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that the same property is in controversy in both actions. Dawley v. Brown, 79 N. Y., 390.

The complaint in Avery v. Mead alleged that on February 16th, 1887, the plaintiff was. lawfully possessed of property therein described, which was the mortgaged property, and that the defendant wrongfully took said property from the plaintiff

. The defendant justified under an attachment issued in the suit of Ross v. Beck and alleged that the goods levied upon by him were the property of Beck and "that any pretended transfer of said goods to the plaintiff was in fraud of creditors and void."

We need not speculate what result might follow the trial of that action. It is plain that to succeed in his defense the sheriff would necessarily be compelled to establish the invalidity of both of the mortgages held by Mr. Avery. But it was not essential to Avery's success that he should establish the validity of both. The right to the possession of the mortgaged property could have been successfully, asserted under the second mortgage and the validity of the mortgage to the bank did not, therefore, necessarily come in issue. Avery might have recovered' possession of the mortgaged property in the action against the sheriff and not be able to sustain the validity of the bank mortgage. In other words, the validity of the bank mortgage, which is the sole inquiry here, was not necessarily involved in the action against the sheriff

. Hence the pendency of that action was not a defense to this.

The judgment should be reversed and a new trial granted, with costs to abide the events

All concur, except FOLLETT, CH. J., dissenting, and BRADLEY and HAIGHT, JJ., not sitting.


TOWER, JR., et al, Ex'rs, App'lts."

(Court of Appeals, Second Division, Filed March 3, 1891) 1. Wills—TRUST EQUITABLE CONVERSION.

Testator, & resident of Pennsylvania, by his will, after giving his wife his household goods and the use of a house for life, gave the rest of his estate to trustees in a trust which would be void under the statute of this state against perpetuities, and directed that four-tenths of the income be paid to his wife in lieu of dower, which she elected to take. Held, that the general term properly held that from the provisions of the will and the surrounding circumstances it could not be said that testator intended that his real estate should in all events be sold, and that the trust was void as to lands in this state, but that it erred in holding that the widow was entitled to dower in the real estate situated in this state, as to which it was

adjudged the testator died intestate. 2. SAME.

The testator having, contrary to his intention, died intestate as to a por. tion of his property, the statute, not the court, declares who are interested in it. The widow might have been, but she elected otherwise, and thus

relieved the real estate from the burden of dower. APPEAL from a judgment of the general term of the supreme court of the fourth department, rendered upon a controversy without action..

Earl B. Putnam, for app'lts ; Henry T. Utley, for resp'ts.
Modifying and affirming:84 N. Y. State Rep.,,829.

PARKER, J.--This controversy was submitted without action pursuant to the provisions of $ 1279 of the Code of Civil Procedure.

Charlemagne Tower, a resident of Pennsylvania, died leaving a last will and testament, which was admitted to probate at Philadelphia, May 21, 1889, and subsequently duly recorded in the counties in this state wherein are situated the lands which occasion this contest.

The questions submitted were whether the provisions of the will, so far as they related to real estate situated in the state of New York, were valid, and if invalid, whether the widow of Charlemagne Tower has a dower interest therein.

The court adjudged that the attempted disposition of such real estate was invalid because in contravention of the statutory provision that the absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estate.

We agree with the conclusion reached by the learned general term, as well as the reasoning on which it was founded. It is deemed unnecessary, therefore, to refer to the provisions of the will, which fully appear in the opinion of the general term.

The court also held that the widow is entitled to dower in the real estate situated in this state as to which it was adjudged the testator died intestate. In that view we do not concur.

The testator, after providing for the payment of debts and funeral expenses, gives to his wife absolutely his household goods, horses and carriages; also the occupation and use of his residence in the city of Philadelphia during her natural life; and directs that the taxes, water rents and repairs thereon during her occupancy shall be paid out of the income of his estate. All the rest of his property he devises and bequeaths in trust, and directs, among other things, that four-tenths of the income thereof shall be paid to her during the term of her natural life. The will further provides as follows: “The provisions herein made for the benefit of my dear wife I declare to be in lieu, substitution and satisfaction of her dower, thirds, and all other interest in my estate, real, personal and mixed.” And the widow has elected to accept the provisions of the will.

It may be observed that this is not an action brought to relieve the widow from the effect of her election on the ground that it was induced through mistake, she at the same time offering to surrender the benefits which the testator declared to be given in lieu of dower. It is not suggested that the widow would now prefer to take that which the law would allow her had she refused to accept the provisions of the will.

The position she assumes, and which has been sustained by the general term, is that the testator intended that she should have two-fifths of the income of the land in question, and that as such intention has been frustrated by the statutes of this state, she is entitled to dower in such land and still retain the benefit


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of the provisions of the will giving to her certain property absolutely, with the use of other property during life, and two-fifths of the income of that which passed to the executors in trust, notwithstanding the declaration of the testator that if accepted it must be “in lieu, substitution and satisfaction of her dower and thirds and all other interests (not in the estate disposed of by the will) but in my estate, real, personal and mixed," including necessarily that of which the testator died intestate as well as testate.

When the widow accepted the provision made for her she, in legal effect, consented to all the terms and conditions annexed to it, and yielded every right inconsistent therewith. No one can be allowed to disappoint a will under which a benefit is accepted, but on the contrary must concede full effect to the dispositions thereof. Chamberlain v. Chamberlain, 43 N. Y., 424–442. And when one is thus put to an election it matters not whether that which is taken turns out to be greater or less in value than that which is surrendered. Brown v. Knapp, 79 N. Y., 136–143.

We have then a bequest coupled with a condition and an acceptance thereof.

The condition in clear and comprehensive terms provides that the acceptance of the bequest by the legatee must be in lieu of dower. It makes no exception. It was evidently the intention of the testator that there should be none, and the court must so declare. But, it is said the testator intended that she should have two-fifths of the income of the real estate of which he died intestate. True, and that fact gives support to that which seems obvious on a mere reading of the condition, that it was the inten. tion of the testator that the widow should not have dower in these lands. He intended, and attempted, to provide that she should have two-fifths of the income. That attempt was unsuccessful because, in some respects, the provision was in hostility to the statute. Effect, therefore, cannot be given to the testator's intention in that direction. But the frustration of his wishes as to the disposition of the income of bis real estate, by the operation of the statute, does not permit the court to disappoint his expressed intentions in regard to dower

. The miscarriage of his plans, therefore, cannot be partially remedied by an adjudication that she is entitled to dower in such lands, for the court is without power to so adjudicate. It can no more relieve the widow from a full operation of the intentions of the testator than it can from the effect of the statute. The duty of the court in the premises is to construe the will, not to make one. It cannot correct the testator's mistakes nor piece out the equities according to the conscience of the court. The testator having, contrary to his intention, died intestate as to a portion of his property, the statute, not the court, declares who are interested in it. The widow might have been, but she elected otherwise, and thus relieved the real estate from the burden of dower. Chamberlain v. Chamber. lain, 43 N. Y., 424; Matter of Benson, 96 id., 499; Vernon v. Vernon, 53 id., 351-362: Caulfield v. Sullivan, 85 id., 153; Hone v. Van Schaick, 7 Paige, 221–232.

The doctrine of estoppel cannot be invoked against the heirs, for there is nothing on which to found it. The widow does not claim to have been misled into the making of an election by any. thing which they said or did. It is not even suggested that, had she been put to her election with knowledge of the invalidity of so much of the will as related to the New York real estate, she would have acted differently.

The judgment should be modified by striking out the following, " subject, however, to the right of dower therein of the defendant Amelia Malvina Tower, widow of the said Charlemagne Tower, deceased, to be admeasured the same as if he had died intestate," and as thus modified affirmed, with costs to both parties payable out of the estate.

All concur.

In the Matter of the Judicial Settlement of the Accounts of

GEORGE A. PowERS, Ex'r.' (Court of Appeals, Second Division, Filed March 3, 1891.) 1. EXECUTORS AND ADMINISTRATORS—LIMITATION OF CLAIM BY.

The running of the statute of limitations against a claim in favor of the executor or administrator against the decedent is suspended until the first judicial settlement of his accounts. The contention that such suspension cannot continue beyond six years succeeding one year after granting of

etters has no support in the language of the statuté. 2. SAYE-POWER OF SALE.

A power of sale for the purpose of paying off incumbrances or of protecting testator's real estate or more equitably or conveniently dividing it or for any other purpose which in the executor's discretion might render it advisable, places it within his power to make sale when in his judgment it is required to pay debts, taxes or other expenses, and to the extent by him deemed necessary for such purpose, subject however to the qualification that some permissible occasion exists for the exercise of his discre.

tion in that respect. 3. SAME.

The executor's claim not having been proved at the time of the sale of real estate, the sale cannot be treated as made to pay it, but after the ex. ecutor's claims are proved and allowed, the proceeds of such sales should be treated as assets in his hands and as properly applicable to the payment pro tanto of his claims. APPEAL by Mary L O'Flynn, a beneficiary of the will of Sarah Macomber, deceased, from the judgment of the general term of the supreme court, in the first judicial department, affirming a decree of the surrogate of the city and county of New York, settling the accounts of the executor and allowing in his favor certain claims presented by him against the estate of the testatrix.

I'm. J. Gaynor, for app'lt; Edward E. Sprague, for executor, respt

BRADLEY, J.—The testatrix died April 5, 1873. Her will was admitted to probate, and letters testamentary issued to George A. Powers April 10, 1873. His petition for judicial settlement of his accounts was presented to the surrogate September 29, 1887, and

Affirming 33 N. Y. State Rep., 912.

until then he had filed no account. The referee, by his report, wbich was confirmed by the surrogate's decree, in stating the account charged the executor with $119,618.69, and allowed to bis credit $62,773.43, leaving a balance in his hands of $56,845.26, subject to reduction by his commissions and the costs and expenses of the accounting. And the referee found that, at the time of the death of testatrix, she was indebted to the executor for moneys loaned to and expended for her by him to the amount of $37,633.66, the interest on which to the date of the report was $43,341.46; and that on December 11, 1872, the testatrix made to the executor her promissory note for $25,000, which remained unpaid, and that the interest upon it amounted to $27,722.20. And the referee further found that the executor was entitled to retain and apply in part payment of his claims the balance before mentioned remaining in his hands after payment of his commissions and the expenses of the accounting. The main questions arising upon the contestant's exceptions to the referee's report and to the decree of the surrogate are:

1. Whether the executor's claim was established.
2. Whether it was barred by the statute of limitations

3. Whether he was entitled to application upon his claim of the proceeds, with which he was charged, of the sale of certain real estate by him. The testatrix owned considerable real estate in the city of Brooklyn, and in 1868 she by power of attorney to Powers vested him with powers quite plenary for its control and management and to transact business for her and in her name; and his account with her was annually stated and certified by them in writing. The last statement subscribed by them, May 1, 1872, was that all accounts having been examined, approved, passed and settled, they released each other from all further examination of them, and there remained a “balance in favor of George A. Powers of thirty-seven thousand six hundred and thirty-three 66-100 ($37,633.66) dollars, which is carried to the new account commencing May 1, 1872, and is to draw interest from date." This established the balance due Powers at that date, and there is no evidence of the situation of the accounts between those parties thereafter during the life of the testatrix other than what appeared in his account filed with the surrogate, which charged him with a balance in his hands arising out of the transactions of that period of $9,052.25. This he sought in his account to apply by way of reduction of the balance of May 1, 1872, but upon the objection of the contestant it was not so deducted, but treated as assets in the hands of the executor. It does not appear that he refused to produce the account kept by him after that date or to render it available to the contestant as evidence. The balance of the account so adopted by the parties, in view of the rendition by the parties of what purported to be a statement of the subsequent account, justified the conclusion of the referee on the subject. Lerche v. Brasher, 104 N. Y., 157; 4 N. Y. State Rep., 335. And the presumption which otherwise may have arisen that the note before mentioned was made and taken in settlement of the accounts between those parties the referee was per

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