substantial improvements and considerable expenditures on the premises with the knowledge of the promisor.

Where the owner of land promised to give to his newly married daughter one of his

farms if she would abandon her intention of removing to another county and take

up her residence near him, and she and

her husband, relying upon such promise,

and in pursuance thereof, took possession, cultivated it, erected buildings and made other substantial improvements and continued in sole possession for twenty years,

it was held that her heirs were entitled to specific performance.

Appeal from judgment entered on decision of Special Term.

Action for specific performance of a contract for the conveyance of lands to Harriet Van Arsdale, plaintiff's ancestor. The trial court found that said Harriet was defendant's daughter and was married in 1858; that she and her husband intended and proposed to leave her father's house and move to the western part of the State; that defendant desired and solicited her to remain near him and his family. That defendant owned and occupied 400 acres of land, and agreed verbally with her, that if she and her husband would not move away, but would move upon, take and accept the lands described in the complaint, and occupy the same and remain and make her home thereon and cultivate the same and keep it in repair, and pay the taxes, and make such improvenents as they should deem necessary and beneficial, and accept the lands as her portion of defendant's lands to which she would be entitled as his heir at law, that he would deed the premises to her. That thereupon defendant delivered posses

sion to her in June, 1858; that she and her husband moved upon the premises, and had ever since occupied and had the sole possession and control thereof, under said contract; paid the taxes, cultivated and improved it, and with the knowledge of the defendant erected buildings, repaired the fences, ditched the farm, eradicated foul weeds, etc., from the farm, and enriched and brought it under a better state of cultivation, making it several thousand dollars more valuable. That during all this time said Harriet used and managed the farm as though it were her own, defendant not claiming or pretending to have any control thereof. Upon these facts as found the court decreed a specific perform

ance.

W. F. Cogswell, for applt. Howland & Wheeler, for respt. Held, That there was a good consideration to sustain the agreement, and that part performance by taking possession, making improvements, etc., warranted a court of equity in decreeing a specific performance of the agreement.

Plaintiff's ancestor, in consideration of the agreement, abandoned her intention of removing, remained near her aged parents so as to be in a situation to comfort and minister to their wants in their old age. It was the society of his daughter and her care in his declining years defendant did not wish to be deprived of, and to obviate which he made this agreement. If defendant had agreed to convey this farm in case she should remain a member of his family for any specified

time, the consideration would have been sufficient to uphold the agreement; and we are unable to distinguish between such an agreement and the one in this case. The substance of the agreement was that she should abandon plans which were formed, at the request of defendant and for his personal comfort and convenience, in consideration of his agreement.

But we think it is not necessary that any consideration should have passed from plaintiff to defendant, at the time that the agreement was made or subsequently, to sustain the judgment. A parol promise by the owner of land to give it to another, accompanied by the actual delivery of the possession thereof to him, will be enforced in equity, where the promisee, induced by the promise, has made substantial improvements and considerable expenditures upon the premises, with the knowledge of the promisor. 43 N. Y., 34; 36 id., 327; 7 Hun, 588; 96 Ill., 591; 55 Cal., 94; 6 Iowa, 279; 41 Ill., 101.

To deprive plaintiff's ancestor of the benefit of her expenditures, etc., induced by the promise of defendant to convey, and secure them to defendant, would be a gross fraud upon her; and to prevent such a fraud being practiced upon her a court of equity will interfere and decree a conveyance. Whether treated as a sale by parol or as a gift the court applied the law correctly and the decree granted necessarily followed from the facts found.

Judgment affirmed.

Opinion by Childs, J.; Bradley and Haight, JJ., concur.

BOND OF INDEMNITY. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

The Mutual Life Ins. Co. of N.

Y., applt., v. Robert S. Holt et al., respts.

Decided Jan. 9, 1885.

When it is the custom of an insurance company in the case of rival claimants to the proceeds of a policy to pay the money into the court and compel the claimants to litigate their rival claims between themselves, but at the request of one of such claimants the company departs from such custom and pays over the money to him taking a bond conditioned to indemnify the company from all costs, liabilities, charges, damages and expenses to which it may be subjected in consequence of said payment, and the other claimant subsequently brings an action against said company for the proceeds of the policy but is defeated, the indemnitors upon such bonds are liable for the expenses incurred by the company in defending said action.

When it appears from the circumstances preceding and attending the giving of such a bond that it was the intention of the parties to protect the company against the happening of a certain contingency the bond will be construed so as to give effect to this intention although the contingency in question was not mentioned in the recital of the bond.

Appeal from a judgment dismissing plaintiff's complaint.

Plaintiff issued a policy upon the life of Thomas Taylor, payable to his wife, Mary H. Taylor, her executors, administrators, or assigns, or, in case of her death before her husband, leaving children, to such children or their guardian. The respt. Robt. H. Holt claims the proceeds of this policy

as executor of said Mary H. Taylor, she having died before her husband and without leaving children. The proceeds of the policy were also claimed by the relatives of her husband. Upon the application of Holt for the payment of the policy to him he was informed by the company of this rival claim and of the custom of the company in such cases to pay the money into court and compel the claimants to litigate their claims between themselves, but upon the request of said Holt the company consented to forego said custom and pay the money to him, taking from him a bond in which it was recited that it was represented by him that Mary H. Taylor had left no child and that the company upon the faith of such representations had paid to said Holt the amount due upon said policy, and which was conditioned to indemnify the company from all costs, liabilities, charges, damages and expenses to which it might be subjected in consequence of said payment. The other claimants subsequently brought an action against plaintiff which it defended and which resulted in the dismissal of their complaint. This action was This action was then brought upon the bond to recover the expenses which plaintiff had been put to in defending the said suit. After the close of plaintiff's case defendant moved to dismiss the complaint upon the grounds (1) that the bond indemnified only against valid claims and the expense of unsuccessfully resisting the enforcement of valid obligations, not against

the expense of successfully resisting invalid claims; that the expense of defending the suit in question was not in consequence of the payment to Holt, and (2) that the general words of the condition were limited by the special words of the recital and that no breach had been proven within its proper and true meaning. This motion was granted.

Julien T. Davies, for applt.

Robert W. De Forrest, for respts.

Held, That by making payment to Holt upon his importunity plaintiff surrendered the right of interpleader and took upon itself the risk and burden of any suit that might be brought against it by the other claimants to the fund. That it was shown by the circumstances surrounding the execution of the bond that this was the very peril and damage in the contemplation of the parties. That in consequence of the payment to Holt, plaintiff was compelled to defend a suit which if such payment had not been made could at once have been met by an action of interpleader, or an order of substitution under the provisions of the Code without the expense to plaintiff to which it was subjected by a necessary defense to the suit. That it therefore required no forced strain of the language of the bond to hold that plaintiff was subjected to the costs and expenses sought to be recovered in consequence of the payment of the money to Holt, and that the indemnitors were liable therefor.

Judgment reversed and new trial ordered.

Brady, J., dissented upon the ground that there was no proof that one of the indemnitors had ever had any notice of the fact that the bond was intended to cover any other contingencies than those mentioned in its recital, and that the action, therefore, could not be maintained against him, and, consequently, since the bond was a joint one, it could not be maintained against the others.

N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

Jacob H. Clute, applt., v. Robert Robinson et al., Commissioners, respts.

Decided Nov., 1884.

Where plaintiff brought an action against defendants as Commissioners of Highways of a town in the County of Schenectady, charging that he had rendered services to their predecessors in office and that defendants, as such commissioners, had refused to pay him therefor, and had neglected to raise money to pay him as was their duty, Held, That, under Code Civ. Pro., § 983, subd. 2, Schenectady was the proper county for the trial of the action.

This action was brought to recover for legal services rendered the Commissioners of Highways of a town in the County of Schenectady, whose successors in office are the defendants. The complaint alleged that defendants refused to pay the claim and have neglected and refused to take the necessary and proper steps to raise the amount although it is their official duty to do so. Defendants claim

county for trial, citing Code, $983, subd. 2. Plaintiff resides in Albany County..

The appeal is from an order changing the place of trial to Schenectady.

J. H. Clute, for applt.
S. W. Jackson, for respts.

Held, That the order was correct. The action is against defendants as successors in office to the parties who it is claimed retained plaintiff. Defendants are sued officially, and so far as the action concerns them it grows solely out of their neglect to take proceedings as Commissioners of Highways to raise the money to pay plaintiff. This charge seems to us to bring the action within subd. 2 of § 983, Code Civ. Pro.

Order affirmed.

Opinion by Fish, J.; Learned, P. J. concurs; Landon, J., not acting.

TRUSTS.

GENERAL

N. Y. SUPREME COURT.
TERM. FIRST DEPT.
In re petition of Edmund War-
ing et al.

Decided Jan. 9, 1885.

E. W. conveyed on Nov. 8, 1876, certain real property to W. E. W., who executed an agreement to convey one-half of the same to S. upon the death of E. W. and equally to the children of S. or the issue of her deceased child or children if she had died leaving issue. Subsequently by an instrument executed March 16, 1881, by E. W., W. E. W. and S., which recited that a previous assignment of certain real and personal property had been made by E. W. to W. E. W. and that a declaration of trust as to the real estate had been

made by the latter, it was agreed that W. E. W. should hold the personal property in trust during the life of E. W., to pay a certain sum annually to him from the income thereof, and to divide the surplus of said income, and the net rents, issues

and profits from the real estate previously conveyed to W. E. W. equally between W. E. W. and S. during the life of E. W., and upon his death to divide any surplus income then unpaid and all of the personal property equally between W. E. W. and S. W. E. W. died during the life of E. W., leaving him surviving his wife, to whom he devised all his estate both real and personal. Held, That by the instrument executed on March 16, 1891, the whole of the real as well as the personal property was impressed with a trust for the benefit of E. W. and for the benefit of S. and her children, and that upon the death of W. E. W. such trust vested in the Supreme Court.

Appeal from an order of the Special Term, appointing a new trustee.

On Nov. 8, 1876, Edmund Waring conveyed certain real property to William E. Waring and contemporaneously therewith an agreement was executed by both of them by which William E. Waring agreed to convey, upon the death of Edmund Waring, onehalf of said real estate to Catharine G. Secor, or, if she had died in the meantime leaving issue, to her children or their descendants taking per stirpes. Afterwards, on March 16, 1881, the said Edmund Waring, William E. Waring and Catharine G. Secor executed another instrument, which recited that certain real and personal property had been theretofore assigned by Edmund Waring to William E. Waring, and that a declaration of trust as to the real estate had been made, and by

Vol. 21-No. 6.

which it was agreed that William' E. Waring should hold the personal property in trust during the life of Edmund Waring, and upon his death to divide any surplus income then unpaid and all of the personal property equally between William E. Waring and Catharine G. Secor.

William E. Waring died during the life of Edmund Waring, leaving him surviving his wife, to whom he devised and bequeathed all his estate both real and personal. Edmund Waring and Catharine G. Secor thereupon petitioned the court for the appointment of a new trustee, claiming that upon the death of William E. Waring the trust vested in the Supreme Court, and also that such trust embraced all the real estate conveyed by Edmund Waring to William E. Waring on Nov. 8, 1876, as well as the personal property referred to in the last agreement.

This application was opposed by the widow of William E. Waring, who claimed that the trust in question devolved upon her and not upon the Supreme Court, and that there was no trust affecting the real estate, or that at most but one-half the real estate was affected by such trust, if any. Anderson & Howland, for applt. A. C. Brown, for respt.

Held, That the provisions of the instrument of March 16, 1881, when read in connection with those of that of Nov. 8, 1876, seem to show it to have been the manifest intention, that during the life of Edmund Waring the trust should be operative upon the