SPRING, J.:

Fourth Department, May, 1908.

[Vol. 126.

The appellant was the editor and proprietor of the Fulton Patriot, a newspaper published in the city of Fulton, Oswego county, in January, 1906, and for some time preceding. Early in 1906 it was currently reported that Merrick Stowell, county judge and a prominent citizen of said county, was an applicant for the important position of State Commissioner of Excise, which was soon to be filled by the Governor of the State. Judge Stowell had long been active in the management of Republican politics in the county and quite naturally had engendered considerable bitter opposition among partisans disagreeing with him. A political organization of the county bearing the name of the Roosevelt Republican League comprised members opposed to Judge Stowell, and they held a meeting in the city of Oswego, January 12, 1906, at which the candidacy of Judge Stowell was discussed and resolutions adopted animadverting severely upon his political activity, and especially while holding the office of county judge, and protesting against his selection for the State office mentioned.

The defendant was present at this meeting, participated in the discussions which were had, and at the request of some of the members published the resolutions in his newspaper, and the papers containing them were generally circulated among the citizens of the county, and he has been indicted and convicted of libel for their publication.

We do not intend to discuss the facts or questions involved, except only so far as deemed essential to enable us to pass upon certain rulings of the court, which, we believe, call for a reversal of the judgment.

The article published is lengthy and is set out in full in the indictment. The part which is now pertinent reads as follows: "He (Judge Stowell) has been County Judge of our county for thirteen years, and during that time he has shown a pitiful and most miserable lack of conception of the dignity and nobility of judicial position. During his tenure of the County Judgeship the County Court chambers have been used for political headquarters. They have been the gathering place for the ward and town politicians from all sections of the county. In them has been erected the political throne around which the time-servers and political vassals

App. Div.]

Fourth Department, May, 1908.

have knelt and worshipped, and there they have either been blest or damned by the political master on the bench, according to the quality of their service. From this throne, erected in judicial position, have been issued the orders that have run and controlled the political machinery of the county. The throng that has elbowed its way back and forth, to and from this throne, on and shortly before election day, has not added dignity to the bench, because it could not be a credit nor give character to a towpath or lumber camp."

The court instructed the jury that the first sentence quoted was not, to use his language, "a general charge that Judge Stowell has shown a lack of conception of the dignity and nobility of his judicial position. It is a charge that he has shown that lack of conception of the dignity of that position because of what follows; because of his use of the County Court chambers; because of his relations with the District Attorney; because of the persons that he has surrounded himself with, and that is all that it means."

We think this too narrow a construction of the general language employed. The primary accusation is contained in the sweeping statement of the lack of appreciation of the judicial position which Judge Stowell held. The purpose of the article, as already noted, was to show the unfitness of Judge Stowell for the position of State Commissioner of Excise. It was charged that he had been persistent in seeking office; was arbitrary, dictatorial and domineering in the exercise of political power. His judicial conduct is then impugned, and his failure to comprehend the dignity of the position he occupied is alleged, and specific instances are given illustrating the truth of the accusation. Upon the trial the defendant, who was endeavoring to prove the truthfulness of the charges, attempted to show acts of Judge Stowell while on the bench in the court room which, it was claimed, would substantiate the accusation and tend to show his unfitness for the office for which he was an aspirant.

For instance, Judge Stowell presided at a term of the County Court at the court house of Oswego county in December, 1904. A lawyer named Mizen was in attendance and testified that he was called to the bench by Judge Stowell during a lull in the trial of a case and a conversation ensued between them. The defendant

Fourth Department, May, 1908.

[Vol, 126. attempted to show that Judge Stowell advised the witness to get a retainer from a prisoner confined in the jail, and who had been convicted by a justice of the peace acting in 'place of the recorder of the city, appeal from the judgment of conviction, and that he, the county judge, would release the prisoner and hold the conviction worthless on the ground that the magistrate lacked jurisdiction. The court excluded this proof for the reason that the act was not committed at the judge's chambers, and was not one of those enumerated in the article published. There was other proof offered of acts claimed to have been committed by Judge Stowell while on the bench in the court house which may have tended to vindicate the truthfulness of the general charge already adverted to, which was excluded for the reason mentioned, and proper exceptions were taken to the exclusion of all this evidence.

We think proof of this character was fairly within the scope of the entire article and of the general charge quoted, and may have been important to enable the defendant to establish that he had accurately gauged the official conduct of Judge Stowell. If the defendant was able to show derelictions of Judge Stowell while on the bench that proof supported the charge made, as well as infractions committed at chambers. The fact that defendant had stated one or two instances in vindication of the correctness of the accusation did not debar him, when its truth was challenged, from making proof of other delinquencies of the judge when acting in his judicial capacity.

For these errors in excluding the testimony referred to and limiting the article in the manner mentioned, the judgment should be reversed and a new trial granted.

All concurred, except MCLENNAN, P. J., who dissented.

Judgment of conviction reversed and new trial granted.

App. Div.]

Fourth Department, May, 1908.

In the Matter of the Final Judicial Settlement of the Accounts of

LUNA A. MCMILLAN, as Committee of the Person and Estate of CHARLES E. J. MCMILLAN, an Incompetent Person, now Deceased, Respondent.

CAROLINE J. SMITH and Others, Appellants; KIDDer M. Scort, as Administrator, etc., of JAMES MCMILLAN, Deceased, Respondent.

Fourth Department, May 6, 1908.

Real property — equitable reconversion - proceeds of lands of incurable idiot distribution and descent to maternal and paternal collaterals.

Section 2359 of the Code of Civil Procedure, providing that upon the sale of real estate of an infant or incompetent person the proceeds are deemed property of the same nature as the estate or interest sold until the infant arrives at full age or the incompetency is removed, should be construed to mean that such equitable reconversion continues during the entire lifetime of a person who is an incurable idiot and does not end at his majority.

It follows that upon the death of such idiot his personal property goes to his next of kin, but the proceeds of the sale of lands go to his heirs, although his minority had expired.

Where an intestate died at the time when chapter 319 of the Laws of 1898 was in effect, allowing representation on the distribution of personal estate in the same manner as allowed by law in reference to real estate, and the only surviving next of kin were an aunt and the descendants of deceased uncles and an aunt, the living aunt takes one share, while the descendants of deceased uncles and the aunt take their ancestor's share per stirpes.

When on the death of an intestate there are no brothers and sisters or their descendants and no heirs entitled to take under any of the sections preceding section 288 of the Real Property Law, but only the descendants of a brother and sister of the intestate's mother and a paternal aunt and the descendants of a paternal uncle, real property which came to the intestate from his mother goes to the cousins on the maternal side to the exclusion of collaterals on the paternal side.

MCLENNAN, P. J., dissented.

APPEAL by Caroline J. Smith and others from that part of a judgment of the County Court of Livingston county, entered in the office of the clerk of the county of Livingston on the 30th day of September, 1907, directing that the committee of Charles E. J. McMillan, an incompetent person, now deceased, is entitled to a decree declaring her account settled; also directing distribution of the assets in the custody of said committee to the personal repre

Fourth Department, May, 1908.

[Vol. 126.

sentatives of James McMillan, deceased, and to Luna A. McMillan to the exclusion of the appellants.

George B. Adams and Lockwood R. Doty, for the appellants.

Edwin A. Nash, George W. Atwell and Kidder M. Scott, for the respondents.

SPRING, J.:

Charles E. J. McMillan, an incompetent person, was born April 26, 1855. He owned a one-ninth interest in certain real estate in the city of New York, which was sold in pursuance of judgments in the Supreme Court in April, 1865, for the sum of $62,430, and the leaseholds for $7,850. The incompetent inherited his oneninth interest in said premises from his mother, who had died intestate in 1855.

Charles McMillan, the father of the incompetent, was duly appointed his general guardian, and on the 24th of July, 1866, an order was granted directing the chamberlain of the city of New York, with whom the avails of the sale belonging to said infant had been deposited, to pay the same to said general guardian, and to assign the securities in his hands belonging to said infant. Obedient to this order, on the 23rd of March, 1867, the chamberlain transferred to the general guardian one mortgage for $2,200, one for $1,550, and paid him in cash $1,211.71, in all $4,961.71.

Said incompetent became of age April 26, 1876, and was then an imbecile, and continued to be until his death. After his majority no proceedings were instituted for the appointment of a committee of the person and estate until September, 1886, when by the inquisition of a jury he was found to be "an imbecile and of unsound mind, so that he was incapable of governing himself or the management of his lands or tenements, goods and chattels, and that he had been in the same state of imbecility and unsoundness of mind since his birth." The father was thereupon appointed the committee of the person and estate of the incompetent, and acted in that capacity until his death January 7, 1890. On February twenty-fourth following Luna A. McMillan was appointed committee, holding the position at the time of the death of the incompetent, December 29, 1904.