BANDMANN v. JONES. (Supreme Court, General Term, First Department. November 7, 1889.) DEPOSITIONS-OF PARTY-APPLICATION. An application by defendant to examine plaintiff, in an action for libel, before trial, under Code Civil Proc. N. Y. §§ 870, 872, relating to taking depositions of parties before trial, and the contents of the affidavit therefor, which states that the answer intended to be made is the general denial, and that the facts set forth in the alleged libel are true, and that it is necessary to examine plaintiff concerning these facts, without averring that they are not within defendant's knowledge, or readily attainable by him, is insufficient. Appeal from special term, New York county. Action for libel by Daniel E. Bandmann against George Jones, as treasurer of the New York Times, a joint-stock association. Defendant obtained an order for the examination of plaintiff before trial, which plaintiff moved to vacate. His motion was denied, and he appeals. Code Civil Proc. N. Y. § 870, relates to taking the deposition of a party to an action before trial, and section 872 specifies what shall be the contents of the affidavit for such examination. Argued before VAN BRUNT, P. J., and BRADY and DANIELS, JJ. DANIELS, J. The action has been brought for the publication of an alleged libel in the New York Times, and the order was made for the examination of the plaintiff, upon the statement that his testimony is material and necessary for the defendant in the defense of the action, and to enable him to prepare his answer. The facts concerning which it is stated to be necessary to examine the plaintiff are those which are set forth in the aHeged libelous publication, and the answer intended to be made is stated to be that of a general denial, and that the facts set forth in the alleged publication are true. But neither of these statements, nor all of them taken together, indicate the existence of any necessity for examining the plaintiff as a witness in the action before trial. It has not been set forth that the facts upon which the answer is designed to be made are not at present within the knowledge of or otherwise readily attainable by the defendant. The presumption, on the contrary, is that they must be within his knowledge, or had been obtained by him, or others in the employment of the association, before the time when this publication was made. From the statement made in his own affidavit, and that of the attorney added to it, they can be accepted as entirely truthful and reliable, and still no probable necessity for the examination of the plaintiff in this manner has been disclosed. The defendant certainly has the ability to deny the allegations in the plaintiff's complaint without such an examination, and so if the facts have come to his information justifying the publication he may also allege the truth of the publication, without in any manner being dependent upon evidence to be derived from the plaintiff. If this cannot be done, the least that can be expected is that the affidavits should disclose such a state of facts. There can be no difficulty, in an application of this description, for the party, in whose behalf it may be made, to state why it becomes necessary to examine the opposite party; and, if the applicant has not already the information to be acquired, that readily admits of a distinct statement to that effect. It was equally so as to the necessity of acquiring further information for the purposes of the proposed pleadings, or to prepare the case for trial. And the additional statement may also readily be made where the facts will justify it, showing the party's dependence upon evidence to be procured in this manner for the attainment of one or the other of these objects. As much as that is required by the authorities applicable to applications of this character. It is true that in the case of Herbage v. City of Utica, 109 N. Y. 81, 16 N. E. Rep. 62, the broadest possible discretion has been stated to exist for the v.7N.Y.s.no.12-37 making of this class of orders. But this decision does not appear to be in harmony with what was decided in the same court in Jenkins v. Putnam, 106 N. Y. 272, 12 N. E. Rep. 613, where it was stated in the opinion followed by the court that "the affidavit is required to disclose the nature of the action, and to set forth that the testimony of the party is material and necessary, and the judge must be able to see from the facts stated that the testimony is material and necessary. If from the nature of the action and the other facts disclosed he can see that the examination is not necessary for the party seeking it, then it cannot be supposed that it was the legislative intent that he should be obliged, nevertheless, to make the order. Here there is no allegation in the affidavit showing that the facts were not perfectly known to the defendant, or that it was important for him to have the testimony of the plaintiff before the trial, or that he had any reason to apprehend that he could not have his examination at the trial." The construction in this manner to be placed upon the provisions of the Code are in strict harmony with the decisions which have generally been made by this court upon the same subject, and seem to meet the necessity of the case, rather than the wide and unlimited range of discretion mentioned in the later authority. In Strakosch v. Publishing Co., 6 N. Y. Supp. 246, an application, supported by affidavits substantially the same as those used in this action, was held not to be sufficiently sustained for the support of an order for the examination of the plaintiff. And Balcom v. Adams, 2 N. Y. Supp. 255, supports this construction of the law, and so does Kirkland v. Moss, 11 Abb. N. C. 421; Weston v. Reich, 1 N. Y. Supp. 412; and Williams v. Folsom, 5 N. Y. Supp. 211. And Dudley v. Publishing Co., 6 N. Y. Supp. 388, in no manner extends these rulings; for there it was shown to have become necessary, by the examination of the plaintiff, to identify the letter which was published with the one written by him. Under the rule which has been settled and followed, although not uniformly, yet by most of the authorities, the order which has been made in this case cannot be sustained, but it should be reversed, with the usual costs and disbursements. All concur. In re FLORANCE'S WILL. (Supreme Court, General Term, First Department. November 7, 1889.) DOMICILE OF WIFE-SEPARATION FROM HUSBAND. A wife who lives apart from her husband for 12 years by mutual consent, during which time their children live with her, and are wholly supported by her, the husband living in another state, and contributing nothing to the support of the wife or children, acquires a domicile in the state where she lives, so that the husband's rights in her property at her decease are governed by the laws of that state, and not of the state where the husband resides. Appeal from surrogate's court, New York county. Motion to vacate the probate of the will of Rosalie Florance. The motion was made by the husband of deceased, who appeals from an order denying the same. Argued before VAN BRUNT, P. J., and DANIELS and BARRETT, JJ. George H. Yeaman, for appellants. Chas. E. Miller, for executors, respondents. Edward W. Sheldon, for United States Trust Company, as trustee under will. Meyer Butzel, special guardian, pro se. VAN BRUNT, P. J. This application is a renewal of one made in June, 1888, pursuant to leave duly given. It appears from the papers before the learned surrogate that the petitioner and appellant resides in the city of Philadelphia, state of Pennsylvania, and that he was the husband of Rosalie Florance, who died on October 12, 1887, in Europe. That in November, 1887, the last will and testament of said Rosalie was filed for probate with the surrogate of New York, and at the same time a petition was presented alleging that she had been previous to her death a resident of the county of New York. A citation was duly issued to and served upon all persons entitled to notice, including the petitioner, to attend the probate of the will. That the petitioner neglected to appear, and the said will was admitted to probate, and letters testamentary issued thereon. The petitioner stated in his petition that he did not attend the probate of the will, because he did not suppose that any of his rights would be affected thereby, and that within a week or so after said probate the petitioner learned that said will had been improperly probated, in that the deceased was not a resident of New York at the time of her death, and he was advised by counsel that steps should be taken to modify and correct said probate; that thereupon, on June 21, 1888, a petition was presented to the surrogate's court, upon which a citation was issued, and such proceedings had that in October, 1888, the motion was denied; and that pursuant to leave granted the petition in question was presented in December, 1888. It further appeared that the petitioner and said Rosalie were married in the year 1860, and in the city of New York, where she was born, and had always resided up to the time of her marriage to the petitioner. That the petitioner and his said wife then went to Philadelphia to live, and resided there until 1873, when they broke up housekeeping, and resided in various places. In the fall of 1875 the petitioner and his wife finally separated from one another, he making his home in Philadelphia, and she, with three children, in New York; she taking care of and maintaining them. The said Rosalie, from her savings of some property left her, accumulated some $60,000, which comprised her estate at her death. The petitioner claims that, as no legal separation had taken place between them, although they had lived apart for 12 years, the residence of his wife was that of her husband, viz., Pennsylvania, and that by the laws of said state he was entitled to share in her estate, which would not be the case, were she a resident of New York. The whole claim of the plaintiff is based upon the old rule that a woman in marriage acquires the domicile of her husband, and changes it with him. It is admitted that a wife may procure a separate domicile for purposes of divorce, but it seems to be claimed that such domicile cannot be procured for any other purpose. The old rule in reference to a married woman's domicile cannot certainly prevail, in view of the rights which are recognized to be hers by the statutes. The property relations between husband and wife have been entirely changed since the rule in question has obtained, and the reasons for the rule no longer exists. The wife is now a distinct legal entity, having in the disposition of her property all the rights, and even more, than a husband has ever possessed, and the husband has no control whatever over her movements or her disposition of her property. In the case at bar it appears that, in 1875, the petitioner and his wife agreed to separate; she to take their children and maintain them. They did separate, he going to Philadelphia, and she living in New York, which had been her home before marriage, and supporting their children from her own means. There is no pretense that the petitioner ever contributed a cent to the support of his wife or their children since 1875, or offered to do so, and the best that he can say in his petition is that he never refused to provide a home for his said wife or her children in the city of Philadelphia. Probably he was never asked to do so, and consequently did not refuse; but he nowhere alleges that he offered to provide a home for his wife and children anywhere, and probably he did not. They had agreed to live separated, and she had agreed to support herself and her children. She then, by and with his consent, acquired a domicile in New York; made that her home, and that of her children; and certainly, if she was enough of a resident to institute divorce proceedings, as is conceded, she is enough of a resident to leave her property to her children, and to be protected from the claim of a husband with whom she had not lived for 12 years, and who has not during that time either contributed or offered to contribute to her support or to that of their children, and who desires now, under a legal fiction, to take away from his own children a portion of their mother's inheritance. The motion was decided correctly by the learned surrogate, and the order appealed from should be affirmed, with costs to each of the parties appearing as respondents. All concur. STARR v. STARR et al. (Supreme Court, General Term, First Department. November 7, 1889.) 1. WILLS-CONSTRUCTION-RENTS OF LAND. A testator bequeathed to his wife, for life, one-third of the use and income of his land, without alluding to taxes and other expenses, and directed his executors to lease the remaining two-thirds, and out of the rents "to pay all taxes, expenses, and repairs, and all other charges thereon," and to divide the residue between his children, for life, "and, after their death, I do devise and bequeath the same to their heirs, in fee, forever. " Held, that the widow was entitled to one-third of the rents and profits, undiminished by taxes or other expenses. 2. SAME-DEVISE IN LIEU of Dower. The devise of one-third of the rents and profits of the land to testator's wife will be deemed in lieu of dower, as it would otherwise partly defeat the disposition made by the will of the rents and profits of the other two-thirds. 3. ESTOPPEL-IN PAIS-VOLUNTARY PAYMENT. Where, before suit, plaintiff agreed with four of the children to relinquish her claim of dower, in consideration that the other parties acknowledge her right to one-third of the gross profits of the land, and thereafter the money is voluntarily paid to and received by plaintiff, under a claim of right, the parties to the agree ment are estopped from recovering money respectively claimed or paid under it. Appeal from special term, New York county. • Action by Nathan S. Starr against Sarah M. Starr and others for the partition of two parcels of land. From an interlocutory and a final judgment Sarah M. Starr appeals. Argued before VAN BRUNT, P. J., and BARRETT and DANIELS, JJ. Albert Mathews, for appellant. Theodore H. Silkman and Frederick H. Mann, for respondent. DANIELS, J. The plaintiff's right to maintain the action for the partition and sale of the two parcels of real estate described in the judgment has not been questioned. But, as a part of the judgment which has been recovered, the defendant has been declared to be liable for moneys received by her as a tenant for life, and which she has been required in part to refund to the plaintiff, and in part to other defendants in the action. These moneys for which she has been held liable represent taxes and other charges upon one-third of the two parcels of real estate. They were owned by her husband at the time of his decease. He left a will, including in the fourth and sixth paragraphs a disposition of these parcels of land. By these paragraphs it was declared: "Fourth. I give and bequeath to my wife, Sarah Maria, the use and income of one third part of my house and lot of land, situate and lying in the city of New York, and known as number seven Great Jones street; also, one-third of the use and income of my store and lot of land in the city of New York, and known as number five Barclay street, during her natural life. Sixth. I authorize and direct my said executors, or such of them as shall take upon themselves the execution of this will, the survivor or survivors of them, to lease or rent that portion of my real estate not heretofore devised, being twothirds of my house and lot of land known as number seven Great Jones street, also my store and lot of land known as number five Barclay street, from time to time to collect the rents and income thereof, to pay all taxes, expenses, and repairs, and all other charges thereon, and to divide the residue of the income thereof, and pay the same in equal portions to my five children, Nathan S. Starr, Harriet W. Barry, Zalomon W. Starr, Mary E. Starr, Frederick A. Starr, during their natural lives; and after their death I do devise and be queath the same to their heirs, in fee, forever." And the persons in the management of the property, under the authority of the executor, paid over to the defendant, as the widow, one-third of the gross rents or profits of these two parcels of land. It was held at the trial that this was an unauthorized disposition of such proceeds, so far as taxes and the expenses of necessary repairs were paid upon this one-third; and that for the amounts received by her, to this extent, she should be held accountable to the other parties who, by the sixth paragraph of the will, were interested in the estate. But in the fourth paragraph the use and income of one-third of these parcels of land were unqualifiedly devised to the widow. It is true, if this devise stood by itself, and was all that was contained in the will relative to her life-estate, that she might legally be obliged to bear the necessary expenses of keeping her one-third of the property in repair, and of paying the taxes and assessments upon that third. But by the sixth paragraph the testator appears to have had this subject particularly in mind. His attention was directed to these charges, and to the propriety of making a provision for their payment in the will; and, if he had been disposed to subject this third to the payment of any part of these charges, it is reasonable to suppose that he would have so declared in the fourth paragraph of his will. But he failed to do that, or to make any allusion whatever to this subject. That was reserved for the sixth paragraph, by which the other two-thirds of the rents and profits of these parcels of land were directed to be disposed of; and by the directions which he then gave, his executors, or the survivor of them, were required, out of the rents and income of the other two-thirds of the land, to pay all taxes, expenses, and repairs, and all other charges thereon, and to divide the residue of the income thereof among his children. His intention was not clearly expressed by the employment of this language, as it was used. But it was sufficiently so to support the inference that the taxes, expenses, and repairs were not intended to be divided, but were to be wholly paid out of the proceeds of the rents and profits of this two-thirds of the land. If that had not been the testator's design, it is reasonable to believe that a direction concerning this subject would have been inserted in the fourth paragraph of the will. Or if it had been the intention to leave the burden of taxes and repairs on the property as that should be imposed upon it by law, then it may be presumed that no reference whatever to the payment of taxes and expenses would have been inserted in any part of the will. That, however, was not his design; but it was to provide for the payment of taxes and expenses out of the income of the property. And from that income his direction was, to his executors, to pay all taxes, expenses, and repairs, and charges thereon. Literally, it is true, this would confine the payments to the taxes and expenses of the two-thirds. But the language employed by the testator is not required to be taken and construed literally, where, from other parts of the will, and the objects he probably had in his mind, such a construction would not be warranted. And, in this instance, the circumince that he gave to his widow, without qualification, the use and income of one-third of this property, and confined his directions concerning the payment of taxes and expenses to the income of the other two-thirds, are indications that he intended she should be allowed to receive one-third of the gross amount annually yielded by the land, and that the taxes and expenses should be paid from the other twothirds. This is confirmed by the final direction, that after the decease of his children he devised and bequeathed the property to their heirs, in fee, forever. This devise he could not have intended to restrict to the two-thirds previously mentioned in the paragraph. His purpose was to dispose of his estate by his will; and, in conformity with that purpose, this final clause of the paragraph should be construed to include the entire estate in these parcels of land, and to entitle the heirs of his children, not only to the two-thirds reserved for their benefit, but also to the one-third in which he created the life-estate for the |