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[Vol. 97. which that interest or those rents and profits may issue. (Citing authorities.) This rule, however, is to be understood with some limitations. Where the intention of the testator to give only the use is clear, manifest and undisputed, the rule must yield to the stronger force of the intention, but where it is doubtful whether the use only or the absolute ownership was intended to be given, the rule has been allowed to have a controlling effect. It is by no means clear that in the case before us the use only was devised. If there is any doubt, it is whether the ownership was not intended to be given, and the rule to which I have adverted comes with great propriety to our aid in solving the question." In Williams on Executors (Vol. 2 [7th Am. ed.], p. 478) the rule is stated: "Where the interest' or 'produce' of a fund is bequeathed to a legatee, or in trust for him, without any limitation as to continuance, the principal will be regarded as bequeathed also." This provision for the payment of the income of this fund is not limited in the will to the life of the contestant, but is "without any limitation as to continuance." This fact, in connection with the failure to provide for a remainder, in view of the strong inference that the whole fund was intended for the benefit of the contestant, would seem to preclude the construction which should declare this property intestate property upon the death of the contestant.

It is further contended that under the will of Tobias Frere, upon the death of Eliza Rebecca Bushby, in case she shall be married at the time of her decease, the trustees are to hold the property in trust for the persons who, at the time of her decease, would, under the statutes for the distribution of the estate of persons dying intestate, be entitled to the same. It is, therefore, claimed by the executor that inasmuch as Eliza Rebecca Bushby died leaving her husband, one Bauldrey, her surviving, the trust still continues under the will of Tobias Frere. We do not so read the will. In case Eliza Rebecca Bushby shall leave children who shall attain the age of twenty-one years, or dying under that age, shall leave issue, the direction of the will seems to be that the property shall go to such child or its issue if the child be dead. The provision as to the death of Eliza Rebecca Bushby while married seems to be upon condition that there shall be no child or grandchild living. The practical construction put upon this will has given the property to Mary

App. Div.]

THIRD DEPARTMENT, SEPTEMBER, 1904.

Emily Hull as administratrix of the estate of Harry Maxwell Bushby. For the moneys thus received her executor now must account.

The surrogate's decree should be reversed and a new trial granted, with costs of appeal to executor from the fund.

All concurred; PARKER, P. J., and HOUGHTON, J., in result.

Decree reversed and new trial granted, with costs of appeal to executor payable out of the fund.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. SAMUEL D. BAKER, Respondent, v. JOHN J. MORGAN, Supervisor, and Others, Composing the TOWN BOARD and BOARD OF TOWN AUDITORS OF THE TOWN OF FORT EDWARD, N. Y, Appellants.

Mandamus an award for land damages for the laying out of a highway -- a freeholder and taxpayer cannot enforce it - where the awards are several the several claimants cannot unite in a mandamus proceeding.

The payment of awards for land damages in a proceeding to lay out a town highway is not a matter of public interest, entitling a freeholder and taxpayer in the town to maintain a proceeding to compel the payment of such awards. Where the awards for damages, sustained by the laying out of a road, are several and independent and not joint, the parties to whom such awards are made cannot join in a mandamus proceeding to compel the payment thereof.

APPEAL by the defendants, John J. Morgan, supervisor, and others, composing the town board and board of town auditors of the town of Fort Edward, N. Y., from an order of the Supreme Court, made at the Warren Special Term and entered in the office of the clerk of the county of Washington on the 25th day of January, 1904, directing that a peremptory writ of mandamus issue compelling the defendants to convene and audit and allow certain claims, and also from an order made at the Clinton Special Term and entered in the office of the clerk of the county of Washington on the 9th day of March, 1904, denying, in part, the defendants' motion to correct the first above-mentioned order and denying a motion to quash the writ of mandamus issued thereunder.

In March, 1899, Samuel D. Baker, the relator, and another made an application for the appointment of commissioners to determine

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the necessity of a proposed new highway in the town of Fort Edward, in said county. The said commissioners were appointed and filed their decision determining that said proposed highway was necessary, and damages were assessed to the several landowners as follows:

To Samuel D. Baker, $225; to Mrs. Hannah Streeter, Clayton MStreeter, Albert Streeter and Edward J. Stewart, $150; to James Dixon, $200, and to James R. McFadden $500.

The decision of the commissioners was, upon motion, duly confirmed by the County Court of Washington county, and upon appeal by the Appellate Division and by the Court of Appeals. On the 12th day of November, 1903, after the affirmance of the said decision by the Court of Appeals, the board of town auditors met for the purpose of auditing claims against the town, and, among other claims, they audited the claim for costs allowed in said proceedings, and a resolution was then passed by said town auditors as follows:

"Resolved, that the matter of auditing the bills for land damages in the Baker and Doig road case, viz.: Samuel D. Baker $225, James Dixon $200, Hannah Streeter $150, be deferred until the next meeting of the board, and that the town clerk and supervisor be a committee to ascertain the rights of the town of Fort Edward as to titles and deeds of the property in question.

"Resolved, that inasmuch as this board has been informed that the matter is to be further litigated or settled, and that some of the award is not asked for, that the matter be laid on the table for further consideration until settled by the parties."

Thereupon the relator, one of the persons to whom land damages were awarded, made this application for a writ of mandamus directing and commanding the town auditors to assemble together, and to audit and allow said claims for damages so awarded and assessed by said commissioners to said Samuel D. Baker, Mrs. Hannah Streeter, Clayton M. Streeter, Albert Streeter, and Edward J. Stewart, James Dixon and James R. McFadden, and to place the amount thereof upon the town abstract of said town of Fort Edward, and levy and collect the same in said town of Fort Edward.

On the motion for said writ of mandamus it appeared that litigation was still pending relating to said road, and that said road had

THIRD DEPARTMENT, SEPTEMBER, 1904.

App. Div.] not been graded or taken from the possession of the original owners thereof, and that an application was pending for the discontinuance of said road. Among other things it also appeared that said McFadden expressly declined to present a claim for audit to the defendants, and it was also claimed that there were mortgage liens upon portions of the real estate over which said road is laid, and that said Mrs. Hannah Streeter, Clayton M. Streeter, Albert Streeter and Edward J. Stewart had sold their interests in said award, and it was further claimed that the court had no jurisdiction to lay out said road.

The application for mandamus was granted as asked. Thereafter a motion was made to set aside the order and for a resettlement of the same. The order was in some details resettled, but the motion, so far as it asked to set aside the order, was denied.

Edgar Hull and Lewis E. Carr, for the appellants.

John B. Conway and Fred A. Bratt, for the respondent.

CHASE, J.:

The payment of the awards for land damages to the several persons over whose lands the road is laid out, is not a matter of public interest. The relator describes himself as a freeholder and taxpayer in said town, but as such he has no interest in compelling the payment of such awards.

If one or more of the persons to whom damages have been awarded refuse to receive the same, or release to the town all claim therefor, it is manifestly to the interest of the taxpayers that the amount of such awards shall not be collected by tax. The award of damages is several; each award is independent of every other award.

Where awards for damages sustained by the laying out of a road across the respective lands of the claimants are several and independent, and not joint, the claimants cannot join in a proceeding to compel the payment of the damages by mandamus. (13 Ency. Pl. & Pr. 646; High Ex. Rem. [3d ed.] §§ 434–439.)

The awards of damages for laying out the road in question being several, the relator has no interest in favor of the payment of the awards other than his own. One of the persons to whom damages

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were awarded expressly repudiates any connection with the effort to have the same included in the town abstract for collection and payment, and there is nothing before us to show that any of the claimants other than the relator have asked for the payment of their awards respectively, or that they desired the same audited and paid by the town. Assuming that it is made the duty of the town auditors to audit the several awards and include the same in the town abstract for collection and payment, such duty is for the benefit of the persons severally to whom the awards for damages are made.

The appellants insist that the first order appealed from, which order expressly provides for the audit of the amount of the award to each of the persons to whom damages were awarded and the collection of the same by a tax, was not authorized, and such claim seems to be good.

It is not necessary for us to consider whether the order could not now be modified so as to require the audit and collection of the relator's claim only. The relator did not ask the defendants to audit and collect his award only, but he included in his request the amount of the awards to each of the other persons to whom damages were awarded. He claimed then, as he has claimed since, that the audit of such awards to each of the persons to whom the award was made and the collection of the same by tax was a public duty. The relator does not now ask that the orders be amended or modified and we think under all the circumstances disclosed by the record that the orders should be reversed and the relator left to such further application to the defendants or to the courts as he shall be advised, on which application many of the numerous questions arising on this appeal can be avoided.

All concurred.

Orders reversed and writ of mandamus quashed, without costs.