it upon anything like a solvent basis, to forgive its own outstanding account, and that all the holders of income bonds would have to forgive their claims. But they could not control the income bonds which they did not hold, and why should they forgive their own claims against the company for the benefit of minority stockholders? I am satisfied that, while the defendant was technically wrong in the course which it took to bring about the inevitable liquidation, and that equity will, therefore, imply a trust, nevertheless it will impose equitable conditions, and not apply those harsh and punitive rules which are appropriate to cases of actual wicked fraud. The plaintiffs are entitled to a transfer of the same number of shares of the new company as they hold of shares in the old company upon payment within 20 days of their pro rata share of the moneys paid by defendant, as above stated, for interest on the second mortgage bonds, subject, however, to defendant's lien for the payment of plaintiffs' pro rata share of the income bonds held by the defendant as above stated, and of the defendant's open account aforesaid; such lien to be secured by pledge with the defendant of the stock transferred. But in case the plaintiffs shall not, within 20 days after the entry and service of an interlocutory judgment for the above relief, make the said cash payment, then the complaint will be dismissed, with costs.

The following simple case illustrates the view which I have taken: Suppose A., who is insolvent, owns a piece of real estate subject to a mortgage, having no other property, and B. holds a second mortgage upon it for an amount without any reasonable doubt largely in excess of the value of the equity. A. goes abroad, leaving B. in charge of the property as general agent. B.'s mortgage falls due, and his interest is in arrears. The income is insufficient to pay interest on the first mortgage unless bills for repairs are allowed to go unpaid, and unless B. foregoes his own interest and principal. B. pays the bills for repairs, and pays his own interest, but allows the interest on the first mortgage to be in default, and instigates a foreclosure, and buys at the sale, which is a fair public sale, in his own name, for just the amount due on the first mortgage and costs, his second mortgage being nominally cut off. Equity probably impresses a trust upon the property in B.'s hands for the benefit of A., though the end reached was the same as would have been reached by a foreclosure of B.'s own mortgage; but must not A. pay B. what B. paid at the sale, and must he not take the land, allowing in some way a lien for the amount due on B.'s second mortgage (so adjusted, of course, that it will be a lien only after an amount equal to the old first mortgage)? The plaintiffs' proposition is that in the case supposed B. must lose his second mortgage altogether, and that A., instead of merely getting back his own, will make a profit. I think equity gives him only indemnity.

Judgment accordingly, with costs. Costs against plaintiffs are awarded to defendants Lewis, Staten Island Rapid Transit Railway Company, and Standard Trust Company.

(Supreme Court, Special Term, New York County. July, 1901.)

1. WILLS-ANNUITY-SETTING ASIDE Fund.

Under a will directing executors to set apart so much of testatrix's estate as will produce an annuity to testatrix's husband of $10,000 a year, it is for the executors to determine the amount necessary to be set apart therefor.

2. SAME-EXCESS OF INCOME.

Where executors are directed to set apart a fund to produce an annuity, and there is an excess of income, it should be distributed among the legatees.

8. SAME-CONSTRUCTION.

Testatrix was the owner of a homestead, a family burial plot, a pew in a church, and certain real estate. She devised the proceeds of her real estate specifically mentioned to her brothers and sisters, and all her "other" real estate to her executors for the execution of the will, with a power of sale. Held, that the second devise related only to the plot, pew, and homestead, and did not affect the first devise.

4. GENERAL LEGACIES-ABATEMENT.

General legacies abated ratably where the personalty is insufficient for their payment.

5. WILL

SUBSCRIBING WITNESSES-FORFEITURE OF LEGACY.

Where subscribing witnesses testify to the execution of the will, they forfeit their right to legacies thereunder.

Action by Waldo Grant Morse, executor, against Samuel J. Tilden, Jr., and others, to construe the will of Ruby Tilden Paine. Judgment

rendered.

Frank Cochrane (L. L. Delafield, of counsel), for plaintiff.

Edw. G. Whitaker, for defendants George H. and Augusta Tilden. Geo. L. Shearer, for E. T. Sabin and C. D. Sabin, and also guardian ad litem.

Emil Goldmark, guardian ad litem, for infant defendants G. A., A. M., and H. A. Tilden.

George E. Coney, for defendant Atlanta University.

Rollins & Rollins, for defendant Susan T. Sabin.

J. J. Rollins, for defendants S. T. Sabin and C. B. Whittlesey. E. P. Wheeler, for Lebanon Soc.

W. B. Stryker, in pro. per.

A. S. Hutchins, for W. S. Paine.

Cady & Delamater, for National Hudson River Bank.

Lemuel Skidmore, for defendant Methodist Episcopal Soc., for Foreign Missions.

Wm. T. Schley, for Henrietta T. Blatchford.

O'GORMAN, J. Under the second clause of the will, it is quite clear that it is the duty of the executors to set apart and invest so much of the estate as will provide a net annual income of $10,000, the annuity intended for decedent's husband. The lien of the annuity will affect only the particular fund set apart for that purpose, and the determination of the amount of the fund must be left to the

trustees. Their decision involves the exercise of a discretion confided to them by the decedent, and should not be interfered with by the court. The annuity is to be paid out of the income, although the trustees may resort to the corpus of the fund to supply a deficiency when necessary. Should the fund produce an income in excess of the annuity, the surplus must be distributed among the legatees to the extent that their legacies remain unpaid. It will form part of the residuum only in the event of all other legacies having been previously discharged. By the sixth clause the testatrix expressly gave the proceeds of her real estate to her brothers and sisters. This bequest was not impaired or diminished by the succeeding paragraph, which reads: "Seventh. I give and devise all my other real estate to my executors in trust for the execution of my will, with power to sell and dispose of the same at public or private sale." The first and sixth clauses deal with the family plot at New Lebanon, the pew in the Madison Square Presbyterian Church, and the homestead at New Lebanon, and the specific de-. vises of these minor interests explain the words "other real estate" in the seventh paragraph. It was evidently the intention of the testatrix that the executors should have the power to sell the real estate not specifically devised and distribute the proceeds as directed by the last paragraph of the immediately preceding clause. The provisions of paragraphs 6 and 7 touching the real estate are not inharmonious, and the words "in trust for the execution of my will" o not support the contention that these proceeds are applicable, with the personal estate, to the payment of general legacies. The executors are to sell the real estate and receive the proceeds "in trust for the execution of my will"; that is, with the proceeds they are to carry out and execute the provisions of the will, and one of these provisions contains the specific direction to pay those particular proceeds to the brothers and sisters of the testatrix, and compliance herewith is mandatory upon the executors. As it appears the personalty will be insufficient, after the creation of the annuity fund, to pay at this time the legacies given by the first, third, fourth, and fifth clauses, these legacies must abate ratably as between themselves. They are general legacies, and there is nothing in the language of the will or the character of the bequests to indicate an intention to prefer a particular legatee. The payment of the legacies mentioned in the first, second, and third paragraphs of clause 6 must be postponed until all the prior legacies are paid, and as to these legacies interest will not run until the executors have in their hands sufficient money to pay the legacies. The legacy to the Congregational Church is a general legacy, and carries interest from the expiration of one year after the granting of letters. The legatees mentioned in the third and fifth clauses are entitled to receive such income as has actually been earned by the respective funds since the death of the testatrix. In re Stanfield, 135 N. Y. 292, 31 N. E. 1013. This may be ascertained by subtracting from the total net income the total annuity, and dividing the balance. among the several trust funds in the proportion which each fund bore to the whole estate at the death of testatrix, after deducting

and 106 New York State Reporter

therefrom the principal of the annuity fund. The will was proved by the testimony of Emily R. Tilden and H. Tilden Swan, two o the subscribing witnesses, and they therefore forfeit their legacies. As the other subscribing witness, Susan T. Sabin, was not examined, her rights as legatee are not affected. Her presence could not be secured on the probate, and consequently the will could not be proved without the testimony of the witnesses who were examined. Judgment accordingly.

(64 App. Div. 257.)

In re BOSTON & A. R. CO.

(Supreme Court, Appellate Division, Third Department. September 4, 1901.) RAILROADS ABOLITION OF GRADE CROSSING-PRESENTATION OF EVIDENCE ON HEARING.

Where, on the hearing before the railroad commissioners of an application by a railroad company to abolish a grade crossing within a certain town, the town's attorney was present, and consented to a shortening of the proceedings by the commissioners viewing the crossing, on their promise to permit him to be present when they drew their findings, and no other evidence was offered by the town, an objection that the town was not permitted to introduce evidence showing that the crossing was not dangerous was untenable.

Application by the Boston & Albany Railroad Company to the railroad commissioners for the abolishment of the grade crossing at Chatham street, in Niverville, in the town of Kinderhook. From the decision of the commissioners granting the application, the town appeals. Affirmed.

Argued before PARKER, P. J., and SMITH, KELLOGG, EDWARDS, and CHASE, JJ.

E. R. Harder, for appellant.
A. B. Gardinier, for respondent.

CHASE, J. The Boston & Albany Railroad Company owns and operates a steam railroad, the main line of which in the state of New York passes through the town of Kinderhook, Columbia county. At or near the Niverville station it is crossed at grade by a highway known as "Chatham Street," and the crossing is made at an acute angle. At this crossing there are five tracks, four of which belong to the Boston & Albany Railroad Company. The most westerly track is that of the Kinderhook & Hudson Railroad Company. Immediately adjoining that track are the two main tracks of the Boston & Albany Railroad Company, and immediately adjoining the main tracks are two side tracks of said company. Chatham street is the main street in the village of Niverville, and the traffic over said crossing is many times larger than that of any other crossing in the town of Kinderhook. There are as many trains crossing that street and as many teams crossing the tracks at that point as at any crossing on the main line of the Boston & Albany Railroad in the state of New York. There are more or less obstructions to the view up and down

said tracks as they are approached from either side. In 1899 the persons constituting the town board of the town of Kinderhook and representatives of the Boston & Albany Railroad Company, consulted in regard to joining in an application to the board of railroad commissioners for the abolition of that grade crossing, and having the highway changed so as to pass under the tracks at more nearly a right angle with them. Subsequently they were unable to agree as to the maximum expense of the same, and on the 12th day of December, 1899, the Boston & Albany Railroad Company filed with. the railroad commissioners a petition alleging that public safety requires alterations in the manner of said crossing, in its approaches and the method of crossing, and in the location of the highway and crossing so that said crossing shall be closed and discontinued, and the travel thereon shall be diverted to another highway or crossing not at grade, to be constructed so that said Chatham street shall pass under the main line of said railroad at a bridge about 100 feet southeasterly from said existing crossing. The supervisor of the town of Kinderhook filed an answer to said petition, substantially denying the same. Hearings were thereafter had by said commissioners, and the crossing and surroundings were inspected by them in the presence of counsel for the railroad company and of the town of Kinderhook, and on the 13th day of June, 1900, said commissioners made an order that the said crossing at grade be closed and discontinued, and the travel thereon diverted to another crossing not at grade, to be constructed so that said Chatham street shall pass under said railroad at a bridge about 100 feet southeasterly of said existing crossing. The detail of said changes is fully provided for by said order. From said order the town of Kinderhook has appealed to this court.

The appellant now contends that it was not allowed to present its evidence showing that the crossing was not dangerous, and that public safety did not require a change. There is nothing in the record before us to justify such contention. The town was represented before the commissioners by its counsel, Mr. Harder. After a map showing the surroundings and the proposed changes in the highway and crossing in detail had been offered in evidence, and some testimony had been taken on the part of the petitioner, the record shows that the following conversation was held:

"Commissioner Cole: Couldn't this proceeding be shortened if the board would go out and view the crossing? Mr. Harder: All right; and let my friend and I meet with you; and fix up your findings. Commissioner Cole: Yes. Mr. Harder: Then make your findings, so we can have all these questions passed upon by some court."

But little testimony was taken at the hearing after this conversation, and subsequently the crossing was inspected by the commissioners. A further hearing was had at the office of the commissioners, and the record recites: "Following our inspection of the crossing, we did not deem it necessary for the town of Kinderhook to submit any proof, and none was taken." It might fairly be inferred from the statement of the counsel for the town in response to Commissioner Cole that it did not care to offer oral testimony following the

72 N.Y.S.-3