JOHNSTON v.
SPICER ET AL., 107 N.Y. 185 (1887)
13 N.E. 753
GEORGE W. JOHNSTON
v. HENRY SPICER et al., Appellants; FRANCIS SPICER et
al., Respondents.
Court of Appeals of
the State of New York.
Argued June 7, 1887
Decided October 18,
1887
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186
Edward
F. Brown for appellants.
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187
[EDITORS'
NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL
PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
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Charles
DeKay Townsend for respondents.
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189
RUGER,
Ch. J.
The
controversy in this case arises, among the heirs of one George
Spicer, over the distribution of surplus monevs accruing from a sale
of lands under a mortgage foreclosure, and depends for its settlement
mainly upon the effect to be given to a contract made between Spicer
and one Ellen Dounagha on June 29, 1847, in contemplation of their
marriage.
The
appellants claim as legal heirs of George Spicer, and the
respondents, who were also a portion of his heirs, claim the
exclusive right to these moneys by virtue of a release from the
State, of the interest said to have accrued to it by escheat, on the
death of Ellen Spicer. The marriage contract was executed by George
Spicer, as party of the first part, Ellen Dounagha, as party of the
second part, and Peter Crawford of the third part. The party of the
second part thereby conveyed certain real and personal property to
Crawford in trust for her
own use and benefit, and the contract then provided as follows: "It
is hereby further covenanted and agreed, that in case of the decease
of the party of the first part, without leaving lawful issue by the
contemplated marriage, previous to the decease of the party of the
second part, that then and in that case all of the real and personal
property he may die possessed of, shall belong, and be the property
of the party of the second part; and that, also, in case the party of
the second part should die without having lawful issue by the said
contemplated marriage, the property, both real and personal,
Page
190shall belong and be the
property of the party of the first part; and the trustee shall, by
good and sufficient conveyance or conveyances, assign the same to the
said party of the first part." The parties subsequently married
but had no children. Spicer died, intestate, on July 1, 1884, seized
of the lands out of which the surplus moneys arose, and leaving his
widow surviving and numerous heirs-at-law. The widow died in January
following, intestate, and leaving no lawful heir. Upon the theory
that the marriage settlement established a right in the widow to such
real estate, which escheated to the State upon her death, the
respondents procured the passage of chapter 377 of the Laws of 1885,
the escheat bill already mentioned, and by reason of the interest
thereby acquired, assert an exclusive right to the moneys in dispute.
The
referee and the Special Term sustained the claims of the State's
grantees under the statute, but the General Term reversed the orders
awarding them the surplus moneys, and directed them to be distributed
among all of the heirs-at-law of George Spicer, deceased. The theory
upon which that count proceeded was that the marriage contract, so
far as George Spicer's property was concerned, was designed to
operate only upon a mere possibility which was not at common law the
subject of a grant, and, therefore, no interest in the property
passed under the contract to the widow, and none escheated to the
State upon her death. It was assumed that a mere right of action to
recover such land, would not escheat upon the death of its owner,
and, therefore, third persons would take no interest in the land by
virtue of a grant thereof from the State.
We
are inclined to the opinion that the General Term erred in some
respects in its view of the case, and that upon the death of George
Spicer, his widow became by force of the marriage settlement the
equitable owner of the real estate, and upon her death, without
heirs, her interest therein reverted to the State, though not
technically by escheat. No express trust
was created by the marriage contract, but a trust
by implication, in the property left by him, arose upon the death
Page
191of George Spicer in favor of
his widow. The legal title which was vested in him descended to his
heirs at his death, by force of the statute of descents, and was held
by them at the death of the widow. It did not vest in the widow by
virtue of the contract under section 47 of the statute of uses and
trusts, as that section is controlled by section 50, which provides
that it shall not apply to trusts arising by implication of law.
Neither was it affected by section 21 (3 Rev. Stat. [7th ed.] 2213),
as that relates only to the express trusts authorized by the statutes
and does not include such as are created by implication or intendment
of law, and the descent of these lands would not therefore seem to be
affected thereby. The property intended to be settled on the wife was
such only as the settlor should die possessed of, and there would
therefore, seem to be some difficulty in treating the husband during
his lifetime, as trustee for his wife, since he had an undoubted
right of disposition of the property during that time, and the
equitable right of the wife arose only upon his death.
It
would, therefore, seem that upon the death of George Spicer, the
legal title to his real estate descended to his heirs, but they held
it in trust for the
equitable owner, and subject to her right to become vested with the
title upon demand. (Giddings v. Eastman, 5 Paige, 561;
Wood v. Mather, 38 Barb. 473, 479.) Ante-nuptial
contracts, by which it is attempted to regulate and control the
interest which each of the parties to the marriage, shall take in the
property of the other, during coverture or after death, like dower,
are favored by the courts and will be enforced in equity
according to the intention of the parties whenever the contingency
provided by the contract arises. (2 Kent's Com. 165; Matter of
Youngs, 27 Hun, 54; affirmed, 92 N.Y. 235.)
No
especial formality is requisite in such instruments, and, in order to
effectuate the intentions of the parties, courts of equity
will impose a trust upon the
property agreed to be conveyed commensurate with the obligations of
the contract, or will decree their specific performance, and when
such relief is inadequate or impracticable from the situation of the
property
Page
192or the character of the
contract, will award damages for its breach. (De
Barante v. Gott,
6 Barb. 496; Peck
v. Vandemark,
99 N.Y. 29; Pomeroy's Eq. Juris. §§ 1297, 1403; Schouler on
Domestic Relations, 263-266 et
seq; Pierce v. Pierce,
71 N.Y. 154, 156.) It is entirely immaterial whether a trustee, to
carry it into effect, has been appointed in the contract or not, or
whether the property agreed to be conveyed be then owned by the
parties, or is expected to be subsequently acquired, if the contract
is fair and reasonable and such as it is lawful for the parties to
make, and the rights of creditors or third persons have not
intervened, it will be enforced in equity
in such a manner as to accomplish the object which the parties had in
view, without reference to the validity of the agreement at law.
(Blanchard
v. Blood,
2 Barb. 354; De Barante
v. Gott,
6 id. 496; Schouler's Domestic Relations, supra;
Atherley on Marriage Settlements [London, 1813], 58.) The rule, as
stated by Pomeroy in his work on Equity
Jurisprudence is: "Among the agreements which the original
common law treated as invalid irrespective of statutes, but which
equity
in the application of its conscientious principles regards as binding
and enforces by granting its relief of specific performance, are the
following: Agreements for the assignment or disposition of a
possibility, expectancy or hope of succession; agreements to assign
things in action; executory agreements made between a man and a woman
who afterwards marry, which then became absolutely void at common
law, but which equity
may specifically enforce
against either husband or wife at the suit of the other." (§
1297.) (See Stover
v. Eycleshimer,
46 Barb. 84.)
It
is said in Bright's Husband and Wife (pp. 471 et seq), "a
jointure which has been agreed by the husband before marriage to be
made upon his intended wife will be good in equity
although it be not actually so settled, but is permitted to remain in
articles, or upon the husband's covenant; for such a jointress being
a purchaser of the provision by the marriage, is entitled in that
character to the aid and protection of a court of equity;
accordingly such articles or covenant will be
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193specifically performed."
He further says that "in Tooke
v. Hastings
(2 Vern. 97), where A. covenanted to settle lands of a certain value,
and had no land at the time, but afterwards purchased land, it was
held that such land should be liable." * * * "The principle
laid down by Lord Redesdale is this: `That where a person acts for
valuable consideration, as upon marriage, he is understood in equity
to engage with the person with whom he is dealing, to make the
instrument as effectual as he is able; and whenever that is the case,
there is nothing in any of the authorities to raise a doubt that it
shall have effect, so far as the person executing it has the power;
and where the nature of the instrument is contrary to what the power
prescribes, but demonstrates an intent to charge, it shall have the
operation of charging in that form which the power allows.' It
follows, therefore, that however the intent be shown, if it be in
writing, the court will, in aid of the intention, supply the defects
in the mode of execution in favor of the jointress; so that whether
the intent to execute the power be by letter, memorandum, will,
articles or covenant, a court of equity
will aid the jointress, and supply all omissions." In the case
of De Barante
v. Gott
(supra),
an ante-nuptial contract had been executed between the plaintiff, who
resided in France, and his intended wife living in New York, whereby
it was provided, that in case of the death of the wife without
leaving children, all her personal estate should become vested in her
husband, and the real estate of which she should die seized, in the
United States, should be immediately sold and the price thereof
remitted to the plaintiff. Upon a bill filed by the husband to
recover the real and personal property from the persons in
possession, Judge Harris held that, if the instrument which created
the right of the plaintiff in the property "had also appointed a
trustee to carry into effect the object, as in the case of Craig
v. Leslie,
no one I apprehend would have doubted the authority or duty of such
trustee to sell the real estate and remit the proceeds; but it is a
rule of equity,
which is said to admit of no exception, that it never wants a
trustee. It is the
Page
194settled doctrine of equity
that no trust
shall be permitted to fail for the want of a trustee to execute it.
Land to which a trust
is attached remains chargeable with such trust
in the hands of the heir or devisee. A court of equity
will always establish and enforce
a trust
whenever a competent party applies for its aid, and presents a case
entitling him to relief." * * * "The general rule as stated
by Story (2 Eq. Jur., § 976), is that where-ever a trust
exists, either by the declaration of the party, or by intendment or
implication of law, and the party creating the trust
has not appointed any trustee to execute it, equity
will follow the legal estate, and decree the person in whom it is
vested to execute the trust."
The heirs at law being infants it was directed that a referee be
appointed to sell and convey the real estate and pay the proceeds to
the plaintiff.
In
Peck v. Vandemark (99 N.Y. 29) it was held that an
ante-nuptial agreement was established by the letters of the parties
to the effect that the intending husband would, in case the plaintiff
intermarried with him, make provision by giving her by will one-half
of his property, and the use of the other half for her life. The
parties having intermarried and the husband failing to make the
provision agreed upon, it was held that this was a valid contract
binding upon the testator, and the plaintiff could maintain an action
against the executor to recover damages for the violation of the
contract. The damages were held to be the value of one-half of the
estate, both real and personal, absolutely, after paying debts and
expenses of administration, and the use of the other half during her
life.
It
has been the constant practice of the courts of this country, as well
as of England, to enforce
ante-nuptial agreements according to their terms, whether they relate
to existing or after-acquired property, and to decree a specific or
substituted performance of them according to the nature of the case.
(2 Kent's Com. 172; 2 Story's Eq. Jur. §§ 775, 1370; Bradish
v. Gibb, 3 Johns. Ch. 523; Reed v. Livingston, 3
Johns. Ch. 481; Pom. Eq. Juris. §§ 1297, 1403; Smith v.
Osborne, 6 H. of L. Cas. 375; In re Pedder, 10 L.R. Eq.
585;
Page
195Hammersley
v. Bonan De Biel,
12 Cl. & Fin 45; In
re Wilson's
Exrs.,
2 Barr, 325.)
These
cases do not proceed upon the theory of a grant conveying a present
interest in the property, but upon that of a contract intended to
provide, in case of the death of one of the parties, an adequate
provision for the support of the other, and, which, as they are
founded upon a valuable consideration and not prohibited by public
policy or principles of law, it would be inequitable to defeat or
destroy. (2 Kent's Com. 165; Schouler's Dom. Rel. 263.)
The
suggestion that such contracts may be invalid, as being of a
testamentary character and as contravening the statutes regulating
the execution of wills, is of no force, in view of the fact that for
many centuries they have been sanctioned and protected by the courts,
and their validity in this State has been expressly ratified and
approved by statutory provisions. (Laws of 1848, chap. 200, § 4;
Laws of 1849, chap. 375, § 3.) Here the contract is clear and
explicit, that in case of Spicer's death before that of his wife all
of the property, both real and personal, of which he should die
possessed, shall belong to and be the property of his widow. In the
case of the wife, her property was conveyed by the marriage articles
to a trustee, who was directed, in the event of her death before that
of her husband, to convey it to him, and nothing further remained to
be done on the part of the wife to perfect the title of the husband
in the contingency provided for. It cannot be doubted but that it was
the intention of the parties, in case of the death of either, to vest
the survivor with similar interests in the property of the other; and
that the omission to provide in the articles for the method of
transfer by the husband was occasioned by the fact that no property
had then been acquired by him, or for some other sufficient reason.
His covenant, however, is express — that his property shall belong
absolutely to her in the event of his death without issue; and equity
will enforce the covenant
for the benefit of the widow so as to effectuate the intention.
It
does not appear in the case at what time the sale of the
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196land under the foreclosure
proceedings took place, nor the time when the title of the heirs to
the real estate became divested by its sale, and converted from an
interest in real property to that of one in personal property.
Neither does it seem to us, in the view we take of the case, that
this question is material. If the heirs became vested with the legal
title on the death of George Spicer, they would retain a similar
interest in the proceeds thereof which had, without any agency of
theirs, been converted from real into personal property. At all
events if this circumstance was material, there is no evidence in the
case which enables the court to determine what the fact was, and we
must deal with the case upon the facts contained in the record. The
remaining question on this branch of the case has reference to the
disposition which the law makes of the widow's equitable interest in
the event of her death, before acquiring the legal title.
The
respondents assert that no claim is made that rights of action
escheat to the People, and such seems to have been the theory
entertained by the General Term. In the strict sense of the term
escheat, perhaps, this may be so, but we assume it to be the law in
this State that all rights of property, of whatever nature they may
be, revert to the People when the owner dies intestate, and there is
a failure of heirs or next of kin, to take such property. We believe
it to be the established rule in all civilized countries that, in
such cases, the property of a resident dying intestate without heirs,
reverts to the Sovereign or State, to be administered for the general
benefit of the community in which he dies. While there is an absence
of specific statutory authority declaring the rights of the State in
such property, it is believed to be the uniform practice for it to
assume by force of natural law, the control of such property, and to
administer it for the benefit of those concerned, and, in the absence
of any legal heir, to appropriate the proceeds to the uses of the
State.
It
is said, in 4 Kent's Commentaries, 425, "It is a principle which
lies at the foundation of the right of property that, if the
ownership becomes vacant, the right must necessarily sub-side
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197into the whole community in
whom it was originally vested when society first assumed the elements
of order and subordination." In a note, it is stated, "the
escheats spoken of in the text relate exclusively to land, movables
never escheated in the technical sense; and if the owner died
intestate and left no lawful representatives, the personal estate
remained at the disposition of the crown. In this country it must
vest in the State, and so the statute law in some of the States has
specially provided." In Perry on Trusts (§ 327), it is said
that it was held in Burgess
v. Wheate
(1 Ed. 177), "that if the cestui
que trust
left no heirs, the trust
estate did not escheat, but that the trustee thenceforth held the
estate discharged of the trust."
"This is upon the principle that there is no want of a tenant to
the land, the trustee being clothed with all the rights of ownership,
against all the world except the cestui
que trust
and those claiming under him. But this principle does not apply to
chattels where there can be no tenant, nor to leaseholds, nor to an
equity
of redemption. In the United States, trustees would hold personal
property subject to the right of the State as ultima
haeres in case the
cestui que trust
died without heirs or next of kin, and it is conceived they would
hold real estate under the same rule." Washburn on Real Property
(vol. 3, p. 49) says: "While escheat was regarded as an incident
of feudal tenure, it did not extend to the equitable estates of
cestui que
trust,
and, by analogy, it is generally understood that if a cestui
que trust
dies intestate, without heirs, the trust
fails, and the trustee holds an absolute estate in the property free
from the claim of any one. But it is settled by the courts of
Maryland, and intimated by Judge KENT in respect to New York, that
such would not be the case under the statutes and that if a cestui
que trust
should die without heirs, his equitable estate would escheat to the
State."
A
very elaborate discussion of the history and origin of the right of
the State to appropriate the property of a person dying intestate,
without heirs, in Kentucky, is contained in the case of Commonwealth
v. Blauton (2 B. Mon. 393). It is there said that the right to
administer upon the estate of an
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198intestate is an attribute of
sovereign power, and it was held that an action on the part of the
State to recover the assets of an intestate, dying without legal
heirs, remaining in the hands of his administrator, could be
maintained.
In
a note to section 990 of Pomeroy's Equity
Jurisprudence the author says: "When the trust
is personalty, on the death of the beneficiary, intestate and without
any next of kin, the crown or the State succeeds to his property upon
other grounds than that of common-law escheat, citing many
authorities.
If
we turn to the legislation of this State we shall find that the
subjects of escheat, and the administration of estates of persons
dying intestate without heirs, have generally been treated together
as analogous, and result in the appropriation by the State of all
such property both real and personal. The first act we have been able
to discover is chapter 35 of the Laws of 1792, entitled "An act
concerning escheats." That act provides, in all cases "where
administration hath been, or hereafter shall be, granted to any
person or persons not the widow of or not of kin to the intestate,
and no person hath or shall, within one year after granting the
letters of administration, appear to claim the personal estate of
such intestate as next of kin, then, and in every such case, the
administrator or administrators shall pay the amount of the personal
estate, after deducting the debts and funeral charges of the
intestate, into the treasury of the State." In case the
administrator neglects to obey this requirement the attorney-general
is authorized to bring an action in the name of the State to recover
the amount. By the second section it was provided "that whenever
the attorney-general shall be informed * * * that any person has died
seized of any real estate within the State without making any devise
thereof, and leaving no heir capable of inheriting the same," he
shall take proceedings in the name of the State to recover the same,
and upon recovery thereof it shall be sold by the State and the
proceeds thereof paid into the treasury of the State.
The
provisions of this act were substantially re-enacted under the same
title by chapter 73 of the Laws of 1801, and
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199also by chapter 19 of the
Revised Laws of 1813. No material change in legislation on this
subject was made until the revision of the statutes in 1828, when
these subjects were separately treated and a new system was adopted
for administration upon the estates of such persons.
Chapter
1, title 1, article 1 of part 2 of the Revised Statutes provides
that: Section 1. The people of this State in their right of
sovereignty are deemed to possess the original and ultimate property
in and to all lands within the jurisdiction of the State, and all
lands the title to which shall fail from a defect of heirs, shall
revert or escheat to the people. Section 2. All escheated lands, when
held by the State or its grantees, shall be subject to the same
trusts, incumbrances, charges, rents and services to which they would
have been subject had they descended; and the court of chancery shall
have power to direct the attorney general to convey such lands to the
parties equitably entitled thereto according to their respective
rights or to such new trustee as may be appointed by the court"
Section 1977 of the Code of Civil Procedure provides for the
enforcement of these provisions.
The
subject of administration upon chattels and personal property was
regulated by article 2, title 6, chapter 6, part 2, Revised Statutes
(3 R.S. [7th ed.], 2319, et seq.), whereby it was provided
that "the county treasurer, in each of the counties of the
State, shall, by virtue of his office, have authority to collect and
take charge of the assets of every person dying intestate, when such
assets shall amount to $100 or more, either in his county or out of
it, upon which no letters of administration shall have been granted
in the following cases: 1st. Whenever such person shall die, leaving
assets, in the county of the treasurer, and there shall be no widow
or relative in the county entitled or competent to take letters of
administration on such estate. 2d. Whenever assets of any person so
dying intestate shall, after his death, come into the county of such
treasurer, and there shall be no person entitled or competent to take
administration of such estate." The act after providing for the
manner in which he shall discharge
Page
200his duties and convert the
estate into money proceeds (§ 71), "The balance of any money in
his hands shall be paid into the treasury of the State for the
benefit of such persons as shall be entitled to receive the same."
The statutes also provide for the appointment of a public
administrator in the city of New York, who has the exclusive right to
administer in the cases referred to, and who is directed to pay into
the city treasury all moneys arising from such estates except such as
may be paid out and expended in the process of administration.
In
the Constitution of 1846 the matter of escheats was made the subject
of express provision, and it was enacted that "all lands the
title to which shall fail from a defect of heirs shall revert or
escheat to the people." (Const. art. 1 § 2)
From
this review of the law it would seem that there is no substantial
difference between real and personal property in respect to the
rights acquired by the State, upon the death of its owner, intestate,
without heirs or next of kin. A clear deduction from the authorities
seems to lead to the conclusion that the doctrine of escheat applies
only to legal estates and does not in a strict sense affect either
equitable estates or personal property. It seems also to follow from
the authorities cited, that upon the death of Ellen Spicer the State
took not the land, but succeeded to the equitable right which she had
to a conveyance thereof. This right may possibly be subject to the
claims of creditors, or other equities which would have to be
adjusted in an action, by the equitable owners to recover the
possession of the land.
The
omission in the provisions of the Revised Statutes of the words "died
seized of" as contained in the Revised Laws of 1813, relating to
escheats is not supposed to have effected any change in the law as
the revisors say in their note to this section that it is "new
in terms but implied in Revised Laws (380, § 2)." A new rule,
however, was intended to be introduced by section 2 of the Revised
Statutes, which provides that all escheated lands shall be held by
the State or its grantees subject to the same trusts, etc., to which
they would have been subject had they descended. This enactment was
Page
201intended to obviate the
severe rule of the common law by which such lands when escheated were
held to belong to the king free from the trust.
(Revisors Notes, 5 N.Y., Statutes at Large [Edm. Ed.], 297.)
With
reference to the personal estate of persons dying intestate without
next of kin, it appears to have been the uniform practice of the
State since its organization to take such property, and hold it
either for the benefit of the community at large or some division of
the State, or to be returned to such persons as may from
considerations of natural justice and equity
seem to the legislature to be entitled thereto.
We
think, therefore, that the property left by Mrs. Spicer reverted to
the State upon her death, and that it was competent for the
legislature to grant the rights thereby acquired, and the right to
administer thereon to such person or persons as in their discretion
they judged equitably entitled thereto. (Englishbe v. Helmuth,
3 N.Y. 294.)
The
only remaining question relates to the validity of the act by which
the legislature assumed to dispose of the property in favor of the
appellants.
It
is claimed by the respondents that it is void for the reason that it
violates the requirements of section 16 of article 3 of the
Constitution providing that "no private or local bill which may
be passed by the legislature, shall embrace more than one subject and
that shall be expressed in the title." It is argued that the act
embraces more than one subject, and that no subject whatever is
properly or correctly described in its title. The title reads as
follows: "An act to release the interest of the people of the
State of New York in certain real estate to Henry Spicer, Catharine
Valentine, Georgiana Farrington, Sarah F. Chapman and Charles Spicer,
and for other purposes." The act is clearly both private and
local since it relates to a specified piece of real estate described
as lying and being in the city of New York; and it purports to convey
such land to five persons for their individual use and benefit.
(Matter of N.Y. Elevated R.R. Co., 70 N.Y. 327, 350.)
By separate provisions it first purports to release the interest
which the State acquired by
Page
202escheat in certain real
estate described; and secondly, it assumes to release all the
interest which the State had to the personal property and effects of
which Ellen Spicer died possessed of or was entitled to. As the act
reads there is no apparent connection between the real property
described in the first section and the personal property referred to
in the second section, and from all of the information furnished by
the act, we are led to conclude that the Legislature intended to deal
separately, not only with real and personal property but also
property derived from different sources. It is quite obvious that the
title does not describe the interest intended to be conveyed by the
latter section, for it is not only not referred to therein, but it is
excluded by implication, through the reference to an interest in real
estate alone; and it is equally clear that the first section
describes no interest possessed by the State, for we have seen that
it had an equitable right of action only. That the act embraced in
fact more than one subject, can hardly be denied inasmuch as the
title itself specifies that it relates to a transfer of real estate
and "for other purposes."
Even
if we were able to overcome this objection, we are of the opinion
that the lack of any intelligible reference in the title to the real
object of the act, and its palpable misdescription thereof, is fatal
to its validity. The true object of the enactment was, obviously, to
convey to some one of the heirs of George Spicer the rights of
property acquired by the State through escheat or forfeiture in the
real and personal property of Ellen Spicer. No reference is made in
the title to the former ownership of either George or Ellen Spicer,
or to the fact that the State acquired its interest by escheat or
reversion; no indication that the act was intended to transfer any
interest in personal property, and no reference to the place or
location of the property affected. There is absolutely no clue in the
title by which the attention of any interested party would naturally
be attracted to, or informed of the real object of the act. The
manifest intention of the constitutional provision was to require
sufficient notice of the subject of proposed legislation of a private
or local character,
Page
203to be so expressed in the
title, as to put not only interested parties, but, also, all persons
concerned in the proposed legislation, upon their guard, and to
inform all persons reading it, of the general purpose and scope of
the act. While this is not required to be done by pursuing any
particular formula, or with much detail of specification, and great
liberality of construction should be indulged in by the courts to
uphold the constitutionality of legislation, yet a due regard to
constitutional requirements demands that when its plain and obvious
purposes are disregarded or evaded, the judgment of the court should
give effect to its provisions. (Purdy
v. People,
4 Hill, 384, 418; People
v. Hills,
35 N.Y. 452.)
It
was said by Judge DAVIS, in the case last cited: "It is not a
sufficient compliance with this provision that a subject is expressed
in the title of the act, the true and actual subject or object must
be there expressed, or the evil and mischief which the framers of the
Constitution sought to avert and prevent will not have been
effectually guarded against." Judge GARDINER says that "the
purpose of the sixteenth section was that neither the members of the
legislature nor the public should be misled by the title." (See
Mutual Ins. Co. v. City of New York, 8 N.Y. 241, 253.)
An
examination of the statutes relating to escheated estates for several
years past, shows that from twenty to thirty are usually passed in
each year, and that the titles of such acts, though varying widely in
the phraseology employed, usually contain a reference to the locality
of the property affected, or the name of the person through whose
decease it is claimed to have been forfeited, or some other
circumstance affording information as to the scope and purpose of the
act. While many of them are clearer and more concise than others, yet
in every one of the twenty-two passed at the session of 1885, except
chapter 377, we find some reference to the circumstances calculated
to direct the attention of interested parties to the object of the
proposed legislation.
There
would seem to be no excuse, in the desire to secure brevity and
conciseness of statement, for a title which was so
Page
204well calculated to elude the
vigilance of interested parties as the one under consideration. It
seems to us that the title of this act was evasive and misleading,
and comes fairly within the letter and meaning of the constitutional
inhibition.
As
we have heretofore seen the legal title to the property in question
was in the heirs-at-law of George Spicer, and at the time of the
passage of the act they were, for that reason, presumably in
possession of the property and the legal owners thereof. This title
and possession they had a right to maintain against all persons
except Ellen Spicer, or those who had lawfully succeeded to her
rights; and had such a standing in court as authorized them to raise
the objection that the act did not vest the rights of Ellen Spicer,
in the grantees from the State.
The
conclusion reached by us is, that the State not having parted with
its interest in the property in question by chapter 377, Laws of
1885, is equitably entitled to the surplus moneys arising on the
foreclosure sale; and that, consequently, neither of the persons
filing claims thereto has shown any superior right over that of other
claimants, and is not entitled to an order giving him, or them,
exclusive rights therein. Under the circumstances of this case, we
are of the opinion that there should be a rehearing of the matter
before the Special Term, of which the attorney general, in view of
our opinion as to the constitutionality of chapter 377, should have
notice and be afforded an opportunity to be heard.
This
conclusion renders it necessary to affirm the order of the General
Term, so far as it reverses the order of the Special Term directing
distribution to the grantees of the State; and to a reversal of that
part of its order directing a distribution of the surplus among all
of the heirs of George Spicer. An order to this effect should be
entered, without costs to either party, and the case should be
remanded to the court below for further consideration.
All
concur.
Ordered
accordingly.
