from each was to be applied to the use of the children for whom it was designated. The one-third share of the entire estate had been held for the ultimate use of each child, at all times subject to the prior trust for the benefit of the wife in a portion thereof. If this construction be not adopted, then the testator made no disposition of the fund set apart for the use of the wife after her death. The portion of the estate set apart for the use of the wife is undisposed of, unless it is included in the part of the estate which the testator had in mind when he used the words, "capital of the share held for the use of the one so dying." Our conclusion is, therefore, that those words refer to the one-third part of the entire estate. In a broad sense, the executors at all times held all the estate for the use of the three children, one-third for each child. This construction prevents intestacy as to any portion of the fund, and that result should be accomplished whenever it can reasonably be done. Returning again to the meaning of the word "children," as used by the testator, we have stated the exceptions to the general rule that the word is to be understood in its primary sense of "offspring in the first degree." It is now to be remarked that this case falls within neither of those exceptions. There were persons in existence who would answer the description of "children" in the primary sense of the word when the will was made, and there could be and was such when all the events contemplated by the testator transpired. There is nothing in the use of the word by the testator in any other portion of the will to indicate his intention to use it in any but its primary sense. Throughout the entire will the testator has manifested the intention to give his surviving children the ultimate use of his property, and whenever he has indicated his grandchildren he has designated them as issue of his children. In the last clause of the first paragraph of the will the testator provided that, if two of his children died before him, the executors were to hold all the residue upon the same trust, to apply the income to the use of such surviving children during life, and divide the principal among his or her lawful issue equally; thus manifesting an intention in a certain contingency to permit one-third of one child to receive all the income. But in no part of the will is there any indication of an intention to allow the issue of one child to take anything more than the share held for the use of their parent. The will manifests a predominant intention of the testator to make liberal and equal provisions for his three children. The residue of the estate, after the property is set apart for the use of the wife, is divided into three parts, and a vested life estate is given to each child in one of the provisions. The same division is made of the $120,000 after the death of the widow. Then, if either of the children die without issue to take the parents' share, the executors are to divide and pay the share for the use of the one so dying among the surviving children equally. We must assume that this language is employed with deliberation. It is precise and plain, and we are asked to decide that it should be construed to include grandchildren with the children in such

division and distribution. We find no justification for any such interpretation. It is not so written, and there is no ground for any such inference. In Re Robinson, 57 Hun, 395, 10 N. Y. Supp. 692, we had this question presented to us under circumstances similar to those in this case, and we there reached the same conclusion, and gave our reasons at length therefor. Without more elaboration, we think the decree should be reversed, and the case remanded to the surrogate for disposition in accordance with this opinion; and the costs of the appeal to be paid out of the estate. All concur.

MANN v. CARTER et ux.

(Supreme Court, General Term, Second Department. July 28, 1893.) ATTACHMENT-AFFIDAVIT BY AGENT-SUFFICIENCY.

An affidavit for attachment made by plaintiff's agent sufficiently shows that plaintiff is entitled to the amount claimed over and above all counterclaims, where affiant alleges that he has in his possession the note sued on; that defendants had admitted to him its execution and nonpayment; and that, as he is informed by plaintiff and believes, the whole amount thereof is due over and above all counterclaims known to plaintiff.

Appeal from special term, Kings county.

Action by Florence N. Mann against William D. Carter and Kate B. Carter, his wife. Kate B. Carter was not summoned, and the action proceeded against William D. Carter alone. From an order denying a motion to vacate an attachment, defendant William D. Carter appeals. Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ. Campbell, Hotchkiss & Reiley, (Wm. O. Campbell, of counsel,) for appellant.

Lowrey, Stone & Auerbach, for respondent.

DYKMAN, J. This is an appeal from an order denying a motion to vacate an attachment against the property of the defendant. The motion was made upon the papers on which the attachment was issued, and is based upon the insufficiency of the affidavit upon which the writ was granted. That affidavit was made by the attorney in fact and agent of the plaintiff. The action is upon the joint promissory note of the defendants for $15,000, which is in the possession of the agent. He has held conversations with the defendants in which they have admitted to him the making and delivery of the note and the nonpayment thereof. Those facts are stated in the affidavit, and they are the grounds upon which the statements therein upon information and belief are made. The affidavit was made by the agent, because the plaintiff was absent from the state. He states that the whole amount of the note is due, with interest from the 2d day of January, 1892, over and above all counterclaims known to the plaintiff, as he is informed by her and verily believes. That is a sufficient statement of the source of his information. The insufficiency of the affidavit is claimed

to result from its failure to show that the plaintiff is entitled to recover the sum of money claimed over and above all counterclaims known to her. We must therefore determine whether the affidavit in question makes such a showing.

The affiant was the agent of the plaintiff, and had important knowledge and information respecting the claim upon which this action is founded. The note was in his possession, and the plaintiff had informed him that there was no counterclaim. He had conversed with the defendants respecting the note, and they had admitted to him the making and delivery of the note and its nonpayment. All those facts were submitted to the judge, who granted the attachment, and they were sufficient to show that the plaintiff • was entitled to recover the amount due upon the note, and that there was no counterclaim against it. The facts stated in the affidavit required the action of the judicial mind; were sufficient to satisfy the judge that the plaintiff was entitled to the writ; and, if they did so satisfy him, as they did, the attachment will not be vacated. There are many adjudicated cases in our Reports upon this question, but they all depended upon their peculiar facts, and but little aid can be derived from their examination. Our conclusion is that the order should be affirmed, with $10 costs and disbursements. All concur.

POUND v. MOLYNEAUX.

(Supreme Court, General Term, Second Department. July 28, 1893.) MILK CANS WRONGFUL POSSESSION-ACTION FOR PENALTY.

In an action for the penalty provided by Laws 1887, c. 401, as amended by Laws 1890, c. 25, for using or having in one's possession, without the consent of the owner, the milk can of another, stamped with his name, the evidence showed that defendant owned, but had leased, the spring house in which the can was found; that the lessee had agreed to milk defendant's cows, cool the milk, and deliver it at the side of the road; that defendant, according to his agreement, furnished the cans; but that the one belonging to plaintiff was not among those furnished by him, and was not known by him to be on the premises. There was no evidence that the can was ever used for defendant's milk. Held, that he was not liable.

Appeal from circuit court, Orange county.

Action by Henry S. Pound against Revilo H. Molyneaux to recover the penalty for using, or having in his possession, without the consent of plaintiff, a milk can, the property of plaintiff, stamped with his name, in violation of Laws 1887, c. 401, § 4, as amended by Laws 1890, c. 25. Judgment for defendant. Plaintiff appeals.

Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ. F. V. Sanford, for appellant.

C. Hull, for respondent.

BARNARD, P. J. This action was brought under chapter 401, Laws 1887, as amended by chapter 25, Laws 1890. The plaintiff

was the owner of a milk can. It was found in a milk spring belonging to defendant in August, 1891. The owner had given no consent that the defendant should have on his premises the can in question. The question litigated on the trial was one of fact. The defendant testified that, although he owned the farm on which the can was found, he had leased the premises, previous to the finding of the can, to a Mrs. Huysen. The agreement was this: The cows on the farm belonged to defendant and a Mrs. Longyear. Mrs. Huysen rented the spring lot, and agreed to milk the cows, cool the milk, and deliver the same at the platform by the road. Defendant was to furnish the cans. Defendant did furnish the cans,' but this one was not among those furnished by him, and he never knew it was used on the farm. The cans were kept on defendant's other premises. Assuming these facts to be true, the defendant is not liable for the penalty for using the same. He had no knowledge that the plaintiff's can was in use in the business. He had leased the property on which the can was found. Mrs. Huysen could use the spring for cans of milk other than defendant's. The presumption is, under the finding of the jury, that the can was in Mrs. Huysen's possession, and was not used in the business of the defendant. There is no proof that the can ever was used for the defendant's milk. The judgment and order denying new trial should therefore be affirmed, with costs. All concur.

(71 Hun, 104.)

QUINBY v. NEW YORK LIFE INS. CO.

(Supreme Court, General Term, Second Department. July 28, 1893.)

1. INSURANCE-POSSESSION OF POLICY-PRESUMPTION OF PAYMENT OF PREMIUM. The possession of a policy of insurance containing a clause, "in further consideration of the sum of $67.50, to be paid in advance," is not evidence of the payment of the first premium.

In an action on a policy of life insurance, defendant's agent testified that the first premium was never paid, and that he gave the policy to his clerk to deliver to decedent, and also gave him a receipt for decedent, provided he paid the money. The clerk testified that he gave the policy to decedent, who said that he had no money at the time, and that witness told him that he was instructed by the agent to leave the policy for inspection, but that it was not to be in force until the first premium was paid, and that witness called on decedent many times, and was unable to obtain the money or the policy. Held, that the evidence failed to show a waiver of payment of the first premium, and consequently that the policy was not in force.

Appeal from circuit court, Kings county.

Action by Mariam J. Quinby against the New York Life Insurance Company on a policy of insurance. From a judgment for defendant dismissing the complaint, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ. A. Simis, Jr., for appellant.

Hornblower, Byrne & Taylor, (Wm. B. Hornblower and James Byrne, of counsel,) for respondent.

v.24N.Y.s.no.8-38

DYKMAN, J. This is an appeal from a judgment and order denying a motion for a new trial. The action is upon a policy of insurance upon the life of William D. Quinby, the husband of the plaintiff. The complaint alleges that on or about the 22d day of June, 1892, William D. Quinby insured his life in the defendant company; that, by the policy of insurance issued by the company, it promised and agreed to pay to the plaintiff the sum of $5,000 upon receipt of proofs of the death of the insured during the continuance of the policy; that the insured died on the 16th day of August, 1892; that proofs of death were served, and the defendant refused to pay the amount of the policy to the plaintiff. The answer of the defendant denies that any policy of insurance in favor of the plaintiff on the life of her husband was ever issued to him, and denies that he ever insured his life for the benefit of the plaintiff. The answer sets up other defenses, to which attention may be given later on. The action was tried at the circuit, before a jury, and at the close of the case a verdict was directed in favor of the defendant. There is no substantial dispute about the facts. Upon the trial the plaintiff produced the policy of insurance, and testified that she received it from her husband, and admitted that she had never paid any premium upon it. The defendant then put in the testimony of the agent, William O. B. Clifford, who wrote the application of Mr. Quinby. He testified that the first premium had never been paid, and, further, that he delivered the policy to his brother for delivery to Mr. Quinby, and gave his brother a receipt to Quinby, provided he paid the money. The defendant called the brother, F. W. Clifford, as a witness, and he testified that he was a clerk for William O. B. Clifford; that his brother handed him the policy at the office; that he delivered it to Quinby; and that Quinby read the policy through, and asked him numerous questions as he proceeded; and then said that he had not the money at present, but that, if Clifford would call after the 1st of July, he would have the money for him. Clifford then told Quinby that he was instructed by his brother to leave the policy for inspection, and that the policy was not in force until the first premium was paid. Although he went many times to see Quinby, he was unable to obtain the policy from him, or procure payment of the first premium. It was conceded also upon the trial, in order to obviate the necessity of an adjournment, that a witness, a clerk in the home office of the defendant, would testify that no payment had been received of the first premium at the home office of the company. A letter from the agent Clifford to Quinby was put in evidence by the defendant, in which he says: "You will greatly oblige me by mailing check for the amount agreed upon, or, if such is impossible, return the policy at once." It seems to have been the reliance of the plaintiff that the possession of the policy was prima facie proof that the first premium had been paid.

While it is ordinarily true that the production by the plaintiff of a policy of insurance is prima facie evidence of the payment of the first premium, for the reason that the policy which is in her