Livingston v. Murray.

share was provided, which could bequeath not exceeding one-half of it. Subject to that power over it, the remainder was limited in positive terms to the lawful issue of the daughter for whom the life estate was provided, if any such shall survive her, and if not, then to her surviving brothers and sisters, and the issue of such as she may survive. That this was substantially the modification effected by the codicil seems to be clearly indicated by the terms the testator used to express his design. It gave each daughter a life estate in her share, without the right to control or reduce the capital, except by her will, and restrained her power in that respect to one-half the amount of the share provided for her. It was claimed in behalf of the appellant that this authority over the share was repugnant to the purpose of limiting her interest to a mere life estate. But that is very evidently a misapprehension of the effect of the legal and equitable principle relied upon for its support. In order to be attended with that result the power of disposition must be general in its terms, extending to the whole of the fund or interest created for the benefit of the legatee. (Tyson v. Blake, 22 N. Y., 558, 563. Terry v. Wiggins, 2 Lans., 272, 275. S. C., 47 N. Y., 512. Taggart v. Murray, 53 id., 233.) While, in the present case, it could only be made by will, and that was restrained, in express terms, to one-half the share created.

The learned counsel for the appellant insisted, farther, that no authority existed for the creation of a trust for her protection, and that of those entitled in remainder of the share provided for her. But that appears to result from the direction given by the will, which the codicil did not disclose it to be the purpose of the testator to change. That was, that the executors should cause the portion belonging to her to be secured for her separate use, during her natural life, free from the control of her husband. This is the substance, though not the literal terms, of the direction. It was given in

Livingston v. Murray.

words including all the testator's daughters, having the effect over the share of each, which has just been stated. And that rendered it the executor's duty to procure some special investment or disposition of the interest provided, which would secure it to the daughter's use free from the control of her husband. By the direction which was given, the testator contemplated a different disposition from payment to the daughter herself. It was in terms to be one which would secure the share for her separate use free from any control over it by her husband.

The testator did not suppose that this could be accomplished by delivering the share into her possession. That might be attended with that result, under the statutes made for the protection of the rights of married women. But it would not be surely or certainly the case; for, notwithstanding the statutes, the wife may yet voluntarily surrender the property, under her control, to the possession and disposition of her husband. The testator intended to avoid even that possibility, and for that purpose he required the executors to secure the daughters' shares for them free from the control of their husbands. And to do that he must have contemplated some such disposition as was made of the share by the judgment of the court. But whether he did or not, it was a very proper one to accomplish the end he declared should be secured; and it is supported by the practice of courts of equity in cases of this description. It was held by Lord Hardwicke, and approved by Chancellor Walworth, that where trusts are merely executory, and something remains to be done to perfect and carry into effect the testator's intention, the court is not confined to the strict rules of common law, but governs itself by the testator's intention, and does that which will best answer and support it. (Wood v. Burnham, 6 Paige, 513, 519.) The testator contemplated some disposition of the share which would secure it for

People v. Bixby.

his daughter's use free from the control of her husband. And that could only be properly effected by the intervention of a trust like that provided for by the judgment.

By requiring the executor to secure it in that manner, he evidently designed that it should not go into the possession, or be subjected to the control, of his daughter. The judgment was right, and it should be affirmed with costs (a.)

Judgment affirmed.

[FIRST DEPARTMENT, GENERAL TERM at New York, May 3, 1875. Davis, Brady and Daniels, Justices.]

(a) S. C., reported briefly, 4 Hun, 619. Modified and affirmed by Court of Appeals, February 26, 1877. (See 10 Hun, XVII.)

THE PEOPLE, ex rel. Emma Lee and others, vs. BUTLER H. BIXBY and others, constituting a court of Special Sessions, &c.

Where six women made an indecent exposure of their persons, for money, to five men present and paying therefor; held, that such exhibition made the room wherein it occurred a "public place," within the meaning of the statute, although it was a room in a house of prostitution, and not open to the general public.

Held, also, that the offence being a misdemeanor committed by all, at the same time, each aiding and abetting every other, the offence was joint, and the offenders could be jointly prosecuted and convicted.

CER

ERTIORARI to review a conviction of the relators of the crime of indecent exposure.

William F. Howe, for the relators.

B. K. Phelps, (district attorney,) for the people.

People v. Bixby.

By the Court, DAVIS, P. J. Two questions are made in this case.

First. That the indecent exposure was not made in a "public place."

Second. That the relators could not be jointly prosecuted and convicted. As to the first of these questions, we are of opinion that the exhibition made by the six relators, for money, to the five men present and paying therefor, made the room where it occurred a public place within the meaning of the statute, although it was a room in a house of prostitution, and not open to the general public. Any place may be made public by a temporary assemblage, (Bishop on Statutory Crimes, 298;) and this is especially so so when the assemblage is gathered to witness an exhibition for hire. It is obvious, from the evidence in this case, that the room where the acts took place was one used for such purposes, whenever persons could be induced to attend and pay for the same.

As to the second point. The offence was a misdemeanor committed by all the relators, at the same time, each aiding and abetting every other, and all joining to make the exposure indescribably indecent. We think it was a joint offence; and we see no reason why the offence of indecent exposure, under the statute, may not be jointly committed, where several persons agree in concert to do the acts which constitute the crime, for the purpose of making a common exhibition. It has been so held in this class of cases, by the English courts. (Rex v. Ochard, 3 Cox, 248. Rex v. Harris, 11 id., 659.) The proceedings should be affirmed and the writ dismissed. (a)

Judgment accordingly.

[FIRST DEPARTMENT, GENERAL TERM at New York, May 3, 1875. Davis, Brady and Daniels, Justices.]

(a) S. C., reported very briefly, 4 Hun, 636.

TERENCE P. SMITH VS. THE MAYOR &c. OF THE CITY OF NEW YORK.

A "messenger to the president of the board of aldermen" in the city of New York, is not a public officer; nor are his duties of an official character; there being no statute creating such an office or defining the duties to be performed officially. Hence the appointment of a person as messenger, and subsequently providing for an increase of his salary, are not within the prohibition of section 11 of chap. 876 of the Laws of 1869.

The plaintiff was appointed messenger by the clerk of the common council. Subsequently, the common council increased his salary. Held, that by this action the common council recognized the right of the clerk to make the appointment; and that the board having the right to delegate the power of appointment, the court would presume, until the contrary was shown, that the clerk had been duly authorized to make the selection. Collins v. Mayor &c. of New York (3 Hun, 680) distinguished.

PPEAL, by the defendants, from an order made at a Special Term, overruling a demurrer to the complaint.

On

On the 1st day of January, 1869, the plaintiff was appointed messenger to the president of the board of aldermen of the city of New York, by the clerk of the common council, at a salary of $1,500 per annum. the 23d of October, 1869, the board of aldermen increased his salary to $2,500 per annum. This action was brought to recover the amount of the difference between the original and the increased salary.

D. J. Dean, for the appellant.

C. Miller, for the respondent.

By the Court, DAVIS, P. J. The complaint does not show that the plaintiff held a public office. On the contrary, its allegations show him to have been a mere servant of the president of the board of aldermen. He alleges that he held "the position and performed the duties of messenger to the president of the board of aldermen." The duties of that place are not official. No statute is shown creating such an office, or