JAMES FRASER et al., Ex'rs, Resp'ts and App'lts, v. THE TRUSTEES OF THE GENERAL ASSEMBLY OF THE UNITED PRESBYTERIAN CHURCH OF NORTH AMERICA, Impl'd, App'lt. (Supreme Court, General Term, Fifth Department, Filed October 23, 1890.) 1. WILLS-EQUITABLE CONVERSION.

The will of testator gave one-fourth of his residuary estate to the defendant, which was a foreign corporation not authorized to take real estate by devise by the laws of this state. The will authorized the executors to sell the real estate, but did not direct them so to do. The personal estate was exhausted in the payment of debts. Held, that in the absence of a direction to the executors to sell the real estate, or an intent of testator that it should be sold in any event, the doctrine of equitable conversion would not apply, and the corporation could take nothing under the will. 2. SAME-COSTS-EXTRA ALLOWANCE.

While an action to construe a will may be difficult and extraordinary, an extra allowance of costs therein must be limited to five per cent on the value of the subject-matter involved.

APPEAL by the defendant, the Trustees of the General Assembly of the United Presbyterian Church of North America, from a judgment entered in Livingston county, May 3, 1889, on the decision of the special term, in an action brought for the construction of the last will and testament of John McNaughton, deceased, with notice of an intention to bring up for review on such appeal an order awarding additional allowance of costs to the plaintiffs from an order of August 1, 1888, awarding to the above-named appellant the sum of $350 additional allowance of costs, and a like sum to the infant defendants, and the sum of $100 to the defendant, Margaret McNaughton.

J. W. Taylor, for app'lt, the Trustees, etc., of the United Presbyterian Church, etc.; L. N. Bangs, for pl'ffs; P. M. French, guardian ad litem of the infant defendants.

MACOMBER, J.-This action is brought to obtain a construction of the will of John McNaughton, deceased, which bears date February 26, 1880, and which was admitted to probate July 9, 1881. The only survivors of the testator are his two grandchildren, the infant defendants, George Halsted Bristol and Larius Filmore. Bristol, and Margaret McNaughton, the widow of the deceased. The appellant upon the principal question, the Trustees of the General Assembly of the United Presbyterian church of North America, is a corporation organized under the laws of Pennsyl vania, and is a benevolent, charitable and religious missionary society, within the meaning of chap. 360 of the Laws of 1860 of New York, and is not authorized to take real estate by devise by the laws of this state. Its counsel attempts to procure an adjudication on this appeal to the effect that under the principle of equitable conversion the real estate of the testator must be deemed to have been converted into personal property, and that, consequently, the appellant can receive the share so given to it by the will, which is three-fourths of the residuary part of the estate. If the principle of equitable conversion can be applied to this case, the appellant would be entitled to receive the share for which it contends; otherwise not.

The question is to be determined by the third and eighth clauses of the will, which are as follows:

"Item 3. I do hereby authorize and empower my executors, or a majority of them, as soon as convenient after the death of my wife, to sell and dispose of my real and personal estate of which I may die seized, on such terms as to such executors, or a majority of them, shall seem just and proper, within three years after my wife's death.

* * *

"Item 8. I hereby authorize and empower my executors, or a majority of them, as soon as convenient after my decease, to sell and dispose of my real estate of which I may die seized, on such terms as to the executors, or a majority of them, shall seem just and' proper, within three years after my death, and until said real estate is sold I hereby authorize my executors to take charge and supervision over it, and the avails of the said real estate, together with such balance as shall remain of my personal property after all debts, charges, funeral expenses and legacies are paid off, as provided for, together with all expenses and charges of executing this will."

The pervading difficulty in applying the doctrine of equitable conversion to these clauses of the will consists in the fact that it is nowhere made the duty of the executors or trustees to sell the real estate; nor does it appear that the testator intended that the same should be sold by them in any event. In the absence of such a direction and in the absence of such a positive intent this doctrine cannot be applied. Scholle v. Scholle, 113 N. Y., 270; 23 N. Y. State Rep., 171; Hobson v. Hale, 95 N. Y., 597; White v. Howard, 46 id., 162; Newell v. Nichols, 12 Hun, 624; Gourley v. Campbell, 66 N. Y., 173; Wright v. Trustees M. E. Ch., Hoff. Ch.,

202.

As it is said in Scholle v. Scholle, supra, "There is in the will no imperative direction for the sale of the real estate. Indeed, there is no direction to sell at all. A power or authority to sell is given, but unless the exercise of that power is rendered necessary and essential by the scope of the will and its declared purposes, the authority is to be deemed discretionary, to be exercised or not as the judgment of the executrix may dictate, and so an equitable conversion will not be decreed. To justify such a conversion there must be a positive direction to convert, which, though not expressed, may be implied; but in the latter case only when the design and purpose of the testator is unequivocal and the implication so strong as to leave no substantial doubt. Where, however, only a power of sale is given without explicit and imperative direction for its exercise, and the intention of the testator in the disposition of his estate can be carried out although no conversion is adjudged, the land will pass as such and not be changed into personalty." See also Chamberlain v. Taylor, 105 N. Y., 194; 7 N. Y. State Rep., 517.

This is the only question raised by the appeal upon the merits of the case, and we are of the opinion that the learned trial justice was correct in his conclusion that items ten, eleven and twelve of the will, by which there was given to the General Assem

bly of the United Presbyterian Church of North America threefourths of the residue of the estate after the payment of certain debts and legacies, were inoperative, and that the property therein mentioned descends to the heirs at law of the testator.

There is, also, an appeal from the order of the court granting certain additional allowances of costs to the various litigants. The plaintiffs appeal from the allowance to the defendants, and the defendant, the trustees, etc., appeal from the allowance made to the plaintiffs. The sum of $800 in all was granted to the several parties. Undoubtedly, the case may be deemed to be difficult and extraordinary within § 3253 of the Code of Civ. Pro., but the allowance thereunder must be limited to the percentage of five per cent upon the value of the subject-matter involved in the liti gation.

In the absence of a finding by the court of the value of the real estate left by the testator to the appellant, the Trustees, etc., of the Presbyterian Church, etc., resort must be had upon this question to the affidavits and other evidence in the case, from which it appears that the whole of the estate left by the testator, both real and personal, was $16,700. There was an incumbrance upon the real estate of $2,600. The personal estate, consisting of $3,700, was exhausted in payment of the debts. The specific legacies under the fourth, fifth and sixth items of the will amounted to $1,600. The life estate of Margaret McNaughton was $2,900; leaving a residue of the estate, for distribution under the residuary clauses of the will, of $5,900. One-fourth of this sum is payable to the American Bible Society, leaving the sum of $4,425, the amount of the gifts to the defendant corporation, as the sole matter in controversy. The allowance to the respective parties must be graduated accordingly. Struthers v. Pearce, 51 N. Y., 365; Conaughty v. Saratoga Co. Bank, 92 id., 401; Moore v. Appleby, 108 id., 237; 13 N. Y. State Rep., 492.

The judgment appealed from should be affirmed, with costs of the appeal to the infant defendants; and the order appealed from should be modified by limiting the additional allowances of costs to the sum of $221.25, being five per cent of the subject-matter involved, to be distributed in the same relative proportion as under the order of the special term.

DWIGHT, P. J., and CORLETT, JJ., concur.

ELLEN S. GRAHAM, Adm'rx, Resp't, v. GEORGE D. CHAPMAN, Rec'r of the Lackawanna & Pittsburgh R. R. Co., App'lt. (Supreme Court, General Term, Fifth Department, Filed October 23, 1890.) 1. MASTER AND SERVANT-CONTRIBUTORY NEGLIGENCE.

Plaintiff's intestate, a fireman on defendant's road, was killed by the derailment of the train caused by the tipping or spreading of a rail, the ties being rotten so that the rails would not hold. Hid, that general knowledge on his part that the condition of the tracks was rough would not bring home to him knowledge of this particular defect, so as to charge him with accepting the risk of danger therefrom.

2. SAME-RECEIVER OF RAILROAD.

A receiver of a railroad who operates and controls it in the usual manner

is liable for injuries to his employees in the same manner and to the same extent as the corporation would be held had he not been appointed, and cannot absolve himself from liability for negligence in not keeping the tracks in good condition by showing lack of funds.

APPEAL from a judgment entered in Allegany county, on the verdict of a jury at the circuit, July 20, 1888, and from an order denying the defendant's motion for a new trial made upon a case and exceptions.

Frank S. Smith, for app'lt; Hamilton Ward, for resp't.

MACOMBER, J.-This action was brought for the negligent killing of the plaintiff's intestate, while in the employ of the defendant as locomotive fireman, by the derailment of the engine on the 24th day of February, 1886.

Evidence was given that the derailment was caused by the tipping over of the rail, the ties being rotten, so that the nails would not hold the rails in their place, whereby, by the spreading or tipping of the rails, the train was thrown down a steep embankment where the plaintiff's intestate was crushed.

The fact that such was the condition of the tracks, where the injuries were inflicted, is not controverted by the defendant. Liability, however, is disputed mainly upon the ground that the deceased knew of the condition of the tracks and consequently took all the hazards of the employment. There is no evidence to show that the deceased knew of the rotten condition of the ties at the point where the locomotive was overturned, though he doubtless did know, in a general way, as any one riding upon that railway could not well avoid knowing, that the general condition of the tracks throughout the line was rough. But this general knowledge did not bring home to the fireman this particular defect in the railway, so as to charge him with any negligence contributing to the injury by reason of his own fool-hardiness. Mehan, adm'r v. The S, B. & N. Y. R. R. Co., 73 N. Y., 585; Hawley v. The Northern Cent. R. R. Co., 82 id., 370; Durkin v. Sharp, rec'r, 88 id., 225; Devlin v. W. St. Louis & P. R. Co., 87 Mo., 545.

The learned counsel for the appellant says in his brief, that, "it is a fair inference from the testimony in the case, and in fact an irresistible conclusion, that the condition of the track was due to the employment of an insufficient number of trackmen to keep the track in good repair." And it is argued therefrom that the lack of sufficient trackmen was due to the want of funds in the defendant's hands, as the road did not pay running expenses, and that the defendant, consequently, is not liable. We know of no principle under which a receiver can thus absolve himself from liability. The defendant had been such receiver for upwards of two years at the time of the accident, and he admits in his answer that ever since his appointment he, as such receiver, had operated and controlled this railroad in the usual manner of carrying on and operating railroads, and during that time had exercised the duties, powers and rights of the company in its management, control and operation. Under these circumstances he must be held liable for injuries to his employes in the same manner and to the same ex

tent as the corporation itself would be held had it not gone into the hands of a receiver.

It was his duty to cause the railway tracks to be inspected carefully by competent inspectors, and to know its condition before imperiling the lives of employes upon it. Durkin v. Sharp, supra; Fuller v. Jewett, rec'r, 80 N. Y. 46.

The judgment appealed from should be affirmed.
DWIGHT, P. J. and CORLETT, J., concur.

MARY SCHNEIDER, Resp't, v. EDWARD LEITZMAN et al., App'lts. (Supreme Court, General Term, Fifth Department, Filed October 23, 1890.) 1. SUMMARY PROCEEDINGS-PETITION-CODE CIV. PRO., § 2235.

To authorize the issuing of a precept under § 2235 of the Code the petition must contain a description of the particular title, estate or interest under which the petitioner claims. A petition stating that petitioner was "in the peaceable possession and occupancy of the premises, and lawfully entitled to remain and continue in possession thereof," is not sufficient to confer jurisdiction.

2. SAME INJUNCTION.

Such proceedings may be restrained by injunction when void for want of jurisdiction.

APPEAL from an order of the special term (Monroe, May, 1890), denying the defendants' motion to vacate an injunction.

J. Sullivan, for app'lts; P. McIntyre, for resp't.

DWIGHT, P. J.-The action was in equity to restrain the defendants from enforcing a warrant issued by a justice of the peace in the town of Irondequoit, in Monroe county, to dispossess the plaintiff of premises situate in that town in summary proceedings for forcible entry and detainer. The complaint alleged, among other things, in effect, that the warrant was void for want of jurisdiction in the justice to issue the precept by which the proceeding was commenced; and the want of jurisdiction was predicated upon the failure of the petition, presented to the magistrate, to comply with the requirements of the statute by which the proceeding is given.

The statute referred to is § 2235 of the Code of Civil Procedure. It prescribes, among other requisites of the petition, that it shall contain a description of the premises of which possession is claimed and of." the interest therein of the petitioner or the person whom he represents." The petition in this case contains no description of any interest claimed in the premises described. In that respect it alleges only that the petitioner was on the day of the forcible entry complained of " in the peaceable possession and occupancy" of such premises, "and lawfully entitled to remain and continue in possession thereof." This is manifestly not in compliance with the statute. It was not a description of the interest of the petitioner in the premises, but at most an allegation by inference that the petitioner had some interest therein which entitled him to the possession. The statute plainly requires a description of the particular title, estate or interest under which the petitioner claims.