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The judgment of the Appellate Division in this case was affirmed in the Court of Appeals upon the opinion from which quotation is made. Van Alstine v. Belden, 161 N. Y. 661, 57 N. E. 1127. It would seem, therefore, that any entry upon the lands upon the street, without the filing of the map, survey, and certificate required by the statute and notice to the owner, would be as to such owner a trespass, for which the state would not in any way be liable, and for which the contractor wrongfully entering upon such land could alone be held liable. It is urged by the respondent here that this action is not brought by the owner of the land or structures, but only by a lessee for years of an interest in the land and structures, and that such an interest in the land is personal property, and for the acquisition thereof no notice is necessàry under section 4 of the act of 1903 cited; that under section 13 of said act this plaintiff can recover its damages through the Court of Claims. If, however, the method of acquiring the land by the survey and certificate and notice be for the purpose of relieving the state "from liability arising from the acts of irresponsible contractors and assumed agents," as stated by Justice Spring in the Van Alstine Case, supra, and the state is not liable for trespass to the owners of the land, it is difficult to see how the state could be made liable for the destruction of personal property while trespassing upon lands which the state had not acquired in the mode prescribed by the statute. If we assume, for the argument, that the notice required to be given by the superintendent of public works is to be given only to the owner of the property, and need not be given to a lessee for a term of years in possession of the property, nevertheless this lessee for a term of years, in possession of structures which he is bound under the lease to return in as good condition as when taken under the lease, would seem to have a clear right to enjoin an entry without lawful right as against the owner, which must result in inevitable damage to the structures leased. The state itself cannot appropriate personal property without a provision for compensation. The only authority for the appropriation of personal property is the implied authority found in section 13 of the act, which impliedly gives to the Court of Claims jurisdiction to determine damages caused by the construction and improvement of the canal. Whether this leasehold interest be real or personal property, it is sufficient interest to authorize an action of replevin brought by the lessee against a wrongdoer taking the property, or an action of trespass by the lessee against one doing damage, and in such action the lessee may recover, not only the injury to his leasehold right, but also to the remainder. Cook v. Champlain Transportation Company, 1 Denio (N. Y.) 92, 104; Baker v. Hart, 123 N. Y. 473, 25 N. E. 948, 12 L. R. A. 60; Dix y. Jaquay, 94 App. Div. 555, 88 N. Y. Supp. 228. In these cases it is held that a tenant for life or for years is liable to the remainderman for all damage sustained by trespass, even by a stranger, and in an action for damages may recover for the whole injury to the remainder estate, even though no injury was suffered to the estate in tenancy. With the liability held in the above cases to rest upon the tenant rests the correlative right, not only to recover in trespass for damage actualand 136 New York State Reporter ly committed, but to prevent by injunction damage threatened. Irrespective, then, of the plaintiff's rights in the street itself as the lessee of structures thereupon, with liability for their destruction, it had the right to ask the court for its injunction preventing the unlawful entry by defendant upon the land in question and the destruction of those structures. The complaint stated a good cause of action, therefore.

102 N.Y.S.-13

The interlocutory judgment should be reversed, with costs, and the demurrer overruled, with leave to the defendants to answer upon payment of costs of the demurrer and of this appeal. All concur.

PARKER, P. J., not voting, not being a member of this court at the time this decision is handed down.

(51 Misc. Rep. 657)

UNITED STATES TRUST CO. v. BAKER et al. (Supreme Court, Special Term, New York County. July, 1906.) 1. WILLS—CONSTRUCTION-CONTINGENT GIFTS.

A testator gave a specified sum in trust, to pay the interest thereof to his son during his life and at his death to his children, and gave the residue of his estate to his sister. Held. that the gift to the son's chiidren was contingent, and survivorship at the time of the distribution was a condition to the acquisition of the gift, and, on the son's children predeceasing him, the gift must go to the residuary legatee.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, $$ 1460

1437.) 2. CANCELLATION OF INSTRUMENTS-ASSIGNMENT OF INTEREST IN ESTATE

FRAUD-MISTAKE.

Evidence examined, and held to warrant a finding that a residuary legatee, through imposition and mistake, assigned her rights in the estate, authorizing the setting aside of the assignment. Action by the United States Trust Company against Lucinda Baker and others for the judicial settlement of the accounts of plaintiff as trustee under the trust created by the will of Eliza Schneider, deceased. Judgment of settlement entered.

E. W. Sheldon, for plaintiff.
Dexter, Osborne & Fleming, for defendants.

McCALL, J. This action by the plaintiff to secure the judicial settlement of accounts as trustee under the trust created by the will of Eliza Schneider, deceased, and to secure (because of certain contingencies that have arisen between different claimants) a direction of the court as to the distribution of the corpus of the trust estate. The testatrix, Eliza Schneider, died on April 24, 1896, and her will was admitted to probate in this county on the 22d day of December, 1896. By the terms of the third paragraph thereof it was directed that a sum of $15,000 be paid to this plaintiff, for it to invest and pay to several beneficiaries named the interest earned on certain specific portions thereof. That portion of the same with which we are concerned in this litigation is found in the third subdivision of said third paragraph of the will, and reads as follows:

"(3) To my son James Henry Schneider the interest upon the sum of five thousand dollars during his lifetime, and at his death to pay to his children or to the survivor or survivors of them the sum of five thousand doilars."

James Henry Schneider was married twice. As a result of the first marriage one child was born, Lillian Rock Schneider. The issue of the second marriage was but one child, Harold Rock Schneider. Their father, James Henry Schneider, died on the 10th day of August, '1904, and both of said children predeceased him; Lillian having departed this life on the 27th day of November, 1897, and Harold on the 11th day of June, 1902. The son, Harold, died in infancy, unmarried and intestate, and his mother, Frederica Veser Schneider, was appointed administratrix of his estate, and in such representative capacity is a claimant for the fund by this litigation sought to be distributed. The daughter, Lillian, grew to womanhood, married Charles Heizman, and bore a child, which lived but a few days. After Lillian's death her husband remarried, and thereafter died, leaving, him surviving, his widow, Abagail Prey Heizman, and one child, Emily Abagail Heizman. They are claimants of a share of the fund in question as the representatives of Lillian Schneider.

The will of the testatrix contained a residuary clause as follows:

"VI. I, hereby give, devise and bequeath the rest, residue and remainder of my estate not hereinbefore specifically devised or bequeathed of which I may be the owner or in which I may have at the time of my death any interest, right or title either legal or equitable, and whether such estate be real, personal or mixed, and wheresoever situate, to my said sister, Mrs. Lucinda Baker, to her use absolutely and forever.”

The first question to be determined herein is: Were the interests in remainder of the chi!dren of James Henry Schneider in this fund absolutely vested, or were they subjected to be divested by their predeceasing their father? In the foregoing quoted third clause of the third paragraph of the testatrix's will no words of direct gift either to life beneficiary or to his children are found, but merely a direction at a certain time in the future to pay or distribute the fund to a class, and such a gift is designed to be contingent; and survivorship at the time of the distribution is an essential condition to the acquisition of the gift. Matter of Baer, 147 N. Y. 318, 41 N. E. 702. Reaching this conclusion, and it being proved and conceded that the only children born to James Henry Schneider predeceased him, the fund must go to the residuary legatee, Lucinda Baker, unless by legal and valid assignment, not secured by imposition and mistake, the title to the same has passed to Dorothy Veser Schneider.

This brings us to the really serious question revealed by this record. It appears that considerable mystery attended the family relations of James Henry Schneider, arising out of his first marriage, and ultimately a decree of divorce dissolved that contract. As to the child Lillian, the issue of said marriage, aside from the fact of her birth, but litt'e seems to have been known by any of the Schneider family, and it seems to have been a mooted question in the family councils, at the time of the execution of the assignment hereafter referred to, whether she was alive or dead. By James Henry Schneider's second marriage, as before stated, but one child was born, and he died in and 136 New York State Reporter infancy. Wlien James Henry Schneider fell ill, and it became apparent he could not survive, the question of the ultimate disposition of the corpus of this trust fund became a matter of serious consideration between Frederica Schneider and her husband. Counsel was consulted by members of the family. There would be no surviving issue of the second marriage, and some dubiety existed as to whether Lillian, the child of the first marriage, was alive. In any event Frederica Sclineider could not benefit; for, if Lillian lived, she would take, and, were she dead, Mrs. Baker would become the beneficiary. So some course had to be adopted to divert or deflect the course that fund should take, so that Frederica might be helped. First the legal adoption of a child by James Henry and Frederica was the plan adopted and carried to completion, and Dorothy Veser, a child of the sister of Frederica, became the adopted child of James Henry Schneider and Frederica, his wife. It is passing strange that just at this point, when discussion was being carried on by the members of Frederica's family, as to the possibility of losing this $5,000, and attorneys had been consulted in reference thereto, and when, as revealed by the record, unless defeated by some overt act of her own, the $5,000 was bound to come to Mrs. Baker, the broken thread of family relations between Frederica and her husband and his aunt, Mrs. Baker, should be so suddenly resumed on Frederica's initiative, and that Aunt Baker's consent be deemed vital to the adoption of Dorothy. But just such steps are taken, and Mrs. Baker is induced to sign a paper, tonfused by the project of adoption and entirely mistaken as to its purport, and which turns out to be an absolute transfer of her right to the fund to Frederica Schneider.

Of one fact in this case we are positively assured: Mrs. Baker, when she signed this paper, was not aware of Lillian's death, or that at the time she signed the same she (Mrs. Baker) would, upon the death of James Henry Schneider, be entitled to the $5,000. She was laboring under the disability of practically total blindness, and she believed she was signing a paper or a mere consent that would aid James and Frederica in legally adopting Dorothy, and she never knew or believed that she was transferring by assignment her rights to the fund. She never was paid, nor did she ever receive, consideration of any kind therefor. I am not overlooking the fact of her calling at her attorney's office before signing; but there is nothing in that incident to warrant a change of conclusions. The whole history of the transaction is forbidding in its details, beginning with the time when only the alertness of counsel for the trust company kept the fund intact for its rightful owner, down to the moment this assignment was procured. And the conclusion is irresistible that, without the slightest intention of divesting herself of any rights to this fund, probably in fact not knowing or believing that she would become entitled to the same, but thinking that she was merely aiding in consummating the adoption of Dorothy, through mistake and error she executed this paper, which transferred her rights, and from the effect of that error she seeks relief, and her prayer should be heard.

Judgment accordingly.

(52 Misc. Rep. 256)

ERDMAN et al. v. MEYER et al.

(Supreme Court, Special Term, New York County. November, 1906.) 1. WILLS-CONSTRUCTION-VESTED ESTATES.

Where testator's will directed his executors to hold his estate in trust and to pay the income to his widow for life, and, on her death, to pay a certain sum to his sister absolutely, and the sister died before the wife, the legacy on the death of the wife was payable to the sister's adminis. trator, as the title vested in the sister on testator's death.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, $f 1460–1487.] 2. SAME--TRUSTS.

Testator's will gave his executors $4,000 for the use of the executors or survivors of them absolutely. Attached to the will was a letter addressed by testator to the executors, and of the same date as the will in which testator referred to the gift of $4,000, and stated that it was given in trust to pay it over to the officers of the oldest Jewish congregation in a certain place in Bavaria. In an action for the construction of the will, the attorney who drew it testified that the method of giving the legacy to the executors was adopted because there was doubt as to the power of the congregation to take the legacy. It appeared that one of the executors declared that he knew it was given for the benefit of the congregation, and it was shown that the congregation was empowered under the laws of Bavaria to acquire property by will. Held, that the trust should be enforced in favor of the congregation.

[Ed. Note:--For cases in point, see Cent. Dig. vol. 49, Wills, $S 1579,

1587-1589.) 8. SAME--LEGATEES-TAKING PER STIRPES.

Where testator's will directed his executors to hold certain shares of the estate in trust for his brothers and sisters, the principal on the death of the life tenant to be paid to the next of kin, the children of a deceased sister took per stirpes.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, 88 1143-1152.] Action by Albert Erdman and others against Hannah Meyer and others for the construction of the will of Samuel Broneman, deceased. Will construed.

Sylvan Breir, for plaintiffs.

Kurzman & Frankelheimer, Lachman & Goldsmith, Jesse W. Ehrich, and Edwin C. Hamburg, for defendants.

NEWBURGER, J. This is an action brought by the plaintiffs, as trustees, for the construction of certain provisions contained in the will of Samuel Broneman, who died on the 8th day of December, 1880; the will having been executed on the 8th day of March, in the same year. After acting for some years the executors died and the plaintiffs were duly appointed by the surrogate of the county of New York as substituted trustees of the trusts created by the said will.

The testator in said will, after making a small bequest to a half sister, gives, devises, and bequeaths to his executors, and the survivors of them and his successors, all his real estate and the residue of his personal estate, with power to lease, let, and demise, and to grant, sell, and convey said real estate and invest the proceeds thereof, and, in trust, to receive the rents and profits of said real estate, and the income and interest of the proceeds of said real estate and said residue of personal estate, and to apply such rents, profits, income, and interest to

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