be at the expense of the estate. The costs taxable by law are usually far short of the actual loss sustained by those benefited by the will, but they go a little way towards indemnifying such persons for the delay and expense they have been subjected to. The costs of this contest must be paid by the contestant personally.

In re FARMER'S ESTATE.

(Surrogate's Court, New York County. June 16, 1888.)

WILLS-CONSTRUCTION-SUSPENDING POWER OF ALIENATION.

A provision in a will that the executors shall deposit the fund in a savings bank, and pay the interest semi-annually to the legatees, but that the legacies shall not be paid untill five years after the testator's decease, does not constitute an unlawful suspension of the power of alienation.

Application to admit to probate the will of Hannah Farmer, deceased. George H. Kracht, for proponents. James H. Wood, for contestant. RANSOM, S. By the provision of this will, $2,000 was given to the daughter of testatrix, and the residue of the estate, after the usual direction as to debts and a legacy of $50, was given to her son. The executors were directed to deposit the funds in a savings bank, paying the interest semi-annually to the beneficiaries; but the legacies were not to be paid until five years after her decease. It is claimed by the contestant that such a disposition constituted an unlawful suspension of the power of alienation; and the case of Smith v. Edwards, 88 N. Y. 92, is cited in support of this contention. That case is not in point. There the whole interest upon the fund in question was not given to the legatees, but was diverted to other purposes during the delay of payment. This case comes clearly within the rule laid down in Warner v. Durant, 76 N. Y. 183. Let a decree be presented, admitting the will to probate.

In re HAVENS' ESTATE.

(Surrogate's Court, New York County. July 14, 1888.)

WILLS VALIDITY-PRECATORY BEQUESTS.

A clause of a will provided: "In case, by disability of the beneficiary, or from other cause, the last preceding clause or item should fail to take effect, give, devise," etc., all the residuary estate to certain persons named, "absolutely and in fee. And this devise and bequest is in the confident belief that they will apply my estate and property so vesting in them in accordance with my wishes, [as indicated in the preceding clause;] but it is intended to be unconditional, and free from any legal trust or obligation qualifying their absolute title." Held, that this clause is not open to the objection that it is an attempt by the testator, in the contingency mentioned, to make an illegal disposition of his residuary estate. It imposes no trust.1

Proceedings to admit to probate the will of Charles G. Havens, deceased. George B. Bonney and Frederick Coudert, for proponents. John H. V. Lewis, special guardian, for Francis H. Robinson. Davis & Rapallo, for Virginia Smith. Noah Davis, special guardian, for Daniel Stanley et al. F. W. Stephens, for Amelia W. Stephens et al. Hammond, Beckwith & Cobb, for estate of E. M. Barnes. F. F. Marberry, for John H. Gourlie. Jatob Schwartz, for D. Ray Hunt.

RANSOM, S. A decree is about to be entered admitting to probate the will of the decedent, after an unsuccessful contest thereof by his heirs at law and next of kin. The latter, availing themselves of the right secured to them by section 2624 of the Code of Civil Procedure, have put in issue and raised

'On the subject of the effect of precatory words in a will, see Wood v. Trust Co., (N. J.) 14 Atl. Rep. 885; Rowland v. Rowland, (S. C.) 6 S. E. Rep. 902, and note; Sturgis v. Paine, (Mass.) 16 N. E. Rep. 21; McMurray v. Stanley, (Tex.) 6 S. W. Rep. 412.

a question as to the validity of certain dispositions of personal property contained in the will. These are found in its twentieth and twenty-first clauses. The conclusion which I have come to respecting the twenty-first clause renders unnecessary the consideration of the question of the validity of the twentieth clause. The twenty-first clause is as follows: "In case by disability of the beneficiary, or from other cause, the last preceding clause or item should fail to take effect so as to pass to or to the use of the said Havens Relief Fund Society my residuary estate, or the proceeds thereof, or all or any part or parts of the same, I give, devise, and bequeath said residuary estate, and any and every part thereof which shall fail to be actually applied to the purposes indicated in the last preceding item of my will, unto the persons named, and who first qualify as my executors, and John D. Jones and William H. H. Moore, and the survivors and survivor of them, absolutely and in fee. And this devise and bequest is in the confident belief that they will apply my estate and property so vesting in them in accordance with my wishes, but it is intended to be unconditional and free from any legal trust or obligation qualifying their absolute title." It is claimed by the contestants that this provision, when taken by itself, or considered in the light of the evidence which has been submitted respecting it, is to be regarded as an attempt on the part of the testator, in the contingency mentioned by him, and through the instrumentality of persons upon whom he has imposed a trust for the purpose, to make an illegal disposition of his residuary estate. I have carefully considered the evidence, and am unable to find therefrom that there was any such agreement or understanding, express or implied, on the part of any of the persons mentioned or referred to in the clause under consideration, or any such attitude or conduct on the part of any of them, as would justify the conclusion that the testator intended to exact, or they intended to regard as an obligation absolutely binding on them, compliance with such wish as the testator had expressed in his will or otherwise as to the disposition by them of the property left them. The evidence adduced practically leaves the solution of the question raised by the contestants to rest almost, if not entirely, upon the language used in this clause. That language, taken in connection with the evidence, shows at most the existence of a belief and expectation on the part of the testator that his residuary estate would be devoted to the purposes of the charity which is referred to in the twentieth clause of the will, by the persons to whom he bequeathed it absolutely, but whom he advisedly and expressly left free to so devote it, or to retain or use it for their own personal benefit. This the law recognizes the right of a testator to do. Rowbotham v. Dunnett, 8 Ch. Div. 430; Bowker v. Wells, 2 How. Pr. (N. S.) 150; Lynch v. Loretta, 4 Dem. Sur. 318, 319; Riker v. Cromwell, 7 N. Y. St. Rep. 316; Manice v. Manice, 43 N Y 388; Gilbert v. Chapin, 19 Conn. 347, 348; Harper v. Phelps, 21 Conn. 270; Hood v Oglander, 34 Law J. Ch. 531; Pennock's Estate, 20 Pa. St. 277; Mayor, etc., v Wood, 3 Hare, 142; Foose v. Whitmore, 82 N. Y. 406, 407; Lawrence v. Cooke, 104 N. Y 638, 11 N. E. Rep. 144; cases cited in Lawrence v. Cooke, 32 Hun, 126; cases cited in Willets v. Willets, 35 Hun, 401. The cases which have been submitted in opposi tion to the conclusion which I have reached have no application here, and are differentiated from the authorities above cited in the important and controlling particular that in them the language of the will, or the action or attitude of the party ostensibly benefited by it, was of such a nature as to impose upon him a trust with respect to the property bequeathed. In re O'Hara, 95 N. Y. 403; Willets v. Willets, 103 N. Y 650; Russell v. Jackson, 10 Hare, 204; Jones v. Badley, L. R. 3 Eq. 635; Lefevre v. Lefevre, 2 Thomp. & C. 341. The result which I have reached confirms the views which I expressed upon the hearing concerning this subject. It precludes the next of kin of the testator from raising, and relieves me from the necessity of considering, the question as to the validity of the twentieth clause of the will.

RICE v. PENFIELD.

(Supreme Court, General Term, Fourth Department. July, 1888.)

1. SHERIFFS AND CONSTABLES-DEBT INCURRED BY DEPUTY-PROMISE OF SHERIFF TO PAY. A sheriff is liable for a debt contracted by his deputy in the care of cattle levied on, where the deputy in procuring such care assumed to act for the sheriff, and the latter, when asked to pay the debt, did not repudiate it, but promised to pay it

later.

2. SAME-OFFICIAL ACTS-LIMITATION OF ACTIONS.

Such debt does not come within Code Civil Proc. N. Y. § 385, providing that an action against a sheriff "upon a liability incurred by him, by doing an act in his official capacity," must be brought within one year.

Appeal from Oneida county court; I. J. EVANS, Judge.

Action by Byron Rice, assignee of C. A. Simpkins, against Thomas D. Penfield, sheriff of Oneida county, for a debt due Simpkins for the care of cattle placed in his custody by a deputy-sheriff. The action was originally brought before a justice of the peace of the city of Rome, where the plaintiff was nonsuited. The county court, on December 30, 1887, reversed the judgment of nonsuit, and the defendant appealed.

Argued before HARDIN, P. J., and MARTIN and FOLLETT, JJ.
McMahon & Curtin, for appellant. D. E. Powers, for respondent.

FOLLETT, J. Appeal from a judgment of the county court reversing a judgment of nonsuit rendered in a justice's court. In February, 1885, the defendant was the sheriff of Oneida county, and one Henry C. Conrad was his deputy. In that month an execution was issued out of the supreme court, and delivered to said deputy for collection. The deputy levied upon cattle, and hired one Simpkins to care for them until they were afterwards, and during the same month, taken away by the deputy. The evidence is undisputed that the deputy, in hiring Simpkins, assumed to act for the sheriff, who, when asked to pay the debt, instead of repudiating the act of the deputy, promised to pay the debt at a later date. Under the evidence, the defendant became personally liable for the debt, and the plaintiff (Simpkins') assignee is entitled to recover it unless an action is barred by the 385th section of the Code of Civil Procedure, which provides that "an action against a sheriff or coroner, upon a liability incurred by him by doing an act in his official capacity, or by the omission of an official duty, except the non-payment of money collected upon an execution, must be brought within one year." The term, upon a liability incurred by him by doing an act in his official capacity," refers to a liability incurred by official malfeasance or misfeasance, but not to a liability arising out of a mutual contract voluntarily entered into by a sheriff, for his own convenience, with another. The defendant might have personally performed

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this service, but he chose to hire another; and the remedy for his breach of this obligation is not barred by the lapse of one year. The judgment of the county court is affirmed, with costs.

HARDIN, P. J., and MARTIN, J., concur.

PENNY v. HUEBENER.

(Supreme Court, General Term, Fifth Department. October, 1888.)

1. APPEAL-REVIEW-WEIGHT OF EVIDENCE.

In support of defendant's counter-claim, a witness testified that, at plaintiff's personal request, he borrowed from defendant a sum of money, and paid it out for plaintiff's benefit. Plaintiff testified positively that he never requested the witness to procure the money from defendant. Held, that plaintiff's testimony amounted to a denial of what the witness had testified, and that the trial court's finding on the point would not be interfered with on appeal.

v.2N.Y.s.no.18-41

2. SAME-OBJECTION NOT RAISED BELOW.

The point that a counter-claim was not disputed by the reply cannot be raised for the first time on appeal, after trial.

Appeal from Erie county court; WILLIAM H. HAMMOND, Judge.

This is an appeal by the defendant, Susanna Huebener, from a judgment in favor of the plaintiff, Deloss Penny, for the sum of $70.50, and $95.32 costs. Appellant complains of the action of the county court in finding that the counter-claim set up by her was not supported by the evidence.

Argued before BARKER, P. J., and HAIGHht, Bradley, and Dwight, JJ. Adelbert Moot, for appellant. Myron H. Clark, for respondent.

BARKER, P. J. The plaintiff's cause of action was upon the defendant's promise to pay a debt owing by the plaintiff, which had passed into a judgment against him in favor of Thomas Murray, for the sum of $70.50. The defendant in her answer admits making the promise, but seeks to diminish the amount of the recovery by setting up a counter-claim, which was disputed by the plaintiff, and disallowed by the trial court. The foreclosure was pending, and the lands owned by the wife of the plaintiff, and at the time stated in the answer the interest and costs amounted to $64. The defendant was the mortgagee, who had transferred the mortgage to a third party, who in the foreclosure proceedings made her a party defendant. The defendant claims that she, at the plaintiff's request, and upon his promise to repay the same to her, advanced to the holder of the bond and mortgage the interest and costs for the purpose of securing the discontinuance of the foreclosure proceedings, and such alleged promise constitutes the counter-claim. The defendant called and examined a witness, who testified in positive terms that he, at the personal request of the plaintiff, procured from the defendant $64.15, and paid the same over to the attorney who was conducting the foreclosure proceedings, to secure a discontinuance of the same. The plaintiff was called as a witness in his own behalf, and positively denies that he requested Mr. Stillwell, the defendant's witness, to secure the money of the defendant to pay up the costs and interest. He admits that he called on Mr. Stillwell on one occasion with his wife, and that she had a conversation with him relative to the foreclosure proceedings. The counsel for the appellant insists that the plaintiff in his evidence does not dispute the statements made by the defendant's witness. We do not concur in this suggestion, as to the effect of his evidence, and think that it, in terms, is a denial of the material part of the statements of the defendant's witness. The learned county judge refused to find, as requested by the defendant, that the plaintiff made the promise set up by the defendant in her answer. All of the defendant's evidence is found in the testimony of this one witness, who is her attorney of record in this action. As the plantiff was not the owner of the premises embraced in the mortgage, and was under no obligation to pay the debt secured thereby, the law does not infer that the money was paid at his request, with an understanding that he should refund the same; nor was he under any equitable obligation to repay the money advanced by the defendant. The defendant cannot recover without proving a specific promise by a fair preponderance of the evidence. As evidence was given on both sides of the issue, it was for the trial court to determine whether the defendant sustained her alleged counter-claim by a fair preponderance of evidence. It is not a case permitting of an interference by this court with the conclusions of the court below on questions of fact.

The appellant's counsel contended in his written argument that the plaintiff's reply did not put in issue the answer setting up the counter-claim. That it does not comply with the rules of pleading cannot be raised on this appeal, as on the trial the point was not made that the counter-claim was not disputed by the reply. Judgment affirmed, with costs. All concur.

HOXIE . KENNEDY et al.

(Supreme Court, Special Term, Cayuga County. May 11, 1888.) JUDGMENT AGAINST EXECUTORS-AMEndment to BIND TESTATOR'S ESTATE.

A motion to amend, nunc pro tunc, a judgment against executors, so as to make it binding on the decedent's estate by directing the sale thereof, cannot be sustained, under Code Civil Proc. N. Y. § 1823, providing that a decedent's realty is in no way affected by a judgment against his executor, and cannot be sold on execution issued thereon, unless the judgment is by its terms made a lien on specific property, or expressly directs the sale thereof.

On motion for amendment of judgment.

Motion by Henrietta E. Hoxie to amend, nunc pro tunc, a judgment obtained against Anna E. Kennedy and Sarah L. Downer, executrix of the estate of Terrence J. Kennedy, deceased. Plaintiff desires to amend by adding: "And it is hereby further adjudged and directed that the real estate hereinafter described, of which Terrence Kennedy died seized, be sold, and that the proceeds arising from said sale be applied towards the payment of this judgment. The aforesaid real estate is described as follows;" giving description of several parcels of land.

Turk & Barnum, for the motion. Drummond & Nellis, contra.

ANGLE, J. This motion is made under section 1823, Code Civil Proc., which provides that "real property which belonged to a decedent is not bound, or in any way affected, by a judgment against his executor or administrator, and is not liable to be sold by virtue of an execution issued upon such judgment, unless the judgment is expressly made by its terms a lien upon specific real property therein described, or expressly directs the sale thereof." The above section of the Code is copied from 2 Rev. St. 449, § 12, except that the above underscored or italicized words are added. The object of this addition, as said by Mr. Throop in his note to this section of the Code, was to avoid the possibility of the application of the provision, as it stood in the Revised Statutes, to an equitable judgment affecting particular real property. No other sensible construction can be given to the Code. The motion must be denied, with $10 costs.

STOKES et al. v. ALLEN et al.

(Supreme Court, Special Term, New York County. November 9, 1888.) TRADE-MARKS-TITLE-INJUNCTION.

Plaintiffs were publishers of a pictorial journal called "Life," and for some time had been reproducing in book form some of its pictures and literary matter, with the name of "The Good Things of Life." Defendants, who had been connected with plaintiffs in the reproduction, commenced to print a book similar in appearance and character, containing pictures and matter from another journal, whose name was not given, calling it "The Spice of Life, "by which people were deceived, thinking that the matter was from plaintiffs' journal. Held, that defendants used the word "life" not in its ordinary sense, but with intent to deceive people into the belief that the matter in "The Spice of Life" was from the journal "Life," and plaintiffs having established the right to use the name "Life," as applicable to their reproduction, defendants will be enjoined from using it.

At chambers. Action for injunction.

Frederick A. Stokes, Horace S. Stokes, John A. Mitchell, and Andrew Miller filed their complaint against Frank Allen and Joel P. White, to restrain the defendants from the use of the name "The Spice of Life" as the title of a book being published by them.

Miller & Savage, for plaintiffs. Wm. H. Townley, for defendants.

BARRETT, J. Two of the plaintiffs are the publishers of the weekly journal known as "Life." These two have agreed with the other plaintiffs to