is a citizen of London, in the kingdom of Great Britain. Mrs. Paget is not a merely formal party to the action, assuming such fact to constitute an exception to the rule. She is the cestui que trust, and of the two plaintiffs she is the person alone who is substantially interested in the performance of the trust. By the joining of the third trustee (her mother) with her as plaintiff, the court does not thereby acquire a jurisdiction by reason of the residence of the trustee in the city of New York, which otherwise it would not possess. One of the plaintiffs has not the necessary jurisdictional residence in that city, and the objection is not rendered without force by proof that another of the plaintiffs has. Where citizenship or residence is requisite on the part of plaintiffs, it has always been held that the fact must exist in regard to all the plaintiffs. This has been so held in the United States courts in reference to citizenship, and we think it is the plain meaning of the statute.

There is no danger that, by reason of this construction, any defendant will be enabled to escape the consequences of any misconduct of which he may be guilty. At least, the courts of Massachusetts are open to plaintiffs for the purpose of trying the question whether the defendant Stevens has been guilty of conduct which would authorize his removal. We agree with the able and satisfactory dissenting opinion delivered by the learned judge at the general term of the common pleas, and we might well have rested our judgment upon it; but, as the case here was necessarily argued somewhat briefly, we have felt that although, in our judgment, it was quite a plain one, yet it would be well, considering the importance of the question involved, not only to give it most mature consideration, but also to elaborate somewhat the reason for the conclusion at which we have arrived.

The order appealed from must be reversed, with costs in all courts; and the motion to set the order of publication aside, so far as defendant Charles G. Stevens is concerned, must be granted, with costs. All concur, except ANDREWS, C. J., not sitting, and GRAY, J., not voting. Ordered accordingly.

were complied with, and there is no allegation of fraud or mistake, and the only claim made is that there were errors of law and fact in the proceedings below, the court of appeals will not review the action of the general term in refusing to set aside a second report of commissioners appointed to appraise land, as sec tion 18 of the general railroad act provides that a second report of commissioners shall be final and conclusive.

3. In condemnation proceedings, the court of appeals will not review a decision of the commissioners that the land described in the petition included the entire width of a boulevard. Appeal from supreme court, general term, first department.

Application by the Southern Boulevard Railroad Company for the condemnation of land. From an order of the general term affirming an order denying a motion to set aside a second award of commissioners, petitioner appeals. Affirmed.

Wm. H. Page, Jr., for appellant. Pierrepont Williams, for respondent.

Wm.

EARL, J. The Southern boulevard was laid out in the towns of Morrisania and West Farms, Westchester county, under the act, chapter 290 of the Laws of 1867. It passed through the land of Paul Spofford, and his land was taken for its construction, and a substantial award was made therefor under that act, the twenty-fourth section of which was as follows: "Said road when constructed shall be kept and maintained for the public use as an avenue and boulevard; and except for the purposes of crossing the same, no railway or tramway shall be laid or constructed thereon, or upon any part thereof by any persons or corporations whatsoever, without a special act of the legislature of the state for that purpose first had and obtained; and in case the legislature of the state shall at any future time grant to any person or corporation the right to construct any rail or tramway upon said road or any part thereof, nothing in this act contained shall be construed to affect or cut off the rights of the several owners of land which shall be taken for laying out the road hereby authorized, to claim and recover from such person or corporation the full value of all the land taken from such owner or owners for the road hereby authorized to be constructed, to the same extent as if no such road had ever been laid out on said lands, and without any deduction for any supposed benefit to said lands to arise from the construction of such rail or tramway." By the act, chapter 723 of the Laws of 1887, that section was amended so as to read as follows: "Said road when constructed shall be kept and maintained for the public use as an avenue and boulevard, and no railway or tramway shall be laid or constructed thereon except by a railway company which has been or may hereafter be duly organized under and by virtue of and in conformity with the provisions of chapter two hundred and fiftytwo of the laws of eighteen hundred and

eighty-four, and which has heretofore complied or shall comply with all the provisions of said chapter in respect of the consent of owners of property and the local authorities." In January, 1890, the Southern Boulevard Railroad Company, the appellant, having complied with the provisions of the law of 1884, instituted this proceeding under the general railroad act of 1850, as amended, to acquire "the right to construct, maintain, and operate a double-track street surface railroad upon the surface of the soil through, upon, and along that portion of the Southern boulevard which formerly belonged to Paul Spofford, deceased, and which is located at or near the junction of the Hunt's Point road with the said boulevard in the Twenty-Third ward of the city of New York, and also such switches, sidings, and turnouts as may be necessary for the convenient working of said railroad, and the exercise and enjoyment of the rights, privileges, franchises, and immunities now or hereafter to be accorded and secured to it by law." Three commissioners were appointed, and the matter was brought to a hearing before them, and they made their report according to the respondents, for the fee of the land in the boulevard, six cents. They held that the act of 1887 repealed the special rule for compensation of landowners prescribed by the act of 1867, and awarded merely nominal damages because of the existence in and over the land of the boulevard. Their report having been confirmed at the special term, the landowners appealed to the general term of the supreme court, and there the order of confirmation was reversed, and the report of the commissioners was set aside, and a new appraisal was ordered before the same commissioners. 58 Hun, 497. 12 N. Y. Supp. 466. The general term held tliat the act of 1867, as to the compensation to be awarded to the landowners for the construction of a railroad in and upon the boulevard, as provided in section 24, constituted a contract, and that the act of 1887 was ineffectual to alter or impair that contract, and that the compensation to landowners should be awarded according to the rule laid down in that section. From the order of the general term the railroad company appealed to this court, and here the appeal was dismissed on the ground that the order was not appealable. 128 N. Y. 93, 27 N. E. 1073. The matter was then for the second time brought to a hearing before the commissioners, and, following the rule of damages laid down by the general term, the commissioners awarded the landowners $6,000. An order was then made at the special term adjusting the difference between the two reports, and directing payment of such difference, the sum of $5,999.94. From that order the railroad company appealed to the general term, where it was affirmed (20 N. Y. Supp. 769), and it then appealed to this court, and the appeal was dismissed on the ground that the sec

ond report was final and conclusive, and not reviewable here (141 N. Y. 532, 36 N. E. 600). Then the railroad company made a motion at special term to set aside and vacate the second report of the commissioners on the ground that the award thereby made "was vitiated by error, misconduct, irregularity, and mistake on the part of the commissioners in rendering the same," and the motion was denied. From the order of the special term the railroad company appealed to the general term, and there the order was affirmed, and then it appealed to this court. The controversy between these parties is whether or not section 24 of the act of 1867 was superseded by the amending act of 1887, so that the special rule of damages provided in that section was abrogated. If the question were properly before us for consideration, we should certainly find it interesting, and, as shown in the able briefs submitted to us, not free from difficulty. But we are satisfied that no facts appear in this record which give this court, or any court, jurisdiction to set aside the second report. The commissioners to be appointed under the general railroad act constitute the constitutional tribunal for the award of compensation to landowners. They are not only to determine the facts relating to the matter submitted to them, but all questions of law as well. They are judges of the law and the facts so far as they relate to the compensation to be awarded. Their report having been confirmed, either party may appeal to the general term of the supreme court, and, if the order of confirmation be there affirmed, that ends the matter, and no further appeal can be taken. The general term may set aside and vacate the report, in the exercise of its discretion, for errors of law or of fact, and direct a new appraisal; and it is provided in section 18 of the act that "the second report shall be final and conclusive on all the parties interested." The object of the statute was to secure a speedy determination, before the tribunal specially provided, of the compensation to be awarded to landowners, and to avoid protracted and expensive litigation. This court has always given literal effect to the words "final and conclusive," and has sought to promote the policy upon which the statute is founded. In re Mayor, etc., of New York, 49 N. Y. 150; In re New York C. & H. R. R. Co., 64 N. Y. 60; In re Prospect Park & C. I. R. Co., 85 N. Y. 489; In re Petition of New York & H. R. R. Co., 98 N. Y. 12; In re New York, L. & W. Ry. Co., 102 N. Y. 704, 7 N. E. 559, and In re Southern Boulevard R. Co., 141 N. Y. 532, 36 N. E. 600.

Nothing is alleged upon this motion which did not appear in the record upon the appeal to this court from the second report of the commissioners. It would be a most singular result if that report could not be assailed by appeal, and could yet be attacked collaterally by motion upon the same facts brought be fore the court upon the appeal. If such a

practice could be upheld, then the policy upon which the statute is based could be entirely subverted. As has been intimated in several cases, the provision that the second report shall be final and conclusive nevertheless has its limitations. If there be any irregularity in the proceeding affecting the jurisdiction of the commissioners, or if there be any fraud or mistake or accident of such a character as would authorize a court of equity in an equitable action to set aside a judgment or report of a referee or an award of arbitrators, then the supreme court could, upon motion, set aside the report of the commissioners, and, if it refused to do so upon undisputed facts, an appeal from its determination could be taken to this court. But there is no dispute about the regularity of the proceedings. All the forms of law were complied with, and there is no allegation of fraud, mistake, or accident. The only claim made is that the commissioners and the court below, after careful consideration, decided the matter in controversy against the railroad company. It alleges errors of law and of fact in the actual determination, deliberately and honestly made, without accident and without any mistake except as those tribunals may have fallen into error in their views of the law and the facts; and no one will contend that a court of equity would, under such circumstances, have jurisdiction by action to set aside a judgment. It may be that a party to such a proceeding may suffer great injustice from errors of law or fact committed by the commissioners or the supreme court, without any means of redress; but he is in the same position as every party is against whom a decision has been rendered by a tribunal from which no appeal can be taken.

The award made was for the whole of the land within the limits of the boulevard, and it is now claimed by the appellant that it did not need so much land, and did not seek to acquire so much. But we think, from the language of the petition above quoted, that the railroad company did seek to acquire easements in the boulevard over its entire width; and the order appointing the commissioners, which it caused to be entered, described the portion of the boulevard in which it sought to acquire easements for its road, as follows: "That portion of said Southern boulevard which formerly belonged to Paul Spofford, now deceased, situated at or near the junction of the Hunt's Point road with the said boulevard, in the Twenty-Third ward of the city of New York, and which is about 300 feet in length along said boulevard, and in width the whole width of said boulevard, to wit, 100 feet." But the commissioners had before them the description of what the railroad company sought to acquire in the boulevard, and the nature and extent of the use they expected to make of it; and it was one of the matters they were to determine whether the value of the whole

strip of land within the limits of the boulevard was substantially taken, and whether they should base their award upon the whole of such value. If they erred as to this, there is no help for it, for reasons above stated. Our conclusion, therefore, is that if the commissioners, in making their second report, erred just as claimed by the appellant, that report is final and conclusive, like the judgment of any court of final resort, although demonstrably erroneous. The order should be affirmed, with costs. All concur, except ANDREWS, C. J., not sitting. Order affirmed.

In re FAYERWEATHER. (Court of Appeals of New York. Oct. 9, 1894.) INHERITANCE TAX-INTEREST - · STATUTORY PROVISIONS-RETROSPECTIVE EFFECT.

The inheritance tax act of May 1, 1892, (chapter 399), provides that in case the penalty of 10 per cent. interest on the amount of the tax for failure to pay the same within 18 months after decedent's death is not imposed, on account of unavoidable delay in settling the estate, then 6 per cent. shall be charged from the date of decedent's death. Section 24 provides that the act shall not affect any right "accruing, accrued or acquired" prior to 1892. The Act of 1887 only provides in such case for charging 6 per cent. interest after the expiration of the 18 months. Held that, where decedent died before 1892, 6 per cent. interest could only be charged after the 18 months had expired, though the act of 1892 was passed before the expiration of the 18 months following his death.

Appeal from superior court, general term, first department.

Proceedings to appraise the estate of Daniel B. Fayerweather for taxation under the inheritance tax act. From a judgment of the general term affirming an order of the surrogate court the comptroller of the city of New York appeals. Affirmed.

Emmet R. Olcott. for appellant. Wm. H. Arnoux, for respondents.

PECKHAM, J. The executors of the will of the above decedent made certain payments on account of the collateral inheritance tax within the period of 18 months subsequent to his decease, and in regard to the balance due they applied, some time after the 18 months had expired, and under the fifth section of the tax act, to have the penalty of 10 per cent. interest thereon remitted. The comptroller of the city of New York appeals from the order made by the surrogate of New York county upon that application. The order was affirmed by the general term of the supreme court of the first department.

The decedent died on the 15th day of November, 1890, leaving a large estate. A contest arose over the probate of the will. It was finally decided in favor of the proponents, and the will was admitted to probate by the surrogate of New York on the 24th of March, 1891. The application of the executors to the surrogate for a remission of the

penalty imposed by law for the nonpayment of the whole of the tax within 18 months of the date of the death of the decedent resulted favorably to the executors, and the surrogate adjudged that, by reason of litigation and other unavoidable causes, the amount of the tax had not been determined; and he therefore granted the application and remitted the penalty, and then decreed that the interest to be charged on the balance of the tax then imposed should be at the rate of 6 per cent from the 15th of May, 1892 (18 months subsequent to the death of the decedent), and the application of the comptroller for an order charging interest on that amount at the rate of 6 per cent. from the death of the testator (November 15, 1890), as provided by chapter 399 of the Laws of 1892, was denied. The question, therefore, is simply whether interest on the amount of the tax still due shall be charged from the date of the death of the decedent, or from a date 18 months subsequent thereto.

If the saving clause in the 24th section of the act (chapter 399, Laws 1892) cover and apply to this case, then the order is right. If it do not, then the further question would arise whether in any event the act of 1892 applied to the estate of any individual dying before its passage. Under the act of 1887 (chapter 713), which was in force at the time of the death of the decedent, the taxes imposed by the act were by the fourth section thereof made due and payable at the death of the decedent; and if they were paid within 18 months thereafter no interest was to be charged or collected thereon, but, if not so paid, interest at the rate of 10 per cent. per annum was to be charged and collected from the time the tax accrued. By the fifth section of the act it was provided that the penalty of 10 per cent. imposed by the fourth section should not be charged where in cases by reason of claims made upon the estate, necessary litigation, or other unavoidable cause of delay, the estate of a decedent could not be settled at the end of the 18 months from the death of the decedent, and in such cases only 6 per cent. per annum should be charged from the expiration of the 18 months until the cause of delay should be removed. At the time, therefore, when the tax upon this estate accrued or became due, viz. upon the death of the decedent, the law gave the executors of his will 18 months in which to pay the tax without the addition of any interest whatever; and 10 per cent. interest from the time this tax accrued was imposed as a penalty for nonpayment, unless it was excused under the provisions of section 5 above quoted, and in that case interest only at the rate of 6 per cent. from the expiration of the 18 months, until the cause of delay was removed, was imposed. When the decedent died his estate at once became liable for the payment of this tax of 5 per cent., and provision was made for the payment of a penalty, and for an exemption from such

penalty, under circumstances provided for in the statute. So far as the imposition of the tax was concerned, the legislature imposed a liability. A liability was also imposed in the nature of a penalty for the failure to pay the tax within a certain time, and a privilege or right was granted to avoid the penalty under the circumstances set forth in the act, and when the penalty was not charged the interest was then to be 6 per cent. from the expiration of 18 months subsequent to the death of the decedent. While the law was in this condition the legislature, on the 1st day of May, 1892, passed the act, chapter 399 of the Laws of that year. The statute repealed the prior acts upon the subject of taxation of collateral inheritances, and itself made full provision therefor. It altered the fifth section of the act of 1887, above alluded to, by providing that, if the penalty of 10 per cent. interest on overdue taxes was not charged, then interest at the rate of 6 per cent. per annum should be charged from the date of the decedent's death. The reasons for not charging the penalty of 10 per cent. were left the same in the new as in the old statute. Section 24 of the new or repealing act contained a saving clause, providing that the repealing clause should "not affect or impair any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to May 1, 1892, under or by virtue of any law so repealed." It will be seen that the repealing act was passed a few days before the expiration of 18 months subsequent to the death of the decedent. The appellant's counsel claims that when the act was passed there remained a period of time within which the tax could have been paid without the liability to pay any penalty, and that before such time had expired, and consequently before the possible right to charge the penalty had accrued, the law was changed so that when the right did accrue, unless it was remitted, the law provided for the payment of interest from the death of the decedent, instead of from 18 months thereafter. I think this is an erroneous view of the case. When the decedent died the law of 1887, in its entirety, applied, and under its provisions the executors of the estate would have the right, at the proper time, to ask that the interest to be charged against them for delayed payment of the tax (excused under the provisions of the fifth section) should be 6 per cent. from the date of 18 months after the death of the decedent. The repealing act altered this provision, but at the same time saved the right which, within the meaning of the statute, had either "accrued" or was "accruing" at the time of its passage. This provision of the fifth section of the act of 1887 may well be called a "right," within the meaning of the act of 1892. The claim is not made that it was a right which could not be altered, or even totally extinguished, in the discretion of the lawmaking power. If it were of such

a character, of course, the statute which assumed to do either would be ineffectual for such purpose. But it was something which, while the law remained unaltered. gave to the parties representing the estate the absolute right to have the interest charged at a certain percentage, and from a certain date, upon the fact appearing which the statute provided for. This right was subject to no discretion, and to no one's whim. Nothing but legislative enactment could alter or abridge it in the slightest degree. The legislature did thereafter alter the law, but at the same time said it should not affect a right already accrued, accruing, or acquired. I think it would be a most narrow and unreasonable construction of those words to hold that they do not include a case like this. If there was a doubt upon the question, it should be resolved in favor of the taxpayer, as represented by the executors, and against the taxing power. U. S. v. Wigglesworth. 2 Story, 269, Fed. Cas. No. 16,690; U. S. v. Watts, 1 Bond. 580, Fed. Cas. No. 16,653; Partington v. Attorney General, L. R. 4 H. L. 100, 122; and many other cases cited in the brief of counsel for the respondent. The statute, in my opinion, is not doubtful in construction, so far as this question is concerned, and I think the twenty-fourth section of the act of 1892 applies to this case. The order should therefore be affirmed, with costs. All concur, except ANDREWS, C. J., not sitting. Order affirmed.

PHELPS v. PHELPS et al. (Court of Appeals of New York. Oct. 9, 1894.) DOWER-LAND PAID FOR BY HUSBAND BUT CONVEYED TO ANOTHER.

Under 4 Rev. St. (8th Ed.) c. 1, tit. 3, 81, providing that a widow shall be endowed of the third part of land of which her husband was seised of an inheritance during coverture, she is not entitled to have dower declared in lands which he pays for, and has conveyed to a third person for the purpose of depriving her of dower, under an agreement by him that the husband shall receive all the benefits of, and have full control over, it. 27 N. Y. Supp. 620, reversed.

Appeal from supreme court, general term, second department.

Action by Susan A. Phelps against John W. Phelps and another. From a judgment of the general term (27 N. Y. Supp. 620) affirming an interlocutory judgment of the special term overruling demurrers to the complaint, defendants appeal, on a certificate by the general term as to the desirability of a decision of the questions arising on the demurrers. Reversed.

Herbert T. Ketcham, for appellants. James D. Bell, for respondent.

GRAY, J. This is an action in equity brought by a wife to establish and to protect an inchoate right of dower in certain

lands now held by and in the name of a third person, but which were paid for by the plaintiff's husband, and also to establish her dower right in the proceeds of the sale of certain other lands similarly purchased and held. Her complaint having been demurred to for insufficiency to state a cause of action, we must assume all its averments of material facts to be true. After alleging a marriage and the birth of children, she sets forth a separation between herself and her husband, caused by his neglect, wrong conduct, and desertion. She alleges that since his desertion of her, "with the intent and purpose of defrauding her of her dower rights in his real estate, her husband had purchased various pieces of land, and caused the title to be taken in the name of one Lewis, as a 'dummy in the transaction, under an agreement and arrangement with the said Lewis that the said defendant [meaning her husband] should receive all the benefit of, and have full control over, said property, which agreement was in writing." She alleges that her husband "retained and exercises full possession and control over the same," and that when he desired to dispose of any of the property he would, "under the agreement and arrangement with said Lewis, present the deeds and papers to him, which said Lewis, under his agreement, was bound to execute;" that all of the property, with the exception of one piece, was thus disposed of by her husband "to bona fide purchasers, without notice of the dower interest of this plaintiff;" and that her husband "received the full amount of the purchase money paid for the same, for his own use and benefit." She then proceeds to describe the piece remaining unsold, which she alleges to have been conveyed by Lewis, at the request of her husband, without consideration, to the defendant Goodwin, a partner of her husband, "who was to hold the same under the same agreement that said Lewis had with her husband," and as to this property the plaintiff charges her husband to be the real owner. She prays for a decree which will adjudge, because of these transactions and their fraudulent purpose, that the proceeds received by her husband upon the sale of any of this property "are still real property, and that this plaintiff has an inchoate right of dower in the same;" that her husband be ordered to pay one-third of these proceeds into court, there to be held and invested, etc.; and that, as to the land held by Goodwin, it be adjudged to be subject to her inchoate right of dower, etc.

With this as a sufficient summary of the material facts of her complaint, we are confronted with a pretended cause of action, for which I am unable to find any sufficient basis in our Revised Statutes, to which we must look for the authority for the claim of a wife to be entitled to dower in lands. To entitle the wife to dower, the husband must be seised, either in fact or in law, of a present