Smith v. White.

the defendants was a general denial of each and every allegation in the complaint.

After the issue was so joined, the cause was regularly removed into the Court of Common Pleas in and for the city and county of New York, under the provisions of the act entitled "An act to reduce the several acts relating to the District Courts in the city of New York into one act," passed April 13th, 1857. (Chap. 344, Laws of 1857.)

After the cause was so removed it was referred, by an order of the Court of Common Pleas, to William Bloomfield, Esq., to hear, try and determine the issues therein; he found in favor of the plaintiff, and directed judgment for $196.20 besides costs. A judgment was thereupon entered on the first day of October, 1860, which, on appeal, was affirmed by the general term of the Court of Common Pleas, by an order duly made and entered on the 27th day of February, 1861, and on the same day the defendants appealed to this court without any order allowing such appeal.

A motion is now made to dismiss the appeal on the ground that such order was not obtained; and the question presented, is, whether the appeal without it is valid.

It is provided by section 11 of the Code, as amended in 1857 (Chap. 723, of the Laws of that year, § 1), that an appeal to this court shall not be allowed in an action originally commenced in a Court of a Justice of the Peace, or in the Marine Court of the City of New York, or in an Assistant Justice's Court [now District Court] of that city, or in a Justice's Court of any of the cities of this State, unless the general term of the Court, by which the judgment sought to be reviewed was rendered, shall by order duly entered allow such appeal before the end of the next term after which such judgment was entered; but this prohibition is declared not to extend to actions discontinued before a justice of the peace, and prosecuted in another court, pursuant to sections 60 and 68 of the Code.

The actions embraced within that prohibition are those where there is a discontinuance upon an answer interposed

Smith v. White.

showing that title to real property was in question, and do not include this case.

The provision of the Code against appeals to this court therefore applies to this appeal, if the action was originally commenced in a District Court of the City of New York. Of this there can be no doubt. The original summons and pleadings were in such court. The action commenced there was never discontinued, but was removed to the Court of Common Pleas. The proceedings in the latter court were a continuance merely of an action already at issue. The pleadings in the District Court were those on which the trial was had in the Common Pleas; and it was the evident intention of the law, under which the removal into that court was made, that the progress of the suit should not be interrupted by such removal, for that law provides that the order by which it is effected shall be made after issue and before the trial of the same. The case before us, therefore, is one which falls within the inhibition against appeals to this court, except by an order of allowance by the general term of the Court of Common Pleas. It was one that was originally commenced in one of the District Courts of the city of New York, and was regularly continued to judgment in the Common Pleas; and as no such order was obtained the appeal is unauthorized, and must be dismissed, with costs.

Appeal dismissed.

APPENDIX.

BEEKMAN, Administrator, &c., v. BONSOR, the People et al.

THE following is a verbatim report, by a phonographer, of the argument of WILLIAM CURTIS NOYES, in this case (ante, p. 298). It contains so elaborate a collection of the authorities relating to the history of the doctrine of charitable uses— some of them rare and out of print-that the Reporter believes himself to be rendering an acceptable service to the profession in giving it greater perpetuity and diffusion, than a pamphlet could attain.

The very able arguments of the other eminent counsel in this case, necessarily suffer the common fate that attends winged words, however weighty or eloquent, when no phonographer is present. It would do injustice to those gentlemen to present their arguments in the skeleton nakedness of the printed points.

Mr. NOYES said:

If your Honors please - A brief reference to the situation of the parties litigating in this case, will be all the introduction I shall make to the legal questions I propose to present to the court. There is really, as between the parties other than the State, no substantial difference of interest. The Bonsors, if the property is to be regarded as personal estate, will take the one-half of it as next of kin, and Mrs. Barthrop the widow, will take the other half, so that, although there is an apparent antagonism between the representatives of Mrs. Barthrop, and the Messrs. Beekman and the Bonsors, in respect of the farm that was to be provided for the latter in this country, yet in reality, the annihilation of that provision which has been effected

by the decree of the general term, with the other parts of that decree giving the property to the next of kin, was a substantial provision for their benefit. They are all then, so far as the results are concerned, in the same general interest, and as I have already intimated there is no hostility between any of the parties here, except in reference to the State-the State not claiming any interest, as devisee or legatee or in any other form giving an interest, but simply claiming to assert a right of appropriation or disposition, to carry out the intentions of the testator.

A brief allusion to the statement I have affixed to the points presented on behalf of Thomas Beekman, whom I especially represent, will show that he and the plaintiff were justified not only in protecting themselves, but in protecting their mother's estate; and in having regard also to the interests of the Bonsors, the relatives of the testator, in contesting every provision of this will, which changes the ordinary and natural course of descent of the property. It seems the testator, very soon after he came here, was placed in a position by which he stood in loco parentis to them, and they gave him, without any doubt, the obedience and respect due to a person in that condition. And the manner in which that respect was requited appears in this, that by his will he gave them nothing, and by the codicil he them a forest gave a small lot of woodland- -a place as barren as his affection towards them seems to have been; and they were not, but other persons were, appointed his executors. If, therefore, the disposition which he made of his property, in disregard if not in violation of the relation in which he stood to them, was not in all respects strictly legal, it was not only their right, but it was their duty, to themselves, to their mother, and to the Bonsors, to set it aside. But no apology is necessary where there is a plain legal right; and yet it is not improper that your Honors should see, that the claims of duty entirely coincide with those of legal right in a case of this description.

I shall first present to the court the question growing out of the devise of a farm for the Bonsors in this country, and I will read that provision. The testator makes a very small provision by his will for the family with which he was so intimately connected. He seems never to have desired their presence in this country while he was alive and in a condition to contribute to their happiness, and it does not appear that they ever wished to expatriate themselves. It does seem that after his decease, and when he could give them no personal attention, he desired that they should come here.

"I will that my executors purchase a farm in trust for the benefit of my nephews and nieces, children of my sister Mary Bonsor, of Nottinghamshire, in England, not exceeding six thousand dollars, as an asylum."

Mark the phrase! A sort of semi-public charitable institution for his own family the descendants of a sister!

"And it is my wish they come and occupy the same, especially my nephew Henry, but my executors must have full power over the same for fifteen years, for the benefit of all my nephews and nieces as they think fit, and after the fifteen years is expired, they may sell the same and apportion the avails among them, or their heirs or survivors, as they think just, and if any of my nephews and nieces cavil or dispute with the arrangements my executors make for their mutual benefit, I will that they receive no part thereof."

So that the executors were appointed a committee to manage these unknown people when they came, and if they were not satisfied with the means adopted for that purpose, they were to be cut off from all participation in this bounty. Consider this for a moment in connection with the residuary clause. He gives, after satisfying all the provisions of his will in regard to the dispensary, the residue to his executors in trust,

"to pay and apply the same in such sums, and at such time and times as in their discretion they shall think fit and proper, to the treasurer or other officer having the management of the pecuniary affairs of any one or more societies for the support of indigent respectable persons, especially females and orphans, and for the use of said society or societies, hereby intending to give to my executors full discretionary power as to the disposition of the same, but so as that the same shall be applied to objects of charity."

It is not said whether these societies shall be incorporated, or not; but before his relations can receive the benefit of the six thousand dollars, they are to occupy this domestic "asylum," under the management of his executors. And before they can reap one particle of benefit under this residuary clause, they are to become, in addition to this unfortunate and unhappy condition in a private asylum, corporate paupers! If they should connect themselves with any association of that sort a refuge for pauperism-they could receive its benefits, and not otherwise.

If the court please, a will which contains such provisions — and I do not say this for the purpose of reflecting on the memory of the a will which contains such provisions as this in relation to the blood relations of a man, should not stand, unless there be some 73

testator

SMITH.-VOL. IX.