An independent voyage undertaken after a vessel has left the port of her departure in pursuit of the insured voyage without the intention of returning causes a forfeiture of the insurance. Preparations for the voyage from Bermuda to New York were begun June 30. On July 2 and again on the 3d, after receiving clearance papers, the tug insured towed vessels to sea, and on the latter occasion she did not return to her berth, but went continued until the tug took her departure. On that day a carpenter, specially hired for the voyage, went on board. He then commenced keeping the log, and continued to do so until the loss occurred. On June 30 carpenters were at work on the tug fitting her for the ocean voyage. These to a coaling station and thence proceeded preparations were continued on on her voyage and was lost. Held, That the policy attached at the date preparations for the voyage were begun, and that the trips made July 2 and 3 were such deviations as vitiated the insurance. Reversing S. C., 16 W. Dig., 310. This was an action upon a policy of marine insurance upon a steam tug "lost or not lost at and from Bermuda to New York," to sail during July, 1879. The policy provided that the adventure "shall continue and endure until the said vessel be safely arrived at, as afore said, &c., and until she be moored twenty-four hours in good safety. And it shall and may be lawful for the said vessel, in her voyage, to proceed and sail to, touch and stay at, any ports or places, if thereunto obliged by stress of weather or other unavoidable accident, without prejudice to this insurance." At the time of the insurance the tug was lying at St. Georges, in the Bermudas, and sailing thence on July 4th, became water logged in consequence of a leak, and sank in the open sea about 9 P. M. of July 5th, at a distance of about seventy miles from the island, being on her voyage to New York. It appeared that active preparations for the voyage commenced at the Port of St. Georges on June 30, 1879, and He July 1st and on July 24 the crew was shipped, and the captain entered in the log the fact of his taking charge of the vessel. was on that day paid the price agreed upon for his services for the voyage by plaintiffs' agent. On July 3 preparations for the voyage were continued, provisions and water taken on board and clearance papers taken out from the Custom House at St. Georges for a voyage from that place to New York. On July 2d the tug left her berth at St. Georges and steamed to Hamilton, about twenty miles, and towed a schooner from there back to St. Georges, and from there towed her out to sea about five miles, and after casting her off the tug returned to her berth at St. Georges and continued her preparations for her voyage to New York. On July 3d, after receiving her clearance papers from the Custom House at St. Georges, the tug towed another schooner to sea and then returned to the interior waters of the Bermudas, and proceeded to the port of Hamilton. From that port, after taking on coal and a life boat, she started for New York. No provision was made in the policy for the employment of the tug while she remained at St. Georges. Samuel Hand, Calvin Frost and T. Cleveland, for applt. Henry Heath, for respts. Held, That the insurance attached at the date preparations for the voyage were begun and the trips made by the tug on the 2d and 3d of July were such deviations from the voyage and perils insured against as vitiated the insurance. A vessel which leaves the port of her departure in pursuit of the insured voyage, without the intention of returning, has commenced her voyage in such a sense as to be protected by a policy of insurance covering her from perils during such voyage, and an independent voyage undertaken after such a departure causes a forfeiture of her insurance. 71 N. Y., 454; Phillips on Insurance, §§ 925, 932, 933; 3 Kent's Com., 312; 26 N. Y., 402; 48 id., 572: 2 M. & S., 106; 30 Ala., N. S., 167; 31 id., 711; 3 Johns. Cas., 14; 3 Mass., 347 1 Cain, 75; 4 Esp., 174; 1 Mason, 128; 2 Campb., 475; 3 Johns., 352; 4 Ad. & El., 24; 9 Johns., 192; 13 The mere submission to arbitration of the subject matter of a pending action is a discontinuance of the action, even though the arbitrators have not consented to act. Affirming S. C., 17 W. Dig., 568. After issue, while the above entitled action was pending and on the trial calendar, the parties under the advice of certain persons der the advice of certain persons styled a committee executed an agreement in these words: * New York, April 27, 1883. Mr. Mr. Solly named E. V. Connett, McNulty named Sam'l Shethar; the committee named H. M. Sil vermián. We, the undersigned, hereby agree to leave our differences to Connett and Silverman, as arbitrathe above named parties, Shethar, tors, whose decision shall be final." Afterwards plaintiff's counsel had the case set down for trial for May 16, 1883. On May 10th defendant, on an affidavit showing the above facts, obtained an order from a Judge of the Supreme Court requiring the plaintiff to show cause why the action should not be dis continued. In answer to the order plaintiff's affidavit showed that since signing the paper no action had been taken by either of the as arbitrators, persons named "they having been selected without their knowledge or previous consent;" that one of them, Mr. Shether, absolutely refused to act. The motion was granted. Samuel C. Mount, for applt. Samuel Hand, for respt. Held, No error; mere submission to arbitration is a discontinuance of a suit. 18 Johns., 22; 6 Cow., 399; 2 Hill, 387; 11 Paige, 529, 533; 4 Barb., 541; 66 id., 209; 1 Wend., 314. This is so although the arbitrators have not taken or consented to take upon themselves the burden of the submission, or done any act under it. 2 Wend., 505; 22 How. Pr., 342. Defendant was entitled to the relief sought by motion. 15 Wend., 99; 2 Seld., 44. Elliott v. Quimby, 13 N. H., 183; Chapman v. Secomb, 36 Me., 102, disapproved. When the submission is is the the voluntary act of the parties, in words chosen by themselves, the court is not at liberty to add anything which requires their consent or look beyond the paper to discover their intent. The validity of the submission here did not depend upon the provisions of section 2366, but upon the common law. Order of General Term, affirming order discontinuing action, affirmed. Opinion by Danforth, J. All concur, except Rapallo, J., dissenting. EVIDENCE. N. Y. COURT OF APPEALS. Peck, admrx., respt., v. Valentine, applt. Decided Feb. 5, 1884. In an action to recover for moneys embezzled an employee of plaintiff testified that he kept a memorandum from day to day of moneys received by defendant from cash sales and gave the same to plaintiff, and that defendant never saw it. Plaintiff testified that he copied the figures of the memorandum correctly in a book and that he had lost the memorandum, and the book Vol. 18.-No. 19b. was received in evidence. Held, Error; that the memorandum was not primary evidence to charge defendant and was not a writing the contents of which, if lost, could be proved by secondary evidence. Reversing S. C., 17 W. Dig., 22. This action was commenced to recover $8,000 alleged to have been embezzled by defendant while employed by P., plaintiff's intestate, to take charge of a lumber yard from August, 1873, to November, 1879. To prove that defendant had not entered in the cash book all the moneys received by him from sales of lumber, plaintiff called one L., who testified that in July, 1879, he was employed by P. in his lumber yard, and kept on a loose piece of writing paper an account of moneys received by defendant from cash sales of lumber from the 1st to the 18th of that month; that the entries were made each day continuously, except Sunday, and were correct; that he gave the paper to P., and that defendant never saw it. P. testified that he received the memorandum from L. and had lost it, but that he copied the figures correctly into a memorandum book (which he produced), and that the entries. had not been altered. These entries were not authenticated by L. The entries on the memorandum book were then offered and received in evidence under defendants objection. L. was not sworn as to the contents of the memorandum. J. T. Marean, for applt. W. T. B. Milliken, for respt. Held, That the entries were not that competent evidence; the original memorandum was not a writing the contents of which, if lost, could be proved by secondary evidence; that the original memorandum of L. was not original or primary evidence to charge the defendant; it was not a writing inter partes, or one creating rights or of which rights could be predicated. 22 N. Y., 462; Stephens on Evi., Art. 136; 16 Wend., 600; 17 id., 238. Judgment of General Term, affirming judgment for plaintiff, reversed, and new trial ordered. Opinion by Andrews, J. concur. WILLS. N. Y. COURT OF APPEALS. All given to her husband all her real estate should be converted into money for the purpose of distribution. She directed that the portion of her estate set apart for his use during life, after deducting certain legacies, should be divided into two equal shares, one of which should be sub-divided into seven shares, and one of these shares should go to D. and his heirs, and the others to persons named, and the will provides "the heirs of any or either of the foregoing persons who may die before my said husband to take the share which the person or persons so dying would have taken if living." Her husband survived the testatrix, 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. Decided Feb. 8, 1884. The will of G. directed that on the death of her husband her estate should be divided into equal shares, one of them to go to D. and his heirs, and the others to persons named; the heirs of any who died before the husband to take the share which the one so dying would have taken. D. died before the husband, leaving no blood relations except descendants of a deceased sister, and by his will left to his wife all his interest under the will of G. Held, That it was the intention of G. that the heirs of D. should take by substitution in case he died before her husband, and that D. could convey nothing to his wife by his will, and that the word heirs in the will did not include the widow of D. The word heirs" when applied to personal property has no broader signification than "next of kin," and in the absence of any thing showing a different intention must be held to mean relatives in blood. The will of G. provided that at the termination of the life estate He left a widow, but no children or parents, and no blood relations except the children and grandchildren of a deceased sister. By his will D. left to his wife all his interest in the property bequeathed to him by the will of G. Under the laws of Illinois, if D. had died intestate his widow would have been entitled to all his personal estate, and she now claims D.'s interest under the will of G., either under his will, or as his heir under the will of G. Duncan Smith, for applts. John Clinton Gray, for respts. Held, That G. intended, in case D. died before her husband, that his heirs should take by substitution under the will, hence D. could convey nothing to his wife by his will; that the word heirs, as used in the will, means persons of the same blood as the testatrix, next of kin, and that it would not include the widow of D. 3 Edw. Ch., 251; Hoff. Ch., 202; 43 Barb., 148; 67 N. Y., 387; 69 id., 36; 72 id., 312. The word heirs when applied to personal estate has no broader or more comprehensive signification than the words next of kin. In Stevens' Trusts, L. R., 5 Eq. Cas., 110; Withy v. Mangles, 10 Cl. & Fin., 215, distinguished. The words "heirs" and "next of kin" may be used in a will in association with other words and under such circumstances as to show an intention to include others than blood relatives, but, in the absence of anything showing a different intention, they must be held to mean what they primarily import, relatives in blood. Judgment of General Term, affirming judgment for respondents, affirmed. Opinion by Earl, J. All concur. WILLS. N. Y. COURT OF APPEALS. Watts et al., respts., v. Ronald, exr., applt. Decided Feb. 26, 1884. Testatrix bequeathed her property to her two daughters in equal parts, each to come in full possession when she was twenty-one, and her husband to have the use thereof until that time; in case of the death of either, the other to receive her share, and in case of the death of both before reach ing twenty-one the shares to be divided between testatrix' brothers and sisters. The older one died after she became twenty-one and thereafter the other died under that age. Held, That the share of the elder passed to her heirs at law and that of the younger to the brothers and sisters of testatrix. R., defendant's testatrix, bequeathed to her husband $5,000, and the use and benefit of all her property until her daughter A. arrived at the age of twenty-one years. She then directed that the balance of her estate, after deducting the legacy of $5,000, be divided between her two daughters, A. and B., share and share alike, each to come into full possession of her share at the age of twenty-one years, her husband to have the use of each of the shares bequeathed to the two daughters until each arrived at the age of twenty-one. In case of the deathof either of said daughters, "the one living shall receive the share of the one deceased, but in the order of their ages as above described, and in case of the death of my two daughters before they arrive at the age of twenty-one years, I direct that their respective shares shall be divided equally between my brothers and sisters, or their immediate heirs." * * A., the older daughter, arrived at the age of twenty-one and died intestate and unmarried. After the death of A., B., the younger daughter, died before she had arrived at the age of twenty-one. C. D. Murray, for applt. Austin Smith, for respt. Held, That the share of A. upon her death passed to her heirs at law, and the share of B., upon her death before arriving at the age of twenty-one, passed to the |
