was improperly received. But the attorney's testimony on the same subject was competent as part of the res gesta. I give and bequeath to John C. New trial ordered, costs to abide between them equally, share and share alike, provided that in case the note made by T. A. Proctor for the sum of thirteen hundred dollars, and payable to me, should not be paid; then and in that case it is my will, and I do direct that the said portion so directed to be divided between John C. and Irene Elizabeth Proctor be James E. Thompson, exr., plff, paid by the delivery to them of v. Truman A. Proctor, deft. Decided Oct., 1883. Where the disposition of a note depends, under the provisions of its owner's will, upon its collectibility, the executor holds title to the note, and is entitled to judgment upon it for the purpose of collecting it if possible. Submission of controversy upon the following admitted facts: Plaintiff is executor of the will of John Walker, who died, leaving some $3,600 assets, among which is a promissory note dated January 1, 1880, made by defendant to the testator for the payment of $1,300, three years from date, with interest. Defendant claims that, under the will, plaintiff has no right of action on the note, but is bound to deliver it to John C. and Lizzie Proctor, the children of defendant and a deceased daughter of the testator. After certain bequests, the will provides that the residue of testator's property shall be divided into four equal portions, and one portion given to each of testator's three living children, and "The remaining portion the said note, and the same shall be received by them at its nominal value as so much money, and be so estimated in making up the gross amount of my assets or estate to be distributed." The question before us is whether plaintiff, as executor, is entitled to judg ment upon the note. Fanning & Williams, for plff. Held, That the meaning is that if the note is not collectible it shall then go to the children named and be received by them as money. The intent is that any loss to the assets resulting from the irresponsibility of the maker of the note shall fall upon his children, and not upon the other legatees. But if the note is col lectible, its avails are to fall into the residue of the estate and to be divided as directed. The title to the note is in the executor, and he is entitled to judgment upon it for the purpose of collecting it, if possible, for the benefit of the several legatees. Judgment ordered in plaintiff's TERM. FOUrth Dept. Edward W. Scowden et al., exrs., respts., v. Urson P. Markham, applt. Decided Oct., 1883. Where the defence to a promissory note is that it was given in consideration of the payee's assent to the discharge in bankruptcy of a third person, and of his forbearing to oppose such discharge, Held, That the schedules in bankruptcy are not competent evidence, as against plaintiff, to show the amount of the bankrupt's indebtedness. It is not error to admit an agreement signed by defendant, recognizing the validity of the note two years after it was given, and when it was about to mature. Proceedings in bankruptcy, when plaintiff was not present and in which he took no part, are immaterial to bind plaintiff. Appeal from judgment on verdict at Circuit and from order denying motion for new trial on a case containing exceptions. Action on a promissory note made by defendant, payable to plaintiffs' testator or bearer. The defence is that the note was given in consideration of the payee's assent to the discharge in bankruptcy of Eaton, defendant's father-inlaw, and of his forbearing to oppose such discharge. Much evidence on this point was put in on both sides. The schedules in bankruptcy, offered to prove the bankrupt's in amount of the debtedness, were excluded. An agreement was admitted, signed by defendant, recognizing the validity of the note nearly two years after it was given, and when it was about to mature. Evidence was rejected when offered by defendant to show that soon after the note was given Eaton was discharged in bankruptcy. Evidence had been received to the effect that before the note was given the testator had interposed objections to Eaton's discharge; that he was the only creditor who objected; that the proceeding was adjourned from time to time, and that on the last occasion the bankrupt's counsel alone appeared, no one appearing on the part of the opposing creditor. N.H. Hill, for applt. Held, After a careful reading of the testimony, that we would have been better satisfied if the verdict had been the other way; but, on the whole, are forced to the conclusion that we cannot set the verdict aside as against the weight of evidence. It was not error to exclude the schedules. They were not competent as against plaintiffs. It was not error to admit the agreement. It was material as tending to show that the note was then regarded by defendant as binding, and consequently as not founded upon an illegal consideration. The book account proved by plaintiffs had a like bearing. What was done in the subsequent proceedings in bankruptcy, when the testator was not present | tions of fact. and in which he took no part, was immaterial. Judgment and order affirmed. Opinion by Smith, P. J.; Hardin and Barker, JJ., con cur. DIVORCE. EVIDENCE. While we may not examine the referee's opinion to ascertain what he decided, we may learn therefrom the principles gov. erning his judgment. We think a grave error was committed touching the weight and effect of the evidence upon the issue of adul tery. The right to a divorce upon N. Y. SUPREME COURT. GENERAL that ground exists whenever a pre TERM. THIRD DEPT. Clara B. Allen, respt., v. Walter S. Allen, applt. Decided Nov. 1883. The rule of evidence in an action for divorce a vinculo is the same as in other civil actions. A mere preponderance of evidence is sufficient. The rule, requiring proof beyond a reasonable doubt, as in criminal cases, does not apply. ponderance of competent evidence satisfies the judgment and conscience of the court of the guilt of the accused. 2 Bishop on Mar. and Div., 613 (422). The rule is the same as in other civil actions; but when, as in this case, the evidence is circumstantial there is a further rule in testing its efficiency as laid down by Bishop, § 620, "That if the facts cannot be reasonably Appeal from judgment on a ref- reconciled on the assumption of eree's report. An action was commenced by plaintiff for a limited divorce because of cruel treatment. Defendant, in addition to a general denial, set up by answer and counterclaim the adultery of plaintiff and asks for an absolute divorce. The issues were referred. The referee on conflicting testimony found for the plaintiff and in his opinion stated the principles of law controlling his decision, substantially holding that proof of adultery beyond a reasonable doubt and as a necessary conclusion was necessary. Hale & Buckley, for respt. Thompson & Andrews, applt. innocency, but are harmonious with the assumption of guilt, the court will infer guilt." The referee in his opinion entertained and applied very different rules. * "These facts," says the referee, "must be established by proofs warranting more than an inference of guilt, and the facts when established must warrant more than such an inference, * * and the circumstances must lead the judgment not only by fair inference but as a necessary conclusion to the determination that the carnal act has been actually consummated." Again," the evidence herein fails to satisfy my mind, befor yond doubt, that the intercourse between these persons was criminal in its character; it does not necessarily lead to that conclusion." Held, That courts of review hesitate to disturb the result of trial courts on sharply contested ques Such rules would not permit a divorce when the parties charged were found in bed together, for the carnal act may not have been committed. The fact does not necessarily lead to that conclusion. It is true such a fact would warrant an inference of guilt, but that is not sufficient in the opinion of the referee; it must be more than a fair inference, it must be a necessity. Such is not the true rule, as may be abundantly verified. 2 Bishop M. & D., §§ 612, &c.; 2 Wharton Ev., § 1246; 25 Hun, 251; 6 Barb., 320, 3 Greenleaf Ev., § 29; 2 id., §§ 40, 41. See Shaw, C. J.. as quoted, 2 Bishop, § 616, where facts are detailed somewhat analogous to those presented here from which the carnal act may be inferred. Judgment reversed, new trial granted, reference discharged, costs to abide final order of court. Opinion by Boardman, J.; Learned, P. J., and Bockes, J., concur. WILL. LEGACY. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Sophronia A. Getman, exrx., respt., v. Lany McMahon, applt. Decided Oct., 1883. A legacy limited to property in a particular place is to be construed as specific and not general. Appeal from judgment entered on decision at Equity Term. The fifth clause of testator's will provided as follows: "I also further give and bequeath to my Vol. 18.-No. 8b. wife Lany McMabon the use and control of all my personal property whatever on the farm and in the house at the time of my decease, and for her to have to use and enjoy the same for her comfort and support for and during the time of her natural life." By the. will the wife was given the use for life of all the testator's real estate, including the house and farm referred to. The testator directed that his sister should have a home and support on the farm, or, if she should choose to live elsewhere, that the wife should pay a specified sum annually for her support. The sixth clause of the will gives to the testator's daughter, at the death of his wife, whatever of his personal property "may then be left." Wayland F. Ford, for applt. Dorwin & Brown, for respt. Held, That the legacy to the wife being limited to the testator's property at a particular place is to be regarded as specific and not general. 5 Ves., 149; 2 Vern. Ch., 685; 7 Johns. Ch., 258; 2 Admrs., 461. Collier, 262; Schouler Exrs. and It seems clear that the testator intended that his wife should have the use of the articles given in specie. 2 Lans., 43. Livingston v. Murray, 68 N. Y., 485, 490, distinguished. This view does not divert any part of testator's property from the course he intended it to take; for, if it leaves the testator intestate as to any property not found on the farm or in the house, yet the sole heir and next of kin is the remainderman named in the will. I And if there is any such other property, that fact renders more clear the testator's intention to make the gift to his wife specific. Defendant is entitled to the reasonable use of the property in question in specie, during her life, subject to the payment of debts and funeral expenses and expenses of administration; and such of the property as shall remain at her death will belong to plaintiff. Defendant should give plaintiff an inventory of the articles bequeathed, stating that they are in her possession under such bequest, and that at her death they or such of them as shall not be consumed by reasonable use. are to be delivered to plaintiff. There being no proof of danger that the articles will be wasted or otherwise lost to the remainderman, defendant need give no security. 2 Paige, 122, 132. a Both parties are entitled to their costs, to be paid out of the estate. Judgment reversed, and new judgment ordered as indicated. Opinion by Smith, P.J.: Hardin and Barker, JJ., concur. CREDITOR'S BILL. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Appeal from judgment in favor of plaintiff. Action by plaintiff, a judgment creditor of Patrick Costello, to have a deed of land from Patrick to defendant, his wife, through a third person, set aside as fraudulent or declared a mortgage. The court found that Patrick was previously indebted to his wife in the sum of $1,400 which had not been paid, and that the conveyance was to secure the payment of that sum without intent to defraud the creditors of Patrick. The value of the property was not found, nor was it found that the sum due the wife was an inadequate consideration therefor. The finding of law was that the conveyance operated as an equitable mortgage; that defendant holds the property in trust for her husband subject to the mortgage: that plaintiff's judgment was in equity a lien subject to the mortgage, and that the premises may be sold under an execution on the judgment subject to the mortgage. E. C. Delavan, for respt. C. Furgueson, Jr., for applt. Held, Error. The trial court found no fraud, no under-valuation and no circumstance or fact rendering it inequitable to allow the deed to stand as a conveyance. Where a deed is obtained under William S. Peterkin, respt., v. suspicious circumstances, such as Catharine Costello, applt. Decided Sept., 1883. So long as it does not appear that property has been disposed of fraudulently or at an unconscionable valuation creditors have no right to disturb the conveyance or have the same declared a mortgage. inadequacy of price, it may be set aside as a conveyance and allowed to stand only as security for the sum due, 1 Johns. Ch., 478; but so long as it does not appear that property has been disposed of fraudulently or at an unconscion |