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substantial improvements and considera- sion to her in June, 1838 ; that she ble expenditures on the premises with

and her husband moved upon the the knowledge of the promisor. Where the owner of land promised to give premises, and had ever since occu

to his newly married daughter one of his pied and had the sole possession and farms if she would abandon her intention control thereof, under said conof removing to another county and take tract; paid the taxes, cultivated up her residence near him, and she and

and improved it, and with the her husband, relying upon such promise, and in pursuance thereof, took possession, knowledge of the defendant erectcultivated it, erected buildings and made ed buildings, repaired the fences, other substantial improvements and con- ditched the farm, eradicated foul tinued in sole possession for twenty years, weeds, etc., from the farm, and it was held that her heirs were entitled to specific performance.

enriched and brought it under a

better state of cultivation, making it Appeal from judgment entered several thousand dollars more valuon decision of Special Term. able. That during all this time said

Action for specific performance Harriet used and managed the of a contract for the conveyance of farm as though it were her own, lands to Harriet Van Arsdale, defendant not claiming or pretendplaintiff's ancestor. The trial court ing to have any control thereof. found that said Harriet was defen- | Upon these facts as found the dant's daughter and was married court decreed a specific performin 1858 ; that she and her husband intended and proposed to leave her W. F. Cogswell, for applt. father's house and move to the Howland & Wheeler, for respt. western part of the State ; that de- Held, That there was a good confendant desired and solicited her sideration to sustain the agreeto remain near him and his family. ment, and that part performance That defendant owned and occu- by taking possession, making impied 400 acres of land, and agreed provements, etc., warranted a court verbally with her, that if she and of equity in decreeing a specific her husband would not move away, performance of the agreement. but would move upon, take and ac- Plaintiff's ancestor, in consideracept the lands described in the com- tion of the agreement, abandoned plaint, and occupy the same and her intention of removing, remainremain and make her home thereon ed near her aged parents so as to be and cultivate the same and keep it in a situation to comfort and minin repair, and pay the taxes, and ister to their wants in their old age. make such improvenents as they It was the society of his daughter should deem necessary and benefi- and her care in his declining years cial, and accept the lands as her defendant did not wish to be deportion of defendant's lands to prived of, and to obviate which he which she would be entitled as made this agreement. If defendhis heir at law, that he would deed ant had agreed to convey this farm the premises to her. That there in case she should remain a memupon defendant delivered posses- ber of his family for any specified

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time, the consideration would have Opinion by Childs, J.; Bradley been sufficient to uphold the agree- and Haight, JJ., concur. ment; and we are unable to distinguish between such an agreement and the one in this case. The

BOND OF INDEMNITY. substance of the agreement was N. Y. SUPREME COURT. GENERAL that she should abandon plans

TERM. FIRST DEPT. which were formed, at the request

The Mutual Life Ins. Co. of N. of defendant and for his personal Y., applt., v. Robert S. Holt et al., comfort and convenience, in con

respts. sideration of his agreement. But we think it is not necessary

Decided Jan. 9, 1885. that any consideration should have

consideration should have When it is the custom of an insurance passed from plaintiff to defendant,

company in the case of rival claimants to

the proceeds of a policy to pay the money at the time that the agreement was

into the court and compel the claimants to made or subsequently, to sustain litigate their rival claims between them. the judgment. A parol promise selves, but at the request of one of such by the owner of land to give it to

claimants the company departs from such

custom and pays over the money to him another, accompanied by the ac

taking a bond conditioned to indemnify the tual delivery of the possession company from all costs, liabilities,charges, thereof to him, will be enforced in damages and expenses to which it may be equity, where the promisee, in

subjected in consequence of said payment,

and the other claimant subsequently brings duced by the promise, has made

an action against said company for the substantial improvements and con- proceeds of the policy but is defeated, the siderable expenditures upon the

indemnitors upon such bonds are liable premises, with the knowledge of

for the expenses incurred by the company

in defending said action. the promisor. 43 N. Y., 31; 36 id.,

When it appears from the circumstances pre327; 7 Hun, 558; 96 Ill., 591; 55

ceding and attending the giving of such a Cal., 94; 6 Iowa, 279; 41 Ill., bond that it was the intention of the par101.

ties to protect the company against the

happening of a certain contingency the To deprive plaintiff's ancestor of

bond will be construed so as to give effect the benefit of her expenditures, to this intention although the contingency etc., induced by the promise of de- in question was not mentioned in the re

cital of the bond. fendant to convey, and secure them to defendant would be a gross Appeal from a judgment disfraud upon her; and to prevent | missing plaintiff's complaint. such a fraud being practiced upon

Plaintiff issued a policy upon her a court of equity will inter- the life of Thomas Taylor, payfere and decree a conveyance. | able to his wife, Mary H. Taylor, Whether treated as a sale by parol her executors, administrators, or or as a gift the court applied the assigns, or, in case of her death law correctly and the decree grant before her husband, leaving childed necessarily followed from the ren, to such children or their guarfacts found.

dian. The respt. Robt. H. Holt Judgment affirmed.

claims the proceeds of this policy

as executor of said Mary H. Taylor, the expense of successfully resistshe having died before her 'hus- | ing invalid claims; that the exband and without leaving children. pense of defending the suit in quesThe proceeds of the policy were tion was not in consequence of the also claimed by the relatives of her payment to Holt, and (2) that the husband. Upon the application of general words of the condition Holt for the payment of the policy were limited by the special words to him he was informed by the of the recital and that no breach company of this rival claim and of had been proven within its proper the custom of the company in such and true meaning. This motion cases to pay the money into court was granted. and compel the claimants to liti- Julien T. Davies, for applt. gate their claims between them- Robert W. De Forrest, for respts. selves, but upon the request of said Held, That by making payment Holt the company consented to to Holt

to Holt upon his importunity forego said custom and pay the plaintiff surrendered the right of money to him, taking from him a interpleader and took upon itself bond in which it was recited that the risk and burden of any suit it was represented by him that that might be brought against it Mary H. Taylor had left no child by the other claimants to the fund. and that the company upon the That it was shown by the circumfaith of such representations had stances surrounding the execution paid to said Holt the amount due of the bond that this was the very upon said policy, and which was peril and damage in the contemplaconditioned to indemnify the com- tion of the parties. That in consepany from all costs, liabilities, quence of the payment to Holt, charges, damages and expenses to plaintiff was compelled to dewhich it might be subjected in fend a suit which if such payment consequence of said payment. The had not been made could at once other claimants subsequently have been met by an action of inbrought

action against terpleader, or an order of substituplaintiff which it defended and tion under the provisions of the which resulted in the dismissal of Code without the

expense to their complaint. This action was plaintiff to which it was subjected then brought upon the bond to by a necessary defense to the suit. recover the

expenses which That it therefore required no forced plaintiff had been put to in defend- strain of the language of the bond ing the said suit. After the to hold that plaintiff was subclose of plaintiff's case defendant jected to the costs and expenses moved to dismiss the complaint sought to be recovered in conseupon the grounds (1) that the bond quence of the payment of the indemnified only against valid money to Holt, and that the inclaims and the expense of unsuc

demnitors were liable therefor. cessfully resisting the enforcement Judgment reversed and new of valid obligations, not against trial ordered.

an

Opinions, by Davis, P.J., and that Schenectady is the proper Daniels, J.

county for trial, citing Code, Brady, J., dissented upon the $ 983, subd. 2. Plaintiff resides in ground that there was no proof Albany County. that one of the indemnitors had The appeal is from an order ever had any notice of the fact that changing the place of trial to Schethe bond was intended to cover nectady. any other contingencies than those J. H. Clute, for applt. mentioned in its recital, and that S. W. Jackson, for respts. the action, therefore, could not be Held, That the order was cormaintained against him, and, con rect. The action is against defendsequently, since the bond was a ants as successors in office to the joint one, it could not be main- parties who it is claimed retained tained against the others.

| plaintiff. Defendants are sued officially, and so far as the action

concerns them it grows solely out VENUE. HIGHWAYS.

of their neglect to take proceedings N. Y. SUPREME COURT,

GENERAL

as Commissioners of Highways to TEKM. THIRD DEPT.

raise the money to pay plaintiff. Jacob H. Clute, applt., v. Robert This charge seems to us to bring Robinson et al., Commissioners,

the action within subd. 2 of $ 983, respts.

Code Civ. Pro.

Order affirmed. Decided Nov., 1884.

Opinion by Fish, J.; Learned. Where plaintiff brought an action against

P. J. concurs ; Landon, J., not defendants as Commissioners of Highways

acting. of a town in the County of Schenectady, charging that he had rendered services to their predecessors in office and that de

TRUSTS. fendants, as such commissioners, had refused to pay him therefor, and had neg- N. Y. SUPREME COURT. GENERAL lected to raise money to pay him as was

TERM. FIRST DEPT. their duty, Held, That, under Code Civ. Pro., $ 983, subd. 2, Schenectady was the In re petition of Edmund Warproper county for the trial of the action.

ing et al. This action was brought to re- Decided Jan. 9, 1885. cover for legal services rendered

E. W. conveyed on Nov. 8, 1876, certain the Commissioners of Highways

real property to W. E. W., who executed of a town in the County of Sche- an agreement to convey one-half of the nectady, whose successors in office same to S. upon the death of E. W. and are the defendants. The complaint

equally to the children of S. or the issue

of her deceased child or children if she alleged that defendants refused to

had died leaving issue. Subsequently by pay the claim and have neglected an instrument executed March 111, 1881, and refused to take the necessary

by E. W., W. E. W. and S., which recited and proper steps to raise the

that a previous assignment of certain real

and personal property had been made by amount although it is their official E. W. to W. E. W. and that a declaration duty to do so. Defendants claim of trust as to the real estate had been

made by the latter, it was agreed that W. which it was agreed that William E. W. should hold the personal property E. Waring should hold the personin trust during the life of E. W., to pay a

al property in trust during the life certain sum annually to him from the income thereof, and to divide the surplus of Edmund Waring, and upon his of said income, and the net rents, issues death to divide any surplus income and profits from the real estate previously then unpaid and all of the perconveyed to W. E. W. equally between

sonal property equally between W. E. W. and s. during the life of E. W., and upon his death to divide any sur- William E. Waring and Cathaplus income then unpaid and all of the rine G. Secor. personal property equally between W. E.

William E. Waring died during W. and S. W. E. W. died during the

the life of Edmund Waring, leavlife of E. W., leaving him surviving his wife, to whom he devised all his estate ing him surviving his wife, to both real and personal. Held, That by whom he devised and bequeathed the instrument executed on March 16, all his estate both real and person1891, the whole of the real as well as the

al. Edmund Waring and Cathapersonal property was impressed with a trust for the benefit of E. W. and for the

rine G. Secor thereupon petitioned benefit of S. and her children, and that the court for the appointment of a upon the death of W. E. W. such trust

new trustee, claiming that upon vested in the Supreme Court.

the death of William E. Waring Appeal from an order of the the trust vested in the Supreme Special Term, appointing a new Court, and also that such trust trustee.

embraced all the real estate conOn Nov. 8, 1876, Edmund War- veyed by Edmund Waring to ing conveyed certain real property William E. Waring on Nov. 8, to William E. Waring and con- 1876, as well as the personal proptemporaneously therewith an erty referred to in the last agreeagreement was executed by both ment. This application was opof them by which William E. posed by the widow of William E. Waring agreed to convey, upon Waring, who claimed that the the death of Edmund Waring, one- trust in question devolved upon half of said real estate to Catha- her and not upon the Supreme rine G. Secor, or, if she had died Court, and that there was no trust in the meantime leaving issue, to affecting the real estate, or that at her children or their descendants most but one-half the real estate taking per stirpes. Afterwards, was affected by such trust, if any. on March 16, 1881, the said Ed- Anderson & Howland, for applt. mund Waring, William E. Waring A. C. Brown, for respt. and Catharine G. Secor executed Held, That the provisions of the another instrument, which recited instrument of March 16, 1881, that certain real and personal when read in connection with property had been theretofore as- those of that of Nov. 8, 1876, seem signed by Edmund Waring to to show it to have been the maniWilliam E. Waring, and that a fest intention, that during the life declaration of trust as to the real of Edmund Waring the trust estate had been made, and by should be operative upon the Vol. 21-No. 6.

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