Supreme Court, October, 1918.

[Vol. 104.

ing car in this case the proximate cause of the accident to plaintiff's intestate? We think this question must be answered in the affirmative. Had there been proper couplers and bumpers on the standing car the two cars Icould not have come into immediate contact so as to have crushed the brakeman on the moving car. It seems to us the statute was enacted to prevent just such things happening, which every one must know are liable to happen when couplers are defective even though those moving cars intended stopping before the cars came into actual contact. That the rule laid down in the Layton case rather than that indicated in the Conarty case should prevail is emphasized by the decision of the same court in the Gotschall Case, 244 U. S. 66, where the intestate brakeman was proceeding along the tops of cars toward the locomotive when the train started because of the opening of a coupler on one of the cars, resulting in an automatic setting of emergency brakes and a sudden jerk which threw the brakeman off the train and under the wheels.

Holding as we did at the trial and now again upon a review of our rulings that the statute in question applies, and as the liability imposed by the statute is an absolute one (St. Louis, Iron Mountain & Southern R. Co. v. Taylor, 210 U. S. 281; Chicago, Burlington & Quincy R. Co. v. United States, 220 id. 559; Texas & Pacific R. Co. v. Rigsby, 241 id. 33; Minneapolis & St. Louis Rd. Co. v. Gotschall, 244 id. 66), we think the crippled car while it stood on the siding at Silver Creek must be deemed to have been in use within the meaning of the statute. It was there for the purpose of being unloaded, on a track where the evidence shows cars were daily being moved back and forth.

The Supreme Court of the United States has held that a carrier is not relieved from liability under the statute even where the defective car is being hauled to

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Surrogate's Court, Bronx County, October, 1918.

the nearest available point for repairs. Great Northern R. Co. v. Otos, 239 U. S. 349.

Where such is the holding it would be idle to contend, we think, that a car placed on a switch to be unloaded was not still in use within the meaning of the act. The trial court had no alternative but to instruct the jury, as it did, that the defendant's liability had been established and it only remained for them to assess the damages.

It is contended the verdict is excessive. It certainly seems large, but I am not disposed to disturb it, especially as this case will beyond doubt be appealed. If the Appellate Division should be of the opinion the verdict is too large that court may reduce the amount to such sum as it thinks right.

The defendant's motion for a new trial should be denied.

Motion denied.

Matter of the Judicial Settlement of the Account of Proceedings of EDWARD C. EVANS, as Executor of LILLIAN FRANCES REED, Deceased.

(Surrogate's Court, Bronx County, October, 1918.)

Executors and administrators — wills — specific legacies-commissions not allowed.

Where the amount of an executor's commissions depends upon whether certain bequests of corporate stock and other personal property are specific legacies or not, the court before reaching a determination must ascertain the intent of the testatrix as gathered from the whole will.

The bequests in the present case held to be specific legacies upon the value of which the court is without power to allow commissions to the executor.

DETERMINATION as to executor's commissions.

Surrogate's Court, Bronx County, October, 1918. [Vol. 104.

John Delahunty, for petitioner.

SCHULTZ, S. Upon the settlement of the decree in this matter, it becomes necessary to fix the amount of the commissions to which the accounting executor is entitled, in order that a provision for their payment may be inserted therein. Section 2753 of the Code of Civil Procedure fixes the manner in which said commissions shall be calculated; and the right thereto depends in part upon the character of the property of the decedent and the manner of its disposition. This in turn involves a construction of the decedent's last will and testament.

After the customary direction to pay funeral expenses, etc., the testatrix provided as follows:

"Second. To my brother, Charles C. Reed, I give, devise and bequeath my one-half interest in the Reed burial plot situate in Norwalk Cemetery, Norwalk, Connecticut, and my fifteen (15) shares of the Capital stock of the Pullman Company.

"Third. I give and bequeath to my dear Aunt, Margaret L. Curtis, my two stone diamond ring, my pearl pin, and all shares of stock belonging to me, except the fifteen shares of the stock of the Pullman Company hereinabove mentioned, subject, however, to the power of sale hereinafter mentioned."

Then follows a residuary clause by which the testatrix disposes of all her remaining estate, and a clause appointing an executor and directing him to pay transfer taxes and all other expenses connected with the settlement of the estate out of the money which the testatrix may have at the time of her death, or, if there is not sufficient to pay the same, authorizing him to sell such of the securities bequeathed to her aunt, Margaret L. Curtis, as may be necessary for that purpose.

The question involved requires a determination as

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Surrogate's Court, Bronx County, October, 1918.

to whether the testatrix intended by the provisions of paragraph" Third" of her will, in which she disposed of all shares of stock belonging to her except those stated, to create a specific or a general legacy. If it is a specific legacy, then the executor may not receive commissions thereon (Code Civ. Pro. § 2753; Schenck v. Dart, 22 N. Y. 420; Hall v. Tryon, 1 Dem. 296; Matter of Whipple, 81 App. Div. 589; Mutter of Lester, 172 id. 509, 521), whereas, if it is general, commissions should be allowed to him.

Under the authorities the language of the paragraph in question resulted in a specific legacy. See cases cited in Matter of Werle, 91 Misc. Rep. 398; Matter of Franklin Trust Co., 95 id. 71; Matter of Stoiber, 103 id. 654; Matter of Juilliard, Id. 178. Before determining such to be the fact, however, the court must examine the whole will to make sure that no contrary intent appears, for it is the intent of the testatrix, as gathered from the whole will, that governs. Matter of Security Trust Co., 221 N. Y. 213.

I can find nothing in this will to indicate an intention on the part of the testatrix other than such as appears from the language of paragraph "Third." I do not believe that the provision above referred to, authorizing the executor to sell some or all of such securities under the conditions stated, indicates a contrary intent. From the account it appears that it was not necessary for him to apply any of the securities to such a purpose.

While no doubt the executor has rendered services, as urged by him, which are reasonably worth what the commissions on the stock in question would amount to, I am constrained to hold that the legacy was specific, and, being specific, the court has no power to allow the executor commissions thereon.

Decreed accordingly.

Surrogate's Court, Kings County, October, 1918. [Vol. 104.

Matter of the Petition of HENRY A. INGRAHAM, to Render and Settle his Account as Executor of the Last Will and Testament of ELIZA COREY PARDINGTON, Deceased.

(Surrogate's Court, Kings County, October, 1918.)

Wills demonstrative legacies - intention of testatrix.

Testatrix having received $2,000 as insurance upon the life of her husband loaned to her son $1,500 thereof. Pending a proceeding in the Surrogate's Court to enforce her claim against her son's estate for the amount of said loan with interest, testatrix made a codicil to her last will by which she bequeathed to her deceased son's two daughters "the sum of $1,500-my husband's life insurance money, which they already have." The executor of testatrix recovered upon said claim, but the estate of the son being insolvent there was only a part collection of the claim. Held, that the intention of the testatrix was that the gift, which was to be drawn primarily from the cause of action against the estate of her deceased son, should be paid by her executor either primarily or exclusively out of property which was hers and which became subject to the administration of her estate.

The words of the codicil" which they already have must be regarded as a misdescription, it appearing by parol evidence to have been known to the testatrix to be inaccurate.

The legacy being in the nature of a general legacy and pointing to the fund out of which it was to be paid was demonstrative, and the parol evidence requiring that the codicil should be construed as if it were a bequest of $1,500 to the legatees from the amount which their father owed to testatrix, the legacy so far as it had not been paid from the demonstrated source was payable from the general estate of testatrix. ACCOUNTING by executor.

H. A. Ingraham, for executor.

Joseph A. Keenan, special guardian, for Edward Davies Pardington, Arthur David Pardington, George Faber Pardington.