table conversion, that there should be an imperative direction to sell, yet it must appear that a conversion of the real property is necessary to accomplish the purpose intended by the general scheme of the will before the permissive authority to sell will be construed as a mandatory direction. Lent v. Howard, 89 N. Y. 159; Salisbury v. Slade, 160 N. Y. 278, 54 N. E. 741. We do not think that the terms of this will or the character of the property disposed of makes it necessary to convert the real estate into personalty in order to carry out the intent of the testator. While it is true that there are a large number of separate pieces of real property, some of which were owned solely by the testator in fee, and in others he owned an undivided interest with other persons, yet it also appears that the personal estate amounted to $3,000,000 and upwards, and it is quite probable that the executors and trustees could make the allotment provided for in the will in both real and personal property, without the necessity of converting the whole of the real estate into money; and certainly, when taken in connection with the ample powers which are given to sell the real estate, it is far from being impossible to conclude that the allotment of the entire property could be made in specie and fulfill to the letter the terms of the will. Under such circumstances, it is readily seen that there is no such blending of the entire estate as to create a common fund. On the contrary, the character of the property can be kept entirely separate, and the allotment made as the will provides. In addition to this, by the express provisions of the will, the executors and trustees are authorized to invest the whole or any part of the estate in real property, as well as in personal securities. If the executors and trustees, in the discharge of their duties, invested the whole of the estate in real property, they would comply with the provisions of the will, and evidently fulfill the intent of the testator. If the directions in this respect were followed by the executors and trustees, and the whole of the estate invested in real property, the allotment could still be made, and the scheme of the will be fulfilled. Un der such circumstances, it cannot be doubted but that the persons entitled would take the estate as real property, and no one could question but that the terms of the will would be complied with. In this connection the language of the will, when the time of distribution arrives, is, "to convey, pay over, and distribute." Manifestly, the word "convey" is appropriate to the transfer of real property, and entirely inappropriate to the transfer of personal estate; and while the thing to be conveyed is capital and accumulations, yet, inasmuch as the shares to be distributed under the allotment may consist of real or personal property, or both, the share is not inaptly designated as capital and accumulations. It is evident that the word "capital" is here used to designate the shares, and not to characterize the estate directed to be conveyed. The word "accumulations" is quite appro priate, as it is apt to describe the rents, issues, and profits which may arise from the whole estate in the course of the administration of the trust. This language, in connection with the thing to be paid over, it may be conceded, does not accurately and technically describe real property; but, when the words are considered with the language directing distribution and the whole scheme of the will, it is readily ap

and 108 New York State Reporter

parent that no violence is done in holding that the words themselves embrace either real or personal property or both.

We have examined with some care all of the authorities which have been cited by the respective counsel in support of the contention that the will worked an equitable conversion of the real estate into personalty. It is not necessary that we discuss each one in detail. Probably the strongest case in support of the claim is that of Delafield v. Barlow, 107 N. Y. 535, 14 N. E. 498. This was a border case, and while the court held that an equitable conversion was worked by the terms of the will then under consideration, yet they arrived at such conclusion with doubt and hesitation. In that case, as here, there was the devise of both real and personal property, with a direction to allot into shares. The power of sale was not mandatory, but permissive, and in these respects the cases are quite parallel. In other respects there is a radical difference. In the Delafield Case, the language of gift is, "I give and bequeath," and the court held that this language was strictly applicable to a bequest of personal property. In the present case, the language of the will is, "I give, devise, and bequeath,"-language which excludes the idea that personal property only was to pass, and which is peculiarly appropriate to the character of the property which in fact passed to the trustees. In the Delafield Case, the language of distribution was, "pay over, transfer, and deliver,"-language which finds proper application only when a bequest of personal estate is made. In the present will the language of distribution is, "convey, pay over, and distribute." Such language is apt and appropriate to transfer both real and personal property. Aside from this difference in language, however, there is contained in the present will a direction to the executors and trustees to invest the whole or any part of the estate in real property; and, as we have before pointed out, if such direction be followed, the whole of the estate might be conveyed as real property to those entitled to take, and the will in its entirety be fulfilled. It seems clear, therefore, that the Delafield Case, instead of being an authority in favor of the contention that an equitable conversion is worked, when analyzed, becomes a distinct authority opposed thereto. It cannot be doubted that, had the words of gift and the direction to distribute in the Delafield Case been "devise" and "convey," the decision would have gone the other way, while further force is added in the present case by the direction to invest in real property. No case, we think, can be found in this jurisdiction which adds any strength to the doctrine laid down in the Delafield Case. It is, therefore, not necessary to refer to the numerous discussions which have been had in other cases. Isolated portions of this will may be laid hold of, and color be lent to the claim that an equitable conversion was intended and worked thereby; but, when the whole scheme of the will is examined, it seems clear that an equitable conversion was neither worked nor intended. These views lead us to the conclusion that there was no conversion of this estate into personalty.

So far as the costs and allowances are concerned which have been awarded against the plaintiff, we think that they ought not to be permitted to stand. The executors and trustees have failed to execute

this will in accordance with its terms, and the plaintiff was clearly justified in making the attempt in this action to assert his rights.

It follows that the judgment should be reversed, and a new trial granted, with costs to all parties payable out of the estate. All con

cur.

(59 App. Div. 476.)

BRAZEE v. STEWART.

(Supreme Court, Appellate Division, Fourth Department. March 12, 1901.) 1. PAUPERS-OVERSEER OF POOR-PERSONAL LIABILITY-CONTRACTS.

Where plaintiff furnished the care, nursing, and maintenance needed by an aged, infirm, and poor person not related to or dependent on him on an understanding with the overseer of the poor that he should be reimbursed therefor by the town, but with no agreement that the overseer would personally pay therefor, plaintiff cannot recover such expenses . from the overseer on the refusal of the town to pay.

2. SAME FAILURE OF DUTY.

Plaintiff provided care, nursing, and maintenance to a sick pauper on an understanding with the overseer of the poor that the town would pay therefor. Laws 1896, c. 225, § 23, provides that when the person applying for relief as a poor person is sick, so that he cannot be conveniently moved to the county almshouse, the overseer shall apply to the supervisor of the town, who may order such sum to be expended for temporary relief as may be required, but that no greater sum than $10 shall be expended for any one person without the sanction in writing of one of the superintendents of the poor of the county, except where the board of supervisors has made rules as authorized by section 13. The board had made no such rules, and the town paid over $10 on the procurement of the overseer, but refused to pay the balance of the expenses incurred. Held, that the overseer was not personally liable for such balance on the ground of his failure to take the necessary steps to charge the town with liability therefor, since his only power and duty was to notify the supervisor, which he did.

Action by Isaac Brazee against Alexander Stewart. Plaintiff moves for a new trial on exceptions taken on a trial before the court and jury, which motion was ordered heard in the first instance by the appellate division. Motion denied.

Argued before ADAMS, P. J., and MCLENNAN, SPRING, WIL LIAMS, and LAUGHLIN, JJ.

Sebring & Cheney, for plaintiff.

Francis A. Williams, for defendant.

WILLIAMS, J. The action was brought to recover $700 expenses incurred by the plaintiff for the care, nursing, and maintenance of one Anna Merrick between October 1, 1897, and May 1, 1898. The defendant was overseer of the poor of the town of Hornby, Steuben county, during the year 1897, and until about February 15, 1898, when his term of office expired. The plaintiff, in 1897 and 1898, and for many years prior thereto, was and had been a resident of the town of Hornby, and had in his family as his housekeeper one Miss Hill; and Mrs. Merrick, her mother, also lived in the family. Mrs. Merrick was an old woman, and, having received serious injuries in the summer of 1897, she became, about October 1st, helpless and bedridden, and

and 103 New York State Reporter

continued to grow worse until about May 1, 1898, when she died. While in this helpless condition, she needed care, nursing, and maintenance, was in destitute circumstances, and the plaintiff furnished the care, nursing, and maintenance necessary for her. An effort was made to procure aid for the old woman from the town, and to procure the town to pay for the expense incurred by the plaintiff in caring for her. Some small amount was realized by the plaintiff from the town for this purpose. Nothing further would be paid, or could be recovered from the town, and the plaintiff thereupon brought this action against the defendant personally to recover the balance of the expense incurred by him in furnishing such care, nursing, and maintenance. The grounds upon which it is claimed this action can be maintained, are: (1) That the expense was incurred at defendant's request, and upon his promise to pay therefor. (2) That the expense was incurred in reliance upon defendant's promise to perform his duty as overseer to obtain the approval of the supervisor of the town, and take the necessary steps to charge the town with liability for such care, nursing, and maintenance; and by reason of his neglect of duty and violation of this promise he made himself personally liable for such expense.

The action clearly cannot be maintained upon the first ground stated. The evidence shows that no request or promise to pay was made to bind defendant personally. The plaintiff testified:

"In my dealing with Mr. Stewart, I supposed I was dealing with him as overseer of the poor. My taking care of this old lady was upon the credit of the town. I didn't give Mr. Stewart personally any credit for taking care of this old lady, and did not charge him personally for taking care of her. I didn't suppose I had to do it."

This conclusion, stated by the plaintiff, flows naturally and necessarily from the evidence given in detail. The action can only be maintained, therefore, if at all, upon the second ground stated,—the promise by the overseer to procure the approval of the supervisor, and to take the necessary steps to charge the town with liability, which it is claimed it was his official duty to do; and his failure to keep such promise and perform such duty. The complaint was based solely upon a request and promise to pay by the defendant. There were no allegations therein of promise or failure to perform official duty, and it may well be doubted whether, under such a complaint, this second ground of recovery can be maintained. The answer, however, set up the facts with reference to the defendant's official position and official action, and the evidence was taken without any question being raised as to the form of the complaint, and we very likely should determine the questions now involved upon the merits, regardless of technical questions of pleading. The poor law of the state (Laws 1896, c. 225, § 23) prescribes the duty of the overseer and the supervisor in a case of this kind as follows:

"Sec. 23. Temporary relief to persons who cannot be removed to almshouse. If it shall appear that the person so applying (for relief) requires only temporary relief, or is sick, lame or otherwise disabled so that he cannot be conveniently removed to the county almshouse, the overseer shall apply

to the supervisor of the town, who shall examine into the facts and circumstances, and shall in writing order such sum to be expended for the temporary relief of such poor person as the circumstances of the case shall require, which

urer,

order shall entitle the overseer to receive any sum he may have paid out, or contracted to pay, within the amount therein specified, from the county treasbut no greater sum than $10 shall be expended or paid for the relief of any one poor person or one family, without the sanction, in writing, of one of the superintendents of the poor of the county, which shall be presented to the county treasurer, with the order of the supervisor, except when the board of supervisors has made rules and regulations, as prescribed in section 13, of this chapter."

It was conceded on the trial that no rules or regulations were made by the board of supervisors or by the town board with reference to furnishing temporary or outdoor relief to the poor after the poor law was enacted in 1896, or after section 13 thereof was amended in 1897. It may be well, however, to have in mind the provision of section 13. In the original section the board of supervisors alone could make the rules and regulations. The amendment provided, if the board of supervisors failed to make such rules and regulations, the town board of the town could make them. The section, as amended by chapter 48, Laws 1897, is as follows:

"Supervisors and members of town boards may direct as to temporary or out-door relief to the poor.-The board of supervisors of any county may make such rules and regulations as it may deem proper in regard to the manner of furnishing temporary or out-door relief to the poor in the several towns in said county, and provided the board of supervisors shall have failed to make any such rules and regulations the town board of any town may make such rules and regulations as it may deem proper in regard to furnishing temporary or out-door relief to the poor in their respective towns, by the overseer or overseers of the poor thereof, and also in regard to the amount such overseer or overseers of the poor may expend for the relief of each person or family: and after the board of supervisors of any county, or the town board of any town, shall have made such rules and regulations, it shall not be necessary for the overseers of the poor of the towns in said county, where such rules and regulations were made by the board of supervisors, or if in a town by the said town board, to procure an order from the supervisor of the town, or the sanction of the superintendent of the poor to expend money for the relief of any person or family, unless the board of supervisors of such county or the town board of such town shall so direct."

Clearly, the defendant, as overseer of the poor, under these provisions of law had no power to pay out or contract for more than $10 for the support or care of Mrs. Merrick, unless authorized to do so by the order of the supervisor, and the written sanction of the county superintendent of the poor; and he had no power to compel the supervisor to give him such order, or the superintendent to give him such sanction. It was very likely his duty to apply to the supervisor in her behalf, but he had no further power in the premises. The defendant did apply to the supervisor, and the supervisor, as it was his duty to do, went to plaintiff's residence, where Mrs. Merrick was, and examined into the facts and circumstances. It was the supervisor's duty to order such sum to be expended for her temporary relief as the circumstances of the case required. The overseer had no control whatever over the action of the supervisor; could compel him to do nothing. The supervisor made no order whatever. There was some effort made to remove Mrs. Merrick to the county almshouse, but the removal was opposed by plaintiff and his housekeeper, and was not effected. While the town board made no rules or reg ulations under the statute, yet they did, upon the procurement of the