First Department, March, 1906.

[Vol. 111. that his executors might be able in the prudent management of the estate to realize some income from it. A small rate of interest could be had by depositing it in some trust company or like institution, and it would be their duty so to do. The amount of interest which might be realized from this fund could not be finally determined until the period of ten years had elapsed. Nor could the executors finally account until the end of that time, unless all those whose legacies were payable in ten annual installments should sooner die, which it is not to be presumed the testator contemplated.

The 26th clause begins with the words, "All the rest, residue and remainder of my property," which is quite comprehensive enough to take in all property not otherwise disposed of. But the testator desired to specify particularly that there was another residue which might accrue after his death, to wit, the interest which might be received on the $43,500, and so he uses the words, "and the interest which may be received from the sums set apart to pay the legacies hereinbefore devised," meaning, of course, the legacies which were payable in ten annual installments. This was an artificial residuum as distinguished from the general residue of his estate, and it seems to me that he had this artificial residuum only in mind when he provided that in case of the death of any of his named residuary legatees "before the whole of my estate shall be divided, then I direct the said residuary to be divided among the survivors only share and share alike."

The words last quoted are those which raise the ambiguity with respect to the residuary clause. By apt and comprehensive words previously used the testator gave all the remainder of his estate to named residuary legatees share and share alike. This absolute gift should not be cut down to one dependent upon survivorship to a time when the estate should be finally settled, unless the language used compels such construction. The ambiguous language can well lay hold of, and apply to, the artificial residuum arising from interest on the fund held to pay the installment legacies, and I think it should be confined to that and not be held to apply to the general residuary estate, thus avoiding repugnancy and the cutting down of the superior estate previously given. Nor is it doing any violence to the language so to do. The words "before the whole of my estate shall be divided" imply that a division of a part, to wit, the

App. Div.]

First Department, March, 1906.

general residuum, had been previously made. The words “the said residuary” may well be said to apply in the mind of the testator to something other than all the "rest, residue and remainder" of his estate, and to apply to the uncertain and comparatively small sum of money which should be accumulated from the moneys held to pay the installment legacies, which amount, insignificant in comparison with the general residue of the estate, he desired should be distributed amongst those residuary legatees who should be living at the time the amount was finally ascertained and the last and final accounting had.

This view is strengthened by reference to the body of the will. The testator had no children, but he did have a wife. He gave her the house and its furnishings and $5,000 only in money, but no annuity or legacy payable in installments. He was not as liberal with her as he was with his sister Mary, for he gave her $5,000 and $1,000 a year for ten years. The testator must have known that estates are liable to be involved in litigation, and that a final accounting by executors and a distribution of funds is uncertain in time and may be long postponed. Strictly speaking, the whole of the estate, under the provisions of the will, could not be divided until ten years had elapsed. To my mind it seems to be doing great violence to the apparent intention of the testator to say that he meant that his wife, for whom he had made so meagre a provision, should have nothing during a possibly prolonged administration of the estate, to maintain herself and the home he had devised to her, and no right to any part of his residuary estate unless she survived a final division and distribution by his executors. Manifestly he was also solicitous for the welfare of his sisters and those of his nephews and nieces who were mentioned in his will. He could not have intended that, although they survived him, their right to any part of his estate should be postponed to any such indefinite and possibly distant period as the time when "the whole of my estate shall be divided."

The law favors the vesting of estates; and limitations over, and vesting subject to be divested, and postponing enjoyment of property, will not be imputed to a testator if it can be avoided. It is only where the testator has unequivocally expressed his intention to create these artificial estates that the courts will adjudge them to

First Department, March, 1906..

[Vol. 111. exist. It quite frequently happens that authorities are of little aid in construing a will, but it would appear that the principles laid down in Manice v. Manice (43 N. Y. 303) and Shangle v. Hallock (6 App. Div. 55) were quite applicable to the language found in the will under consideration.

The interpretation put upon the will by the prevailing opinion seems to me at variance not only with the intention of the testator, but with the language which he used, and I, therefore, dissent from a reversal of the decree and vote for its affirmance.

Decree reversed, with costs to appellant payable out of estate, and proceedings remitted to surrogate. Order filed.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES F. DOLAN, Appellant.

First Department, March 9, 1906.

Crime - uttering forged note-knowledge of defendant — evidence — error in excluding communications made to defendant as to general character of note-when error to admit evidence of other unrelated forgeries.

When upon the trial of an indictment containing two counts, first, for forging a note, and, second, for uttering said forged note, the first count is withdrawn, the knowledge of the defendant that the note was forged becomes an issue, and it is reversible error to exclude evidence of communications made to the defendant by any person respecting the validity of the note, and whether or not it was made by the drawer or by his authority, or that it was genuine and not forged. Such communications bear directly upon the question as to whether the defendant knew that the note was forged when he uttered it. The evidence of such communications to defendant should not be restricted to those made to him before or at the time that he uttered the note when he claims to have first learned of the forgery when it was protested for non-payment, and it is error to exclude such communications made after that time. While evidence of other forgeries so related to the transaction in question as to show a common motive or intent may be admissible on the question of motive or knowledge that said note was forged, it is reversible error to admit evidence of other independent forgeries which are not so related to the forgery in question as to throw light upon the defendant's knowledge thereof. INGRAHAM and MCLAUGHLIN, JJ., dissented, with opinion.

App. Div.]

First Department, March, 1906.

APPEAL by the defendant, James F. Dolan, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, rendered on the 19th day of May, 1904, convicting the defendant of the crime of forgery in the second degree.

Alfred R. Page, for the appellant.

Robert C. Taylor, for the respondent. HOUGHTON, J.:

The general facts are fully stated in the opinion of Mr. Justice INGRAHAM and further statement of them is unnecessary.

I think the judgment of conviction should be reversed because of errors committed upon the trial.

The charge that the defendant forged the note in question was withdrawn, and he was tried for the crime of uttering it. This issue, of course, involved his knowledge that the note was forged when he procured its discount at the bank. The only proof that the note was forged was by Cockerill who testified that he did not sign it. Miss Fitzpatrick had general charge of defendant's office and took the note in question to the bank with the money to pay the discount, informing the bank that the defendant would call later and indorse it. The cashier of the bank testified that the defendant called that same day and indorsed this note with others. The defendant says that he was not in the city on that day and produces evidence of other witnesses to corroborate him in that respect, and that he called several days later and made the indorsements. All these cir

cumstances with respect to delivery of the note to the bank and the indorsement of it by the defendant show good reason for the People abandoning the charge of forgery made against the defendant and confining the issue to that of uttering a forged instrument. Whatever was communicated to the defendant by any person with respect to the validity of the note, and as to whether or not it was in fact made by Cockerill, or by his authority, or that it was a valid instrument, or that it was a genuine note and not forged, was of course most pertinent upon the question of defendant's knowledge that it was a forged instrument and upon his intent in uttering it. While the defendant was testifying in his own behalf certain questions were asked him with respect to what he had learned in regard to the

First Department, March, 1906.

[Vol. 111. note and its execution when it had become due, and at the time its validity was called in question, and what Miss Fitzpatrick told him in respect to it, and whether or not she told him that she herself had signed "Tho. Cockerill & Son" to the note. The defendant had already testified that he knew nothing of the forgery of the note, or that it had been made by Miss Fitzpatrick or any other person aside from Cockerill at the time it was delivered to the bank, or when he indorsed it, and had no such knowledge until its validity was questioned on its presentation for payment. If he then, for the first time, learned that the note was in fact a forgery, he certainly had a right to prove that fact, for it tended to prove that at the time he uttered the note he had no knowledge that it was forged, and, therefore, no intent to defraud the bank by uttering it. He was not confined to the bare statement that he then learned the fact for the first time, but could prove how that knowledge came to him. It seems to me to be evading the question to say that such evidence would be competent if it related to the time of his indorsement and uttering of the notes, but incompetent because the knowledge was acquired at a subsequent time. The contrary follows, for if he had been informed by Miss Fitzpatrick before he indorsed and uttered the note that she had forged it, then he had knowledge of its forgery, and was proving himself guilty of the crime of which he was charged. The questions propounded, answers to which were excluded by the court, were not as sharp and pointed as they might have been, but I think the testimony sought to be elicited tended to prove that, at the time the irregularity of the note was discovered, the defendant then entered upon an inquiry as to how it came to be made and who forged it. He had a right to show to the jury that then was the time he first learned that the note was forged. If the jury believed his story in this respect, then, of course, he was not guilty of the crime for which he was being tried, because he did not utter the forged paper, knowing at the time he uttered it that it was forged. His knowledge and intent was the only issue to be considered, because the People had abandoned the charge that the note was forged by him. On this issue the defendant had the right to prove any facts pertinent to the questions involved, and which tended to put an innocent aspect upon his own acts. (Donohue v. People, 56 N. Y. 208, 213; People v. Gardner, 144 id. 119, 131.)