was postponed until the death of the life tenant, and depended upon his surviving her; in other words, he took an estate which immediately upon the death of the testator vested, but which, by express provisions of the will, was subject to be devested by the happening of a specified contingency, which was his death before the death of the life tenant. The contingency thus provided for occurred. The son Joseph died before the widow, Deborah. He left issue, him surviv ing; and such issue, immediately upon the death of the widow, Deborah, was substituted in, and took the place of, Joseph, under the will of the testator. Camp v. Cronkright, 59 Hun, 488, 13 N. Y. Supp. 307. The trial court therefore was right in holding that the interest which he would have taken in his father's estate, had he survived his mother, Deborah, is now lodged in, and belongs to, his four infant children. The judgment should be affirmed, with costs. VAN BRUNT, P. J., and INGRAHAM and O'BRIEN, JJ., concur. PATTERSON, J. I concur in the conclusion that this judgment should be affirmed. The appeal involves the interpretation of the fourth clause, as amended by a codicil, of the will of Joseph Staples, Sr.; and the point in dispute is whether his son Joseph Staples, Jr., took such an interest in a share of the residuary estate passing under the father's will as enabled him to dispose of that share absolutely by his own will and testament. The general scheme of the father's will, omitting reference to gifts of specific legacies, is a trust of the resid uary estate in executors, to pay income to the testator's widow during her life, with a power to resort to the principal, in case of need, for her support, and upon her death the whole residue to go to the testator's children, in equal shares, "absolutely and forever." The provision is then made, "In the event of the death of any of my children, leaving issue him or her surviving, such issue shall take the share or portion of my said estate and property which the parent would have taken if living." The codicil will be considered hereafter. It is quite apparent that under the terms of this will the children of the testator took vested remainders. They were all living when he died, and, upon the determination of the particular estate limited on the life of the widow, would have been entitled to possession. There was nothing and 85 New York State Reporter. contingent in their right. They had the present capacity to take; for, when the will became operative, neither the persons upon whom, nor the event upon which, the remainders were to fall into possession, was left uncertain. The interposition of a trust term did not affect the vesting in interest. In re Tompkins' Estate (Verplank v. Tompkins, N. Y. App. Jan. 11, 1898) 49 N. E. 135. But, although a remainder may be vested in interest, it may also be devested by the happening of some event contemplated and provided for by the testator, and a substituted gift of the remainder take effect in its place. The ordinary illustration of such a case is where the remainder is given to one in fee, but, in the event of his death without issue, then over to a different person. Here the gift is of a share to the son, subject to passing over to that son's issue in the event of such son dying. When? During the lifetime of his father, or during the continuance of the particular estate? If the former, then the remainder vested absolutely and indefeasibly, and passed under the will of the son. the latter, the children of the son took, by substitution, and as purchasers, under the will of their grandfather. In the recent case of Becker v. Becker, 22 App. Div. 234, 47 N. Y. Supp. 866, Mr. Justice Herrick has collated and commented upon the leading decisions of the court of appeals relating to limitations, by will, of estates, upon a death either before or after that of a testator, and it is unnecessary to go over that subject again. The determinant consideration is, what was the intention of the testator? In this case the learned justice at special term held that the words, "the death of any of my children," as used by the testator, referred to death during the lifetime of the widow, and that interpretation was authorized. The testator fixed a time or period to which the death of any of his children was referable. The words, as used, must be read in connection with the codicil, as well as with the original fourth clause. In that codicil there is a specific legacy given to a daughter, payable, after the death of the widow, out of the estate then in the hands of the trustees; and it is provided: All "Upon the death of my wife, I give and bequeath [the specific legacy]. the rest, residue, and remainder of my estate and property I give, bequeath, and devise unto all my children [including the daughter], to be divided share and share alike," etc. And in all other respects his will, including the substituted gifts, is ratified and confirmed. Reading the fourth clause as thus modified, and still retaining the provision as to his children dying, it appears that he intended to refer to the death of his children during his wife's life, and not his own. The direction to divide mentioned in the codicil did not postpone the vesting in interest. Manice v. Manice, 43 N. Y. 303. But the remainder in Joseph Staples, Jr., was devested by his death during the lifetime of his mother, as in Camp v. Cronkright, 59 Hun, 488, 13 N. Y. Supp. 307. I therefore concur in the affirmance of the judgment. |