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after be changed; and Dr. Hoyt's testimony, if fully credited, amounts to no more than that.

Ninth. Dr. Hoyt's letter to Mary Wallace, written December 7, 1909, does not to my mind indicate that he then believed that Mr. and Mrs. Wallace had declared anything to him, other than their then present intention of dividing the estate equally between the two families. He therein urges "Christian arbitration and settlement out of court" upon that basis, not that he understood that there was any binding agreement between Mr. and Mrs. Wallace to that effect.

Apart from the considerations above stated affecting the testimony of those two witnesses, some other matters appear worthy of note. The late Mr. John Notman was an eminent lawyer and a man of high character. He was the personal counsel of both Mr. and Mrs. Wallace. He drew his will and also hers of May 2, 1902, and, if she made one of May 18, 1894, when her husband made his, he doubtless drew that also, and he attended to the execution of all the wills. If there was, between those parties, any agreement such as these plaintiffs here claim, he must have known of it. It is difficult to believe that, in such case, he would have been a party to the making of the will of 1902, which he must have known was a violation of such agreement and a breach of the trust thereby created.

Moreover, all concede that Mrs. Wallace was a woman of the highest character, who greatly respected her husband, and was in the full possession of her faculties when she made the will of 1902. It is again difficult to believe that such a woman would have perpetrated such a fraud as, in the view here presented by these plaintiffs, her will of 1902 was. It is true that the alleged contract accords with the natural equity that the estate should ultimately be divided equally between the two families, as all the descendants of the parties (Mr. and Mrs. Wallace) had died, and they were so advanced in years that, of course, they were without hope of further issue; but it is not clear that any natural equity would have been promoted by depriving Mrs. Wallace of her natural right to distribute her half of such estate among her blood relatives, according to her judgment of their respective deserts. [11] The learned counsel for the plaintiffs contends that this court should regard the decision of Mr. Justice Blanchard, reported at 71 Misc. Rep. 305, 130 N. Y. Supp. 58, upon the trial of the other action, in favor of the plaintiffs therein, who were blood relatives of James P. Wallace, as decisive and conclusive here in favor of these plaintiffs

. It seems to me that the decisive questions in both actions were of fact, and not of law, and I do not understand that one judge should govern his judgment of facts by that of any other judge.

It seems to me, moreover, that the case here before me is far different from that which was before Mr. Justice Blanchard at the trial of the other action. He had before him the testimony of the three witnesses, Devlin, Flynn, and Leddy, and the alleged typewritten copy of the alleged will of May 18, 1894, all of which have been now excluded from this case.

He did not have before him at all the facts, present here, that the two leading witnesses of the plaintiffs had re

ceived, after giving similar testimony for other plaintiffs in a like case, large sums of money, and that at least one of those witnesses was sorely disappointed that he had not received from them a larger sum for having so testified, or the other fact, here proven, that before testifying such witness had exacted a purchase by such plaintiffs of his imperiled legacy at its face value, and the actual deposit in escrow of the purchase price--a legacy which, if his testimony be true according to his manifest view of its effect, did not belong to him morally or legally. On the contrary, Mr. Justice Blanchard wrote of those two witnesses:

"No evidence • indicating bias (on their part] was produced.” And again, as to Dr. Hoyt: "Yet he had put in peril an assured sum (viz., the legacy) in exchange for an indefinite promise.”

In the case here at bar the promise has ceased to be indefinite, and has become so precise as to be accompanied by the deposit with a stakeholder of the actual sum of money represented by the imperiled legacy.

Moreover, the plaintiffs in that action were blood relatives of James P. Wallace, and therefore may be said to have had an equity superior to the plaintiffs here, who are blood relatives, not of him, but of Mrs. Wallace. Whether that learned jurist would have decided the same, if the evidence before him had been as it is now before this court here, can, at the most, be only a matter of speculation, into which it is not necessary to enter. I am clearly convinced that the evidence here before the court is not sufficient to establish the plaintiffs' case. Therefore the decision must be in favor of the defendants, but without costs.

The compromise made of the other action served, doubtless, as an invitation to the bringing of this action, and hence I think the plaintiffs here should not be charged with an extra allowance or the costs.

FORD et al. v. CLENDENIN et al.

(Supreme Court, Special Term, Westchester County. October Term, 1911.) 1. LIMITATION OF ACTIONS (8 39*)--TEN-YEAR STATUTE-SETTING ASIDE OF

JUDGMENT.

An action to have a judgment and sale and other incidental proceedings adjudged null and void for want of jurisdiction of the court over the subject-matter of that action, or to impeach such sale for constructive fraud in the purchase by a trustee of the property sold, is subject to the 10-year limitation and one year's extension provided in Code Civ. Proc. $8 388, 396, respectively providing that an action the limitation of which is not specially prescribed must be commenced within 10 years after accrual, and that if a person entitled to maintain an action sufficient in its title is, at the time of accrual, within the age of 21 years, the time of disability is not a part of the time limited, except that the time so limited cannot be extended by such

•For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

disability, except infancy, more than 5 years, or in any case more than one year after the disability ceases.

[Ed. Note.--For other cases, see Limitation of Actions, Cent. Dig. $8 190–211; Dec. Dig. § 39.*] 2. LIMITATION OF ACTIONS (8 39*)—TEN-YEAR STATUTE-SETTING ASIDE OF JUDGMENT.

Even though partition or ejectment might have been maintained to recover the land in question, the 10-year statute still applies as to an action to set aside the judgment.

[Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. 88 190–211; Dec. Dig. $ 39.*] 3 LIMITATION OF ACTIONS (8 72*)—BEGINNING OF RUNNING OF STATUTE.

Where the court, not having jurisdiction over the subject-matter, decreed a sale of trust property, the 10-year statute of limitation prescribed by Code Civ. Proc. § 388, which applies to actions to set aside the judgment, begins to run in favor of the purchaser from the time of his purchase of the property, and not from the time the infant defendants attain their majority, and so the only extension was that of one year, given in case of infants by Code Civ. Proc. § 396.

[Ed. Note.-For other cases, see Limitation of Actions, Cent, Dig. 88

390–398; Dec. Dig. $ 72.*] 4. LIMITATION OF ACTIONS (8 39*)—SETTING ASIDE OF JUDGMENTS.

The 10-year limitation prescribed by Code Civ. Proc. § 388, applies to an action to set aside a judgment invalid because rendered without Jurisdiction of the parties defendant.

{Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. 88

190-211; Dec. Dig. § 39.*] 5. INFANTS (8 80*)—GUARDIAN AD LITEM—APPOINTMENT.

The appointment of a guardian ad litem for nonresident infant de fendants is a nullity, where made before service of process upon them was complete.

[Ed, Note.–For other cases, see Infants, Cent. Dig. 88 210-221; Dec.

Dig. $ 80.*] 6. JUDGMENT (8 17*)— JURISDICTION-PROCESS.

A judgment against nonresident defendants, entered before service of process by publication was complete, is void for lack of jurisdiction.

[Ed. Note.- For other cases, see Judgment, Cent. Dig. 88 25–33, 157, 422; Dec. Dig. $ 17.*)

Action by Nixola Greeley Smith Ford and another against Gabrielle
G. Clendenin and others. Judgment for defendants.
E. C. Crowley, of New York City, for plaintiffs.

De Witt, Lockman & De Witt, of New York City (John Vernon
Bouvier, Jr., of counsel), for defendants Clendenin.

Charles Haines, of White Plains, for defendant Hyatt.

Charles A. Van Auken, of New Rochelle, for defendant Westchester County

Joseph E. Merriam, of Mt. Kisco, for defendant Town of New

Castle.

George H. Walker, of New York City, for defendant New York Cent. & H. R. R. Co.

Barrett & Buckbee, of White Plains, for defendant Beecher.

David H. Hunt, of White Plains, for defendants Farrell. "For other CRIOU see same topic & & NUMBER 10 Dec. & Am. Digs. 1907 to date, & Rep'r Indexen

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MILLS, J. This is an action to have adjudged null and void as to the plaintiffs a certain judgment of this court, entered in 1883, purporting to appoint a trustee to sell certain real estate, and as well the sale and deed thereunder and various subsequent deeds by the grantee in that deed.

The premises involved were, at the time of the sale, a farm of nearly 80 acres, situated at Chappaqua, in the county of Westchester, and famous as the homestead of the then late Horace Greeley. It was the estate to which that great editor and author, during the latter years of his life, was accustomed weekly to retire for relief from his multitudinous professional cares, and where he conducted many agricultural experiments, which, through his writings, became widely known throughout this nation, to the edification and instruction of many people, and possibly to the amusement of some.

The plaintiffs are two of the three children of his daughter Ida L., now deceased; and the defendants are his only surviving child and daughter, Gabrielle, who purchased at the sale by the trustee, and her several subsequent grantees of divers parcels conveyed by her out of the farm.

Horace Greeley died November 9, 1872; his wife, Mary Y. C. Greeley, having predeceased him on the 30th of the preceding October. At her death the record title of the farm was in her name, except that such title to two parcels thereof, aggregating a little over seven acres, appears to have been in his name then and up to his death. She left a will, executed November 21, 1867, which was duly admitted to probate in the Surrogate's Court of Westchester county December 18, 1872. Such will purported to dispose of all her estate, real and personal, and to give the same ultimately to her two daughters, Ida and Gabrielle, but postponed the entire division of the estate between them until Ida should become 30 years of age. It created a certain power of sale, or certain powers of sale, and possibly established a trust, a point disputed in this case. Ida then, being over 21 years of age and named as an executrix in the will, took out letters testamentary thereon and qualified and acted as such executrix. On May 1, 1875, she married Nicholas Smith, and died April 11, 1882, leaving her surviving their three children, viz., Horace Greeley Smith, born April 6, 1877, and the two plaintiffs, Nixola Greeley Smith, now Ford, who was born April 5, 1880, and married Andrew W. Ford about April 1, 1910, and Ida Greeley Smith, who was born March 9, 1882, and is unmarried.

Gabrielle, the only surviving daughter of Horace Greeley, married the defendant Frank Montrose Clendenin in April, 1891. She took actual possession of the farm directly after receiving her deed from the trustee, September 29, 1883, and has held such possession of it ever since, except the certain portions thereof which from time to time she has sold and conveyed to other persons and corporations, who or which have had such possession of such portions under such deeds since receiving them.

On the 18th day of April, 1883, an action in this court was commenced by such Gabrielle, as plaintiff, against the said Nicholas Smith,

Horace Greeley Smith, Nixola Greeley Smith Ford, and Ida Greeley Smith as defendants, in which the complaint, after alleging various pertinent facts and that the said Ida L. Smith had died without exercising the power of sale conferred by the will of her mother, asked, as relief:

"The judgment or decree of this court that she or some other suitable person be appointed as a trustee to carry out the provisions of said will and testament of said Mary Y. C. Greeley, deceased, so far as the same may be devolved upon a trustee, to sell the real estate left by said testatrix at her death, and to dispose of the proceeds thereof pursuant to said will or the law of the case as duly established, or for such other, further, or different judgment, decree, or relief as to the court may seem fit, just, and proper, with costs and disbursements of this action."

At that time the said Nicholas Smith and his three children, above named, were residing at Shelbyville, Ky.; and on the 19th of April, 1883, an order in that action was duly made by a justice of this court for the service of the summons upon them by publication. Such service, as to these plaintiffs, was actually completed on the 8th of June, 1883. Meanwhile, on May 8, 1883, upon the petition of the father, Mr. George Putnam Smith was, by an order of this court made at Special Term, appointed guardian ad litem for the three infant defendants, viz., the said Horace, Nixola, and Ida, each being then under 14 years of age, viz., Horace 6 years, Nixola 3, and Ida I. Such guardian, on May 11, 1883, verified and served the usual answer of infant defendants by guardian ad litem, submitting their interests to the protection of the court. On May 15, 1883, the answer of the father, Nicholas Smith, was verified and served. It in effect joined in the prayer of the complaint. The case was tried on June 4, 1883, decision signed June 23, and judgment with the caption as of June 4 was entered July 2, all in 1883.

The judgment recited the appearance of the guardian ad litem and of the attorney for the father, Nicholas Smith, and their being heard, the trial and decision, and granted in effect the relief asked in the complaint, appointed Israel A. Haight as trustee, directed him to sell at public auction said premises, containing about 78.561 acres, by a description which, as I understand the evidence, included the two parcels, of which the record title was, as above stated, in Horace Greeley, but which the decision had found belonged to his wife at her death. The trustee duly qualified, and, after proper advertisement, sold the farm at public auction to the defendant herein, Gabrielle G. Clendenin, for $10,000, which was the highest and indeed the only bid. He thereupon duly reported to this court his proceedings; and thereafter, on September 22, 1883, this court at Special Term, after due notice to the attorney of the defendant Nicholas Smith and the said guardian ad litem, and after hearing them, made an order confirming such report and directing the trustee to execute and deliver a deed to consummate such sale. Accordingly, on September 29, 1883, the trustee made, executed, and delivered to the said defendant here, Gabrielle G. Clendenin (then Greeley), a deed of said premises by said description; she having paid to him the purchase price of $10,000.

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