Fourth Department, December, 1920. [Vol. 194 use of Three thousand dollars of insurance money, which shall, when received, be placed in a bank by my daughter Lucy M. Ballard, and she to pay him the interest semi-annually. In case of his death, same shall go to his children, if any. If not, to be equally divided among my heirs. Should his equal share exceed Three thousand dollars this shall be placed in some other bank and interest on same to be paid to him, as above described." Some time after the death of the testator Lucy was paid the insurance money of $3,000 and deposited the same in the Erie County Savings Bank, to the credit of her sister, Emma J. Ballard and Lucy M. Ballard, trustees. Thereafter the interest upon such trust deposit was collected by the executrices and paid to and for the benefit of Marty for the period of some six years. After the death of the widow these compulsory proceedings for an accounting of the executrices were instituted. Thereupon the executrices transferred the deposit of insurance moneys of $3,000 to the individual credit of Lucy M. Ballard, who, upon the accounting, claimed and now claims individual ownership of the same. By his will the testator gave to his widow the life use of all his property. It is therein provided that upon her death each of his children should have one equal share of all his property, except his daughter Lena, who was a nun, to whom he gave the sum of $200. The equal share of Marty was to be held in trust, and upon his death to be paid to his children, if any, and if none, to be divided among the heirs of the testator. It appears from the findings of the decree of the surrogate from which this appeal is taken, that the share of each of his several children, with the exception of Lena, was slightly above $3,000. The purpose of the testator, as appears from the provisions of his will, was to make an equal division of his estate among his children, and in order to accomplish such result the $3,000 of insurance money was utilized by the testator as though the same were assets of his estate. The surrogate determined upon the accounting, as appears from the findings in the decree, that the bequest in trust for Marty failed for the reason that the title to the insurance fund of $3,000 passed to the beneficiary named in the certificate and was no part of the property or estate of the testator. The App. Div.] Fourth Department, December, 1920. legatee Marty does not appeal and the standing of the appellant, Frank Ballard, a legatee under the will of the testator, to take and conduct this appeal, has not been brought in question and for that reason it is unnecessary to pass upon the question. It may be that Marty will take an interest in the proceedings upon an accounting, which must be ordered. It is conceded that the testator assumed the right to make a testamentary disposition of the insurance money payable to his daughter Lucy. It is equally clear that this was done by the testator for the purpose of making an equitable and, as he believed, an equal disposition of his property among his children. In these circumstances Lucy was compelled to elect whether she would take the legacy under the will or renounce the same and take the insurance money which it is conceded became her property upon the death of the testator. She cannot have both. This is settled by a long line of cases in England and in this country. There seems to be no dissent upon the subject. It was the subject of decision as early as the case of Havens v. Sackett (15 N. Y. 365). That case decides that where one accepts a benefit conferred under one provision of an instrument, he cannot repudiate it where it is to his disadvantage. There are a great number of cases in this State and elsewhere declaring the same rule. As late as Beetson v. Stoops (186 N. Y. 463) the court again applied the rule of the Havens case, and stated that the rule does not rest so much upon presumption as upon the general principles of right, justice and fair dealing. This court does not pass upon the question whether or not the election made by Lucy and ratified by the holding of the surrogate, to claim the insurance money, is conclusive and cannot be withdrawn. It may be upon a retrial before the surrogate that Lucy may elect to take her legacy under the will and make the trust fund to Marty good by the appropriation of the insurance moneys. If the election is found to be conclusive, it may be that the parties, notwithstanding the binding force of the election made, in order to carry out the last will and testament of their father, will consent that the election is timely. This court does not pass upon the question Second Department, December, 1920. [Vol. 194. whether, in the event of the failure of the appropriation of the insurance money to make good the trust fund for the benefit of Marty, the surrogate has power to appropriate the legacy to Lucy under the will, for such purpose. All concur. Decree, and order so far as appealed from, reversed, and proceeding remitted to the Surrogate's Court for a rehearing, with costs to appellant to abide event. VIRA CORNELL KINEON, Respondent, v. SEYMOUR W. BONSALL and MARGARET M. BONSALL, Defendants, Impleaded with HELEN GREIFF and OSCAR N. HOFFMAN, Appellants. Second Department, December 17, 1920. Debtor and creditor action to sequester corporate stock transferred by debtor to third persons and to have same applied to payment of judgment transfer without consideration— gifts burden of proof to show that transfers left debtor solvent-trial — refusal to find that transfer left debtor solvent as sufficient to sustain judgment - trusts commingling trust funds by debtor when equity will impress trust. with own funds by investment - In an action by a judgment creditor to sequester corporate stock transferred by the debtor to third persons and to have the same applied on the judgment, held, on all the evidence that the transfer of the stock to the defendants, employees of the judgment debtor, was made without consideration and constituted gifts; That the antecedent promises of the judgment debtor as testified to by the defendants on which the transfer was alleged to have been based amount to nothing more than a general promise to give a bonus, which cannot make the transfer one for a consideration. The finding that the transfers were purely voluntary placed upon the defendants the burden of showing that the transfers left the debtor solvent. The refusal of the trial court to find that the transfers left the debtor solvent is sufficient to sustain a judgment in favor of the creditor without the affirmative finding that the transfers left the debtor insolvent. The equity of the judgment directing the application of the stock to the payment of the judgment against the transferor may be sustained on the ground that the debtor held toward the plaintiff, his stepdaughter and practically his ward, the position of a trustee, and having commingled her funds, for which the judgment was recovered, with his own, by App. Div.] Second Department, December, 1920. investment in such a way that it became extremely difficult if not impossible to separate them, equity impressed upon the whole a trust in her favor, so that, in her behalf, any part of it may be seized and applied pro tanto to the satisfaction of her judgment. As the transfer by the judgment debtor to the defendants was absolute, so far as the record shows, he was not a necessary party to the action. APPEAL by the defendants, Helen Greiff and another, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 3d day of July, 1920, upon the decision of the court rendered after a trial at the Westchester Special Term, as grants equitable relief by way of holding void certain transfers of stock by Seymour W. Bonsall to the defendants and applies said stock towards the payment of a judgment. previously obtained in another action by the plaintiff against Bonsall. Abraham Benedict [Adam K. Stricker and Lee Parsons Davis with him on the brief], for the appellants. Frank A. Gaynor [John F. Brennan with him on the brief], for the respondent. MILLS, J.: This is one of several litigations between Bonsall and his stepdaughters, Mrs. Kineon and Mrs. Shiverick, of which several have come to this court within recent years. In fact each recent volume of the reports of this court contains one of those cases. A brief summary of the situation may be helpful. The mother of the two now young women was widowed when they were very young, but left by her husband with a considerable estate amounting to several hundred thousand dollars. In a few years she married Bonsall and soon thereafter died, leaving a will which gave to him her entire estate; and I have never been able in any of the several records of those appeals to find any evidence that he ever had any property except that which his wife thus gave him and its proceeds. After a time he brought from New Hampshire his mother and installed her as the mistress of his home; and the two girls grew up together in that home in very much the relation of daughters, with the two Bonsalls as parents; and Second Department, December, 1920. [Vol. 194. when they reached their maturity married; and to each the Bonsalls made a substantial wedding present, which, by the way, was no more than they ought to have done, as the present had its undoubted source in the fortune of the real mother. The gift to Mrs. Shiverick was of the home at Mamaroneck; and the Bonsalls continued to live there with that young couple. In time a daughter was born to the Shivericks, and when she was about a year old the so-called grandmother, Mrs. Bonsall, took the child out riding against the wishes of the mother, Mrs. Shiverick; and upon being upbraided by the mother for so doing became angry and, refusing to accept the mother's apology freely tendered in a few hours, left the home and returned to New Hampshire. In a few months she reappeared at the Mamaroneck home and demanded the surrender to her of substantially all the furnishings of it, even the rugs, which had been expressly made for it, upon the claim that Mr. Bonsall had given them to her. Her demand was refused, whereupon she brought action in this court to recover the value of the furnishings as for conversion. At the Trial Term she succeeded by the verdict of a jury in establishing her claim and recovered a judgment for upwards of $11,000. Upon appeal here we reversed and granted a new trial, the majority of the court so deciding only upon the ground of an error of law in a ruling upon a question of evidence. (Bonsall v. Shiverick, 184 App. Div. 904.) The presiding justice and I were also of the opinion that the verdict was clearly against the weight of the evidence; indeed I was convinced that the recovery constituted a decided injustice. Upon appeal the Court of Appeals reversed our decision and affirmed the judgment of the Trial Term, being of the opinion that the erroneous ruling was not of sufficient substance to warrant a reversal. (229 N. Y. 518.) The girls, before attaining age but after their mother's death, each inherited from another source a considerable sum, upwards of $300,000. While they were minors Bonsall applied to the Surrogate's Court to be appointed their guardian, but his application was denied. Upon their reaching full age and receiving their properties they respectively turned them over to him, each practically intrusting him with the management of her fortune, giving him full power of attorney under which he exercised entire control of it. He claims to have invented |