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and 123 New York State Reporter Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.

Plaintiff brought this action to recover damages alleged to have been sustained by falling upon a defective sidewalk in the city of Rochester, which the defendant negligently allowed to remain out of repair. He recovered a small verdict. The only error assigned against his judgment and argued upon this appeal is that his action was not maintainable in the absence of actual notice to the city of Rochester or its officials of the existence of the alleged defects. It is not claimed that any actual notice thereof was given before the accident, and it is conceded that originally defendant's charter (section 218, c. 14, p. 76, Laws 1880) required such notice. The learned trial justice, however, held, and upon this appeal it is argued by respondent, that the White charter for cities of the second class (section 461, c. 182, p. 438, Laws 1898, as amended by chapter 581, p. 1290, Laws 1899) dispensed with the necessity for this actual notice, and allowed such an action as this to be maintained where the defect complained of had existed for such a length of time that the same should have been discovered and remedied in the exercise of reasonable care and diligence.

John M. Stull, for appellant.
Henry R. Glynn, for respondent.

STOVER, J. In the passage of the White charter the Legislature intended to effect a uniform system for the government of second-class cities. By the provision under discussion it intended to make a uniform regulation as to notice of defective conditions. It, by the saving clause, used the words other requirement or statute of limitations,” and it may be well said that by that was meant other requirement than notice as to conditions or statute of limitations. Reading in this light, it would seem that the old provision of the charter, which required actual notice, was abrogated by the statute; and this would seem to be a reasonable construction of the statute. Having in mind the idea of uniformity in regulations with reference to municipalities, it is not unreasonable, I think, to say that the Legislature intended to have uniformity of notice as to defects in sidewalks, but did not intend to do away with other features of the law which did not affect the notice, either actual or constructive, as to defective conditions. This does not conflict with that provision which requires that the provisions of the charter shall be an additional requirement to those already furnished. To say that either actual or constructive notice was in addition to the requirement of a statute which required that actual notice must be given before a liability can be incurred, would render that provision of no effect; whereas to say that wherever there was an additional requirement beyond the notice, which was still left in force, so far as the notice of defective conditions is concerned, the provisions of the White charter are not inconsistent. To reiterate: If there were only conditions in previous legislation as to defective conditions, that legislation was merged and repealed by the enactment of the White charter. If, in addition to defective conditions, there was some other special requisite of the charter that was still left unrepealed, leaving the provisions of the White charter applicable to all municipalities, and in addition thereto any such municipalities as had special legislation which was not legislated upon, such special legislation was not affected.

Judgment and order affirmed, with costs. All concur.

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(Supreme Court, Appellate Division, Fourth Department. July 6, 1904.) 1. WILLS-PERSONALTY-LEGACY-TIME WHEN WILL SPEAKS.

Where testatrix's will gave one her "diamond brooch” and gave another "jewelry not otherwise disposed of," and the brooch testatrix had when the will was executed was subsequently disposed of, but at her death she had another, it passed to the one to whom the brooch was given in the will, and not as jewelry "not otherwise disposed of.”. Appeal from Special Term, Erie County.

Action by George E. Waldo and others, as executors, etc., of the estate of Helen Thornton Campbell, deceased, for a construction of the will. From a judgment that Florence Hayes became the owner and entitled to the possession of a certain diamond brooch owned by the testatrix at the time of her death, Hilda M. Lomax Iggulden and others appeal. Affirmed.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISČOCK, and STOVER, JJ.

Eugene M. Bartlett, for appellants.
Irving L. Fisk, for respondents.

McLENNAN, P. J. Helen Thornton Campbell died on the 10th day of January, 1903, leaving a last will and testament, which was dated and executed by her on the 8th day of March, 1898; the eighth clause of which is as follows:

“Eighth-I give and bequeath to Florence Hayes, of Buffalo, New York, all my china ware and my diamond brooch."

The seventeenth clause of the will provides : "Seventeenth-I give and bequeath to Mrs. Lomax, of Dewitt Street, near Breckenridge Street, Buffalo, N. Y., and to her daughters, Hilda and Ethel, such of my wearing apparel as they may choose and any jewelry not otherwise disposed of in this will."

Upon the probate of the will of the testatrix the respondent Florence Hayes, the beneficiary named in the eighth clause, claimed to be entitled to receive from the executors of said will the diamond brooch in question, which the learned trial court has found was the only article owned by the testatrix at the time of her death which answered the description contained in said eighth clause. The appellants claimed that, as such brooch was not the one owned by the testatrix at the time the will was executed, it passed to them as an article of jewelry not otherwise disposed of, under the seventeenth clause of the will. Such controversy, together with some others arising under other provisions of the will, having arisen, the executors brought this action to obtain a judicial construction thereof. Upon the trial the court decided that the brooch in question passed to the respondent under the eighth clause, and should be delivered to her or to her attorneys, and decreed accordingly. The beneficiaries under said seventeenth clause have appealed from such portion of the judgment entered upon said decision as determines the ownership of said brooch to be in the respondent and directs the delivery thereof.

and 123 New York State Reporter The evidence is uncontradicted that in September, 1897—more than a year prior to the execution of the will—the testatrix purchased of Tiffany & Co., New York, a diamond brooch, and paid therefor the sum of $1,500. This brooch was the only diamond brooch, so far as appears, owned by the testatrix at the time her will was executed. The court also found that in December, 1899, after the will was executed, she purchased of the same firm another diamond brooch, for which she paid $300, and that on May 23, 1900, she purchased from Tiffany & Co. a diamond brooch valued at $2,500, giving therefor the two brooches theretofore purchased by her, and paying $350 in addition thereto; that she retained this last-mentioned brooch down to. the time of her death, and that it was the only one owned by her at that time. The question presented by this appeal would seem to be settled by authority. The courts of this state have uniformly held, if we understand the decisions correctly, that, as to personalty the will of a testator speaks as of the date of the death of the testator, and that any article of personal property which the testator owns at the time of his death, which answers to the description of an article bequeathed, passes under the will to the legatee named therein, although such article may not be the identical article owned by the testator at the time the will was executed. In the case of Brundage v. Brundage, 60 N. Y. 544, the court said:

"It is a general rule that a will speaks from the time of the death of the testator. This rule is not excepted from, in the case of a general bequest of a particular description, as of an ascertained number of shares of a particular stock."

In that case the controversy arose over certain shares of stock of the New York Central Railroad Company which were bequeathed by the testator to his wife for her sole use and benefit during her life, and after the execution of the will the railroad company issued what were styled “interest certificates.” It was claimed that the issuance of such certificates was illegal, and had the effect to impair the value of the certificates of stock willed by the testator to his wife. In discussing the question still further, the court, at page 548, said:

"It is to be observed that he [the testator) did not bequeath to her [his wife) any specific shares definitely described by numbers or otherwise. Had he died without owning any shares of the stock of the New York Central Railroad Company the legacy to his widow would not have been adeemed, and it could have been made good by the purchase and transfer to her of any shares, to the number given, to be had in the market. Had they been bought in the market, the ownership by her for life would have conferred upon her such rights and interests as belonged or were incidental to the shares at that time, and not those which had at some prior time been taken away. And it is not different if, to satisfy the legacy, the executors make use of shares found among the assets of the testator. It follows, then, that when the testator died leaving this will and its codicils, by which his widow was entitled to a legacy for life of a certain number of shares of stock, she took them just as they were at his death."

In the case at bar the testatrix bequeathed to the respondent "my diamond brooch.” At her death there was found among the assets of her estate an article which answered the description of the legacy contained in the eighth clause, and it seems that under the authorities it is of no importance that the brooch, which was the only diamond brooch owned by the testatrix at the time of her death, was not the particular one owned by her at the time her will was made.

Schouler on Wills (3d Ed. $ 486) states the rule as follows: “The preferable rule as to after-acquired property stands thus, with the aid of legislation : that descriptions, whether of real or personal estate, or of both together, the subject of gift, refer to and comprise prima facie the property answering to that description at the death of the testator; but that at all events the intention manifested by the will shall prevail."

The same rule is declared and adopted in Van Vechten v. Van Vechten, 8 Paige, 104.

In Tifft v. Porter, 8 N. Y. 516, 521, Judge Johnson said: "The presumption is stronger that a testator intends some benefit to a legatee than that he intends a benefit only upon the collateral condition that he shall remain till death owner of the property bequeathed. The motives which ordinarily determine men in selecting legatees are their feelings of regard, and the presumption, of course, is that their feelings continue, and they are looked upon as likely to continue. An intention of benefit being once expressed to make its taking effect turn upon the contingency of the condition of the testator's property being unchanged, instead of upon the continuance of the same feelings which in the first instance prompted the selection of the legatee, requires, as it ought, clear language to convey that intention."

Such have been some of the adjudications in this state, and, while we might cite many other authorities in support of the judgment, we do not deem it necessary to do so, but for the purpose of directing attention to the argument and very apt illustrations of Vice-Chancellor Malins in disposing of a like question in the English Court of Chancery we add the further citation of Castle v. Fox, Law Reports, 11 Equity, 551, 552.

We think the learned trial court adopted the correct rule in construing the eighth clause of the will of Helen Thornton Campbell, and that therefore the judgment appealed from should be affirmed.

Judgment affirmed, with costs. All concur.

(96 App. Div. 128.)

In re MCMURRAY'S ESTATE.

(Supreme Court, Appellate Division, Third Department. June 30, 1904.) 1. TAXATION-INHERITANCE TAX-LEGACY SUBJECT TO.

A legacy of less than $500, left to testator's niece, who had occupied the relation of child of the testator since she was about two years old, exempt from the transfer tax imposed by Laws 1892, p. 822, c. 399, § 22, must be added to the legacies left to nephews and their wives, in order to make the aggregate estate exceed $500, for the purpose of sus

taining a tax on the legacies to the nephews and their wives. Appeal from Order of Surrogate, Delaware County.

Appraisal, under the act in relation to taxable transfers of property, of the property of John McMurray, deceased. From an order of the surrogate's court setting aside an order made by it assessing a transfer tax, the State Comptroller appeals. Reversed.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

and 123 New York State Reporter Barna Johnson, for appellant. John A. Kemp, for respondent.

CHESTER, J. The decedent, John McMurray, died in Delaware county March 4, 1896. By his will, proven in that county March 8, 1896, he gave one-half of his property to his niece, Lizzie T. Cramer, and the other half to his nephew Charles F. Hunt and Gussie Hunt, his wife, and his nephew John A. Hunt and Sarah Hunt, his wife. The decedent and said Lizzie T. Cramer, for about 20 or 25 years prior to his death, had occupied the mutually acknowledged relation of parent and child, which relationship began when she was about 2 years old. The value of the property of the decedent at the time of his death was $868.09, of which the share of Lizzie T. Cramer was $134.04, and the shares of the two nephews and their respective wives were $108.51 each, aggregating $134.04. The order appealed from reverses an order imposing a transfer tax upon the shares of such nephews and their respective wives.

The only question presented upon this appeal is whether the share going to Lizzie T. Cramer, which is not taxable, because of its amount and of the relationship she bore to the testator, can be added to the shares of the nephews and their respective wives, in order to make the aggregate estate transferred exceed $500. The claim of the respondent is that said Lizzie T. Cramer is a person “specifically exempted" from the provisions of the transfer tax law (Laws 1892, p. 822, c. 399), within the meaning of that term as used in section 22 of such law, and for that reason her share cannot lawfully be added to the shares of the nephews and their wives, in order to make the aggregate estate exceed $500, for the purpose of sustaining a tax upon the shares of such nephews and their wives. This question has been decided adversely to the contention of the respondent. Matter of Corbett's Estate, 55 App. Div. 124, 67 N. Y. Supp. 46, affirmed 171 N. Y. 516, 64 N. E. 209; Matter of Hoffman's Estate, 143 N. Y. 327, 38 N. E. 311; Matter of Garland's Estate, 88 App. Div. 380, 84 N. Y. Supp. 630. While the share of Lizzie T. Cramer is not taxable, yet under these authorities she is not a person “specifically exempt” from taxation, as is a bishop or a religious corporation, for the reason that, if the estate had been sufficiently large to bring her share within the provisions of the law, she would then have been a taxable person under it.

The order of the surrogate's court should be reversed, with $10 costs and disbursements. All concur.

(96 App. Div. 120.) PEOPLE ex rel. NORTH AMERICAN TRUST CO. v. KNIGHT, Comptroller.

(Supreme Court, Appellate Division, Third Department. June 30, 1904.) 1. TAXATION-CORPORATIONS-DIVIDENDS-STATUTES.

Where stockholders of a corporation paid into its treasury, in cash, solely for the purposes of strengthening the company and adding to its working capital, $500,000, for which no additional stock was issued, and the company thereafter entered into a merger agreement with another

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