Misc.] Surrogate's Court, Niagara County, December, 1914.

at the time of testator's death unless it can be seen by the court that the testator intended such a conversion. Scholle v. Scholle, 113 N. Y. 261; 7 Am. & Eng. Enc. of Law (2d ed.), 465; Clift v. Moses, supra; 40 Cyc. 1386.

All the canons of construction are merely rules which the experience of centuries developed for ascertaining the intention of the testator. Roosa v. Harrington, 171 N. Y. 341; Cammann v. Bailey, 210 id. 19. The great question here as in all cases is what was the intention of the testator? The only real estate left by the testator other than the two lots specifically bequeathed as aforesaid consisted of this Harvey House which is located in the city of Niagara Falls; and in the twelfth clause, above quoted, the testator has clearly shown that he intended that this property should vest in the residuary devisees upon his death and should not be converted into personal property. A court will not interfere to change the quality of property as left by a testator in the absence of a clear and unequivocal intention on his part to make such change. King v. King, 13 R. I. 501; Clift v. Moses,

supra.

There is a line of cases in the court of last resort in this state, among them Lent v. Howard, 89 N. Y. 176 and Fraser v. United P. Church, 124 N. Y. 486, in which it was held that although a power of sale was discretionary a conversion was indispensable to carry out the purposes of the testator, that therefore he intended a conversion and that realty was converted into personalty by his will taking effect at the date of his death; but in all these cases there was a disposition made by the testator in his will of the proceeds of his realty and before this distribution could take place a sale necessarily had to be made.

The reasoning upon which all these decisions are

Surrogate's Court, Niagara County, December, 1914. [Vol. 88.

based is the same and is expressed in Power v. Cassidy, 79 N. Y. 614, as follows: "Where a testator authorizes his executors to sell real estate, and it is apparent from the general provisions of the will that he intended such real estate to be sold, the doctrine of equitable conversion applies, although the power of sale is not in terms imperative."

Here there is a power of sale, but it is not apparent from the will that the testator intended that the Harvey house should be sold. In fact he has expressly stated otherwise in the will itself. It is impossible to read this will, even in the light of the situation and value of the testator's property at the time of the making of the will, without being convinced that he believed that the Harvey House was much more valuable than it subsequently proved to be, and that he intended that the title thereto should vest in the devisees mentioned in said tenth clause subject to the lien of the specific legacies aforesaid which these devisees could pay out of this Harvey House and still have a substantial equity therein.

The title to this real property in question vested in the residuary devisees named in said tenth clause subject to be divested by the exercise of the power of sale contained in the will. Erwin v. Loper, 43 N. Y. 525. There was no conversion until the sale by the executors and such devisees would be entitled to the rents and profits from the death of the testator to the date of sale. 18 Cyc. 304; Coann v. Culver (supra); White v. Howard, 46 N. Y. 144; Matter of Van DeWalker, 79 Misc. Rep. 661.

Of course the specific legatees had a lien upon this real property as security for the payment of their respective legacies; and the real property being inadequate for the payment of the liens they could undoubtedly have acquired possession prior to the sale in an

Misc.] County Court, Onondaga County, December, 1914.

appropriate equitable action and through a receiver. But until the arm of equity reached out and took possession of the property, the owners of the legal title would be entitled to possession and the rents and profits arising therefrom. It is probably true also that the specific legatees would not have to resort to a court of equity to obtain such possession if the residuary devisees surrendered possession of the property to them or their representatives. It does not appear just how the executors came to take possession of this property and collect these rents and profits, and they ask for permission to show this upon this new accounting.

The application is granted upon payment by the executors to the attorney for the specific legatees of the sum of fifty dollars.

Decreed accordingly.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LEVIS S. CHAPMAN, Appellant.

(County Court, Onondaga County, December, 1914.)

Villages violation of village ordinance - publication of regulation of speed of motor vehicles- violation of provisions of Highway Law - when ordinance is of no force - Highway Law, § 290(9). On a trial for a violation of a village ordinance the prosecution must prove not only that such ordinance was duly adopted but also that there has been a compliance with all the requirements of law pertaining to the enactment of village ordinances.

After proof that a proposed ordinance regulating the speed of motor vehicles within the limits of a village had been filed with the secretary of state, as required by section 288 of the Highway Law, more than thirty days before defendant's alleged violation of said ordinance and that it was published in a newspaper in the village for at least twenty-nine days, and no evidence being offered to show that said newspaper was the

County Court, Onondaga County, December, 1914. [Vol. 88.

official village paper, or that it was the only newspaper published in the village, or that copies of the ordinance were posted in at least three public places as required by the Village Law, the ordinance is of no force and effect and defendant's conviction thereunder must be set aside and his fine of fifty dollars remitted.

By section 290 (9) of the Highway Law " any person violating any of the provisions of any section of this article for which violation no punishment has been specified, shall be guilty of a misdemeanor punishable by a fine of not exceeding twenty-five dollars." Held, that a fine fixed by said ordinance at a sum not over fifty dollars was illegal and beyond the power of the court to impose.

APPEAL by defendant from a conviction in Police Court.

Newell, Chapman & Newell (H. E. Newell, of counsel), for appellant.

George W. Stanton, district attorney (Cleveland J. Kenyon, of counsel), for respondent.

BODINE, Acting County Judge. The defendant was convicted in police court in the village of Tully, N. Y., for violation of an alleged ordinance which forbade any person to operate a motor vehicle on the public. streets at a speed exceeding one mile in four minutes and which provided that any person who violated the same should be guilty of a misdemeanor and punishable by a fine of not exceeding fifty dollars. The ordinance further provided that before it became effective it should be filed in the office of the secretary of state, and published in the Tully Times, a newspaper published in said village, for the period of thirty days.

The defendant in his affidavit on which the appeal was granted alleges twenty reasons why the judgment of conviction should be reversed, many of which raise very interesting questions, but only one, the eighth,

Misc.] County Court, Onondaga County, December, 1914.

questioning the validity and proof of the village ordinance, I deem it necessary to consider in determining this appeal.

The crime, if one was committed, being purely a statutory one, it was incumbent on the people to show that a legal ordinance had been duly adopted and that all the requirements pertaining to the enactment of village ordinances had been fully complied with.

66

Section 288 of the Highway Law permits local authorities of cities and incorporated villages, other than cities of the first class, to limit by ordinance the speed of motor vehicles within certain prescribed limits. Section 95 of the General Village Law provides "When ordinances to take effect," and is in the following language: Every ordinance adopted or approved by the board of trustees of a village shall be entered in its minutes and published in the official paper of the village and also in such other newspapers actually printed in the village, once each week for two consecutive weeks and a printed copy thereof posted conspicuously in at least three public places in the village for at least ten days before the same shall take effect and the affidavit of the publication and posting thereof shall be filed with the clerk."

Section 288 of the Highway Law provides, that before an ordinance drawn thereunder limiting the speed of motor vehicles becomes effective copies of the same must also be filed with the secretary of state at least thirty days before they shall respectively take effect and certain signs must be erected.

It is apparent from the reading of these sections, that all the provisions applicable to the adopting of local ordinances as defined in the Village Law must be observed as to publishing and posting and in addition thereto the additional requirements mentioned in said section 288 must be complied with.