the ninth clause of the trust estate to Selden M. was also conditional. This contingent right passed on his death to his representatives, and on the death of Seymour H. before marriage they will be entitled to the fund. Contingent interests are assignable, devisable and descendible. Fearne on Con. Rem., 364; 1 P. Wms., 563; Cas. Temp. Talb., 117; 2 Atk., 616; 1 Bro. Ch. Cas., 181; 7 Met., 363. The appellant has no interest in the matter.

in trust to pay the interest thereon | M. His right to either was consemi annually to my grandson, ditional. The alternative gift in Seymour H. Spencer, upon the express condition that he shall renounce the Roman Catholic priesthood, said payment of interest to commence at the time of said renunciation; and upon the further condition that he shall marry, I I give, devise and bequeath the said money held in trust, together with the accumulated interest thereon, to my said grandson, Seymour H. Spencer." By the tenth clause of the will it was provided, that "In case of the death of the said Seymour H. Spencer before marriage, I give, devise and bequeath his said share to my grandson, Selden M. Spencer, at the time of his marriage." Selden M. married Sept. 2,1881. On Sept. 15, 1881, Seymour H., by a sealed instrument, reciting that he never intended to renounce the priesthood or marry, conveyed all his interest under the will of

M. to his brother Selden M. The latter died Sept. 26, 1881. William M. Kenyon claims the third given to Selden M. Spencer in trust for the benefit of Seymour H. Spencer, because by the death of Selden before his brother Kenyon is entitled as heir in reversion and by the renunciation he is entitled to the possession now in absolute ownership.

John A. Husted, for applt. Charles B. Alexander, for respts.

Held, That Seymour H. Spencer took no vested estate or interest in the principal or income of the fund given to Selden M. Spencer by the eighth clause of the will of

Judgment of General Term, affirming decree of Surrogate, affirmed.

Opinion by Andrews, J. All

concur.

EVIDENCE.

N. Y. COURT OF APPEALS. Sanford et al., respts., v. Ellithorpe et al., applts.

- Decided Feb. 26, 1884.
In an action to set aside a deed for fraud, un-
due influence, etc., the wife of the grantor
testified to conversations with him in which
he spoke of his fear of the consequences if
he did not convey. A motion to strike out
this testimony was made on the grounds
that it was incompetent; that she was in-
terested in the event, and that she was de-
tailing transactions between husband and
wife. The motion was denied. Held,
Error; that the evidence should have been
excluded and that the objection was suffi-
ciently specific.

In a case which involves an inquiry as to
whether the act of a person was induced by
fraud or duress his subsequent declarations
are inadmissible to establish the point in
issue.

This action was brought to have certain deeds, executed by E. in

between husband and wife. The
motion was denied and the testi-
mony retained as evidence of the
mental condition of the grantor.

Parker & McIntyre, for applts.
Leslie W. Russell, for respts.

Held, Error; that the testimony of the witness was of an important character, bearing distinctly upon the issues; that the objection was sufficiently specific and was well taken; it was not necessary to refer to the section of the Code or other authority to sustain it; that the testimony should have been excluded by reason of the relation of the witness to the event of the action, the character of the testimony and the source of title of the defendants to the property in controversy. 23 Wend., 316; 9 Hun, 664; 42 N. Y., 251; 46 id., 481.

his life time, set aside for fraud, | personal and private transactions want of consideration and undue influence. The complaint also alleged that E. "while weak and enfeebled in mind and body, and mentally unsound and incompetent, under said undue influence, and prevailed upon and deceived by these false and untrue solicitations, promises, representations and threats," made the conveyances in question. Upon the trial one C. was allowed to testify, against defendants' exception, that at the time of the execution of the deeds she was the wife of the grantor, and as such she consented to the conveyance and evidenced the same by her acknowledgment in the manner required by law. When asked if the grantor expressed to her "fear of being absolutely ruined unless he conveyed his property," she answered: "He did; he wanted to put the property in his son's hands to save it"; that he said if I didn't sign them it would be the means of his ruination and separation between us. He said if I would I should not be wronged by so doing and be well paid, and the boys would hold them as trust deeds." The testimony of this witness was objected to as not competent; that she was interested in the event of the action, and defendants' counsel moved to strike out the conversations between the witness and her husband on the grounds already stated in objecting to the testimony, and that the witness sought to show the purpose of the conveyance, and that her testimony detailed

The conveyance in question was made in 1870. Plaintiff was allowed to prove declarations of the grantor to various persons as to what he had done with his property, made in 1872, 1873, 1874 and 1875, and three months before the grantor's death, which occurred Nov. 14, 1877. There was nothing in the declarations testified to which legitimately bears upon the mental state of the grantor at the time of the execution of the deeds; they were not of such a character as to show the grantor's mental condition and the state of his affection for his children. The testimony was in each case objected to as incompetent and immaterial, and that the declarations were not evidence against the defendants, who were not present, and as improper in

that mode to show the purpose of the conveyance. The referee overruled the objections and received the evidence to show the grantor's mental condition and the state of his affection for his children.

Held, Error; that the declarations sworn to were too remote; that they did not show the condition of mind or the capacity of the grantor at the time the deeds were executed.

In a case which involves an inquiry as to whether the act of a person was induced by fraud or duress, his subsequent declarations are inadmissible to establish the point in issue, because they might result from a changed purpose, or from external motives operating on an intelligent mind; in a case which involves an inquiry into the sanity or mental capacity of a person doing an act, subsequent declarations are admissible, because they relate to the involuntary state or condition of his mind. 11 N. Y., 157.

Judgment of General Term, affirming judgment for plaintiffs, reversed and new trial granted.

Opinion by Danforth, J. All concur, except Ruger, Ch. J., dissenting.

INFANTS. PLEADING.

N. Y. COURT OF APPEALS.

fant in his own name by his guardian ad litem.

An action to recover personal property belonging to a deceased person may be maintained by his next of kin without the intervention of an administrator under certain circumstances, such as where the defendant has admitted plaintiff's rights.

The complaint alleged that defendant was employed as attorney and counsel of Mrs. S. and her children, and while so employed received in a fiduciary capacity money belonging to the estate of S., deceased, to which his widow and children were entitled: that on an accounting it was found that he was indebted to her as guardian and next of kin as before stated, and that the said moneys, of which plaintiff's share was $750, were received and retained by said defendant as attorney of said widow and children; and they were received in the fiduciary capacity aforesaid, and that defendant had refused to pay the same and had converted it to his own use. Held, That these allegations merely disclose a cause of action ex contractu, and not one for tort.

This action was brought by plaintiff in his own name by his guardian ad litem against defendant, an attorney and counselor at law, to recover the share of plaintiff, an infant, in certain moneys held by defendant. It appeared that on January 2, 1873, defendant, who had been acting as attorney for plaintiff's mother, who was administratrix of the estate of her decease husband, gave her a receipt stating that as general guardian of three infants there was due her $1,500 and as next of kin of two deceased children $1,000,"payable according to

Segelken, by guardian, respt., a decree of the surrogate of the

v. Meyer, applt.

Decided Jan. 22, 1884.

An action to recover money belonging to an infant may be properly brought by the inVol. 18-No. 18b.

county of New York, interest to
be paid on the money" semiannu-
ally.
The decree directed that
the shares of the children should
be paid to their mother as general

plaintiff, but that defendant neg lected and refused to pay it to plaintiff and had converted the same to his own use.

guardian. The mother died in 1876 and one K was appointed general guardian in 1877 and subsequently appointed guardian ad litem in this action. It was claimed that this action should have been brought by the general guar. dian in his own name as such. Almet F. Jenks, for applt. Whitehead H. Van Wyck, for an accounting, and that he had neg

respt.

Held, Untenable; that the action was properly brought by guardian ad litem, 10 Paige, 235, 239; Code of Civil Proc. § 468, and a good cause of action was shown for one third of the $1,500 in plaintiff's favor; that while as next of kin simply plaintiff could not ordinarily sue to recover his share of the personal property of the deceased sisters, 13 Wend. 453; 19 id. 306, yet under certain circumstances such an action could be maintained without the intervention of an administrator. 7 Wend. 354.

The complaint alleged that defendant was employed as attorney

Held, That these allegations disclose merely a cause of action for money had and received by an agent or attorney in a fiduciary capacity, which was the subject of

lected and refused to pay over on demand the balance found due. This is a cause of action ex contractu. 61 N. Y. 583; 42 id. 83. Proof that defendant has received money to which plaintiff is entitled is sufficient to sustain the action, and the allegation that defendant received the money in a fiduciary capacity is not essential to entitle plaintiff to recover.

Judgment of General Term, affirming judgment for plaintiff, affirmed.

Opinion by Rapallo, J. All

concur.

GOVERNMENT RAILROAD

DIRECTORS.

and counsel of plaintiff's mother N Y. SUPREME COURT. GENERAL

and her children, and while so emloyed received in a fiduciary capacity moneys belonging to the estate of plaintiff's father to which his widow and children were entitled: that on Jan. 2, 1872, defendant had an accounting with the widow and he was found to be indebted to her as guardian and next of kin as set forth in his receipt; that that money was received and retained by defendant as the attorney, counsel and proctor of said widow and children, and was frequently demanded

by

TERM. FIRST DEPT.

Francis B. Brewer, respt., v. The Union Pacific RR. Co., applt.

Decided Jan. 25, 1884.

In the Act of Congress of July 1st, 1862, creating the Union Pacific Railroad Company and granting to it lands, provision was made rectors by the President, which number was for the appointment of two Government disubsequently increased to five, and it was provided that they should be paid their trav

eling expenses and reasonable compensation

1866, of general application, it was provided that the compensation and traveling expenses

for their services. By an Act of July 27th,