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and 140 New York State Reporter Ira Jay Dutton, for appellant. R. M. Cahoone, for respondents.

MILLER, J. This is an appeal from a decree of the Surrogate's Court of Kings county denying probate to the will of Edwin E. Thompson, who died September 14, 1904, leaving him surviving a widow, a son, two sisters, and a brother. The will was made April 14, 1903, the first codicil July 16, 1903, and the second codicil September 13, 1904. So far as appears from the evidence, the only property of any value possessed by the testator was a life insurance policy for $3,000, payable to his brother, John E. Thompson, as trustee. The will gives the proceeds of said policy to said John E. Thompson in trust, to pay the income of one-third to the widow and of two-thirds to the son, principal to be used, if necessary, to provide for their support, with remainders over to the survivor in case of the death of either. The will also contains provisions giving all his personal property (the life insurance policy was evidently not included in this) and all his interest in the real estate of the copartnership, consisting of himself and his said brother, to his widow, and another provision devising all other real estate to said brother in trust for his son, remainder to the son absolutely upon his arriving at the age of 25 years, or, in the discretion of the trustee, at the age of 21. The first codicil provides that in the event of the death of both widow and son the insurance moneys are given to the two sisters, in case they are single; otherwise, to the said brother. The third codicil gives to said brother the testator's interest in certain real estate owned by said copartnership, and recites that upon his retiring from said copartnership his brother succeeded to his interest in all the copartnership property. It appears that said copartnership terminated January 1, 1904, and the recital in said codicil is in accordance with the agreement of dissolution made January 23, 1904. The will appointed his said brother executor.

I have only attempted to give such a general survey of the will as is necessary to understand the question presented on this appeal. It is undisputed that the testator possessed testamentary capacity, and the due execution of the will was established; but the contestant, although no evidence whatever was offered in that behalf, contends that the instrument offered for probate was not the will of the decedent, but was the result of undue influence practiced upon him by his said brother, and the surrogate has held, upon the authority of Marx v. McGlynn, 88 N. Y. 358, that there was presumption of undue influence which the proponent had failed to overcome. The learned surrogate seenis also to have assumed that the testator could not understand the provisions of the will, and that his brother, who had been admitted to practice law in the state of Iowa, had so drawn it as to conceal in a multitude of words its real purpose. It is true that a few simple sentences would have sufficed to express the intention of the testator; but the undisputed evidence shows that the involved and unnecessary sentences in this will were as much the work of the testator as the draftsman. The testator was not, as appears to have been assumed, an ignorant, unlettered man. It is undisputed that he had pursued part, if not all, of a college course, and, while the surrogate

appears to have been impressed by the belief that the testator could not understand the effect of the legal terms and phrases used in the will, an inspection of that document shows it to have been the work, not of a lawyer, but of a layman. The undisputed evidence is that said brother dictated the will to a stenographer in the presence of the testator from notes prepared by the latter; that each paragraph was discussed as dictated, and changed as suggested by the testator; that after the stenographic notes were typewritten the testator took the typewritten pages, kept them some weeks, and returned them with changes made in his own handwriting, whereupon the will was again dictated to the stenographer by the said brother in the presence of the testator. The subscribing witnesses, three in number, were well acquainted with the testator, and they all testify to facts surrounding the execution of the will tending to show that it was the free and voluntary act of the testator.

The mere fact that the draftsman of a will is made executor or a trustee is not sufficient to raise any presumption that he practiced undue influence, and neither the case of Marx v. McGlynn, supra, nor any other within our research, holds that it is; and we do not deem it necessary to cite authority upon the proposition that no such presumption can arise from a transaction so natural and customary. It might seem to us unwise to tie up in a trust so small an estate; but we are not making this will, and the testator provided that the principal could be used. Had there been a diversion of any portion of the testator's estate from the natural objects of his bounty, a different question might arise. The second codicil might be open to question, if it did not appear without dispute that it really disposes of no interest which the testator had, because by the agreement of dissolution, made some months before the execution of said codicil, it was agreed that the brother should succeed to all of the copartnership property; and it is also uncontradicted that the testator had visited the real property in question and had reported that in his opinion it was not worth the taxes levied upon it.

The decree must be reversed.

Decree of the Surrogate's Court of Kings county reversed, and will admitted to probate, with costs to the appellant payable out of the estate. All concur.

(121 App. Div. 196.)

In re BAUM. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) 1. HUSBAND AND WIFE-ESTATE BY ENTIRETY-APPLICATION TO PERSONAL


The law of tenancy by the entirety does not apply to personal property.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Husband and

Wife, $$ 73, 88.) 2. SAME-TERMINATION.

That a bond and mortgage taken in the name of the husband and wife were given in part payment of the purchase price of land owned by them in entirety does not entitle the husband, as survivor on the death of the wife, to the whole of the proceeds of the bond and mortgage, since on the sale of the land the tenancy by the entirety ended.

106 N.Y.S.-8

and 140 New York State Reporter Appeal from Surrogate's Court, Queens County.

Accounting by John George Baum, administrator of the estate of Fredericka Baum, deceased. From a decree of the surrogate, charging him with one-half of the proceeds of certain bonds and mortgages, the administrator appeals. Affirmed.


Leander B. Faber (Charles H. Street, on the brief), for appellant.
James J. Conway, for respondent Breul,
Henry D. Merchant, for respondents Durkel and Fortcher.

GAYNOR, J. This appellant and his wife owned a piece of real estate as tenants by the entirety. They conveyed it, and took back a purchase money bond and mortgage made payable to both of them for part of the purchase money. He owned another piece of real estate, conveyed it, she joining, and took back a like purchase money bond and mortgage made payable in the same way. She afterwards died and he is her administrator. The surrogate has charged him as such administrator with one-half of the proceeds of the said bonds and mortgages, they having been paid since the wife's death. He claims that he is entitled to the whole of such proceeds as survivor, and appeals. The law of ownership or tenancy by the entirety does not apply to personal property. To enable the husband to take the whole by survivorship there would therefore have to be an agreement to that effect, or a gift causa mortis, and there is neither here. That one of the pieces of land was owned by the husband and wife as tenants by the entirety does not make a different case. When it was sold such tenancy was ended. Matter of Albrecht, 136 N. Y. 91, 32 N. E. 632, 18 L. R. A. 329, 32 Am. St. Rep. 700.

The decree of the surrogate should be affirmed.

Decree of the Surrogate's Court of Queens county, so far as appealed from, affirmed, with costs payable out of the fund. All concur.

(121 App. Div. 173.)


In an action for personal injuries alleged to have been caused by the defective condition of a sidewalk, in that there was a depression due to the construction of a curb about 10 or 12 inches from the old curb, without sufficiently filling in the intervening space, evidence that this space was filled in shortly after the accident is inadmissible.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, $ 1737.] Appeal from Trial Term, Queens County.

Action by John J. Mackey against the city of New York for personal injuries. From a judgment for plaintiff, and an order denying its motion for a new trial, defendant appeals. Judgment and order reversed, and new trial granted.


Theodore Connoly (Royal E. T. Riggs, on the brief), for appellant. George F. Hickey (William E. Stewart, on the brief), for respondent.

MILLER, J. This is a sidewalk case. The defect complained of was a depression caused by the construction of a curb about 10 or 12 inches from the old curb, without sufficiently filling in the intervening space. The plaintiff was permitted to prove, over the specific objection that the evidence was irrelevant, that this space was filled in shortly after the accident. Such evidence in this class of cases has too frequently been condemned to require any discussion or citation of authorities now. As the judgment must be reversed for said error, it would be profitless to discuss the merits at this time.

I advise that the judgment and order be reversed.

Judgment and order reversed and new trial granted. Costs to abide the event. All concur.

(121 App. Div. 443.)

LOCKER et al. v. AMERICAN TOBACCO CO. et al. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) 1. TRIAL-DISMISSAL-OPENING STATEMENT-HEARING AND DETERMINATION OF


Where the sufficiency of the facts stated in a complaint and opening to constitute a cause of action is the basis of a motion to dismiss, every alle gation of fact contained in the pleading must be taken as admitted, and plaintiffs are entitled to the benefit of every fair presumption which may be implied therefrom.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, 8 373.] 2. MONOPOLIES–COMBINATIONS IN RESTRAINT OF TRADE-JURISDICTION AND


In an action in a state court to restrain an alleged unlawful combination in restraint of trade in a certain city, the statutes of the United States need not be considered, since they relate to interstate trade or commerce, and redress for violation of their provisions must be sought in the

federal courts, which alone have jurisdiction. 3. SAME-PRESUMPTIONS AS TO UNLAWFUL CHARACTER.

In an action to restrain an alleged unlawful combination in restraint of the tobacco trade in a certain city between a selling corporation and a producing corporation, which it is claimed was associated with other similar companies, comprising the “tobacco trust," where there is no allegation that defendant companies were incorporated for an unlawful purpose, that the acquisition of or uniting with other corporations by either defendant was unlawful, or in pursuance of an unlawful agreement, or that it was in pursuance of such an agreement that the producing corporation made the other its sales agent in the city, or that any act resulted in discriminating against or injuriously affected any dealer in the city other than plaintiffs, or that the relations of defendant corporations with other corporations and persons were illegal under the laws of the state in which they were incorporated, or that the producing corporation had entered into or become a party to an unlawful combination or merger, it must be assumed that the relations of the various corporations

are innocent, and lawful. 4. SAME.

In an action against a producing corporation and a selling corporation to restrain an alleged unlawful combination in restraint of the tobacco

and 140 New York State Reporter trade in a certain city, it appeared that the alleged agreement gave the selling corporation the sole right to market the products of the producing corporation in the city, but it did not undertake to regulate and did not in its terms relate to competition between the producing corporation and other corporations alleged to be under its control, nor did it purport to establish sale prices, output, or terms of sale, nor did it give the selling corporation any power which the corporations themselves united or sererally might not lawfully have exercised. Held, that the alleged agreement

was not illegal, as creating a monopoly or being in restraint of trade. 5. SAME.

A producing corporation may lawfully authorize a selling corporation to sell or refuse to sell its products to any persons, and to establish the price and terms of sale thereof, since it may delegate to another the rights

which it might lawfully exercise itself. 6. CONSTITUTIONAL LAW-PERSONAL RIGHTS-LIBERTY TO CONTRACT.

Under the liberty of action guaranteed by the state and federal Constitutions, any one may legally refuse to maintain trade relations with another for any reason or without any reason.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Constitutional



If a third person could attack an agreement giving a certain corporation the exclusive right to sell the products of another, the courts could only declare the invalidity of the agreement, and could not compel the

sale of the products to the third person. & SAME-ADEQUACY OF REMEDY AT LAW.

In an action to restrain an alleged unlawful combination in restraint of the tobacco trade, in a certain city where plaintiff alleged an injury resulting from the refusal of a defendant corporation to sell its products to plaintiff in accordance with a previous agreement, plaintiff bad an adequate remedy at law for a breach of the contract, which would exclude equitable relief.

Appeal from Special Term, Kings County.

Action by John A. Locker and Elma Locker against the American Tobacco Company and others. From an order sustaining a motion to dismiss the complaint on the ground that it did not state a cause of action, plaintiffs appeal. Affirmed.

The complaint alleges : Subdivision 1: The copartnership of the plaintiffs. Subdivision 2: That the defendants the American Tobacco Company and the Metropolitan Tobacco Company are corporations, organized under the laws of the state of New Jersey and doing business in the state of New York and elsewhere throughout the United States, in the manufacture and sale of tobacco and cigarettes, and together own, control, or market upwards of 90 per cent. of the entire amount of such merchandise manufactured or marketed in the state of New York, and that they are associated with other corporations, which together with themselves constitute what is known to the trade as the "Tobacco Trust.” Subdivision 3: That the defendants Bendheim and Stern are and were at all times mentioned stockholders in said two corporations, and were actively connected with the formation of said Metropolitan Tobacco Company in 1899, and since its incorporation have been directors and officers; Bendheim being its president and Stern its manager and representative in charge of its office and branch store at No. 197 Graham avenue, Brooklyn. Subdivision 4: That said Bendheim and Stern, both individually and as such officers, have taken an active part in the dealings between said corporations and the plaintiffs and their predecessors. Subdivision 5: That certain named persons were authorized agents and employés of one or both of said corporations, and as such have solicited and taken orders from plaintiffs and their predecessors, which were filled by the defendants. Subdivision 6: That plaintiffs are the

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