Gilman v. Reddington.

III. The court has no power to make a new will for the tes tator, but such would be the effect of attempting to carry out any one direction contained in the will. There is only one thing which could possibly be done under the trusts, which would not be illegal, and would, at the same time, approximate to an execution of a part of the testator's object, i. e., the application of the whole income, whether needed or not, to the support and main tenance of such of the children as might happen to be in life. This would be in violation of the expressed desire of the testator, for it would defeat the accumulation he aimel at, set aside the discretionary supervision he created, and disappoint the remainder-men to whom he ultimately gave the estate.

V. One of the monstrous.and unnatural effects of such a direction would be, that for many years grandchildren of the testa tor might be starving, or in an alms-house, whilst a single surviving child had a superabundance.

FOURTH POINT.-The whole devise and bequest in trust, and all the trusts and powers connected therewith, being essential parts of one general scheme for illegally keeping together and accumulating the testator's property, and giving unauthorized remainders, should be declared to be illegal, inoperative and void; to the end that the just, reasonable and convenient appropriation made by the law of descents and distributions should take place. Costar v. Lorillard, 14 Wend. 265; Hawley v. James, 16 ibid. 61, 144; Ilone's Ex'rs v. Van Schaick, 7 Paige, 230; 20 Wend. 564; Thompson v. Carmichael's Ex'rs, 1 Sand. Ch. R. 3S7; McSorley v. McSorley's Ex'rs, 4 ibid. 414; McSorley v. Wilson, ibid. 515; Field v. Field's Ex'rs, ibid. 528.

P. G. Clark, for the respondents.

I. The trust created by the 5th clause of the will is, in all respects, valid, with the qualification hereafter mentioned.

1. The estate is given to the executors to hold and manage the same until or during the life of the two children, or until they attain the age of thirty years.

2. The limitation cannot extend beyond the two lives in

Gilman v. Reddington.

being, and may sooner terminate if the children live to the age of thirty.

3. This is a valid limitation. 2 R. S. (4th ed.) page 133, § 15; (1st ed.) page 723; ibid. (4th ed.) page 183, § 1; (1st ed.) page 773; De Kay v. Iving, 5 Denio, 646–650.

4. The direction for the accumulation beyond the minority of the infants is void, but the statute declares that such direction shall be void only as respects the time beyond such minority. See 2 R. S. (4th ed.) page 184, § 4; (1st ed.) 774; De Kay v. Irving, 5 Denio Rep. 646-53.

II. There is no provision of this will, which, if void, is so to such an extent, or is so connected with the other provisions, as to render the whole will void. Haxton v. Corse, 2 Barbour Ch. Rep. 506; De Kay v. Irving. 5 Denio, 646; Parks v. Par9 Paige Rep. 117; Darling v. Rogers, 22 Wendell, 483; Dupre v. Thompson, 4 Barbour Sup. C. Rep. 279; Van Vechten v. Van Vechten, 8 Paige, 128.

The only provision subject to criticism is that in which the trustees are, during the time limited, to apply the income of the estate to the issue of any of the children who may die leaving issue. If the court shall think this direction void, still, the authorities cited are in point, that the other provisions may stand.

The court erred, however, in declaring that the trust wholly ceased upon the two children attaining the age of twenty-one years, and in this respect the decree appealed from should be modified.

The statute declares the accumulation shall cease at the ter mination of the minority of the children. The trust is valid, so far as holding and managing the estate is concerned during the two lives, or until the children named attain the age of thirty years, if they live so long, but the accumulation will cease. That is, the whole income must be paid over to the persons entitled after majority, but the principal will remain in the hands of the trustees during the time limited.

DALY, J.-I concur in the judgment pronounced at the special VOL. I.

32

Garr v. Mairet.

term, except as far as it declares that the trust estate shall cease when the two youngest children, or the survivor of them, arrive at the age of twenty-one years. The power given to accumulate beyond the minority of the testator's children was void, but the estate in the trustees continues until the two youngest children, or the survivor of them, attain the age of thirty years. So far as holding and managing the estate during the two lives, or until 'the two youngest children reach the age of thirty years, if they live so long, it is a valid trust and may be executed. With this modification, therefore, I think the judgment of the special term should be affirmed.

Judgment accordingly.

ANDREW S. GARR v. HENRI MAIRET and C. A. ROBERT.

Josts, as taxed or adjusted by the clerk, are not, under the Code, the measure of compensation for the services of the attorney, in an action between himself and his client to recover therefor.

In such an action, proof of the value of the service is required.

APPEAL by defendants from a judgment entered upon the ́report of a referee. The facts sufficiently appear in the opinion of the court.

F. R. Coudert, for the appellants.

A. S. Garr, respondent, in person.

BRADY, J.-The plaintiff, who is an attorney and counsellor of the court, sued the defendants to recover for services rendered in his professional character. Before the referee, no proof of the value of the services rendered was given, except the judgment rolls, showing the costs taxed against the parties sued by the de fendants. Prior to the Code, there is no doubt the rule was, that the amount of costs taxed was the measure of compensation to

Nordemeyer v. Loescher.

the attorney, as between him and his client (McFarland v. Crary, 8 Cowen, 253; Brady v. City of New York, 1 Sand. 583, 584); but, by the Code, the rule was changed, leaving the attorney and client to make their agreement as to compensation. On authority, although perhaps the rule referred to is a fair one and should still prevail where no express agreement has been made, costs are no longer the measure of compensation, and proof of value of the service is required. Code, 303; Easton v. Smith, 1 E. D. Smith, 318; Stow v. Hamlin and others, 11 How. 452; Moore v. Westervelt, 3 Sandf. 762. The referee erred, therefore, and the judgment should be set aside and the cause referred back. Costs to abide event.

Ordered accordingly.

我

CAROLINE NORDEMEYER v. PHILIP A. LOESCHER.

A common carrier has the right to exact payment in advance for his services, and if the person who employs the carrier pays the carriage in advance, he cannot bo required to pay it over again to another party, who has, without his authority, performed the service. In such case, there is no privity of contract between him and the carrier who performs the service, and the latter has no lien upon the property against the owner, but must look to the party who employed him, for his compensation.

But a carrier, employed to forward goods, may employ another carrier to perform the service, and the latter will have a lien on the goods for his charges, where the charges for carriage have not been previously paid to the former carrier. An agreement to carry a passenger and his baggage includes only ordinary baggage, or such articles of necessity and personal convenience as are usually carried by passengers.

II. agreed to convey N. from Hamburg to New York, and to forward her baggage to her there, to the care of the defendants. He employed another carrier to forward the baggage, from whom it was received by the defendant It did not appear whether N. had paid for her passage or the carriage of her baggage or not: Held, that, in the absence of such evidence, the defendant had a lien on the baggage for charges incurred in the carriage thereof, and paid by him to the carrier.

APPEAL by defendant from a judgment of the Marine Court.

Nordemeyer v. Loescher.

This was an action to recover damages for an alleged conversion of personal property of the plaintiff. Judgment was rendered for $127 for the plaintiff, by the justice who tried the cause, which was affirmed at the general term of the Marine Court. The defendant appealed. The facts are stated in the opinion of the court.

Charles A. May, for the appellant.

H. W. Johnson, for the respondent.

DALY, J.-All that can be gathered from the very imperfect tement of the case, upon which this cause was heard by the general term of the court below, is, that the plaintiff made an agreement with one Hirschman, a shipping merchant in IIamburg, by which Hirschman promised to send her to New York in the ship Waterloo, and to forward her baggage there, which he told her she would find in New York, at the defendant's. It does not appear, by the case, whether she paid her passage or only paid part of it, or merely agreed to pay her passage. In one part of the case it is said that "she paid or agreed to pay it," and, in another, that an "advance and money" was due by her upon her passage, the freight of her baggage, insurance, &c. Hirschman sent her to this city, in the ship Waterloo, where she arrived eight weeks before the arrival of the baggage. The baggage was received here by the defendant, who paid the charges and expenses upon it, amounting to $59.50, which included $36.18 for advance charges, insurance, &c., in Hamburg, and $23.32 for freight, dutics, cartage, storage, and commissions, incurred or payable here. IIirschman delivered the baggage over to another shipping merchant in Hamburg, who paid the advance or money due upon it to Hirschman, and this shipping merchant consigned it to the defendant, with instructions to collect $36.18 charges at Hamburg, which were noted on the bill of lading, together with the charges for freight, storage, commissions, &c., at New York; instructing him, further,