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2. FRAUDS, STATUTE OF (8 127*) — WILLS — MUTUAL WILL — AGREEMENT TO

MAKE.

Where brother and sister made an oral agreement to execute mutual wills, and the sister's will was thereafter revoked by operation of law by her subsequent marriage, the contract to make mutual wills was void, under the statute of frauds.

{Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 278;
Dec. Dig. § 127.*]
Action for partition by Alice M. Near and others against William
F. Shaw and others. Judgment for plaintiffs.

Harley N. Crosby, for plaintiffs.
L. L. Fancher (James L. Weeks, of counsel), for defendants.

OTTAWAY, J. Prior to the 18th day of August, 1894, Ira D. Shaw and Huldah Thankful Chamberlain, brother and sister, lived together in the town of Ellicott, Chautauqua county. On the said 24th day of August, 1894, they each made a will. Ira D. Shaw bequeathed all of his estate to his sister, Huldah Thankful Chamberlain. Huldah Thankful Chamberlain bequeathed to her brother, Ira D. Shaw, the use during life of all of her real estate and the use of a portion of her personal property. In case of the death of the said Ira D. Shaw before the death of a sister Lucinda Near, then in that case the said Lucinda Near was to have the use of the property real and personal during her life, the same as her brother Ira D. Shaw had had during his life. At the death of the said Lucinda Near said property was to go to the children of Lucinda Near.

Thereafter and on the 18th day of May, 1903, Ira D. Shaw died, whereupon Huldah Thankful Chamberlain presented to the Surrogate's Court of Chautauqua County a petition duly verified asking for the probate of the will of the said Ira D. Shaw; said petition alleging that the property of Ira D. Shaw amounted to $500. The will was admitted to probate, and Huldah Thankful Chamberlain received the property of Ira D. Shaw.

Thereafter and on the 27th day of August, 1905, Huldah Thankful Chamberlain married Albert Mowry. At the time of the making of the wills by the brother and sister, they were unmarried. Huldah Thankful Chamberlain Mowry died January 1, 1907, leaving real and personal property. Letters of administration on the estate of Huldah Thankful Mowry were issued to Albert Mowry, her husband, January 16, 1907. Said letters were issued without notice to the legatees named in the will of Huldah Thankful Mowry. The said Albert Mowry administered said estate and received of the avails of said estate about the sum of $2,000. He subsequently rendered his account to the Surrogate's Court of Chautauqua County and received his discharge as administrator.

The plaintiffs bring this action as heirs at law of Huldah Thankful Mowry for a partition of the real estate owned by the said Huldah Thankful Mowry at the time of her decease, alleging that she died intestate. The defendants claim as legatees under the will of Huldah Thankful Mowry and seek to impress upon said real estate the pro*For otber cases see same topic & S NUMBER in Dec. & Am, Digs. 1907 to date, & Rep'r Indexes

visions of said will alleging that they are entitled to the same by reason of an agreement made by the said Ira D. Shaw and Huldah Thankful Chamberlain prior to the execution of said will and the execution of said wills by said brother and sister pursuant to said agreement. Pursuant to a stipulation entered into by and between the parties to this action and their respective attorneys in open court, the following issue of fact was submitted to the jury for their determination:

"Did Ira D. Shaw and Huldah Thankful Chamberlain make their respective wills introduced in evidence in this case pursuant to, and to carry out, an oral contract, or agreement, made between them in reference thereto, by which each of said wills was made in consideration of the making of the other? The jury found in the affirmative.

[1] Section 36 of the Decedent Estate Law (Consol. Laws 1909, c. 13) provides :

"A will executed by an unmarried woman shall be deemed revoked by her subsequent marriage.'

This is a re-enactment of a provision of the Revised Statutes. The plaintiffs assert that by reason of this provision the will of Huldah Thankful Chamberlain was revoked by reason of her marriage to Albert Mowry, and that she died intestate, and her real estate descended to her heirs at law,

It is the claim of the defendants that the jury having, determined that the wills of Ira D. Shaw and Huldah Thankful Chamberlain were made pursuant to and to carry out an oral contract and agreement by which each of said wills was made in consideration of each making the other, that this agreement survived the revocation of said will and that the provisions of the will of Huldah Thankful Chamberlain are subject to the equitable power of the court to enforce. The defendants contend that the oral agreement entered into between the brother and sister was consummated by the actual making of the wills and the case taken out of the statute of frauds.

This provision of the Decedent Estate Law is a recent re-enactment of a provision of the statute uniformly sustained by the courts of the state. Matter of McLarney, 153 N. Y. 416, 47 N. E. 817, 60 Am. St. Rep. 664; Matter of Kaufman, 131 N. Y. 620, 30 N. E. 242, 15 L. R. A. 292; Lathrop v. Dunlop, 4 Hun, 213.

[2] It is apparent that by the marriage of Huldah Thankful Chamberlain her will was revoked. This will being revoked, the contract being oral does not survive the statute of frauds. When the brother and sister made their wills, they were charged with the knowledge of the law existing at that time. No provision was made for any condition created by the remarriage of the sister.

The agreement found by the jury to have been made was fulfilled by the parties to the agreement. They mutually agreed to make their wills as made. They did not mutually agree to give their property to the defendants. The defendants were not privy to the agreement and furnished no consideration for it. The act of the sister causing the revocation of the will furnishes no basis for the equitable relief of the court. It was an act favored by the court. The defendants have failed to

place themselves in a position entitling them to the equitable relief demanded

It is the duty of courts to enforce existing laws. The presence of this statute requires its observance. The reason of its continuance is the changed relations to the woman following marriage. Her new status as a wife induces the presumption of a new testamentary intention and demands a new testamentary act. Matter of Kaufman, 131 N. Y. 620, 30 N. E. 242, 15 L. R. A. 292; Brown v. Clark, 77 N. Y. 369; Matter of Mann, 51 Misc. Rep. 315, 100 N. Y. Supp. 1100.

A suggestion is made that the husband and any children who might be born are the only persons who ought in good conscience to be permitted to avail themselves of this statute. The difficulty arises in the inability of the court to make any such distinction. The court is called upon to determine this provision in the light of its present enactment.

It has been the policy of the court to carefully scrutinize the testimony based upon parol evidence seeking to effect the disposition of real estate. Hamlin v. Stevens, 177 N. Y. 39, 69 N. E. 118; Rosseau y. Rouss, 180 N. Y. 116, 72 N. E. 916.

Under all the circumstances of this case, there being no obligation or duty owing from either the brother or sister to the defendants, the court would not be authorized to lend its equitable power to these defendants. The opinion of Justice Rumsey in the case of Everdell v. Hill, 58 App. Div. 151, 68 N. Y. Supp. 719, is conclusive when applied to the facts of this case.

Judgment for the plaintiffs is directed.
Judgment for plaintiffs.

(76 Misc. Rep. 307.)

PERKINS v. CHAUTAUQUA TRACTION CO.

(Chauta uqua County Court. April, 1912.) 1. CARRIERS (8 91*)_TITLE TO GOODS-ESTOPPEL TO DISPUTE.

The rule that a bailee cannot plead jus tertii against his ballor applies to common carriers.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. && 338_355; Dec.

Dig. § 91.*] 2. CARRIERS ($ 91*)-ACTION AGAINST CARBIER_DEFENSES.

Where plaintiff sbipped brass and lead junk over defendant's road in the name of plaintiff's son to himself with the intention of resbipping by another carrier, defendant, while retaining possession of the goods, could not successfully defend an acton of replevin on the ground that the goods were stolen.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. $8 338–355; Dec.

Dig. f 91.*] 2. REPLEVIN (8 8*)-RIGHT OF ACTION TO RECOVER GOODS-POSSESSION.

Plaintiff's possession of goods shipped by a carrier before delivery to the carrier was sufficient to entitle him to maintain replevin to recover the goods against the carrier under the rule that such possession was prima facie evidence of ownership.

[Ed. Note.–For other cases, see Replevin, Cent. Dig. 88 45-68; Dec

Dig. & 8.*) •For other cases see same topic & $ NUMBER IA Déc. & Am. Dlgs. 1907 to date, & Rep'r Indexes

Appeal from Justice Court. Action by Martin D. Perkins against the Chautauqua Traction Company. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered. Frank G. Curtis (Cheston A. Price, of counsel), for appellant. Fisher & Fisher, for respondent.

OTTAWAY, J. This is an appeal by the plaintiff from a judgment of no cause of action rendered by a justice of the peace of the city of Jamestown, Chautauqua county.

The plaintiff sought to recover the value of a quantity of brass and lead junk alleged to have been wrongfully withheld from the plaintiff by the defendant.

The evidence disclosed that in April, 1911, the plaintiff had in his possession a quantity of brass and lead junk. This was stored in his house at Lakewood, N. Y. With the assistance of his son his junk was inclosed in packages and taken to the defendant's freight office at Lakewood for shipment. A bill of lading was made by the agent of the defendant, whereby it appears that this junk was shipped in the name of the son, Ralph W. Perkins, to himself at Westfield, N. Y.; it being the intention to reship this commodity by another carrier to Cleveland, Ohio, from Westfield. The son accompanied the freight to Westfield, went to the office of the defendant, receipted for the goods at the office of the defendant, and was immediately arrested; an officer of Westfield taking possession of the goods. Thereafter the defendant assumed control of the goods and shipped them to Jamestown, N. Y., and ever since has retained possession of them. Thereafter a demand was duly made by the plaintiff for these goods, but the defendant refused to deliver the same to the plaintiff, claiming they were stolen goods. Some evidence was given by the defendant claiming that these goods were stolen from the Erie Railroad Company. This evidence is not conclusive and is based largely upon inferences. If the defendant had, in fact, delivered these goods to the Erie Railroad, a different question might have been presented, and a question of fact raised which, if litigated in a justice's court, might have been conclusive upon the appellate court. The defendant is not in a position to raise this question. The defendant obtained the control of these goods under a contract with the agent of the plaintiff and is not in a position, under the circumstances disclosed in this case, to dispute his title. The agent of the plaintiff, the consignee named in the bill of lading, appeared with the plaintiff and urged the claims of the plaintiff in this action.

[1] The rule is well established in this state that the bailee cannot plead jus tertii against his bailor, and such rule applies to common Carriers. The reason for this rule is that by such a plea the bailee or common carrier might through the plea of some third person keep the property for himself. There are a number of exceptions to this rule. Among them is the one where the plaintiff has obtained possession of the property feloniously or fraudulently by felony, force, or fraud, and the property has been surrendered to the owner or officers of the law, or where the true owner has demanded the same, and the bailee has surrendered the property to him. The plaintiff has not brought himself within the purview of this exception; the evidence disclosing that the property is still in the possession of the defendant. Valentine v. Long Island R. R. Co., 102 App. Div. 419, 92 N. Y. Supp. 645; Id., 187 N. Y. 121, 79 N. E. 849; Sedgwick v. Macy, 24 App. Div. 1, 49 N. Y. Supp. 154; Western Trans. Co. v. Barber, 56 N. Y. 544; Mullins v. Chickering, 110 N. Y. 513, 18 N. E. 377, 1 L. R. A. 463.

137 N.Y.S.-6

[2] The defendant also contends that the plaintiff failed to show sufficient interest in the property in question to maintain this action; that it was incumbent on him to inform the court as to the source of his title. The evidence disclosed that prior to the shipment of this merchandise the plaintiff was in possession of it.

[3] Possession is prima facie evidence of ownership and sufficient to maintain an action of replevin. The defendant deriving his possession under a contract with the agent of the plaintiff is not at liberty to raise this question.

The judgment must be reversed, with costs to the plaintiff to abide the event of the action, and a new trial is ordered before James P. Stafford at his office in the city of Jamestown on the 25th day of April, 1912, at 10 o'clock a. m.

Judgment reversed, and new trial ordered, with costs to plaintiff to abide event.

(76 Misc. Rep. 293.)

PEOPLE V. MANGANARO.

(Greene County Court. April, 1912.) CRIMINAL LAW (8 995*)-CONVICTION-JUDGMENT FOR FINE.

Where accused was charged and convicted of keeping a disorderly house in violation of Penal Law (Consol. Laws 1909, c. 40) § 1146, and not for violating the Liquor Tax Law (Consol. Laws 1909, c. 34), a judg. ment, sentencing him to pay a fine and stand committed to the county jail one day for each dollar of the fine until paid, should be entered in favor of the “people of the state of New York,” and not in favor of the state commissioner of excise, and, if entered by mistake in favor of such commissioner, would be corrected on motion of the county treasurer.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 2518, 2521, 2523–2526, 252842, 2530, 2536-2543; Dec. Dig. 8 995.*] Aniello Manganaro was convicted of keeping a disorderly house, and, judgment having been rendered, the People applied for correction thereof. Granted.

Application to correct a judgment in a criminal proceeding entered in the office of the clerk of the county of Greene on the 24th day of January, 1912.

At the November, 1911, term of the Supreme Court, an indictment was found by the grand jury, charging the defendant with a misdemeanor, committed as follows:

“That the said Aniello Manganaro continuously between the 1st day of May, 1911, and the date hereof at the hotel conducted by him at Cementon, in the town of Catskill, Greene county, N. Y., did knowingly, willfully, wrong. fully, and unlawfully keep and maintain a house of ill fame and a place for the practice of prostitution and lewdness and a house of assignation, open For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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