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died, with certain exceptions not material to the decision of the questions presented. The other half of said residue of his estate was given to his five children or such of them as might survive him, to be equally divided between them, "subject, however, to the provisions in respect to the shares of my daughters Emma and Gertrude Laura, hereinafter contained." The provisions thus referred are contained in the fourth clause of the will, which is as follows:

"I having, upon the marriage of my daughter Emma, settled upon her and her issue the sum of thirty-four thousand dollars, for which I have given to her husband, Francesco Ricci, my obligation, which is enforceable against my estate at Ringwood, New Jersey; and I having, upon the marriage of my daughter Gertrude Laura to Denis Charles MacGilly Cuddy, settled upon her and her issue the sum of six thousand pounds sterling, which I deem equivalent to thirty thousand dollars, which fund I have paid to trustees for her benefit, it is my will that the said sum of thirty-four thousand dollars be charged to my daughter Emma and that the said sum of thirty thousand dollars be charged to my daughter Gertrude Laura, on the division of my estate, as so much advanced to my said two daughters, respectively, on account of their respective shares. If their, or either of their, shares of the one-half of my estate directed to be divided on my decease, shall not be sufficient to discharge or equalize all of said advancements, then I direct that the deficiency, with interest from the time of my decease, be charged against their shares of the property directed to be divided on the death of their mother, or against the share of the one who shall be deficient. No reclamation is to be made against my said daughter Emma, or my said daughter Gertrude Laura, in case her share of my estate should prove insufficient to cover said advancement, but until the respective shares reach an amount sufficient to cover the same they are not to participate in my estate, but the whole is to be divided among my other children and their issue as before directed; and if the shares of my said two daughters exceed in value the sums so charged against them, respectively, they are to receive only the surplus necessary to make them equal with my other children and the issue of either of them who may have died."

The testator personally made the annual payments to his daughter, and did not change the security placed in the hands of the trustee; but after his death his executors paid the trustee the principal sum of $34,000, and obtained a release of the security. The trustee thereafter, during the life of the daughter, made the annual payments to her, but in the investment of the fund he incurred a heavy loss, for which, however, it is not claimed that he is responsible, but by which its value has been reduced to about $14,000. The fund now consists of an undivided 84/35 interest in the premises known as No. 97 Crosby street in the city of New York and the sum of $407.65 cash on hand. In February, 1889, there was a judicial settlement of the accounts of the executors before the prerogative court of New Jersey, and in the decree the testator's daughter Emma was charged with an advancement of $34,000, as directed by the will.

The principal question presented by the appeal is whether that charge may now be canceled and she be given credit for the amount on the theory that, at the time the will was executed, the testator expected that she would die leaving issue and that the fund designated as an advancement would not revert to his estate. This is the view adopted by the learned trial justice, but we think it cannot be sustained. By language clear and definite the testator directed that on the division of the one-half of the residue of his estate, to be made as soon

after his death as practicable, his daughter Emma should be charged with $34,000, the amount of this fund, as an advancement. This, as has been seen, was done, and we find no warrant in the will for undoing it, or opening up that settlement. The trust agreement was not to take effect unless the marriage took place. Surely, there was no more probability at the time the will was made that the daughter would die leaving issue than at the time of the consummation of the marriage. At the latter time, the testator carefully provided that the fund should revert to him or his personal representatives in the event of the marriage taking place and his daughter dying without issue. Presumably, he had this agreement in mind at the time he made the will. If the daughter had left issue, her children would merely take what is left of this depleted fund. By the construction contended for, it is proposed to undo the judicial settlement, had in accordance with the will, and permit the testator's son-in-law, for whom he made no provision, to take more than the direct descendants of the testator could have taken. The daughter was only entitled to the life use of this fund. The corpus, therefore, could not be enjoyed by her personally, and, she having died without issue, it is clear from the marriage-settlement agreement, when read alone, that the testator contemplated that it should revert to him or his estate.

The next question arising is whether the trust fund in the hands of the trustee under the marriage-settlement agreement reverts to the testator's estate or whether, construing the marriage-settlement agreement and the will together, it should be deemed a legacy to the testator's daughter Emma, and thus go to the administrator of her deceased husband. A legacy may be created by implication as well as by an express gift. In Re Vowers' Will, 113 N. Y. 569, 21 N. E. 690, the court, in holding that a legacy may be given by implication, says:

"Undoubtedly, in every such case we must be quite sure of the testator's intention, and not substitute for it some notion of our own; but when his words leave no doubt about his intention, and can have no other reasonable interpretation, we are justified in upholding a legacy by implication where no gift in express terms has been made."

We deem this rule applicable to the will now under consideration. There is much to indicate that the will was intended to operate as a modification of that clause of the marriage-settlement agreement which provided for a reversion in case of the death of the daughter without issue. In the first place, there is no express disposition of any such reversion made in the will, and there is nothing to indicate that the testator expected his estate to be augmented by anything occurring subsequent to his death. He expressly declares that, on the division of one-half of his residuary estate following his death, this amount of $34,000 shall be charged to his daughter "as so much advanced." He refers to the marriage settlement, and manifestly had it in mind. The will further provides that, if the share of the daughter in that part of his estate to be divided after his death should not equal the amount of the advancement, the deficiency, with interest from the time of his death, be charged against her share on the division of that part of the estate of which his wife was given the life use. It is significant that he expressly provided that no reclamation was to be made against his

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daughters to whom these alleged advances were made. We think that the provision in the marriage-settlement agreement that the funds in the hands of the trustee should revert in the event of the death of the daughter without issue is in conflict with this provision of the will, which prohibits a reclamation against his daughter on account of this fund. We therefore agree with the learned trial justice that when the testator made this will he contemplated that the funds held in trust for the use of his daughters during life had gone from his estate forever, and we are of opinion that he so intended.

The facts are not in dispute, and manifestly they could not be changed on a new trial. The judgment should, therefore, be modified so as to direct the trustee to pay the balance of this fund to the respondent, and the provisions with reference to the distribution of the residue of the estate should be modified accordingly, and as modified affirmed, with costs to all parties payable out of the fund.

O'BRIEN and McLAUGHLIN, JJ., concur. PATTERSON, J., dissents.

VAN BRUNT, P. J. I concur in that part of the opinion of Mr. Justice LAUGHLIN which holds that the $34,000 should be charged as therein stated, but I dissent from the conclusion arrived at. I am of the opinion that the fund reverted to the testator's estate, and must be distributed as part of his residuary estate. To hold otherwise is to make a new contract between the parties to the marriage settlement without the consent of either.

(73 App. Div. 453.)

DISKEN v. HERTER.

(Supreme Court, Appellate Division, First Department. June 20, 1902.) 1. CONTRACTS-PROOF OF-SUFFICIENCY.

In an action for breach of contract whereby plaintiff was to plaster several houses for defendant, defendant claimed that there was merely an agreement to contract in case no one else would agree to do the work for less than plaintiff's offer, and that it was agreed there should be no contract until the terms of the agreement were reduced to writing. Plaintiff claimed his offer was accepted and terms of payment agreed on, and other witnesses present when the transaction took place corroborated plaintiff. Held, that a finding that there was a contract was warranted.

2. SAME-AGREEMENTS TO PUT CONTRACT IN WRITING-EFFECT.

Where all the substantial terms of a contract have been agreed on, and there is nothing left for future settlement, the fact, alone, that it was the understanding that the contract should be formally drawn up and put in writing, did not leave the transaction incomplete and without binding force, in the absence of a positive agreement that it should not be binding until so reduced to writing and formally executed. 3. SAME-FINDINGS.

Where, in an action for breach of contract whereby plaintiff was to plaster certain houses for defendant. defendant claimed there had been no contract because of plaintiff's failure to give a bond as required by the agreement, and the referee found that the objection was a mere afterthought employed by defendant to escape his contract, the fact that subsequent to the agreement plaintiff assented to give a bond did not impair the plaintiff's right to recover, in the view taken by the referee.

Appeal from special term.

Action by Martin Disken against Maria Anna Herter. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.

P. J. Rooney, for appellant.

Percival S. Menken, for respondent.

PATTERSON, J. This appeal is from a judgment entered upon the report of a referee in an action brought to recover damages for the breach of a contract.

It appears that the defendant was the owner of five houses in the borough of Manhattan in the city of New York, and that her husband, one Peter Herter, acted as her agent in making contracts connected with the construction of those houses. It is alleged in the complaint. that on or about the 4th of June, 1901, a contract was entered into by the plaintiff with the agent, Peter Herter, under which contract the plastering work for such five houses was to be done by the plaintiff, and all materials necessary therefor furnished by him, with the exception of sand, for the agreed price of $24,000. It is also alleged in the complaint that the plaintiff entered upon the performance of the contract, but in September, 1901, the defendant prevented him from going on with the work under the contract of performing or completing the

same.

The issue tried before the referee was mainly one of fact, namely, whether a contract had been entered into between the plaintiff and the defendant's agent. The contention on the part of the defendant is that no contract was made, but merely an agreement to contract under certain circumstances. It was alleged by the defendant that no contract was to be binding until the plaintiff gave a bond for the proper performance of the work to be undertaken, and that the whole matter was to remain in fieri until a written contract was executed between the parties, and those two facts, the defendant insists, were abundantly established by the evidence before the referee. It appeared in the evidence introduced by the plaintiff that on the 4th of June, 1901, he saw Peter Herter, and offered to do the work for $25,000, but at the same interview reduced that amount to $24,000. The nature of the work to be done was generally understood; that is to say, it was the plastering work for the five houses. At the conversation between those parties in June there were present several other persons, the effect of whose testimony is to corroborate the plaintiff in his statement that at that time Herter stated that the work would be given to the plaintiff if he would do it for $24,000. It was also testified to that, at that interview, the payments were referred to; one half was to be made at a certain stage of the work, and the inference fairly is that the other half was not to be paid until the completion of the job. It is further testified to that the plaintiff was to begin the work as soon as it was ready for him. Peter Herter testified, in effect, that no such arrangement had been made, and that in the interview on June 4th he stated to the plaintiff that if the plaintiff would furnish a bond, then,

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if he would call a week later, they would arrange about the payments, and make a final agreement about a written contract, upon condition that no one else would come and offer to do the work for $22,000 or below that amount. Some delay took place, and the plaintiff going in July to inquire about the matter, according to his statement, mention was for the first time made about furnishing a bond, which, he suggests, he proceeded to obtain; that is to say, he proceeded to arrange for. The bond was not furnished, as it subsequently appeared, because Peter Herter refused to sign a written contract with the plaintiff, and the surety company that was to give the bond would not execute one unless a written contract were entered into between the parties to this action. The determination of the question of fact as to whether a contract had actually been made, and the minds of the parties had met respecting the terms of that contract, depended largely upon the conflicting testimony of the plaintiff and Herter, although the referee states in his opinion, and he is justified in his statement, that his conclusion respecting the facts is based to a considerable extent upon what Peter Herter himself testified to. Upon reading the entire record we are not inclined to differ with the referee in the view he took of the force and effect of the whole evidence on this subject. That evidence justified the finding that a valid contract was made in June, 1901, between Peter Herter and Disken, by which the latter should do the plastering work for the five houses, as alleged in the complaint. The evidence shows that two other persons had made estimates to do the same work for a sum in excess of that named by the plaintiff. One, Donelan, had asked $26,650; another, Thomas Kiernan, had asked $26,000. Both of those parties had made their estimates or bids in May, 1901. On the 4th of June, when the plaintiff made his bid at lower figures than those of the other persons, and had his conversation with Peter Herter, witnesses other than the plaintiff, who were present at that interview, testified in effect that his bid was accepted and the terms substantially agreed upon.

That it was the understanding that the contract should be formally drawn up, and put in writing, did not leave the transaction incomplete and without binding force, in the absence of a positive agreement that it should not be binding until so reduced to writing and formally executed. All the substantial terms were agreed upon; there was nothing left for future negotiation or settlement; and under those circumstances the rule announced in Sanders v. Fruit Co., 144 N. Y. 209, 39 N. E. 75, 29 L. R. A. 431, 43 Am. St. Rep. 757, applies. All that seems to have been left open was the exact date at which the plaintiff should begin the work, and he from time to time, after the 4th of June, made application to Herter for information as to when he should so begin, and he went to the five buildings on different occasions to ascertain their condition, so that he might be advised of the proper time at which to commence the plastering.

The referee was justified in concluding that, after a valid and enforceable contract had been made between the plaintiff and Herter, the latter, finding that he could make a more advantageous contract, sought to evade the obligation that had been assumed with the plaintiff by putting him off and resorting to subterfuges in the hope of hav

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