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SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. he has no rights which the bankrupt himself would not have in the present case were he solvent and in control of his own affairs. It is not alleged or suggested that there was anything fraudulent in the transaction, but the theory of the plaintiff is that Mary C. Osborn, in making a will and in providing for an equal distribution of her property among her children and the descendants of a deceased son, elected to disregard the advances made to Robert A. Osborn under the provisions of the guaranty agreement, and that she intended to make an equal division of what remained after the payment of such obligations out of her estate, instead of deducting the amount out of the portion to be paid to Robert A. Osborn as was done by the original executor, and as was subsequently ratified and approved by the said Robert A. Osborn at a time when he was not only free to act in the premises as he saw fit, but at a time when it was his duty to know the contents of the will and all of the facts relating to the estate. Robert A. Osborn was one of the executors of the will of his mother; it was his duty to know the contents of her will and the assets of her estate, and the law presumes that he has discharged this duty. Having the opportunity of knowing the contents of the will, and presumptively knowing it; having a direct interest in having the will construed so as to relieve him of the payment of over $22,000, Robert A. Osborn, at a time when his firm was entirely solvent, and in the discharge of his duty as an executor, swears that he owes the estate of his mother this sum of money, and his trustee, in a voluntary bankruptcy proceeding, years afterward, and without any suggestion that any one has acted fraudulently in the matter, comes into a court of equity and claims the right to question the construction of the will and the understanding between the parties, and to take from the remaining residuary legatees the money now in the hands of the executors, and which, under the original interpretation of the will, belongs to them, and to turn the same over to the creditors of Robert A. Osborn. suaded that neither equity nor the law requires that this be done, and that the learned referee and the court below have properly disposed of this case. Assuming that the will of the late Mary C. Osborn contemplated that her estate should be charged with the overdraft of Robert A. Osborn, and that he should be forgiven this amount and be permitted to share equally with his brothers and

We are per

App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. sisters, can there be any doubt that he had a right in 1892 to acknowledge such an indebtedness to his mother's estate and to accept an equal distribution of the same after making this allowance? There is no suggestion that he owed any one a single dollar at that time; and if he had given the estate this amount of cash before the distribution, no one would have suggested that his subse quent creditors had any equitable right to reclaim any portion of the money. It is difficult to understand how they could have greater rights under the facts disclosed, for it is certain that a court of equity would not permit Robert A. Osborn to maintain this action to recover money or property which he had voluntarily paid or surrendered, where he had a full opportunity, and where it was his dnty, to know the facts.

But the will, read in connection with the guaranty agreement, and in the light of the relationship of the parties, does not warrant the interpretation put upon it by the plaintiff. The agreement contemplated that the firm of John Osborn, Son & Co., of which Frank Osborn was the active manager, might advance money to the other brothers for their own purposes, and that this need not be limited to their profits, but might encroach upon their interests in their mother's estate as fixed in her will, which she was about to make. In the will which she did make she provided that "each of my children and their issue shall be charged to the extent of the interest that they may respectively have in my estate at the time of my death (which was the interest less the amount advanced under the guaranty agreement) with whatever sums of money shall appear by my books to have been advanced to them subsequently to June 1st, 1890, by me, cr by the firın of John Osborn, Son & Co., at my request, together with the interest thereon, to the time of my death.” While the language might have been clearer, we are of opinion that the intention was not to adjust the estate as of the date of the will, but to fit it in with the contract of guaranty for the sums which the firm might have advanced up to the time of her death, and to provide for an equal distribution of the entire estate among her children and their descendants. This was the construction which all of the heirs accepted and acted upon for several years; it is the natural and logical construction from all of the facts and circumstances surrounding the parties, and the whole

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. matter having been adjusted and acquiesced in by Robert A. Osborn while acting as an executor under the will of his mother, and when there were no rights of creditors involved, we are clearly of opinion that a trustee in bankruptcy of the estate of Robert A. Osborn has no standing in a court of equity to overturn the adjustment and compel the other residuary legatees to contribute to the creditors of their brother.

The judgment appealed from should be affirmed, with costs.
GOODRICH, P. J., HIRSCHBERG and HOOKER, JJ., concurred.
Judgment affirmed, with costs.

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Edgar Jackson and AUGUSTA L. Wilson, as Executors, etc., of

Mary M. Post, Deceased, and Mary A. Post, as Executrix, etc., of Asa J. Post, Deceased, Plaintiffs, v. VALENTINE G. WALTERS, Defendant.

Dover interest - it does not exist in an estate in remainder conveyed by the husband

A widow is not entitled to dower in land in which her husband had a vested

remainder expectant upon an estate for life, which remainder he conveyed to 'the owner of the life estate during the continuance of such life estate by a con. veyance in which his wife did not join.

SUBMISSION of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.

Clinton T. Roe, for the plaintiffs.

Albert D. Ilaff, for the defendant.

WOODWARD, J.:

This case comes here upon an agreed state of facts. The plaintiffs and the defendant have entered into a written contract for the sale of certain premises described in the agreed statement of facts. The defendant declines to complete the purchase on the ground that there is an existing cloud upon the title offered, growing out of the following condition : Samuel C. Post was the original owner of the premises in dispute. He died on the 15th day of November, 1872, seized and possessed of the same. He left a last

App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. will and testament, which was duly admitted to probate, whereby he devised the said premises to his wife, Mary M. Post, for life, and at her death to be divided equally between his four children, Asa J. Post, Mary Louise Post, Samuel C. Post, Jr., and Frederick S. Post. Mary Louise Post died before the death of the testator, unmarried and intestate, while Mary M. Post and the three other children survived him. Asa J. Post died August 16, 1895, leaving a will, which has been duly admitted to probate, whereby he appointed the plaintiff Mary A. Post executrix thereof, with a full power of sale, and the said Mary A. Post has duly qualified as such executrix and letters have been issued to her. On the 29th day of April, 1896, Samuel C. Post, Jr., and Frederick S. Post conveyed to their mother, Mary M. Post, widow of Samuel C. Post and owner of the life estate, all their right, title and interest in and to the said premises so devised by Samuel C. Post, their father, to his widow, with remainder to them and their brother, Asa J. Post. The wives of Samuel C. Post, Jr., and Frederick S. Post, both of whom were married at that time, and both of whom are still living, did not join in this conveyance, and subsequently and on the 2d day of October, 1897, the marriage between Samuel C. Post, Jr., and Rebecca S. Post was dissolved at the suit of the latter. Mary M. Post, widow of Samuel C. Post, and life tenant under the latter's will, and grantee from Samuel C. Post, Jr., and Frederick S. Post, died January 2, 1901, leaving a will, which has been duly admitted to probate, appointing the plaintiffs Augusta L. Wilson and Edgar Jackson her executors, with full power of sale. The executors thus appointed, jointly with the plaintiff Mary A. Post, executrix of the will of Asa J. Post, have contracted to sell the described premises to the defendant, who has refused to complete his purchase upon the ground that the wives of Samuel C. Post, Jr., and Frederick S. Post have an inchoate right of dower in the said premises.

It was held in Durando v. Durando (23 N. Y. 331), cited with approval in House v. Jackson (50 id. 161), and never questioned, so far as we are able to discover, that a widow is not dowable of land in which her husband has only a vested remainder, expectant upon an estate for life, and Samuel C. Post, Jr., and Frederick S. Post having conveyed their interest to the owner of the life estate, they were never seized of an estate of inheritance during the marriage, as

SECOND DEPARTMENT, JULY TERM, 1903.

(Vol. 86.

required by the Revised Statutes (1 R. S. 740, $ 1), and their respective wives never had any interest in the premises sought to be conveyed. It follows, necessarily, that the plaintiffs should have judgment, directing the defendant to complete his purchase under the terms agreed upon.

Judgment for the plaintiffs, upon the terms of the contract of sale agreed upon, without costs to either party.

BARTLETT, HIRSCHBERG, JENKS and HOOKER, JJ., concurred.

Judgment for the plaintiffs, without costs, upon submitted controversy.

JAMES V. LAWRENCE, Appellant, v. WILLIAM C. G. Wilson,

Respondent.

New trial a plaintiff who obtains a verdict cannot object to a condition, on com.

pliance with which by him the verdict is allowed to stand the costs should be paid by the defendant where a new trial is granted because of error in the amount of the verdict.

The defendant in an action of conversion offered to allow judgment to be taken

against him for the sum of $100, which offer was declined by the plaintiff. The action was tried before a jury, which found a verdict in favor of the plaintiff for $400. There was evidence to support the verdict up to the amount of $75, and also some testimony from which an inference might be drawn in

support of a larger amount. The trial judge made an order setting aside the verdict of the jury and granting

a new trial, unless the plaintiff would stipulate to reduce the recovery to $75.

He also imposed the costs of the trial upon the plaintiff. Leld, that the trial judge would have been justified, under section 999 of the

Code of Civil Procedure, in granting a new trial unconditionally, and that the direction that the verdict might stand if the plaintiff would elect to reduce the amount thereof was a favor granted to the plaintiff, of which the latter

was not entitled to complain; That the error which justified the granting of a new trial having been committed

by the jury, the costs of the trial should have been imposed on the defendant as a condition of making the order granting the new trial.

APPEAL by the plaintiff, James V. Lawrence, from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 1st

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