Order affirmed, with $10 costs and disbursements. Opinion of Haight, J.; Barker and Bradley, JJ., concur. BILL OF SALE. CONVERSION. Jeremiah Hatch et al, exrs, respts., v. Xenophon W. Collins, applt. Decided Dec., 1884. Where a father-in-law took a bill of sale of his son-in-law's property and promised in return to pay his debts, some of which were in the form of notes confessedly forged by the son-in-law, and where it appeared that the father-in-law was induced to do this, not from motives of gain or to destroy evidence of the crime, but simply from kindness and compassion, Held, that the transaction was legitimate and would be upheld against the claims of bona fide creditors of the son-in-law. This action was for the conversion of an evaporator and sap buckets used in making maple sugar. The answer was a denial and a justification under a Vermont attachment against one M. The action was begun by Thomas L.; he died before the trial and his executors have been substituted. M., who was L.'s son-in-law, was greatly in debt and had forged L.'s name to some notes which were coming due. M. lived over the N. Y. line in Vt. Washington Co. On L. lived in L. lived in June 18 M. went to see L., told him the situation and agreed to sell L. all his personal property in Vermont, L. to pay all his debts. No memorandum was made of this contract, no money paid or property delivered. On June 19 L. paid a large sum upon M.'s debts. On June 20 M.'s property was J. H. McFarland, for applt. Held, That the judgment was right. What transpired between M. and L. before June 21 was not effectual, as the property was over $50 in value; but by the bill of sale of June 21 M. passed the title and so far as he was able delivered possession to L. By this bill of sale L. got title subject to the lien of the attachments then levied. If they had used up all the property L. could not have complained. By his attachment defendant on the 22d got nothing. The title was then in L., and of this McCall was notified. It was proved on the trial as a fact that, by the law of Vermont, when property is so attached and then is sold by the attachment debtor, notice of such sale to the sheriff holding the attachment of the claim of the vendee is to the extent of his interest. equivalent to a physical change of possession; the latter not being obtainable under the circumstances. 28 Vt., 14; 35 id., 214. Therefore defendant took nothing. But it is said that L. acquired title by virtue of a contract entered into with him for the purpose of stifling a criminal prosecution against M. upon the forged notes, and that therefore L.'s title was void against bona fide creditors of M. There was evidence that some of the notes which L. paid were forged and that the inducement which led him to agree to make such payments was a feeling of compassion and kindness for M. and for his daughter, who was M.'s wife, and the hope that if the notes were paid a prosecution would be less likely to take place. But there was no agreement that L. or any creditor should refrain from prosecution, or that the notes should be destroyed, or any evidence withheld. No prosecution had been commenced or threatened. The amount paid by L. exceeded the value of the property transferred, and no motive of gain induced him to enter into the contract. 2 Metc. 53. This case is like Marbury v. Brooks, 7 Wheat., 556; 11 Wheat., 78. Judgment affirmed. Opinion by Landon, J.; Learned, P. J., and Bockes, J., concur. PATENT. PATENT. LICENSE. LICENSE. PLEAD- N. Y. SUPREME COURT. GENERAL Charles N. Wing, applt., v. The Ansonia Clock Co. et al, respts. Decided Dec., 1884. Plaintiff and one H. by written contract granted the exclusive right to use their patent to the Clock Co., the latter agreeing to pay royalties on each instrument manufactured under the patent. The contract provided that on failure to make returns or payments within a specified time the license might be terminated. It also provided that the Clock Co. should pay at least $8,000 per year by way of royalties, and if it failed to do so should forfeit the right to manufacture under the patent "if the parties of the first part shall so elect by a notice in writing to that effect within ten days after the close of any year in which less than" that sum is paid. Held, that the only right of election reserved to the patentees related to a forfeiture and not to the payment of the $$ 000; that no contingency was provided for in which they could require more than the schedule rates of royalties. Appeal from judgment entered on order sustaining demurrer to complaint. Plaintiff and one H., who were owners of a patent for the manufacture of Bell's pianofortes, entered into a written contract with the Clock Co., granting to it the exclusive right to manufacture and sell musical instruments under the letters patent during their existence. In consideration whereof the Clock Co. thereby agreed to pay a royalty on all musical instruments manufactured under the contract quarterly after a specified date, and to make true returns quarterly. The contract provided that" upon fail ure of the party of the second part to make returns or to make payments of royalty as herein provided for 30 days after the days herein named, the parties of the first part may serve upon the party of the second part a written notice to make such returns or payments within ten days from the date of the service of such written notice, and if the party of the second part shall fail to make such returns or payments within ten days after receiving such written notice then the parties of the first part may terminate this license by serving a written notice to that effect upon the party of the second part, but the party of the second part shall not be discharged from any liability to the parties of the first part for any royalty due at the time of the service of such notice." "And said party of the second part hereby promises and agrees to pay the parties of the first part at least the sum of $4,000 per annum for each and every year from the 1st day of Jan., 1882, by way of the royalty above provided for, or otherwise, for the manufacture of pianofortes containing five or more octaves with said patent improvement, or else forfeit the right to manufacture pianofortes containing five or more octaves with said patent improvement under the foregoing license if the parties of the first part so elect by a notice in writing to that effect within ten days after the close of any year in which less than $4,000 is paid," and also a similar provision respecting all instruments other than pianofortes. Vol. 20.-No. 21b. The complaint set up the contract and stated that the company proceeded and manufactured articles with the invention, and that its statement is that for two years prior to Jan. 1, 1884, the royalties. at the rates for specified instruments were less than $1,000 in each year, which statement plaintiff accepts; that $1,000 has been paid on account of the contract for the year ending Jan. 1, 1883; that prior to the commencement of this action plaintiff and H. had notified the company that they did not elect to forfeit the right granted by the contract and did elect to continue it, except that they waived any account or return for the period ending Jan. 1, 1884, and concludes by demanding judg ment for $7,000 and $8,000. A demurrer was interposed, which was sustained. Held, No error. The general rule of law respecting an alternative contract is that the right of election rests with the party who ought to do the first act. Coke on Lit., 145 a; 78 N. Y., 595. While this furnishes the canon of interpretation which is usually consistent with the design of the instrument, yet the election may be reserved to either party. So far as this contract undertook to impose obligations on the company, the plain object of the instrument was to provide in the first instance for the payment of royalties at certain specified rates absolutely, and then to secure a covenant to pay $4,000 by way of such royalties on each kind of instrument, or in default of payment of these sums feiture of the right, or they could fail or refuse to exercise their power in that respect and hold the company to a performance of its promise to pay the specified royalty. The complaint therefore sets forth no cause of action. Judgment affirmed, with costs. Opinion by Dykman, J.; Pratt, J., concurs; Barnard, P. J., dissents. to forfeit all right to manufacture | could destroy the license on forunder the contract. That is, the company undertook, without reserve, to pay the schedule rate of royalties, and also to make such payment amount to $4,000 for each kind of instrument, or forfeit the right to use the invention at the option of plaintiff and Hill, if exercised in ten days after the close of any year in which less than that sum was paid. If this be the sound interpretation of the contract, then the company was required to do the first thing under the alternative, which was to pay the $4,000 for each kind of instrument manufactured, and so it had the choice to pay that money or forfeit its rights. The company therefore was first to determine whether it would pay or surrender, and that was the exercise of option, and the failure to pay was equivalent to notice of its election, because it raised the conclusive presumption to that effect. 61 N. Y., 643. The alternative provision for a forfeiture on such failure executed itself, and the privilege of the company under the license became extinguished at the option of the inventors if the same was exercised pursuant to the contract. But it is to be observed that the only right of election reserved by the patentees related to a forfeiture of the license, and not to the payment of the $4,000 or $8,000. In relation to that subject no alternative was reserved to the inventors. No contingency was provided for in which they could require more than the schedule rates of royalties. They WILLS. TRUSTS. POWER. N. Y. COURT OF APPEALS. Cooke, applt., v. Platt et al., exrs., impld., respts. Decided Jan. 20, 1885. Testator, by his will, gave all his estate to his executors with power to receive rents, etc., sell, mortgage and convey his estate, upon trust to divide and distribute the estate, after payment of debts, among testator's four children equally. Held, That no valid trust in the real estate was created by the will; that the children are vested with the title as devisees in fee, and that a receiver appointed on the removal of the executors had no authority to execute the power of sale. This was an appeal from an order of the General Term of the Superior Court of the city of New York, reversing an order of Special Term authorizing and directing a receiver appointed in this action, in place of the executors of the will of P., as administrator with the will annexed, to execute a power of sale contained in such will. The will of P., after nominating his three sons executors, is in these words: "I give, devise and be queath all the estate, real and personal, whatsoever and wheresoever, that I may die seized or possessed of, or be in any manner interested in or entitled to, unto my said executors, to have and to hold unto my said executors, their successors and assigns absolutely and forever, with full power to receive the rents, issues and profits there of, and to contract to sell, sell, mortgage and convey my said estate, in their discretion, and good and sufficient deeds and instruments thereof to make and deliver. Upon trust nevertheless to divide and distribute my said estate, or William G. Wilson, for respts. Held, That no valid trust was created in the testator's real estate by his will; that his four children are vested with title to the real estate as devisees in fee simple under the will; that the receiver has no authority to execute the power of sale given by the will to the executors. Order of General Term, reversing order of Special Term authorizing receiver to execute power of sale, affirmed. Opinion by Andrews, J. All concur. N. Y. COURT OF APPEALS. Rogers, exr., et al., respts., v. Squires, applt. Decided Jan, 20, 1885. its proceeds, after the payment of NEGOTIABLE PAPER. TITLE. my debts, to and among my four children (naming them) in equal proportions, the children of any deceased child to take its parent's share." On October 31, 1863, this will was duly admitted to probate and letters testamentary issued to the three executors named. July 28, 1880, the executors were removed and one S. was appointed receiver, and a referee appointed to state the accounts of the executors, and on the coming in of his report, on June 29, 1882, a final On An administrator transferred notes belonging to the estate to plaintiffs to secure them as sureties on his bond and also for a judg ment against the estate which they paid. Held, That the transfer in no manner worked a devastavit and, therefore, that plaintiffs' title was good; that defendant, who defends solely as maker of the note, could not raise the question of misapplica tion. judgment was rendered which pro- Defendant, who was one of the heirs, trans vided that S. as receiver should "succeed to the trust of the administration of the estate and to all the rights and remedies that would have been possessed by the said executors but for their removal," and invested with all the rights and powers of receivers according to law and with all the rights and powers of an administrator with the will annexed. Payson Merrill, for applt. ferred to the administrator by deed all his interest in the real estate and also all his right to the personal property, including his distributive share. Held, That this did not discharge him from liability on his notes in the absence of an assumption by the administrator of their payment. Affirming S. C., 14 W. Dig., 340. This action was brought upon several promissory notes made by the defendant to the order of one S., who died before any of them were paid. One J. was appointed |