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that they should use the income only, and not the principal, of that particular fund, for the purposes for which it was set apart. The present decree orders them "to restore to and pay into the principal of the said trust fund" the sum of $15,651.02, and to this extent the decree must be affirmed, inasmuch as it is founded on and is consonant with the decree of 1892. But this does not involve the principal question before us.

The decree further orders the trustees "to restore to and pay back to the general estate of the testator the sum of $12,500 borrowed from the said general estate and expended by the trustees as aforesaid." If, as claimed by the special guardians, the present accounting is merely an accounting qua trustees of the Glenview maintenance fund, it was not within the jurisdiction of the surrogate to adjudicate the question of the power of the executors to pay the expenses of maintaining the homestead out of the general estate, except so far as to order the trustees to restore to the Glenview fund the amount in which the principal had been depleted.

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As a question may arise as to the sources from which the executors are to provide the moneys necessary to restore the Glenview fund, it becomes essential to consider the duty of the executors in regard to the homestead as manifested by the language of the will and the conditions to which it refers. In the first place, it was the residence of the testator and his family. He evidently intended it to be the homestead of his surviving family. He devised to the executors what he described as his "dwelling house * * * lands, outbuildings, and improvements adjacent thereto and in the neighborhood thereof, and the appurtenances as the same shall be in my use and occupation at the time of my decease, * * and to maintain the same as a homestead and permanent residence [for the family], * * * and * * * to pay out of my general estate all sums necessary, in their judgment, for keeping said dwelling house, lands and buildings and premises insured and in repair and good order." The testator could hardly have used stronger language to indicate that he intended that the conditions which had existed during his lifetime should continue to exist after his death, and that what he had been accustomed to do during his lifetime his executors should do after him in the maintenance of the home which he had prepared for himself and for his family after his death. This man of many millions chose to spend large sums in gardens and lawns, hothouses and gardeners, to beautify his home, and enable him and his family to enjoy its fruits; and there can be no question that he intended. that his family, after his death, should continue in the same enjoyment in just the same manner as he and they had enjoyed it during his life, and that his executors should pay the necessary expense therefor out of his general estate.

In Bowles v. Earl of Strathmore, 8 Jur. 92, the language employed by the testator was not as strong as in the case at bar. He directed the trustees "to keep and preserve in good order my said castle, capital messuage or mansion house called Streatham Castle, and also my capital messuage or mansion house called Gibside, and the offices, park chapel, ornamental buildings, gardens, pleasure grounds and

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and upon trust that durmy said trustees

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appurtenances thereto belonging, ing the minority of my said son shall generally superintend the management of the said manor, hereditaments and premises and appoint stewards, bailiffs, agents and collectors with such salaries and allowances as they, the said trustees, shall think proper." The trustees erected farmhouses and buildings, made extensive drains and fences, sunk wells, provided pumping apparatus, constructed bridges and made roads, and the court approved their expenditures for these purposes. The Vice Chancellor said the question was whether, under another clause of the will, which provided that the executors "shall generally superintend the management of the same manors, hereditaments and premises * * * as they think proper," the trustees had not general authority to do the acts enumerated; and added (page 94):

"I cannot but myself think, that the testator, when he gives a general power to superintend and manage, he gives a general power without a limit-that is, according to the discretion of the trustees; and, unless it appears that what they did in the exercise of the power to superintend and manage was really not a fair exercise of the discretion, it appears to me of necessity the court must uphold what they have done, so far as I understand it."

The present will, in the clauses quoted above, confers upon the executors powers as broad as those referred to by the Vice Chancellor in the case cited. All of the items in the account to which objection is made come within the necessary expenses for maintaining the property as a homestead for the family in the manner in which it was maintained by the testator in his lifetime, and keeping it in a salable condition if the executors should decide to sell. They were expended by the trustees under professional advice, in complete good faith, and such expenditure should be sustained as accordant with the intent of the testator.

The learned surrogate expresses the opinion that the trust created by the second paragraph of the will is a passive trust, and therefore invalid, and cites in support of this doctrine the case of McComb v. Title Guarantee and Trust Co., 36 Misc. Rep. 370, 73 N. Y. Supp. 554, affirmed without opinion by the Appellate Division of the First Department (Sup.) 75 N. Y. Supp. 1128. In that case the will gave the testator's homestead to the executors in trust for use of the testator's wife and children, and authorized the executors to maintain and keep the same in good order and repair, with a provision that the same might be sold with the consent of the wife and children. The Trevor will differs materially from the McComb will, in that it did not give Glenview to the executors to the use of the wife and children, but gave it to the executors to be maintained by them as a homestead for the wife and children, with absolute power to the executors to lease or sell the premises, or parts thereof, when it should appear to them to be for the interest of the estate, either before or after the death of the wife and children, except that it was not to be sold in the wife's lifetime without her consent. But even this latter provision is subject to the provision of the eighth paragraph, which specifically includes the homestead within the general power of

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the executors to sell the testator's estate if they shall think it undesirable for his wife and family to reside there. Mr. Anderson, in his valuable Dictionary of Law, at page 1057, well defines an active and a passive trust:

"Active Trust. When the trustee is not merely a passive depositary of the estate, but is required to take active measures to carry into effect the general intention of the creator of the trust; as, a trust by which an executor is to sell property and apply the proceeds as directed. Also called a special trust.

"Passive Trust. Requires nothing to be done by the trustee beyond transferring property to the beneficiary; in this respect corresponding to the ancient 'use.' Also called a barren, dry, naked, or simple trust."

It is apparent that the trust under consideration is that defined by Mr. Anderson as an active, and not as a passive, trust. Certainly the executors had other powers than transferring the title to the beneficiary. Expressive language on this subject may be found in Beekman v. Bonsor, 23 N. Y. 298, 80 Am. Dec. 269, where it was said (page 314, 23 N. Y., 80 Am. Dec. 269):

"I am of opinion that this clause was intended to create an express trust to receive the rents and profits of land, and apply them to the use of the beneficiaries designated; and, consequently, that the trust, in its nature and kind, is permitted by our statute of uses and trusts. * No technical

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or precise words are necessary in order to constitute such a trust. If the direction is such as to vest the title in the trustee; if his duties are active instead of passive; and if the possession is subjected to his control, so that he may, in his pleasure or discretion, exclude the beneficiary therefrom; and if, with these directions, there is no other declared purpose of the testator-a trust to receive the rents and profits is the necessary result of the arrangement."

All of these directions are contained in the Trevor will. The title is vested in the trustees. The duties are active, not merely passive. The possession of the premises is subject to their control. They can exclude the beneficiaries. Besides, and above all, they can lease or sell the property or any part of it, and to this end keep the premises in salable order. All of these are active duties, and forbid and prevent passivity in the trust.

We reach the conclusion that the trust is an active and valid trust, and not a passive trust; that the trustees have made only such expenditures as they were authorized by the will to make; that these expenses were to be paid out of the general estate; that the setting apart of the $124,000 of securities by the decree of 1892 was a valid exercise of the power of the Surrogate's Court, and was intended for the protection of the trustees, and to insure the family's occupation of the homestead; that, so long as that decree remains in force and not vacated, the trustees are bound to use only the income of those securities for maintaining Glenview; that the trustees must restore to that fund the sum of $15,601.02, and that they may make such restoration out of any property of the general estate which remains in their hands.

The decree must be modified in accordance with this opinion, and, as modified, affirmed, with costs to each party, payable out of the estate. All concur; BARTLETT, J., in result.

SMITH V. CITY OF AUBURN.

(Supreme Court, Appellate Division, Fourth Department. November 17, 1903.) 1. MUNICIPAL CORPORATIONS-DRAINAGE-DAMAGE TO LANDOWNER.

The fact that a city has macadamized the surface of a street, and constructed catch-basins and conduits whereby the flow of water draining from the street is accelerated, does not render it liable for damages from the overflowing of a stream into which the drainage water empties, unless the drainage is increased to an extent beyond that which could be accommodated by the water course in its natural condition.

2. SAME NARROWING OF STREAM.

A city is not liable for damages to a landowner caused by the overflowing of a stream crossing his premises, into which the city drains sewage and surface water, where the overflowing is the result of the landowner having unduly narrowed and obstructed the stream.

8. SAME-ACTION FOR DAMAGES-COMPLAINT-VARIANCE.

In an action against a city for damages arising from its discharges of sewage and surface waters into a stream crossing plaintiff's premises, and which overflowed, damaging her property, the complaint sought to charge liability on the theory that the stream was a natural water course; but there was evidence that the water course had been converted into a sewer or drain with the acquiescence of defendant, and the finding in favor of plaintiff, in effect, determined that the water course had been destroyed. Held, that a judgment for plaintiff was erroneous, because the action was tried and decided on a theory different than that of the complaint. 4. SAME-PLEADINGS-AMENDMENT ON APPEAL.

The question of variance having been presented on the trial, and a motion to amend the pleadings having been denied, and the error arising from the variance having been substantial, an amendment of the pleadings would not be allowed on appeal.

Appeal from Judgment on Report of Referee.

Action by Frances M. Smith against the city of Auburn. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This is an appeal from a judgment upon the report of a referee, enjoining and restraining defendant from discharging street filth and surface water into a certain closed channel constructed across plaintiff's premises, and from which channel, as claimed, such water and filth, so gathered and discharged by defendant, had overflowed and flooded plaintiff's premises; also awarding to plaintiff the sum of $1,840 damages caused, as claimed, by flooding of her premises before the commencement of the action, and the sum of $528.59 costs, amounting in all, with interest, to the sum of $2,379.64. Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.

L. A. Pierce, for appellant.
E. C. Aiken, for respondent.

HISCOCK, J. We think the judgment appealed from must be reversed, and a new trial granted, because the action was largely tried and decided upon a theory different from that set forth and outlined in plaintiff's complaint. In order to appreciate the variance which we deem to exist, it will be essential to review some of the leading features of the case.

As indicated by the nature of the judgment already referred to, it is claimed by plaintiff that defendant has been guilty of unlawfully causing her premises in the city of Auburn to be flooded with water

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and sewage. There seems to be no question but what her premises were so flooded from time to time for several years prior to the commencement of this action, but there is a very substantial dispute in relation to defendant's responsibility therefor. The flooding directly resulted from the overflow of a closed channel running across the premises in question. It was alleged in the complaint that defendant caused this overflow by connecting with this channel, at various points before reaching plaintiff's lands, sewers, catch-basins and conduits, whereby a great amount of surface drainage from streets and sewage was collected and discharged into the channel, and ultimately upon plaintiff's lands. Upon the trial it quite conclusively appeared that defendant had not connected any sewers with the channel in question, but had constructed various catch-basins and conduits, whereby the surface drainage from portions of streets lying in the vicinity were discharged into it; that whatever sewage was collected therein came from the private sewers of landowners living upon the line of the channel. The difficulty in the case arises from the fact, however, that plaintiff, by her complaint, sought to charge the defendant with liability for its acts upon the theory that this was a natural water course which extended across plaintiff's premises, whereas by the proofs and findings of the learned referee the defendant has been held liable upon the theory that the water course had been abandoned, and that there had been substituted therefor, with her cooperation and acquiescence, a sewer. There is no controversy but that originally there was a natural water course, originating with and fed by springs, traversing quite a portion of the city of Auburn, including plaintiff's premises, and ultimately emptying into Owasco creek. Neither is there any dispute, as we understand it, but that the portions of the streets from which defendant collected and discharged into the channel in question the surface water lay within the natural watershed of this water course. Some time prior to the commencement of the action this water course had been inclosed or covered. As bearing upon our construction of the theory upon which the plaintiff framed her complaint, we may quote certain allegations therefrom, as follows:

"Plaintiff further alleges that running through said premises [of plaintiff] from east to west is a natural water course, fed by springs, and in which water runs continually; that prior to about January, 1890, there was not at any time sufficient water in said stream to cause serious damage or injury to claimant's said premises or the buildings thereon; that since about said time and down to the present time said defendant, acting through its certain officers and agents, caused certain sewers, drains, conduits, and catchbasins to be built, constructed, and connected, ** and so built, constructed, and connected said sewers, conduits, and catch-basins that the same should discharge into said water course above claimant's said lands and premises; that said sewers, drains, conduits, and catch-basins were so located and constructed that thereby in and through them a large amount of rain and waste water and sewerage is received and are wrongfully made to drain, and wrongfully discharged into said water course, forming new and destructive currents and volumes of water and sewage."

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And at other places in said complaint are found other allegations referring to said water course as then existing, and to defendant's

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