ment as administrator, not being of the next of kin, or a creditor of decedent, is not entitled to appointment in preference to the county treasurer, who is the public administrator, without being joined with others who have a right to such appointment prior to the public administrator. McLennan, P. J., and Robson, J., dissenting.

Appeal from Surrogate's Court, Niagara County.

Petition by Elizabeth Printup, the widow, and Charles Printup and others, sons of Daniel J. Printup, deceased, that letters of administration on the estate of decedent be issued to the person therein nominated. From a decree of the Surrogate's Court dismissing the petition for want of jurisdiction, petitioners appeal. Reversed, and remitted for a rehearing and further action by the Surrogate's Court. Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

Dilworth M. Silver, for appellants.

William E. Lockner, for respondent.

KRUSE, J. The deceased, Daniel J. Printup, died intestate on or about June 20, 1906, a resident of the county of Niagara, leaving personal property exceeding in value the sum of $250, and the value of all the real estate of which he died seised, wherever situate, as is stated in the petition, will exceed $2,000. His debts aggregate upwards of $500, and his son, Eleazar Printup, who is the sole contestant in this proceeding, was indebted to the deceased at the time of his death in the sum of $1,200 and upwards, as adjudged in an action in the Supreme Court of this state, in which Moses Printup and others were plaintiffs and Eleazar Printup was defendant. The decision was filed in the Niagara county clerk's office on or about October 27, 1906, although the petition does not affirmatively show that judgment has been entered thereupon. The deceased was an Indian residing upon the Tuscarora Indian reservation, which is located in the county of Niagara, and the widow and children are likewise Tuscarora Indians. The petition alleges that no administrator has been appointed by any court, that it is essential for the protection of the creditors of the estate and the preservation of the personal estate that letters of administration be issued, and that the Tuscarora Indians as a nation have no peacemakers' courts or Surrogate's Courts. None of these allegations are denied.

It is contended that the contestant's affidavit establishes that he and his brothers and the widow belong to a tribe of Indians having a separate Indian tribal or governmental organization, owing no allegiance to any other government, and not subject to our laws, and that the Indian council has exclusive jurisdiction to administer upon the estate. No oral proof or other evidence, save the affidavit of the contestant, was taken before the surrogate, and the surrogate made no findings of fact as to whether the Tuscarora Indians have any peacemakers' or Surrogate's Court, or any other judicial tribunal of their own, having the right or assuming to administer upon the estates of Indians belonging to that tribe, and we think this contesting affidavit is so general and unsatisfactory that of itself it furnishes no sufficient basis for such a finding. The case of Dole v. Irish, 2 Barb.

and 140 New York State Reporter

639, relied upon by the surrogate, is quite unlike this case. It there appeared that the deceased was an Indian belonging to the Seneca Nation; that it was a custom among the Seneca Indians at that time that, upon the death of one of the members of the tribe, his relatives would meet at the last place of residence of the deceased within 10 days after the death, and divide his property among themselves; that such a division was made including the property in question before the granting of letters of administration; but there is no proof here of any such custom among the Tuscarora Indians.

Counsel for the respondent in his brief states that the absence of a Surrogate's Court does not seriously handicap the Tuscaroras, as their wills by immemorial custom take effect like deeds at the death of the testator, and, in cases of intestacy, the heirs simply take possession of the land by the common or state law of descent, and if there be personalty divide it among the next of kin; that often relatives employ a white attorney to explain the state law of distribution to them, so that they may fully understand it; and that, where there are debts and a desire to pay them on moral grounds, the chiefs on request will take the estate through the regular course of Indian administration, whatever that may be. What happens in case of a controversy is not stated. I think it will be found upon an examination of the cases, both state and federal, where the courts have declined to take cognizance of controversies between Indians, such decisions rest upon the fact that the Indians to the controversy belong to tribes which have governments of their own regulating their internal affairs. But, where they have ceased to regulate their own affairs, with no judicial tribunals of their own, no good reason exists for denying to one Indian who has been wronged by another redress in our courts, and so the Legislature has from time to time passed laws permitting resort to be had to our courts where there is no Indian government, or it is inadequate to protect the Indians in the enjoyment of their rights. As early as 1847 an act was passed for the protection and improvement of the Seneca Indians, as its title indicates, which provided that one Indian may maintain an action against another under circumstances therein stated (Laws 1847, p. 468, c. 365, § 14); and section 5 of the present Indian Law, which is general in its terms, applying to all Indians, provides that any demand or right of action, jurisdiction of which is not conferred upon a peacemakers' court, may be prosecuted and enforced in any court of the state the same as if all the parties thereto were citizens (Laws 1892, p. 1575, c. 679). Native Indians may not only hold and convey real estate, but are liable upon their contracts. Laws 1892, p. 1574, c. 679, § 2.

The widow of the deceased and all of his children save one, join in this appeal, and he is indebted to the estate, and is therefore interested in defeating any proceeding which will compel him to pay the debt which he honestly owes. If the appellants have any claim or claims, and are without remedy for the enforcement thereof for lack of a peacemakers' court or other Indian judicial tribunal, I think they have a right to resort to our courts for the enforcement of that right, and that the provisions of this section are broad enough to give the Surrogate's Court jurisdiction in a proper case.

Although the question is not raised, it is proper to suggest that the person nominated in the petition for appointment as administrator, not being of the next of kin or a creditor of the deceased, is not entitled to such appointment in preference to the county treasurer, who is the public administrator, without being joined with others who have a right to such appointment prior to the public administrator. Code Civ. Proc. § 2660.

The decree of the Surrogate's Court should be reversed, and the matter remitted to that court for a rehearing and its further action thereon.

SPRING and WILLIAMS, JJ., concur. ROBSON, J., dissents. MCLENNAN, P. J., dissents upon the grounds stated in dissenting opinion in the case of Peters v. Tallchief (decided at this term of court) 106 N. Y. Supp. 64.

(121 App. Div. 491)

WELLS BROOKLYN UNION ELEVATED R. CO. et al. (No. 1.) (Supreme Court, Appellate Division, Second Department. October 4, 1907.) 1. POWERS-RIGHTS TO SELL REALTY-DURATION-EXTINGUISHMENT.

Where testatrix devised all her real estate to a trustee, empowering him, with her son's consent, to sell it, but did not dispose of the corpus, the power of sale and the trust ended with the son's death, and, no sale having been made during his life, the land thereupon passed to his heirs, so that defendant railroad company acquired easements therein as against these heirs by condemnation proceedings instituted after the death of the

son.

[Ed. Note. For cases in point, see Cent. Dig. vol. 40, Powers, §§ 2629.]

2. SAME STATUTES-RETROACTIVE OPERATION.

Real Property Law, Laws 1896, p. 583, c. 547, § 154, providing that, where the consent of two persons to the execution of a power is requisite and before its execution one dies, the consent of the survivor is suffi cient, unless otherwise prescribed by the power, is not applicable when the death occurred prior to the passage of the act.

Appeal from Special Term, Kings County.

Action by Oliver J. Wells against the Brooklyn Union Elevated Railroad Company and another to restrain defendants from maintaining and operating their elevated railroad on Myrtle avenue, Brooklyn, in front of plaintiff's abutting lot. From a judgment granting the injunction, unless the defendants pay to plaintiff a specified sum as damages, defendants appeal. Modified and affirmed.

The action was brought to obtain a perpetual injunction against the defendant to restrain it from maintaining and operating its elevated railroad on Myrtle avenue, Brooklyn, in front of the plaintiff's abutting lot. The judgment grants the injunction unless the defendant pay to the plaintiff a specified sum as damages.

The defendant claims that the judgment should be modified by reducing the damages to two-fifths thereof, on the ground that it acquired three-fifths of the easements in question by condemnation proceedings in 1893. It did acquire the interest therein of three of the five children of Herbert Fearn, if title to the lot was in the said five children at that time. The said Herbert Fearn died in 1892 leaving the said children as his only heirs at law. His

and 140 New York State Reporter

mother died in 1881 the owner of the said lot and other lots, and leaving him her sole heir. The second clause of her will is as follows: "I direct that my real estate shall be sold by my trustee hereinafter named at such time or times as he may deem most beneficial to my estate, but at private sale only and on the conditions hereinafter stated, and that said estate be converted into money." By the third clause she devised all of her real estate to Jerry A. Wernberg, "in trust nevertheless for the purpose of letting or leasing any part or the whole of said property for no longer than one year at any one letting, and to receive the rents, issues and profits thereof and therefrom, to pay taxes, assessments, insurance premiums and such expenses as are necessary to protect and preserve the same, to pay the interest due or to become due on any and all mortgage liens on said property; from the surplus rents, if any there should be, to pay one-half of the principal of the mortgage, and the other half to Herbert Fearn, until the same shall be sold." The fourth clause confers on the said trustee a power to sell or mortgage all or any part of the real estate "during the continuance of this trust, and to execute any contract, deed, conveyance or mortgage sufficient to convey the title or encumber the property when my said son approves of the terms of the conveyance, and only then, such approval to be evidenced by his becoming a subscribing witness thereto." The corpus is left undisposed of by the will. No sale was made in Herbert Fearn's lifetime. After his death the trustee and also his said five children conveyed the lot to the plaintiff, but after the said condemnation proceedings of the defendant by which it acquired the easements of the said lot in Myrtle avenue of three of the said children.

Argued before HIRSCHBERG, P. J., and HOOKER, RICH, MILLER, and GAYNOR, JJ.

Chas. L. Woody, for appellants.

Cyrus W. Washburn, for respondent.

GAYNOR, J. While the first clause of the will contains an imperative direction to sell the real estate, and standing alone would convert the realty into personalty, it is modified by the next two clauses, which make such sale depend on the discretion and consent of Herbert Fearn. It cannot take place at all except by his consent. The corpus is left undisposed of by the will. The trust created is to collect the rents and pay expenses, and use one half the net income to pay off the mortgage on the land and pay the other half over to Herbert Fearn until the land should be sold by his consent. If he do not consent, the power of sale must end with his life. The trust must also end then, for it is only for his benefit, and also only an incident of the power of sale. The power of sale does not survive for the purpose of a distribution, for the corpus is not disposed of or distributed by the will. If the will manifested an intention of the testator that there should be in the end, and at all events, a sale and distribution, then we would have a very different case; the power of sale would have to survive to save the intention and scheme. The cases of Barber v. Cary, 11 N. Y. 397, Kissam v. Dierkes, 49 N. Y. 602, and Gulick v. Griswold, 160 N. Y. 399, 54 N. E. 780, therefore apply. Section 154 of the real property law (Laws 1896, p. 583, c. 547) is not to be considered as it is not retroactive (Gulick v. Griswold, supra); and, besides, title was vested in the defendant before the said section was passed.

The case is one which a trial judge may consider difficult and extraordinary, and the extra allowance was properly granted.

The judgment should be modified by reducing the amount of damages to two-fifths thereof, and the allowance proportionately.

Judgment modified by reducing the amount damages to two-fifths of the sum allowed, with a proportionate reduction of the extra allowance, and, as modified affirmed, without costs. All concur.

(121 App. Div. 910)

WELLS V. BROOKLYN UNION ELEVATED R. CO. et al. (No. 2.) (Supreme Court, Appellate Division, Second Department. October 4, 1907.)

Appeal from Special Term, Kings County,

Action by Oliver J. Wells against the Brooklyn Union Elevated Railroad Company and another. From a judgment for plaintiff, defendants appeal. Modified and affirmed.

Argued before HIRSCHBERG, P. J., and HOOKER, RICH, MILLER, and GAYNOR, JJ.

PER CURIAM. Judgment modified by reducing the amount of damages to two-fifths of the sum allowed, with a proportionate reduction of the extra allowance, and, as modified, affirmed, without costs, on the authority of Wells. Brooklyn Union Elevated Railroad Company and Another (decided herewith) 106 N. Y. Supp. 77.

(121 App. Div. 908)

PHILLIPS v. BROOKLYN UNION ELEVATED R. CO. et al.

(Supreme Court, Appellate Division, Second Department. October 4, 1907.) Appeal from Special Term, Kings County.

Action by John F. Phillips against the Brooklyn Union Elevated Railroad Company and another. From a judgment for plaintiff, defendants appeal. Modified and affirmed.

Argued before HIRSCHBERG, P. J., and HOOKER, RICH, MILLER, and GAYNOR, JJ.

PER CURIAM. Judgment modified by reducing the amount of damages to two-fifths of the sum allowed, with a proportionate reduction of the extra allowance, and, as modified, affirmed, without costs, on the authority of Wells v. Brooklyn Union Elevated Railroad Company and Another (decided herewith) 106 N. Y. Supp. 77.

(121 App. Div. 907)

HILLEBRECHT v. BROOKLYN UNION ELEVATED R. CO. et al. (Supreme Court, Appellate Division, Second Department. October 4, 1907.)

Appeal from Special Term, Kings County.

Action by John C. Hillebrecht against the Brooklyn Union Elevated Railroad Company and another. From a judgment for plaintiff, defendants appeal. Modified and affirmed.

Argued before HIRSCHBERG, P. J., and HOOKER, RICH, MILLER, and GAYNOR, JJ.