does not give such unlimited and unbounded authority as would include all and every object which the testator himself might select in the free exercise of his own will, discretion and judgment. There must be some limit to the testator's power to dispose of his estate. sum of $150,000 to and among such | jects entitled to consideration in incorporated societies organized the distribution of his estate, it under the laws of the State of New York or the state of Maryland, having lawful authority to receive and hold funds upon permanent trust for charitable or educational uses, as my said executors, the survivors or survivor of them, shall elect for that purpose, and in such several sums, not exceeding in any case the amount that such incorporated body is empowered by law to take and hold upon the uses aforesaid, as they, my executors, the survivors or survivor of them, shall determine. And I further direct that the selection and distribution aforesaid be made and fully completed within the lifetime of the longer liver of the two persons lastly named in the fourteenth clause of this, my will, as my executors; and it is my expectation that the same shall be completed at any rate before the expiration of three years after my decease." The testator died without having executed any codicil to his will. The plaintiff P. and defendant were two last named executors. Edward H. Hawke, for applt. Duncan Smith, for respts. Held, That the provision made was void by reason of indefiniteness and uncertainty in failing to The executors named are mere naked trustees with authority to distribute in their discretion. No object being designated there is no imperative duty imposed upon them and a court of equity could not enforce a performance of the trust. Until a selection by the trustees the beneficiaries would have no such interest as would give them a standing to compel an enforcement of the bequest. Where a gift to a charitable use is so indefinite as to be incapable of being executed by a judicial decree it must fail. 8 N. Y., 526. Power v. Cassidy, 79 N. Y., 602, distinguished. Judgment of General Term, affirming judgment establishing the validity of the tenth clause of the will, reversed. Opinion by Miller, J. All con cur. ARREST. COSTS. designate any particular institu- N. Y. SUPREME COURT. tions or any class of institutions which were to be the recipients of his bounty. While the law in many instances sanctions the right of a testator to confer upon his executors or trustees the power of selecting the ob GENERAL TERM. FIRST DEPT. Stephen Tunstall, respt., V. Walter H. Winton, applt. Decided Jan. 25, 1884. When a deposit is made in lieu of an under taking on an order of arrest, and the order of arrest is finally vacated, the balance of such deposit, after the payment of defendant's costs of procuring such vacation, will be ordered to be paid over to plaintiff, on his motion for that purpose, if the defendant, in opposition to such motion, does not claim that, in addition to his costs, he has suffered other damages by reason of the order of arrest. Appeal from order granting moving party to show that there were no damages, or at least to assert that fact in his moving papers, so as to put it in issue and give defendant an opportunity to contradict it. UNDERTAKING ON APPEAL. plaintiff's motion to withdraw N. Y. SUPREME COURT. GENERAL from the County Clerk of New York county the balance of $250, deposited by plaintiff in lieu of the usual undertaking on an order of arrest, remaining after paying the costs recovered by defendant in procuring the final vacation of such order of arrest. The motion was resisted by defendant, but it was not claimed on his behalf that he had suffered any other damages besides his costs by reason of the order of arrest. Benjamin F. Sawyer, for applt. Edward P. Wilder, for respt. Held, That, since no damages other than his costs were claimed by defendant to have been occasioned by the arrest, there were no charges affecting the balance after deducting the costs allowed to defendant on vacating the order of arrest, and such balance was, therefore, rightly claimed plaintiff. by Order affirmed. Opinions by Brady and Daniels, JJ.; Davis, P. J., dissents on the ground that, since the condition of the deposit was the payment of all costs and damages defendant should sustain, it must appear that he was entitled to no damages, and that it was the duty of the Vol. 18-No. 22a. TERM. FIRST DEPT. David M. Hollister, applt., v. Charles McNeil, respt. Decided Feb. 1, 1884. An undertaking, given to stay execution on appeal from a judgment, by which the sureties undertake "that the appellant will pay all costs and damages which may be awarded against him on said appeal, not exceeding $500, and that if the judgment appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay the sum recovered or directed to be paid by the affirmance, or the part thereof as to which it is affirmed," does not comply with § 1327 of the Code of Civ. Pro. and will not be approved. Appeal from an order of Special Term, approving an undertaking given by defendant to stay an execution on appeal from a judgment. The undertaking was in the following form: * * * "We do, jointly and severally undertake that the appellant will pay all costs and damages which may be awarded against him on said appeal, not exceeding $500, and * if the judgment appealed from, or any part thereof is affirmed, or the appeal is dismissed, the appellant will pay the sum recovered, or directed to be paid by the affirmance, or the part thereof as to which it is affirmed." Plaintiff excepted to the form of this undertaking, claiming that in order to comply with § 1327 of the Code of Civ. Pro. the words "by the judgment or order" should be substituted for "by the affirmance. Ira Shafer, for applt. John J. Armstrong, for respt. Held, That the objection to the undertaking was well taken. The statute as to the effect of the undertaking is undoubtedly mandatory. It cannot be disregarded. There is a wide difference between an obligation to pay a sum which shall be directed to be paid by the judgment or order appealed from, and that which is to be paid by the affirmance of a judgment on appeal by the appellate court. Order reversed, and defendant ordered to execute a new undertaking in proper form within ten days. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concurred. COMMITMENT. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. In re petition for a habeas corpus on behalf of Nicholas Roach. · Decided Feb. 1, 1884. A commitment to the House of Refuge for the Reformation of Juvenile Delinquents which commits to that institution "Nicholas Roach, aged fourteen years," contains a sufficient statement of the age of the person so committed and shows sufficiently that he is under the age of sixteen years as required by statute. Appeal from order discharging relator from the custody of The House of Refuge for the Refor mation of Juvenile Delinquents. Nicholas Roach was committed to the said institution for vagrancy, &c. The language of the commitment was as follows: "To the Policemen of the City of New York, &c... "You are commanded to take and convey to the House of Refuge * * * the body of Nicholas Roach, aged fourteen years, &c. * * A writ of habeas corpus and certiorari was procured to inquire into the cause of detention, and upon the hearing thereon the Court discharged relator on the ground that the commitment did not show the child's age, since the statement that he was "aged fourteen years," without words of limitation, such as "and no more," did not show that he was under the age of sixteen years, as was necessary in order to commit him to the House of Refuge. Penal Code, 291; Laws of 1882, Chap. 410, 1595. George F. Murray, for applt. Held, Error; that the commitment stated that he was aged fourteen years, and in the absence of anything tending to discredit the accuracy of this statement it should be deemed correct, and it established the fact that the relat or was liable to be arrested and committed to the House of Refuge under $291, 292, of the Penal Code. Order reversed and relator recommitted to custody. Opinion by Daniels, J.; Brady, J., concurs. DISORDERLY PERSONS. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. In re petition for a habeas corpus on behalf of Mary Riley. Decided Feb. 1, 1884. Section 5, Chap. 172, Laws of 1865, giving authority to a magistrate to commit any children under the age of sixteen years deserting their homes without good and sufficient cause, or keeping company with dissolute or vicious persons, against the lawful demands of their fathers, moihers, &c., to the House of Refuge in the City of New York, is not inconsistent with any of the provisions of the Code of Criminal Procedure or of the Penal Code, and consequently is not repealed thereby. Appeal from order discharging Mary Riley from the custody of the Superintendent of the House of Refuge. Mary Riley was committed by a magistrate to the House of Refuge in the City of New York as a disorderly child, having deserted her home without good and sufficient cause and kept company with dissolute and vicious persons against the lawful commands of her parents. It appeared from the commitment that she was of the age of fifteen years, and, habeas corpus proceedings having been instituted in her behalf she was discharged, because it was supposed that the right to commit to the House of Refuge was limited. by 291 of the Code of Criminal Procedure to females not over the age of fourteen years. George F. Murray, for applt. A. H. Hummel, for respt. Held, That it was evident from the language of the commitment that the relator was convicted and committed under Chap. 172, Laws of 1865, by the fifth section of which authority was given to the magistrate before whom the proceedings were instituted and carried on to commit any children under the age of sixteen years deserting their homes without good and sufficient cause, or keeping company with dissolute or vicious persons against the lawful commands of their parents, to the House of Refuge in the City of New York. That neither the Code of Criminal Procedure nor the Penal Code in any manner provided for this particular class of cases, and the law of 1865, supra, therefore, was not inconsistent with the provisions of said Codes, and was not repealed by them, Code Crim. Pro., § 726; Penal Code, § 724, and, consequently, was still in full force and effect. Order reversed and relator again committed to custody. Opinion by Daniels, J.; Brady, J., concurs. CORPORATIONS. N. Y. COURT OF APPEALS. Decided March 18, 1884. A manufacturing corporation increased its capital without complying with the provisions of law in relation to publishing notice of the meeting or filing certificate. the amount of provable claims pro The increased stock was issued though rata against both classes of stock never fully paid in, and the holders thereof shared the dividends and acted as holders of legal stock. Five years later a certificate was filed stating the capital at the amount as increased and that it was actually paid in. Held, That the certificate was sufficient to exonorate the holders of the original stock but was not conclusive as to creditors that the increased stock had been paid in; that the holders of such stock were estopped from setting up the informalities in its issue and that the debts provable under $24 of the act of 1848 should be assessed against the holders of the increased stoek only. In 1868 the R. Iron Co. was organized with a capital of $200,000, which was paid in, but no certificate thereof was recorded. In 1869 the capital was increased to $300,000 by a vote of two-thirds of the original stockholders at a stockholders' meeting. No notice of this meeting was advertised as required (Laws 1848, chap. 40, § 21), nor was any certificate of its proceedings made or filed as required (§ 22), but all the increased stock was issued although never fully paid in. The increased stock shared in the dividends and the holders of it voted and were, in every respect, treated and acted as the holders of legal stock. In 1873 a certificate was made and filed, stating the capital to be $300,000 and that it was actually paid in. In 1877 the company failed and a receiver was appointed. debts amounted to about $300,000, of which about $134,000 were provable under § 24. This action was brought by one of the creditors, in behalf of all against the stockholders, and a recovery was had in favor of the creditors assessing The holders, which was affirmed by the General Term. J. B. Perkins, Theodore Bacon and J. Van Vorhis, for applts. Edward C. James, for respt. Held, That the assessment should have been made against the holders of the increased stock only; that the certificate, although stating the amount at $300,000, was sufficient to exonerate the holders. of the $200,000 of original stock, which had all been paid in, but was not conclusive upon the creditors that the increased stock had been paid in and that the holders of the increased stock were estopped from setting up the informalities in the issue of said stock as against the creditors. Judgment of General Term, affirming judgment for plaintiff, reversed, and new trial granted. Opinion by Finch, J.; Rapallo, Miller and Earl, JJ., concur; Ruger, Ch. J., and Andrews, J., dissent, holding that defendants were liable on both the original and increased stock; Danforth, J., taking no part. PROBATE. REVOCATION. N. Y. COURT OF APPEALS. In re probate of will of Gouraud, dec'd. Decided March 11, 1884. The Surrogate cannot refuse to hear allega tions filed for a revocation of probate on the ground that they are substantially those filed against the original probate. The mere filing of allegations against the pro |