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law, he could not have more plainly expressed his desire. As already adverted to, it cannot be claimed that the words “heirs at law” were used carelessly or in ignorance of their true legal meaning. A glance at the entire will negatives this.

The conclusion being reached that the fund should be distributed to the heirs at law of Nelson Perry renders it unnecessary to consider the point raised by the special guardian that, should it be determined that distribution should be made to the next of kin, then, in that case, the law in effect at the time of the testator's death, namely, Laws 1898, c. 319, admitting representation among collaterals, should control

, in view of the saving clause contained in the repealing act of 1905, already referred to.

As to the persons constituting the class of Nelson Perry's heirs at law, it includes all who would inherit under any circumstances, had he died intestate seised of real estate. This includes the first cousins and the descendants of deceased cousins, and it seems to be conceded by counsel that distribution should be per stirpes. This rule is followed in the case of a devise to "heirs," whether it be to one's own heirs or the heirs of a third person, as this designates not only the persons who are to take, but also the manner and proportion in which they take, and that, when there are no words to control, from such language in the will of the testator the law will presume his intention to be that they shall take as heirs would take by the rules of descent. Daggett v. Slack, 8 Metc. (Mass.) 450. This rule was followed in Armstrong v. Galusha, supra.

The point is raised by counsel for trustees that, if distribution is to be made to Nelson Perry's heirs at law, it should be in accordance with section 88 of the Decedent Estate Law (Consol. Laws 1909, c. 13), which provides that, if the inheritance shall come to the intestate on the part of his mother, it shall descend to her brothers and sisters and their descendants, inasmuch as this trust fund comes from the testator, who was a brother of Nelson Perry's mother. This, however, is not tenable. The section referred to relates to real property of which the decedent died seised. Section 80, subd. 2, of the same law, reads as follows:

"The expressions 'where the inheritance shall have come to the intestate on the part of the fatheror 'mother,' as the case may be, include every case where the inheritance shall have come to the intestate by devise, gift or de scent from the parent referred to, or from any relative of the blood of such parent.”

Nelson Perry never had any vested interest in this trust fund. The legal title thereof was in the trustees; his interest attaching only to the income, which terminated at his death, and the remaindermen (his heirs at law) take as purchasers under the will of the testator and not through or from Nelson Perry. The case of Knowlton v. Atkins, 134 N. Y. 313, 31 N. E. 914, does not support this contention. That case deals with the disposition of real estate, the title to which was vested in the intestates, and the heirs of such intestates were determined according to the statute. In the case at bar there is no inheriting through intestacy. The heirs at law of Nelson Perry take direct

from the testator, their identity being determined upon Nelson Perry's death, and all who answer that description, under any contingency, are in that class.

A decree may be entered upon two days' notice in accordance with the foregoing.

Decreed accordingly.

(77 Misc. Rep. 522.)

In re BULLARD. (Surrogate's Court, Saratoga County. August, 1912.) Trusts (8 161*)-APPOINTMENT OF SUBSTITUTED TRUSTEE--BOND-CANCELLA

TION OF DECREE.

Where a decree appointing a substituted trustee in the place of a testamentary trustee, who resigned, required the new trustee to give bond, there is no provision of law authorizing the surrogate to entertain an original petition to cancel the bond given under such decree.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. 88 209–211; Dec. Dig. $ 161.*) In the matter of the account of Estelle C. Bullard, substituted trustee under the will of Daniel A. Bullard, deceased. Decree rendered.

Rockwood & McKelvey, of Saratoga Springs (Nash Rockwood, of Saratoga Springs, of counsel), for petitioner.

OSTRANDER, S. By the second codicil of the will of Daniel A. Bullard, proved and recorded on the 2d day of April, 1901, he devised and bequeathed to Daniel A. Bullard, 2d, certain property in trust for the use of Charles M. Bullard for and during the term of his natural life, said property to go absolutely on his death to the children of said Charles M. Bullard then surviving, to be divided between them equally, share and share alike. Daniel A. Bullard, 2d, qualified as such trustee, and subsequently, and on or about the 6th of August, 1904, resigned as such trustee, and Estelle C. Bullard was appointed as substituted trustee. The decree appointing her as such directed her to give a bond in the sum of $3,500 to secure the estate against any unlawful act or acts in connection with her duties as such trustee. She thereupon qualified and furnished the required bond.

The said Estelle C. Bullard now petitions the court to discharge the said bond and permit her to act as such trustee without such bond. Annexed to said petition are consents of Charles M. Bullard, Ralph C. Bullard, and Walter F. Bullard, who describe themselves as the beneficiaries and parties entitled to remainder of the trust estate, consenting that an order be made canceling said bond and permitting the trustee to act without bond. Inasmuch as the original trust is for the benefit of such children of Charles M. Bullard as shall be living at the time of his decease, and inasmuch as he still survives, it cannot be said that Walter F. Bullard and Ralph C. Bullard, sons of Charles M. Bullard, are the sole persons who may be entitled to said trust fund at the death of said Charles M. Bullard.

1

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

The general policy and rule of the court seems to be that the court should exact a bond from the new trustee in case of appointinent of a substituted trustee. Russak v. Tobias, 12 Civ. Pro. 390. It has been held in Matter of Burke, 1 N. Y. St. Rep. 316, and Matter of Gilbert, 3 N. Y. St. Rep. 208, that, where a decree is made removing a sole testamentary trustee and designating its successor, the statute does not compel the exaction of a bond, but that in such case the surrogate may in his discretion require such a bond.

In this case, when the petitioner was appointed, the surrogate in his decree exercised his discretion by requiring the giving of a bond. My attention is not called to any provision of law which authorizes me to entertain an original petition for the purpose of canceling a bond given pursuant to the direction of a decree regularly made by the court. To do so would be in effect to open and set aside in part a former decree of this court, without any of the reasons therefor which are required to authorize the court to open a former decree.

Aside from the considerations above given, I believe the cancellation of the bond in such case would be the establishment of a mischievous precedent, which would be a source of embarrassment to the court in many cases. I think the application should be denied.

Decreed accordingly.

SCHWARZ et al. v. KUHN.

(City Court of New York, Trial Term. September 4, 1912.) 1. APPEAL AND ERROR (§ 1212*)-REVERSAL-SECOND TRIAL-QUESTIONS CON

CLUDED.

A former trial is final only as to such matters as were necessary to the determination of the issue, and findings concerning nonessentials do not preclude a subsequent trial; but where a question of fact is determined, which in view of the issue framed is material, the decision is thereafter binding.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $ 4713:

Dec. Dig. § 1212.*] 2. APPEAL AND ERROR (8 1212*)-REVERSAL-SECOND TRIAL-QUESTIONS CON

CLUDED.

Where, in an action by an architect to recover on a lien filed by him as architect in charge of the construction of a building of the owner, such owner pleaded the general denial and a counterclaim based on a breach of the contract, and the court found that the architect had been negligent, and the complaint and counterclaim were dismissed, and the court, on the appeal of the owner, reversed the judgment as to the counterclaim, the judgment of the trial court was conclusive on the issue of negligence of the architect, and the only question remaining on a second trial was the amount of damages sustained by the owner.

[Ed. Note. For other cases, see Appeal and Error, Cent, Dig. $ 4713; Dec. Dig. § 1212.*] Action by Simon I. Schwarz and another against August Kuhn. Judgment for defendant.

See, also, 71 Misc. Rep. 149, 126 N. Y. Supp. 568. *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Crawford & Tuska, of New York City (Benj. Tuska and Carl S. Stern, of New York City, of counsel), for Kuhn and Page.

Bloomberg & Bloomberg, of New York City (Edward N. Bloomberg, of New York City, of counsel), for Schwarz.

SCHMUCK, J. To a clear understanding of the present status of this litigation a narration of its history is quite essential. Originally this suit was instituted to recover upon a lien filed by the plaintiffs as architects in charge of the construction of the premises of the defendant. In addition to a general denial of the plaintiffs' claim, the defendant interposed a counterclaim founded upon a breach of contract. Upon the first trial the court dismissed both the complaint and the counterclaim. Dissatisfied with such result, the defendant appealed from the dismissal of the counterclaim, asserting that, as the court found the plaintiffs guilty of negligence, the counterclaim should have been allowed. From the dismissal of the complaint no appeal was taken, the plaintiffs apparently being content therewith. The appeal proving successful, this trial propounds a problem of dual nature. In the first instance, the most important question is whether, in view of that which has already transpired, the question of the plaintiffs' negligence is still a mooted one. If it is not, then this trial is had solely for the purpose of determining the amount of damage suffered by the defendant. If the question of negligence is still open, then that question must be determined as a novel question on this trial, regardless of the proceedings heretofore had.

[1] It is contended by the plaintiffs that the court is in no wise precluded by the former trial and appeal from considering the question of negligence as an original proposition. The defendant opposes this view, asserting that on this trial the court is bound by the material findings of the former trial. Conceding the logic and force of House v. Lockwood, 137 N. Y. 259, 33 N. E. 595, and accepting the doctrine therein stated concerning the binding force of a former trial, there is nothing in that authority which contravenes defendant's position in this matter. It is indisputable that a former trial is final only as to such matters as were necessary to the determination of the issue. Necessarily findings concerning nonessentials do no wise bind or preclude on a subsequent trial. The authorities are clear that where a question or fact is determined, which in view of the issue framed is material to the determination of that issue, such resolution of fact is of binding effect ever thereafter. Mayor, etc., v. Brady, 151 N. Y. 611, 45 N. E. 1122.

[2] On the first trial the question of performance was not only material

, but vital. The finding of negligence on the part of the plaintiffs is in consequence a material and binding one, as such fact is essentially part of the issue. Therefore the findings heretofore had of particular defects demand the application of the doctrine of res adjudicata. Each and every fact thereby adjudged was not only litigated, but the determination thereof was indispensable to a decision of the action. If no defects in the work was discovered, then the plaintiffs would have performed their work and earned their commis

sion. If no serious defect was found in the work, then the plaintiffs could have claimed substantial performance, and thus supported their action. It must therefore be evident that the question of the performance of the work by the contractors and the defective nature of the work was of vital importance in determining whether the plaintiffs were negligent in the manner in which they supervised such construction. Those questions were litigated on the first trial, and every finding of the court on that trial concerning defective construction is therefore binding on this trial. Fulton Co. C. & E. Co. v. Hudson River T. Co., 200 N. Y, 287, 93 N. E. 1052. The question of plaintiffs' negligence is therefore no longer open to discussion. As was written on the appeal herein, the court having found the plaintiffs guilty of negligence, the defendant is entitled to establish his damage occasioned thereby. Schwartz et al. v. Kuhn, 71 Misc. Rep. 149, 126 N. Y. Supp. 568.

Concluded by the material findings of the first trial, the court on this trial has no course open save to determine this litigation favorably to the defendant. His discretion, if at all, can only be exercised concerning such defects as were not passed upon at the first trial. On the first trial it was determined that the building was defective in many particulars, and that those defects were not rectified because of the negligence of the plaintiffs. The conclusions of law had on that trial clearly state that, due to plaintiffs' failure to faithfully perform their contract as architects, the building was defectively constructed, as indicated in findings of fact numbered 6 to 69, inclusive. The defects thus evidenced establish that the cellar concreting, show windows, window bracing, water tables, store entrances, cellar doors, valves, boilers, girder and beam construction, and other parts of the building were not in accordance with the plans and specifications. These, supplemented by the evidence of this trial, indicate that the defendant suffered serious damage by reason of the manner in which the work was done. Applying the principle and rule laid down in Straus v. Buchman, 96 App. Div. 274, 89 N. Y. Supp. 226, the damage suffered by the defendant is computed to amount to $1,705.66. Reducing this amount by the amount remaining unpaid to the plaintiffs on the contract, and which amounts to the sum of $544.65 (Lennon v. Smith, 124 N. Y. 578, 27 N. E. 243; Brown v. Mader, 120 App. Div. 515, 105 N. Y. Supp. 70), judgment must be decreed in favor of the defendant in the sum of $1,161.01, with costs.

Present findings and decision in accordance with the above, giving two days' notice of settlement.

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