FIFTH DEPARTMENT, DECEMBER TERM, 1889. division should be per capita, and not per stirpes, because of the use of the words "to be equally divided" and "share and share alike." (See, also, In re Verplanck, 91 N. Y., 439, 444.) We think the authorities cited, amply sustain the contention of the plaintiff to the effect that, by the terms of the provision in question, in the will of Mrs. Moore, each of the children of Mrs. Graves takes a share of the residue, equal to that of their mother. We have considered the other and independent provisions of the will, and the facts extrinsic to the instrument, which are presented by the submission, and find in them nothing which impugns the construction which we are compelled to give to the particular provision. Judgment accordingly should be ordered for the plaintiff. BARKER, P. J., and MACOMBER, J., concurred. Judgment ordered that plaintiff and the defendant, Augusta C. Graves, each takes an equal undivided eighth part of the property embraced in the ninth or residuary clause of the will. REUBEN W. GIFFORD, AS RECEIVER OF THE PROPERTY OF Annuity to husband and wife liable for the husband's debts. personal and to real estate. same rule applies to A creditor's action was brought to reach the interest of the judgment-debtor in an annuity created by the will of his father, charged upon real estate devised thereby, payable semi-annually to the judgment-debtor and his wife for their support and that of their family during their lives: Held, that, during the joint lives of the two annuitants, the husband was entitled to the entire annuity, and that the whole was liable for his debts. Bertles v. Nunan (92 N. Y., 152) followed. The same rule applies to personal as to real property, and an annuity charged upon real estate and constituting a lien thereon partakes of the nature of both. APPEAL by the defendants above named from a judgment in favor of the plaintiff and against the defendant Aretus W. Rising, entered, FIFTH DEPARTMENT, DECEMBER TERM, 1889. upon the report of a referee, in the office of the clerk of the county of Niagara on the 13th day of July, 1889. G. D. Judson, for the appellants. H. M. Davis, for the respondents. DWIGHT, J.: The action was in the nature of a creditor's bill and was brought by a receiver appointed in proceedings supplementary to execution, against the property of the defendant Chauncey W. Rising. The effort was to reach the interest of the judgment-debtor in a bequest made by the will of his father. The bequest was of an annuity of $200, payable semi-annually to the judgment-debtor and his wife, for their support and that of their family during their lives, and was charged upon the real estate devised to the defendant Aretus W. Rising as part consideration of such devise. This court held on a former appeal (51 Hun, 1), that no trust was created by this devise and bequest; that the devisee Aretus became personally liable to pay the annuity, upon his implied promise on accepting the devise, and that the interest of Chauncey was liable for his debts, and might be reached in equity for their payment. All this is conceded on the present appeal, and the question raised is as to the extent of the interest of the judgment-debtor in the annuity and the amount due to him thereon at the time of the commencement of this action. The referee held, in effect, that during the joint lives of the two annuitants the husband was entitled to the entire annuity and that the whole was liable for his debts. Thereupon it appearing that the amount of the annuities remaining unpaid at the time of the commencement of this action, with interest from the time each payment became due, was in excess of the judgment on which the plaintiff was appointed receiver, with interest and the costs of supplementary proceedings - judgment was directed against the defendant Aretus for the full amount of such judgment, interest and costs. The defendant's exceptions to the conclusions of the referee fairly present the principal question raised by this appeal, viz., whether an annuity given to the husband and wife belong solely to the husband during the joint lives and is wholly liable for his debts. FIFTH DEPARTMENT, DECEMBER TERM, 1889. Under the doctrine of Bertles v. Nunan (92 N. Y., 152) we cannot doubt that the question was correctly answered by the referee in the affirmative. That case held that the common-law rule, as to the effect of a conveyance of real estate to a husband and wife jointly, had not been abrogated by the married woman's acts in this State, and quotes, with approval, the language of this court in Beach v. Hollister (3 Hun, 519) viz.: "Those statutes operate only upon property which is exclusively the wife's and were not intended to destroy the legal unity of husband and wife or to change the rule of the common law governing the effect of conveyances to them jointly." (See, also, Sanford v. Sanford, 45 N. Y., 723.) It is true that in Berties v. Nunan, the husband being already deceased, the question was not necessary to be determined and was reserved, whether during the joint lives of husband and wife the lands so conveyed could be sold for the husband's debts, or the use and profits thereof be entirely appropriated by him; but the doctrine of that case leads to no other result, and the implication is clear that the common-law rule in that respect had not been changed. That the same rule applies to personal as to real property admits of no question, and an annuity charged upon real estate and constituting a lien thereupon partakes of the nature of both. In Sanford v. Sanford (supra), it was held, in regard to a chose in action taken in the name of husband and wife, that " during the husband's life it was subject to his control and the wife had no legal interest therein until his decease." We believe that the question in this case was properly decided by the referee and that the judgment entered upon his report must be affirmed. All concur. Judgment affirmed without costs to either party. FIFTH DEPARTMENT, DECEMBER TERM, 1889. 55 64 119a 569 119a 580 THE PEOPLE OF THE STATE OF NEW YORK EX REL. Punishment by death by electricity. - not a cruel and unusual punishment under the Constitution of the State of New York-the application of the English Bill of Rights and of the provisions of the United States Constitution to the legislative department of the government, considered- chapter 489 of 1888. The petition, issued on the application for a writ of habeas corpus, alleged that the That the provisions of chapter 489 of 1888 were not, upon their face, repugnant Semble, that the whole tenor of the English Bill of Rights, its title, and the history of the times and of the emergencies which gave rise to this enactment, forbade the idea that it was intended in any manner to restrict or control the law-making power; that it was, in fact, enacted to restrain the oppressive exercise, by judges appointed by the crown, of the discretion conferred upon them by the common law in respect to the punishment of criminals. Quare, whether the provisions of article 8 of the United States Constitution were intended to limit or control the action of the courts in prescribing penalties for crime. APPEAL by the relator, William Kemmler, from an order of Hon. S. EDWIN DAY, County Judge of Cayuga County Court, entered FIFTH DEPARTMENT, DECEMBER TERM, 1889. in the office of the clerk of the county of Cayuga on the 14th day of October, 1889, remanding the relator to the custody of Charles F. Durston, as agent and warden of the State prison at Auburn, New York. W. Bourke Cockran, for the appellant. William A. Poste, deputy attorney-general, for the respondent. DWIGHT, J.: The relator, being in the custody of the respondent as agent and warden of the State prison at Auburn, sued out a writ of habeas corpus to inquire into the cause of detention, which was made returnable before the county judge of the county where he was imprisoned. The petition for the writ of habeas corpus alleged that the cause or pretense of the imprisonment complained of was that, after the indictment and trial of the relator for the crime of murder in the first degree, and his conviction thereof, in the Court of Oyer and Terminer of Erie county, he was sentenced by that court to undergo a cruel and unusual punishment for such crime, contrary to the Constitution of the State of New York and of the United States; and that he was deprived of liberty and threatened with deprivation of life by virtue of such illegal sentence and judgment of the court. The return of the respondent, which was not traversed as to the facts, showed that the sentence or judgment of the court mentioned in the petition was pronounced, and the warrant, under which the relator was held, was issued to the respondent thereupon, in pursu ance of chapter 489 of the Laws of 1888, which amended the Code of Criminal Procedure in respect to the time and mode and place of inflicting the death penalty; and, among other things, substituted death by electricity for death by hanging. Section 505 of the Code, as thus amended, reads as follows: "The punishment of death must, in every case, be inflicted by causing to pass through the body of the convict, a current of electricity of sufficient intensity to cause death, and the application of such current must be continued until the convict is dead." To the return of the respondent a demurrer ore tenus seems to have been interposed in behalf of the relator, and an offer was HUN-VOL. LV 9 |