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McCormack agt. McCormack.

the will. In the first part of his will, the testator, after giving to his wife the dwelling-house therein mentioned, with certain personal property, declares that he gives to her an annuity of $8,000, to be paid to her in equal quarter yearly payments of $2,000 each during her natural life, the first payment to be inade in three months after my death, “and I hereby make the said annuity a charge on my real estate.” In the third clause of the will, he gives, devises and bequeaths “all my property of every kind (not herein before given to my wife) to my said trustees, and to the survivors and survivor of them, in trust, to receive the rents, profits and income thereof, during the lifetime of my wife, and until my youngest child shall have arrived at the age of twenty-one years, and to pay and apply the said rents, profits and income as follows:

"First. To pay the annuity herein-above given to my wife.”

" Secondly. To pay to each of my children when they shall respectively arrive at the age of twenty-one years, the sum of twenty thousand dollars."

Thirdly. When my youngest child shall arrive at the age of twenty one years, I direct my said trustees and the survivors and survivor of them, to pay and transfer to each of my six children, before named, the one equal sixth part of the property then held in trust, including any accumulations, except that in case my wife shall then be living, my said trustees shall then retain in their hands sufficient of the estate to enable them to provide for the said annuity for my wife, and the portion so retained shall be by them divided and paid to my children in equal shares at the death of my wife.”

The testator then gives to his executors a power of sale, and declares that in case the income from his estate shall not be sufficient to pay the annuity and the other sums directed to be paid, the trustees are authorized to use so much of the capital as may be necessary for that purpose.

. At the time the will was executed, as the evidence shows, the testator valued his estate at between $1,000,000 and $1,100,000. At his death it was valued at about $240,000.

McCormack agt. McCormack.

This depreciation in value was evidently not within the testator's contemplation. His supposition seems to have been that the income froin the estate in the hands of his trustees would be sufficient not only to defray the annuity given to his wife, but also to pay the legacies bequeathed to his children.

The last clause of the will appears to me to have been inserted by the testator for the purpose of enabling the trustees to meet a temporary, not a permanent deficiency in the income from his estate. However that may be, I am of the opinion, taking all the provisions of the will into consideration, that the primary intention of the testator was to give to his wife, in lieu of her dower, the dwelling-house and personal property mentioned in the will, and an annuity of $8,000. And for the purpose of avoiding any misapprehension on this point, he made the annuity a charge on his lands. It is true that the scheme which he adopted to produce a sum sufticient to meet the annuity has failed, for the reason hereinbefore stated. Should the annuity therefore fail, the testator having distinctly declared, in addition to the provision for raising it by the accumulation of the rents, profits and income of the estate, that it should be a charge upon his lands? I think not. In Hone agt. Van Schaick (7 Paige, 221) the testator devised and bequeathed to his wife the use of his mansion-house for life, together with his furniture, books, plate, &c., and an annuity of $3,600, in lieu of dower, and then he devised and bequeathed all his estate, real and personal, to his executors, in trust, for the purposes of his will, and upon certain trusts, which the chancellor held to be void. But the devise and bequest to the widow were partially upheld on the ground that they were not connected with the illegal trusts and limitations of the will. It was held by the court of appeals in Knox agt. Jones (47 N. Y., 398) that a void trust, which is separable from other valid trusts, may be cut off when the trust thus defeated is independent of the other dispositions of the will and subordinate to them and not an essen

McCormack agt. McCormack.

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tial part of the general scheme (See, also, Manice agt. Manice, 43 N. Y., 303).

In the case at bar, I do not think that the scheme for raising the amount necessary to pay the annuity is so intimately connected with the gift of the annuity itself that the latter cannot stand when the former fails. The widow will therefore be entitled to elect between her dower rights and the provisions of the will made in lieu thereof.

By the birth of the child, Ethel H., after the execution of the will, the testator, in my opinion, died intestate as to oneseventh of his estate (Sandford agt. Sandford, 4 Hun, 753; 3 R. S., p. 64, sec. 47).

The infant, therefore, inherited one-seventh of the testator's estate, subject to her mother's right of dower therein, and the annuity of the mother should, I think, abate one-seventh, and she should have her dower in the one-seventh of the real estate which descends to the infant (Mitchell agt. Blaine, 5 Paige, 388; Sandford agt. Sandford, 4 Hun, 753).

To recapitulate, I am of the opinion that all of the provisions of the third subdivision of the will are void for the reason above stated; that the provisions made in favor of the widow in lieu of dower are valid, and that she is entitled to elect between those provisions and her dower; that the child, Ethel H., is entitled to the same share of his estate as she would have received if he had died intestate; that, except so far as the will has been hereinbefore declared to be valid, the testator died intestate.

Decreed accordingly.
Findings may be settled on two days' notice.

Roblin agt. Long.



Answer when sham or frivolous Practice as to - Action to enforce a

foreign judgment When answer to be deemed sham and frivolous - Jurisdiction of the court to compel a defendant to convey lands which are beyond its jurisdiction Code of Civil Procedure, section 537.

Under section 247 of the Code of Procedure, where "a demurrer, answer

or reply is frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of court,' for judgment thereon, and judgment may be given accordingly.” This practice is not changed, but remains the same under section 537 of the

Code of Civil Procedure. In an action brought in the courts of this state to enforce the judgment

and decrees of the courts of a foreign state or country, an answer denying any knowledge or information sufficient to form a belief as to all the material allegations of the complaint will be stricken out as sham where

the defendant appeared in the original action. The law is well settled in this country that courts of justice in one state

will, out of comity, enforce the laws of another state or country when, by such enforcement, they will not violate their own laws or inflict injury upon some one of their own citizens. This court having acquired jurisdiction of the person of the defendant, it

possesses full power to enforce the judgment and decree of the chancery court of Canada, to the extent of compelling defendant to convey tho lands mentioned in the complaint, though the same are situated in the Province of Canada and without the jurisdiction of this court.

Jefferson Special Term, December, 1880.

This action was brought to enforce a judgment and decree of the court of chancery of the Province of Ontario and Dominion of Canada. The original action was commenced to compel the defendant to deliver to plaintiff the patent of certain lands situate in Shannonville in said province. The complaint in this action contained a certified copy of the decree of the foreign court of chancery, one of the provisions of which was, that the “defendar.t do forthwith deliver to the

Roblin agt. Long.

plaintiff the patent of the lands and premises mentioned and described in the complaint, and that said defendant do forthwith pay to the plaintiff the costs of the action, taxed by the registrar at $195.95.” The defendant appeared in the foreign court and contested the plaintiff's right to maintain the action, and a judgment was recovered against him on the merits. The defendant left Canada and came to this state without complying with the terms of said decree.

This action was commenced by the personal service of a summons and complaint in this state. The defendant appeared and answered:

1. “ Defendant denies any knowledge or information sufficient to form a belief as to each and every allegation of the complaint."

2. “The defendent denies, on his information and belief, that the supreme court of the state of New York has jurisdiction to enforce the decree or judgment of the court of chancery of the Province of Ontario, of or concerning real estate, situate in the said Province of Ontario, or of any action founded upon the judgment or decree of said court concerning real estate situate in said province."

The plaintiff moved, upon the pleadings and upon an exemplified copy of the foreign judgment, that the defendant's answer herein be stricken out as sham and frivolous, and that she have judgment for the relief demanded in the complaint, with ten dollars costs of the motion, and for such other relief as the court might deem proper to grant.

Anson B. Moore, for plaintiff.

I. The answer in this case is manifestly sham and frivolous and should be stricken out, and judgment ordered for the plaintiff for the relief demanded in the complaint. The moving papers show, and it is indisputable that defendant appeared in the foreign court of chancery by attorney; that a trial was had on the merits, and judgment passed against him. In an action on such a judgment the adjudication of

VOL. LX 26

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