Third Department, March, 1910. [Vol. 137. as disposing of her property directly. The attempt to furnish the sons a trustee in case they should desire to hide behind him as a shield is ineffectual. The testatrix herself must create the trust and devolve upon the trustee the performance of certain duties. She cannot name a trustee to perform such trust duties, if any, as the beneficiaries under her will may find it convenient to have so performed. The majority of the court consider that the plaintiffs own and are entitled to the possession of an undivided one-half interest in the property, and that the trust as to the one-half of the property represented by James still continues, from which it results that plaintiffs, upon the death of their father, became the owners and entitled to the possession of an undivided one-half of the entire property, and may have, in this action, an accounting for rents and profits. The judgment should be reversed and a new trial granted, with costs to the plaintiffs to abide the event. SEWELL, J., concurred; SMITH, P. J., in the result; COCHRANE, J., concurred in reversal in memorandum in which HOUGHTON, J., concurred. COCHRANE, J. (concurring in reversal): I concur with Mr. Justice KELLOGG in his conclusion that it was the intention of the testatrix to divide her property equally between her two sons. I think, however, that the trust was an active valid trust and that it continues as to the entire property until the death of James, and that the plaintiffs are entitled not to absolute possession but only to one-half the net rents of the real property until James shall die. I am also of the opinion that the right of occupancy given by the will is a right to occupy as a home, and that if James occupies more of the real property than is necessary for living purposes he should account therefor. HOUGHTON, J., concurred. Judgment reversed and new trial granted, with costs to appellants to abide event. App. Div.] Third Department, March, 1910. SARAH L. J. TOMPKINS, as Administratrix, etc., of JOHN TOMPKINS, Deceased, Respondent, v. CHARLES L. WILLIAMS, Appellant, Impleaded with JAMES MONROE, Defendant. Third Department, March 9, 1910. Bankruptcy-intentional and malicious injury-evidence-burden of proof. Where a judgment obtained by an administratrix is based upon the fact that chloral was administered to her intestate by the defendants; that they neglected to care for him properly as an intoxicated guest, and it is not claimed that they desired to injure or cause his death, the judgment is dischargeable in bankruptcy. The administration of chloral, being for the benefit of the intestate, was not a malicious or intentional injury within the meaning of the Bankruptcy Act. The burden is on the plaintiff to show that her judgment comes within the exception of the Bankruptcy Act so as to survive the discharge. SMITH, P. J., and Cochrane, J., dissented in memorandum. APPEAL by the defendant, Charles L. Williams, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Delaware on the 22d day of July, 1909, denying the said defendant's motion to cancel and discharge a judgment and to set aside an execution issued thereon under section 150 of the Debtor and Creditor Law (Consol. Laws, chap. 12; Laws of 1909, chap. 17). Marvin & Hanford [E. II. Hanford of counsel], for the appellant. Williams & Conlon [Edwin D. Wagner of counsel], for the respondent. KELLOGG, J.: The plaintiff's intestate met his death at an inn of which the wife of Williams and another were the proprietors and Williams and Monroe were bartenders and employees. The judgment in question is against Williams and Monroe, and is based upon the fact that the intestate's death was caused (1) by the administration of chloral to him by Williams, or (2) by the defendants neglecting to properly care for an intoxicated guest. From the evidence, the Third Department, March, 1910. [Vol. 137. pleadings and the charge of the court the verdict may have been placed upon either ground, and it is impossible to state upon which ground the recovery rests. It was a disputed question of fact whether chloral was administered by Williams. Under section 17 of the Bankruptcy Act* a discharge in bankruptcy releases the bankrupt from all provable debts except certain liabilities, among which is liability for "willful and malicious injuries to the person or property of another." The plaintiff's judgment was treated as a liability in the petition of the bankrupt, and due notice of all proceedings in bankruptcy was given to her as a creditor. The plaintiff's cause of action is for an injury to her property rights. (Matter of Meekin v. B. H. R. R. Co., 164 N. Y. 145.) If the act which caused the death was malicious and willful, the judgment may survive the discharge in bankruptcy; otherwise not. It was not claimed that the defendant desired to injure or to cause the death of the deceased. If chloral was administered, it was intended for his benefit to render him quiet; to prevent his making a disturbance and injuring himself or others. It was clearly but mistakenly intended for his good. If chloral was not administered, then the recovery rests solely upon negligence. It was not, therefore, in either case a malicious and intentional injury within the meaning of the Bankruptcy Act. There was no wrongful intent as distinguished from a mere legal wrong. (Allen v. Fromme, 195 N. Y. 404, 407; Kavanaugh v. McIntyre, 128 App. Div. 722, 724.) The plaintiff upon this motion is charged with the duty of showing that her judgment comes within the exception which saves it from discharge in bankruptcy. That fact has not been established and it does not, therefore, survive the discharge in bankruptcy. The order, should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted. All concurred, except SMITH, P. J., dissenting in memorandum. in which COCHRANE, J., concurred. SMITH, P. J. (dissenting): I agree with the learned judge at Special Term that under the charge the judgment in question must be deemed to have been procured for *See 30 U. S. Stat. at Large, 550, § 17, as amd. by 32 id. 798, § 5.— [REP. App. Div.] Third Department, March, 1910. the act of the defendant in giving the plaintiff's husband chloral, and that it cannot from the record be said to be based upon mere negligence in caring for the plaintiff's husband as a guest. It is certainly a radical holding that a saloon keeper may sell a man whisky and get him drunk and then give him chloral to quiet him, and when in so doing he kills him he has made an innocent mistake, and that a judgment recovered therefor is discharged in bankruptcy. The giving of the chloral was a willful and wrongful act, and in my judgment must be deemed malicious (Colwell v. Tinker, 169 N. Y. 537); and plaintiff's judgment for the death of her husband, caused by such act, should remain a liability against the defendant until paid. COCHRANE, J., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted. VINCENT C. KING, Appellant, v. CHARLES SIEDLER, Respondent. Third Department, March 9, 1910. Contract-discharge of judgments-extending contract by implication. Where a contract provided merely that the defendant shall “cause to be satisfied and discharged sundry judgments, and assume and pay certain claims” against the plaintiff, there is no absolute agreement to cause the docket of the judg ments to be canceled, and the defendant's obligation cannot be so extended by implication. A clause in such contract that nothing therein shall be construed to prevent any of the creditors from collecting their claims from any other person liable thereon, shows an intention that the plaintiff only should be discharged from liability. APPEAL by the plaintiff, Vincent C. King, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 9th day of April, 1909, upon the decision of the court rendered after a trial at the Saratoga Trial Term before the court without a jury. Nash Rockwood, for the appellant. Edward D. Eddy, for the respondent. SEWELL, J.: Third Department, March, 1910. [Vol. 137. This action was brought to recover damages alleged to have resulted from the breach of a contract. The action was commenced September 11, 1906, and tried March 23, 1909. The contract was dated March 11, 1904, and contained an agreement on the part of the defendant "That he will cause to be satisfied and discharged sundry judgments, and assume and pay certain claims now existing against the said Vincent C. King as follows: Clarence L. Smith Co., two judgments amounting to about (together)..... $2,700 Kaldenberg Importing & Trading Co., judgment amounting to about..... 1,300 Second National Bank of Hoboken, judgment amounting to about.... Mechanics & Farmers' Bank, judgment amounting to about... 1,600 1,500 1,700 2, 600 3, 100 Gansevoort Bank, judgment amounting to about...... The time of performance was not specified in the contract. The complaint alleges that the defendant has failed and neglected to satisfy and discharge or to cause to be satisfied and discharged four of the judgments and has neglected and failed to assume and pay any of the claims specified in the agreement. It demands judgment for the amount of the judgments and claims that have not been paid, satisfied or discharged by the defendant, and for the sum of $10,000 damages. The answer admits the contract but "Denies that the defendant has neglected to pay and obtain discharges of the several judgments set out and referred to in the complaint, and also denies that the defendant has neglected or failed to assume and pay the claims specified in said complaint." The answer also contains two counterclaims for money loaned, and the amount paid upon a note made by the defendant for the accommodation of the plaintiff. It appeared upon the trial that these judginents were paid prior |
