New York Law Review

Tag: 1878

  • Matter of Will of Emma G. Simpson, 56 How. Pr. 125 (N.Y. Ct. App. 1878): Codicil Republishes Will Revoked by Marriage

    56 How. Pr. 125 (N.Y. Ct. App. 1878)

    A properly executed codicil republishes a will revoked by the testator’s subsequent marriage, effectively reinstating the will’s provisions as of the codicil’s execution date.

    Summary

    This case concerns the validity of a will executed by an unmarried woman, subsequently revoked by her marriage, and then purportedly revived by a codicil executed after the marriage. The court held that the codicil, which expressly referred to and reaffirmed the will, effectively republished the will, making it valid despite the intervening marriage. The court reasoned that a codicil, when properly executed, incorporates the will it references, and the act of publishing the codicil serves to republish the will itself.

    Facts

    Emma G. Simpson (formerly Emma G. Clark), an unmarried woman, executed a will in 1873. Subsequently, she married, which, under the law at the time, revoked her will. After her marriage, she executed a codicil in 1876. This codicil specifically referred to her prior will by date and witnesses and declared her intention to republish, reaffirm, and adopt the will as modified by the codicil as her present will. The original will was present during the codicil’s execution and identified by one of the witnesses.

    Procedural History

    The Surrogate’s Court initially concluded that the will was revoked by the subsequent marriage of the testatrix. The General Term reversed the decree of the surrogate and remitted the proceedings to him with directions to admit the will to probate. This appeal followed.

    Issue(s)

    Whether a will, revoked by the subsequent marriage of the testatrix, is revived and republished by a codicil that refers to the will and expresses the testatrix’s intention to reaffirm it, where the codicil is executed with the formalities required by statute.

    Holding

    Yes, because a properly executed codicil operates as a republication of the will to which it refers, thereby validating the will despite its prior revocation by marriage.

    Court’s Reasoning

    The court relied on the well-established doctrine that a codicil, when executed with the statutory formalities for wills, republishes the underlying will, except as modified by the codicil itself. The court stated, “The general doctrine is well settled that a codicil executed with the formalities required by statute for the execution of wills, operates as a republication of a will so far as it is not changed by the codicil.” The court noted that this principle had significant consequences, particularly concerning after-acquired property. By republishing the will, the codicil makes the will speak as of the date of the codicil, extending the will’s reach to property acquired after the original will’s execution but before the codicil. The court emphasized that the codicil expressly referred to the will, identified it, and declared the testatrix’s intent to reaffirm it, leaving no doubt that the codicil was intended to revive the will. The court also cited authorities supporting the proposition that a testamentary document may be incorporated into a will by reference if the will clearly identifies the document. “I am of opinion that the publication of the codicil was a publication of the will, and that both papers together are to be considered as the will of the testatrix.”

  • Greene v. Bates, 74 N.Y. 333 (1878): Agreement to Suspend Action Discharges Indorser

    Greene v. Bates, 74 N.Y. 333 (1878)

    An agreement to suspend the right of action on a promissory note, made without the consent of an indorser, discharges the indorser from liability.

    Summary

    This case concerns the discharge of an indorser on a promissory note due to an agreement between the holder, the maker, and a third party to suspend the right of action on the note. Hurd, the holder of the note, Greene, the plaintiff, and McIntosh, the maker, agreed that Greene would purchase the note and secure the purchase price with a new note. The original note was to be held in escrow until Greene’s note matured. The court held that this agreement, made without the consent of Bates, the last indorser, effectively suspended Hurd’s right of action against McIntosh, thereby discharging Bates from liability. This is because the agreement altered the original contract’s terms to which Bates was bound as an indorser.

    Facts

    McIntosh made a promissory note, which was subsequently indorsed by Fischer and then Bates. Hurd became the holder of the note, which was past due. At McIntosh’s request, Greene agreed to purchase the note from Hurd, securing the purchase price with his own note payable at a later date. As part of this arrangement, McIntosh assigned a bond and mortgage to Greene as security. The original note, along with the bond and mortgage, were deposited with Shoecraft, an attorney, until Greene’s note matured. Fischer paid the costs of a foreclosure action that McIntosh had commenced on the mortgage, and the foreclosure was abandoned.

    Procedural History

    The case originated in a lower court, where Greene, after taking possession of the original note, sued Bates, the indorser, for payment. The lower court’s decision was not specified in the provided text, but the case eventually reached the New York Court of Appeals.

    Issue(s)

    Whether the agreement between Hurd, Greene, and McIntosh to suspend the right of action on the promissory note until the maturity of Greene’s note, without Bates’s consent, discharged Bates, the indorser, from liability.

    Holding

    Yes, because the agreement to suspend the right of action on the note, made without the consent of Bates, the indorser, discharged him from liability.

    Court’s Reasoning

    The court reasoned that the arrangement between Hurd, Greene, and McIntosh effectively suspended Hurd’s right of action against McIntosh until Greene’s note matured. The court emphasized that all parties, including McIntosh and Fischer, were present when the agreement was made. The court stated, “It was clearly a mutual arrangement between all these parties by which the pressure of Hurd was to be removed; he was to get his pay from Greene, and the receipt and negotiation of Greene’s note payable at a future day clearly bound him to suspend proceedings until the maturity of that note.” The court found consideration for the suspension in the additional security of Greene’s note. Since Bates was not consulted and no measures were taken to preserve his liability as an indorser, the court held that Bates was discharged. Had Bates taken up the note as indorser, he would have been bound by Hurd’s agreement. The court highlighted the importance of protecting the indorser’s rights: “In this arrangement the rights of Bates the appellant do not appear to have been at all considered. He was not consulted and no measures were taken to preserve his liability as’ indorser… Under these circumstances he was discharged.”

  • Merrill v. Agricultural Ins. Co., 73 N.Y. 452 (1878): Divisibility of Insurance Contracts Covering Multiple Properties

    Merrill v. Agricultural Ins. Co., 73 N.Y. 452 (1878)

    When a single insurance policy covers multiple, separately valued items, a breach of a policy condition affecting one item does not necessarily void the entire policy; the contract can be divisible.

    Summary

    This case addresses whether a fire insurance policy covering both real and personal property is an entire or severable contract. The plaintiff, Merrill, obtained a policy from Agricultural Insurance Co. covering buildings and chattel property. After the policy was issued, Merrill mortgaged the land, violating a policy condition. The trial court held the policy void as to the buildings but valid as to the chattels. The Court of Appeals affirmed, holding that because the properties were separately valued, the contract was divisible. The mortgage only voided coverage for the buildings, not the chattels.

    Facts

    The plaintiff obtained a fire insurance policy covering buildings and personal property within those buildings from the defendant insurance company.
    The policy contained a condition that it would be void if the insured property became encumbered by a mortgage without the insurer’s written consent.
    After the policy was issued, the plaintiff placed mortgages on the real property (land and buildings) without obtaining the insurer’s consent.
    A fire occurred, damaging both the buildings and the personal property.

    Procedural History

    The trial court ruled that the mortgages voided the policy as to the buildings but not as to the chattel property.
    The defendant appealed, arguing that the policy was an entire contract, and the breach of condition voided the entire policy.
    The New York Court of Appeals affirmed the trial court’s judgment, finding the contract to be severable.

    Issue(s)

    Whether a fire insurance policy covering both real and personal property, with separate valuations for each, constitutes an entire or a severable contract such that a breach of a condition affecting the real property voids the entire policy.

    Holding

    No, because the properties were separately valued, the contract was divisible and a breach affecting the real property does not necessarily void the entire policy.

    Court’s Reasoning

    The court distinguished between entire and severable contracts, explaining that when a contract consists of several distinct items with a price apportioned to each, it is generally considered severable. The court reviewed case law from other jurisdictions, noting a split of authority on whether insurance contracts covering different properties are entire or severable.
    Referencing previous New York decisions, including Deidericks v. Commercial Ins. Co., the court emphasized that a separate valuation of different subjects of insurance indicates that the parties viewed them as distinct matters of contract.
    The court reasoned that because the buildings and chattels were separately valued, the insurance company’s liability for each was capped at its respective valuation. This separate valuation allowed the contract to be applied to each subject independently. The court further reasoned that insurance companies routinely insure buildings and contents separately, suggesting the contract should not be viewed as an indivisible whole.
    The Court stated, “It is plain from the fact of a separate valuation having been put by the parties upon the different subjects of the insurance, that they looked upon them as distinct matters of contract.”
    The Court considered the general convenience, equity, and reasonableness of the case, finding no reason why an encumbrance on the buildings should automatically void coverage for the chattels. The court posited that the purpose of a condition against encumbrances is to ensure the insured has a strong interest in preventing a loss, but if only the buildings are encumbered, this rationale doesn’t necessarily apply to the chattels within.
    The Court concluded that the insurance contract was divisible, and the plaintiff’s breach of the condition by mortgaging the buildings only affected the insurance coverage on the buildings, not on the chattel property. The Court emphasized the intent of the parties, which it discerned from the separate valuation of the properties. It stated that the parties’ intent to treat the contract as severable for the different properties, “effect[s] the intention of both parties…treating the insurances as separate on each property.”

  • Coe v. Cassidy, 72 N.Y. 133 (1878): Surety’s Liability for Rent After Lease Modifications

    Coe v. Cassidy, 72 N.Y. 133 (1878)

    A surety’s liability for rent under a lease guarantee is not discharged by modifications to the lease agreement that occur after rent has already fallen due, nor by actions the landlord takes to mitigate damages after the tenant has defaulted, so long as those actions do not constitute an acceptance of surrender of the lease.

    Summary

    This case addresses the extent of a surety’s obligation under a lease guarantee when the landlord modifies the lease terms or takes possession of the property after the tenant defaults. The New York Court of Appeals held that the surety remained liable for rent accruing after modifications made following a default, because the modifications did not alter the original lease terms for future rent payments. Furthermore, the landlord’s actions in securing the property and attempting to re-let it did not constitute a surrender, therefore, the surety’s obligation continued. The court emphasized that the surety could have requested a foreclosure sale of secured property to mitigate damages but did not.

    Facts

    Schneider and Harris leased property from Coe, with Cassidy as a surety guaranteeing rent payments. The lessees subsequently assigned the lease to Hopke, who later transferred it to Dwyer. Dwyer paid rent until March 1, 1869. Fischer then took possession and paid some back rent, securing the balance with a bill of sale for a steam engine and other chattels to Coe, with an agreement to resell them if rent was paid. Fischer defaulted. Coe took possession of the chattels. Coe sued Cassidy for rent due for 1870. Cassidy argued that the modifications to the lease and Coe’s actions discharged his surety obligation.

    Procedural History

    The trial court entered judgment for Coe. Cassidy appealed, arguing that the modifications to the lease and Coe’s actions in taking possession of personal property constituted a surrender of the lease, thus discharging his obligations as surety. The New York Court of Appeals affirmed the trial court’s decision.

    Issue(s)

    1. Whether the agreement between Coe and Fischer, regarding the steam engine and other chattels, constituted a modification of the original lease terms that discharged Cassidy’s obligation as surety for rent accruing after November 1, 1869?
    2. Whether Coe’s actions in taking possession of the premises and the personal property constituted an acceptance of surrender, thereby releasing Cassidy from his surety obligations?

    Holding

    1. No, because the agreement only affected rent that was already due, and did not alter the terms of the original lease regarding future rent payments.
    2. No, because Coe’s actions did not demonstrate an intent to release the lessees from liability for the rent, and he consistently treated them as the responsible tenants.

    Court’s Reasoning

    The court reasoned that the agreement between Coe and Fischer was merely a security arrangement for past-due rent and did not alter the original lease terms concerning future rent payments. “As to the rent which fell due before 1870, the plaintiff could, after default in its payment, release it or extend the time of its payment without discharging the defendant for rent thereafter to accrue.” The court also held that Coe’s actions in taking possession of the personal property did not constitute a surrender of the lease. Coe consistently treated Schneider & Harris as his tenants and never formally terminated the lease or excluded them from possession. The court emphasized that while Coe took a mortgage on the personal property, employed a watchman, and attempted to re-let the premises, these actions were aimed at mitigating damages and did not demonstrate an intent to release the original lessees from their obligations. The court noted that the surety could have pressed for an earlier sale of the secured property, stating, “The defendant could probably have hastened a foreclosure if he had requested it. But he did not request it at any time.” The court concluded that the jury correctly found that no surrender had occurred, and thus Cassidy remained liable as a surety for the unpaid rent. The fact that the surety ultimately purchased the property further undermined his argument that the sale price was too low.

  • Bacon v. Gilmore, 74 N.Y. 36 (1878): Admissibility of Testimony Regarding Intent in Transactions with Deceased Persons

    Bacon v. Gilmore, 74 N.Y. 36 (1878)

    Under New York’s Dead Man’s Statute, a party is generally prohibited from testifying about personal transactions or communications with a deceased person if the testimony is offered against the deceased person’s estate.

    Summary

    This case concerns the admissibility of testimony regarding the plaintiff’s intent when transferring property to a deceased individual. The court held that the plaintiff could not testify about his intent in placing property with the deceased, Bacon, because that intent was part of a personal transaction, and Bacon could no longer refute it. The ruling reinforces the principle that when one party to a transaction is deceased, the other party’s testimony about that transaction is restricted to ensure fairness and prevent potential fraud against the deceased’s estate. The court affirmed the judgment, finding no errors in the exclusion of the plaintiff’s testimony.

    Facts

    The plaintiff allegedly placed funds and property with Bacon (now deceased) to delay or defraud his creditors. The defendant (presumably representing Bacon’s estate) presented evidence to support this defense. The plaintiff was then asked if he had placed property in Bacon’s hands with the intent to defraud creditors. The referee sustained an objection to this question.

    Procedural History

    The case proceeded to trial where the referee excluded certain testimony from the plaintiff. The court reviewed the referee’s decision to exclude evidence regarding the plaintiff’s intent and other related matters. The New York Court of Appeals reviewed the judgment, focusing on the evidentiary rulings made during the trial.

    Issue(s)

    Whether the plaintiff’s testimony regarding his intent when placing property in the hands of the deceased, Bacon, is admissible under the restrictions of the Dead Man’s Statute regarding personal transactions with deceased individuals.

    Holding

    No, because the plaintiff’s intent was an integral part of the personal transaction with Bacon, and therefore, testimony about it is inadmissible under the rule preventing parties from testifying about personal transactions with deceased individuals when the testimony is offered against the deceased’s estate.

    Court’s Reasoning

    The court reasoned that the plaintiff’s intent was intrinsically linked to the act of placing property with Bacon, making it a part of the personal transaction. Allowing the plaintiff to testify about his intent would be akin to allowing him to testify about the transaction itself, which is prohibited by the Dead Man’s Statute. The court emphasized the need for fairness, stating, “There is the same reason for excluding the living party from testifying as to the intent with which a personal transaction with a deceased party was performed, as for excluding him as a witness to any other part of the transaction. Such evidence can generally be disproved only by what was said and done at the time of the transaction, and hence, when death has sealed the lips of one party the law should seal the lips of the other.” The court further noted that when evidence is excluded upon a general objection, the ruling will be upheld if any ground existed for the exclusion. The questions regarding ownership of the mortgage and real estate were also deemed inadmissible as they related to property placed in Bacon’s hands, thus involving personal transactions. Church, Ch. J., and Andrews, J., dissented, arguing that evidence of the plaintiff’s intent should have been admitted.