Williams v. Storm.

the original set of acceptances were given by Austins & Spicer before the wool actually came to their hands.

The testimony was here closed, and the judge directed the jury to find a verdict for the plaintiff for the whole amount claimed, subject to the opinion of the court on a case to be made and heard at a General Term in the first instance, and judgment to be entered for the plaintiff, or the defendant Storm, accordingly-with leave to either party to except and make a bill of exceptions accordingly, after the decision of the court.

The jury found for the plaintiff. Damages, $10,663.

T. Tucker, for the plaintiff, now moved for judgment upon the verdict, and insisted that the notes in question were drawn for good consideration under a valid and existing agreement, and were not in any sense accommodation paper. (Mottram v. Mills, 2 Sandf. S. C. 189; White & Sheffield v. Springfield Bank, 3 Sandf. 222.) And if considered accommodation paper they were used for the purpose for which they were designed, and the plaintiff paid value for them. The defendant cannot, therefore, inquire into the amount of consideration. (Montross v. Clark, 2 Sandford S. C. 118; Brown v. Mott, 7 Johns. R. 361; Wardell v. Howell, 9 Wend. 170.)

C. O'Conor, contra, argued that the notes were first put in circulation as operative instruments, when purchased or discounted by Wright & Titus, and that as such purchase or discount was at a rate exceeding 7 per ct. per an., they were, under the statute, clearly void (1 R. S., p. 773-5). He therefore claimed that the verdict should be set aside, and a verdict and judgment thereon be entered for the defendant.

BY THE COURT.-It is plain that the notes were endorsed by Austins & Spicer, and also by Isaac T. Storm, the. defendant, for the accommodation of the Empire Mills. The notes were never owned by, nor in the possession of either of the endorsers. They continued in the possession, and to be the property of the makers, until they were negotiated to Wright & Titus, at a discount, greater than at the rate of seven per cent. per annum. The discount, at such rates, of notes having no previous legal

McGowan v. McGowan.

inception, or validity, renders them usurious and void. (Aely v. Rapelye et al., 1 Hill, 9.) The fact that Austins & Spicer endorsed the notes, to enable the Empire Mills to raise money upon them, to take up acceptances by the former, which it was the duty of the latter to pay, does not alter the character of the notes in suit, nor can it have the effect to render them valid and recoverable against the first endorser, until after they have been negotiated to some one, for value, in some business transaction, not prohibited by the statute, in relation to usury. The verdict must be set aside, and judgment entered in favor of the defendant, Storm.

BERNARD MCGOWAN and others v. ANN MCGOWAN and others.

B. McGowan, by his last will devised all his estate to his wife, "for her own behoof, and the maintenance of his children, and upon his son John (the youngest child) becoming of age, the whole estate to be equally divided among his seven children (naming them), and that should death take either from the world, it should be equally divided among the survivors."

Held, That the devise created no trust suspending the power of alienation, and that, at any rate, the suspense, if any was created, could not exceed a single life in being at the death of the testator.

Judgment at special term affirmed with costs.

(Before DUER and CAMPBELL, J.J.)

February 21; February 26, 1853.

APPEAL from a judgment at special term, sustaining a demurrer to the complaint.

The suit was for the partition of certain real estate in the city of New York, which had belonged to Bartholomew McGowan, deceased. The plaintiffs were two of the children of the deceased, who claimed to be entitled, as heirs at law, to two sevenths of the estate. The defendants were the widow

McGowan v. McGowan.

and the remaining five children of the deceased. The complaint admitted that the deceased had made a will, duly executed and published, devising all his real estate, but insisted that the devise was absolutely void, as repugnant to the provisions of the Rev. Stat., respecting the creation of estates in land. The devise, which was set forth in the complaint, and upon the validity of which the case turned, was in these words: "Second. I give and bequeath to my wife Ann all my real and personal estate whatsoever; the real estate consisting of house and lot 38 Centre street, and houses and lot 17 Roosevelt street: the personal estate in the house now occupied by me, 17 Roosevelt street, for her own behoof and the maintenance of my children, her to keep economically as possible, after paying my just debts, to rear and educate my children, and give them trades, whereby they may help her; and at my son John becoming of age, the whole of my estate to be divided equally among my children, named Bernard, Alice, Bartholomew, Martin, Matthew, Mary, and John, seven in all; but should death take either from the world, it shall be equally among the survivors."

The defendants demurred to the complaint, upon the ground that it appeared upon its face that the plaintiff had no right to claim a partition, and judgment upon the demurrer was 'rendered at special term in their favor.

M. Hoffman, for the plaintiffs, insisted that the devise suspended the power of alienation for a greater period than two lives in being at the death of the testator: and also created a suspense for an absolute term of years, namely, the possible duration of John's minority. It was therefore absolutely void, and the estate descended to the testator's heirs at law. (He cited 2 R. S., 3 id., p. 10 and 15; 16 Wend. 61; 1 Sand. Ch. R. 359; 4 id., pp. 414, 515, 528.)

C. Schaffer, contra.

BY THE COURT. DUER, J.-The widow in this case took the whole estate subject to the maintenance and education of the children, as a charge, which a court of equity might enforce

Moore v. Westervelt.

(2 Hare, 607. 10 Simons, 293. 8L. and Eq. R., p. 53), but which created no trust under the provisions of the R. S. She was not bound to apply the whole rents and profits to the use of the children, and hence the case is not covered by sub. 3, § 55 in the title of uses and trusts (1 R. S., p. 328), and it is only an express trust created under this subdivision, which suspends at all the power of alienation. Under the provisions of this will there is no suspense except such as may be occasioned by the minority of the children-there is none which is caused by any limitation or condition in the will (1 R. S. § 15, p. 23).

Even could we hold that the will creates an express trust suspending the power of alienation, the suspense is limited to a single minority, and is therefore valid. According to the settled construction of such a limitation, the suspense would terminate on the death of John the youngest child, and is therefore confined to a single life in being. We see nothing in the provisions of the will that should lead us to depart from the general rule. On the contrary, we believe that a single minority was selected for the very purpose of meeting and avoiding the objection that has been relied on. Should John die during his minority, the fee would vest immediately in the surviving children, and in the fee, the charge for their education and maintenance would necessarily be merged. The estate of the widow and the trust attached to it would then cease.

The principles of our decision in Lang v. Ropke (5 Sand. 368), will be found on examination to embrace this case. The judgment at Special Term is affirmed with costs.

JAMES MOORE, Appellant, v. J. J. V. WESTERVELT, Sheriff and Respondent.

The omission of a party on whose behalf a sheriff is acting to interfere with him in the discharge of his duties, or to complain of the manner in which they are performed, is no evidence of his assent to the sheriff's neglect or violation of duty.

Hence where such omission is the only proof of the assent of the party that is

Moore v. Westervelt.

relied on, the question whether the assent was given ought not to be submitted to the jury.

A vessel in the custody of the sheriff was lying near one of the wharves of the city, when there were strong indications of an approaching storm, but he took no measures himself nor instructed any one to take any measures on his behalf, for the safety of the vessel, and during the night a storm arose in which she sunk.

Held-that the question whether reasonable care and diligence had been used by the sheriff to guard the vessel against the consequences of the storm ought not to have been submitted to the jury, but a positive instruction ought to have been given that he had been guilty of negligence, which rendered him liable. Upon these grounds new trial ordered. Costs to abide event.

(Before CAMPBELL, BOSWORTH, and EMMET, J.J.)

December 10, 1852; March 26, 1853.

THIS was an action to charge the defendant for neglect of duty as sheriff of the city and county of New York. The plaintiffs in September, 1848, before this action was brought, commenced an action in this court against Lewis Hoffmann, then master of the schooner "Calcutta," lying in the port of New York, to recover the possession of 161 tons of coal, then on board of said schooner, and by the bill of lading under which it had been shipped from Philadelphia to New York, consigned to the plaintiff.

The sureties in that action having been excepted to, the defendant having, as sheriff, the papers by which it was commenced, to execute, instead of immediately removing the coal from the vessel and putting it in a secure place, left it on board, during the period allowed by law for the sureties to justify. The schooner was heavily laden and leaky, and a storm arising, was sunk, and the coal damaged. The plaintiff having recovered in that action, brings this, to recover the damages alleged to have been sustained by the sheriff's neglect to remove and put the coal in a secure place.

The complaint charges, that on the 28th of September, 1848, being the owner of a cargo of coal, on board schooner Calcutta, Hoffman master, the plaintiff commenced a suit against Hoffman, and made a claim in due form of law, to have the property delivered to him.

That the defendant received the papers, approved the undertaking on the part of the plaintiff, served the papers on Hoffman, found the coal on board the vessel, and assumed to seize