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Ludwig, Franklin B. Ludwig, and Edward I. Ludwig. Said Agnes Ludwig died, leaving a last will and testament, bearing date the 13th day of February, 1886, which contained the following clause in reference to the property in question:
"Second. I give, devise, and bequeath my undivided half part of the house and lot situated on the easterly side of Sixth avenue, and at present known by the street number one hundred and thirty-four on said Sixth avenue,
unto my two children, Charles Achille Ludwig and Frank Ludwig, and to their heirs, executors, administrators, and assigns, forever, to be equally divided between them, share and share alike; and in case of the death of wither of my said children during his minority, without leaving lawful issue him surviving, I give, devise, and bequeath the share or part of the child so dying to the survivor of them, and to his heirs, executors, administrators, and assigns, forever; and in case of the death of both of my said children during their respective minority, without either of them leaving lawful issue him surviving, then and in such case I give, devise, and bequeath the shares of both of my said children to my husband, Achille Ludwig, his heirs and assigns, forever."
The defendant Edward I. Ludwig was born after the execution of said last will and testament of said Agnes Ludwig, and before the death of either Charles Achille Ludwig or Franklin B. Ludwig. The said last will and testament of said Agnes Ludwig was duly admitted to probate on the 3d day of October, 1880. Charles Achille Ludwig died intestate, unmarried, and without lawful issue on the 6th day of December, 1886. Franklin B. Ludwig died in 1895, intestate, unmarried, and without lawful issue. Achille Ludwig died on the 23d day of December, 1901, leaving a last will and testament, dated September 20, 1901, which said last will and testament has been duly admitted to probate, and by which last will and testament he gave, devised, and bequeathed all his interest in the property in question to the defendant Marie Louise Court, subject, however, to the use of the mother of the said Marie Louise Court, Angeline Court, of such interest in the said property until said Marie Louise Court should reach the age of 30 years. The will also provided that, if the said Angeline Court should die before the said Marie Louise Court should reach the age of 30 years, the said Marie Louise Court should come into immediate possession and title of said property. By the said will the said Achille Ludwig appointed the defendant Angeline Court executor, and gave her full power and authority to sell and convey his said real estate. The said Marie Louise Court is now of the age of 17 years. On the rith day of December, 1899, the said Achille Ludwig mortgaged his interest in said property to the defendant Bacigalupo, and on the 29th day of March, 1901, the said Achille Ludwig further mortgaged his property to the defendant Angeline Court, both of which mortgages are still in full force and effect. On the 3d day of March, 1902, by deed dated on that day, said Angeline Court, as executrix of Achille Ludwig, deceased, conveyed to the plaintiff herein all the right, title, and interest of the said Achille Ludwig, deceased, in said property hereinbefore mentioned. The defendants Cordes and Sparrow are tenants in said property under leases which terminate on the ist day of May, 1903.
I decide that John Walter Righter, the plaintiff herein, is now seised in his own right, in fee simple, as tenant in common, of, in, and 114 New York State Reporter and to seven-twelfths of the premises mentioned and described in the complaint, subject to the said mortgage to the defendant Bacigalupo and interest thereon, and subject to the said mortgage to the defendant Angeline Court and interest thereon; that the defendant Edward I. Ludwig is seised in his own right, in fee simple, as tenant in common, of, in, and to five-twelfths of said premises, subject to the right of dower of his wife, the defendant Julia A. Ludwig; that the defendant Jeanette H. Bacigalupo has a lien on the interest or share of the plaintiff in the sum of $1,000, with interest thereon; that the defendant Angeline Court has a lien on the interest or share of the plaintiff in the sum of $3,000, with interest thereon; that the defendant Julia A. Ludwig has an inchoate right of dower in the five-twelfths interest of the defendant Edward I. Ludwig; that the defendants John D. Cordes and Jacob Sparrow are tenants in said property under leases which terminate on May 1, 1903; that the premises hereinabove mentioned is the only real estate owned in common by the parties to this action; that there are no liens or incumbrances on the premises, or any part thereof, except as above mentioned; and that the premises are so situated as to be incapable of actual partition; and I order judgment accordingly, with costs of this action.
The grounds of this decision are as follows:
"If the intestate die without lawful descendants, and leave a father, the inheritance sball go to such father, unless the inheritance came to the intestate on the part of his mother, and she be living; if she be dead, the inheritance descending on her part shall go to the father for life, and the reversion to the brothers and sisters of the intestate and their descendants, according to the law of inheritance by collateral relatives hereinafter provided."
On the death of Charles Achille Ludwig, Achille Ludwig owned one-half of said property in fee, and held an interest for life in a portion of the rest of the property. Franklin B. Ludwig owned onesixth in fee, which came to him from said Agnes Ludwig, and Franklin B. Ludwig also owned one-twelfth in fee, which descended to him from said Charles Achille Ludwig. Edward I. Ludwig owned onesixth in fee, which came to him from said Agnes Ludwig, and he also owned one-twelfth in fee, which came to him from Charles Achille Ludwig. On the death of Franklin B. Ludwig, the one-sixth which he had received from his mother, Agnes Ludwig, descended to the sole surviving brother, the said Edward I. Ludwig. The onetwelith which he received from his brother Charles Achille Ludwig descended to his father, Achille Ludwig. This one-twelfth came to said Franklin B. Ludwig under section 284 of the real property law, and would not go to the defendant Edward I. Ludwig unless it came to the said Franklin B. Ludwig "on the part of his mother and she be living:" I have not been able to find a case exactly like the present, but a similar point was considered in the court of appeals in Wheeler v. Clutterbuck, 52 N. Y. 67. The facts in that case were that one Richard Tighe died intestate, seised of certain real estate, and leaving a widow and two children, Patrick and Letitia. The widow remarried, and by the second marriage had one son, William. Letitia then died intestate, without descendants, and thereafter Patrick also died intestate, without descendants, leaving his mother and his half-brother, William, alive. It was held that, as to the undivided one-half of the land which came to Patrick by descent from his father, William, the half-brother, was excluded from inheriting, because he was not of the blood of the father of Patrick, and that the mother took the inheritance in fee; that as to the other undivided one-half, which came to Patrick by descent from Letitia, subject to the life estate of the mother, William took the inheritance subject to such life estate, he having been born of the same mother, and thus being of the blood of Letitia. The court said that section 15 of the statute (1 Rev. St. p. 753) concerning descents, which provides that in case an inheritance came to an intestate by descent, devise, or gift of one of his ancestors, all those not of the blood of such ancestor shall be excluded from such inheritance, refers to the immediate ancestor from whom the intestate received the inheritance, not a remote ancestor who was the original source of title, and that the term “ancestor," when used with reference to the descent of real property, embraces collaterals as well as lineals through whom an inheritance is derived. Following this ruling, Charles Achille Ludwig, and not Agnes Ludwig, was the ancestor from whom Franklin B. Ludwig received one-twelfth of the estate, and this one-twelfth so received went to Achille Ludwig. In Valentine v. Wetherill, 31 Barb. 655, the court said, in interpreting the same statute, “The statute looks only at the last possession of the inheritance, and does not refer to the original source of title." To like effect are Hyatt v.
v Pugsley, 23 Barb. 300; Adams v. Anderson, 23 Misc. Rep. 705, 53 N. Y. Supp. 141; Emanuel v. Ennis, 48 N. Y. Super. Ct. 430.
(39 Misc. Rep. 420.)
RANGER V. THALMANN et al. (Supreme Court, Special Term, New York County. December, 1902.) 1. Action On Note-UNDISCLOSED PRINCIPAL.
Plaintiff sued on behalf of certain bondholders under a railroad mortgage, alleging that on foreclosure and sale a third person bid in the property for a firm whose obligations were assumed by the defendants; that the master, under the terms of the sale, retained a lien on the property sold to secure the notes given in part payment of such property; that, they not being paid, the court ordered another sale; that the proceeds of such sale sa tistied the payments ordered by the decree; that the firm for whom the property was orginally bid in at mortgage sale thereafter took the property, paying all the expenses; and that the master, not knowing that the third person who bid in the property was the agent of such firm, sued him on the notes without result. Held to state a good
cause of action as against the defendants as undisclosed principals. 2. ELECTION OF REMEDIES-ACTION AGAINST AGENT.
That the holder of notes sued the maker thereof at a time when it was not disclosed that he was the agent of a third party is not an election by the plaintiff to release the undisclosed principals, so as to render the
judgment obtained against the agent a release of the principals. Action by Solomon Ranger, suing on his own behalf and on behalf of other bondholders of the Tennessee Central Railroad Company
and 114 New York State Reporter against Ernst Thalmann and Richard Limburger, to recover a balance remaining unpaid of a bid by one C. O. Godfrey, as agent of defendants, on a foreclosure sale. Demurrer to complaint overruled.
Arthur C. Palmer, for plaintiff.
WRIGHT, J. The mortgage was made by the railroad company to secure an issue of $250,000 in bonds. On the sale by the master in chancery, Godfrey bid in the property for $20,000, and paid thereon $2,000 cash, and gave his individual notes for the balance. The master retained an express lien on the property to secure the paynient of the notes. This sale was confirmed by the court. The notes not being paid, another sale was decreed, upon which $6,025 were realized, which sale was duly confirmed. The amount realized on these sales was sufficient for the payments directed by the decree, so that the bondholders are entitled to the surplus. An action was brought by the master against Godfrey upon his promissory notes; judgment was obtained for the balance due; execution issued, and was returned unsatisfied. When this case was beiore the appellate division on a demurrer to the original complaint (65 App. Div. 5, 72 N. Y. Supp. 451), Judge Ingraham, in his opinion, said:
"The only allegations connecting these defendants with the transaction is that they directed Godfrey to purchase the property in their behalf as their agent; that such purchase was made by Godfrey pursuant to such instructions;
that during all the proceedings had in said action under the bid made by Godfrey, including the final decree confirming the sale, the said Godfrey was the agent of said firm, and acted on their behalf. • It is not alleged that the defendants paid the consideration, or even became the owners of the property. No trust resulted in their favor, nor does it appear that the defendants would have been entitled to the property as against Godfrey. When, therefore,
the special commissioner assumed to hold Godfrey as the purchaser, and to collect the notes,
without making a request or giving notice to these defendants or their predecessors as principals, it seems that he elected to hold Godfrey as the principal.
It is not alleged that the relation of the defendant to the transaction was that of an undisclosed principal, or that at the time the special master sought to enforce the obligation against Godfrey the relation of the defendant to the transaction was unknown either to the plaintiff or those acting in his behalf."
For these objections the demurrer was sustained. But by the amended complaint the objections are cured by proper allegations. The amended complaint, in addition to the allegations of the original complaint, alleges, in effect, that Godfrey bid off the property pursuant to an agreement theretofore made with a firm whose obligations the deiendants have assumed; that said firm furnished Godfrey with the caslı payment of $2,000, and authorized the giving of said notes, and, after the sale was confirmed by the court, ratified the purchase, paid all expenses incident thereto, and accepted the property, and paid all expenses incurred in caring for the same after the purchase. Therefore, taking all the allegations together, the firm was the purchaser of the property by its agent, Godfrey, made the cash payment through him, and, the sale being confirmed by the court, became obligated to pay the balance of the bid as represented by the agent's promissory notes. When, therefore, the agent took the title in his own name, a trust resulted to the firm, and it became the equitable owner.
The amended complaint also contains the allegation additional to those in the original, as follows: That the master in chancery, prior to the return of the executions against Godfrey, had no knowledge or information that said firm was his principal, or was interested in the purchase. The master in chancery, having no knowledge or information that the firm was Godfrey's principal, did not elect to hold the agent instead of the principal. Such an election requires, as the very term implies, knowledge or information of the existence of the relationship of principal and agent. In that way only is an opportunity afforded for an exercise of a preference. Kayton v. Barnett, 116 N. Y. 625, 23 N. E. 24; Remmel v. Townsend, 83 Hun, 353, 31 N. Y. Supp. 085; Brown v. Reiman, 48 App. Div. 295, 62 N. Y. Supp. 663; Iron Co. v. Day, 11 App. Div. 230, 42 N. Y. Supp. 971; Distilling Co. v. Devendorf, 72 Hun, 428, 25 N. Y. Supp. 200. The fact that the master in chancery obtained judgment against the agent on his promissory notes did not release the undisclosed principal from its original obligation. Id. The demurrer must, therefore, be overruled, with costs, with leave to the defendants to answer within 20 days after the service of the interlocutory judgment to be entered hereon.
Demurrer overruled, with costs, with leave to defendants to answer within 20 days after service of interlocutory judgment to be entered hereon.
(39 Misc. Rep. 423.)
KIRKLAND V. KIRKLAND.
(Supreme Court, Special Term, St. Lawrence County. December, 1902.) 1. DIVORCE-BILL OF PARTICULARS.
Where complaint in divorce is entirely indefinite as to the time and place of the alleged adulteries committed by the defendant, and all the charges were denied by a verified answer, a motion for a bill of particulars will be granted upon the affidavit of the defendant's attorney, under Code Cir. Proc. $ 531, authorizing the court to direct a bill of particulars, but making no requirement that it must be on the affidavit of the party or
otherwise. Action by Blanche Kirkland against George B. Kirkland. Motion for bill of particulars. Granted.
Arthur T. Johnson, for plaintiff.
KELLOGG, J. The complaint charges the defendant with adultery at divers times during the years 1900 and 1901, in the town and village of Gouverneur, with inmates of houses of prostitution. It is entirely indefinite as to time, place, and person with whom the adultery is alleged to have been committed. The verified answer admits the marriage, and that there is no issue, and denies every other allegation of the complaint. Upon the pleadings, and the affidavit of the defendant's attorney that he cannot safely proceed to trial until he is furnished with the particulars of the alleged offense, the defendant moves for a bill of particulars as to the times, places,