bore directly upon the main question submitted to the surrogate for determination, and must be presumed to have influenced his judgment in its determination.

Decree reversed, and the issue ordered to be tried before a jury at the circuit, with costs of this appeal to abide the final award of costs in the proceedings.

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

ATTORNEYS.

N. Y. SUPREME COURT. GENERAL

TERM. THIRD DEPT.

In re application of M. to compel C., an attorney, to pay over moneys.

Decided May, 1885.

M., having moneys to invest, gave them, as alleged, to C., an attorney, for that purpose, who, on demand, failed to account for them. M. then began an action in which the attorney was arrested. The action is pending. Upon a separate application to the court for an order directing the attorney to pay over these same moneys, Held, That the matter was discretionary, and as an action was pending the order should be refused.

C., an attorney, had collected moneys for M. He paid them over to her. Soon after she returned them to him for investment. He lent them to his father, then supposed to be a rich man. The father became insolvent. C. subsequently gave M. his note for the moneys, which M. stated in her affidavit was not taken nor to be taken as a payment. She commenced an action in which C. was arrested and gave bail. That action has been pending for some time. C. is

Vol. 21-No. 13a.

said to be worthless. Upon an order to show cause this proceeding was taken in the nature of a contempt for an order that C. pay these moneys to M. At Special Term the motion was denied. E. T. Brackett, for applt. Theodore B. Gates, for respt.

Held, That the order was properly refused. We are not prepared to decide whether proceedings of this character can be taken against an attorney to recover moneys which he has received simply for the purpose of investment. However this may be, we regard the pending action as a matter which should be considered by the court. Perhaps it cannot be strictly called a bar, as the word "bar" is one which applies to actions, and this is a proceeding. But we think a man should not be harassed by two actions or proceedings arising out of the same transaction, especially where an order of arrest has issued.

Order affirmed.

Opinion by Learned, P.J.; Bockes, J., concurs.

GUARDIAN AND WARD. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

William O. Douglass, respt., v. Edwin B. Low, guardian, applt.

Decided May, 1885.

Where one who had just become of age was induced by fraud to allow a person in collusion with his guardian to appear for him in a Surrogate's Court upon the settlement of the guardian's accounts, and a decree was thereafter entered discharging the guardian, Held, that this decree was,

under the circumstances, no defense to the guardian in an action by the ward to set aside a fraudulent transfer made to him by the guardian about the time of the decree.

To the complaint in this action defendant demurred. The facts admitted by the demurrer were that defendant was plaintiff's general guardian until he became of age in March, 1879; that in May, 1879, defendant told plaintiff that he held as guardian $4,300; that about this time he gave plaintiff a note and mortgage of one Low, his brother, for $3,200, dated March, 1879, payable to plaintiff in two years, the lands mortgaged being in Illinois; that Low was then indebted to defendant and was insolvent; that defendant falsely represented the lands as improved, and relying on this plaintiff accepted the note and mortgage as payment for $3,200; that the representations were wilfully false; that plaintiff discovered the truth in Nov., 1880,

and demanded the cancelling of his receipt given to defendant; that defendant assented and promised to pay plaintiff, and that plaintiff is willing and offers to assign to defendant the note and mortgage; that at the time he took the note and mortgage plaintiff was induced to sign a release and also an authority to one Ross to appear for him in a Surrogate's Court upon defendant's application to be discharged as guardian; that in Jan., 1880, without notice to plaintiff, Ross and defendant appeared in said court and defendant was discharged. The demurrer was overruled.

Waldo & Grover, for applt.

Palmer, Weed, Kellogg & Smith, for respt.

Held, That the complaint was good. It is said by defendant that after he comes of age a ward may settle with his guardian. 6 Johns. Ch., 242. All that case decides is that a release given six months after a ward comes of age, freely and without fraud, is valid. Here the fraud is admitted. Further in equity was to allow a ward one year to investigate his guardian's accounts. 2 Vesey, 548; 7 Paige,

46.

It is also urged that the decree in the Surrogate's Court, which stands, protects the guardian. We think this a case where equity will set aside a decree. 70 N. Y., 8. There was no trial before the surrogate, and by fraud plaintiff was

induced to consent to a decree with

out a trial. This is like a case where the unsuccessful party has been prevented from fully exhibiting his case by fraud, by reason of

which there has never been a real

contest before the court on the subject matter of the suit. 98 U. S., 61; 30 Alb. L. J., 373.

Judgment affirmed, with costs. Opinions by Learned, P.J., and Bockes, J.

EVIDENCE. PRACTICE. NY. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Edward P. Alexander, respt., v. Henry R. Osborn, applt.

Decided April, 1885.

To cure the error of admitting illegal evidence upon a trial, the evidence should be stricken out and the jury distinctly instructed to disregard it.

ance of some condition, it will be deemed an escrow; but if it is merely to wait the lapse of time or the happening of some contingency, it will be deemed the grantor's deed presently.

So held where a deed to plaintiff was delivered to her husband, to be kept secret during the grantor's life, and after her death to be delivered to plaintiff.

Appeal from judgment entered upon verdict, and from order denying motion for new trial made upon the minutes.

Action to recover possession of lands. In 1854 John Wright died seized of the lands in question, leaving a will devising the same in these words: "Unto my dear wife Anna I give and bequeath fifty acres of land off the north end of my farm, to have and to hold for her benefit and support; and I also give to her all my household furniture, beds and bedding. Unto my son, John Wright, Jr., I give and bequeath all the remainder of my property, after paying the following legacies:"

Defendant, John Wright, Jr., entered into possession of the whole farm and occupied the same. The widow conveyed a portion of the said fifty acres to plaintiff before her decease in 1873. The main question was whether the widow took the fee or only a life estate. Defendant contended that the words "to have and to hold for her benefit and support" limited the devise to an estate for life. George C. Greene, for applt. Richard Crowley, for respt. Held, That the intent to pass a less estate than a fee does not appear by express terms, nor is such an intent necessarily implied in the

terms of the devise; and that, therefore, the widow took the fee. 1. R. S., 748, § 1.

Though the word "support" might be held to limit the estate to one for life, yet the word "benefit" is sufficiently broad and comprehensive to embrace every use to which the devisee may devote the land, and to enlarge the estate into a fee. This view of the devise appears to be supported by the case of Campbell v. Beaumont, 91 N. Y., 464.

Again, it appears to have been the testator's intention to dispose of all his property, but if the estate devised to the widow should be held to be for life only no disposition is made of the remainder in fee, which would descend to the heirs-at-law. The devise of "the remainder of my property” refers, not to the devise of a remainder in fee after the termination of a life estate, but rather to all the property not included in the devise to the widow. If an estate in remainder was intended to be created, those words are not sufficient for that purpose. As it was the apparent intention of the testator to dispose of all his property, both real and personal, in order to give effect thereto the widow must be held to take an estate in fee.

It was contended that the deed from Anna Wright, the widow, to plaintiff was never delivered so as to vest the title in her. It appeared that after she executed the deeds, they were left lying upon the table at plaintiff's house; that she then took them up and handed them to plaintiff's husband, saying that she