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and 120 New York State Reporter construing the will as permitting one of the persons to act alone when the other renounced and refused to act. In this we think he erred.

2. Even if the authority to exercise the discretion existed under the statute and the provision of the will, the payment of the principal of the fund to Mr. Cunningham, and the attempted termination of the trust thereby, was not, under the circumstances, the exercise of a "sound" discretion. We have examined this question of fact with a good deal of care because of the importance thereof to the wife and children of Mr. Cunningham, because the result arrived at by the surrogate seems to us to be wrong, and because he appears to have arrived at such result very reluctantly. A few passages from his opinion may well be referred to, he having heard the whole controversy and considered all the evidence. He says:

"We may think that if the testator could speak he would advise the continuance of the trust for the support of his son, with remainder to his wife and children. We may infer that the first executor, after getting the judg. ment of the Supreme Court that the trust was valid, and to be terminated only in the exercise of a sound discretion through one of the dispositions created by the will, wearied with demands he did not feel justified in fulfilling, resigned. We may think that the coexecutor named renounced from disinclination to pay over the entire trust fund, and we may be of the opinion that it was better and more consonant with the testator's desire that the fund remain in trust for the life use of Charles and his family, with ultimate benefit to surviving children; but neither of these views is decisive. To the discretion of the acting executor the testator committed the execution of this power of disposal. She has exercised that discretion. Unless we can find that the executor was actuated by bad faith, that she obeyed a willful purpose rather than the dictates of her judgment, we must affirm, or at least decline to reverse, her action. It is shown that bitterness and ill-feeling existed between the trustee (executor) and the wife of the principal beneficiary (Mr. Cunningham). If the fund was paid over to gratify animosity it shall not be sustained, but the evidence does not make it impossible to have been paid over in the honest discharge of duty by the trustee."

In these expressions of the surrogate in his opinion are grouped together the subjects for consideration upon this question of fact. It seems to us that the surrogate should from the evidence have arrived at a different conclusion than he did.

The judgment referred to by the surrogate has settled some things between the present parties, who were all before the court when that judgment was rendered. It will be remembered the deceased died May 15, 1886. His elder son, Joseph, served as executor until February, 1898. The action referred to was begun in December, 1896, and the judgment was entered in June, 1897. It was determined in that case that there were special reasons operating upon the mind of the testator which induced him to make the trust in question, and that the reasons which then operated upon his mind still continued, though more than eleven years had passed since the death of the testator. Can it be fairly said that such reasons had ceased to exist during the four or five years after that judgment had been rendered? Is it pretended that the habits of Mr. Cunningham had become any better, so that his ability to care for this large fund confided solely to his charge had improved in any respect, or that his treatment of his wife and children had become more tender or protective during that time? The evidence and the findings of fact by the surrogate contained in the decision, and in the answers to the requests by the contestants, furnish only a negative answer to these questions. We need not go into details. It is certainly true that Mr. Cunningham was no better fitted to have the absolute control of this fund in 1901 and 1902 than he was when this judgment was rendered in 1897, or when the testator died in 1886. It was further determined in that case that the testator did not intend to make any special discrimination against his son Charles, but he did intend to provide for his support and maintenance and that of his wife and children, and that the trust should continue during the life of Charles, subject to its termination under the ninth clause of the will, and that the disposition of the fund should be made only in the exercise of a sound discretion. The court practically held in that action that the fund should not then be paid over; that the same reasons still continued for withholding it from Charles that existed at the time of the death of the testator, and if his wishes were to be regarded a sound discretion would not then permit such disposal of the fund. The suggestion by the surrogate as to what the testator would desire or advise if he could speak was a wise suggestion, and one that any impartial judge would concur in under the evidence. It is evident Joseph would not pay over the fund, and that Mr. Dryer would not concur with Mrs. Wilkin in doing so. Thereupon Joseph resigned, and Mr. Dryer renounced the trust and refused to serve. Mr. Cunningham was not on good terms with his wife or children, the latter being all of them in sympathy with their mother, and desiring the trust to continue and the principal of the fund to remain intact. They were all sure to suffer from a termination of the trust, and a disposition of the fund by placing it under the absolute control of their husband and father. It is perfectly apparent that it was better and more consonant with the testator's desire that the fund remain in trust for the life use of Mr. Cunningham and his family, with ultimate benefit to the surviving children. The brother Joseph, the brother-in-law Dryer, the surrogate, and finally this court all seein to concur in this judgment. All impartial persons would do the same. Under these circumstances, was the determination by the executor to pay over the fund the exercise of a sound discretion ? Clearly not. Why was she determined to take such action? Was it the outgrowth of her bitter feeling of animosity towards her sister-in-law, Mrs. Cunningham? Was it in fact her desire to secure payment of moneys owing by her brother Charles to herself or for the payment of which she was liable? Some of the fund was used for such purpose. Did she act in good faith, for the best interests of all the parties interested in the trust fund, or, indeed, for the best interests of any of the parties? It seems to us not. Mr. Cunningham did not need the money for use in any business he was then engaged in or desired to engage in. The surrogate so found. The fund, or a large part of it, was almost certain to be squandered and lost if placed in his custody. Mrs. Wilkin for some purpose, honest or dishonest, malicious or willful, or otherwise, was determined that this fund should be put beyond the reach of the wife and children, and in the absolute custody of the husband, and, therefore, disrespecting the wishes of the deceased, her and 120 New York State Reporter father, and the judgment of her brother Joseph and her brotherin-law Mr. Dryer, and without asking the direction of the court, which would certainly have been denied if asked for, she made haste to exercise the discretion and to pay over the money and terminate the trust.

The surrogate felt compelled reluctantly to "affirm, or at least decline to reverse, her action.” The matter comes to us for our action, and we must determine the question. We cannot concur in the disposition of the matter made by the surrogate on the meritsthe facts. Our conclusion is that the fund has not been properly disposed of by the executor, and must be regarded as still in her hands, to be held by her under the terms of the will, or until the court shall otherwise direct as to the disposition thereof.

Decree of Surrogate's Court reversed upon the law and the facts, with costs to the appellants payable out of the income of the fund, and matter remitted to the Surrogate's Court for such further proceedings as may be proper. All concur. SPRING and HISCOCK, JJ., on the second ground stated in the opinion only.

Form of Decision. All Parties Appearing and Consenting Thereto. Decree of Surrogate's court reversed upon the law and the facts, with costs to the appellants to abide event, payable from the income of the fund in controversy, and a new trial and hearing granted, upon condition, however the parties consenting) that $140,000 of the fund be deposited to the credit of the executrix, Anna M. C. Wilkin, viz., $40,000 with the Traders' National Bank of Rochester, N. Y., $50,000 with the Rochester Trust & Safe Deposit Company, and $50,000 with the Fidelity Trust Company of Rochester, N. Y., there to remain during the pendency and until the final determination of this proceeding or the further order of this court, and the institutions above named to pay interest upon the amounts deposited with them, respectively, at the rate of 4 per cent.; the interest to be paid to the said executrix upon her drafts or checks, but the principal not to be subject to her draft or check, unless accompanied by a certified copy of an order of this court directing such payment, such order to be granted only upon notice of the application therefor to the attorneys for all the parties which shall have appeared in this proceeding, and a certified copy of the order entered upon this decision to be delivered to each depositary of the fund at the time of making the deposit; an application to change the depositaries of the fund, or of any portion thereof, to be made by the executrix whenever there shall be a reduction of the rate of interest below 4 per cent.; receipts from the several depositaries, showing compliance with the order entered upon this decision, to be filed with the clerk of this court on or before the ad day of February, 1904; and upon the further condition (the parties consenting) that upon such new trial and hearing the parties may read from the stenographer's minutes any evidence given upon the former trial and hearing. In the event that there shall be a failure to make deposit of $140,000 of the fund, as herein provided, no new trial is granted, but the decision in that event is that there remains in the custody of the executrix, undisposed of, $140,000 of the principal of such trust fund, and that the Surrogate's Court make and enter a decree necessary to carry this decision into effect, and that the appellants have costs of the appeal, payable from the income of such part of the trust fund.

COONS V. SANGUINETTI.

(Supreme Court, Appellate Division, Third Department. January 16, 1904.) 1. SALES-ACCOUNT STATED-EVIDENCE,

In an action to recover a balance for goods sold, evidence that there was a dispute between the parties as to the amount due, the defendant claiming the amount to be from $50 to $60, while plaintiff's decedent claimed it was over $100; that defendant offered to pay $75 to settle when deceased brought a receipt to defendant's wife, which he never brought; and that defendant never paid the money-shows an attempt at compro

mise, and not an account stated. 2. SAME-PAYMENT.

Where, in an action for a balance due for goods sold, defendant's wife testified in his behalf that plaintiff's decedent had said, on an occasion when they were having a dispute over the amount due, that such amount was $75, and such testimony was entirely undisputed, it was error for the court to direct a verdict for plaintiff for $201.87 and interest, which was the amount claimed, though such witness made a statement inconsistent with her previous testimony to the effect that defendant stated the amount due on the contract was over $100. Appeal from Trial Term, Fulton County.

Action by Jennie L. Coons, as executrix of the estate of Derrick G. Golder, deceased, against John Sanguinetti. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

N. H. Anibal, for appellant.
Frank Talbot, for respondent.

CHESTER, J. The action was brought to recover for an amount remaining unpaid upon a piano contract between the defendant and one Mary E. Tietz which had been transferred to the plaintiff's testator, Derrick G. Golder. The amount claimed in the complaint to be due was the sum of $201.87, besides interest.

The court directed a verdict for the plaintiff for the full amount claimed. In the answer it was alleged that there had been an account stated between the defendant and Golder under the contract in question, under which a balance of only $75 was due from the defendant thereon, and it was also alleged "that the entire amount of said contract had been paid, except seventy-five dollars.”

The evidence given in support of the defendant's allegation of an account stated was all given by defendant's wife, and was to the effect that there had been a dispute between the parties over the amount due; that the defendant claimed it was only from $50 to $60, and Golder that it was over $100; that the defendant offered to pay $75 to settle when Derrick brought a receipt to defendant's wife; that he never

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and 120 New York State Reporter brought such receipt; and that the defendant never paid the money. This evidence shows an unsuccessful effort to compromise the claim rather than an adjustment of the accounts that could fairly be regarded as an account stated.

But under the allegation of payment a different situation is presented. The defendant's wife testified in his behalf that Golder had said upon the occasion when they were having the dispute over the amount due on the contract that the amount unpaid was $75. This testimony was entirely undisputed by any direct evidence. It is true that she made a statement inconsistent with this when she testified that he said that the amount due on the contract was over $100. It is true also that she was the wife of the defendant, and testified in his behalf to a conversation with a deceased person. While these facts required that her testimony should be carefully scrutinized, it was for the jury to determine what, if any, weight should be given to it. With her evidence in the case there was a clear question of fact for the jury to determine as to whether or not all but $75 of the contract had been paid, and the direction of a verdict for the plaintiff for the full amount claimed was error which requires reversal.

Judgment reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

(91 App. Div. 162.)

CARR V. MERCHANTS' ICE CO. (Supreme Court, Appellate Division, First Department. February 5, 1904.) 1. NEGLIGENCE-INFANT Non SUI JUBIS.

A child two years, two months, and six days old is non sui juris. 2. SAME-CONTRIBUTORY NEGLIGENCE.

A child non sui juris is not chargeable with contributory negligence in

a statutory action for the negligent killing thereof. 3. SAME-INSTRUCTION-ERROR.

In an action against defendant for the death of a child who was run over by defendant's wagon in the street, an instruction that, as a matter of law, the child was non sui juris, and that, if the mother was negligent in leaving the child upon the street, the negligence was imputable to the child, and also that, if the child exercised the degree of care required of a person of its discretion, then the negligence of the mother was immaterial, was erroneous, as not applicable to the facts in the case, where, under the evidence, if the child had been an adult she would have been chargeable with contributory negligence as a matter of law. Appeal from Trial Term, New York County.

Action by Mary Carr, administratrix of the estate of Hazel Carr, deceased, against the Merchants' Ice Company. From a judgment for plaintiff, and an order denying motion for new trial, defendant appeals. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, MCLAUGHLIN, INGRAHAM, and LAUGHLIN, JJ.

Franklin Pierce, for appellant.
George B. Hayes, for respondent.

1 2. See Negligence, vol. 37, Cent. Dig. $ 124.

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