Briggs et al. agt. Central National Bank. COURT OF APPEALS. JOHN F. BRIGGS et al. agt. THE CENTRAL NATIONAL BANK. Bills, notes and checks - When charging and crediting a check by a bank constitutes a payment, and renders itself liable for the amount as for a collection effected. Where defendant, a New York bank, received from one of its customers for collection, a check or draft drawn upon a bank in New Jersey, which bank had been for years the collecting agent of defendant under an arrangement that all collections made by the drawee should be credited to it in a collection account which was settled once a week (collections under this arrangement including paper drawn upon the drawee itself), and the check in question was charged to the defendant in this collection account: Held, That the drawee, under this arrangement, discharged the drawer and substituted itself as debtor to the defendant for the amount, and that the defendant must be regarded as having accepted the responsibility of the drawee upon its credit in the collection account as payment of the check; so that defendant is liable to plaintiff for the amount as for a collection effected. Decided June, 1882. THIS case was tried in the common pleas court, and a verdict directed by judge VAN BRunt. On appeal to the general term the judgment was affirmed (opinion of DALY, C. J.; VAN HOESEN and J. F. DALY, JJ., concurring, see 61 How., 250), where the facts of the case will be found. Blumensteil & Hirsch, for respondents. Alexander & Green, for appellants. RAPALLO, J.- In the case of Indig. agt. City Bank (80 N. Y., 100) it was decided that where a bank receives from one of its customers, for collection, a check or draft drawn Briggs et al. agt. Central National Bank. upon another bank at a distant place, and, for the purpose of collecting the paper, sends it by mail to the bank upon which it is drawn, with a request to remit the amount, the collecting bank, by so sending the paper to the drawee directly for payment, does not constitute the drawee its agent to receive the proceeds, and consequently does not become guarantor of the solvency of the drawee; and that in such a case, although the drawee has funds of the drawer of the paper and charges it to his account as paid, but fails to pay over to the collecting bank, the latter is not responsible to its customer for the amount, unless there has been some negligence. The point of the decision is that the mere act of presenting the paper for payment by mail instead of employing a messenger to present it does not constitute the drawee agent of the sender to receive or hold the proceeds. That case is sought to be applied to the present one, but the distinction between the cases is very obvious. The plaintiff here, for the purpose of establishing the agency of the drawee for the defendant (the collecting bank), does not rely upon the mere fact that the defendant sent the paper for payment direct to the drawee, but proved that the drawee was and had been, for fifteen years back, the collecting agent of the defendant, under an arrangement that all collections made by the drawee for the defendant should be credited to it in a collection account, which was settled once a week-viz.: every Tuesday; that the collections made under this arrangement embraced commercial paper on all banks and individuals in the state of New Jersey, including, therefore, paper drawn upon the drawee itself; that the check in question was charged up to the account of the drawer and credited by the drawee to the defendant in this collection account, and under the arrangement the defendant had no right to call upon the drawee for a settlement of this account until the Tuesday following. There can be no doubt that the drawee of the check had the right under this arrangement to discharge the drawer, and substitute itself as debtor to the defendant for the amount, Coster agt. Butler. and that it did so, and that the defendant must be regarded as having accepted the responsibility of the drawee upon its credit in the collection account as payment of the check. Under these circumstances the liability of the defendant to the plaintiff for the amount as for a collection effected is beyond question. The judgment should be affirmed. SUPREME COURT. HENRY A. COSTER, as substituted trustee, &c., agt. CHARLES E. BULTER, executor, &c., and others. Will-construction of — In whom and in what manner trust fund vests. The testator gave a certain sum to his executors in trust to invest and apply the income to the use of his son Daniel during his life. After his death one-half of said sum was directed to be divided equally among such of the testator's children as might then be alive, and "the heirs or legal representatives of any children or child now or then deceased, except the heirs or representatives of said Daniel, share and share alike" In case Daniel's wife should survive him the other half was to be held for her benefit, and upon her death or remarriage it should be equally divided among such of the testator's children as might then be alive (except the heirs or representatives of his son Daniel), share and share alike, per stirpes and not per capita : Held, that the trust fund in question, upon the death of Daniel, vested in testator's then living children, and the heirs or issue of his deceased children, per stirpes and not per capita. Special Term, June, 1882. Coles Morris, Billings & Cardozo, for plaintiff. Joseph H. Choate, Evarts, Southmayd & Choate and Benjamin F. Kissam, for defendants. LARREMORE, J.-The main contention in this action involves an interpretation of the words "heirs or legal representatives" Coster agt. Butler. as used in the sixth subdivision of the will of John G. Coster, deceased. By it the sum of $34,000 was given to his executors in trust, to invest the same in bonds and mortgages, productive real estate, stocks or other securities, and to apply the rent, interest or income thereof to the use of his son Daniel during his natural life for the support of himself and his family. After his death one-half of said sum, or the property or securities in which it shall have been invested, was directed to be divided equally among such of the testator's children as might then be alive, and "the heirs or legal representatives of any children or child now or then deceased, except the heirs or representatives of said Daniel, share and share alike." In case Daniel's wife should survive him it was further directed that the executors should invest and hold the other one-half for her benefit, and upon her death or remarriage the same should be divided equally among such of the testator's children as might then be alive, and the heirs or legal representatives of any deceased child (except the heirs or representatives of his son Daniel), share and share alike, “per stirpes and not per capita." This subdivision of the will must be taken as an entirety and the context considered in deciding what was the testator's intention. If Daniel had survived his wife there can be no doubt but that the one-half of the trust fund reserved for her benefit would have been distributable per stirpes. And the inference is strong in like interpretation as to the estate that vested upon her husband's death. The language "share and share alike" must be construed with reference to this ultimate intention. There is no obvious reason for making a different distribution of each half of the same fund. Children and grandchildren are not in equal degrees of kinship, and the language that includes the latter in an equal distribution with the former must be clear and unequivocal. It is evident that the words "heirs or legal representatives" were used by the testator not as words of limitation to define the nature and quantity of the estate devised or bequeathed, Coster agt. Butler. but as meaning issue or descendents thereof (Burtis agt. Doughty, 3 Brad., 287; Parks agt. Parks, 9 Paige, 107; Hunt agt. Luquen, 5 Cow., 221; Murphy agt. Harvey, 4 Ed. Ch., 131; Drake agt. Pell, 3 Ed. Ch., 251; 2 Jarman on Wills [5th Am. ed.], 614, 649, 756-758). The question then arises, whether the estate vested immediately upon the death of the testator or upon the death of his son Daniel. If immediately, then each legatee had an assignable interest in the trust fund; if no interest passed until the event last referred to, the plaintiff has no standing in court. The whole trust fund was vested in the executors- - in the one case during Daniel's life; in the other, until the death or remarriage of his wife. No distinct gift is made to the other children, except upon the distribution, when the fund in either case is to be "divided equally among such of my children as may then be alive, and the heirs and legal representatives of any children or child of mine now deceased, or which (at the time of testator's death) may then be deceased, except the heirs or representatives of the said Daniel." The legatees had no beneficial interest in the income during the life estate, as in Everett v. Everett (29 N. Y., 75). It is reasonable to infer that by using the language "such of my children as may then be alive," and "the heirs or legal representatives" of such as were deceased, the testator intended that no estate should vest in the legatees of the trust fund until the termination of the life estate. Before that time it was not certain who would be the recipients of his bounty. Intervening his death and that of his son Daniel, a different class of persons (by death, marriage or birth) might succeed to the interests of those originally named. Under such circumstances, it cannot be presumed that the testator intended to convey an immediate interest in the trust fund other than that given to his executors (See 2 Jarman on Wills, 406-411; McGill agt. McMillan, 23 Hun, 193). I am thus led to the conclusion that the trust fund in quesVOL. LXIII 40 |