Held, Error; that the guaranty being of payment and not of collection, plaintiff was not bound to take proceedings to foreclose unless required to do so by the guarantors; that plaintiff was not at liberty to do any affirmative act which would impair the security and deprive the guarantors of any benefit they might derive therefrom on payment of their guaranty, 28 N. Y., 271; 56 id., 494; that the mortgage assigned to plaintiff and the one assigned to A. were concurrent liens and on a sale thereof the proceeds were distributable pro rata on both mortgages; that plaintiff, by purchasing the decree on the foreclosure of the A. mortgage and causing the property to be sold and bidding it in for a nominal amount, in a proceeding in which defendants were not parties, and of which they did not have notice, leaving nothing to be credited on the guaranteed mortgage, she extinguished it. Plaintiff was under no obligation to purchase the decree in the suit brought by A. She extinguished the lien of the guaranteed mortgage as effectually as if she had taken a voluntary conveyance of the mortgaged premises, in which case the guarantors would have been discharged to the extent of the value of the premises. 3 Sandf. Ch., 135. The complaint in this action was founded solely upon the breach of the contract of guaranty. The assignment containing the guaranty sued upon contained also a covenant that the assigned mortgage was the first lien upon the mortgaged premises. It was admitted that prior to the time the assignment was executed the defendant M. E. H. owned another mortgage on the same premises which was a concurrent lien with the one assigned one assigned to plaintiff. There was nothing to show that the defendant E. L. H. knew of this other mortgage or that plaintiff was ignorant of it. The court found as a conclusion of law that defendants were guilty of fraud in contracting their indebtedness to plaintiff. Held, Error; that the facts were not sufficient to sustain this conclusion. Judgment of General Term, affirming judgment for plaintiff, reversed and new trial ordered. Opinion by Rapallo, J. All concur, except Ruger, Ch. J., Earl and Danforth, JJ., dissenting. EVIDENCE. N. Y. COURT OF APPEALS. Waldele, admr., respt., v. The N. Y. C. & H. R. RR. Co., applt. Decided March 11, 1884. Declarations, to become a part of the res gesta, must accompany the act they are supposed to characterize and must so harmonize as to be obviously one transaction. Where deceased was found upon defendant's track, bruised and mangled, Held, That declarations made by him thirty minutes after the accident were not a part of the res gesta and were not competent in an action to recover damage for his death. Reversing S. C., 16 W. Dig., 186. This action was brought to recover damages for the negligent killing of W, plaintiff's intestate. | ligence on the part of the defend ly after the passage of the train the groans of W. were heard and he was found lying upon the outer track of the railroad about fifteen feet from the sidewalk, badly bruised and mangled. He was removed to the sidewalk and afterwards to the hospital, where he died in about three hours. After W. was removed to the sidewalk his brother, also a deaf mute, was sent for, and about thirty minutes after the accident he there obtained from him, by signs, certain declarations. He was produced by plain tiff as a witness and was asked, "What did he tell you?" To this defendant's counsel objected, on the grounds: (1.) "That the declarations of the deceased are incompetent. (2.) That it is no part of the res gesta. (3.) That whatever the conversation may have been, it took place at a time considerably subsequent to the time of the injury, at a place other than where the injury occurred. (4.) That the evidence is inadmissible for any purpose." The court overruled the objection and defendant's counsel excepted. The counsel further objected to the reception of the evidence upon the ground that the declarations of the deceased are not competent for the purpose of establishing either neg ant or absence of negligence on the part of the deceased." These objections were also overruled and an exception taken. The witness then answered: "John said he got hit; John said there was a long train; that he stood waiting for it to go, and an engine followed and struck him." Upon a former trial the same evidence had been given. Edward Harris, for applt. William S. Oliver, for respt. Held, That the reception of this evidence was error; it was not competent. The declarations of the deceased cannot be treated as part of the res gesta. The res gesta, speaking generally, was the accident. W.'s declarations were no part of that, not having been made at the same time, or so nearly contemporaneous with it as to characterize it or throw any light upon it. 9 Cush., 36; 2 Ala., 136; 41 Conn., 55; 55 Penn. St., 396; 10 N. Y., 207; 17 id., 131; 51 id., 100, 295; 56 id., 95. Declarations to become a part of the res gestæ must accompany the act they are supposed to characterize, and must so harmonize as to be obviously one transaction. When they are merely narratives of past occurrences they are incompetent. 56 N. Y., 273; 78 id., 518. Swift v. Mass. Mutual L. Ins. Co., 63 N. Y.. 186; Schnicker v. People, 88 id., 192, distinguished. Judgment of General Term, affirming judgment on verdict for plaintiff, reversed and new trial ordered. cur, except Rapallo, J., not voting, and Danforth, J., not sitting. WILLS. CHARITABLE BEQUESTS. N. Y. COURT OF APPEALS. Hollis v. Hollis et al. Decided Feb. 26, 1884. Opinion by Earl, J. All con- | Madison, N. J. Another sum of $20,000 he directed his executors to invest for the benefit of I. and on her death to pay it over to the Weslyan University, at Middletown, Conn. All the remainder of his estate he he directed his executrix to invest and keep invested and pay over the income to his wife during her life and at her death to divide said residue equally between the Drew Theological Seminary and the Weslyan Seminary. The former was a scientific and educational corporation chartered under the laws of New Jersey. The latter was a similar corporation chartered under the laws of Connecticut. Both were authorized to take bequests, and the laws of New Jersey and Connecticut impose no limit as to the amount of The prohibition in the last clause of § 6, Chap. 319, Laws of 1848, has exclusive reference to devises and bequests made to corporations formed under said act and cannot be enforced against foreign corporations which are authorized by their char. ters to take by devise or bequest free from a similar limitation in the state of their creation; but the provision of Chap. 360, Laws of 1860, limiting the amount which may be bequeathed, applies to such corporations. To ascertain whether a testator has bequeathed to such corporation more than one-half his estate after paying debts, his whole estate must be treated as if converted into money and its value ascertained by help of annuity tables and such other means as are available, and if the money value of the portion given is not more than one-half the statute is not violated. On Feb. 7, 1881, H. died, leaving a will executed less than two months prior to his death. His widow and father survived him and his real and personal property over all incumbrances and debts amounted to $118,000. After certain specific legacies he directed a conversion of all the residue of his estate into money, and after certain bequests to various persons he directed his executors to invest and keep invested $20,000 during his father's life, and to pay over to him the income thereof, and upon his death to pay the principal to the Drew Theological Seminary of bequests or as to the time within which they must be made as provided by the laws of this state. Josiah T. Marean, for applts. Walter L. Livingston, for respts. Held, That Section 6, of Chap. 319, of the Laws of 1848 (an act for the incorporation of benevolent, charitable, scientific and missionary societies), which provides that any corporation formed under said act may take by devise or bequest when the clear annual income does not exceed $10,000, providing no person leaving a wife, child or parent shall devise or bequeath to such institution more than one-fourth of his or her estate after payment of debts, and such devise shall be valid to the extent of such one-fourth if the will was executed at least two months before the death of the testator, has exclusive reference to corpo rations formed under said act and the prohibition in the last clause is simply aimed at devises and bequests made to such corporations. 43 N. Y., 424; 59 id., 434; 79 id., 327; 92 id., 433. forcement of the limitation in the act of 1848, that a will containing a bequest to a corporation formed under said act must be executed at least two months before the death of the testator, against domestic corporations not expressly subjected to it by statute, and hence it cannot be enforced against foreign corporations which are authorized by their charters to take property by devise or bequest free from a similar limitation in the state of their creation. But, Held, That the provision of the act of 1860, limiting the amount to one-half the testator's estate, did apply. The limitation to a bequest or devise yielding an income of $10,000 in the act of 1848 was increased to $50,000 by Chapter 641, of the Laws of 1881, and a testator was permitted to devise or bequeath to a corporation formed under the act of 1848 one-half of his estate instead of one-fourth. The limitations of the act of 1848 To ascertain whether a testator were not made applicable to the has devised or bequeathed to a numerous corporations of a simi- corporation, in trust or otherwise, lar character which had been more than one-half of his estate formed under special charters prior after paying his debts, his whole to 1848, and have never been ap- estate must be treated as conplied to strictly religious corpora- verted into money at his death, tions formed under other acts. and if the money value of the porSince 1848 many such corporations tion given is not more than onehave been formed by special char- half the statute, Laws of 1860, ters to which the two months lim- Chap. 360, has not been violated. itation was not made applicable. | The value of the estate must be In 1860 an act was passed, (Chap. ascertained by the help of annuity 360) which made applicable to tables and such other means as all corporations of the class to are in any case available. In this which the legatees here belong the case such sums as would purchase provision that no testator could de- for the annuitants the annuities vise or bequeath more than one- to which they are entitled must be half of his estate to such corpora- taken out of the estate, and what tions. remains would be the value which is given to the two corporations. If the computation of value be made in this way the testator does not bequeath more than one-half of his estate to the corporations mentioned in his will. Held, That, in view of the legislation upon this subject and the decisions, it cannot be claimed that there is a public policy established by statute, law or judicial decisions, or general consent which would authorize the enVol. 18.-No. 23b. Judgment of General Term, af firming judgment of Special Term adjudging the bequests of the two corporations invalid, reversed, and judgment of Special Term modified so as to conform to opinion. Opinion by Earl, J. All concur, except Ruger, Ch. J., not voting. CONSTITUTIONAL LAW. STREETS. N. Y. COURT OF APPEALS. In re application of Woolsey et al., exrs. Decided Feb. 26, 1884. Chap. 40, Laws of 1878, and the acts amendatory thereof, are not unconstitutional in providing for the appointment of commissioners, in place of the Common Council, to act in opening Flushing avenue. Section 18, Art. 3 of the Constitution does not apply to streets and avenues of cities, but only to roads and highways. Where, upon appeal from an order in proceedings to take lands for a street, it appears that some of the appellants and others similarly situated have received the awards made to them for their lands, it is error to set aside the proceeding. Acceptance of the award is a waiver of any right to object to the constitutionality of the act under which the proceeding is taken and an affirmance of the validity of the whole proceeding. One who is not assessed for the improvement cannot unite in a motion to vacate the proceeding. By Chapter 461, Laws of 1871, the charter of Long Island City was revised and a uniform system of street openings established and the highways put under the control of the Common Council as commissioners of highways. By Chapter 40, Laws of 1878, commissioners were appointed to widen Flushing avenue, who were clothed 66 with the powers given by the charter to the Common Council. This act was amended by Chapter 318 of the Laws of 1880, and by Chapter 326 of the Laws of 1881. By the act of 1881, commissioners were named and appointed to open, widen and improve Flushing avenue as stated in the act and as laid down on a map filed in the County Clerk's office. They were authorized to curb, pave, build sewers and plant shade trees. It was also provided that for the improvements authorized and directed the commissioners should have power to issue certificates of indebtedness in an amount not to exceed in the aggregate the sum of $150,000." The commissioners were also to certify to the commissioners of estimate and assessment the cost of the improvements, so that the same might be defrayed out of and with the proceeds of such assessment. The revised charter in regard to improving streets provides that upon the written petition of the owners of a majority in lineal feet of lands fronting on any street or avenue the Common Council shall give notice of hearing, and if they decide to open, widen, etc., they shall apply to the court for the appointment of com missioners of estimate and assessment, who upon being appointed are to proceed as prescribed by the charter. G. W. Cotterill, for applt. Frank E. Blackwell, for respt. Held, That the act of 1878 (Chap. 40), and the acts amending the same, were not unconsti |