all the circumstances of the case, opens it to suspicion, and one which justified the trial court in its conclusion that she was a party to the attempted fraud upon this plaintiff, and therefore liable as a trustee to the amount of the plaintiff's claim. It is not necessary to show that the defendant Maria D. Seymour had actual notice of the plaintiff's claim. She had sufficient knowledge of the relations of the parties, the transactions which had taken place, and the obligations which existed, to put her upon inquiry. It was not enough for her to rely upon the incidental remarks of the plaintiff in relation to the socalled "gift." She was bound, in good faith, to have made inquiry as to whether the plaintiff had been satisfied upon the previous mortgage; and a failure to do so, under the circumstances of this case, is an evidence of bad faith, in harmony with the entire transaction, which justifies the conclusion that fraud was intended, and that both of the defendants were parties to that fraud.

In the case of Jones v. Smith, 1 Hare, 43, Vice Chancellor Wigram examined the cases in reference to constructive notice very largely, and upon that occasion said:

“It is, indeed, scarcely possible to declare a priori what shall be deemed constructive notice, because, unquestionably, that which would not affect one man may be abundantly sufficient to affect another. But I believe I may, with sufficient accuracy for my present purpose, and without danger, assert that the cases in which constructive notice has been established resolve themselves into two classes: First, cases in which the party charged has had actual notice that the property in dispute was, in fact, charged, incumbered, or in some way affected, and the court has thereupon bound him with constructive notice of facts and instruments to a knowledge of which he would have been led by an inquiry after the charge, incumbrance, or other circumstance affecting the property of which he had actual notice; and, secondly, cases in which the court has been satisfied, from the evidence before it, that the party charged had designedly abstained from inquiry for the very purpose of avoiding notice."

This view was taken by Chancellor Kent in the case of Sterry v. Arden, 1 Johns. Ch. 260, 267, where he says:

"He declares in his answer that he had no knowledge or notice of the conveyance of 1805 when he purchased, and there is not proof to contradict this answer. But I hold him chargeable with constructive notice or notice in law, because he had information sufficient to put him upon inquiry."

It seems to us clear that the defendants have undertaken to force the plaintiff in this action to contribute to them a larger share of her property than she intended, and that the transaction is so tainted with fraud that this court cannot do less than to affirm the judgment of the court below; and it is so ordered. All concur.

422 M'se. Rep. 653.)

HENRIQUES et al. v. MIRIAM OSBORN MEMORIAL HOME et al.

SAME v. YALE UNIVERSITY et al.

(Supreme Court. Special Terin, New York County. February, 1898.)

1 DESCENT AND DISTRIBUTION-PRESUMPTIONS AS TO HEIRSHIP.

Parties claiming to be the sisters and only heirs of a deceased person, and asking to have decedent's will declared void and her land partitioned among them, cannot succeed where it appears that decedent left an only son surviving her, who has since died, and there is nothing to show that the lines

and 85 New York State Reporter.

of descent which would have the right to claim under him in preference to plaintiffs were exhausted, there being no presumption to that effect. 2. RES JUDICATA-JUDGMENT BY DEFAULT.

The fact that a judgment goes by default does not detract from its conelusiveness as a bar.

3. SAME-JUDGMENT ESTABLISHING WILL.

Under Code Civ. Proc. § 2653a, which provides a proceeding for the establishment of the validity of wills, a judgment rendered in pursuance thereof is conclusive on all parties to the action.

4. STATUTES-IMPLIED REPEAL.

The conclusiveness of a judgment establishing the validity of a will, rendered in proceedings taken for that purpose under Code Civ. Proc. § 2653a, cannot be avoided by an action under section 1537, permitting persons claiming as heirs to maintain partition proceedings notwithstanding an ap parent devise, on proof of the invalidity of such devise, since the latter section, if in conflict with the former, was repealed by it.

5. PLEADING ALLEGATION OF CONCLUSION.

Where the probate of a will, and the fact that plaintiffs were parties to proceedings to determine its validity, are admitted, an allegation that the judgment establishing the will has no valid force and effect on the rights of plaintiffs is a mere legal conclusion and unavailing.

6. SAME AMENDMENT.

Leave to amend a pleading should not be granted where it is apparent that the pleader cannot truthfully do so.

7. SAME-JUDGMENT ON DEMURRER.

On sustaining a demurrer to a replication to a plea which goes to the whole cause of action, a final judgment for defendant is proper.

Actions by Leila O. Henriques and others against the Miriam Osborn Memorial Home, Impleaded, and others, and against the Yale University, Impleaded, and others, for the partition of real estate. On demurrer to plaintiffs' reply in each case. Judgment for defendants.

McCurdy & Yard (Delos McCurdy, of counsel), for plaintiffs. Shearman & Sterling (Thomas G. Shearman, of counsel), for defendant Miriam Osborn Memorial Home Ass'n.

Robert L. Redfield (John E. Parsons, of counsel), for Yale University.

FREEDMAN, J. The questions involved in both cases are substantially the same. In each case the plaintiffs sue for the partition of the real estate of Mrs. Miriam A. Osborn, deceased, who died in March, 1891. She left a will and codicils the validity of which is attacked by the plaintiffs for various reasons. The plaintiffs describe themselves as the only surviving sisters of Mrs. Osborn, and, together with the defendant Henriette Olive Trowbridge, the only heirs at law of Mrs. Osborn. The complaint, however, further shows that, at the time of her death, Mrs. Osborn had a living son, Howell Osborn, who died in 1895. The complaint then demands judgment that Mrs. Osborn's will be declared void, and that the real estate described be partitioned between the two plaintiff's and the defendant Trowbridge. In each case the defendants, after denying some parts of the complaint, plead by way of af firmative defense that Miriam A. Osborn left her surviving a son, Howell Osborn, who was her only child and sole heir at law; that he died in February, 1895, leaving a last will and testament, which

is fully set forth, in which he made no provision for the plaintiffs; and that this will was not only duly admitted to probate as a will of real and personal property, but was further declared to be the valid will and testament of Howell Osborn, deceased, by a judg ment of this court entered on June 11, 1897, in an action to which the plaintiffs, as well as the defendant Henriette Olive Trowbridge, were parties, and in which they appeared. To this affirmative defense, containing allegations of new matter and avoidance, the plaintiffs were, by order of the court, required to reply, and did so. This reply denies that the will set forth in the answer is the will and testament of Howell Osborn, deceased; that it is valid, or was executed by him; and avers that it was procured by fraud, duress, and undue and improper influence. The reply, however, expressly admits that the paper set forth in the answer as the will of Howell Osborn was duly admitted to probate as a will of real and personal property; that an action was brought in this court "for the alleged purpose of establishing the validity of said alleged will of said Howell Osborn, deceased, and that these plaintiffs were made parties thereto and appeared therein; that on default a verdict was directed by the court in said action, reciting that the alleged will of the said Howell Osborn was valid, and that thereafter a judgment was rendered in accordance therewith; but these plaintiffs deny that said judgment has any validity, force, or effect in this action, or upon the rights of these plaintiffs." To this reply the answering defendants demurred as insufficient.

I fail to perceive how this reply can be sustained. It concedes the fact that Howell Osborn was the sole heir at law of Mrs. Osborn because it admits that he was her child and her only child. This being so, the plaintiffs are not the heirs at law of Mrs. Osborn. To maintain the action on the theory of the invalidity of Mrs. Osborn's will, the plaintiffs must, therefore, show not only that Howell Osborn died substantially intestate, but also that the plaintiffs are his heirs at law. This they do not attempt to show. Although it appears that they are Howell Osborn's maternal aunts, it nowhere appears that all the lines of descent which would have the right to claim before them are exhausted, or, in other words, that Howell Osborn left no child and no father. There is no presumption to that effect. But, aside from these considerations, it fully appears from the facts admitted, as distinguished from the conclusions averred, not only that Howell Osborn was the sole heir at law of Mrs. Osborn, but also that when he died he left a will in which he made no provision for the plaintiffs, and that the validity of this will, as a will of real and personal property, has been judicially determined against the plaintiffs. They were parties to, and appeared in, the action which resulted in such determination. They were invited to contest Howell Osborn's will, and they abstained and allowed judgment to go against them. It is no valid objection that judgment went by default. Brown v. Mayor, 66 N. Y. 385, 390. The judgment was obtained in pursuance of section 2653a of the Code of Civil Procedure. This statutory provision was passed in 1892, for the very purpose of pro

and $5 New York State Reporter.

viding a proceeding to establish the validity of a will as a will of real, and personal property, and a judgment rendered under it is conclusive upon all parties to the action and all others claiming under or through them. There is nothing in the proposition that the plaintiffs may avoid the consequences of such conclusiveness by bringing an action under section 1537 of the Code. That section, it is true, permits a person claiming as heir to maintain partition, notwithstanding an apparent devise, upon proof of the invalidity of such devise.

if it be granted that, as a matter of pleading, the plaintiffs may set forth a cause of action for partition under section 1537, and in it may attack the will of Mrs. Osborn either with or without an attack upon the will of Howell Osborn, the real difficulty to be met by them arises when they are confronted with the proof that they are the lawful heirs of neither of the testators, and that the validity of the will of Howell Osborn has been already established against them. Such proof is now before the court. There is no inconsistency between section 2653a, passed in 1892, and section 1537, passed in 1853. If there were such inconsistency, section 2653a repealed pro tanto section 1537. The admitted facts being as stated, the allegation of the reply that the judgment establishing the validity of Howell Osborn's will has no valid force and effect upon the rights of the plaintiffs, and is merely the statement of a legal conclusion, unsupported by any fact, and for that reason unavailing. The case of Bowen v. Sweeney, 89 Hun, 359, 35 N. Y. Supp. 400, cited by plaintiffs' counsel, has no application here, because in it there had been no prior adjudication determining the validity of the will as a will of real estate, and the action had been brought four years prior to the enactment of section 2653a. The demurrer should be sustained and judgment rendered for the defendants, and, as it is plain that the plaintiffs cannot truthfully amend, leave to amend should not be granted. Upon sustaining a demurrer to a replication to a plea which goes to the whole cause of action, it has repeatedly been held that a final judgment for the defendant is proper. 6 Enc. Pl. & Prac. 355, and cases there cited. Ordered accordingly.

GALASSO et al. v. NATIONAL S. S. CO.

(Supreme Court, Appellate Division, First Department. April 22, 1898.)

On motion for reargument. Motion denied.

For former opinion, see 50 N. Y. S. 417.

Reargued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O'BRIEN, and INGRAHAM, JJ.

PER CURIAM. The statement in the opinion that "the defendant's witnesses do not pretend that they actually saw the empty bucket hit the tongue, and force it up," must be modified, in view of certain declarations in the testimony of the witness Corbett. This witness does state, in general terms, that the empty tub struck the catch of the full tub, and forced it up. But this was clearly a mere supposition. He was on the off-shore or westerly side of the hatch,

and the full tub was between him and the other. It was thus a physical impossibility for him to see what part of the full tub was struck. Finnel, who was but a few feet away from him, makes no such pretense. He says: "I saw the two tubs come together, and it [the full tub] immediately overturned." Corbett could obviously have seen no more than this. The most that he could have testified to is that the catch was not on the side towards him when the collision occurred. This would not be conclusive, but he makes no such statement. It is plain that his declaration as to the striking of the catch is a mere surmise, unaccompanied by the statement of any fact upon which the inference might reasonably be based. The rotatory motion of the tubs does not affect the question, since the point of contact was still out of sight of the witnesses.

The opinion also states that the tub had "nearly reached the deck when it dumped its contents." It is said that the tub had fully reached the deck. As to this there was a conflict of testimony. One of the plaintiffs' witnesses, Francese, said that it was still six or seven feet from the deck; and Finnel, on a former examination, said that the top of it was level with the hatchway. On the present trial he and two other witnesses testified that the bottom of the tub was clear of the hatch combings; but Finnel, in another part of his testimony, stated that the empty tub was one-half of its height above the other.. This statement, in turn, is somewhat confused by a subsequent answer. The jury, however, might well have believed that part of his testimony which was in the plaintiffs' favor. The issue as to the relative position of the tubs was clearly for the jury; and the opinion as a whole shows plainly that this was all that was held. If, however, it had been conclusively shown that the empty tub was the lower, and also that it in fact struck the catch, it would still have been a question of fact whether this blow would have dumped the full tub had it been in good repair. Even in such a case the blow, so far as can be judged. would have been, not an upward, glancing blow, but merely a lateral one; and Focht, the manufacturer of the bucket, distinctly stated that such a blow would not ordinarily release the catch.

There were thus insuperable obstacles to taking the case from the jury, and the inaccuracies in the opinion do not affect the general result. The motion should therefore be denied, but without costs.

(28 App. Div. 394.)

COULAHAN v. METROPOLITAN ST. RY. CO. (Supreme Court, Appellate Division, First Department. INJURY TO PASSENGER-DISMISSAL OF ACTION.

April 22, 1898.)

In an action to recover damages for injuries received by the plaintiff while a passenger on one of defendant's street cars, she testified that the car passed a truck standing beside the track, but struck the horse attached thereto. which was standing on the track, and that he sprang into the car, and injured her. No evidence was given on defendant's part, but the complaint was dismissed. Held, that as the jury might have inferred that the horse was standing upon the track when the driver attempted to pass, and, if so. would have been justified in inferring negligence on the driver's part, the dismissal was error.