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An independent voyage undertaken after a continued until the tug took her vessel has left the port of her departure in departure. On that day a carpenpursuit of the insured voyage without the intention of returning causes a forfeiture ter, specially hired for the voyage, of the insurance.

went on board. He then comPreparations for the voyage from Bermuda to menced keeping the log, and conNew York were begun June 30. On July tinued to do so until the loss 2 and again on the 3d, after receiving occurred. On June 30 carpenters clearance papers, the tug insured towed vessels to sea, and on the latter occasion

were at work on the tug fitting her she did not return to her berth, but went for the Ocean voyage.

These to a coaling station and thence proceeded preparations were continued on on her voyage and was lost. Held, That July 1st and on July 2ů the crew the policy attached at the date preparations for the voyage were begun, and that the trips

was shipped, and the captain enmade July 2 and 3 were such deviations as tered in the log the fact of his vitiated the insurance.

taking charge of the vessel. He Reversing S. C., 16 W. Dig., 310.

was on that day paid the price This was an action upon a policy agreed upon for his services for of marine insurance upon a steam the voyage by plaintiffs' agent. tug “lost or not lost at and from On July 3 preparations for the Bermuda to New York," to sail voyage were continued, provisions during July, 1879. The policy and water taken on board and provided that the adventure “shall clearance papers taken out from continue and endure until the said the Custom House at St. Georges vessel be safely arrived at, as afore. for a voyage from that place to said, &c., and until she be moored New York.

New York. On July 2d the tug twenty-four hours in good safety. left her berth at St. Georges and And it shall and may be lawful steamed to Hamilton,about twenty for the said vessel, in her voyage, miles, and towed a schooner from to proceed and sail to, touch and there back to St. Georges, and from stay at, any ports or places, if there towed her out to sea about thereunto obliged by stress of five miles, and after casting her weather or other unavoidable ac- off the tug returned to her berth at cident, without prejudice to this St. Georges and continued her insurance." At the time of the preparations for her voyage to New insurance the tug was lying at St. York. On July 3d, after receiving Georges, in the Bermudas, and her clearance papers from the sailing thence on July 4th, became Custom House at St. Georges, the water logged in consequence of a tng towed another schooner to sea leak, and sank in the open sea and then returned to the interior about 9 P. M. of July 5th, at a waters of the Bermudas, and prodistance of about seventy miles ceeded to the port of Hamilton. from the island, being on her voy. From that port, after taking on age to New York. It appeared coal and a life boat, she started that active preparations for the for New York. voyage commenced at the Port of No provision was made in the St. Georges on June 30, 1879, and policy for the employment of the

tug while she remained at St. The mere submission to arbitration of the subGeorges.

ject matter of a pending action is a disconSamuel Hand, Calvin Frost and

tinuance of the action, even though the

arbitrators have not consented to act. T. Cleveland, for applt.

Affirming S. C., 17 W. Dig., 568.
Henry Heath, for respts.
Held, That the insurance attached

After issue, while the above en

titled action was pending and on at the date preparations for the voyage were begun and the trips der the advice of certain persons

the trial calendar, the parties unmade by the tug on the 2d and 3d of July were such deviations from styled a committee executed an

“ New the voyage and perils insured agreement in these words:


1883. April 27,

Mr. against as vitiated the insurance. A vessel which leaves the port Mr. Solly named E. V. Connett,

McNulty named Sam'l Shethar; of her departure in pursuit of the insured voyage, without the inten- the committee named H. M. Sil

vermån. tion of returning, has conimenced her voyage in such a sense as to be

We, the undersigned, hereby protected by a policy of insurance agree to leave our differences to covering her from perils during the above named parties, Shethar,

Connett and Silverman, as arbitra. such voyage, and an independent

tors, whose decision shall be final." voyage undertaken after such a departure causes a forfeiture of Afterwards plaintiff's counsel had her insurance. 71 N. Y., 454;

the case set down for trial for May Phillips on Insurance, SS 925, 932, 16, 1883. On May 10th defendant, 933; 3 Kent's Com., 312; 26 N. Y.,

on an affidavit showing the above 402; 48 id., 572; 2 M. & S., 106;

facts, obtained an order from a 30 Ala., N. S., 167; 31 id., 711; Judge of the Supreme Court re3 Johns. Cas., 14 ; 3 Mass., 347;

quiring the plaintiff to show cause

. 1 Cain, 75; 4 Esp., 174; 1 Mason, why the action should not be dis

continued. In answer to the order 128; 2 Campb., 475 ; 3 Jolins., 352; 4 Ad. & El., 24; 9 Jolins., 192; 13 plaintiff's affidavit showed that Mass., 68.

since signing the paper no action Judgment of General Term, af

had been taken by either of the firming judgment for plaintiff, re

persons named

arbitrators, versed, and new trial ordered. "they having been selected withOpinion by Ruger, Ch. J. All

out their knowledge or previous

consent;" that one of them, Mr. concur.

Shether, absolutely refused to act.

The motion was granted.

Samuel C. Mount, for applt.

Samuel Hand, for respt. N. Y. COURT OF APPEALS.

Held, No error; mere submission McNulty, applt., Solly, to arbitration is a discontinuance respt.

of a suit. 18 Johns., 22; 6 Cow., Decided March 4, 1884.

399; 2 Hill, 387; 11 Paige, 529, 533;


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4 Barb., 541; 66 id., 209; 1 Wend., was received in evidence. Held, Error ; 314. This is so although the ar

that the memorandum was not primary

evidence to charge defendant and was not bitrators have not taken or con

a writing the contents of which, if lost, sented to take upon themselves could be proved by secondary evidence. the burden of the submission, or Reversing S. C., 17 W. Dig., 22. done any act under it. 2 Wend., This action was commenced to 505; 22 How. Pr., 342.

recover $8,000 alleged to have been Defendant was entitled to the embezzled by defendant while emrelief sought by motion. 15 Wend., ployed by P., plaintiff's intestate, 99; 2 Seld., 44.

to take charge of a lumber yard Elliott v. Quimby, 13 N. H., 183; from August, 1873, to November, Chapman v. Secomb, 36 Me., 102, 1879. To prove that defendant had disapproved.

not entered in the cash book all When the submission is the the moneys received by him from voluntary act of the parties, in sales of lumber, plaintiff called one words chosen by themselves, the L., who testified that in July, court is not at liberty to add 1879, he was employed by P. in anything which requires their his lumber yard, and kept on a consent or look beyond the paper loose piece of writing paper an acto discover their intent.

count of moneys received by deThe validity of the submission fendant from cash sales of lumber here did not depend upon the pro- from the 1st to the 18th of that visions of section 2366, but upon month ; that the entries were made the common law.

each day continuously, except Order of General Term, affirming Sunday, and were correct ; that he order discontinuing action, af- gave the paper to P., and that defirmed.

fendant never saw it. P. testified Opinion by Danforth, J. All that he received the memorandum concur, except Rapallo, J., dis- from L. and had lost it, but that senting.

he copied the fignres correctly into

a memorandum book (which he EVIDENCE.

produced), and that the entries

had not been altered. These enN. Y. COURT OF APPEALS,

tries were not authenticated by L. Peck, admrx., respt., v. Valen. The entries on the memorandum tine, applt.

book were then offered and re

ceived in evidence under defend. Decided Feb. 5, 1884.

ants objection. L. was not sworn In an action to recover for moneys embez

as to the contents of the memorzled an employee of plaintiff testified that

andum. he kept a memorandum from day to day of moneys received by defendant from cash J. T. Marean, for applt. sales and gave the same to plaintiff, and W. T. B. Milliken, for respt. that defendant never saw it. Plaintiff

Held, That the entries were not testified that he copied the figures of the

the memorandum correctly in a book and that competent evidence; that he had lost the memorandum, and the book original memorandum was not a

Vol, 18.--No. 19b.

writing the contents of which, if given to her husband all her real lost, could be proved by secondary estate should be converted into evidence; that the original mem- money for the purpose of distribuorandum of L. was not original or tion. She directed that the porprimary evidence to charge the tion of her estate set apart for his defendant; it was not a writing use during life, after deducting inter partes, or one creating rights certain legacies, should be divided or of which rights could be predi- into two equal shares, one of which cated. 22 N. Y., 462; Stephens should be sub-divided into seven on Evi., Art. 136 ; 16 Wend., 600; shares, and one of these shares 17 id., 238.

should go to D. and his heirs, and Judgment of General Term, af- the others to persons named, an firming judgment for plaintiff, re- the will provides “the heirs of versed, and new trial ordered. any or either of the foregoing per

Opinion by Andrews, J. All sons who way die before my said concur.

husband to take the sliare which

the person or persons so dying WILLS.

would have taken if living." Her

husband survived the testatrix, N. Y. COURT OF APPEALS. and died intestate, and leaving no

known heirs. D. died during the Tillman, exr., v. Davis et al., lifetime of the husband, in Illinois. applts., et al., respts.

He left a widow, but no children Decided Feb. 8, 1884.

or parents, and no blood relations

except the children and grand.. The will of G. directed that on the death of her husband her estate should be divided

children of a deceased sister. By into equal shares, one of them to go to D.

his will D. left to his wife and his heirs, and the others to persons all his interest in the property named ; the heirs of any who died before bequeathed to him by the will of the husband to take the share which the one

G. Under the laws of Illinois, if so dying would have taken. D. died before the husband, leaving no blood rela. D. had died intestate his widow tions except descendants of a deceased would have been entitled to all his sister, and by his will left to his wife all personal estate, and she now his interest under the will of G. Held,

claims D.'s interest under the will That it was the intention of G. that the heirs of D. should take by substitution in of G., either under his will, or as case he died before her husband, and that his heir under the will of G. D. could convey nothing to bis wife by his Duncan Smith, for applts. will, and that the word heirs in the will did

John Clinton Gray, for respts. not include the widow of D. The word “heirs ” when applied to personal

Held, That G. intended, in case property has no broader signification than D. died before her husband, that “next of kin,” and in the absence of any- his heirs should take by substituthing showing a different intention must

tion under the will, hence D. could be held to mean relatives in blood.

convey nothing to his wife by his The will of G. provided that at will; that the word heirs, as used the termination of the life estate in the will, means persons of the

same blood as the testatrix, next that age. lleld, That the share of the elder

passed to her heirs at law and that of the of kin, and that it would not in

younger to the brothers and sisters of tesclude the widow of D. 3 Edw.

tatrix. Ch., 251; Hoff. Ch., 202; 43 Barb., 148 ; 67 N. Y., 387; 69 id., 36; 72 R., defendant's testatrix, beid., 312.

queathed to her husband $5,000, The word heirs when applied to and the use and benefit of all her personal estate has no broader or property until her daughter A. more comprehensive signification arrived at the age of twenty-one than the words next of kin.

years. She then directed that the In Stevens' Trusts, L. R., 5 Eq. balance of her estate, after deductCas., 110; Withy v. Mangles, 10 ing the legacy of $5,000, be divided Cl. & Fin., 215, distinguished. between her two daughters, A. and

The words "heirs” and “next B., share and share alike, each to of kin” may be used in a will income into full possession of her association with other words and share at the age of twenty-one under such circumstances as to years, her husband to have the show an intention to include others use of each of the shares bethan blood relatives, but, in the queathed to the two daughters absence of anything showing a until each arrived at the age of different intention, they must be twenty-one. In case of the death held to mean what they primarily of either of said daughters, "the import, relatives in blood.

one living shall receive the share Judgment of General Term, af of the one deceased, but in the firming judgment for respondents, order of their ages as above deaffirmed.

scribed, and in case of the death Opinion by Earl, J. All concur. of my two daughters before they

arrive at the age of twenty-one

years, I direct that their respectWILLS.

ive shares shall be divided equally

between my brothers and sisters, N. Y. COURT OF APPEALS.

or their immediate heirs." Watts et al., respts., v. Ronald, A., the older daughter, arrived at exr., applt.

the age of twenty-one and died in

testate and unmarried. After the Decided Feb. 26, 1884.

death of A., B., the younger Testatrix bequeathed her property to her two daughter, died before she had ar

daughters in equal parts, each to come in rived at the age of twenty-one. full possession when she was twenty-one,

C. D. Murray, for applt. and her husband to have the use thereof

Austin Smith, for respt. until that time; in case of the death of either, the other to receive her share, and

Held, That the share of A. upon in case of the death of both before reach her death passed to her heirs at ing twenty-one the shares to be divided law, and the share of B., upon between testatrix' brothers and sisters.

her death before arriving at the The older one died after she became twenty-one and thereafter the other died under age of twenty-one, passed to the

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