Whether the assignment was fraudulent in fact or not was a question of fact for the referee. In Jacobs v. Remsen, 36 N. Y. 669, it was said: "Whether an assignment made by an insolvent debtor, in trust for the benefit of his creditors, is fraudulent in fact, the finding of a referee or of a jury, upon conflicting evidence, that it is not fraudulent, cannot be legally disturbed by the supreme court." To the same effect in Ball v. Loomis, 29 N. Y. 412. Upon the question of whether the assignment was fraudulent in fact or not, the acts of the assignor prior to, and in contemplation of, making the assignment, bear upon the question of intent, (Peck v. Crouse, 46 Barb. 151;) and, when such an inquiry is opened, the law permits great latitude, (Hubbard v. Briggs, 31 N. Y. 538.)

It is insisted in behalf of the appellant that an error was committed upon the trial in allowing the complaint to be amended so as to allege large purchases by the assignor of the plaintiffs with the preconceived design not to pay for the same; and that an error was committed by the referee in receiving evidence, under such an amended complaint, of the facts tending to show that the assignor purchased between the 10th of June, 1884, and the 21st of February, 1885, when he assigned, a large quantity of goods, amounting to $10,500, for which purchases the plaintiffs brought their actions, and recovered judgments; and in finding such facts in regard thereto as are stated in the sixth finding by the referee. While the plaintiffs were not in a situation to rely upon such fraud for the purpose of avoiding the assignment, (Kennedy v. Thorp, 51 N. Y. 174,) the acts and declarations of the assignor before and at the time of the assignment were legitimate facts upon the question of his intent in making the assignment, and giving the preferences therein mentioned, (McEntee v. Steam-Boat Co., 45 N. Y. 35; Peck v. Crouse, 46 Barb. 151.) Upon the whole evidence before the referee, he has found as a matter of fact that the general assignment executed by George Beltz, February 21, 1885, was "a part of a plan to hinder, delay, and defraud creditors of George Beltz, including the plaintiffs in this action, and to hinder, delay, and defraud them;" and thereafter he found as a conclusion of law that the assignment "referred to in the complaint herein was and is fraudulent and void against these plaintiffs, and should be set aside." We think the referee was authorized by the evidence before him to find as a matter of fact that the assignment was made with intent to hinder and delay creditors, and was fraudulent and void. We think his conclusion of law upon the facts found is correct. Judgment affirmed, with costs.

MERWIN, J., concurs.

MARTIN, J., (dissenting.) This action was in the nature of a creditors' bill, brought to set aside a general assignment for the benefit of creditors, made by the defendant George Beltz to the defendant Elias Irion. The action was based on the ground that such assignment was fraudulent as to creditors. The plaintiffs' allegations of fraud were that, by such assignment, certain fictitious debts were preferred; that the defendant Beltz secretly withdrew large portions of his assets, diverted them from the payment of his just debts, placed them beyond the reach of his creditors, without any valid consideration, and transferred a large portion of his assets to his son and relatives for his own use and benefit; and that he purchased large quantities of goods with an intent to cheat and defraud his creditors, with a view of including them in his assignment for the purpose of paying fraudulent creditors, and making fraudulent preferences under such assignment. The learned referee found that the assignment was fraudulent, and should be set aside.

The important question in this case is whether the evidence was sufficient to sustain the finding of the referee upon that question. The evidence shows that in 1866 the defendant George Beltz and one Reuss wig formed a copart

nership for the purpose of carrying on the business of merchant tailors at the city of Utica; that this business was continued by them until 1880, when that firm was dissolved, and the defendant Beltz purchased the interest of his partner in the business, and agreed to pay the debts of the firm. The debts of that firm were in excess of its assets. The defendant Beltz assumed the debts of the firm, as he testified, to preserve his good name, and because he wanted to continue the business, and keep his credit good. Upon making this purchase he at once commenced paying the debts of that firm, borrowing the money of his friends for that purpose, and using some of the funds of the firm of George Beltz & Son. All the debts of that firm were paid. After the dissolution of the firm of Beltz & Reuss wig, the defendant Beltz and his son Henry G. Beltz formed a copartnership for the purpose of carrying on the same business. Henry purchased a one-half interest in the stock, fixtures, accounts, and business which had become the property of his father, but did not assume or in any way become liable to pay the debts of the firm of Beltz & Reuss wig. He paid for such interest the sum of $2,150. This was paid by the surrender of a note of $1,000, and interest, amounting to $1,350, that he held against the firm of Beltz & Reusswig, which his father had agreed to pay, and a debt of $800 that his father owed him. The business was continued by George and Henry G. Beltz under the firm name of George Beltz & Son until January 10, 1884, when a disagreement arose between them as to the amount drawn out by the father, and as to employing a book-keeper, when, for that reason, the firm was dissolved. The father purchased the interest of his son for $2,500, and gave his notes therefor, which were preferred in his assignment. At that time Henry's interest in the firm exceeded the amount of such notes. The business was then continued by the defendant Beltz alone until February 21, 1885. During this time the defendant Beltz employed his son, who was a cutter, and who did the cutting for his father, and traveled some from place to place, taking measurements and orders for clothes. During the latter part of the time the business was carried on by George Beltz & Son, and after the son had sold his interest in the business to his father they purchased more goods for the business than they had previously. This was explained as being necessary to carry into execution their purpose to extend the business by taking orders in towns outside of the city where they were doing business. This explanation was in no way contradicted. On February 21, 1885, the defendant Beltz made a general assignment to the other defendant, and, among other claims, preferred the $2,500 in notes given his son for his interest in the business of George Beltz & Son. Upon making such assignment the defendant Beltz delivered to his assignee all the property in his possession, even to his watch. The assignee took possession of the same, and has since then duly proceeded with the administration of his trust.

Upon these facts it is difficult for me to discover any ground upon which this judgment can be upheld. I have been unable to find any evidence which would sustain the claim that the defendant Beltz has preferred any fictitious debt. The only pretense that this allegation in the complaint has been proved is based on the claim that the debt of Henry Beltz was fictitious because the firm of Beltz & Reuss wig were insolvent; and that when he purchased of his father a half interest in the stock, fixtures, accounts, and business which had formerly belonged to that firm, he acquired nothing by such purchase, and, consequently, had nothing which he could transfer to his father for the notes which were preferred. I cannot assent to this proposition, either as one of fact or law. The undisputed proof is that, after the father had purchased the interest of his partner in the business and assets of the firm of Beltz & Reuss wig, he sold to his son a half interest in the stock, fixtures, accounts, and business, for which he surrendered to his father a note for $1,000 and interest, and canceled a debt of $800. That these debts were owing by

the father to the son is undisputed. The son assumed none of the debts of Beltz & Reuss wig. There is no evidence that this sale was not made in good faith; hence I am of the opinion that the son obtained a good and valid title to one-half of the stock, fixtures, accounts, and business then owned by his father, and which was formerly owned by the firm of Beltz & Reuss wig. Assuming, then, that the son was the owner of a one-half interest in the business and assets, and as the proof shows that the firm of G. Beltz & Son was not insolvent, but that his interest at the time he sold it to his father was greater than the amount he received, it is impossible for me to see how it can be properly claimed that this debt to the son was fictitious. I do not think the judgment can be upheld on that ground.

I have found no evidence that would justify a finding that the defendant Beltz at any time secretly withdrew any portion of his assets, and placed them beyond the reach of his creditors, without valid consideration. Indeed, there seems to be no claim at this time that that allegation in the complaint has been established, unless as to the debt of the son, which has already been considered. Nor do I think the evidence sufficient to sustain the judgment on the ground that the defendant Beltz fraudulently purchased goods with the intent of including them in his assignment, to pay debts fraudulently preferred. The purpose of making the increased purchase was fully explained, both by the defendant Beltz and his son; and there are no circumstances that I can recall which tend to show that such explanation is not a true one. It is not claimed that he purchased any goods that were not strictly in the line of his business, nor that he purchased an amount greater than was necessary to properly conduct it, when extended, as he proposed to do, by canvassing the surrounding towns for orders for clothes. Moreover, it is doubtful, to say the least, if the plaintiffs could in any way avail themselves of any fraud in making purchases, if it existed. "Where a vendor from whom goods have been obtained by fraud, instead of disaffirming the contract of sale, affirms it by bringing suit thereon, and prosecuting it to judgment, neither he, nor a receiver appointed in supplementary proceedings instituted upon such judgment, can set up the fraud in the sale, for the purpose of defeating an assignment of the property made by the vendee for the benefit of creditors, although the assignment was made in furtherance of the fraud, with full notice thereof upon the part of the assignee." Kennedy v Thorp, 51 N. Y. 174.

A careful study of the evidence in this case has led me to the conclusion that it was insufficient to justify the finding of the referee that the assignment in question was fraudulent. As was said by FINCH, J., who delivered the opinion in the case of Shultz v. Hoagland, 85 N. Y 467: "The case furnishes no exception to the rule that fraud is to be proved, and not presumed. Grover v. Wakeman, 11 Wend. 188. It is seldom, however, that it can be directly proved, and usually is a deduction from other facts which naturally and logically indicate its existence. Such facts, nevertheless, must be of a character to warrant the inference. It is not enough that they are ambiguous, and just as consistent with innocence as with guilt. That would substitute suspicion as the equivalent of proof. They must not be, when taken together and aggregated, when interlinked and put in proper relation to each other, consistent with an honest intent. If they are, the proof of fraud is wanting." In Morris v. Talcott, 96 N. Y. 107, RUGER, C. J., states the rule as to proof of fraud as follows: "A party, therefore, relying upon the establishment of a cause of action, or a right to a remedy, against another, based upon the alleged commission of a fraud by such person, must show affirmatively facts and circumstances necessarily tending to establish a probability of guilt, in order to maintain his claim. When the evidence is capable of an interpretation which makes it equally as consistent with the innocence of the accused party as with that of his guilt, the meaning must be ascribed to it which accords with his innocence, rather than that which imputes to

him a criminal intent. It is well settled in this state that an intent to defraud cannot be imputed to a party who contracts a debt knowing that he is insolvent, merely from the fact of his insolvency, and his omission upon a purchase of property upon credit to disclose such condition to his vendor. Nichols v. Pinner, 18 N. Y. 295; Nichols v. Michael, 23 N. Y. 264; Wright v. Brown, 67 N. Y. 9; Bank v. Bogart, 81 N. Y. 108. A condition of known insolvency on the part of an intending purchaser of property, accompanied with an intention to acquire the property of his vendor without paying for it, constitutes such a fraud as will make the vendee liable to arrest in an action for the debt; but the intention not to pay can no more be inferred from the mere fact of insolvency than the fact of insolvency can be inferred from the existence of an intention not to pay. In either case it is essential that the necessary facts be made out by competent evidence." In the case at bar it does not seem to me that the facts proved naturally or logically indicate the existence of fraud. They are at least as consistent with innocence and an honest purpose as with fraud. The evidence may possibly arouse a suspicion, but it does not establish fraud. Following the principle of the authorities cited, I am of the opinion that the evidence in this case was insufficient to sustain the findings of the referee, and that the judgment should be reversed.

WAIT et al. v. CERQUA et al.

(Supreme Court, General Term, Second Department. May 18, 1889.)

VENDOR ANd Vendee-TITLE-POWERS OF EXECUTRIX.

Where a will gives the executrix "power and authority to sell, dispose of, and convey all and any portion of " testator's estate, a deed executed by the executrix will convey a good title, and the fact that there has been no advertisement for claims or accounting is immaterial.

Action by Harriet M. Wait, as executrix of the will of W. Howard Wait, deceased, and others, against Sarah Ann Cerqua and A. E. Cerqua, to compel defendants to take title to land.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

BARNARD, P. J. This will appoints the wife and another executors. The widow only has qualified and acted as executrix. The income of $5,000 is given to each of the sons, Howard St. C. Wait and Erskine L. Wait. The income of each fund is to each during life, and to the issue of each, respectively, at the death of either son. If one of the sons dies without issue, the $5,000 he had enjoyed the use of is to be paid to the surviving brother. If he left issue, the $5,000 is to go to his issue. Of the rest and residue of the estate the widow is to have the use during life. At her death it is to go in the same way. If either son shall have died leaving issue, one share shall go absolutely to the issue, so that the property shall vest in some of them at the end of two lives; the sum of $5,000 being held in suspense by the will only for the life of the two sons, and the portion of the estate bequeathed to the mother being held in suspense for the life of the mother and one son. The right of this executrix to sell the real estate or any the testator may have left under this will cannot be disputed as a power to sell and convey, as there are no restrictions in the will by way of charge or limitation or otherwise. The fifth section says: "Power and authority to sell, dispose of, and convey all and any portion of said estate," etc. The case of Chamberlain v. Taylor, 105 N. Y. 187, 11 N. E. Rep. 625, has no bearing upon this case, where there is a failure to make a valid disposition of the property, involving the primary disposition of nearly the whole estate. The case of Insurance Co. v. Shipman, 108 N. Y. 19, 15 N. E. Rep. 58, is in line with the view taken of the case upon the main principle of it. The will gives the authority to sell and convey the real estate; and by the conveyance tendered to the purchaser in this action a good

and valid title is made in fee-simple to the purchasers, provided the testator had such at his decease. There is no contention upon this point. The fact that there has been no accounting, or that there has been no advertisement for claims, has no bearing. The executrix has full power to sell, in order to carry out a valid will, and she but acts in the line of her duty, so far as shown. The purchaser has no excuse upon the facts shown, for not completing her purchase.

WILLIAMS v. AYLESWORTH.

(Supreme Court, General Term, Fourth Department. September, 1889.) EVIDENCE-PAROL, TO VARY WRITING.

In an action on a note on which is indorsed, "I guaranty the collection of the within note, " evidence is not admissible to prove that defendant, at the time of indorsement, verbally warranted that the note was good, and would be paid at maturity. MARTIN, J., dissenting.

Appeal from circuit court.

Action by Hanson Williams against Eliphalet Ayles worth on the following note: "$100.00. Peterboro, April 10th, 1875. Five years from date we jointly and severally promise to pay E. Ayles worth, or bearer, the sum of one hundred dollars, with annual interest, for value received. GURNSEY HARDY. BERTRAM HARDY." Indorsed: "Peterboro, March 9th, 1879. I guaranty the collection of the within note. E. AYLESWORTH." Judgment was rendered for plaintiff, and defendant appeals.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ. Smith & Haskell, for appellant. Tracy, McLennan & Ayling, for respondent.

MERWIN, J. The plaintiff was allowed to prove, in substance, that the defendant verbally warranted that the note was good, and would be paid at maturity. This varied the written agreement represented by the written guaranty of collection. In Van Brunt v. Day, 81 N. Y. 251, a parol agreement was allowed to be shown, because it did not qualify or change the defendant's written guaranty. In the present case it would, and therefore would be inadmissible. There is, I think, as the case stands, no question of fraud in it. That question is not presented by the pleadings, and was not submitted to the jury. In the absence of fraud, the writing cannot be contradicted or varied. The plaintiff had, as the court held, lost by his laches his remedy on the written guaranty. He should not, in order to avoid this result, be allowed to prove an inconsistent parol agreement on the same subject. Upon this ground I favor a reversal.

HARDIN, P. J., concurs. For opinion, see 8 N. Y. Supp. 113.

MARTIN, J., (dissenting.) On the 10th and 28th of March, 1879, the defendant purchased of the plaintiff certain personal property, for which he agreed to pay $96.25. By the terms of the sale he was to pay the money for the property thus purchased, or give his note for a short time. The property was delivered to the defendant in March, 1879. In the forepart of April, and after such sale and delivery, the parties entered into an arrangement whereby the defendant delivered to the plaintiff a note made by Gurnsey and Bertram Hardy, given to secure the payment of the sum of $100; the defendant guarantying the collection of the same. The plaintiff paid the defendant $3.75, the difference between the amount of such debt and note. Whether the plaintiff accepted this note and guaranty in payment of defendant's indebtedness to him, or whether it was taken by the plaintiff conditionally, and upon the representation and warranty of the defendant that the makers were good, and that one of them was the owner of an unincumbered farm, was the