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he is not obliged to return it before com

proceeds realized from their conmencing an action for conversion of the

version. notes. Affirming S. C., 16 W. Dig., 344.

Judgment of General Term, af.

firming judgment on verdict for This action was brought to re- plaintiff, affirmed. cover damages for the conversion

Opinion by Miller, J. All conof certain notes given by plaintiff. cur. It appeared that the notes in question were given to E., defendant's

WILLS. testator, to be held as custodian, under an agreement that they were N. Y. COURT OF APPEALS. to be discounted and 10 per cent. of the proceeds paid to plain

Kenyon, applt., v. See et al.,

. tiff and the balance appropriated exrs., respts. to pay an indebtedness on cer

Decided Feb. 5, 1884. tain real estate which was to be

Contingent interests are assignable, devisable conveyed to E. and bonded, and and descendible. two-fifths of the bonds were to be One M., by his will gave a portion of his esheld by E. in trust, as security for

tate to A. in trust to pay the income to B.

in case he should renounce the Roman the payment of the notes. If the

Catholic priesthood, and in case he should notes were not paid the bonds were do so and marry, gave to B. the principal to be given to plaintiff. The 10 also. In case B. should die before marriage per cent. of the proceeds was paid

the share was given to A. B. refused to to him and the notes were trans

renounce and conveyed his interest to A.,

who died before B. Held, That B.'s rights ferred and disposed of to purchase under the will were only conditional; that certain personal property and the alternative gift to A. was also connever used for the purpose in

ditional, and this contingent right passed to tended, and none of the bonds

A.’s representatives, who will be entitled to

the fund on B.'s death before marriage. required by the agreement were Affirming S.C., 16 W. Dig., 575. issued.

M. died, leaving three grandsons. John L. Logan, for applts.

By his will he gave one-third of B. F. Blair, for respt. .

his real and personal estate to each Held, That E. having with full of two of his grandsons, William knowledge allowed the notes to be E. Kenyon and Selden M. Spencer, diverted from the purpose in

“to be paid to him at the time of tended became liable in damages his marriage." Both of these grandfor the conversion of them. 12 N.

sons married. The other grandson Y, 313; 73 id., 269; 10 Johns., was a priest in the Roman Catho172.

lic Church. By the eighth clause Also held, That plaintiff was not of his will M. provided: “I give, obliged to offer to return the 10 per devise and bequeath to my said cent. of the proceeds of the notes grandson, Selden M. Spencer, at received by him; that sum was a the time of his marriage, one other commission paid him for the loan third of my real and personal esof his notes, and not a part of the 'tate not herein before disposed of

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 the ninth clause of the trust estate express condition that he shall re- to Selden M. was also conditional. nounce the Roman Catholic priest. This contingent right passed on hood, said payment of interest to his death to his representatives, commence at the time of said re- and on the death of Seymour H. nunciation; and upon the further before marriage they will be encondition that he shall marry, I titled to the fund. Contingent give, devise and bequeath the said interests are assignable, devisable money held in trust, together with and descendible. Fearne on Con. the accumulated interest thereon, Rem., 364; 1 P. Wms., 563; Cas, to my said grandson, Seymour H. Temp. Talb., 117; 2 Atk., 616; 1 Spencer.” By the tenth clause of Bro. Ch. Cas., 181; 7 Met., 363. the will it was provided, that “In The appellant has no interest in case of the death of the said Sey- the matter. mour H. Spencer before marriage, Judgment of General Term, afI give, devise and bequeath his firming decree

of Surrogate, said share to my grandson, Selden affirmed. M. Spencer, at the time of his mar- Opinion by Andrews, J. riage.” Selden M. married Sept. concur. 2,1881. On Sept. 15, 1881, Seymour H., by a sealed instrument, reciting

EVIDENCE. that he never intended to renounce

N. Y. COURT OF APPEALS. the priesthood or marry, conveyed all his interest under the will of

Sanford et al., respts., v. ElliM. to his brother Selden M. The thorpe et al., applts. latter died Sept. 26, 1881. William Decided Feb. 26, 1884. M. Kenyon claims the third given In an action to set aside a deed for fraud, unto Selden M. Spencer in trust for due influence, etc., the wife of the grantor the benefit of Seymour H. Spencer,

testified to conversations with him in which

he spoke of his fear of the consequences if because by the death of Selden be

he did not convey. A motion to strike out fore his brother Kenyon is entitled

this testimony was made on the grounds as heir in reversion and by the re- that it was incompetent ; that she was innunciation he is entitled to the terested in the event, and that she was depossession now in absolute owner

tailing transactions between husband and

wife. The motion was denied. Held ship.

Error ; that the evidence should have been John A. Husted, for applt.

excluded and that the objection was suffiCharles B. Alexander, for ciently specific.

In a case which involves an inquiry as to respts.

whether the act of a person was induced by Held, That Seymour H. Spencer

fraud or duress his subsequent declarations took no vested estate or interest are inadmissible to establish the point in in the principal or income of the issue. fund given to Selden M. Spencer This action was brought to have by the eighth clause of the will of certain deeds, executed by E. in his life time, set aside for fraud, | personal and private transactions want of consideration and undue between husband and wife. The influence. The complaint also motion was denied and the testialleged that E.“while weak and mony retained as evidence of the enfeebled in mind and body, and mental condition of the grantor. mentally unsound and incompe- Parker & McIntyre, for applts. tent, under said undue influence, Leslie W. Russell, for respts. and prevailed upon and deceived Held, Error; that the testimony by these false and untrue solicita of the witness was of an important tions, promises, representations character, bearing distinctly upon and threats," made the convey the issues ; that the objection was ances in question. Upon the trial sufficiently specific and was well one C. was allowed to testify, taken; it was not necessary to against defendants ' exception, refer to the section of the Code or that at the time of the execution other authority to sustain it; that of the deeds she was the wife of the testimony should have been the grantor, and as such she con excluded by reason of the relation sented to the conveyance and of the witness to the event of the evidenced the same by her ac action, the character of the testiknowledgment

in the manner mony and the source of title of the required by law. When asked if defendants to the property in conthe grantor expressed to her “fear troversy. 23 Wend., 316; 9 Hun, of being absolutely ruined unless 664; 42 N. Y., 251 ; 46 id., 481. he conveyed his property," she The conveyance in question was answered: “He did ; he wanted made in 1870. Plaintiff was allowed to put the property in his son's to prove declarations of the granhands to save it”; that she said tor to various persons as to what if I didn't sign them it would be he had done with his property, the means of his ruination and made in 1872, 1873, 1874 and 1875, separation between us. He said if and three months before the granI would I should not be wronged tor's death, which occurred Nov. by so doing and be well paid, and 14, 1877. There was nothing in the the boys would hold them as trust declarations testified to which deeds." The testimony of this legitimately bears upon the mental witness was objected to as not state of the grantor at the time of competent; that she was interested the execution of the deeds; they in the event of the action, and were not of such a character as to defendants' counsel moved to show the grantor's mental condistrike out the conversations be- tion and the state of his affection for tween the witness and her husband his children. The testimony was on the grounds already stated in in each case objected to as incomobjecting to the testimony, and petent and immaterial, and that that the witness sought to show the declarations were not evidence the purpose of the conveyance, against the defendants, who were and that her testimony detailed not present, and as improper in

that mode to show the purpose of fant in his own name by his guardian ad

litem. the conveyance. The referee over

An action to recover personal property beruled the objections and received

longing to a deceased person may be mainthe evidence to show the grantor's tained by his next of kin without the intermental condition and the state of vention of an administrator under certain his affection for his children.

circumstances, such as where the defendant

has admitted plaintiff's rights. Held, Error; that the declara

The complaint alleged that defendant was tions sworn to were too remote ; employed as attorney and counsel of Mrs. that they did not show the condi- S. and her children, and while so employed tion of mind or the capacity of the

received in a fiduciary capacity money

belonging to the estate of S., deceased, to grantor at the time the deeds were

which his widow and children were entitl. executed.

ed: that on an accounting it was found In a case which involves an in- that he was indebted to her as guardian and quiry as to whether the act of a

next of kin as before stated, and that the

said moneys, of which plaintiff's share was person was induced by fraud or

$750, were received and retained by said duress, his subsequent declara

defendant as, attorney of said widow and tions are inadmissible to establish children ; and they were received in the the point in issue, because they

fiduciary capacity aforesaid, and that de

fendant had refused to pay the same and might result from a changed pur

had converted it to his own use. Held, pose, or from external motives

That these allegations merely disclose a operating on an intelligent mind; cause of action ex contractu, and not one in a case which involves an inquiry

for tort. into the sanity or mental capacity

This action was brought by of a person doing an act, subse plaintiff in his own name by his qnent declarations are admissible, guardian ad litem against defen. because they relate to the involun. dant, an attorney and counselor tary state or condition of his mind. at law, to recover the share of 11 N. Y., 157.

plaintiff, an infant, in certain Judgment of General Term, af- moneys held by defendant. It firming judgment for plaintiffs, appeared that on January 2, 1873, reversed and new trial granted. defendant, who had been acting Opinion by Danforth, J. All

All as attorney for plaintiff's mother, concur, except Ruger, Ch. J., dis- who was administratrix of the essenting

tate of her decease! husband, gave her a receipt stating that as

general guardian of three infants INFANTS. PLEADING. there was due her $1,500 and as

next of kin of two deceased childN. Y. COURT OF APPEALS.

ren $1,000, “payable according to Segelken, by guardian, respt., a decree of the surrogate of the v. Meyer, applt.

county of New York, interest to

be paid on the money” semiannuDecided Jan. 22, 1884.

ally. The decree directed that

the shares of the children should An action to recover money belonging to an infant may be properly brought by the in. be paid to their mother as general Vol. 18-No, 18b.

19 Judgment of

guardian. The mother died in plaintiff, but that defendant neg1876 and one K was appointed lected and refused to pay it to general guardian in 1877 and sub- plaintiff and had converted the sequently appointed guardian ad same to his own use. litem in this action. It was claim- Held, That these allegations ed that this action should have disclose merely a cause of action been brought by the general guar for money had and received by an dian in his own name as such. agent or attorney in a fiduciary

Almet F. Jenks, for applt. capacity, which was the subject of

Whitehead H. Van Wyck, for an accounting, and that he had negrespt.

lected and refused to pay over on Held, Untenable; that the action demand the balance found due. was properly brought by guardian This is a cause of action ex conad litem, 10 Paige, 235, 239; Code tractu. 61 N. Y. 583; 42 id. 83. of Civil Proc. $ 468, and a good Proof that defendant has received cause of action was shown for one money to which plaintiff is entitthird of the $1,500 in plaintiff's led is sufficient to sustain the favor; that while as next of kin action, and the allegation that simply plaintiff could not ordin- defendant received the money in a arily sue to recover his share of fiduciary capacity is not essential the personal property of the de. to entitle plaintiff to recover. ceased sisters, 13 Wend. 453; 19

General Term, id. 306, yet under certain circum- affirming judgment for plaintiff, stances such an action could be affirmed. maintained without the interven- Opinion by Rapallo, J. All tion of an administrator. 7 Wend. 354.

The complaint alleged that de- GOVERNMENT RAILROAD fendant was employed as attorney

DIRECTORS. and counsel of plaintiff's mother N.Y. SUPREME Court. GENERAL and her children, and while so em

TERM. FIRST DEPT. loyed received in a fiduciary capacity moneys belonging to the estate

Francis B. Brewer, respt., v.

The Union Pacific RR Co., of plaintiff's father to which his widow and children were entitled; applt. that on Jan. 2, 1872, defendant

Decided Jan. 25, 1884. had an accounting with the widow In the Act of Congress of July 1st, 1862, and he was found to be indebted creating the Union Pacific Railroad Company to her as guardian and next of

and granting to it lands, provision was made kin as set forth in his receipt ; rectors by the President, which number was

for the appoiutment of two Government dithat that money was received and subsequently increased to five, and it was retained by defendant as the at- provided that they should be paid their travtorney, counsel and proctor of eling expenses and reasonable compensation

for their services. By an Act of July 27th, said widow and children, and

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

concur.

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