one-third of his residuary estate to the American Home Missionary Society. This was an association of persons organized for charitable and religious purposes, domiciled in the state of New York, but unincorporated at the time of the testator's death. By the laws of the state of New York the bequest was void; by the laws of Connecticut it was good. Held, that the bequest was governed by the laws of New York, and was therefore void." Barnard, P. J., says: "The general rule is that, while the execution of the will and the capacity of the testator, and the construction of the instru ment is governed by the law of the domicil of the testator, yet the law of the domicil of the legatee governs the validity of the bequest." This rule, peculiarly applicable to charitable bequests, when applied to bequests to individuals with capacity to take fails, because the reason and the foundation upon which the rule itself is supported are wanting. In the present case the beneficiaries are in law capable of taking, the property is personal, no charity is created by the trust, no principle or policy is involved which can be urged against the application of the old established rule of lex domicilii. In this connection the distinction between real and personal property must always be observed, as clearly pointed out in White v. Howard, 46 N. Y., 144. In that case the testator was a resident of Connecticut, and Grover, J., says: "The validity of the bequests of his personal property and all questions of succession thereto, or rights therein, must be determined under the laws of that state and by the courts of that state. In addition

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the testator was seized of real estate situated in the city of New York. The validity of the devise of the latter property must be determined by the laws and courts of New York." See, also, Moultrie v. Hunt, 23 N. Y., 394. The trust here involved, as before stated, relates solely to personal property, and was created in Rhode Island, pursuant to the laws of that state, by one domiciled there, who appointed as her trustee a New York corporation. Although the trust is valid in Rhode Island, it is claimed that as the provisions thereof contravene our statute against perpetuities, and the fund and trustee are here, that it becomes necessary to declare the same void and decree a distribution under the laws of New York.

It would seemingly be a harsh rule of law that a citizen of another state, who had made a valid will according to the law of that state, should, by selecting a trustee in another state, to whom the personal property was sent, render the will void and entail the penalty of having the property distributed, not according to the terms of his will, but under the laws of the foreign state, as though he had died therein intestate.

That the courts of this state will not administer the estate of a foreign citizen here in contravention of the laws of this state is true, and, from reasons of policy and principle, will apply its own laws to questions affecting real estate here, is equally true; but in reference to personal property and the testamentary disposition thereof it will remit all questions relating thereto, and, in case of necessity, the property itself, to the domicil of the testator to be there dealt with under the lex domicilii.

It will be thus seen that I do not agree with plaintiffs' contention that the case of Chamberlain v. Chamberlain, supra, is controlling upon the case at bar.

This case, both in its facts and in principle, is more like Despard v. Churchill, 53 N. Y., 198. As therein said: "The testator had his domicil in the state of California. He made his will there. No question is made but that it is in all its provisions valid by the law of that state. It, however, by its terms, disposes of certain property in this state, and by provisions which are invalid here, inasmuch as they run counter to our statute law. 1 R. S., 723, 15; id., 773, § I. The statute law here referred to embodies the policy of this state in relation to perpetuities and accumulations. As this sovereignty will not uphold a devise or a bequest by one of its citizens in contravention of that policy, it will not give its direct aid to sustain, enforce or administer here such a devise or bequest made by a citizen of another sovereignty. Chamberlain v. Chamberlain, 43 N. Y., 424. Yet it is no part of the policy of this state to interdict perpetuities or accumulations in another Id. 434. * state. * * Personal property is subject to the law which governs the person of its owner as to its transmission by last will and testament; and this principle, though arising in the exercise of international comity, has been obligatory as a rule of decision by the courts. And, as a general rule, the distribution of personal property, wherever made, must be according to the law of the place of the testator's domicil. As has been stated, the courts of this state may not directly aid in carrying out here a bequest which is in violation of its statute law, and contrary to a policy of which it is tenacious. And yet they may not hold the bequest void, when it is valid by the law of the state by which the disposition of the property is to be governed. The one would be to transgress the written law of this state; the other would be to disregard an unwritten rule of law, well settled, and of extensive and frequent application."

While, therefore, the courts of this state will not directly aid in carrying out here the trust which is in violation of its statute law, no valid reason is presented why it should assume jurisdiction over the property and the persons interested, and give a construction of the provisions of the will which will render void the testamentary disposition of property which was valid in the state where the testatrix was domiciled. The only illegality or disability in this case is not as to any inherent illegality in the trusts themselves, but rather to the disability of the trustee to take and administer the trust. By the charter terms of the defendant trust company it is incapable of executing any trust not valid by the laws of New York; but it is a well settled principle that equity never wants any trustee, or, in other words, as stated in Perry on Trusts (4th ed.), § 38: "If a trust is once properly created, incompetency, disability, death or non-appointment of a trustee shall not defeat it."

The selection, therefore, of the defendant as trustee, which cannot, under its charter, execute the same, because not a valid N. Y. STATE REP., VOL. XXXIII.

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trust under the laws of this state, is no reason for holding the trust itself invalid. I have been referred to no authority in which it has been held that the incapacity of the trustee, from either private domicil or personal or corporate disability, destroys the trust itself. In this very case the trusts were carried out for more than seven years without the intervention of the trustee designated. An account of the administration of the trusts during those seven years was rendered to and passed upon by the Rhode Island court, and, had it been so desired by plaintiffs, the very question now presented could have been passed upon in that state. In my opinion, therefore, the proper course for the court here to take is to refuse to assume jurisdiction, and to remit the property, and, if needs be, the persons, to the Rhode Island courts, to the end that the law of the testator's domicil may be applied in determining the validity of the will as a means of transmitting property, and to the construction of the instrument itself.

There should be judgment, therefore, in favor of the defendants, dismissing the complaint.

FREDERICK G. CORNING, Pl'ff, v. SAMUEL M. ROOSEVELT, Def't.

(Supreme Court, Special Term, New York County, Filed July 2, 1890.) 1. PLEADING-Demurrer.

A demurrer runs through all the preceding pleadings, and judgment is to be given against the first party whose pleading is defective in substance. 2. SAME-SPECIFIC PERFORMANCE.

In an action for specific performance of a contract for the purchase of certain bonds, brought by the assignee of the cause of action, the complaint alleged that the assignor was ready and willing to deliver the bonds on payment of the purchase price to pla ntiff. Held, that the complaint was insufficient, as it thereby appeared that but part of the cause of action had been assigned, and that the assignor should have been made a party.

DEMURRER to reply.

D. J. M. O'Callaghan, for pl'ff; Davison & Chapman, for def't.

O'BRIEN, J.-The defendant has demurred to the reply interposed by the plaintiff to the counterclaim on the ground that it appears upon the face thereof to be insufficient in law.

In determining this question it is insisted that all the pleadings should be considered, and judgment given against the party who has committed the first error.

In the case of Williams v. Williams, recently decided by this court, and reported in the New York Law Journal, May 29, 1890, 33 N. Y. State Rep., 9, it was held that upon a demurrer to a defense, which would otherwise have been sustained, that it should be overruled, and judgment given in favor of the defendant, for the reason that it appeared that the complaint was insufficient in not stating facts sufficient to constitute a cause of action.

One good reason, among others, for this rule that might be assigned is that, however defective and insufficient the defense may be, it is, of course, a sufficient defense to an insufficient complaint. Graham v. Dunnigan, 6 Duer, 629, was a case of a demurrer to

a counterclaim, and the court, having viewed the complaint as sufficient, expressly declined to pass upon the question as to whether a complaint could be attacked for insufficiency on a demurrer to the counterclaim. The other cases referred to and commented upon in Williams v. Williams, supra, holding that the sufficiency of a prior pleading could be inquired into, were all cases of demurrers to defenses.

It will thus be seen that the precise question here presented has not been directly passed upon. And while a counterclaim is to be regarded as a new and original cause of action in defendant's favor against the plaintiff, as to which the burden of proof is on the defendant, and which, if insufficient, is to be dismissed, yet it is a pleading in the action resorted to to offset plaintiff's demand, in whole or in part, and at times is of such a nature as to entitle the defendant, in addition to securing the satisfaction of plaintiff's claim against him, to an affirmative judgment in his favor.

All the pleadings, from the complaint to the demurrer and the reply, are, when used as in this case, but pleadings in a single action, and I am inclined to the view that the true rule is, as has been stated in Gleason v. Youmans, 9 Abb. N. C., 108, that the demurrer runs through all the preceding pleadings, and judgment is to be given against the first party whose pleading is defective in substance. Applying this rule, therefore, and assuming that the demurrer and the reply raise a question as to the sufficiency of all the preceding pleadings, it remains to be determined not only whether the reply itself is sufficient on its face, but whether the counterclaim is good, and as to whether the complaint itself is defective in substance.

The demurrer to the reply I do not regard as well taken, for the reason that it contains a sufficient denial of the averments constituting the counterclaim. As to the counterclaim itself, it is defective, in that there is no demand for any judgment thereon in defendant's favor as against the plaintiff. In addition, there are other defects which it is needless to point out in view of the conclusion at which I have arrived, that the complaint itself is insufficient.

The plaintiff brings the action as assignee of a right of action which arose upon contract in favor of his assignor, for the purchase and sale of certain bonds and stock. Upon a breach of the contract sued upon, the plaintiff's assignor, or plaintiff himself, as assignee of the cause of action, could have sued, either claiming damages for the breach or brought an action in effect for the specific performance thereof. This latter is the remedy here sought, and is the theory upon which the plaintiff's complaint has been framed.

The defendant agreed to pay the sum of $1,700 in four installments of $425 each, for which he was to receive from plaintiff's assignor, the Julian Electric Traction Company, two certain first mortgage bonds, of the par value of $1,000 each, and twenty shares of stock. One of the bonds and half of the stock were to be delivered when one-half of the amount, or two of the installments, were paid as provided. When two installments were paid, one of

the bonds and half of the stock was delivered to defendant. In addition, defendant paid the third installment, and then refused to pay the fourth, and it is to recover this fourth installment that this action is brought.

It seems reasonably clear that, upon the payment of this installment, which would fully complete the contract on defendant's part, the latter would be entitled to an additional bond and stock, as in the agreement provided.

Unless upon the trial plaintiff could show that he was ready and willing to perform the contract, and that he was able to deliver the bond and stock, I do not see how he would be able to force the defendant to specifically perform his part of the contract by paying the last installment. To obviate this objection, however, the complaint alleges, not that plaintiff, but that plaintiff's assignor, the Traction Company, is ready and willing to transfer to the defendant the other ten shares, upon payment by the defendant to the plaintiff, to whom the company has assigned its claim herein, the amount which is still due. Thus it will be seen that the plaintiff, who is neither the owner or holder of the bond or stock which defendant contracted to purchase, brings a suit to compel the defendant to specifically perform his contract by paying the amount still due, without being in a position himself to complete the contract upon defendant so paying such amount. It would appear, therefore, that but part of the cause of action has been assigned, and that the Traction Company should have been joined as a party, so that, upon payment by the defendant, the obligations which would then rest upon the company could be fulfilled, or in addition to assigning to plaintiff the right to demand the amount due from defendant, they should have assigned as a part of the cause of action the stock necessary to be delivered to defendant upon payment by him.

For the reason, therefore, that I regard the complaint as insufficient, there should be judgment upon the demurrer in defendant's favor, and with leave to serve an amended complaint upon payment of costs.

WILLIAM B. SAYRE, App'lt, v. THE STATE OF NEW YORK, Resp't.

(Court of Appeals, Filed October 7, 1890.)

1. BOARD OF CLAIMS-INSUFFICIENT AWARD.

Through the careless and unskillful building of a feeder to the Chemung canal through coarse gravel, thirty feet higher than the canal where it passed through the land of claimant's father, the water leaked through and flooded forty-five acres of said land, rendering it wholly useless from 1832 to 1870. Claimant became the owner of the land in 1846. In 1849 one and a half acres were taken by the Chemung railroad and the damages assessed and paid. In 1870 the state drained the land, but left embankments which cost claimant $500 to remove, and put him to an expense for restoring the land. Claimant proved a loss of $8,375, but the Board of Claims allowed him but $3,000. Held, that the award was insufficient under the evidence given; that the claimant was entitled to the rental value of the land overflowed for twenty-four years; for the expense for removing the dirt thrown up by the state in making the draining ditches; for the expense in breaking up the land after it had been drained,