First Department, February, 1906.

[Vol. 111. testatrix as to the ownership of the stock are only relevant to prove the claim of the defendants that Weyant had acquired title to the stock from the plaintiff's testatrix, and that he had the right to transfer it to the defendants. To allow this testimony would, therefore, have been to allow the person through whom the defendants claimed the stock to testify to a personal transaction with the deceased which would divest her of title and vest it in the person from whom the defendants claimed to have acquired title. I think it was also incompetent because Weyant was a person interested in the successful maintenance of this defense. If the defendants are liable he would then be clearly liable to them for the proceeds of this stock that he had transferred to them. He was, therefore, directly interested in the result within Redfield v. Redfield (110 N. Y. 671).

The appellants also claim that it was error to allow the husband of the plaintiff to contradict the testimony of Weyant upon crossexamination that he showed the witness a copy of this instrument upon which the claim of the defendants to the ownership of this stock was based some time after the death of the testatrix. Weyant, in his direct examination, had testified that he retained this certificate of stock exclusively in his possession until April 14, 1904, when he left it with the defendants; that he had notified Mr. Hall, husband of the executrix, to that effect; that he took Mr. Hall down to Ennis & Stoppani and introduced him to them; told them who he was, and told them about the Erie first preferred and about drawing the check for $2,000. Subsequently, on motion of counsel for the plaintiff, this statement as to what the witness told Mr. Hall was stricken out. The witness also testified to a conversation with Mrs. Hall with reference to this certificate. Upon cross-examination he testified that he showed the paper upon which the defendants' claim to the stock was based to Mr. Hall, but never showed it to Mrs. Hall; that he told her about it, and she said it was all right, she did not want to see it; that he showed it to Mr. Hall a few days after Mrs. Clopton's death, when he went down to Ennis & Stoppani's office, and at that time produced this identical paper just as it was then, and showed it to Mr. Hall on the Rector street elevated station; that he showed it to him for the purpose of explaining the Erie first preferred.

App. Div.]

First Department, February, 1906.

In rebuttal the plaintiff called Hall, who testified that he was the husband of the plaintiff, and was asked whether he had ever seen this paper which Weyant said he had shown to him. That was objected to as incompetent, immaterial and irrelevant and an attempt to contradict a witness put upon the stand by the defendants. and examined as to a collateral issue by the plaintiff. This objection was overruled and the defendants excepted. I do not think this was error. Weyant, on his direct examination, had testified

that he had had conversations with both Mr. and Mrs. Hall in relation to this stock. The cross-examination of Weyant by the plaintiff was in relation to these conversations about which he had testified in chief. The examination of Weyant as to what took place at these interviews, about which he had testified, was strictly a cross-examination, and not testimony called forth by the plaintiff whereby she made the witness her own. As to just how far counsel should be allowed to go upon rebuttal is largely in the discretion of the court, and while the rule is well settled that where a party upon cross-examination inquires into strictly collateral matter that has no relation to the examination in chief, it is not competent for him to call a witness to contradict or disprove the testimony thus given, nevertheless, where the examination has relation to the subject upon which the witness has testified upon direct examination, it is not a collateral matter which cannot be contradicted. Weyant, in his testimony, endeavored to create the impression that the plaintiff and her husband, who was acting for her in settling the estate, had acquiesced in his claim to the ownership of this stock, and I think it was a legitimate cross-examination to inquire of the witness just what statements he had made to the plaintiff or to her husband upon which he asked the jury to base that conclusion. I do not think, therefore, that it was error to allow the witness Hall to deny the statement made by Weyant as to his conversations or interviews with Hall.

There are other exceptions to rulings upon testimony, but they do not require discussion.

I think that the judgment and order should be affirmed, with costs.

O'BRIEN, P. J., and MCLAUGHLIN, J., concurred; LAUGHLIN and HOUGHTON, JJ., dissented.

First Department, February, 1906.

LAUGHLIN, J. (dissenting):

[Vol. 111.

I dissent on the ground that it was error to receive Hall's testimony in contradiction of Weyant's.

HOUGHTON, J. (dissenting):

a witness, the

I dissent on the ground that the objection was not sufficient to raise the question of Weyant's competency as objection being to the competency of the evidence merely.

Judgment and order affirmed, with costs.

FERDINAND N. MONJO and JENNIE M. MONJO, His Wife, Respondents, v. ADDIE WOODHOUSE, Appellant, Impleaded with GEORGE A. WIDMAYER and Others, Defendants.

First Department, February 9, 1906.

Will-discretionary power of disposal by widow-when widow may exercise such power by a devise charged with advancements to other heirs.

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*

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to

When a will gives to the testator's widow a life estate in certain real property with power "to devise the same by her last will and testament any or all of our children or grandchildren or both in such shares or proportions as to her shall seem best," and in the event of a failure to exercise such power of disposal by the widow the will gives said property in remainder "to my children," etc., the widow has power to devise a portion of said real estate to a granddaughter of the testator charged with deductions equal to the amounts the testatrix has advanced to the father and brother of said granddaughter then living.

As the testatrix, under her husband's will, had power to cut off such granddaughter entirely, she cannot complain because the devise is charged with said deductions.

Nor can she contend that there was a failure by the widow properly to exercise the power of disposal, for in that event the share of the lands would go to the father of said granddaughter then living.

MCLAUGHLIN and HOUGHTON, JJ., dissented, with opinion.

APPEAL by the defendant, Addie Woodhouse, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 31st day of March,

App. Div.]

First Department, February, 1906.

1905, upon the decision of the court rendered after a trial at the New York Special Term.

Robert H. Honeyman, for the appellant.

Eugene L. Bushe, for the respondents.

INGRAHAM, J.:

This action was to partition real property, and the only question presented is as to the right of the defendant, appellant, to an interest therein. This depends upon the construction to be given to the 3d clause of the will of George Widmayer, and an attempted exercise of a power of appointment given by that clause by his wife in her last will and testament. At the time of his death George Widmayer was the owner of the premises in question. The 3d clause of his will provides as follows: "I hereby give and devise to my said wife Johanna B. Widmayer my house and lot number 115 West 61st street in the City of New York, to have and to hold the same to her for and during the term of her natural life, with full power and authority to my said wife to devise the same by her last will and testament, or by an instrument in writing in the nature thereof to any or all of our children or grandchildren or both in such shares or proportions as to her shall seem best. And in the event of my lot by her last will and

said wife not disposing of said house and testament or by an instrument in writing in the nature thereof to or among our children or grandchildren or some of them, as she is hereinabove authorized, then upon her death without having disposed thereof as aforesaid, I give and devise the said house and lot number 115 West 61st street in the City of New York to my children equally and to my grandchildren, the children of my deceased daughters Margaret E. Ebbinghausen and Mary Emma Monjo per stirpes as tenants in common to them, their heirs and assigns forever." If the widow failed to exercise the power of appointment, the appellant, Addie Woodhouse, would have been entitled to no share of the property, as her father, who was one of the children of the testator, was still alive. The testator's wife attempted to exercise this power by the 2d and 3d clauses of her will. The 2d clause, after reciting the provisions of the will of APP. DIV.-VOL. CXI.

6

First Department, February, 1906.

[Vol. 111. her husband, provided as follows: "Now I do hereby exercise the power and authority given to me in and by my husband's said will to dispose of said house and lot, and I do give and devise the said house and lot No. 115 West 61st street, in the City of New York, where I now reside, being the same house and lot which is now known by the street number 137 West 61st street, to and among our children and grandchildren, that is to say: Onefifth part thereof to our son George A. Widmayer, one-fifth part thereof to our son William F. Widmayer, one-fifth part thereof to our granddaughter Addie Woodhouse, wife of V. H. Woodhouse of New York City, daughter of our son Henry E. Widmayer; one-fifth part thereof to our grandson Ferdinand N. Monjo, son of our deceased daughter Mary Emma Monjo; one-tenth part thereof to our granddaughter Julia M. Hurtt, daughter of our deceased daughter Margaret Ebbinghausen; and one-tenth part thereof to our grandson George Henry Ebbinghausen, son of our deceased daughter Margaret Ebbinghausen, as tenants in common, to them and their heirs and assigns forever." By the 3d clause of this will, however, the devise to her granddaughter, Addie Woodhouse, is made upon the express condition that "said 1/5 part shall be charged with the payment of the indebtedness of my said son Harry E. Widmayer to me, and of my grandson Harry Widmayer to me, and whereas my said son Henry E. Widmayer and Harry Widmayer each is now indebted to me in a large amount, together with the interest thereon, for moneys loaned by me to each of them respectively, I do hereby charge the payment of the said indebtedness and the interest thereon and also all other sums in which either of them may be indebted to me at the time of my decease, and the interest thereon, upon the said 1/5 part of the said house and lot hereinabove given and devised to my said granddaughter Addie Woodhouse, and direct that out of the said 1/5 part of the said house and lot the said indebtedness shall be paid to my executor as part of my residuary estate, and if said 1/5 part or the 1/5 part of the proceeds of the said house and lot when sold shall not be sufficient to pay all the said indebtedness, with interest, then any balance of the said indebtedness which shall remain unpaid after applying said proceeds in part payment shall be charged against and paid out of the one-fifth part of my residuary estate hereinafter given,