Nemetty agt. Naylor.

ment was founded. The latter would not be bound to recoup her damages in the first suit, but might reserve them. This is the breadth of the adjudications cited by the counsel for appellant. A defendant is not called upon to assert claims existing in his favor against the plaintiff, but may use them for legal proceedings initiated by himself (Yates agt. Fassett, 5 Den., 29; Kelsey agt. Ward, 38 N. Y., 83; Brown agt. Gallaudet, 80 N. Y., 713; Morgan agt. Powers, 66 Barb., 35). This principle, however, has not sufficient scope to control the case at bar. The adjudication in the summary proceeding was final so far as the facts necessarily passed upon. The judgment conclusively settled the tenancy, rent due and unpaid, and the holding over after default in payment. This action is brought upon verbal agreements, whose terms include an entire abrogation of the liability to pay rent from its cessation, until the repairs and alterations provided for were finished. The plaintiff testifies these were not done when she was removed from the premises by process of law. The judgment established the allegations in the affidavit needful to sustain the landlord's right of possession, and among them was the lease set forth (Brown agt. The Mayor, &c., 66 N. Y., 385; Yates agt. Preston, 41 id., 131).

The plaintiff here must establish one or more agreements, wholly inconsistent with the original lease. They are detailed by the plaintiff in her testimony, with sufficient clearness to show radical change in the term of occupancy, an increased rent to begin in the future, and release from payment of the rent provided for in the original instrument. Both written and verbal contracts could not stand. The cause of action might not be affected by the judgment, if it was founded upon an agreement consistent with the lease, and the damages claimed to have resulted from the defendant's breach would then constitute a claim unaffected by the prior adjudication. While a counter-claim or set-off need not be asserted by answer to a complaint, it cannot be made the subject of an independent action when it results from an alleged contract,

Greer et al. agt. Belknap.

the existence of which, in many of its material parts, is directly negatived by a judgment unreversed and unappealed from, given in an action between the same parties. The II. O. Taylor named in the summary proceedings must be taken as representing the landlords, and I see no reason why that should not be held established by the judgment. The firm is bound by his action and entitled to its benefit.

The judgment should be affirmed, with costs.

SUPREME COURT.

THOMAS H. GREER et al., as executors of the last will of CHARLES M. BELKNAP, deceased, agt. ZEBINA BELKNAP and others.

Will-Construction of — Valid and invalid devises.

The will of B., by the first clause, provided for the payment of his debts.

The second for the purchase of a lot in the cemetery and the erection of a monument.

The third a devise of $10,000 to his cousin A. C. B., together with his wearing apparel and jewelry.

The fourth devises gifts of $500 each to three different masonic societies. The fifth read as follows: "All the rest, residue or remainder of my estate is to be divided equally between my cousin Adaline C. Belknap, the Albany Guardian Society or Home of the Friendless, the Albany Orphan Asylum and the House of Shelter."

The will was executed June 29, 1877, and the testator died August 25, 1877:

Held, first, that the devises to the masonic societies are valid.

Second. That the legacy to the "Albany Orphan Asylum" is a good bequest to "The Society for the Relief of Orphans and Destitute Children in the city of Albany."

Third. The devises to "The Albany Guardian Society and Home of the Friendless" and to "The House of Shelter in Albany" are void, the will not having been "made and executed at least two months before the death of the testator" (2 R. 8. [6th ed.], p. 440, sec. 6).

Fourth. That that part of the residuary estate which would have gone to

Greer et al. agt. Belknap.

the two institutions, “The Albany Guardian Society and Home of the Friendless" and "The House of Shelter, in Albany," had the devises been held valid, must be treated as property undisposed of by the will and must go to the next of kin.

Albany Special Term, June, 1882.

CHARLES M. BELKNAP died August 25, 1877, leaving a last will and testament wherein the plaintiffs were named as

executors.

The first clause of said will provided for the payment of his debts.

The second for the purchase of a lot in the cemetery and the erection of a monument.

The third a devise of $10,000 to his cousin Adaline C. Belknap, together with his wearing apparel and jewelry. The fourth devises gifts of $500 each to three different masonic societies.

The fifth read as follows: "All the rest, residue or remainder of my estate is to be divided equally between my cousin Miss Adaline C. Belknap, the Albany Guardian Society or Home of the Friendless, the Albany Orphan Asylum and the House of Shelter." The will was executed June 29, 1877.

The Albany Guardian Society and Home of the Friendless is a charitable and benevolent corporation and association, duly incorporated under an act of the legislature, passed April 12, 1848, entitled "An act for the incorporation of benevolent, charitable, scientific and missionary societies," and the acts amendatory thereof.

The "House of Shelter" is a charitable and benevolent association incorporated under the same act as the last named.

The Society for the Relief of Orphan and Destitute Children in the city of Albany is a charitable and benevolent corporation under an act passed by the legislature March 30, 1831, entitled "An act to incorporate the Society for the Relief of Orphan and Destitute Children in the city of Albany," and that it does not hold the personal estate which it is authorized

Greer et al. agt. Belknap.

to hold by the third section of said act, as amended by chapter 420 of the Laws of 1879, to wit, $250,000; that the said corporation is commonly known as and called in the city of Albany "The Albany Orphan Asylum."

It was claimed by the next of kin, Zebina Belknap, that the devises in the third clause to two of the masonic societies was void.

It was also claimed by the said Zebina Belknap that the devises in the fifth or residuary clause of the will to the Albany Guardian Society and Home of the Friendless and the House of Shelter were void, and that the proportion of the estate devised to them under the will, to wit, one-quarter to each, should go to him or next of kin. It was contended by the plaintiffs that such devises were valid, but that if they should be held invalid that then the portions of the estate devised to them, to wit, one-half thereof, being one-quarter to each, should be given to the remaining residuary legatees, to wit, Adaline C. Belknap and the Society for the Relief of Orphan and Destitute Children in the city of Albany, being onequarter thereof to each, or one-half of the entire estate to each and not to the next of kin.

George L. Stedman, Esq., for plaintiffs.

J. M. Dawson, Esq., for masonic societies mentioned in will.

A. D. Andrews, Esq., for Albany Orphan Asylum.

D. Cady Herrick, for Zebina Belknap, next of kin.

WESTBROOK, J.-The facts in this case are undisputed and my conclusions will be briefly stated.

First. The devise to the acting treasurer of Temple Chapter No. 5, Royal Arch Masons of the city of Albany, and that to the acting treasurer of Temple Commandery No. 2 of the Knights Templar of the city of Albany, are valid.

Greer et al. agt. Belknap.

Second. The legacy to "The Albany Orphan Asylum" is a good bequest to "The Society for the Relief of Orphans and Destitute Children in the city of Albany" (Lefevre agt. Lefevre, 59 N. Y., 434).

Third. The devises to "The Albany Guardian Society and Home of the Friendless," and to "The House of Shelter in Albany," are void.

The will was not "made and executed at least two months before the death of the testator" (2 R. S. [6th ed.], p. 440, sec. 6).

It ought to be said here that the institution called in the will "The Albany Orphan Asylum" was not formed under the act to which reference has just been made, and the clause of that act just cited does not affect it.

Fourth. The difficult question which this case presents is, who takes the amount of the void bequests in the fifth or residuary clause of the will? Does it go to the next of kin or to the two-Adaline Belknap and the Albany Orphan Asylum-authorized to take?

The clause reads: "All the rest, residue and remainder of my estate is to be divided equally between my cousin Miss Adaline C. Belknap, the Albany Guardian Society and Home of the Friendless, the Albany Orphan Asylum and the House of Shelter in Albany."

The intention of the testator is manifest. The residue of his property was to be "divided equally" between four persons, and that is equivalent to an express declaration that each should have one-quarter. The devise to two being adjudged void, if these devises go to the other two, each would get onehalf of the residuary instead of one-quarter, which would be contrary to the will (Bagnell agt. Day, 1 Peere Williams R., 700; Floyd agt. Barker, 1 Paige, 480; Beekman agt. Bonsor, 23 N. Y., 298, see page 312; Betts agt. Betts, 4 Abb. N. C., 317, see pages 420, 421, 422, 423, 424).

The case of Chamberlain agt. Chamberlain (43 N. Y., 424, see note at bottom of page 447) would seem to conflict with VOL. LXIII 50