Lilla L. White, Respondent, v. Milton S. Price et al., Appellants

Lilla L. White, Respondent, v. Milton S. Price et al., Appellants. Argued February 8, 1888; decided February 28, 1888.) Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made November 10, 1885, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. This action was brought to set aside a transfer of certain .shares of the capital stock of the Solar Coarse Salt Company, made by John O’S. Lynch as executor of the estate of James, Lynch, deceased, to defendant Price, upon the ground that the same were transferred by said executor without authority, and also to set aside a subsequent transfer of said stock by Price to defendant Howlett. The following is the mem. of opinion in the case: “ The opinion of the court at Special Term and the opinion of the General Term upon appeal from its decision (39 Hun,. 394), sufficiently justify the judgment now before us, unless the trial court erred in rejecting against the objection of the-defendant, certain evidence which, as appellant now contends, would show that the plaintiff had parted with all her interest, in the property involved in this action. The testimony of the. plaintiff, taken before trial, shows among other things that she-was a nun of the Roman Catholic Church £ and a member of' the Society of the Sacred Heart.’ Upon cross-examination, by defendant’s counsel she said £ everything is in common with, us, nothing belonging to ourselves.’ Asked £ is there any condition as to the distribution of property belonging to one entering the sisterhood,’ the plaintiff objected as immaterial and incompetent, and she said, £ whatever property we have-after our vows are taken, belongs to the society.’ She also-stated that the regulations in regard thereto were printed, that, each member had a copy, and that she in joining the society agreed to £ perform and assent to all the regulations laid down in the order.’ “ The objection was renewed, ‘ that the evidence is inadmissible on the ground that it is secondary, the regulations being in writing.’ She stated that she brought the action because £ I thought it was my duty to the society to which I belonged to' do it.’ The testimony indicates only that so far-as might be she had ceased to be earthly minded, and with a. desire to be wholly occupied with her future obligations, was. willing to devote her substance to the interests of the order to which she belonged. It fails to prove any. transfer effectual even between the parties, and goes no farther than to show a. subjection of her will, but no manifestation of it by any legal or valid form. No transfer of title was estabhshed, if we; take her words in the broadest sense. But in any view the objection that better evidence existed as to what she had really done was a good one, and the trial judge committed no error in sustaining it. The plaintiff’s cause of action was meritorious, her resort to a court of equity necessary, the points made against her recovery are, in view of the consideration already given to them by the court of original jurisdiction and by the General Term, invalid and suggest no reason for a continuance of the litigation. “The judgment appealed from should,therefore, be affirmed.” Louis Marshall for appellants. WilUam G. Tracy for respondent. [MAJORITY] Danforth, J., reads for affirmance. All concur, except Ruger, Ch. J., not sitting Judgment affirmed.