such child or of either of such children or of either of my said three children leaving no lawful issue surviving before receiving actual possession of his share or portion aforesaid of my estate, then, and in such case, I give and bequeath the share or portion of such child or children so dying to my brother Paul and to his heirs forever, but otherwise then to the lawful issue of such of my children as may die leaving such lawful issue him or them surviving." It seems to me, then, that the interests are "separable and distinct, and that the will is to be so construed as though in terms it had created a separate trust for each child and the issue of each child," if any, within the principle laid down in Wells v. Wells, 88 N. Y. 323, and the authorities therein cited. The utmost period of the suspension of the ownership, so far as Thomas is concerned, is his life. The period fixed by the testator as that when the youngest child would be, or would have been if living, 25 years old, is the fixed period when the executors might as to any child then qualified terminate the trust by bestowal of the corpus. It is not the period during which the trust must exist, inasmuch as the plain subsequent direction of the testator is that as to each child's share it shall upon his death go to his issue, or, that failing, to the testator's brother or his heirs. The trust then ended at the death of Thomas. Montignani v. Blade, 145 N. Y. 111, 39 N. E. 719.

It is probably a sufficient answer to the suggestion of the respondent, that the various proceedings before the surrogate were not an estoppel so far as the question of the validity of the trust is concerned, that all of the parties interested were not before the court (Riggs v. Cragg, 89 N. Y. 480), inasmuch as one of the sons was dead, and it does not appear that his representatives were made parties. But for this I should be strongly inclined to the view that, perforce of the petition and proceedings indicated by the defendant's Exhibit B, there existed an estoppel. Thorn v. De Breteuil, 179 N. Y. 64, 71 N. E. 470. But I may consider that the present action is in repudiation of the long-continued course of contemporaneous construction, and that its equities do not appeal to the vigilance of a court of equity. The testator died in 1871. This son became 25 years old in 1879. Yet no distribution was made, nor, so far as it appears, was there a murmur against it. In 1885 the two survivors united in an accounting proceeding against the executor, which resulted in a decree that one-third of the corpus should be paid to the children of the deceased son, and that the trustee should retain the shares of the petitioners. Upon the death of the other son there was another accounting, and various successive accountings in 1889, 1891, and 1894, wherein the court disposed of the matters upon the theory that the trust existed, and throughout this son acquiesced. See Thorn v. De Breteuil, 179 N. Y. 81, 71 N. E. 470; Follmer's Appeal, 37 Pa. 121; Hagerty v. Albright, 52 Pa. 274; Wright v. Oldham, 8 Leigh (Va.) 306.

son.

I am of opinion that the one-third of the estate never vested in this The scheme of the testator was not to defer the time of possession, but to withhold possession until the son was 25 years old, when, if he had reformed, and was competent, and only in that event, he was to receive the corpus, and likewise is the provision for a subsequent

and 136 New York State Reporter

gift thereof. It was an estate in expectancy, a future estate, and it was contingent, because it was uncertain whether the son would at the time fixed for possible enjoyment, or at any period thereafter, be sc reformed and so competent as to entitle him to the estate under the discretionary power of decision conferred on the executors. 4 Kent's Coms. star page 306. It is contingent in that the event in which it is limited remains uncertain. Section 30, Real Property Law, Laws 1896, p. 564, c. 547, founded on section 13, 1 Rev. St. [1st Ed.] p. 723, pt. 2, c. 1, tit. 2. Because this son is he who shall take if the condition be met, it does not follow that the person is certain. It is not Thomas who can take, but Thomas reformed and competent. And it was permissible for the expectant estate to be thus hedged in. Section 47, Real Property Law, Laws 1896, p. 567, c. 547, founded on sections 32 and 33, 1 Rev. St. [1st Ed.] p. 725, pt. 2, c. 1, tit. 2. As to the feature of contingency, see Hawley v. James, 5 Paige, 485 (which point was not affected by the reversal in 16 Wend. 61); Caw v. Robertson, 5 N. Y. 125; Smith v. Rockefeller, 3 Hun (N. Y.) 295; Reeves on Real Prop. § 577 et seq. I agree with the learned referee that the gift over to Paul, in event that Thomas should not become entitled to the corpus, was a contingent estate in remainder, vesting in Paul at the testator's death. Roosa v. Harrington, 171 N. Y. 341, 64 N. E. 1.

I am of opinion that the power of judgment as to the fulfillment of the condition was lodged in Paul Cushman as executor. Hill on Trustees, star page 489. The will and codicil are to be construed as but one instrument. The will named two individuals as executors, and the codicil substituted two different individuals. But there is nothing to indicate that the testator cast any duty upon the individuals first named other than perforce of their nomination to the executorships, and there is nothing to indicate that he intended to withhold from the second nominees any of the powers conferred upon the first nominees. And I agree with the learned referee that Paul Cushman alone can exercise the power. Crawford v. Forshaw, L. R. Ch. 1891, p. 261; Leggett v. Hunter, 19 N. Y. at 456. If the trust is annexed to the office of executor, then the resignation of the latter office carries the relinquishment of the former place. 11 Am. & Eng. Ency. of Law (2d Ed.) 527. The consent of the acting executor was only neces sary. 30 Am. & Eng. Ency. of Law (2d Ed.) p. 805. See, too, 1 Williams on Executors (7th Am. Ed.) p. 335, c. 6, § 1; Schouler on Ex., § 49.

The judgment is affirmed, with costs. All concur.

(52 Misc. Rep. 364.)

DILCHER v. NELLANY.

(Supreme Court, Trial Term, Erie County. January 20, 1907.)

1. TRIAL-MOTION BY BOTH PARTIES FOR DIRECTION OF VERDICT-CONSIDERATION OF EVIDENCE.

Where each party requests a direction of a verdict in his favor, the court must exercise the functions of a jury in determining questions of fact and in drawing inferences warranted by the facts.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 400.]

2. CONTRACTS-CONSTRUCTION-AGREEMENT FOR BENEFIT OF THIRD PERSON

CONSIDERATION.

It is not essential that a consideration for an agreement should move from a third person to make the agreement one made for his benefit. [Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Gontracts, §§ 798805.]

3. EVIDENCE-PAROL EVIDENCE VARYING WRITING RECITAL OF CONSIDERATION-PROOF OF ADDITIONAL CONSIDERATION.

The recital in an agreement of a particular consideration does not preclude proof of an additional one.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, § 1922.]

4. CONTRACTS-CONSTRUCTON-RIGHTS ACQUIRED BY THIRD PERSON.

A bond executed by an obligor and a co-obligor was secured by a mortgage executed by the obligor alone. The obligee released the co-obligor, with the consent of the obligor. Previous to the release the co-obligor entered into an agreement with the obligor which stipulated that, in consideration of the consent of the obligor to the release of the co-obligor from liability on the bond, the co-obligor would, in the event of the foreclosure of the mortgage and of a deficiency judgment, pay a half of the deficiency judgment. Held, that the agreement was not only made for the benefit of the obligee, but he had a legal or equitable interest in the performance thereof.

5. INDEMNITY-CONTRACTS OF INDEMNITY-CONSTRUCTION--OPERATION.

An agreement between an obligor and co-obligor in a bond which stipulates that, in consideration of the consent of the obligor to the release of the co-obligor from personal liability on the bond, the co-obligor would, in the event of the foreclosure of the mortgage executed by the obligor to secure the bond and of a deficiency judgment, pay half of the deficiency judgment, is an agreement to pay a debt owing or that may become due and owing from the obligor to the obligee, authorizing the obligor to maintain an action thereon without having first paid a deficiency judgment.

6. CONTRACTS-CONSTRUCTION-RIGHTS ACQUIRED BY THIRD PERSONS-ACTION BY THIRD PERSON.

A bond executed by an obligor and a co-obligor was secured by a mortgage executed by the obligor alone. The obligee released the co-obligor, with the consent of the obligor. Previous to the release the co-obligor entered into an agreement under seal with the obligor, which stipulated that, in consideration of the consent of the obligor to the release of the co-obligor from liability on the bond, the co-obligor would, in the event of the foreclosure of the mortgage and of a deficiency judgment, pay a half of the deficiency judgment. The agreement was delivered to the obligee. Held, that the agreement was a substitute for the obligation created by the bond, and was for the benefit of the obligee, authorizing him to sue thereon for his use in the name of the obligor.

7. PLEADING AMENDMENT-CHANGE OF CAUSE OF ACTION.

An action on an agreement made for the benefit of a third person was brought in the name of one of the parties thereto. The action was instituted by the third person. Held, that an amendment to the complaint so as to indicate that the action was for the use of the third person was proper as the amendment did not change the cause of action.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, § 689.]

Action by Jacob Dilcher against Michael Nellany. Verdict directed for plaintiff for the use of George Wadsworth.

Wadsworth, Blackmon & Wadsworth (Harlan J. Swift, of counsel), for plaintiff.

Moot, Sprague, Brownell & Marcy, for defendant.

and 136 New York State Reporter

MARCUS, J. Prior to March, 1900, George Wadsworth, attorney of record for the plaintiff in this suit, was the owner and holder of a joint and several bond, then past due, executed by the plaintiff, the defendant, and Stanton and Fleming, which said bond was secured by a mortgage executed by the plaintiff alone. On the 13th day of March, 1900, Wadsworth executed and delivered to defendant a release to him in substance as follows:

"For a good and valuable consideration to me in hand paid by the said Nellany * I do hereby release, exonerate and discharge him from any and all further duty, liability or obligation to me, under and by virtue of said bond. This release is made pursuant to the provisions of section 1942 of the Code of Civil Procedure, * * and shall not affect or impair the liability or obligation of the other obligors in said bond named. It being the object and purpose hereof only to release the said Nellany and his personal liability for said debt * * * reserving to said Wadsworth his lien on said premises * as though the mortgage had been given without a bond." At the end of the bond are the words, "I hereby consent and approve of the foregoing release," signed by the plaintiff and dated the same day.

*

On the day previous, viz., March 12, 1900, defendant entered into an agreement to and with plaintiff whereby it was stipulated that:

"In consideration of the consent of Jacob Dilcher to the release of Nellany from personal liability upon a bond executed with Dilcher and others, the said Nellany agrees to and with the said Dilcher that in the event of the foreclosure of the Wadsworth mortgage and of a deficiency judgment arising by reason of such foreclosure, the said Nellany, his heirs, executors, etc., will pay onehalf of such deficiency judgment, and will save the said Dilcher harmless from the payment of such one-half of such deficiency judgment.”

This agreement is under the hands and seals of the parties. The mortgage having been foreclosed and a deficiency judgment entered against Dilcher, he brings this suit upon the said covenant.

The defendant alleges in his answer certain counterclaims against the plaintiff, consisting of certain judgments rendered subsequent to the execution of said agreement. It appears that the defendant claims to be the owner of the cause of action sued upon by virtue of a certain assignment made by plaintiff to the Bank of Lancaster as collateral security for advances, and afterwards assigned to defendant with the plaintiff's consent. These assignments were made subsequent to the institution of this suit. It also appears that plaintiff executed a stipulation for the discontinuance of this suit, to which, however, his attorney, Mr. Wadsworth, refused his assent, and consequently no order has been entered upon it. These matters are alleged in the supplemental answer, and judgment is demanded dismissing the complaint and for judgment on the counterclaims.

Mr. Wadsworth's contention is that he is the real party in interest, and, indeed, the sole one; that plaintiff has no beneficial right, title, or interest in the cause of action; that he was but a trustee to collect ́and turn over the moneys recovered to his cestui que trust, Wadsworth, to whom of legal right they belong. Therefore he argues that the matters and things set up in the supplemental answer are of no validity or of any legal efficacy whatever as against his superior right to the cause of action, and that the complaint should be amended so as to

indicate, in its title and averments, that the action is prosecuted "for the use of George Wadsworth." Mr. Wadsworth' bases his contentions and arguments upon the doctrine of Lawrence v. Fox, 20 N. Y. 268, and kindred cases.

Defendant disputes the reasons and arguments advanced by the learned counsel, and earnestly contends that he, Mr. Wadsworth, is not a person for whose benefit a contract was made by the contracting parties, within the meaning or purview of the doctrine aforesaid, and that as such doctrine shall not be extended, but be limited in its application, it should not be applied in such a case as this. It is denied that Wadsworth has any legal or equitable right or title to the cause of action, nor any cognizable interest therein, except his attorney's lien, which, however, it is argued cannot be determined in this action. The legal relations and rights of the respective parties growing out of the transaction concerning the giving of the release and the execution of the covenant aforesaid must be determined upon the pleadings, the documentary evidence presented, and certain oral admissions made upon the trial, since neither party has deemed it either necessary or advisable to take the witness stand or to call any witness.

The following admissions were made upon the trial:

"Mr. Moot: I will make the admission in this form: Roesch undertook for Nellany and for Dilcher to negotiate an adjustment of this matter, and in bringing it about Roesch arranged the release between Wadsworth and Nellany and the indemnity agreement between Dilcher and Nellany; and, if Mr. Wadsworth says so, then I will admit, also, that Roesch brought this agree ment from Nellany and Dilcher to Wadsworth. If that is Wadsworth's statement, I will consent to that.

"Mr. Swift: And that Wadsworth made the interlineations on this paper, gave it to Roesch, who proceeded with it to Nellany, and brought back the instrument with Nellany's initials, accepting and approving the interlineations, and delivered it to Wadsworth.

"Mr. Moot: I will admit that.

"Mr. Swift: And that then Wadsworth delivered to Roesch for Nellany the release. I will state now that the statements of Mr. Moot are accepted as the admission."

The complaint alleges that the defendant applied to Wadsworth to be released from the bond, but he refused to do so without plaintiff's consent, and that thereupon defendant applied to plaintiff for such consent, "and in consideration of said promise and agreement the plaintiff did consent to such release, and said Wadsworth did release the defendant from his personal liability upon said bond." But there is no averment that Wadsworth required or demanded that Nellany should execute this or any other agreement or obligation for the payment of a portion of the debt evidenced by the bond, or that the release was executed in consideration thereof, or as a condition of its execution. It appears that on October 4, 1901, during the pendency of the foreclosure suit, Wadsworth served upon Nellany a written notice, stating that he was entitled to the benefit of said agreement to recover thereon in case of a deficiency on the sale of the premises, and that he would not recognize any assignment or release thereof, but would hold him liable to the full extent of his obligation under said agreement. About the same time he served a notice to the same effect upon Dilcher. Nellany was made a party to the foreclosure