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K. Davis, he is entitled to one-half of the estate of which his said mother died seized, under and by virtue of chapter 531 of the Laws of 1895, which provides that "all illegitimate children whose parents have intermarried or shall intermarry, shall hereby become legitimatized and shall be considered legitimate for all purposes and shall enjoy all the rights and privileges of legitimate children.

The evidence as to the paternity of the said James Milledge Davis is slight, but I am of the opinion that there is sufficient evidence to warrant the finding and I do find that Milledge J. P. Davis is his father. The evidence shows that the said Milledge J. P. Davis and the mother of said James Milledge Davis were frequently together prior to the birth of said James Milledge Davis, in fact it shows that they "lived" together; that Milledge J. P. Davis was present in the house at the time said James Milledge Davis was born; that after the birth of said James Milledge Davis, said Milledge J. P. Davis and the mother of James Milledge Davis were married by a clergyman; that said James Milledge Davis was a part of the family of said Milledge J. P. Davis and of his said wife Emily K. Davis; that when said James Milledge Davis became old enough to talk he called the said Milledge J. P. Davis papa"; "; and that he bore one of the names "Milledge" of said Milledge J. P. Davis. This is enough to raise the presumption that the said Milledge J. P. Davis believed and had reason to believe that said James Milledge Davis was his son and this presumption has not been rebutted. The law favors the presumption of legitimacy.

The said Emily K. Davis left a last will and testament which was made after her marriage to the said Milledge J. P. Davis and before the birth of the plaintiff, Hazel L. Davis. By this will she devised all her property both real and personal to a trustee to be held for the benefit of her son James Milledge Davis. No provision was made in the will for the plaintiff, and, therefore, under chapter 22 of the Laws of 1869, the plaintiff succeeds to such portion of her mother's estate as would have descended to her if her mother had died intestate, that is the said Hazel L. Davis succeeded to one-half of her mother's estate, both real and personal. The other half is held by the trustee under the last will and testament of said Emily K. Davis in trust for the defendant, James Milledge Davis.

No cause of action was proved on the trial against James Everard as general guardian of the person and estate of the said Jame

Misc.]

Supreme Court, May, 1899.

Milledge Davis, and as to him the complaint should be dismissed, but as he has appeared as guardian ad litem and as general guardian by one attorney, the complaint should be dismissed as to him as general guardian without costs.

The defendant Catherine Kuriger has been sued individually and as administratrix, with the will annexed of Emily K. Davis, deceased, and as trustee of the trust for the benefit of the said James Milledge Davis, created by the will of said Emily K. Davis, deceased, and as general guardian of the person of said Hazel L. Davis, the plaintiff. The only capacity in which she has any interest is as trustee of the above-mentioned trust, and as such trustee she is entitled to one-half of the property mentioned and described in the complaint.

Let a decree be entered adjudging that the plaintiff Hazel L. Davis is entitled to one-half of the property mentioned in the complaint; that the defendant Catherine Kuriger, as trustee as aforesaid, is entitled to the other half of said property. The plaintiff is not entitled to costs. Costs are awarded to the defendant James Everard as guardian ad litem of the said James Milledge Davis, and to Catherine Kuriger, as administratrix of the will annexed as aforesaid. Said costs to be paid out of the estate. Decree to be settled on notice.

Ordered accordingly.

THE PEOPLE ex rel. JULIA STERN, Relator, v. THE NEW YORK SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN, and the FIVE POINTS HOUSE OF INDUSTRY, Respondents.

(Supreme Court, New York Special Term, May, 1899.) Infants - Commitment to a house of industry, how reviewed Crim. Pro., § 749.

Code

While the court has power, in a direct proceeding instituted by petition and in the interests of an infant, to go behind its commitment to the custody of a House of Industry, the court cannot review a commitment, made by a competent criminal tribunal, upon returns to writs of habeas corpus and certiorari, the remedy being by an appeal taken under section 749 of the Code of Criminal Procedure.

THE nature of the proceedings and the material facts are stated in the opinion.

Benjamin Reass, for relator.

De Lancey Nicoll, for respondents.

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GIEGERICH, J. Upon return of writs of habeas corpus and certiorari, it is not disputed that the infant, whose custody is the subject of dispute, was committed to the charge of the respondent, the Five Points House of Industry, by final judgment of a competent tribunal of criminal jurisdiction, and is now temporarily in the custody of the respondent, The New York Society for the Prevention of Cruelty to Children, because of the breaking out of a contagious disease in the house of reception of the former; but the moving party, contends that upon affidavits, showing the inadvisability of the commitment, as a matter of fact, the general powers of the court, as the guardian of the interests of all infants, should be exercised favorably to the application.

While it is to be conceded that the court has power to go behind a commitment of this character in the interests of the infant committed, where a direct proceeding is instituted by petition addressed solely to the equitable discretion (Matter of Knowack, 158 N. Y. 482); the power cannot be exercised at the instance of the present applicant, in view of the form of the application.

Here, the proceeding is not such as was instituted in the case cited, and the rules governing applications based upon writs of certiorari and habeas corpus are precise. As the proceedings, which terminated in the commitment of the child, can be adequately reviewed upon an appeal, as prescribed by section 749 of the Code of Criminal Procedure, a writ of certiorari cannot be issued to review such determination. Code Civ. Pro., § 2122. Moreover, such writ was not intended to enable a justice to review the evidence upon which the commitment is based. People ex rel. Perkerson v. Sisters of St. Dominick, 34 Hun, 463; 2 N. Y. Crim Rep. 528; People ex rel. Eck v. American Female Guardian Society, 2 N. Y. Crim. 538, n.

The commitment having been made by a court of competent jurisdiction, the writs cannot be sustained (Code Civ. Pro., § 2016; People ex rel. Perkerson v. Sisters of St. Dominick, supra; People ex rel. Lazarus v. House of Mercy, 23 App. Div. 383), and, since the return is not assailed upon jurisdictional grounds, there is nothing before the court.

Writs dismissed.

Misc.]

Supreme Court, May, 1899.

ANNIE HELENA MEAD et al., Plaintiffs, v. AGNES MEAD et al.,

Defendants.

(Supreme Court, New York Special Term, May, 1899.)

1. Mortgage - Failure of wife of mortgagor to execute purchase money mortgage.

Where children, desirous only of affording an income to their father whom they believe to be unmarried, convey premises to him to that end and at the same time take back from him a mortgage given to secure their rights in the premises, the failure of his wife, by a valid common-law marriage, to join in the mortgage gives her no rights in the premises which she can assert, after his death, to the detriment of the children.

2. Written instrument

Extinguishment of prior oral agreements.

All prior oral agreements are deemed to have been merged in a written instrument.

ACTION to foreclose a mortgage.

E. S. Peck, for plaintiffs.

Gratz Nathan and Geo. F. Mertens, for defendants.

RUSSELL, J. In 1891, Lawrence Mead, the father of these. plaintiffs and of Roger A. Mead, then being a widower, contracted a valid common-law marriage with Mrs. Agnes Mead-one on which she is entitled to stand, and by which the children that she afterwards had were legitimate. The subsequent ceremonial mar riage by a priest was simply a ratification of the original marriage, and in no manner impaired the validity of the original agreement between the parties. Agnes Mead was the lawful wife of Lawrence Mead at the time of the transaction of December, 1892. In that month, there being a settlement of the estate of the grandmother through whom these three children took, I suppose, by virtue of representation from their deceased mother, the daughter of the grandmother, the evidence being silent upon that subject through the will of the grandmother, as is conceded and a settlement of that estate being had then, the father having no business except such as had been necessary to look after the estate of the

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grandmother, it occurred to the children that some provision should be made for the support of the father, so that he might have means for the wants, which were small, which he would have in the future. His age does not appear in the case. The father had been trustee of that estate, or one of the trustees, and, at all events, acted as such, so that he not only stood in the position of a father to the children during the period of their minority and later, but was also active trustee for them in the management of their interests in that estate. As a matter of course, the duties were imposed upon him which follow such a confidential relation. He could do no act to the detriment of his wards or those who occupied the position of cestuis que trustent in regard to him, but had a right, if the transaction was fair, to accept any beneficial arrangement which they might make. The arrangement was made by which he was to be deeded No. 272 West Thirty-eighth street, with the understanding that the property was to furnish him an income necessary to his wants, and, as the evidence discloses, not giving to him the entire actual beneficial control of the entire rights, but such as were essential to his needs, although he actually received the payments of the rents until May or July, 1897, or a little later. By that conveyance which was then made, these two daughters, who had been given the one-third interest belonging to Roger, their brother, for the purpose of carrying out this arrangement, in which his wife joined, surrendered apparently the entire title to that property. It would have been a very improvident and improper arrangement if no security had been taken back. Discussion was had as to the various forms for securing them against all possible contingencies which might militate against their ultimate resumption of the property. They sought the advice of Mr. Arrowsmith and his managing clerk, Mr. Dunn. Accordingly, an arrangement was made by which a mortgage was executed as the instrument securing back to those two sisters and daughters their rights in that property beyond any question or power of attack. It had been talked, prior to the selection of the proper form of instrument, that the daughters were to have the power to recall the act of giving this house to their father, but all of the preliminary talks were merged in the agreement which was made by which the mortgage was taken as the definite security for their protection. That instrument was either a valid instrument, or it was an invalid instrument. I regard it as a valid instrument, and one which the mortgagor could not repudiate after he had received the benefit