namely Elias B., William L., Elizabeth and Amos, each one-fourth. In case my said daughter, Hannah A., survives my said wife, then from and after the death of my wife I give to my daughter, Hannah A., the use of four thousand five hundred dollars during her life.

"Seventh. I order and empower my executors to sell and dispose of my meadow land as soon as convenient after my death, and the money arising from such sale I give to my said four children, Elias B., William L., Elizabeth and Amos.

"Eighth. If my house and lands in Canal street are not sold during the lifetime of my wife, then at her death I order and empower my executors to sell and dispose of the same at such time after said event as they deem proper.

"All I have herein given to my wife is in lieu of dower and of all other claims.

"Ninth. All the rest, residue and remainder of my estate I give and bequeath to my said four children, namely, Elias B., William L., Elizabeth Hendrickson and Amos, equally between them; and in case of the death of either of them leaving issue before either of the different parts thereof as hereinbefore mentioned can be divided, then such issue to take the share or part the parent would have been entitled to if living; if without issue, then the survivors to take."

The material facts are stated in the opin

ion.

John Fleming, for appellant:

Elias B. Denton, having survived the testator, became absolutely vested of a one-fourth interest. Livingston v. Green, 52 N. Y. 118; Embury v. Sheldon, 68 Id. 235: Quackenboss v. Kingsland, 102 id. 128; Vandezee v. Slingerland, 103 Id. 47; Van Zandt Case, 105 id. 89; Freeman v. Coit, 96 Id. 68; Clarke v. Leupp, 88 id. 231.

Ellas B. survived the testator the utmost period fixed in the will, viz.: the division of either of the different parts, and so his share absolutely vested in him. Chrystie v. Phyfe, 19 N. Y. 350; Bedell v. Guyon, 12 Hun, 396; In re Mahan, 98 N. Y. 376; Kelly v. Kelly, 61 Id.

47.

The gift over contained in the residuary clause of event of the be

fore the final settlement of the estate fatither of the residuary legatees to the issue of such legatee, or in default thereof, to the survivors, is valid and should be given effect. Hennessey v. Patterson, 85 N. Y. 91: Quinn v. brook, 54 Id. 83; Wood v. Mitcham, 92 Id. 375; Knowlton v. Atkins, 56 Hun, 408.

Elias B.'s Interest, under the residuary clause, In the property covered by the life estates, was contingent and lapsed upon his death pending the running of those estates. Magill v. McMillan, 23 Hun, 193: Toder v. Hatfield, 71 N. Y.

92: Teed v. Morton, 60 Id. 502: Vincent v. Newhouse, 83 id. 505; Gilman v. Reddington, 24 id.

Maynard, J. This appeal involves the construction of the ninth or residuary clause of the will of Amos Denton, who died in 1857 and who left surviving him a widow, three sons, a married and an unmarried daughter.

By the clause in question he gave the residue of his estate to the three sons and the married daughter, to be divided equally between them, and added this paragraph, which has given rise to the present controversy; "In case of the death of either of them, leaving issue before either of the different parts thereof as hereinbefore mentioned can be divided, then such issue to take the share or part the parent would have been entitled to if living; if without issue, then the survivors to take." "The different parts" here intended manifestly have reference ex-[*432 clusively to the residuary estate, and the appropriateness of the term is at once apparent, if we consider the other provisions of the instrument. Under the scheme of the will the testator evidently contemplated a residue divisible into at least three parts and distributable at three different periods of time. If the personal estate was sufficient to pay debts and expenses and a legacy of five hundred dollars to one of the sons, and to create a fund of eight thousand five hundred dollars for the use of his wife and unmarried daughter, the remainder would be at once divisible among the residuary legatees. If the wife died before the unmarried daughter, four thousand dollars and the proceeds of the sale of the homestead would be released and fall into the residuary estate and become subject to distribution; and upon the death of the unmarried daughter, if she survived her mother, there would be the further sum of forty-five hundred dollars to be finally distributed. The order of distribution and the sums available at different times for that purpose might be varied in the event of the wife surviving the daughter, but the ultimate disposition of the estate would not be materially changed. But when either one of these parts was capable of division, it might happen that one or more of the legatees would not be living and the concurrence of such a contingency was specially provided for. It is clear that the testator intended to limit the distribution of his residuary estate to the issue of his own blood, and in the clause which he added and which we have quoted above, he has expressed such intertion in language so plain that we think it is susceptible of no other reasonable construction. If at the time any part of the residue could be divided, there was the issue of a deceased legatee surviving, such issue would take the share given to such legatee, otherwise the surviving legatees would take the whole of such part.

407

One of the sons, Elias B. Denton, died in 1878, without leaving any issue surviving him. The appellant here is his widow, to whom he gave by will his entire estate, and who insists that, as his legatee, she is entitled to one fourth of the residuary estate created by his father's will.

*433] *The unmarried daughter died in 1879, and the widow of the testator in 1887. The executor instituted proceedings for a final accounting and distribution of the estate after her death, upon which it appeared that the property remaining for distribution consisted of the proceeds of the sale of the homestead, and the principal and accrued interest of the fund of seventy-five hundred dollars, which remained for the use of the widow after the death of the unmarried daughter.

Elias B. Denton had six children born to him, all of whom predeceased him, and four of whom died in the lifetime of the testator, and when the will was executed he had no children living.

The surrogate held that the residuary legacy to Elias B. was not defeated by his death without issue surviving; that the contingency upon which his estate depended was the birth of issue, and not its survivorship, and that the condition attached to his legacy was satisfied by the proof of the existence of issue in his lifetime, in other words, that the phrase "without leaving issue," was equivalent, in the connection in which it was used, to the phrase, "without having had issue." He also held, that as the sor survived the period, when one of the parts of the residue might have been divided, d. the contingency had not occurred, upon the happening of which riod when one of the parts of the residue, was given to the surviving brothers and sister. The General Term, by a divided court, reversed the decree of the surrogate, and excluded the representatives of the deceased son from all participation in the distribution of the residuary estate.

The appellant's counsel invokes the rule of construction that when there is a bequest to one person absolutely, and, in case of his death without issue to another, the contingency referred to is a death in the lifetime of the testator. But this rule has only a limited operation, and cannot be extended to a case where a point of time is mentioned other than the death of the testator, to which the contingency can be referred, or to a case where a life estate intervenes, or where the context of the will contains language evinc*434] ing a contrary intent. Van *Derzee

finally determined upon which the contingency depends; and it is evident from the context that it was not his own death which the testator had in mind when he made the survivorship of the residuary legatee a condition, which must be shown to exist before he can be admitted to share in the distribution of the fund.

It would also be subversive of the manifest purpose of the testator to hold that if the legatee survived the time when but a single part of the residue could be divided, his right to t to share in the distribution of the subsequent parts became vested and indefeasible.

The term "either of the parts" is here used distributively, and is equivalent in meaning to each or every one of the parts. The condition is annexed to each part, and the testamentary plan, which seeks to preserve the estate in the family of the testator, is thus rendered consistent in scope, and rational in application. For the same reason we cannot adopt the suggestion, that the contingency in this case of death "without issue" is eliminated because it appears that Elias B. Denton had issue in his lifetime. The last clause of the proviso in the residuary paragraph, "if without issue, then the survivors to take" is an elliptical form of expression, and is antithetic to the first clause which relates to the time of the death of the son, and if fully written out, would be a declaration to the effect that "if either of my said children should die before either part of the residue of my estate can be divided, without leaving issue, then the surviving legatees shall take the share or portion of such part which the deceased legatee would have been entitled to if living."

Upon the modification of the surrogate's decree, the General *Term had discre-[*435 tionary power to determine whether the appellant here, should be allowed costs in the Surrogate's Court, and we have no jurisdic tion to review the exercise of its discretion.

The judgment appealed from must be affirmed, with costs to both parties to be paid out of the estate. All concur.

Judgment affirmed.

Cited in Re Baer, 147 N. Y. 354; Stokes v. Weston, 69 Hun, 611.

WHEELER v. SWEET.

701; Matter of N. Y. L. & W. R. R. Co. 105

soll, 127 N. Y. 472; Mead v. Mahen, 131 id.

255; Mullarkey v. Sullivan, 136 id. 227. All the circumstances which preclude the application of the rule exist in the present case. The contingency plainly refers to the time when each part of the residue becomes distributable; the life estate of the wife and daughter intervenes before the event can be

of judgment.

Error in instructing the jury upon a material point in the absence of plaintiffs and their counsel, upon its return into court for that purpose after having retired, is available on appeal either from an order refusing a new trial, where it is presented upon the case and exceptions on the motion, or from the judgment without any exception below.

A judgment against a sheriff by collusion is not conclusive, In a suit upon an indemnity bond, of the liability of the indemnitors.

A

PPEAL from judgment of the General Term of the Superior Court of Buffalo, entered upon an order made the second Monday of October, 1891, which affirmed a judgment in favor of defendants, entered upon a verdict and affirmed an order denying a motion for a new trial.

This action was brought by plaintiffs as assignees of an indemnity bond given by defendants to William W. Lawson, as sheriff of Erie county, by its terms indemnifying him against any judgment obtained against him for levying upon and selling property under execution against one Edson D. Shoemaker, issued upon a judgment recovered against him by the Third National Bank of

Buffalo. Plaintiffs claim under a chattel mortgage executed to them by Shoemaker. They obtained a judgment in an action for conversion against Lawson and his administrator. The bond in suit was thereupon assigned to them by said administrator.

The further material facts are stated in the opinion.

Spencer Clinton, for appellants:

There was no evidence that this judgment was recovered by fraud. People v. Cook, 8 Ν. Y. 51; 1 Story's Eq. Juris. § 186; Verplanck v. Van Buren, 76 N. Y. 247; Ross v. Wood, 75 id. 8; Ward v. Town of Southfield, 102 id. 287.

The court erred in instructing the jury erroneously in the absence of counsel for the par

tles. W. B. & L. Co. v. Mix, 51 N. Y. 558.

This case was tried by the judge upon a the ory Incompatible with any known rule of law. It was that a judgment regularly obtained after a full and fair trial between the original par

ties might be set aside by a jury. If a series of acts, innocent in their nature and not effective as a means of fraud, should be by them adjudged to indicate that the parties had made a fraudulent compact to procure the judgment. Schultz v. Hoagland, 85 N. Y. 464; Bernhelmer v. Rindskopf, 116 id. 428.

290; M. E. R. Co. v. M. R. Co., 14 Abb. (N. C.) 103; Webster v. Reid, 11 How. (U. S.) 437; Gaines v. Relf, 12 id. 539; Moses v. McDivitt 88 Ν. Υ. 62; Coleman v. Burr, 93 Id. 17; Roberts v. Vietor, 130 id. 585-600.

The defendants received no consideration for

executing the bond executed by them, and it having been executed over a year after the shersoldat, and the proper the had iff levied on in question

been indemnified by other parties for so doing, and over a year after the sheriff had been sued by the Wheelers for this property, the lack of consideration to support the undertaking of the defendants on this bond is fatal to this action. Vanderbilt v. Schreyer, 91 N. Y. 392; Ayres v. C. R. I. & P. R. Co., 52 Iowa, 478; Webber v. Blunt, 19 Wend. 188; Richardson v. Crandall, 48 N. Y. 360; Morton v. Campbell, 14 Abb. Ir. 414: Tolles v. Adee, 84 N. Y. 222; 91 id. 562. *The court fairly and charged the jury as to the law bearing upon collusive judgments, and as to the facts of the case. Caldwell v. N. J. S. Co., 47 N. Y. 282; Lesee v. Buchanan, 51 id. 492; Bank v. Westcott, 118 18. 473; Loeb v. Kellman, 83 Id. 601.

Andrews, Ch. J. We think the judgment and the order refusing to grant a new trial must be reversed for the reason that the trial judge, on the return of the jury into court for further instructions, erroneously and in the absence of the plaintiffs and their counsel instructed them that the question as to the validity of the chattel mortgage under which the plaintiffs claimed title to the property taken by the sheriff on the execution in favor of the Third National Bank was not material for their consideration in the disposition of the case. It obviously was a fact of great importance as bearing upon the defense that the judgment obtained by the plaintiffs in the action against Bartholmy, the administrator of the sheriff, was collusive and fraudulent.

It was properly conceded by the counsel for the defendants, on the argument, that this instruction was erroneous. But it was urged that, in the absence of an exception, the error was not available for the reversal of the judgment. In the case of Watertown Bank & Loan Co. v. Mix, 51 N. Y. 558, it ap

ents:

The judgment relied on by plaintiffs as a breach of defendants' bond, founded on

consent, where there was no legal liability, not a breach of defendants' bond, and the plaintiffs cannot recover in this action. Peck v. Ackin, 20 Wend. 605; Thompson v. Van Vechten, 27 N. Y. 568; Stewart v. Beale, Hun, 416; Dutcher v. Swartwood, 15 Id. 33; Stim son v. Wrigley, 86 N. Y. 332; Mandeville v. Avery, 124 id. 376.

been charged and had retired for consultation, returned an answer in writing to a written inquiry by the jury upon a material point, prejudicial to the plaintiff, and without the knowledge or consent of the plaintiff, or of its counsel. Subsequently, the plaintiff moved the judge at Special Term to set aside the verdict and grant a new trial for this error, which motion wasgranted. The defendant appealed to the General Term from the order of the Special Term, setting aside the verdict and granting a new trial, and the order was there reversed. The plaintiff thereupon appealed to this court from the order of reversal, and this court reversed the or

The judgment in question is no breach of defendants' bond, because it is a collusive judgment. Code Civ. Pro. § 765: Mandeville v. Reynolds, 68 N. Y. 528; 1 Black on Judgments,