Mayer v. Moller.

The cases above referred to show that the right to perform such service may be taken away, and it must of course follow that there was no accrued right in the plaintiff by which he could insist on pay for discharging his duties, contrary to the provisions of the statute.

Judgment for the defendants.

ISAAC MAYER v. CHRISTOPHER MOLLER.

In an action for rent upon a written contract to hire, signed by the tenant only, it is to be presumed, in the absence of evidence to the contrary, that the landlord's agreement to let was also in writing.

In such an action, evidence of a parol agreement, on the part of the landlord, to repair, is inadmissible, except it is preceded by proof that the landlord's agreemont to let rested in parol.

In a contract of letting, there is no implied warranty that the premises are tenantable.

APPEAL by plaintiff from a judgment of the Sixth District Court. This was an action for rent. The defendant, by an agreement in writing, hired the premises No. 156 West 35th street, for sixteen months from the first of January, 1856. The agreement introduced by the plaintiff was signed by the defendant-the tenant-only. There was no evidence offered upon the trial, as to whether the plaintiff had given a written lease to the defendant or not. But the defendant proved, sub. ject to the objection of the plaintiff's counsel, that the plaintiff had, prior to the defendant's taking possession of the premises, promised the defendant that he would put the house in good repair, and, in particular, repair a leak in the roof, which he subsequently refused to do, and by reason of which the house was rendered untenantable. Judgment having been given for the defendant, the plaintiff appealed.

E. B. Shafer, for the appellant.

C. Moller, respondent, in person.

Gilman v. Reddington.

BRADY, J.-The defendant hired the premises from the plain tiff, and executed an agreement of hiring. No promise or agree ment, on the part of the plaintiff, to repair, is contained in that paper writing, and, in the absence of proof that the landlord's agreement was by parol, the presumption is that it was also in writing. The fact was susceptible of proof very readily, and the defendant should have proved it. It may be regarded as sus picious, that no attempt or offer was made thereto by the defend ant. If it had clearly appeared that the letting rested in parol, the defendant might have introduced proof to show a promise to repair at the time of the letting. Cleves v. Willoughby, 7 Hill, 85. Omitting to make that clear, the presumptions are against such a fact. Regarding the landlord's engagement, therefore, as in wing, the evidence of the conversation that took place before the defendant took possession was improperly received. The plaintiff was not bound to keep the premises in repair, and there was no implied warranty that the premises were tenantable. 7 Hill, supra, 86; Post v. Vetter, 2 E. D. Smith, 248. Judgment reversed.

HANNAH E. GILMAN v. ISAAC REDDINGTON and others.

A devise to executors in trust, to use the devised fund in the education, support and maintenance of the testator's three children, or of such of them as may survive, or of the issue of any that may die, until the two youngest or the survivor attain the age of thirty years, is valid. The limitation is in fact for two lives only, viz.: those of the two youngest children.

The power to accumulate the fund beyond the minority of the testator's two youngest children, conferred by such a devise, is void; but it does not invalidate the bequest or the trust estate created thereby. That continues in the trustees until the two youngest children, or the survivor of them, attain the age of thirty. So far as the right to hold and manage the estate is conce ned, it is valid.

APPEAL from a judgment of the special term. This was an

Gilman v. Reddington.

action brought to procure an adjudication upon a will, and to obtain a decree declaring certain parts of it to be void. The will in question was that of Nathan Gilman, Jr. It contained, among other bequests, the following clause, which the plaintiff, the widow of the deceased, sought in this action to have declared void :

"Item. All the rest, residue and remainder of my estate, both real, personal, and mixed, I give and devise to my execu tors, hereinafter named, the survivors or survivor, in trust to manage the same, and to apply so much of the same, or the income thereof, as they may see fit, in the exercise of a sound discretion, in the education and maintenance of my three children, Willis Porter Gilman, Charlotte Elizabeth Gilman, and Nathaniel Gilman, or to such of them as may survive, or to the issue of y that may die, until my two youngest children, Charlotte Elizabeth Gilman and Nathaniel Gilman, or the survivor of them, shall attain the age of thirty years, or until they both be dead, if they die before attaining thirty years of age; at which time my estate, so left in trust, is to be paid, conveyed or made over to such of my three children aforesaid as may then survive, or to the issue of any of them that may be dead, having issue then living, in equal proportions, so that the issue may have the share of the parent. But if all the children be then dead without issue then living, it is my will that said rest, residue and remainder, as aforesaid, of my estate, be paid or made over as follows: one quarter to my widow, if she then be living, and the balance to my brothers and sisters then living, or the issue of any that may be dead (the issue representing the parent), in equal proportions. If my widow then be dead, the whole is to be paid or made over as last aforesaid."

Then followed a clause appointing the executors the guardians of the testator's children, to take care of their property, invest it in such stocks and securities as they might think best, and authorizing them to invest an amount, not exceeding one half, in good, productive real estate.

The cause was tried at special term, without a jury, before

Gilman v. Reddington.

Judge Ingraham, and the following opinion was rendered by him:

INGRAHAM, FIRST JUDGE.-My conclusions, in regard to the questions submitted on the trial of this case, are, that the 5th article of the will, although it contains some provisions which cannot be sustained, is not entirely void. The devise to the executors is good, for the purpose of applying the income to the support and education of the children of the testator during their minority.

The limitation is in fact only for two lives, viz.: the two youngest children. It cannot be extended beyond their minority, and, on the death of those two children or their arriving at age, the trust ceases, and the estate must then be divided among the persons then entitled to receive it. Any other provisions, which may have the effect of continuing the trust for a longer period, must be declared void. There is not, in these provisions, anything which, although void in themselves, renders it necessary to declare the whole of the 5th article to be void. The por tion of it limiting the estate for the lives of the two children until they arrived at age, or die, may be sustained, and the intent of the testator so far carried out.

The residue of the sums of $5,000 and $20,000, after the termi nation of the life estate of the widow, fall into the portion of the estate disposed of by the 5th article, and are subject to the same disposition as the residue of the general estate.

The necessary provisions to carry out these views will be settled in the judgment.

From the judgment entered, in accordance with this opinion, the plaintiff appealed.

Martin & Smiths and Charles O'Conor, for the appellants.

FIRST POINT. The testator attempted, by the residuary clause, to create a special discretionary trust for the benefit of minors, adults and unborn generations, to endure for nearly thirty

Gilman v. Reddington.

years, unless accidentally terminated at an earlier period by the death of his two younger children.

SECOND POINT. This trust contemplates many things which are expressly forbidden by law, and it is consequently incapable of being executed.

I. The life interests given to persons not in being are void. 1 R. S., 723, § 17-21 (see 4th ed. p. 133); ibid. p. 773, §§ 1, 2 (see 4th ed. p. 183).

II. This is not a case of successive life estates, where effect might be given to the testator's intent, by cutting off the life estates subsequent to the two first, because:

1. There are no two persons named to take in succession.

2. It would involve a manifest overthrow of the testa's whole design, and might leave his children penniless.

III. The power to accumulate is void, because not directed for the exclusive benefit of the minors in being. 1 R. S., 773, §§ 3, 4; Harris v. Clark, 3 Seld. 242.

IV. The powers to buy and sell or convey real estate are void.

THIRD POINT.-These provisions, which are manifestly and wholly illegal and void, enter so essentially into the general plan of the will, that even if it were practicable to separate them from the few directions which, if standing alone, and materially modified by the court, might be valid, it would still be impossible to carry such latter direction into effect, in any measure or degrec, without defeating the main object and most cherished wishes of the testator.

I. This was to keep together the bulk of his estate, and to make it accumulate for a long period of time, affording meanwhile a sustenance to all his posterity who might be in need— children, grandchildren and great-grandchildren-was, evidently, the great object of the testator.

II. The several illegal trusts, trust powers and life estates were the indispensable and necessary means to the accomplishment of this object, and their failure is destructive of the whole scheme of the will.