notabate to the extent to which they may | think that, under the provisions of the be in excess of one half of the estate left by him after the payment of all just debts and the necessary expenses of executing the provisions of his will. Upon each of these questions issues of fact were raised, and much extrinsic evidence given, and the surrogate finally decreed that the moneys so deposited did not belong to the testator when he died, and formed no part of his estate, but belonged absolutely to the several persons designated as the beneficiaries of the deposit in each case, and that the bank or Code referred to, the surrogate had jurisdiction to hear and determine any of the questions submitted to him in the manner in which they are presented by the record under review. With respect to the legacies to the charitable and religious societies, no construction of the will and no decision as to their validity or legal effect was necessary in order to determine the exact rights of the legatees. The language of the bequest is clear and unambiguous, and no question could arise in regard to the quantum of the estate to pass books belonged to such persons, and | which they are entitled under the will, the executors who might qualify were directed to deliver such books to them; and with respect to one deposit of $2,104, which stood to the individual credit of the testator, it was decreed that the moneys belonged to a grandson, and was no part of his estate, and that the grandson was entitled to the possession of the bank or pass book representing such deposit, and to the principal and interest | terms, provided that these institutions were it not for the statute which limits the amount which such societies may take, where the testator has children surviving him, to one half of his estate after the payment of his debts. Laws 1860, с. 360. The law prescribes the maximum limit of the aggregate of such legacies, and the will is to be read as if the statutory restriction was a part of it. If it had, in thereof. It was further decreed that the claim made by Mrs. Bond to the moneys deposited by the testator as trustee for her, and subsequently withdrawn, should be disallowed, and that the total amount || of the estate left by the testator was $26,464, and that the charitable and religious societies named could take only one half of this sum, after making the proper deductions for debts and expenses. This decree purports to have been made pur- | of the will and the statute when read to should have one half of his estate after the payment of his debts, but not exceeding $24,800 in all, it would have merely stated, in another form, the effect of the bequests under consideration. When the surrogate decreed that these legatees were not entitled to more than one half of the estate, after the payment of the debts, and that, as to the other half, he died intestate, it was a simple statement of the legal effect suant to the authority conferred upon the surrogate by the provisions of sections 2624-2626 of the Code of Civil Procedure, gether. There was nothing uncertain or indefinite about these legacies, save the amount which the legatees would eventu which provide, in substance, that, if a par-ally take, and this could not be ascer ty to a proceeding for the probate of a will expressly puts in issue before the surrogate the validity, construction, or effect of any disposition of personal property tained, except in the orderly administration of the affairs of the estate. There is scarcely a will probated in which it might not be said that the same uncertainty ex contained therein, the surrogate must de- | ists with reference to some of its provitermine the question upon rendering a de-sions. A legatee to whom the whole or a cree, unless probate of the will is refused, and enter a decree accordingly; and, if required by either party, he must enter in the minutes the grounds of his decision, and the decree is conclusive only upon the petitioner and each party who was duly cited or appeared, and every person claiming from, through, or under either of them. In their application to surrogates' courts generally, these provisions of the Code are new. They are, in substance, found in section 11, c. 359, Laws 1870, entitled "An act in relation to proceedings in the surrogate's court of the county of New York, and to the powers and jurisdiction there. of;" but that act conferred much broader powers, for it declared that the surrogate designated portion of an estate is given, after the payment of debts and specific or general legacies, would have the same grounds for appearing upon the probate of the will and asking the surrogate to ascertain and determine the extent of his legacy. The surrogate cannot then make an inventory of the estate, or adjudicate upon its liabilities. Such issues must be postponed until the executor or other official representative of the estate has been appointed upon whom the law has cast the responsibility of action in regard to such matters, and prescribed the method of his procedure. That the surrogate could not pass upon the validity of the claim of Mrs. Bond is too plain for discus should have the same power and jurisdic-sion. The entire scheme of the statute tion as were then vested in and exercised by the supreme court to pass upon and determine the true construction, validity, or legal effect of any disposition of real or personal property contained in any will offered for probate before him in the proceeding for such probate. When the second part of the Code was adopted, the local act was repealed, and the authority extended in its abridged form to all the surrogates' courts of the state. creating and defining the powers of that officer has carefully excluded from him the cognizance of disputed claims against the estates of deceased persons, unless it is a debt due to an executor or administrator, or one provablein proceedings for the sale of real estate. Jurisdiction in this case is asserted because it is deemed to be necessary to determine the net value of the estate for the purpose of ascertaining what portion of it will pass to the chari Whatever may have been the true inter-table and religious societies under the will. pretation of the act of 1870, we do not But, as the principal question to which this inquiry relates cannot lawfully be de- | volved, because the testator has described termined in this proceeding, every subject incidentally involved in it is necessarily excluded. The most important branch of this controversy relates to the title of the testator to the savings-banks deposits. These were claimed by the respondents, not by virtue of the will or of any provision in it, but in hostility to it. The trial of such an adverse claim of title was not, we think, contemplated by the legislature when it clothed the surrogate with the powers enumerated in section 2624. The validity of a disposition of personal property by will, which can be determined in a proceeding for probate, necessarily assumes that the property belonged to the testator, but the form or manner in which he has undertaken to dispose of it is made the subject of contest. Questions of title to property have always been reserved for the com the legacies given to the respondents as sums of money which he has deposited from time to time as trustee for them, respectively, in certain designated savings banks; but this language is merely descriptive of the property attempted to be disposed of, and would not require special consideration, were it not for the claim of title made by the respondents, independently of the will. It may be an important item of evidence, which would have great weight in shaping the conclusions of a trial court, but it affords no ground for judicial construction upon the probate of the will. The objections to this decree are jurisdictional. The consent of the parties is not sufficient to avoid their fatal effect. Wherever there is a want of authority to hear and determine the subject-matter of the controversy, an adjudication upon the mon-law courts, or statutory tribunals in- | merits is a nullity, and does notestop even vested, to some extent, with their powers, where the right to a jury trial is guarantied, except in cases of equitable cognizance. Nor can such questions be properly or finally adjudicated without the pres-tary submission of the parties. The de an assenting party. Bank v. Judson, 8 N. Y. 254. The present case illustrates the futility of the attempt to obtain jurisdiction of the subject-matter by the volun ence of the official representative of the estate, in the person of the executor or administrator with the will annexed, as a party to the proceeding, who has not yet | the parties to this record has done. She feated party is not likely to acquiesce in the judgment, and he may raise the question for the first time on appeal, as one of been appointed, although this decree as had the legal right to adoptsuch a course, and it would have been the duty of the court to have directed a reversal of the decree for want of jurisdiction, even if the point had not been distinctly raised. The order of the general term and the decree of the surrogate, except that part which admits the will to probate, must be reversed, without costs to either party. All concur, except ANDREWS, J., absent. 1 (136 Ν. Υ. 623) In re VALENTINE'S ESTATE. (Court of Appeals of New York. Nov. 29, 1892.) 1. An appeal from an order directing a new trial will be dismissed when a stipulation is not given that, in event of affirmance, judgment absolute may be taken, as required by Code Civil Proc. § 191. sumes to direct and control his conduct in advance of his appointment, and requires him, when he has qualified, to deliver to the claimants the evidences of title to the disputed property which may be in | his possession. This difficulty in the way of a complete determination of the questions litigated is, of itself, sufficient to support the conclusion that it was the intent of the law to confine the investigations in these cases to questions arising between the parties to the proceeding, as between different legatees, or between heirs at law and the lega tees, growing out of the terms of the will, and not involving the title of the estate to the property to which they refer. In such contests the executor, if appointed, would, ordinarily, be an indifferent spectator, and hence there would be no impropriety in determining them in his absence. The estate would not be augmented nor depleted, whatever the event might be. We cannot recall any statutory provision which authorizes the surrogate, in any proceeding, to pass upon the question of title to property, as between a claimant and a representative of the testator's estate. Jurisdiction in all such cases seems to have been scrupulously and intentionally withheld. If the executor has reason to believe that any assets belonging to the estate are detained by any person in whose possession they may be, he may make application to the surrogate for an order requiring such person to show cause why he should not deliver the property to the executor; but if, upon the return of the order, the title or the right of possession of the executor to the property is disputed, the surrogate must dismiss the proceeding, and the executor is remitted | peals. Appeal dismissed as to so much of to his legal remedies in some other forum. It is contended that the construction of the provisions of the will in this case is in 2. The fact, in rebuttal of the defense of usury, that some interest was lost on the money loaned by withdrawing it from the savings bank, is of no force when the loan is made for no defined term of credit, but was payable presently, and might have been demanded at once, or suffered to run for years, drawing all the time the usurious rate. 18 N. Y. Supp. 492, affirmed. Appeal from supreme court, general term, first department. Claim by Maggie Gillespie against the estate of Catharine A. Valentine to recover the amount of two loans alleged to have been made to defendant. From an order of the general term (18 N. Y. Supp. 492) affirming an order of the special term, which affirmed the report of the referee as to one of the loans, and directing a new trial as to the other, claimant ap the order as directed a new trial, and affirmed in other respects. Clarke Roe, (Horace Secor, Jr., of counsel,) | negligence in law on the part of the company. for respondent. FINCH, J. An alleged creditor of the deceased presented a claim against the estate for two loans of $600 each, which the administrators disputed, and which thereupon were sent to a referee for a hearing and determination. Upon such hearing the sole defense was usury. The referee decided that the first loan was not proved to have been made upon a usurious agreement, and ordered judgment for that amount, with interest, but further held that the second loan was usurious, and could not be recovered. The special term confirmed the report as to the second loan, but reversed it as to the first, and ordered a new trial. The creditor appealed to the general term, which affirmed the order, and again from that affirmance to this court, but without giving the required stipulation for judgment absolute. The appeal from so much of the order as awarded a new trial must be dismissed for that reason. Upon the facts disclosed, we are quite strongly impressed with the view taken by the referee, but, at all events, the defeated creditor must take her new trial, or go without remedy for the recovery of the first loan. As to the second, the finding of fact concludes us, and is so supported by the evidence as to make quite immaterial the testimony which the referee struck out, and as to which the creditor complains. That some interest was lost by her through a withdrawal of the money from the savings bank might by possibility have a bearing upon the first loan, which was for a year, but none upon the second, which was for no defined term of credit, but was payable presently, and might have been demanded at once, or suffered to run for years, drawing all the time interest at 8 per cent. The written memorandum, made apparently at the date of the loan, and expressing its terms, could not justly be overcome by the evidence stricken out. The appeal from so much of the order as awards a new trial is dismissed, and the order in other respects affirmed, with costs. All concur. (135 N. Y. 583) VANDEWATER v. NEW YORK & N. E. R. CO. (Court of Appeals of New York. Nov. 29, 1892.) RAILROAD COMPANIES - ACCIDENT AT CROSSING— FAILURE TO SIGNAL-NEGLIGENCE AT LAW. Laws 1850, c. 140, providing that a bell or whistle should be placed on all locomotives, and sounded in a certain manner, under a penalty upon the railroad company for neglect to comply therewith, and Laws 1854, c. 282, § 7, providing that, in addition to the penalties imposed on the company, every engineer in charge of an engine who disobeyed the statute was to be guilty of a misdemeanor, were repealed by Laws 1886, c. 593, (Pen. Code, § 421,) which provides that the engineer who fails to ring the bell or sound the whistle of a locomotive 80 rods before crossing a highway should be guilty of a misdemeanor. Held, that this section imposes the duty of giving such signals solely on the engineer, and that his failure to give them is not Maynard, J., dissenting. Appeal from supreme court, general term, second department. Action by Josephine Vandewater, administratrix, etc., against the New York & New England Railroad Company. Judgment for plaintiff was affirmed by the general terin, and defendant appeals. Reversed. Walter C. Anthony, for appellant. Chas. Morscha user, for respondent. PECKHAM, J. The plaintiff's intestate was killed at a farm crossing over the defendant's railroad near the village of Fishkill. He was in the act of driving across the track, when he was struck and instantly killed by one of the engines of the defendant, which was drawing its pay car. The general direction of defendant's road at this point is east and west. The engine attached to the pay car was coming from the east at the rate of 40 or 45 miles an hour, and at that speed passed a highway crossing called "Van Wyck's, and then, at a distance of a few hundred yards to the west of that crossing, it passed the Fishkill depot, and, continuing its very high speed, passed along, still towards the west, about 1,600 feet, when it reached the farm crossing in question, and where the engine came in collision with the horse and wagon belonging to the plaintiff's intestate, and threw him out of the wagon and killed him instantly. The plaintiff, upon the trial, gave evidence tending to show that no whistle was blown or bell sounded for the crossing of the highway east of the Fishkill depot or for the depot itself, and none for the farm crossing where the accident occurred. This highway crossing was somewhere in the neighborhood of 2,000 feet east of the farm crossing. Evidence was also given tending to show that it was customary for the engineers or firemen of the engines to blow the whistle or ring the bell when approaching the highway crossing, and also when coming to the depot of the defendant. The learned judge charged the jury. that the company were bound to blow the whistle or sound the bell 80 rods before getting to the highway, and continue it at intervals until the crossing was passed. He also said the deceased had a right to assume the company would do its duty with respect to the highway crossing, and, if it did not sound the bell or blow the whistle at this crossing, and the accident at the farm crossing was occasioned by that omission, then the jury might find a verdict of negligence against the company. Proper exceptions to this charge were taken by counsel for defendant, who called the attention of the court to the fact that the statute imposing upon the company the duty of having the bell rung had been repealed. The court replied that it was in the Penal Code. Defendant's counsel said that the Penal Code did not apply in a civil action. court then stated to the jury that it was just the same as if it were written in the law; that it was made a crime, instead of imposing a liability for damages; and that The the jury might find a verdict just the same as they could before the repeal. To this direction the counsel for defendant took appropriate exception. The question of the omission to whistle or ring on approaching a highway crossing 2,000 feet east of the farm crossing at which the plaintiff's intestate was killed was thus made a most important factor in the case. The effect of this charge was to permit the jury to find negligence from pose the duty upon the company, and, unless such duty is imposed by statute, the failure to give such signals cannot, as matter of law, be regarded as a neglect of duty. Reisiegel v. Railroad Co., 40 N. Y. 9, 14 Abb. Pr. (N. S.) 29; Weber v. Railroad Co., 58 N. Y. 451-459; Briggs v. Railroad Co., 72 N. Y. 26, 30. Of course the companies still owe a duty to the public atsuch crossings as elsewhere. That duty is to run their trains with care and cau the mere omission to ring a bell or sound |tion, and when they cross such roads it a whistle at the highway crossing, and may well be that the failure to give due the charge was based upon the assump-warning by whistle or bell, or in some tion that the statute made it the duty of the company to make these signals atsuch crossing. In this, we think, the learned judge erred. other way, would be held, underall the circumstances, to be a failure to manage and run their train with proper care and caution, for which they would be liable to a The statute imposing any duty upon | party injured, if otherwise entitled to rethe company to cause a bell to berung or a cover. Even when compelled by statute whistle sounded upon approaching a high-to make such signals, it is not necessarily a defense, in all cases, to prove that they were made. The making of the signals is the least the company can do, and in a given case it might not beenough. Harty v. Railroad Co., 42 N. Y. 468: Thompson v. Railroad Co., 110 N. Y. 636, 17 N. E. Rep. When the duty to give signals at highwaycrossings was by statuteimposed upon the railroad company, it was held that it did not apply in favor of one who was walking upon the track, but that it was intended for the benefit of those who were traveling the highway. Harty v. Railroad Co., supra. It may be that evi. dence of the omission to give any signals for the highway crossing would not be admissible as bearing upon the question of defendant's negligence in running its train at the farm crossing 2,000 feet distant. There are cases where evidence has been admitted showing the absence of customary signals at the places where usually they had been given, for the purpose of proving negligence on the part of the company. Whether this was a case where evidence of this nature should be admitted in favor of this plaintiff, and with regard to the highway crossing, is a question not now necessary to decide. If the defendant was guilty of negligence in the manner of running its train over the farm crossing, it would be liable to a plaintiff otherwise entitled to recover. Upon a new trial all the facts can be shown which would enable the court or the jury to determine the question. The judgment should be reversed and a new trial granted, costs to abide the event. All concur; MAYNARD, J., in result. way crossing has been, in terms, repealed, and the provision in the Penal Code does not leave the law the same as it was be*ore the repeal. By section 39 of the genral railroad act (chapter 140, Laws 1850) provision was made for placing a bell on ach locomotive, and direction was given | 690. that it should berung as therein stated, or a steam whistle was to be attached to each locomotive, and to be sounded, instead. Penalties upon the company neglecting were placed, which could be collected by the district attorney, and the company was made liable for all damages sustained by any person by reason of such neglect. By section 7 of chapter 282 of the Laws of 1854 some additions were made to the provisions under the act of 1850, and it was provided that, in addition to the penalties imposed upon the company, every engineer in charge of an engine, who neglected to obey the statute, was to be subject to a fine and imprisonment in the county jail. Subsequently the Penal Code was adopted, and it went into operation on the 1st of December, 1882. Section 421 provided that the engineer of a locomotive, who failed to ring the bell or sound the whistle upon it 80 rods, etc., should be guilty of a misdemeanor. Then the legislature, by the act, chapter 593, Laws 1886, repealed, in so many words, all the provisions in the general railroad act of 1850 and of the act of 1854, above cited, which made it the duty of the railroad company to cause the bell to be rung or the whistle to be sounded, or provided any penalties against the company for its neglect. The only statute upon the subject which remained at the time of the happening of the accident in question is to be found in section 421 of the Penal Code, already cited. Whether it was really intended to repeal all the sections of the law by which the duty was imposed upon the railroad | not the duty of the company whose agent company to cause these signals to be given may perhaps be doubted, but the repeal is in such plain and peremptory language that courts cannot disregard it without a MAYNARD, J., dissents from that part of the prevailing opinion which holds that the duty of the engineer to give a signal when approaching a highway crossing is he is in running the engine, but concurs in the result, upon the ground that, as matter of law, it is not negligence in passing a farm crossing to omit to give the re clear violation of a legislative enactment. | quired signalat thehighway crossing 2,000 The duty of giving the signals is placed by the Penal Code upon the engineer, and his failure is made a crime, and in that way the giving of the signals is still provided for. The statute, however, does not im feet away. It was a circumstance which the jury might consider in determining the degree of care to be exercised by the defendant in approaching the farm crossing. (176 Ν. Υ. 97) SANDERS v. SOUTTER et al. (Court of Appeals of New York. Nov. 20, 1892.) WILLS-- ASSIGNMENT OF INTEREST. 1. Under a testator's will, his son took onetenth part of the residue of his estate after the payment of his debts. Under the son's will, his | widow was given one half of his residuary estate, real and personal. Held, that the right of the widow, under this bequest, half of her husband's interest unadministered in the estate of his father, was assignable. to one i him,) he would first reserve $2,250, with in. terest, and any expenses, and give the balance to her, together with all interest remaining undisposed of after his reimbursement. There can be no doubt that the assignment to Cranston embraced whatever interest the Duchesse d'Auxy had in the undistributed share of Robert Soutter in the estate of his father under his will. This share was property owned by Robert Soutter at his death, and passed under This will, and the Duchesse d'Auxy, as legatee thereunder, was entitled to one half of his estate. Her assignment, therefore, to Cranston of her interest under the will of her husband, Robert Soutter, passed 2. An assignment by the widow of this interest, in consideration of her indebtedness to the assignee, coupled with a defeasance by the assignee that he will return to her all that he realizes out of the estate in excess of the indebtedness, passes to the assignee whatever she | whatever she would be entitled to receive would have been entitled to receive out of the assigned estate; and therefore a release by her to the executors of such estate will be set aside, at the suit of the assignee, to the amount of such indebtedness. 3. A party to whom such assignee has transferred all his "right, title, and interest" in the assignment and defeasance can claim only the amount of the indebtedness mentioned in the defensance, and cannot maintain that the transfer of the assignment vested in him the whole interest of the widow in the estate mentioned therein. Appeal from supreme court, general term, first department. out of any money due or payable to Rob ert Soutter's estate from the estate of his father, under the father's will. The judg. ment in this action sets aside the release of March 26, 1889, executed by the Duchesse d'Auxy, individually and as administrator with the will annexed of Robert Soutter, to the executors of James T. Soutter's estate, on the ground that it was made in fraud of the rights of the plaintiff, as assignee of Cranston, of which the executors of James T. Soutter had noticeat the time the release was executed; and it being a conceded fact that the interest of the Action by Lewis Sanders against Agnes | Duchesse d'Auxy in that estate, under the Gordon Soutter, as executrix, etc., impleaded, Charlotte, la Duchesse d'Auxy, and others, to set aside a release executed by defendant D'Auxy to the defendant executors. From a judgment of the general term (17 N. Y. Supp. 141) affirming a judgment of the special term in favor of plaintiff, plaintiff and defendant executors appeal. Affirmed. Vanderpoel, Coming & Goodwin, (Delos will of Robert Soutter, exceeded the sum of $2,250 at the time the release was executed, and that there was money sufficient to pay the sum in the hands of the executors of James T. Soutter, applicable to such payment, the judgment awarded the plaintiff this sum, with interest against such executors. The plaintiff has appealed from the judgment, claiming that his recovery was improperly limited to McCurdy, of counsel,) for appellants. | this amount, for the reason, as he asserts, Lewis Sanders, in pro, per. ANDREWS, J. Under the will of James T. Soutter, who died February 8, 1873, his son Robert Soutter took one-tenth part of the residue of his estate remaining after payment of debts. Under the will of Robert Soutter, the son, who died July 15, 1873, his wife, Charlotte Soutter, now the Duchesse d'Auxy, took his household furniture and one-half of his residuary estate, real and personal. The Duchesse d'Auxy thereafter became entitled, on the death of her husband, under his will, to one half of her husband's interest, unad-i ministered, in the estate of James T. Soutter, Sr. The interest of the Duchesse d'Ausy was assignable. The instrument of August 17, 1887, executed by her to that he stood as the purchaser from Cranston of the entire interest which the Duchesse d'Auxy had in the estate of her husband, and not as mere assignee of Cranston's claim of $2,250. There can be no doubt of the proposition that, under an instrument which is in legal effect a mortgage, a power may be vested in the mortgagee to sell and convey an absolute title to the mortgaged property. But assuming that Cranston might, under the instrument of August 17, 1887, have made an absolute disposition of the Duchesse d'Auxy's whole interest in the estate of her husband, he did not attempt to make such a disposition. What he did do was to substitute Amend, his immediate assignee, in his place, and Amend in turn transferred his interest to the plaintiff. Cranston, purported to be an absolute as-Cranston's assignment to Amend was of signment and transfer by her to Cranston the settlement of any suits or ac tions, (referred to in the assignment to all his "right, title, and interest in and to we |