(179 N.Y.S.) go to his children until they respectively became of age, at which time, in that event, or in the event of the death of the widow, they were to receive the principal. The executors and trustees named in the will died, and the plaintiffs, who are sons of the testator, were appointed by the Supreme Court to execute the remaining_trusts. The testator left a widow and seven children. The widow died on the 2d of March, 1918, without having remarried, and, all the children having then attained their majority, all trusts under the will terminated. It is conceded that the proper construction of the will is that, in the event of any child dying leaving issue, his issue should take the share to which their parent would have been entitled and, in the event that he left no issue, then such shares should go to the surviving brothers and sisters in equal proportions, provided there were no grandchildren who were the issue of a child of the testator who had survived him and predeceased the child who died without issue. The point in controversy is whether, on the death of a child of the testator without issue, the children of deceased brothers and sisters would take an interest in his share. The first death among the children of the testator following his demise was that of his son Seymour, who died without issue on the 20th of July, 1896. This concededly enlarged the respective interests of the surviving brothers and sisters, and their shares, which before were one-seventh each, thereupon became onesixth each. The next of his children to die was his daughter Harriet, who had intermarried with one Lichtenstein and died on the 25th of May, 1903, leaving two children, Harriet and Solomon B. The son is a defendant. The daughter died January 4, 1919, leaving a last will and testament, and her executors and husband, who was her sole devisee, are joined as defendants. The testator's son, Elbert, was the next to die, and he left no issue. He was survived by his two brothers, who are the plaintiffs, and by his brother, Lawrence M., and his sister, Florence B. Deitsch, who is a defendant, and by his nephew and niece, the children of his deceased sister. The question is: Did his share go in fifths to his surviving brothers and sister, his nephew and niece taking one-fifth, or did it go in fourths to the brothers and sister, to the exclusion of his nephew and niece. Lawrence M. died, likewise, without leaving issue, and the same point arises with respect to his share. It is claimed in behalf of the grandchild of the testator, and of the representatives of the deceased grandchild, that they took per stirpes in equal shares with their uncles and aunt the share and interest of each of their two uncles who died without issue, and, on the contrary, the surviving children of the testator claim that the grandchildren took no interest in the shares of their uncles. By paragraph 2 of the will, the testator gave the income of the residuary estate for life or until she remarried to his wife, subject to reductions by advances to his sons on their attaining their majority and to his daughters on their marrying. In the event that his widow remarried, he directed in the fifth paragraph of the will that the income of the residuary estate should be applied toward the support and education of the children in equal proportions, and that the surplus should be accumulated for them and by paragraph 6, he directed that in the event of the death or remarriage of the widow the share of each child with any accumulation be paid over on the child attaining the age of 21 years. Paragraph 7, upon which the point presented for decision hinges, is as follows: "Seventh. In case of the death of either of my children leaving lawful issue, the shares of such child shall be paid or applied, or accumulated to or for the benefit of such issue. If there be no such issue, the said share shall be paid and applied to and among my remaining children in equal proportions as provided with respect to their shares." It is quite clear, I think, that by the words "remaining children," as here used, the testator meant his children surviving the child dying without issue. See Lyons v. Ostrander, 167 N. Y. 135, 60 N. E. 334; Davies v. Davies, 129 App. Div. 379, 113 N. Y. Supp. 872, affirmed 197 N. Y. 598, 91 N. E. 1111. The learned counsel for the grandchildren concedes that under the general rule of construction, by which the word "children" is held not to include grandchildren unless there be found in the will some evidence of a contrary intention, his clients cannot take, unless the intention of the testator that they should take is found in the last seven words of said paragraph 7 (Matter of Truslow, 140 N. Y. 599, 35 N. E. 955; Matter of Pulis, 220 N. Y. 196, 115 N. E. 516; Matter of Phipard, 182 App. Div. 357, 169 N. Y. Supp. 554, affirmed 223 N. Y. 676, 119 N. E. 1072; Davies v. Davies, supra); but he argues that those words indicate that the testator intended that the grandchildren should take. I cannot agree with the reasons advanced for such a construction. As I view it, the clause on which the argument in behalf of the grandchildren is predicated does not relate to the proportions in which the children take, for that had already been specified; but it was, I think, intended rather to regulate the time and manner of their taking. Had it not been for these words, or words of similar import, it might well have been claimed that the share of the child dying without issue should thereupon be paid over immediately. It was, I think, to make it clear that such was not the intention of the testator that the clause was added, and the purpose thereof was to indicate the time and manner of the taking. In other words, he thereby intended to provide that his children should not take such a share immediately, but when they should receive their respective original shares, which as to the sons was in part by advancements on their attaining their majority, and as to both that they should take their respective shares with accumulations, if any, on their attaining their majority, provided their mother remarried or died. I am of opinion, therefore, that the grandchildren only took the interest that their parent had when she died. In determining the fractional interest to which each party in interest is entitled, I have found it convenient to divide the shares into 504ths. According to the views which I have expressed, each of the plaintiffs and the defendant Deitsch, their sister, take a 140/504 interest, and the grandson Lichtenstein and the defendant Fried, the devisee. (179 N.Y.S.) of the granddaughter, Harriet, each take 42/504 and judgment should be entered in favor of the plaintiffs accordingly, but without costs. All concur. (190 App. Div. 490) VALENTINE v. GONZALEZ. (Supreme Court, Appellate Division, First Department. January 16, 1920.) 1. LIBEL AND SLANDER 25-FURNISHING INFORMATION TO REPORTER IS CAUSING PUBLICATION. Where defendant furnished the information upon which a libel was based, and documents in support thereof, to a newspaper reporter, knowing that the latter intended to publish the story, he caused the defamatory matter to be published, though the reporter solicited the information, and defendant did not request that it be published. 2. ARREST 22-AFFIDAVIT HELD NOT TO SHOW NECESSITY FOR SUPPORTING AFFIDAVIT. An affidavit for the arrest of defendant in a libel suit, which alleged positively that defendant published or caused to be published the defamatory matter, which was not information of a nature that defendant could not have personally known, but later alleged that a reporter informed plaintiff of defendant's connection with the matter, does not need to be supported by an affidavit of the reporter, and did not warrant vacating order of arrest on ground that affidavit was insufficient, under Code Civ. Proc. § 557. 3. ARREST 22-IMPRACTICABILITY OF AFFIDAVIT FROM REPORTER OF NEWS PAPER PUBLISHING LIBEL APPARENT. In an action against one alleged to have caused the publication of a libelous article, securing a supporting affidavit for arrest from the reporter, who, with the newspaper which employed him, would also be liable for the publication, can safely be said to be impracticable. Appeal from Special Term, New York County. Action by Lincoln G. Valentine against Alfredo Gonzalez. From an order (178 N. Y. Supp. 289) granting defendant's motion to vacate an order of arrest, plaintiff appeals. Order reversed, motion denied, and order of arrest reinstated. Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and PHILBIN, JJ. Jerome, Rand & Kresel, of New York City (William Rand, of New York City, of counsel, and Samuel Ecker, of New York City, on the brief), for appellant. James L. Putnam, of New York City (Charles B. Brophy, of New York City, on the brief), for respondent. PHILBIN, J. Appeal by plaintiff from an order granting a motion to vacate an order of arrest. The action is for libel, and the charge is that on November 18, 1918, the defendant falsely and maliciously composed and published or caused to be published in the New York Herald and the New Orleans Picayune defamatory matter to the effect that plaintiff had prior to January 27, 1917, conspired with one Tinoco and others to foment a revolution and overthrow the constitutional government of Costa Rica. The learned Special Term vacated the order of For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes arrest upon the ground that the defendant did not publish or cause to be published the alleged defamatory matter. The order of arrest was obtained upon the complaint herein and the affidavit of the plaintiff. The order was made October 10, 1919, and fixed bail at $25,000, which was furnished. The complaint sets forth the alleged libel, and contains allegations usual in libel actions. The affidavit sets forth the composition and publication of the libel, and avers that plaintiff was informed by one Turner, a reporter for the New York Herald, in which the alleged libel appeared, that the matter was given by the defendant to Turner with the request that it be published in that newspaper. In support of the motion to vacate the order, the affidavits of Turner and the defendant were submitted. The former denied that defendant had requested the publication, and made the following statement, after saying he had never met defendant until some days before the publication: "Mr. Gonzalez gave me an appointment, and I called upon him at his apartment in New York, and discussed the said rumor and other Costa Rican matters. In the course of the conversation regarding such matters said Gonzalez showed me certain documents. I examined said documents, and told Mr. Gonzalez that I should like to use them for an article or articles on Costa Rica. I took some of said documents. A few days later I telephoned Mr. Gonzalez and requested him to deliver the rest of said documents to me, which he did." The rumor referred to related to the employment of William J. Bryan as counsel for the Costa Rican government by said Tinoco. The affiant then went on to say that, after examining the documents and conferring with other persons in reference to their authenticity, he wrote certain articles, one of which appeared in the Herald on November 18, 1918, which contained the matter complained of herein. The affiant further averred that the defendant did not request him to publish said article, nor was defendant the author thereof. In a later affidavit, Turner more definitely states that defendant did not request or suggest, directly or indirectly, that he should publish any part of the alleged libelous statement, or any extract from the material given him by defendant. The affidavit of defendant denies that he composed and published, or caused to be published, in said New York Herald, or the other newspaper referred to in the complaint, the said defamatory matter, or that it was published at his request in said newspaper. [1] We think upon these facts it was error to vacate the order of arrest on the ground that defendant had not published or caused to be published the defamatory matter. The learned Special Term in its opinion relied upon the case of Schoepflin v. Coffey, 162 N. Y. 12, 56 N. E. 502. In that case the evidence showed that the defendant orally defamed the plaintiff in the presence of two persons, who were reporters. They thereafter caused the defamatory matter to be printed in various newspapers. The court held that the defendant was not responsible for the voluntary and unjustifiable repetition, without his authority or request by others, over whom he had no control. It cannot be said in the case at bar that the matter complained of was published without defendant's authority. He was told by the reporter that the 'writings were going to be published in articles to be written by him, and on a second occasion even sent more documents to the reporter in (179 N.Y.S.) response to the latter's telephone message. The defendant not only knew that he was giving information to a reporter of a newspaper, but was advised before giving it that such information was requested for publication. Weston v. Weston, 83 App. Div. 520, 82 N. Y. Supp. 351. [2] It is urged by the respondent that the order of arrest was properly vacated, because the affidavit upon which it was procured was insufficient under section 557 of the Code of Civil Procedure. Attention is called to the fact that, while it is averred that the information as to the publication was derived from Turner, the affidavit of the latter is not annexed, nor any reason given for not doing so. The affidavit, upon which the order was obtained, does not apparently rely only upon Turner as to the publication. In the beginning of the affidavit it is averred that the defendant falsely and maliciously composed and published the libel in the Herald, and no reference is made to Turner. The allegation is not of such a nature as to make it obviously impossible that plaintiff personally acquired the knowledge upon which it is based. The reference to Turner occurs toward the close of the affidavit. It is stated that about February, 1919, Turner told plaintiff that defendant was the author of the defamatory matter published on November 18, 1918, and had transmitted it to the Herald with the request that it be published. If this part of the affidavit were eliminated, it would still appear that the plaintiff had stated a sufficient cause of action in the affidavit. [3] The complaint, also submitted upon the application for the order, likewise sets forth a cause of action. If an affidavit by Turner had been necessary, it is highly improbable plaintiff could have obtained it. If plaintiff was libeled, Turner's employer, the Herald, as well as himself, might be sued. The obtaining of such an affidavit may be safely said to be impracticable. The conclusion must be reached that the order of arrest should not have been vacated. The order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs, and the order of arrest reinstated. Order filed. All concur. (109 Misc. Rep. 306) WALDES et al. v. BASCH et al. (Supreme Court, Special Term, New York County. November, 1919.) 1. WAR 10 (2)-MOTION TO STAY ACTION PENDENTE BELLO BECAUSE PLAINTIFFS, ALIEN ENEMIES, HAVE NO CAPACITY TO SUE; PROPER REMEDY, Where an action is pending at the outbreak of belligerency, the proper procedure for raising the point as to plaintiffs' incapacity to sue, because they are alien enemies, is by a motion to stay or arrest the action pendente bello, as they had capacity when they sued, at which time their capacity would be judged. 2 WAR 10 (2)-DEMURRER FOR MISJOINDER WHERE SOME PARTIES PLAINTIFF ARE ALIEN ENEMIES JOINTLY OWNING THE CHOSE WITH OTHERS WHO ARE NOT; PROPER PROCEDURE. A demurrer for misjoinder is a proper procedure, where some parties are alien enemies and some are not, and the ownership of the chose For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |