NAWSA
Subject File
Leslie Woman Suffrage Commission-
Litigation

17              #23

To be argued by 
Horace E. Parker.

SUPREME COURT
Appellate Division - First Department.

In the Matter,
 of the
Judicial Settlement of the Account 
of proceedings of Louis H. 
Cramer and William Nelson 
Cromwell, as Executors of the 
Last Will and Testament of 
Frank Leslie, 
Deceased.

Brief of Appellant, Carrie Chapman 
Catt, on Appeal on the Law and on 
the Facts from such Portion of the 
Decree on Accounting as Grants to 
Carrie H. Wrenn anything more 
than the Net Amount of $160,000.

Statement of Facts.
The decedent, a resident of the County and 
State of New York, died on September 18, 1914.
The heirs at law and next of kin were Mrs. Carrie 
H. Wrenn and Mr. Maynard D. Follin.
Mrs. Wrenn was a legatee under the Will, being 
the life beneficiary of a $50,000 trust clause (fol.

2

140), and a legatee of jewels (fol. 143) and personal 
belongings (fols. 142,145); her husband, 
Thomas A. Wrenn, was the life beneficiary of a 
$5,000 trust clause (fols. 149, 150); and the children 
of Mrs. Wrenn received $30,000, pecuniary 
legacy, being $10,000 for each child (fols. 147, 148).
Mr. Follin (practically a stranger) was not a 
legatee under the Will.
Mrs. Carrie Chapman Catt, this appellant, was 
given most of the estate, and is the residuary.
(Article Twelfth, fol. 153-155.)
Mrs. Catt had the remainder in 3 trusts; two for 
$55,000 for the benefit of Mr. and Mrs. Wrenn 
during their respective lives, remainder to Mrs. 
Catt.
(Fol. 141.)
(Fol. 150.)
(Fol. 151.)

Contests of the  Will were threatened by both 
of the heirs at law and next of kin.
(Carrie H. Wrenn agree., fol. 251);
(Maynard D. Follin agree., fols. 279, 281);
(Test. Horace E. Parker, fols. 103-123).

Negotiations with Mrs. Wrenn were carried on 
between her attorney, George A. Strong, Esq., and 
Mrs. Catt's attorney, Horace E. Parker; such conferences 
being about 3 or 4 in number and all being 
in the presence of Mr. Cromwell.
(Test. Horace E. Parker, fols. 105-123);
(See fol. 123).

In addition to these, Mr. Cromwell had some 
conferences with Mr. Strong.
(Test. Horace E. Parker, fols. 107, 119, 123.)

3
As the result of the conferences between Mr. 
Strong and Mr. Parker in the presence of Mr. 
Cromwell, a bargain was struck.
After the negotiations were had and a bargain 
struck, Mr. Jaretzki, a partner of Mr. Cromwell's, 
at the request of Mr. Cromwell, prepared a draft 
agreement for each heir.
(Test. Horace E. Parker, fols. 110, 111, 113, 114);
(Test. Horace E. Parker, fols. 118-123).

After the preparation of the drafts of agreement 
in the ordinary course, and after the terms 
of the written contract had been agreed to 
between the attorneys, the agreements were signed 
by Mrs. Wrenn and by Mr. Follin.
(Fols. 110-116.)
Mrs. Catt's attorney had stated to Mr. Strong 
and to Mr. Cromwell and to Mr. Garvin, that Mrs. 
Catt would not settle with Mrs. Wrenn unless she 
settled with Mr. Follin; and that agreements with 
the two heirs must be signed by them and presented 
to Mrs. Catt for signature simultaneously. 
(Test. Horace E. Parker, fols. 107, 112, 113, 114.)
This was done.
(Fols. 112-123.)

The agreement with Mr. Follin, the agreement 
with Mrs. Wrenn and the 2 assignments were 
simultaneously signed by Mrs. Catt; and all 4 
instruments simultaneously delivered between the 
parties.
(Fols. 113, 114.)

The agreements were different (test. H.E.P., 
fols. 117, 118) in two (2) respects:
(Wrenn agreement, fols. 248-261);
(Follin agreement, fols. 277-282).

4

Mrs. Wrenn's agreement was to and did provide 
for the assignment by Mrs. Catt to Mrs. 
Wrenn or her nominee or nominees all Mrs. Catt's 
remainder interest in two (2) trust clauses of 
$50,000 (fol. 253) and $5,000 (fols. 256, 257), respectively, 
contained in the Will for the benefit 
of Mrs. Wrenn and her husband for their lives, 
respectively. 
And, also, in that the settlement with Mr. Follin 
being of a much similar amount was to be paid 
prior to distribution at agreed dates after the probate 
of the will.
(Follin agree., fol. 280);
(Test. H. E. P., fols. 109-111).

Both contracts provided for conveyances to 
Mrs. Catt by the two heirs of all their rights as 
heirs at law and next of kin upon the payment to 
them of the specific amounts.
(Wrenn agree., fol. 257-258);
(Follin agree., fol. 280);
(2nd Follin agree., fol. 298).

But these conveyances were not to be made by
the heirs until simultaneously with payment to
them of the specific amounts.
(Wrenn agree., fol. 257-258);
(Follin agree., fol. 280);
(2nd Follin agree., fol. 298).

The agreement between Mrs. Catt and Mrs. 
Wrenn contemplated an immediate assignment by 
Mrs. Catt by separate instruments to be known as 
assignments of the remainder interests in the said 
two (2) respective trust clauses of $50,000 and 
$5,000 respectively, for the benefit for the lives 
of Mrs. Wrenn and her husband.
(Fols. 253, 257.)


5

Such separate simultaneous assignments were 
executed by Mrs. Catt in blank.
(Test. H. E. P., fols. 113, 123);
(Ex. I for L. G. W., fols. 265-268);
(Ex. II for L. G. W., fols 271-274).

On December 4, 1914, before the Will was admitted 
to probate, Mrs. Catt signed the four (4) 
instruments consisting of the agreement with Mr. 
Follin, the agreement with Mrs. Wrenn and the 
two (2) assignments in blank for Mrs. Wrenn 
pursuant to the terms of Mrs. Wrenn's agreement.
(Test. H. E. P., fol. 113.)

Mrs. Catt having executed the 2 assignments
of the remainders of the two trust provisions under
paragraph "Third" of the contract with Mrs.
Wrenn.
(Test. H. E. P., fol. 113.)

The two (2) assignments executed in blank by
Mrs. Catt were delivered; and subsequently under
the agreement of the same date, the name of the
nominee was filled in by Mrs. Wrenn by her attorney,
viz.: Mrs. Louise G. Wrenn, apparently a
daughter-in-law of Mrs. Wrenn.
The report of the referee is entirely in error in
suggesting that these assignments were later
made.
(Rep., fol. 191.)

Later, and on December 7, 1914, the will was
admitted to probate.
December 7, 1914, Mrs. Wrenn, under clause
"Second" of the contract, consented to the decree
of probate.
Mr. Follin did also.
On and immediately after December 12, 1914.

6

there were commenced in the Supreme Court three
(3) distinct actions at law by Arthur Leslie, by
Lonetta L. Hollander and by Llorence L. Weissbrod.
(Fols. 76-80.)

The only two (2) defendants in such actions
were the two (2) executors.
(Fols. 76-80.)

Such 3 actions alleged that in 1879 Mrs. Leslie,
deceased, and her then husband, Mr. Frank
Leslie, entered into an agreement (admittedly
oral) by the terms of which Mr. Leslie was to and
did execute a will to his wife, the decedent, giving
her everything in consideration of her promise to
her then husband (in 1879) that she would give by
will one-third as she chose and the other two-thirds
for the benefit of her husband's children
(by a former wife) or grandchildren; each one of
such three parties plaintiff being a grandchild of
Mr. Frank Leslie; and the other grandchild, Frank
Leslie, never having commenced action.
(Fols. 79, 80.)

After the commencement of these actions, but
long before their discontinuance by stipulation.
Arthur Leslie, one of the four (4) grandchildren
of Frank Leslie, by a former wife, instituted an
application in the Surrogates' Court to open the
probate of the will upon the ground that Mrs.
Frank Leslie was the only child of a unnamed
negress slave belonging to the estate of one John
Sen Trescott.
(Fols. 76-78.)

The application was argued before Mr. Surrogate
Fowler and was dismissed; and it was appealed


7

by substituted attorneys thereafter to the
Appellate Division, First Department.
(Fols. 76-78.)

In November, 1916, the Appellate Division sustained
the dismissal.
(Matter of Leslie, 175 App. Div., 108.)

Order was entered by the Appellate Division of
such dismissal on November 17th, 1916.
At the earliest possible time Mrs. Catt instituted
proceedings in the Surrogates' Court for partial
distribution of the estate.
(Decree, fols. 36-37.)

On January 25th, 1917, as soon as it could be
done, an order or decree of partial distribution
was presented to Mr. Surrogate Cohalan and was
signed.
(Fols. 36, 37.)

Mrs. Wrenn was paid $158,000 (fols. 37, 38).
The full amount of $160,000 was not paid because
Mrs. Wrenn would not receipt in full nor give an
assignment to Mrs. Catt of all her right, title and
interest as heir at law and next of kin in the estate
as set forth in paragraph "Fourth" of her contract
of Dec. 4, 1914.
Mrs. Wrenn has not yet delivered the conveyance
of all her interest as heir and next of kin to
Mrs. Catt and will not now do so.
Mrs. Wrenn was offered the $160,000 specified
in paragraph "Third" of the agreement upon her
delivery of the conveyance and receipt for the
money.
This was after the filing of the referee's report.
Mrs. Wrenn refused to accept the $160,000 as
payment.

8

In the present proceeding for the judicial accounting
of the executors the account was filed
December 15, 1915, the citation thereon was returnable
January 28, 1916.
Mrs. Wrenn filed an answer.
(Fols. 86-98.)

Hon. Charles F. Brown was appointed Referee.
Mr. Strong and Mr. Gregory, a partner of Mrs.
Wrenn's son, placed in evidence the three (3) instruments
dated December 4, 1914, executed between
Mrs. Wrenn and Mrs. Catt and Mr. Strong
asked that distribution of the estate be had to the
end that Mrs. Wrenn should be paid.
(Fols. 125, 126, 127.)

Subsequent to this, partial distribution was
made by order or decree entered January 25th,
1917.
(Decree, fols. 37, 38.)

Mrs. Wrenn has never made at any time any
claim that she was entitled to $160,000 except upon
distribution.
By her answer of Jan. 27, 1916, Mrs. Wrenn
asked for income (fol. 95).
(See her answer, fol. 97.)


9

POINT I
There is no adjudication of Mrs.
Wrenn's covenants.
That Mrs. Catt is to receive the conveyance
covenanted by Mrs. Wrenn is
not adjudicated.

See Report of Referee, fols. 187-197;
See Contract at fols. 257-258;
Mrs. Catt's Proposed Find. of Facts. I,
fol. 225;
Mrs. Catt's Proposed Conclusion of Law.
2, fol. 226;
Mrs. Catt's Exceptions, fols. 199-214;
Mrs. Catt's Exceptions, fols. 209, 213;
See Point XIII.

Why the agreement?
(The same is true of the Follin agreement.)
The agreement grew out of a contest of the will,
which Mrs. Wrenn said she contemplated, so that
Mrs. Wrenn should, by descent and distribution,
receive one-half of the estate as heir at law and
next of kin; and a successful contest would mean
that the legacies to Mrs. Wrenn and her family
would be void.
The agreement was for the purpose of buying
out Mrs. Wrenn's interest (and Mr. Follin's) as
heir and next of kin; and also preventing a contest,
--thereby saving to Mrs. Wrenn and her family
the benefits of the will be probate thereof
(Article 16 of Will, fols. 161, 162).
Did Mrs. Wrenn covenant to deliver conveyance
on distribution when she received "the sum


10

hereinabove agreed to be paid to her" (fols. 257,
258).
or
Did Mrs. Wrenn make a provisional, conditional
conveyance, on December 4, 1914, "subject
to and conditioned upon payment" of the specified
"sums hereinabove agreed to be paid to her",
--"and subject also to" payment of the specific
bequests to her on distribution?
(Fols. 257, 258.)

Did Mrs. Wrenn promise anything?
(See Finding of Fact 2 at fol. 226.)

Not a word by the Report (itself) or the Decree.
It is indeed a poor contract which does not obligate
a seller to make the conveyance covenanted
to be delivered.
Mrs. Catt wasn't making just a contribution to
Mrs. Wrenn; Mrs. Catt was buying out Mrs. 
Wrenn as heir; and Mrs. Wrenn was selling out
as heir.
Mrs. Catt and Mrs. Wrenn bargained for a conveyance;
this Mrs. Wrenn was not to deliver until 
simultaneously paid.
(Wrenn agree., fol. 258.)

In the meantime the will was to be probated.
(Fols. 252, 253.)

Mrs. Wrenn covenanted to sell out to Mrs. Catt.
(Agreement, fol. 258.)

Where is the "conveyance"? It has never been 
delivered.
If the agreement is to adjudicated, it should
be adjudicated,--and it has not been.


11

Findings of fact and conclusions of
law should be made by this court [if the
matter were properly before the referee]
and the mutual obligations of the
parties decreed.
See Point XIII.

Only equity can reform a contract; and even
equity cannot decree payment for a conveyance
without decreeing conveyance.
The Referee "reformed" the agreement by
changing it completely.
He says Mrs. Wrenn is entitled to income (fol.
195); whereas, the agreement does not,--and
excludes such a holding.
He says (on the other hand) that the $160,000
is payable out of "any moneys" (fol. 194).
He eliminates, apparently, from the written
contract Mrs. Wrenn's covenants to convey for
the consideration price, and on payment.
He changes, and increases, the consideration for
the conveyance,--and then leaves Mrs. Catt without
a conveyance either by deed or by estoppel.
And without any testimony of "Mistake" or
misunderstanding,--either of fact or of law.
In Delaware Trust Co. v. Calm. 195 N.
Y., 231, it was held that conveyance and payment
were contemporaneous conditions.
The Court said at page 235:

"Under these circumstances it was the duty
of the plaintiff or its assignors to tender performance
on their part and to demand performance
on the part of the defendants before
subjecting them to the expense and annoyance
of an action to recover the amount of

12

the purchase price. Otherwise the sellers
would have both money and property and the
buyers nothing. The contract was for the
purchase of property, not a lawsuit by which
the property might be obtained."

See also, pages 236, 237.
McCammon v. Kaiser, 218 N.
Y., 46;
Ketchum v. Alexander, 168
App. Div., 38.

The essence of the transaction which Mrs. Catt
had with Mrs. Wrenn and also with Mr. Follin
was a purchase by Mrs. Catt of all the right, title
and interest which said heirs at law and next of
kin had on December 4, 1914.
(Wrenn agree., fol. 228.)
(Follin agree., fol. 280.)
(2nd Follin agree., fol. 298.)

The consideration that Mrs. Wrenn was to receive
was specifically specified.
The conveyance Mrs. Catt was to receive was
provided for.
(Wrenn agree., fol. 258.)

Incidentally, and in the meantime, Mrs. Wrenn
was not to file a contest.
(Fol. 252.)

It was the law at one time that next of kin could
waive on probate and then open the probate.
Whether that was the law in December, 1914,
counsel took no chance,--but made the agreement
by which Mrs. Wrenn was to sell out by conveyance
on payment of the purchase price. The will
worked a conversion of realty into personalty.
Incidentally, and in the meantime, Mrs. Wrenn
was not to file a contest.
(Fol. 252.)


13

On settlement of ordinary litigation, commenced,
or to be commenced, the attorneys ordinarily
provide for a release and a discontinuance.
Just a discontinuance itself is not enough.
The essential thing is the release,--with discontinuance
as an incidental.
There is nothing in the Report of the Referee
(itself) which indicates any covenant to convey
on the part of Mrs. Wrenn, except the contract
itself and the Residuary's Proposed Finding of
Facts No. 2 (fol. 226).
There is no determination of law.
(See Appellant's Exceptions, fol. 209.)
There is not a word in the Referee's Report itself,
whether of Finding of Fact or Conclusion of
Law, which indicates that Mrs. Catt is ever to get
the conveyance for which she bargained.
There is not a word in the Report itself either
of Finding of Fact or Conclusion of Law which
indicates that Mrs. Wrenn even contracted to convey.
Mrs. Catt's proposed findings are printed at
pages 75, to 77.
Mrs. Wrenn's proposed findings are printed at
pages 78 to 83.
Mrs. Catt's exceptions to the report are printed 
at pages 67, to 72.
Mrs. Wrenn's exceptions to the report are
printed at pages 73 and 74.
The decree provides:
"* * * that the report * * *be and
it hereby is in all respects confirmed, and that
said report be and it hereby is adopted as the
determination and decision of this court as to
all the matters contained in and covered by
said report."
(Decree fol. 34.)

14

Mrs. Catt was entitled to have found:
Her Conclusion of Law I.
(Fol. 229.)

"That said Carrie H. Wrenn is not entitled
to any interest whatsoever upon said sum of
$160,000, and on distribution is entitled only
to said 'the net amount of $160,000.'"
Refused.--C. F. B.

Mrs. Catt's exceptions fols. 206, 207, 208, 211,
212.
Her Conclusion of Law 2.

"That it is the legal duty and promise of
said Carrie H. Wrenn upon receipt of said
'the net amount of $160,000' to execute and
deliver to said Carrie Chapman Catt a conveyance
of all the interest of her, said Carrie
H. Wrenn, as heir at law and next of kin of
said decedent, and as particularly set forth
in said agreement."
Refused.--C. F. B.

Mrs. Catt's exceptions, fols. 209, 213, 214.

See agreement, fols. 248-261;
particularly: fols. 251, 254, 258.

There is no conclusion of law that Mrs. Wrenn
covenanted or promised to or did give any conveyance
as heir at law and next of kin.
(See Agreement, fols. 257, 258.)

Although the Referee did find as "Fact" Mrs.
Catt's (proposed) "Findings of Fact" Nos. 1 and
2 ( fols. 224-226).
"Fact": "That by" (the agreement) Mrs.
Catt "agrees to transfer and assign" (to Mrs.
Wrenn) "out of the share of said residuary"
* * * "and agrees that said sum, to-wit, the
net amount of $160,000 may be paid" (to Mrs.


15

Wrenn) "by the executors" * * * "and did
by said instrument direct the executors * * *
to pay said net sum of $160,000" (to Mrs. Wrenn),
(Fols. 224-226.)

And although the Referee did find as "Fact"
Mrs. Catt's proposed "Fact" 2.
(Fol. 226.)

2.
"That in and by said written agreement
said Carrie H. Wrenn agreed and promised
and bound herself to convey, and does convey
to said residuary all the interest of said Carrie
H. Wrenn in said estate as therein provided."
Found.--C. F. B.

"As therein provided", in said agreement.

(While the Follin interest is not before this
Court, the finding of the referee with regard
thereto is as fols. 193 and 194.)

In view of the provision of the first agreement
betwen Mrs. Catt and Mr. Follin which provided
that Mr. Follin was to make a proper assignment
to Mrs. Catt of all of his interest as heir at law
and next of kin on payment of the first $25,000 of
the $40,000 which assignment was to be made on
the first payment (fol. 280); and in view of the
phraseology of the second agreement between Mr.
Follin and Mrs. Catt (see fols. 297, 298) by which
Mr. Follin "expressly" covenanted for himself,
his heirs, executors, administrators and assigns,
that upon receipt of the aforesaid sum of $100,000
mentioned by Judge Brown in his report, that
Mr. Follin would "execute and deliver to said
party of the second part, her heirs, executors, administrators
and assigns a complete release of

16

all his interest in the estate of said decedent"; the
report of Judge Brown at fols. 193 and 194, is
palpably an oversight.

See 1st Follin $40,000 agreement at fols.
280, 281;
See Follin $100,000 assignment at fols. 289-
291;
See 2nd Follin agreement at fols. 297-298;
See Reports at 194.

Neither Mrs. Wrenn nor Mr. Follin were to receive
any interest.
But both were to deliver conveyances covenanted 
by them.

POINT II.

Mrs. Wrenn's only claim to the $160,000
is not as a legatee, but solely under
written contract prior to probate; and
she is entitled only to what the written
contract expressly provides.

"The instrument is (* * *) a common
law agreement or contract, where individual
minds have met with respect to mutual
stipulations."

Negotiations prior to probate were had between
Mrs. Wrenn's lawyer and Mrs. Catt's lawyer, and
between Mr. Strong and Mr. Cromwell.

(Test. H. E. P., fols. 103-123.)

Mr. Strong and Mr. Parker had in the presence


17 

of Mr. Cromwell about three (3) conferences and
finally agreed upon terms.
(Test. H. E. P., fol. 123.)

No suggestion was ever made for even trust
company interest or income on the amount of
$160,000 until after the commencement of the
Westcott litigation.
There is no provision in the agreement for interest;
the agreement throughout states and stipulates
what each party "agrees" to do.
Mrs. Catt and Mrs. Wrenn were strangers; they
have never met each other.
Their only dealings were between their counsel
and Sullivan and Cromwell, attorneys for the petitioners;
and the papers that were signed by the
clients were papers prepared by lawyers for the
petitioners, the lawyer for Mrs. Wrenn and the
lawyer for Mrs. Catt.
(Test. H. E. P., fols. 103-123.)

Both of the contracting parties naturally used
the phraseology which had been prepared and
agreed to by counsel and submitted by them.
The executors were not to pay before distribution
under the Code.
Mrs. Catt did not agree to the payment before
distribution under the Code.
Of course, Mr. Strong knew his client was to
wait until distribution.
The attorneys for the parties distinctly understood
that they were specifying the exact amount
of money which Mrs. Wrenn was to receive; they
knew that Mrs. Catt owed no money to Mrs.
Wrenn and had never had any business dealings
with her; they knew that such payment was to
be made out of a fund only, and only when distributed

18

distributed; and they knew that such payment could
not be made until distribution of the estate.
Mrs. Wrenn's only claim of "the said sum, to-wit,
the net amount of $160,000" was only by
virtue of an express contract made not with the
decedent but with the residuary legatee under the
will.
At no time did Mrs. Wrenn ever make an application
for payment of the $160,000. At no time
could the same have been paid except when the
greater part of it was paid (in January, 1917,
pursuant to decree).
The parties contemplated a present transaction
with respect to the two (2) assignments which
were made; Mrs. Catt having only remainder interest
therein and the interest on such trust provisions
going during the life of the cestuis to such
cestuis,--the interest on the $160,000 belonging to
Mrs. Catt unless she chose to give it away,--which
she did not intend and did not do.
The agreement under which the two (2) assignments
were made and under which on distribution
Mrs. Wrenn was to receive $160,000 contemplated
that upon distribution there should be passed to
Mrs. Wrenn direct a check for $160,000 or an endorsement
of check for such amount by Mrs. Catt;
and Mrs. Catt was at the request of Mrs. Wrenn
or her attorneys or of the executors to execute
such further orders, directions, "assignments"
and other instruments as may be reasonably requested
of her to carry out the foregoing.
(Agreement, fols. 255, 256.)

That Mrs. Wrenn was ever to receive more than
the flat, expressly stipulated amount of $160,000
was an afterthought; at any rate,--an afterthought
so far as communicating at any time to
Mrs. Catt or her attorney any such claim,--until


19

at some time after the commencement of the Westcott
litigations made it apparent that distribution
could not be had as soon as is sometimes had under
the provsions of the Code when conditions
permit.
That the "agreement" for such $160,000 was
not intended by the attorneys nor by the clients
through their attorneys, nor by the executors, as
being an assignment is very clear from the express
provision of such "agreement."
The executors would not, of course, pay Mrs.
Wrenn any part of the $160,000 except upon Mrs.
Catt's receiving the conveyance contracted for,
and on receiving receipt in full for the only sum
which by the contract "may be paid" by them and
which Mrs. Catt does "direct" them to pay pursuant
to the express provisions of the agreement.
What Mrs. Catt agrees may be paid is expressly 
stipulated.
What Mrs. Wrenn agrees is the full amount to
be paid her is expressly stipulated.
The parties and their attorneys knew that Mrs.
Wrenn's only rights grew out of an express contract
containing every term, condition and agreement
which the parties were willing to stipulate.

"the terms, conditions and agreements
hereinafter contained,"--to
the exclusion of any terms or conditions
or agreements not thereinafter
contained.
(Fol. 251.)

20

POINT III.
Mrs. Wrenn's only right with Mrs.
Catt was to receive payment of an explicitly
stated amount out of a fund on
distribution of the fund.

Mrs. Catt owed Mrs. Wrenn nothing.

Mrs. Catt did not promise to pay Mrs.
Wrenn.

The executors did not promise to pay
Mrs. Wrenn.

Chester v. Jumel, 125 N. Y., 237;
Denike v. Denike, 155 N. Y., 671 (Aff.
8 Misc., 604);
Howard v. Johnston, 82 N. Y., 271;
Murray v. Baker, 6 Hun, 264;
Simon v. Burgess, 146 App. Div., 37;
aff. 213 N. Y., 589;
Koster v. Lafayette Trust Co. 147 App.
Div., 63;
Lawrence v. Church, 128 N. Y., 324 at
332.

[Harward v. Hewlett, 5 Redf. Rep., 330, where
a gift of $1,000 "to be paid to her at majority"
does not draw interest until majority,--the residue
receives the interest meantime.]
In Chester v. Jumel, et. al., 125 N. Y.,
237, the claim of $30,000 of the plaintiff was for
legal services rendered prior to August 28, 1880,
and due and payable that date, in connection with
litigation involving the Jumel Estate.
The case appears below in 5 Supp., 809.


21

The opinion in 5 Supp., the opinion in the Court
of Appeals, and the record on appeal set forth,
and the findings of fact, were uncontradicted that
George J. Schermerhorn had performed legal services
for Charles Adolphe DeChambrun prior to
and subsequent to August 28, 1880; for some of
which services performed before as well as after
August 28, 1880, Schermerhorn had been paid; but
it was uncontradictedly found that such payments
were not a part of the agreement of August 28, 
1880.
For the unpaid services rendered by Mr. Schermerhorn
by Mr. DeChambrun up to August 28,
1880, the parties settled upon the amount due
and entered into the following agreement and stipulation:

"It is hereby stipulated and agreed by and
between Charles Adolphe DeChambrun * *
and Charles J. Schermerhorn * * * that
in consideration of the services rendered by
said Schermerhorn, at the request of said
Chambrun * * * said Chambrun agrees
to pay said Schermerhorn the sum of Thirty
thousand Dollars ($30,000), and such sum of
$30,000 is hereby made a lien upon any moneys
or property which said Chambrun may
receive * * *." Executed August 28,
1880.

(The Asteriks indicate omitted portions of the
agreement; which ran for the benefit of the executors,
administrators, successors and assigns of
the respective parties.)
The suit was in equity to determine certain
questions arising in the Jumel litigation.
The referee allowed interest to Mr. Schermerhorn
on the $30,000 from August 28, 1880; the
General Term disallowed interest on the $30,000
except from 1888 when the property was sold.

22
The Court of Appeals allow interest to Mr.
Schermerhorn on the $30,000 from August 28,
1880, upon the ground that on that day by agreement 
and adjustment of the parties, DeChambrun
immediately owed Schermerhorn $30,000 for the 
legal services already performed, the value of the 
amount thereupon being agreed on that day ; DeChambrun
having promised to pay the same ; and 
the amount being due on that day.
The Court of Appeals at page 253 after mentioning
that no exceptions had been taken to the
findings of the referee allowing interest to 
Schermerhorn ; and after mentioning that on the
appeal from the judgment allowing  interest to 
Schermerhorn no appeal was taken except upon a 
different ground, said :
"But, supposing the question is fairly
raised on this appeal, we are of the opinion 
that interest was properly allowed to Schermerhorn. 
The agreement of transfer in plain 
language imported a liquidation of an existing 
debt from DeChambrun to Schermerhorn
at the sum of $30,000, and the creation of a
lien on the fund as a security for such debt. 
The giving of the security did not postpone
the time for the payment of the acknowledged
debt, or shield DeChambrun from prosecution 
for its immediate collection, if the creditor
elected to pursue that course. The contract
operated as an admission of an existing debt 
for a good consideration, and the law implies 
a promise to pay it. There being no time 
specified for its payment, the law makes it 
payable immediately, and gives interest for 
delay in discharging the obligation after it 
becomes due. (Purdy v. Phillips, 11 N. Y.,
406.)
It cannot be disputed but that DeChambrun
was liable to prosecution for the debt at any
time after the liquidation of the amount, or 
but that interest was recoverable from him 


23
in such an action as damages for not satisfying
the debt when it ought to have been paid.
How then can it be claimed that Schermerhorn 
is not entitled to interest when seeking 
to enforce payment against the property of 
his debtor pledged as security for such indebtedness.
DeChambrun was by force of 
his contract liable to pay interest, and it was
this debt he attempted to secure. The debt
was the sum liquidated with the necessary
incidents attached to its nonpayment. The 
debt by operation of the law necessarily grew in 
amount as the duty of paying it was delayed, 
and cannot be legally satisfied except by the 
payment of the sum due upon it when it is attempted
to be discharged. (People v. County 
of New York, 5 Cow., 334; Dana v. Fiedler, 
12 N. Y., 40.)
We do not think, and indeed it is not claimed 
by anyone that the debt was excessively made
payable from a particular fund, or that the 
creditor was confined to a particular fund
for its enforcement. The contract unqualifiedly
admits an existing indebtedness and refers 
to a fund only as security for its payment."

(Purdy v. Phillips, 11 N. Y., 406, was an action 
on a bond due.)
At 254 the Court said:
"The court below have sought to 
make a distinction between the 
amount of debt admitted to be
due and the amount for which security 
was given."
(Mrs. Wrenn's rights as heir did not draw interest,--
they were not a debt admitted to be due. 
and Mrs. Catt did not owe Mrs. Wrenn.)
The Court of Appeals also cites on page 255 
three (3) English cases in which, upon examination 
of the cases, it appears clear that at the time 
of the making of the respective agreements that

24
the defendants owed to the plaintiffs a definite sum
of money and had promised to pay the same [the
debt was due and payable] at the time of the making
of the respective contracts; and that the plaintiff
in each case could sue at once without waiting
for the distribution of the property mentioned.
Chester v. Jumel and these cases are particularly
good in that they discriminate between cases:
(a) where the defendant had promised to pay
a legal debt then existing and due; and, further,
and as additional security for the debt already
due, gave an order or lien for payment out of specific
property; and
(b) the entirely different case where the defendant
owes the plaintiff nothing, and where a simple
arrangement is made whereby plaintiff must
look only to a specific fund on distribution thereof
for payment, and where in no case could he sue
defendant for any liability whatsoever, except,
perhaps, where a defendant afterwards makes it
impossible for a distribution to be had, or where
the defendant unnecessarily delays distribution.
[The Jumel litigation was in the courts in 133
N. Y., 614; 138 N. Y., 431; 59 Fed., 504]
In Howard v. Johnston, 82 N. Y., 271,
action was brought in 1874 upon a promissory note
for $1,000, dated April 13, 1868, and also upon a
contract bearing same date, executed by defendant,
by which he agreed to pay plaintiff $5,000
"out of any moneys or property" which should
be received by him from the sale or license of certain
patented inventions.
The defendant in connection with certain other
owners of patents, executed an assignment thereof
to one Harding in September, 1868; Harding
receiving the same in trust to collect thereon and
divide the same among the several assignors and 


25
himself in certain specified proportions; and it
was provided that the distribution was to be made
as fast as received, and that out of the first proceeds
before making any dividends, except to defendant,
Howard was to pay to the plaintiff the
sum of $6,000 which sum was included, as the
Referee found, to secure and pay, the debt of the
defendant to the plaintiff upon the note and contract
in suit.
In the action by the plaintiff a Referee was appointed;
and the Referee had held that upon the
assignment to Harding defendant became liable
to pay the $5,000 together with interest thereon.
The General Term reversed the judgment on
the ground that Harding was simply an agent for
the owners who had exercised reasonable care to
protect the interest of the plaintiff; that it did not
make plaintiff's claim due and did not entitle him
to interest.
There was no default in paying over the proceeds
as fast as received save in one instance and 
the Referee charged interest from the time on the
amount then received.
The Court of Appeals said at page 274:
"Folger, Ch. J. We concur with the learned
General Term, that interest did not begin to
run upon the contract, in favor of the plaintiff,
either at the date of the transaction with
the Syracuse company or of that with Harding
and others. The reasons for that conclusion
are well set forth in the opinion delivered
at General Term by Talcott, J., on the
first appeal there, and need not be repeated."
[The General Term twice held, and the Court of
Appeals once, that plaintiff was in no event, except
from distribution, to receive any interest.]
In Howard v. Johnston there was the essential
element that defendant had given a promissory

26
note and a written contract to pay; there was in
April, 1868, a debt from defendant to plaintiff.
In Murray v. Baker, 6 Hun, 264, the defendant
had built some houses in Brooklyn and
the plaintiff agreed to do some flagging in connection
with such houses, the agreement being in
writing signed by the plaintiff and states among
other things:

"I further agree to put down * * * the
flagging that Mr. Baker wishes, * * *
and wait for my pay until Mr. Baker sells
some of the houses for cash, and there, when
sold, I want my bill for flagging paid."

The defense was that the defendant had not at
the time of the trial sold nor been able to sell any
of the houses for cash.
Judgment for the defendant was affirmed.
Mrs. Catt never promised to pay Mrs. Wrenn
nor did the executors.
The "agreement" did not subject Mrs. Catt to
any personal promise to pay; and Mrs. Wrenn
by her contract received and made a simple promise
to look only to a fund on distribution for a specific
amount flatly mentioned.
In Simon v. Etgen. 152 App. Div., 399,
the court refers to various cases where a direct
obligation to pay was made but payment was deferred.
In Ledyard v. Bull. 119 N. Y., 62. the Court said, at page 74:
"Interest is payable for the loan or retention
of money by express contract, or as
damages for non-payment of money due.
Here there was no contract to pay interest;
and hence, no interest could be claimed upon
the $75,000, unless that amount became due
and payable, and the son was in some way in 


27
default for not paying. The general rule is,
that in the absence of an agreement to pay
interest, it is implied by law as damages for
not discharging a debt when it ought to be
paid."

The Court also said at pages 74 and 75:
"Now what are the facts to which these
rules of law must be applied? The father
did not take from his son any obligation for
the payment of $75,000, and there is no
hint in the letter that he expected any interest
thereon.

The Court also said at page 75:
"If there had been any understanding that
he was to have interest, would there not have
been some mention of a matter of such importance,
or would not the interest have been
credited against the moneys had?"

(In that case the parties had agreed so as to
make administration of an estate unnecessary.)
There is no "hint" in Mrs. Wrenn's formal
written contract that she expected interest, - or
that Mrs. Catt or the executors expected her to
receive any.
"If there had been any understanding that" she
was to have had interest, the lawyers would have
"mentioned", - "a matter of such importance."
In Koster v. Lafayette Trust Co., 147
App. Div., 63 the Court said at pages 66 and 67:
"It is well recognized that 'A contract or
debt may be limited to payment out of a
special fund, making the raising and sufficiency
of the fund a condition precedent to
the liability; in which case the promisor would
not become absolutely liable unless the fund
failed through his own default.' (Leake
Cont., 446; See Wakeman v. Sherman, 9 N. Y.,
85, 92; Lorillard v. Silver, 36 id., 578;

28
Tebo v. Robinson, 100 id., 27; Scouton v. Eislord, 
7 Johns., 36; Tyng v. U.S. Submarine & 
Torpedo Boat Co., 1 Hun, 166; Murray v. 
Baker, 6 id., 264)"
Mrs. Catt was never "in default" and January, 
1917, was the earliest time when distribution could 
be had. 
In Denike v. Denike, 155 N. Y., 671 (affirming
without opinion 8 Misc., 604), the Court (General
Term, City Court) below said:
"Clement, C. J. The plaintiff brought this 
action to recover of defendant the sum of
$1,000, with interest from July 11, 1883. In 
the complaint the plaintiff alleged that on or
about July 11, 1883, the defendant applied to
him for a deed of his interest in certain real 
estate, and promised, in consideration thereof,
to pay him the sum of $1,000 and interest
from said July 11, 1883, upon the final settlement 
of the estate of Abraham Denike, 
who had devised the real estate in question
to plaintiff, defendant, and Elizabeth A. Burnham. 
Plaintiff further alleged in his complaint 
that by reason of such promise of the 
defendant he delivered to him a deed conveying 
all his right, title, and interest in and to
said real estate, and that a decree upon a final
accounting of the estate of Abraham Denike
was made and entered on February 6, 1893. 
The defendant denied that he promised to pay
plaintiff the sum of $1,000 at the time of the
delivery of the deed, but testifies that two
years afterwards, in 1885, he did tell the 
plaintiff that he would give him $500 if he received 
a distributive share in the final accounting 
of the estate of Abraham Denike. It 
appears in the final accounting there was 
nothing to divide. The testimony of defendant 
is confused and it is difficult to understand 
what he did mean to say. The jury
found a verdict for the plaintiff for the sum 
of $500, with interest from July 11, 1883. If 


29
the jury had found a verdict for $1,000, with
interest from the date of the final accounting, 
February 6, 1893, it would have been in accordance 
with the testimony of plaintiff. The 
plaintiff did not testify that the defendant 
agreed to pay interest in addition to the $1000
but that he agreed to $1,000 at the last accounting. 
As there was no promise to pay interest, 
and the defendant was not in default
until the date of such accounting, on no theory
of the case was it possible for the defendant
to be liable for interest, except from the date 
of the final accounting. The jury could have
found a verdict for plaintiff for the sum of 
$807.58 (the amount of damages in the judgment), 
and the defendant could not complain ;
bit it appears on the face of the verdict that
the plaintiff was awarded $500 of principal 
and $307.58 interest. The question whether
defendant was liable to plaintiff for the sum
of $1,000 or a smaller amount was one purely
of fact, and was properly submitted to the 
jury. Judgment and order denying new trial
reversed and new trial granted, costs to abide
the event, unless within 10 days plaintiff's 
attorney files a stipulation reducing the damages 
to the sum of $500, with interest from 
February 6, 1893, in which case judgment and 
order denying new trial are affirmed, without 
costs of appeal. 
(Italics not so in opinion.)
The facts in Denike v. Denike, were
that the defendant did promise to pay
the plaintiff; and did promise to pay on
the accounting; and that plaintiff was 
not to look to the fund for payment, but 
to distribution only as the time when defendant 
was to pay, -without a promise 
of interest before distribution. 
In Palmer v. North, 35 Barb., 282 (1861), 
Stephen Stafford died leaving a will. Objections

30
were made by some heirs that certain legacies
were too small. 
Edwin Stafford promised the widow and three
daughters of deceased that if they would not oppose 
the probate and admit service of the citation
that he, Edwin Stafford, would pay the three
daughters two hundred dollars each. 
The action is by an assignee of the 3 daughters
against Edwin Stafford's estate. 
The claim was stipulated and a referee appointed, 
who found:
"3rd. That the amount of the principal so
due the plaintiff was $600, and the amount of 
interest $252, making in all the sum of $852
due the plaintiff, for which he was entitled 
to a judgment against the defendant as administrator."
The defendant appealed, 
Held: Edwin Stafford's promise to his sisters 
to pay them $200 each matured on the probate. 
The Court said, p. 294: 
"The strength of the evidence is in favor 
of the conclusion that the money fell due at
that time. There is nothing fixing definitely 
any other period, and the evidence points to
the time when the duty to pay should be 
deemed fixed and absolute."
(The principal points in the case were legality
of contract, etc.)
Edwin Stafford did promise to pay his sister; 
the agreement to pay was not deferred; and his
sisters were not to look to a fund for payment. 
In Palmer v. North the agreement was oral. 
Other contract was carefully reduced to writing
after conferences were had and after all the provisions 
the parties were willing to have made
were inserted. 


31
"the terms, conditions and agreements 
hereinafter contained"
(Fol. 251.)
"the said sum to-wit the net amount 
of $160,000"
("Third", fol. 254);
"payment * * * of the sums hereinabove 
agreed"
("Fourth", fol. 258). 
These exclude by explicit language. 
"The instrument is (* * *) a common-law 
agreement or contract, where individual 
minds have met with respect to mutual stipulations."
(See 161 N. Y., at 535.)
In Palmer v. North the arrangement was verbal. 
In our case: 
"the said sum, to-wit, the net amount of
$160,000."
(Fol. 254.)
"may be paid to"
(Fol. 254.)
and Mrs. Catt
"Does hereby direct" the Executors to pay
to Mrs. Wrenn "out of her (Mrs. Catt's)
share of the said residuary estate."
(Fol. 254.)
This was the lawyer's phraseology. 
It was no affair of Mrs. Wrenn's whether the 
$160,000 was paid out of Mrs. Catt's "principal" 
or out of Mrs. Catt's interest of the "principal" 
(if "principal" may properly be used here
with residue). 
Ordinarily residue is the residue that is left 
after debts (of a decedent) are paid; but if Mrs.

32

Catt should direct, or if the executors should pay
the $160,000 out of interest and accumulation only
Mrs. Wrenn could not complain.
There is not a word nor any promise that the
$160,000 shall be taken out of "principal"; or
out of "interest"; or out of principal and interest,
--merely the words "out of her (Mrs. Catt's)
share of the residuary estate",--given to Mrs.
Catt by the same will under which Mrs. Wrenn
and her family received benefits.
The Executors did not in their accounting nor
in any other way keep a separate account of principal
and interest from December 4, 1914.
If Mr. Jaretzki or Mr. Cromwell or Mr. Strong
or Mr. Parker had any idea that the contract was
other than it was, Mr. Strong certainly would
have asked that an interest account be kept separately.
Mrs. Wrenn and Mrs. Catt do not even now
know what average rate the Estate produced,--
nor, apparently, the Executors themselves.
And Mr. Strong would doubtless have been active
on the accounting had he made more than a
blanket request, in Mrs. Wrenn's answer, for more
than his client was to receive.
The Will gave the residue by "Article Twelfth"
to Mrs. Catt; and "Article Sixteenth" provides
for lapse into residue in case of failure or direct
or indirect questioning the provisions of the Will.
The contract provides ("Third"):
Mrs. Catt promises to assign to Mrs. Wrenn or
her nominees Mrs. Catt's remainder interests in
the $50,000 trust and in the $5,000 trust.

(Article "Second" of Will, fol. 140.)
(Article "Eighth" of Will, fol. 149.)

See Contract, fol. 253.
See Contract, fols. 256,257.


33

This Mrs. Catt did.

(Test. H. E. P., fol. 113.)
(Assignment, fol. 265.)
(Assignment, fol. 271.)

Mrs. Catt promises to pay the inheritance tax
not only on the 2 remainders but on Mrs. Wrenn's
and Mr. Wrenn's life estates therein, and on Mrs.
Wrenn's specific legacies.
(Contract, fols. 254, 255, 256, 257.)

So that out of the residue Mrs. Catt was to assign
(and did simultaneously with agreement
made), say, $20,000 or $25,000, value of the 2 remainders,
and promised to pay transfer tax.
Also ("Third") promises to pay inheritance
tax on Mrs. Wrenn's legacies under Articles 3rd,
4th, 5th, of the Will.
(Contract, fols. 253-257.)

Mrs. Catt also ("Fifth") waived forfeiture of
legacies.
(Fols. 259, 260.)
So that there came out of the residue:
(1) Principal of $50,000 trust clause (conveyed.)
(Louise G. Wrenn assignment, p. 89.)
(2) Principal of $5,000 trust clause (conveyed).
(Louise G. Wrenn assignment, p. 91.)
(3) Transfer Tax on above, and on Mrs.
Wrenn's specific legacies under the Will.

The contract ("Third") then further provides
for the further sum of $160,000:
"out of her (Mrs. Catt's) share of the said
residuary estate."
(Fol. 254.)

34

Mrs. Catt would lose no interest on either of
the two trust clauses by actually and immediately
making, executing and delivering an assignment
of the principal,--for the cestuis took the net income
for their lives under the will; and actual
conveyances by the 2 assignments of the remainder
principal of $55,000 lost Mrs. Catt no interest,--
even though the statutory distribution did not take
place within a year, or even longer.
Of course transfer tax would preceded statutory
distribution of the Estate under the Code and the
Surrogate's Court Rules.
With the very considerable sum of $160,000,
Mrs. Wrenn was not to receive and Mrs. Catt did
not give interest; and if a bargain had not been
struck, as it was, by a future payment out of a
fund on distribution, and if the agreement were
not as it actually was, Mr. Strong, Mr. Jaretzki
and Mr. Parker knew enough to insert all the benefits
Mrs. Catt would consent to.

POINT IV.

"The said sum, to-wit, the net amount
of $160,000."

There is no express promise to pay or
allow interest.

The "agreement" of December 4, 1914,
excludes interest.

Ledyard v. Bull, 119 N. Y., 62, 74;
Howard v. Johnston, 82 N. Y., 271;
Denike v. Denike, 155 N. Y., 671; affirming
8 Misc., 604;
Saratoga Trap Rock Co. v. Standard


35

Accident Ins. Co., 143 App. Div., 852;
Matter of Cole, 85 Misc., 630;
Chester v. Jumel, 125 N. Y., 237 (and
cases cited);
Dana v. Fiedler, 12 N. Y., 40;
Harward v. Hewlett, 5 Redf. Rep., 330.

The Court said in Denike v. Denike, 8 Misc., 
604, affirmed in 155 N. Y., 671, without opinion:

"As there was no promise to pay interest,
and the defendant was not in default until
the date of such accounting on no theory of
the case was it possible for the defendant
to be liable for interest, except from the date
of the final accounting."

In Denike v. Denike, the defendant did promise
the plaintiff that he would pay the plaintiff.
(Mrs. Catt did not so promise Mrs. Wrenn.)
In that case the time of payment was deferred;
here the time of payment was deferred,--and was
to be out of a special fund only. In that case payment
was not to be made out of a fund.
In Chester v. Jumel, 125 N. Y., 237, the defendant
did promise to pay the plaintiff the amount;
the amount had been earned by prior legal services
performed; the time of payment was not deferred;
the debt was due and payable August 28,
1880; and as additional security for a debt already
due and on which plaintiff could sue without waiting
the defendant gave the plaintiff a lien on the
special fund, not deferring payment.
In Chester v. Jumel, it was the debt that drew
interest from default,--not the lien on the special
fund.
In Saratoga Trap Rock Co. v. Standard Accident
Ins. Co., 143 App. Div., 852.
The Court said at page 855:

36

     "There is no claim in the present case that there was any express promise to pay interest. The general rule is that in the absence of an agreement to pay interest it is implied by law as damages for not discharging a debt when it ought to be paid. (Ledyard v. Bull, 119 N.Y., 62, 74.) Where a contract provides for the payment of money upon the happening of an event, it is not due until the event transpires and interest does not begin to run until that time. (Howard v. Johnston, 82 N.Y., 271.)"
In Matter of Cole, 85 Mise., 630, the Court said, at page 635:
     "I do not think he is entitled to this interest. Interest is only allowed where there is a contract, express or implied, to pay interest or as damage for the non-payment of money due. There is no express contract for interest here nor is there anything in the evidence from which an implied contract could be inferred. And interest could not be recovered as damages for non-payment of money due or for breach of contract, because I do not find that this sum of $550 was due or that the testator should have paid same at any particular time."
     In Woerz v. Schumacher, 161 N.Y., 530, where the trustees of an insolvent savings bank advanced to the first receiver with a provision for reimbursement, it was held that interest should run as therein provided.
    The Court said, at page 535:
     "The instrument is not, in any just sense, a common-law agreement or contract, where individual minds have met with respect to mutual stipulations. In a certain sense it is not a contract at all. The receiver of his own will, had no power or capacity to execute it, or to find anyone by it. He was a mere in-


37
     strument to execute the will of the Supreme Court and hence, one of the real parties to the instrument is the court itself."
   In that case the plaintiffs had loaned to the first receiver and the instrument under order of court provided for reimbursement of the loan.
   Matter of Trustees, etc., 137 N.Y., 95, was a condemnation case.
   The Court said, at page 98:
     "Before interest can be allowed in any case it must be by virtue of some contract express or implied, or by virtue of some statute, or on account of the default of the party liable to pay, and then it is allowed as damages for the default. Here there was no contract obligation to pay interest upon the award, and there was no statute imposing or requiring its payment; and it only remains for inquiry whether the bridge trustees were in default in not paying the award on the thirtieth day of April."
   In Forschirm v. Mechanics and Traders; Bank, 137 App. Div., 149, the plaintiff was a depositor in defendant bank for which temporary receivers were appointed.
   The Court said, at page 151:
     "'Before interest can be allowed in any case it must be by virtue of some contract, express or implied, or by virtue of some statute, or on account of the default of the party liable to pay, and then it is allowed as damages for the default.' (Per Earl, J., in Matter of Trustees, etc., 137 N.Y., 95, 98.)"
   Even a demand promissory note does not draw interest until demand.
     Van Vliet v. Kanter, 139 App. Div., 603.

38
See also:
Lawrence v Church, 128 N. Y., 324 at 332. (Promise of payment in agreement at 325.)
There is no contract express or implied to pay or allow interest; and there was no default. 
There is no express promise of interest or income.
There can be no implied promise of interest or income; for certainly the law does not imply what the attorneys have not consented to and where a bargain has been struck providing for the payment of an exact specific sum out of a fund only and distribute at a future time.
"The instrument is (*  *  *) a common law agreement or contract, where individual minds have met with respect to mutual stipulations."
Mrs. Catt did not owe Mrs. Wrenn any money; they are and were complete strangers except as explicitly set forth in the agreement and the two (2) assignments made under the agreement.
There was no assignment, lien or encumbrance, -- to secure an existing debt upon which debt with interest a party could sue at any time. 
Mrs. Wrenn has no claim to any part of the residue save as expressly set forth in the four corners of the agreement.
Mrs. Catt explicitly stated the full extent to which she consented to payment out of the residue.
The Executors were not authorized or directed to pay anything but the exact sum stipulated.
Mrs. Wrenn has not claimed that there was default by Mrs. Catt or the Executors; she did not claim that she was not paid (all except $2000) at the earliest possible moment; and she would


39
have received the contract price if she had kept her contract to deliver the conveyance.
When on December 4, 1914, before probate, after several conferences, after negotiations and consultations with clients, the lawyers submit and there is signed agreement specifying just what contract rights Mrs. Wrenn is to be given and is to receive, the law does not imply that "the she said sum, to -wit, the net amount of $160,000" shall be construed to mean any larger amount.
Furthermore, Mrs. Wrenn in her own covenant to convey says (as does Mrs. Catt" in par. "Fourth",--"upon the payment *  *  * of the sums hereinabove agreed to be paid" to her. (Fols. 258.)
If it had been payable prior to distribution it would have so provided. 
The $40, 000 settlement with Mr. Follin did so provide because so agreed.
Again, as suggested in Ledyard v. Bull, 119 N. Y., at 74, 75, (see Point III), "there is no hint", there is no "mention".
Counsel who drew the contract knew how to do both.
Point V. 
"The said sum, to-wit, the net amount of $160,000."
This does not mean the "uncertain" sum, consisting of $160,000 together with interest, income or increment thereon to some future time, when neither the Executors nor Mrs. Catt were in default.

40
Mrs. Wrenn's only grievance is that the unfortunate 
Wescott litigations necessarily held up
distribution under the Code until January, 1917, 
-a feeling in which Mrs. Catt and the other legatees 
concur. 
POINT VI. 
The agreed amount could not be paid 
before January, 1917. 
Mrs. Wrenn does not claim otherwise. 
(Her answer, her proposed findings, and the 
Report.)
Her answer (fol. 96). 
Her proposed conclusion of law 9 (refused)
fol. 247. 
There could be no default certainly before January 
25, 1917. 
See Cases, Point III. 
Mrs. Wrenn's proposed Conclusions of Law No. 
9, at fol. 247, was refused; and the report was 
filed Jan. 19, 1917. 
(Decree, fol. 27.)
The Referee's action on such proposed conclusion 
of law was adopted and confirmed by the decree 
(fol. 34) and Mrs. Wrenn did not appeal. 
The application of Arthur Leslie to open the 
probate followed the "two-thirds" actions, and 
never until January, 1917, could distribution be 
made even to the pecuniary legatees. 
(Point XI,              .)
(Statement of Facts,               .)
The 3 "two-thirds" litigations commenced on


41
and after December 12, 1914, were not discontinued 
until December, 1915. 
The application to open the probate was not 
affirmed in this court until November, 1916. 
Mrs. Wrenn had no action against the Executors 
obviously prior to January, 1917. 
Even then she could not require payment in the 
Surrogates' Court, except upon an accounting; 
even with the Executors' consent. 
Matter of Wood, 38 Misc., 64; 
Tilden v. Dows, 3 Dem., 240; 
Peyser v. Wendt, 2 Dem., 221;
Rogers Estate, 16 Supp., 197. 
(She did not take under the Will.)
Mrs. Catt was the natural one to make application; 
she did; it was not opposed; and Mrs. Wrenn
was forthwith paid - and would have been paid
in full on receipt in full on conveyance as she 
covenanted. 
POINT VII. 
Before she receives her $160,000 she 
must execute and deliver to Mrs. Catt
the conveyance of all her interest as heir 
and next of kin. 
McCammon v. Kaiser, 218 N. Y., 46; 
Delaware Trust Co. v. Calm, 195 N. Y., 
231; 
Ketchum v. Alexander, 168 App. Div., 
38. 
See Point I. 
And she must give receipt in full to the executors.

42
In fact, by the agreement, the parties plainly 
say the only sum that Mrs. Catt "agrees may be
paid" and the only sum Mrs. Catt "does hereby
direct" is "the said sum, to-wit, the net amount 
of $160,000". 
(Agreement, fol. 254.)
(Agreement, fol. 258.)
POINT VII. 
The "agreement" of December 4, 1914, 
was not and was not intended even as 
an equitable assignment; and the only
assignments contemplated or intended
were those made. 
On distribution Mrs. Wrenn was to
convey to Mrs. Catt and was to receive 
"the said sums hereinabove agreed to be
paid to her" then distributable, as stated. 
"Assignment" is not a word of magic; the 
paper within its four corners states what is to be
received. 
The instrument is labeled "Agreement made". 
(Fol. 248.)
"This agreement" shall bind parties and their
representatives to cover in case of death of either
party. 
(Fol. 260.)
The acknowledgments are of "the foregoing
agreement". 
(Fol. 262.)


43
The cover was labeled "Agreement". 
(Fol. 264.)
The lawyers' expressions show that the instrument 
was an agreement. 
The agreement contemplates 2 assignments,-
both of which were made, -executed by the assignor 
with appropriate language, both reciting 
the agreement and Mrs. Catt's promise to execute
the 2 assignments in question. 
The 2 assignments (fols. 266, 267; 272, 273) recite 
the "agreement" this day entered into between 
the contracting parties, and when the lawyers 
intended to make an assignment such instrument 
was executed by one person only with the 
natural expression "to have and to hold unto the 
said (                 ) to his own use absolutely 
and forever". 
Assignment re $50,000, fol. 268. 
Assignment re $5,000, fol. 272. 
The papers intended by the lawyers as assignments 
do not bind the legal representatives; they
were 2 completed instruments taking immediate 
effect, and fulfilling all that was then to be completed. 
The "agreement," on the other hand, looked to
distribution; and at such time the payment to Mrs. 
Wrenn out of the residue of the carefully specified
and definite amount of $160,000, when, it was contemplated 
Mrs. Wrenn should convey to Mrs. Catt
all Mrs. Wrenn's interest as heir and next of kin. 
(Agreement, fol. 254.)
(Agreement, fol. 258.)
Mrs. Wrenn was not so to convey until she 
should be paid "the sums hereinabove agreed to
be paid to her."
(Agreement, fol. 258.)

44
It was to be "subject to", -"and conditioned
upon" the payment of a specified explicit sum. 
(Fol. 258.)
"the said sum, to wit, the net amount of
$160,000."
(Fol. 254.)
It was to be "subject also", -"to the specific
bequests" to Mrs. Wrenn under Articles 3rd 
[household effects], 4th [jewelry] and 5th [personal 
effects]. 
(Fol. 258.)
Mrs. Wrenn has never tendered such conveyance 
to Mrs. Catt, nor is she, now, willing to receipt 
in full if paid the specified amount. 
Mrs. Wrenn has never claimed that she was entitled 
to be paid, except on distribution. 
Her bequests under the will she was not entitled
to on December 4, 1914, -certainly not for a year
after issuance of letters testamentary. 
The $50,000 and $5,000 trusts were not segregated 
at the time of the Report. 
Her conveyance to be made to Mrs. Catt was expressly 
"subject to and conditioned upon the payment" 
of the various specified sums. 
(Fol. 258.)
And then the "agreement" provides for
["Fifth"] a release as to threatened contest so
that at a later time Mrs. Wrenn and her sons
could be paid legacies. 
(Fol. 259.)
Mr. Strong, naturally, did not want his client 
to convey to Mrs. Catt his client's rights as heir
until time for payment of the specified sum of 
$160,000, - it was to be "subject to and conditioned
upon payment" on distribution. 


45
The will had not been probated. 
Mrs. Wrenn was not to be bound by an unconditional 
conveyance until she got her money. 
Mrs. Catt did not consent to payment unless
she received an unconditional conveyance. 
Mr. Jaretzki, Mr. Strong and Mr. Parker all
knew how to draw an assignment when intended
as such; and 2 assignments (fols. 265-275) were
drawn with apt language-"to carry out the terms
of the agreement * * *". And all three (and 
Mr. Cromwell) knew whether the settlement and 
agreement was to be for a larger or different 
amount than they stated. 
And all three knew that the residue would not 
be paid until distribution; that the $160,000 was 
part of the residue; that a direction to the executors 
and that they "may" pay a specified exact
amount on distribution was in view of Mrs. Catt's
receiving a conveyance absolute from Mrs. Wrenn
when on distribution money was available to pay
over. 
Mrs. Wrenn received $158,000 out of $160,000
and she could have had the $2,000 had she kept 
her agreement. The executors would not, of
course, pay the money without a receipt in full. 
Mrs. Catt has received a far less proportion than
has Mrs. Wrenn.

46
POINT IX.
   If the agreement were an assignment. Mrs Wrenn conveyed "subject to and- conditioned upon the payment *** of the sums hereinabove [expressly] agreed ***."
   The expressly agreed sums were : (1) the $50,000 trust clause remainder, (2) the $5000 trust clause remainder, (3) transfer tax on these and on Mrs. Wrenns legacies under the will; (4) "the said sum, to wit, the net amount of $160,000"; (5) Mrs. Wrenn's gifts in will.
     (1)-- fols. 253 and 258;
     (2)-- fols. 256 and 258;
     (3)-- fols. 254, 255, 257, 256 and 258;
     (4)-- fols. 245 and 258;
     (5)-- fols. 258, 259, 260 and 258.
   
   If the agreement had been an assignment by Mrs. Catt to Mrs. Wrenn, there was a conveyance by Mrs. Wrenn to Mrs. Catt "subject to and condition upon", only of and on the payment to Mrs. Wrenn of the explicit $160,000 on distribution and the payment of her legacies under the will,--" of the sums hereinabove AGREED to be paid to her",--" and subject also to the specific bequests made to "Mrs. Wrenn under the will,-- "and which special bequests" MRs. Catt was not to receive.
     (Fols. 254, 258.)

   The same language is used by Mrs. Wrenn as by Mrs. Catt

47
   If there was an assignment by Mrs. Catt to Mrs. Wrenn, there was likewise assignments to Mrs. Wrenn of the trust remainders without the 2 assignments; and the language by Mrs. Wrenn would operate a conveyance by Mrs. Wrenn to Mrs. Catt of all rights,-- again specifically stating the exact amounts. And the 2 assignments of the same date were at least unnecessary if the agreement were mutual assignments.
   The same language is used.

POINT X.
   Even if there had been an assignment on December 4, 1915, it would have been by agreement out of residue, and the parties excluded any interest or income thereon.
   Again, as mentioned in Point III, Mrs. Wrenn could not complain if Mrs. Catt directed the Executors to, or the Executors did, pay the amount out of any part or portion of the residue; whether out of Mrs. Catt's corpus or accrued income.
   If the Executors on distribution sold some real estate (which was equitably converted into personalty by "Article Thirteenth" of the Will) to pay Mrs. Wrenn the contract amount, Mrs. Wrenn could not complain.

48
POINT XI. 
Even if the agreement were an assignment; 
and even if an assignment necessarily 
bore income; Mrs. Wrenn stood in 
no better position than Mrs. Catt. 
The 3 unfortunate Westcott "Two-thirds" actions 
and the Westcott application to open the
probate were pieces of litigation of which Mrs. 
Catt obviously knew nothing and could know 
nothing. 
If she had known, she would not have contracted
either with Mrs. Wrenn or Mr. Follin. 
It cannot be seriously urged by Mrs. Wrenn
that, before probate, that Mrs. Catt could reasonably 
be supposed to have contracted with in view: 
(I.)
Actions on a verbal contract between Mr. and
Mrs. Leslie made in 1879 (when a husband and 
wife could not contract) and in the face of the 
later contested will of Mr. Leslie. 
92 N. Y., 636; aff. 15 Week. Dig., 56. 
(II.)
Application to open the probate on the ground 
that Mrs. Leslie was a negress slave and the only 
illegitimate child of an unknown negress slave
which never existed. 
The contract between Mrs. Catt and Mrs. Wrenn
(and Mr. Follin) was made December 4, 1914, and 
contemplated avoidance of a contest by Mrs. 
Wrenn, a niece; and obviously, contemplated that


49
there could not be a contest by any one else, -the 
very reason for the agreement. 
MRS. WRENN AND MR. FOLLIN BOTH STATED AND 
REPRESENTED THEMSELVES IN THEIR CONTRACTS TO
BE THE HEIRS AND NEXT OF KIN; AND IT IS OUTSIDE
THE PALE OF IMAGINATION TO SUPPOSE THAT MRS. 
CATT IN THE FACE OF THESE TWO WRITTEN STATEMENTS 
IS THE TWO CONTRACTS TO AVOID ANY CONTEST
OF THE WILL, COULD BE TAKEN TO HAVE CONTEMPLATED 
CONTESTS OF THE WILL BY WESTCOTT; OR 
COULD BE TAKEN, WITHIN THE CONTEMPLATION OF 
THE PARTIES, OR THE EXPRESS AGREEMENT, TO HAVE
INTENDED TO EXONERATE MRS. WRENN FROM ANY
EXPENSES IN CONNECTION WITH FUTURE CONTESTS. 
Mrs. Catt did not say that she would enter into
such a contract with Mrs. Wrenn and between her
and Mrs. Wrenn pay out of the income the expenses 
of these Westcott litigations, leaving Mrs. 
Wrenn to receive the undiminished income (say,
4% or perhaps 4 1/2%) on $160,000; and particularly 
when the litigation was directed at the two
heirs, and at the probate in direct consequence. 
If by assignment, the contract and mutual 
status of Mrs. Catt and Mrs. Wrenn were fixed by
their agreement reduced to black and white in 
writing as of December 4, 1914, it is exceedingly 
clear that of that date were fixed the proportionate 
shares of the residue of the two. 
In other words in such case, December 4, 1914, 
were the date as of which the contractual participation 
of the 2 were fixed; in such case should be
taken the status of the residue as between the 2
contracting parties. 
The application to open the probate, if granted, 
really meant that Mrs. Wrenn and Mr. Follin had 
falsely represented themselves to be the heirs, and

                                                                        50

had procured (however innocently) contracts on the faith of the false statements; and such litigation was more directly aimed at Mrs. Wrenn and Mr. Follin than against the will itself, as the litigation looked only to the establishment of a status, later to attack the will.
       If Mrs. Wrenn and Mr. Follin had been adjudicated not to be heirs the will would not thereby be invalidated.
       The 3 Two-thirds" litigations were discontinued without costs by stipulation; the actions were at law,-which did not lie,--and the only defendants were the executors.
       If an equity suit to impress a trust on the estate had been commenced and won, obviously Mrs. Wrenn's ultimate $160,000 would have been impressed along with the rest of the estate.
       In Lawrence et al., a8 Exrs. v. Church, as Err.. 128 N. Y., 324, the court said at page 331:.
               "Such expenses are not, as to the parties to the agreement, expenses of administration to 
       be deducted ***. They could never have been in the contemplation of the parties."
       In that case the agreement appears on pages 325 and 326. 
       In that case the expenses arose in litigation between the parties themselves. 
                (See Opinion on page 331.)
       In other words, in such case there would surely be just as much reason and sense in charging up against the income of $160,000 all the expenses of the extraordinary Westcott litigations as there would be in charging them up against any other part of the same residue.

                                                                             51
         And there would be just as much sense in charging them up against Mrs. Wrenn's $160,000 as against Mrs. Catt's,-assuming, all along, that the "agreement" was an "assignment" or "an absolute assignment." 
         (And assuming still further, that there was a provision for proportionate income.)
         The sum of $160,000 was not marked, was not dogeared, was no more to be traced than any part of the same residue.
         The debts of the estate were (relatively) small in amount; and the legal expenses of the executors would be small aside from the extraordinary Westcott litigations which Mrs. Catt did not promise Mrs. Wrenn to pay in exoneration of Mrs. Wrenn's $160,000.
           When Mrs. Catt was to exonerate Mrs. Wrenn it was so provided--the transfer tax.
                         (Fols. 254, 255, 257.) 
        There cannot be infused into the contract exonerations of expenses other than those covenanted by Mrs. Catt; for Mrs. Wrenn's only right to any part of the $160,000 is created and provided for only by individual contract.
        THE INDENTURE DOES NOT STATE THAT ANY PARTICULAR PART OF TAPE RESIDUE SHALL BEAR THE EXPENSES OF EXTRAORDINARY LITIGATIONS NOT CONTEMPLATED BY THE PARTIES.
         As between these two contracting parties such expenses of such litigations were obviously not administration expenses of the estate contemplated as between the two on December 4, 1914. when they contracted.
           It might, perhaps, become of comparatively little importance on the score of actual results to Mrs. Wrenn, because as between the 2 there will


52

be comparatively little income left to the residue if the executors' bills to their attorneys continue in proportion to their charges hitherto,--and if such charges are sustained.
      [Assuming all along that the indenture had specifically provided that Mrs. Wrenn was entitled to income on $160,000.]
      During the accounting Mrs. Wrenn did not participate in any objections to lawyers' charges and was seemingly not financially interested so long as she should receive, -"the said sum, to-wit, the net amount of $160,000",--the amount she contracted for.—and providing distribution should follow soon after so that she should receive it.
     The account of the executors was filed December 15, 1915; and although the Two-thirds" litigation had been discontinued without costs at that time, the Westcott litigants were by the executors rights on the accounting: though Mr. Surrogate Fowler had not yet decided the Arthur Leslie application to open the probate.
     The 4 grandchildren of Mr. Frank Leslie were objected to as improper parties by Mrs. Catt and Mrs. Wrenn. And on motion of Mrs. Wrenn were stricken from the citation as improper parties to this proceeding.
    The only action by these grandchildren would have been in equity to impress a trust on the property passing under the will; and Mrs. Wrenn was obviously as much interested in not having her ultimate $160,000 impressed with such a trust as was Mrs. Catt and the other legatees under the will,-including Mrs. Wrenn herself.
                    Phalen v. United States Trust Co., 186 N. Y., 178;
                    [Also 100 App. Div., 264: 108 App. Div., 365];
                    [And numerous other cases].

                                                                        53

      Mrs. Wrenn was obviously interested in having the application to open the probate thrown out; for in her contract she had represented as fact her heirship and on such heirship only she was to receive only $160,000 on distribution; and it would be an odd situation if such litigation, defended by the executors and Mrs. Catt in particular, should eventuate into an expense to be borne solely by Mrs. Catt—as between Mrs. Catt and Mrs. Wrenn.
      Again, as said in Lawrence v. Church, 128 N. Y., 324 at 331 :
                  "Such expenses are not, as to the parties to the agreement, expenses of administration to 
        be deducted. They could never have been in the contemplation of the parties."

       Even if Mrs. Catt and the executors had by some instrument absolutely and unqualifiedly transferred, set aside and segregated $160,000 for Mrs. Wrenn and done so by instrument other than an equitable assignment, it would seem that out of such fund should be paid all of the expenses of the application to establish the heirship of the "Leslies" and necessarily to establish that Mrs. Wrenn and Mr. Follin were not heirs,-or rather out of Mrs. Wrenn's and Mr. Follin's portions.

     To say that the expenses of defending the Westcott litigations were or should have been within the contemplation of the contracting parties as against Mrs. Catt is to say that the contracting parties contemplated that the statements made by Mrs. Wrenn that she "represents that she is a niece of the said Frank Leslie and one of her heirs at law and next of kin" were false [however innocently made]; that the parties contemplated or should have contemplated that they were false;

54

and that in the face of such representations upon the faith of which the contracts were made, that the parties contemplated or should have contemplated that the Westcott litigations of which Mrs. Catt obviously knew nothing, might be brought.

POINT XII.

The answer of Mrs. Wrenn verified more than one year after the agreement, and her proposed findings submitted over 2 years after the agreement.

Not the slightest "mention" of "interest" or "income" or "increment" is suggested in the "agreement"; not is claimed [as pointed out in Ledyard v. Bull, 199 N. Y., at pp. 74 and 75] to have been "hinted" or "mentioned" in the negotiations prior to the agreement, nor in the drafts, when the bargain was struck and as struck put down in black and white and signed and sealed and delivered.
"If there had been any understanding that he was to have interest"
Ledyard v. Bull, at 74 and 75,

"some mention of a matter of such importance"
Ledyard v. Bull, at 74 and 75,

would have been made.
Particularly, where as in Mrs. Wrenn's answer of January 28, 1916, her proposed findings, her requests on the trial for quick distribution after January, 1917, and the report; it is conceded that she was not entitled until distribution and only then out of a fund.



55

POINT XIII.

Findings of fact and conclusions of law should be made by this court.

See Point I.
See Point III.

The Referee's report is in such shape that it is impossible to tell what are findings of fact and what are conclusions of law.
The findings, insofar as they are findings of fact, are such that the Referee was obviously in error not only in what took place, but what the agreement specifically set forth on its face.
Of course, the indefinite claim of "increase" of "interest" or "income" or "increment" came at the fag end of a long reference.
There was insufficient time taken up by the attorneys in the consideration of this matter; but that the Referee read the agreement wrong, and forgot or overlooked the facts as to the making and delivery, is obvious.
The 3 papers consisting of the agreement and the 2 assignments; together with the Follin agreement; all dates December 4, 1914; all these 4 papers were simultaneously executed and delivered.
(Testimony H. E. P., fol. 113.)
(Uncontradicted.)

The Referee is absolutely in error in finding [whether as fact or law] the the assignment [in blank] of the $50,000 remainder was "there-

56

after by an assignment in writing", &c., delivered; and the same is true as to the $5000 remainder.
(Report, fols. 191-193.)

The referee indicates [whether of fact or law] that:
"On December 4th, 1914, an agreement in writing was entered into between * * * whereby it was agreed as follows:
[This is of course correct.]
(Fol. 187.)

"1. That said Carrie Chapman Catt agreed to transfer" the remainder in the $50,000 trust.
[This is of course correct.]
(Fol. 188.)

"2. Said Carrie Chapman Catt further agreed to and did by said instrument assign and transfer" and does not follow the language of the paper,- and does not mention paragraph "Fourth."
[But he "found" Mrs. Catt's proposed fact I.]

"3. The said Carrie Chapman Catt further agreed to assign and transfer" [the $5000 trust]
and
"Thereafter",- did assign and transfer the two trust remainder (fol. 191).
If by the "agreement in writing" the $160,000 were assigned then by the same agreement and in the same language were assigned the 2 trust remainders,- and in "Fourth" a conveyance by Mrs. Wrenn,- which is either a conveyance or is not one.
If it is a conveyance by Mrs. Wrenn (in the same language used by Mrs. Catt.- Mrs. Catt is entitled to findings of estoppel against Mrs. Wrenn establishing 




57

such a conveyance,- "subject to and conditioned upon the pavement" to Mrs. Wrenn of the explicit sums, to-wit, $160,000, the trusts assigned and Mrs. Wrenn's specific bequests upon distribution.
(Agreement, fols. 254, 258.)

If it is not a conveyance obviously Mrs. Wrenn has covenanted to convey on receipt of the same identical sums.
The covenants of Mrs. Wrenn, the report itself does not even mention, - and yet the very essence of the agreement was that Mrs. Wrenn was to "convey" her rights as heir (as was Follin),- and by the agreement she was not to do so unless and until paid the contract price.

[See Follin agreement at fol. 280.]
[See 2nd Follin agreement at fols. 297, 298.]

What the referee says as to income in his report (at fols. 194, 195) is not clearly stated assuming that he was not in error in fact as well as in law.
The agreement permits payment of the $160,000 out of income derived from the residue,- or the corpus,- the will gives the residue and of course the "income" to Mrs. Catt.
Indeed the report says "out of any moneys" (fol. 194) payable to Mrs. Catt "as residuary legatee". The report itself does not say out of corpus, but then follows provision as to "interest".
The decree says "out of any moneys payable to Carrie Chapman Catt as residuary legatee under the Will * * * ."
(Decree, fol. 37.)

58
Apparently the Referee says that Mrs. Wrenn must wait until decree of final distribution for her $160,000.  
    "At the time of payment" of the $160,000 "out of any moneys payable to" Mrs. Catt "which shall ultimately be paid to the residuary legatee" is certainly not clear, and becomes less clear on study. 
    The referee "found" Mrs. Wrenn's proposed Finding of Law, No.2, —that, as between the contracting parties, Mrs. Wrenn "became entitled to the immediate possession" on December 4, 1914, of $160,000 "of the corpus of said residuary estate" (fols.241,242). 
      (The Referee "found" Mrs. Wrenn's proposed "fact" No.1. But he also "found" Mrs. Catt's "fact" No.1.) 
      (Fols.224,225.)
    If this was only between the two, could the executors use the $160,000, or the interest thereon, or both in the Westcott litigations?
   How could she be "entitled to the immediate possession" even as between the two? 
     Distribution has not been made. 
     The Will was not yet probated. 
      The Referee then "found" Mrs. Wrenn's proposed conclusions of law No.3 "that on the 4th day of December, 1914," that Mrs. Wrenn "became entitled to all the right", &e., of Mrs. Catt as residuary legatee "then had" in the residuary estate "to the extent of" $160,000 "and to all rights, benefits and advantages subsequently accruing therefrom". 
      (Fol. 242.) 
    Mrs. Wrenn's proposed findings of law No. 4 "Found" changes the phraseology and meaning of her own agreement, —the agreement says nothing 


59
of the sort in fact or law; and provides quite to the contrary. 
        (Fol.244.)

    No. 5 of law proposed by Mrs. Wrenn was refused (fol.244). 
    In this (refused) proposed conclusion further to reform the agreement by substituting a new agreement Mrs. Wrenn tried to reach out for all the gains, shirk all the losses, and have Mrs. Catt shoulder all the expenses (not even contemplated) of the Westcott litigation, —one of which directly contested Mrs. Wrenn's own heirship. 
    To such refusal Mrs. Wrenn excepted (fol. 219). But Mrs. Wrenn did not appeal. 
    The refusal of Mrs. Wrenn's proposed conclusion of law No. "9". "That there should be an immediate distribution of the Estate" in connection with the agreement, her answer of January 28, 1917, and her requests for distribution, — all these established beyond peradventure: 
                                     (a)
   That the $160,000 was payable (only) out of a fund. 
                                     (b) 
  Only on distribution. 
                                     (c) 
  That Mrs. Catt never owed Mrs. Wrenn. 
                                     (d)
   Subject to the 2 assignments of the trust remainders and transfer tax. 
"out of her (Mrs. Catt's) share of the said residuary estate" 
                 (Agreement, fol. 254.) 
whether out of principal or interest Mrs. Catt could say

                                                                                 60
                                                                                 (c)
was to be paid.
        "the said sum, to wit, the net amount of $160,-000", 
said being
        "the sums hereinabove agreed to be paid to her."
                                                                              _________
    The agreement does not say "corpus",--and it does not say "interest".
   And no court can change the contract.
                                                                              _________

                                                                            POINT XIV.
                                                        The decree should be modified.

      The words appearing at fols. 194, 195, as follows:
      "Together with such proportion of interest and ending with "to the residuary legatee". 
should be stricken out, and Findings made and the decree modified.
       And the decree should further set forth that it is the duty of said Carrie H. Wrenn to tender conveyance as provided in Paragraph Fourth of said contract before receiving or being entitled to said $160,000 or any part thereof.
                                                 Respectfully submitted,

                                                         HORACE E. PARKER,
                              Attorney for Mrs. Carrie Chapman Catt,
                                                                         100 Broadway,
                                                                              New York City.

[*3 copies fined Feby 26 1918*]

[*[?]*]
[*17*]

To be argued by 
GEORGE A. STRONG. 



Supreme Court. 
APPELLATE DIVISION — FIRST DEPARTMENT. 

IN THE MATTER 
of 
the Judicial Settlement of the 
Account of Proceedings of 
LOUIS H. CRAMER and WILLIAM 
NELSON CROMWELL, as Executors 
of the last Will and Testament 
of 
FRANK LESLIE, 
Deceased. 

Points for Mrs. Carrie H. Wrenn, 
respondent on appeal by Mrs. Carrie 
Chapman Catt, from one part only of 
Surrogate's decree. 

This is an appeal by Mrs. Carrie Chapman Catt, 
the residuary legatee under the will of Mrs. Leslie, 
from so much only of the decree of the Surrogate, 
settling the executors' accounts, as awards 

[*Catt + 46 [?]*]
[*Nov 9/22.*]

2

to Mrs. Carrie H. Wrenn certain income. The sole controversy is over the right of Mrs. Wrenn to that income, and the precise question, we contend, is whether the owner of a fund is entitled to its earnings. The facts are in a nutshell: On December 4th, 1914, Mrs. Catt assigned to Mrs. Wrenn $160,000 of the residuary estate (fol. 254). Thereafter the entire estate became involved in litigation, assailing even the validity of the will. 

                  Matter of Leslie, 175 A.D., 108. 
    Mrs. Wrenn received nothing under her assignment until about January 25, 1917, when the sum of $158,000 thereof was ordered to be paid to her account (fol.37). During all this time, however, assets of the estate were earning income, but the executors had decided to pay nothing under the will until the litigation ended, or until so ordered by the Court. After it ended, and upon the foregoing facts, Mrs. Catt has denied Mrs. Wrenn's right to any part of this income, but upon the executors' accounting before Hon. Charles F. Brown, as Referee, he held that Mrs. Wrenn was entitled to a pro rata share of income (fol. 194) and the Surrogate also so held (fol. 37). It is from this part alone of the decree that Mrs. Catt now appeals (fol. 18). 

                   POINT I. 
   The record is really conclusive on this appeal, as to respondent's right to income. The basic fact upon which such right must depend, is res adjudicata

   The very first question on this record is what there is open to dispute. The appeal is expressly 

                 3 
confined by most careful language to that part of the decree which awards interest (fol. 14-16). But the report (fol. 194) and the decree (fol. 37) nowhere award any "interest," as such. They award earnings, "interest earned" and nothing else. Mrs. Catt's whole brief rests upon an entire misconception of what the Court below really did. The case is argued from first to last as if she had been adjudged to pay interest to Mrs. Wrenn. Nothing could be further from the actual decision made. It simply adjudged that several owners of different parts of a large fund were entitled to the earnings of the fund pro rata, —i.e. according to their respective shares of the fund. But the decree did something more than merely to divide these earnings pro rata, and the division of the earnings follows ex necessitate, automatically, as a legal consequence upon other decisions made below, to which Mrs. Catt did not except, and from which she has not appealed. 
     The referee construed the instrument of December 4, 1914 and held it to be "an absolute assignment, as of the 4th day of December, 1914," (fol. 241) entitling Mrs. Wreen "as between herhelf and Mrs. Catt * * * to the immediate possession" of the amount assigned (fol. 242) and also "to all rights, benefits and advantages, subsequently accruing therefrom (fol. 243). He then, it is true, further held specifically that she was entitled to this pro rata share of the earnings (fol. 194). The Surrogate confirmed the Referee's report expressly ratifying and adopting all the referee's findings (fol. 34). Mrs. Catt excepted generally to the Referee's "report", not to particularly findings therein (fols. 199-210). She did not even except to the above specific findings as to the instrument of December 

4

4th, 1914, which we contend must be controlling 
in this Court (Supra.) The present appeal moreover, 
as already stated in expressly limited to the 
giving of "interest". Mrs. Catt, therefore, upon 
the appeal acquiesces conclusively in the decision 
made by the referee and adopted by the Surrogate, 
as to the nature and character of this instrument 
and the general consequences which must flow 
therefrom. It stands here as an absolute assignment, 
(fol. 241) entitling the assignee to "immediate 
possession (fol. 242) of what was assigned. 
She also acquiesces in their decision, (which could 
not be disputed) that the absolute assignment 
of a certain part of the residuary estate per se entitled 
Mrs. Wrenn "to all rights, benefits and 
advantages subsequently accruing therefrom", 
(fol. 243) which would, of course, include the disputed 
earning, and necessarily compels Mrs. Catt 
now to contend, in support of her appeal, that a 
share of the earnings is not one of those rights. 
In one word, while seeking to appeal from the 
particular matter of "interest", as she calls it, 
she has not appealed from the general rulings, 
which of themselves suffice to entitle Mrs. Wrenn 
to all income earned by the assigned fund, had no 
specific ruling to that effect been added. Suppose 
this latter ruling had been omitted, would Mrs. 
Wrenn have no right to those earnings, when ascertained? 
Not all of the foregoing rulings, how-
ever, are of equal importance. For there can be 
no dispute that the nature and character of the instrument, 
as an absolute assignment, are upon this 
appeal res adjudicata between the parties, and 
whether the Referee had or had not then made the 
other findings to which we have referred, the law 
itself would say, that an absolute assignment of 
property did carry with it all the "rights, benefits

5

and advantages subsequently accruing therefrom."
Acquiescing, as the appellant does, in this
adjudicated nature and character of the instrument,
there can no longer be any question, whether
the assignee of such an instrument is necessarily
entitled thereafter to all earnings of the fund assigned.
That is a proposition, we say, not necessary
to discuss. It amounts to just this:--if A
make an immediate, absolute, assignment to B of
a certain fund, do its subsequent earnings thereafter
belong to A or to B? Mrs. Catt's precise
contention then--to include now all the findings
made, and not appealed from,--is that in spite of
Mrs. Wrenn's absolute title to the fund, in spite
of her right as between themselves to immediate
possession of it, in spite of her right to all its benefits
and advantages, neverthless, because certain
third persons obstructed for a time this immediate 
possession, and the enjoyment of the
benefits and advantages, Mrs. Catt and not Mrs.
Wrenn, is entitled to the earnings of the fund, during
this delay in paying it over.
That contention we leave to make its own argument.
Mrs. Catt's exceptions did not raise even before
the Surrogate the question as to the nature
and character of the instrument of December 4th,
1914. For she did not, as we have pointed out,
except to the Referee's findings above discussed.
But whether she did or did not entitle herself to
argue that question before the Surrogate, she is
not entitled to argue it here, for in no way has she
raised it here by her notice of appeal.

6
POINT II.
Were the question open for argument
on the record, there could 
really be no doubt, as to the true nature
and character of the instrument
of December 4th, 1914.
There are several reasons for this contention.
A. This instrument is unmistakably and ordinary
legal assignment.
Mrs. Catt once owned whatever might prove to
be the residuary estate. She then execute and 
delivered the instrument of December 4th, 1914,
the language of which (fol. 254) is that she
"agrees to assign, and does hereby assign and
transfer * * * the sum of $175,000" (subject
to the inheritance tax thereon). Although
the first sum named as the amount assigned was
$175,000, the instrument at once went on to provide
that Mrs. Warren was not to get that amount.
$15,000 were estimated to be the inheritance tax.
The instrument then provided that if the tax were
more, Mrs. Catt must pay it. If less, nevertheless
[Mrs. Wrenn was to get only $160,000, and 
only that amount was directed to be paid over
to her by the executors. The legal effect, of 
course, was to assign $160,000 and no more.] But
the character of the instrument as a legal assignment
of $160,000 is too plain to be argued. In
no respect does the instrument differ from the
ordinary form of a legal assignment.
B. The instrument of December 4, 1914, would
be at the very least an equitable assignment.
It seems idle, even for argument's sake, to discuss
whether the instrument of December 4th is

7
anything but a legal assignment, but the appellant's 
whole contention (were the merits before
this court)[*book SS 2763*], necessarily hands upon the proposition, 
that it is not an assignment at all. For if
it be, she would face at once the right of every 
absolute owner of a fund to enjoy its earnings,
a right which calls for no discussion. It may,
therefore, be worth while to point out that it would
be an effectual assignment in equity, had it lacked 
all the language of legal assignments. For when
in the instrument Mrs. Catt directs the executors
to pay the $160,000 to Mrs. Wrenn out of her
(Mrs. Catt's) share of the residuary estate (fol.
254) that of itself amounts to an equitable assignment.
Authorities seem unnecessary upon
that proposition.
It is also worth while to notice that beyond
 everything thus far referred to, Mrs. Catt in this
instrument agrees to "execute such further orders,
directions, assignments, and other instruments,
as may be reasonably requested of her to
carry out the foregoing."
How, in the face of all these different provisions
of the instrument, Mrs. Catt can now contend 
that there has been no assignment of the
$160,000 is past understanding. Once assuming,
however, the fact of assignment, whether legal or
equitable, the right to the earnings, of course, follows.
C. Once more, it may perhaps be worth while,
and is certainly amusing, to point out that at
the time this transaction took place, and afterwards, 
Mrs. Catt herself understood that she had
assigned this fund to Mrs. Wrenn. For on January
22, 1915, she by practically identical
language assigned $100,000 to one Follin (fol.
288-293) and that instrument she herself described

8
as an assignment, in another instrument of the 
same date, between herself and Follin (fol. 296). 
It would certainly be hard upon their language 
to differentiate the Follin and Wrenn instruments 
(fols. 254, 288) as to their legal character.
But even this is far from being all to show what 
Mrs. Catt herself thought about the Wrenn assignment. 
For in the Follin assignment of January 
22nd, 1915, she covenants (fol. 297) with 
him that she has made "no other assignments 
of her interest in said estate, except one to Carrie 
H. Wrenn, bearing date December 4th 1914." 
     It seems quite plain, therefore, what Mrs. Catt 
herself thought, at the time, that she had given to 
Mrs. Wrenn, and that only a desire now to deprive 
Mrs. Wrenn of any share of the earnings, 
even those made by Mrs. Wrenn's own property, 
has led Mrs. Catt to the supposed subsequent discovery 
that she never assigned anything to Mrs. 
Wrenn. 
     It might be possible to point out other indications 
in the record as to Mrs. Catt's own construction 
of the instrument of December 4th, 1914, 
but we are quite sure that nothing more can be 
worth while. 
     We submit that its proper construction is not 
only red adjudicata, but perfectly plain, and still
further that it was understood and meant by Mrs. 
Catt and the time to be just what we say it is. 
POINT III. 
     The appellant's brief leaves untouched 
the primary question of the 
appeal. 
     Much is said in the brief about the instrument 
of December 4th, 1914, but not even an attempt 

9
is made to show how the character and effect of 
this instrument are, or can be, in controversy on 
this appeal. Upon this question we need do no 
more than refer to our Point I. 
POINT IV. 
     The appellant's attempt to discuss, 
as an open question, the character 
and effect of the instrument of December 
4th, 1914, ignores from first 
to last the actual instrument, and 
deals constantly with an imaginary 
one. 
     In seeking to argue upon the character and effect 
of the instrument of December 4, 1914, the appellant 
ignores its most important language. Our 
affirmative argument is stated Under Point II. 
The appellant nowhere has anything to say to 
escape from the express language at the very outset 
of that instrument, which fixes its character 
as a legal assignment. Nor does she realize that 
without that language, it would still be an equitable 
one. Instead of the actual instrument, she 
invents at times a promise to pay, of which there 
is no trace in the instrument, and then at other 
times when it suits the immediate purpose, denies 
flatly that the instrument contains any promise 
to pay. E.G. p. 20. This, we submit, will be 
found to be a very general, but perfectly fair, 
summary of her entire brief. Nevertheless, it 
may be courteous, even though not needful, to notice 
her continuous argument of questions, not 
only not raised on this appeal, but not raised be- 


10
fore the Surrogate. This we will do very hastily. 
Otherwise, it would be hard directly to notice the 
brief at all. 
The Parker Testimony. 
     After allowing this testimony in the Record, the 
Surrogate then allowed our statement with reference 
to it, which, we submit, shows that the testimony 
itself should never have been allowed, and 
that, though in the record, it can have no possible 
effect. There were sent for decision to Judge 
Brown as Referee a number of entirely distinct 
controversies (fols. 26, 28, 29, 35, 102, 123, 125, 
171, 182, 186, 193, 194, 195), all of which had to be 
heard and decided, at some hearing or hearings, 
upon this one accounting of the executors; and to 
be heard in an orderly way they necessarily had to 
be taken up separately. The Parker testimony 
(fols. 103-123) was given in the course of one of 
these other controversies, namely the amount of 
the executors' fees. Mrs. Wrenn's part of the 
reference was heard on another day (fol. 124). 
She was not present, either in person or by attorney, 
when the Parker testimony was given (fol. 
124), and had no occasion to be there. She had no 
interest in any of these other controversies (fol. 
124), which were heard and decided by the referee. 
Had she been present at all of them, she could not, 
and would not, have been permitted to interfere, 
either by objecting to the testimony or by cross-examining 
any witness. Had the Parker testimony 
been offered on her day in court - she had 
but one during the entire reference (fol. 124) - 
she could then have objected and the testimony 
must have been excluded, relating as it did solely 
to communications and negotiations, prior to the 
execution of the instrument, on which the present 
controversy turns. Even dragged in, as it now is, 

11
it has no bearing or force upon this appeal. Were 
the character and effect of the instrument of December 
4th, 1914, still an open question, and were 
this testimony admissible, there is nothing in it, 
which in any way changes the instrument itself, 
upon which (waiving now for argument's sake the 
question of res adjudicata) hinge solely all rights 
of the appellant and respondent. 
     On the merits, were these before this court, we 
insist, as already, that no legal conclusion is possible 
upon the instrument itself other than that it 
is an assignment. 
     1. A legal assignment by its express language 
(fol. 254). 
     2. An equitable assignment by its other language 
(fol. 254), were the language of legal 
assignment entirely left out. 
     What does or can Mrs. Catt say about this? 
All she tries to say, as we shall now try to show, 
relates only to some different instrument - never 
executed between the parties, but conjured by her 
imagination into an imaginary existence. 
     (a) A feature of the appellant's brief, to which 
notice must first be called, is the number of absolutely 
unfounded assertions of fact, without any 
pretense whatever of citation to sustain them, because - 
there was nothing in the record to cite. E. 
G. Take entire half of page 7. The like will 
be found here and there all through the brief.. 
(b) Mrs. Catt saying again and again (e. g. heading 
of Point I) that there was "no adjudication" 
by the referee of Mrs. Wrenn's covenants 
in the instrument. In what way does the notice 
of appeal raise for decision here any question 
about what Mrs. Wrenn was to do? Moreover, on 
that controversy, strangely enough, the notice of 


12
appeal itself (fol. 18) concedes that Mrs. Wrenn
was "entitled * * * to be paid * * * the
net amount of $160,000."This is a fair sample of
the way in which the appellant's brief is filled
with argument of imaginary questions. Over and
over again the brief asserts that Mrs. Wrenn was
not and is not entitled even to the $160,000 (i.e.
without its earnings) unless and until she makes
a certain conveyance, while, as just shown, the
notice of appeal flatly concedes that she was
entitled to it. 
(c) The appellant's brief says (P. 12) that Mrs.
Catt was buying and Mrs. Wrenn selling Mrs.
Wrenn's interest as heir. If such language is at
all germane, if there were any "buying and selling"
at all, it was Mrs. Wrenn's right to contest
the Leslie will (fols. 250-252). But there was no
buying and selling in any proper sense. No such
thing was in the minds of the parties. The
language is forced. The situation was just this.
Mrs. Catt was interested in the probate of the
Leslie will: Mrs. Wrenn in its rejection. This
was the very essence of the situation, and this
alone the raison d'etre of the instrument in controversy.
Mrs. Catt and Mrs. Wrenn were settling 
in advance a possible contest over this probate;
-avoiding it. The settlement was this. Mrs.
Catt gave to Mrs. Wrenn a present assignment of
part of her interest under the will. Mrs. Wrenn in
return consented to its probate. These are the
things put in the very forefront of the instrument
of Dec. 4, 1914 (fols. 250-252). For further protection
Mrs. Catt received then and there (fol. 257)
Wrenn's interest under the stature, Mrs. Wrenn
making this assignment, however, conditional on
her actually getting the benefit of Mrs. Catt's assignment. 


13
In other words, as a corollary to the
one thing for which the instrument was made at
all, they provided that if some one else (as was
afterwards attempted) should ever succeed in setting
aside the will, both Mrs. Catt's and Mrs.
Wrenn's assignments would go for nothing. This
was the whole of the bargain, and its only occasion
and purpose. All the talk of some Wrenn assignment,
to be made in futuro-"on distribution", as
Mrs. Catt reiterates throughout her brief, when in
fact, under the instrument of Dec. 4, 1914, the executors,
if they had seen fit, could have paid at any         [*???*]
time-ignores the express language of the instrument
itself-"hereby does convey,"-and the direction
to pay (fol. 254) with no restriction as to
the time of payment. It is in total disregard of
this language, as well as the notice of appeal,
that Mrs. Catt's brief has so much to say about "a
conveyance" yet to be made by Mrs. Wrenn. More-over,
if any further indication were needed, that a 
present and completed transaction was understood
and intended, it is found in the fact, that at
that very time Mrs. Catt made to Mrs. Wrenn's
nominee present assignment of Mrs.
Wrenn's interest under the statute? Still further,
how would an "interest as heir" have been assignable
after the will was once probated:-in futuro,
as appellant now claims? As bearing on all said
by appellant in regard to a conveyance in futuro
by Mrs. Wrenn before she could be entitled to the 
$160,000, it is worth while to notice the fact shown
by the record that she has actually got $158,000,
practically all, of it (fol. 37.) The record is silent 
as to the circumstances, but this very fact, that

14

See
Mrs. Catts I + II Law.

she got it, is plain evidence that either (1) she then
gave the conveyance of which appellant says
so much; or (2) appellant failed at that time to imagine 
herself entitled to it; or (3) she raised the
question and it was decided against her. 

In the face of this and everything else, the appellant 
actually closes her brief (p.60) with one
more assertion, that Mrs. Wrenn must tender a
conveyance before getting "any part" of the 
$160,000.

Here again, (see our Point II C.) the appellant
furnishes the humorous element, in the fact that
this very feature of the instrument ("does convey") 
was found specifically by the referee at her
request, and she puts this fact into her brief (p.
15). A large part of her brief seems, therefore,
to have occurred to appellant since framing and 
securing that finding.

(d) Pursuing the policy of undertaking to argue 
questions not before the Court, much is said 
here and there (e. g. p. 13) of improper findings 
made by the referee and proper findings not made.
No appeal whatever has been taken as to any of 
such supposed errors, save the giving of what the 
appellant calls "interest," and to the most important 
findings made, no exceptions were taken,
so as even to present any question to the Surrogate 
(see our Point I.)

(e) The authorities cited by the appellant correspond 
to her line of argument. They deal with
promises to pay, and they give or refuse "interest," 
according to the circumstances of each case. 
The argument and the authorities alike are irrelevant 
here, since as the appellant herself 
says (p.20), there is no promise to pay in this
instrument. None the less, just as the unfounded
assertions are constantly reiterated so also the 


15

unfounded contention, and the irrelevant authorities, 
even under a number of different points.
The habit seems to be inveterate. 

Let us now repeat finally, once for all, in response 
to all these portions of the brief—almost
the entire brief—that Mrs. Wrenn did not contend
before the referee, and is not contending here,
for interest in the legal sense, in which these
various authorities dealt with it. She is contending 
for the earnings of her own property. 

(f) Here and there appellant says that Mrs.
Wrenn did not appeal from something in the referee's 
report, adopted by the Surrogate. Mrs. 
Wrenn had no occasion to appeal, since although
the referee refused some of her proposed findings, 
he gave her in his own findings what she wanted:
—the earnings of her own property.

(g) The appellant has more or less to say (E.
G. p. 5) about the "assignment" of the remainders
after the trust life estates. It may be worth noticing 
that these assignments are in form no more
and no less "assignments" than the instruments
which we (and she originally fol. 297) call an assignment 
and she—now—calls a promise to pay
fols. 253, 254, 256, 267, 273). The truth is that,
if Mrs. Wrenn had not concluded to have the remainders 
assigned to some one other than herself, 
there would have been no necessity of any 
instrument other than that of December 4, 1914,
under which she herself would then have taken
these remainders.

(h) The appellant's disregard of the record
even goes so far as to discuss at some length a 
hopelessly imaginary question as to the expenses
of the various Leslie litigations. It would have 
been interesting, had she tried to point out how
any such subject is before this Court.

16

(i) Much is said (E. G. p. 31) about the $160,000 being payable from either principal or income, and that Mrs. Catt would have the option as to this. When the instrument of December 4, 1914, was executed, no one knew that litigation would so postpone the division of the estate— Mrs. Catt even says (p. 48) E. G. that she would not have settled with Mrs. Wrenn, had she known it. She does not seem to realize that this very fact shows beyond dispute, that the parties expected a prompt distribution, and not a postponed one. That prompt distribution could only have been made from principal, and not from income not yet earned. If anything further need be said, in regard to this contention of Mrs. Catt, the record shows a finding by the referee that the $160,000 is payable out of the corpus of the estate (fol. 243) and does no show any exception by Mrs. Catt to this finding. Nor does the notice of appeal in any way include it.

Point V. 

We ought perhaps to apologize for spending so much time in a reply to appellant's brief, and we shall say but a word more. It revolves in a very narrow circle around an imaginary "promise to pay" and an imaginary "promise to convey", whereas the instrument in question has no such promises, but in their place two very unmistakable present assignments, one an assignment of $160,000 out of Mrs. Catt's interest under the will, and the other (conditional) of Mrs. Wrenn's interest under the statute.
The 60 pages of appellant's brief leave unchanged the real situation, which this appeal presents to the court. Mrs. Catt (not, as she calls Mr.


 17

Follin (p. 2), "practically a stranger", but a "stronger",) got "most of the estate", as she herself says in her brief, page 2.  She then assigned to Mrs. Wrenn a small part of it, and she now claims not merely that she is entitled to the earnings of "most of the estate," but also to those of the small part assigned to Mrs. Wrenn. That is absolutely the whole of controversy. There is nothing, we submit, in her contention,—not even an argumentative proximity to the record, and the decree should be affirmed, with costs.

GEORGE A. STRONG & DUER STRONG
& WHITEHEAD,
Attorneys for Respondent,
CARRIE H. WRENN,
43 Exchange Place,
New York City.

GEORGE A. STRONG,
of Counsel.

                                                                            To be argued by 
                                                                            HORACE E. PARKER.

                        Supreme Court
    APPELLATE DIVISION-FIRST DEPARTMENT.

            IN THE MATTER
                   of the
Judicial Settlement of the Account of 
Proceedings of LOUIS H. CRAMER and 
WILLIAM NELSON CROMWELL as 
Executors of the Last Will and Testament 
of FRANK LESLIE,
                                             Deceased.

Reply of Appellant, Mrs. Carrie Chapman Catt to Brief of Respondent Mrs. Carrie H. Wrenn.

       Apparently Mrs. Wrenn deserts as untenable the report of the referee and the findings. 
       At page 2 of her brief she suggests that the Referee "held that Mrs. Wrenn was entitled to a pro rata share of income (fol. 194)."
       If "pro rata share of the income there would be an average made up of say 5% on bonds, interest on mortgages and perhaps 2% or 214% on money in banks during the period.
       Mrs. Wrenn was to and did receive cash; and


2 

cash drew what the banks allowed the executors
on deposits. 
MRS. WRENN IN HER BRIEF AT THE TOP OF PAGE 2 
SUGGESTS: 
"the precise question, we contend, is whether 
the owner of a fund is entitled to its earnings." 
This may be a well-rounded sentence,--but it
is useless. 
IT IS CRYPTIC. 
If it had been used in Mrs. Catt's brief it would
be intended to mean that Mrs. Catt being admittedly
the owner of the residue was entitled to its
interest; and had, by agreement, arranged that 
on distribution of the fund that out of the fund
and its earnings, or out of the fund, or out of its 
earnings, that she was permitting the executors 
to pay Mrs. Wrenn a definite sum,--"and agrees
that the said sum, to-wit, the net amount of $160,000
may be paid  *  *  *  by the Executors and
does hereby direct the said Executors to pay the 
same to her  *  *  *  " 
Fol. 255
Being "the sums hereinabove agreed to be paid
to her" (together with legacies and trust remainders).  
Fol. 258. 
When used in Mrs. Wrenn's brief it is intended 
to mean something else. 
We come right back to the indenture. 
If the "agreement" had been nothing but an
ordinary flat assignment without qualifications
(and with "earnings") signed by Mrs. Catt and
by Mrs. Catt only; to sustain her position of "assignment,"
Mrs. Wrenn necessarily has to and
does in her brief take the position that on December 


3 

4, 1914, there was segregated for her $160,000
--"the sum of,"--in cash. 
She does not and cannot claim an assignment of
mortgages or of bonds or of real estate or of 
promissory notes. 
She is obliged to and does take the position suggested
at the top of page 2 of her brief. 
Mrs. Wrenn has a new expression,--"Its earnings."
The expressions "net producing estate" (fol.
219); "increment";  "Interest";  or "income"
(fol. 244)' are apparently deserted. 
"Interest" (at fols 131-138) is disclaimed in 
her brief,--"once for all" at p. 15. 
"Interest" is the word used in the decree. 
(Fol. 37.) 
Also the Report. 
(Fol. 194.) 
Apparently, she now asks for trust company
interest on "the sum" of $160,000 in cash in bank
on December 4, 1914. 

There is no adjudication of Mrs. 
Wrenn's covenants. 
That Mrs. Catt is to receive the conveyance
covenanted by Mrs. Wrenn is
not adjudicated. 
(Residuary's Point I.) 

Mrs. Wrenn apparently answers "Yes" to the
question on Mrs. Catt's brief at top of page 10.
Mrs. Wrenn answers "No" to the question on
Mrs. Catt's brief at foot of page 9 and top 10. 
Mrs. Wrenn (her brief, Point V) says: 
"two very unmistakable present assignments, 
one an assignment of $160,000 out of Mrs.

4 

Catt's interest under the will, and the other
(conditional) of Mrs. Wrenn's interest under
the statute." 
Mrs. Wrenn says (page 12) if there were any
"buying and selling"
"It was Mrs. Wrenn's right to contest the
Leslie will (fols. 250-252)." 
Mrs. Wrenn says (foot p. 12), Mrs. Catt received 
"A present assignment of Mrs. Wrenn's
interest under the statute."
Mrs. Wrenn throughout her brief says that on
making the agreement there were, then and there, 
two completed assignments, apparently an absolute,
present assignment by Mrs. Catt. 
(Mrs. Wrenn's brief p. 6.)
"Mrs. Wrenn was to get only $160,000,
and only that amount was directed 
to be paid over to her by the
executors" 
and an assignment by Mrs. Wrenn of all her interest
as heir at law and next of kin to Mrs. Catt
which assignment was: 
(Mrs. Wrenn's brief p. 12) 
"conditional on her actually getting the benefits 
of Mrs. Catt's assignment."
(and Mrs. Wrenn's brief, p. 16.) 
"(conditional) of Mrs. Wrenn's interest under
the statute."
(See folios 257, 258.) 
However, what the document says is
what governs. 
If December 4, 1914 Mrs. Wrenn received an 
absolute conveyance of $160,000 "as heir at law 


5 

and next of kin,"--Mrs. Wrenn's brief says that
on that date she herself conveyed. 
At fol. 257: 
"All the interest of her  *  *  *  as heir
at law and next of kin  *  *  *  in and to
the estate" and 
"subject to and conditioned upon the payment"
to her
"of the sums hereinabove agreed to be paid 
to her" 
(fol. 258). 
In any viewpoint Mrs. Wrenn was to get on
distribution "the said sum, towit, the net amount
of $160,000." 
(Fol. 254.) 
MRS. WRENN'S BRIEF AT PAGE 6: 
"Mrs. Wrenn was to get only $160,000, and
only that amount was directed to paid over
to her by the executors." 
Mrs. Wrenn's brief indicates: 
(1) 
That a conveyance by her was necessary,--but
was made,
(her brief, pp. 16, 12, 6). 
(2) 
That the $160,000 was not to be paid except out
of a fund,--and on distribution;  but "that the
parties expected a prompt distribution, and not a 
Postponed one" 
(her brief, p. 16). 
(3) 
That Mrs. Catt did not obstruct,--but that "because
certain third persons obstructed" 
(her brief, p. 5). 
(Howard v. Johnston, 82 N. Y., at 273). 



6 

(4)
That Mrs. Catt owed Mrs. Wrenn nothing. 
(The very point of differentiation in Chester v. 
Jumel, 125 N. Y., 237.) 
(5)
That Mrs. Wrenn is not entitled to "interest in
the legal sense" 
(her brief, p. 15) 
(See disclaimer, top p. 15.) 
(See Record, fols. 131, 133.) 
Although at no place in her brief does Mrs.
Wrenn claim that she was to be paid except on
distribution,--and out of a fund only,--
She suggests at p. 13 that: 
"the executors, if they had seen fit, could have
paid at any time." 
If the executors "had seen fit!"
If the executors "had seen fit" to distribute to
Mrs. Catt the entire residue, also. 

Reply to Mrs. Wrenn's Point I. 
Mrs. Wrenn in her Point I refers to the proposed
findings of Mrs. Catt, her exceptions to the
report and her notice of appeal. 
Mrs. Wrenn at the top of page 4 suggests that 
the present appeal is expressly limited to the
giving of "interest." 
The notice of appeal appears at pages 5 and 6 
and is from each and every part of the decree
insofar as said decree provides, orders, adjudges,
and decrees that the report be confirmed or adjudged
as the determination and decision of this
court as to all matters contained in and covered 


7 

by said report in ordering, adjudging and decreeing
that said Carrie H. Wrenn is entitled to be
paid any sum of money other than the net amount 
of $160,000 and insofar as said decree provides or
report of said referee provides for payment to
said Carrie H. Wrenn of any interest whatsoever 
upon the sum of $160,000 from any time, or any
interest, income or profits thereon or otherwise. 
The proposed findings of Mrs. Catt area at pages
75, 76 and 77. 
The exceptions of Mrs. Catt are at pages 67,
68, 69, 70, 71 and 77. 
Such exceptions are too long to print in this
memorandum but they were to cover each phase
of the litigation so far as the agreement is concerned. 
Apparently in preparing her brief Mrs. Wrenn 
has overlooked the notice of appeal and overlooked
the exceptions. 
Mrs. Wrenn at page 4 suggests that Mrs. Catt 
acquiesced in the decision of the referee and
adopted by the surrogate as to the nature and 
character of this instrument. 
The proposed findings and conclusions of Mrs. 
Catt, do not overlook the nature and character of
agreement;  the exceptions do not;  the notice of
appeal does not. 
The proposed findings of Mrs. Catt (fols. 224-
230), and her exceptions (fol. 203) complain that
the report, findings and conclusions do not state 
nor conclude in accordance with the phraseology,
language, law and intent to which reference is
thereby made. 
(see fols. 200-215.) 
Mrs. Catt excepted in that the amount which
was ultimately paid to said residuary is the residue
(fol. 211). 



8 

She excepted to the report (fol. 212) because
of the failure of counsel to find her conclusion of
Law No. 1; and (fol. 212) her conclusion of law
No. 2. 
Attention is called to Mrs. Catt's proposals to
find; her exceptions and her notice of appeal. 
"Interest" is the word used in the decree. 
(Fol. 37.) 
Also the report. 
(Fol. 194.) 
Mrs. Wrenn on page 5 asks the following question: 
"if A make an immediate, absolute, assignment
to B of a certain fund, do its subsequent
earnings thereafter belong to A or to B?" 
This question commences with a big "if" and is
hypothetical. 
The very concrete question involved in this
appeal is, is there any provision in the agreement
with mutual obligations and mutual covenants of
conveyance which gives to Mrs. Wrenn any sum 
of money other than agreed to. 

Reply to Mrs. Wrenn's Point II. 
Mrs. Wrenn in "A" (her brief, page 6) suggests
the following: 
"Mrs. Wrenn was to get only $160,000, and
only that amount was directed to be paid over
to her by the executors."
And Mrs. Wrenn does not cite any statute or
case which warrants interest to her, in the face of
the indenture. 
Answer to Mrs. Wrenn's "A" is that the instrument
is just what it is labeled and what it
shows within the four corners of the instrument; 


9 

and the intention of the parties as set down in
black and white cannot be modified nor changed 
by referring to the instrument as an assignment. 
Whatever name, the agreement cannot be
changed by calling the instrument an assignment.
In subdivision B Mrs. Wrenn suggests at the
top of page 7: 
"were the merits before this court. " 
Attention is again called to Mrs. Catt's proposed 
findings: 
To her exceptions.
To the decree.
To Mrs. Catt's notice of appeal. 
Attention is also called to Section
2763 of the Code. 
Mrs. Catt appeals both on the law and
on the facts (fol. 14). 
And Section 2763 of the Code and the
papers on appeal show that this appeal
is very much before the Appellate Division. 
Mrs. Wrenn (at page 14) refers to a "Finding
of Fact" proposed by Mrs. Catt and "found."
This "Finding of Fact" is No. 2 at fol. 226 of
the record; Appellant's brief, p. 15; is referred to
by Mrs. Wrenn "the humorous element." 
This "Finding of Fact" follows the indenture
at fol. 257; it was really a part of a decree on distribution
to be entered on the confirmation;  it
says "does convey,"--"as therein provided," by
the indenture. 
Mrs. Catt's 2 "Conclusions of Law" (fols. 229-
230), were refused. 
THE BIG "FACT" IS THE INDENTURE. 
Under "B" (pages 6 and 7) Mrs. Wrenn takes 
three (3) steps: 



10 

(1)
To call the agreement an "assignment" whatever
may be the terms of the instrument. 
(2) 
To assume that the word "assignment" as a 
matter of law changes the instrument.
(3) 
Assuming that (had the instrument expressly
given to Mrs. Wrenn whatever "earnings" or income
cash in bank drew, that) Mrs. Wrenn's ultimate
$160.000 (part of the residue) is not subject
to expenses of executor's attorneys from the very
residue. 
Again is the question, what did the instrument
provide. 
"The instrument is (*  *  *) a common
law agreement or contract, where individual
minds have met with respect to mutual stipulations."
(See 161 N. Y. at 535.) 
Under "C" (pages 7 and *) Mrs. Wrenn
refers to the Follin assignment, $100,000. 
This assignment is at fols 288-293. 
The agreement going with it is at fols. 294-299. 
Simultaneously with the making of the agreement
with Mrs. Wrenn Mrs. Catt made the agreement
of November 27, 1914, with Mr. Follin. 
(Fols. 277-282.) 
(Fols. 107, 113.) 
This agreement provides for an assignment by
Mr. Follin. 
(Fol. 280.) 


11 

This agreement was not kept. 
By reason thereof it was necessary for Mrs. Catt
to make a new deal with Mr. Follin which she did. 
(See Exhibit 3 page 96;  Exhibit 4, page 98.) 
More than a month after Mrs. Catt made the
agreement with Mrs. Wrenn and the two (2) simultaneous
assignments of the remainders of the
two (2) trust clauses to Mrs. Wrenn (in appropriate
language) she made a real assignment to
Mr. Follin. 
The will had then been probated nearly 2 
months;  and in unmistakeable language a real
assignment was made on January 22, 1915. 
(Fols. 288-293.) 
But this later assignment to Mr. Follin 
(January 22, 1915), did not draw interest.
To use Mrs. Wrenn's suggestion at page 6: 
Mr. Follin was to get only $100,00 and only
that amount was directed to be paid over to
him by the executors. 
(Fol. 289.) 
Furthermore, by memorandum of the same date
(January 22, 1915) it is expressly provided (fol. 
297) that Mr. Follin "expressly covenants, promises
and agrees" that "upon the receipt of the 
aforesaid sum" (of $100,000 provided for by the
said assignment), he etc. will execute and deliver 
to Mrs. Catt a complete release of all his interest 
in the Estate of said decedent. 
(Fols. 297, 298.) 
(In the face of this record the report at fol. 
194 is obviously on oversight.) 
Mrs. Wrenn's agreement with Mrs. Catt has
been referred to for convenience as an assignment

12 

or an agreement or as the referee says at page 65, 
of the record "the agreement and assignment"
Again the question is, did the instrument give
to Mrs. Wrenn any more than the instrument says
it gave to Mrs. Wrenn. 
In Chester v. Jumel (App. Brief, Point III) the
court refers to various "assignments";  in Howard
v. Johnston, reference is made to "the assignment."
In our case the report (fol. 194) says: 
"Out of any moneys payable" to Mrs. Catt. 
In Chester v. Jumel: 
"A lien upon any moneys or property".
(The "assignment" in that case.) 
In Howard v. Johnston: 
"Out of any moneys or property" etc. 

Reply to Mrs. Wrenn's Point III. 
The meaning of the instrument in writing is
shown on its face. 

Reply to Mrs. Wrenn's Point IV. 
Again the question what did Mrs. Catt consent
to give to Mrs. Wrenn. 
On page 10 of Mrs. Wrenn's brief she suggests: 
(The Parker Testimony.) 
"Had she been present at all of them, she
could not and would not, have been permitted
to interfere, either by objecting to the testimony
or by cross-examining any witnesses." 
If Mrs. Wrenn prior to the close of the testimony
had had any idea that she was entitled to 
any more than the instrument gives her, she certainly
would have been represented by counsel on
the reference. 


13 

At no place in Mrs. Wrenn's brief does she suggest
any reason why the entire residue should not
pay the executors' attorneys in the unfortunate
Westcott litigations. 
It would seem perfectly obvious that either the
executors have the right to pay their counsel for
such litigations or they have not. 
No claim is or could be made that Mrs. Wrenn 
was exonerated for anything more than the transfer
tax on her legacies, on the trust provision and
the $160,000 , and yet Mrs. Wrenn refers at the
foot of page 15 (h) to "a hopelessly imaginary
question as to the expenses of the various Leslie
litigations." 
If Mrs. Wrenn's counsel had been present at 
the reference, he would know this is a very practical
matter. 
Mrs. Wrenn had the right to be present at every
meeting before the referee. 
It is undoubtedly fair to suggest that Mrs. 
Wrenn's counsel and Mrs. Catt's counsel prior to
the order of distribution of January 25, 1917, got
together and agreed that partial distribution
should be made and that the larger portion of the
$160,000 should be paid taking up on this appeal
the question of the meaning of the instrument. 
The suggestion by Mrs. Wrenn at the top of
page 14 is a very unfair suggestion.
The giving of the conveyance was discussed by
counsel prior to such payment. 
The fact is that such partial payment was made
under stipulation arranged between Mr. Strong,
Mr. Parker and the executors. 

Instruction by this court are essential
in any event: 
If the decree is modified by disallowing interest, 



                                                                              14
  If interest is allowed, at what rate!
  Would it be trust company interest on cash on deposit?
  Would it be a proportionate rate of interest arrived at by averaging up the rate of interest on bonds, mortgages and cash in bank?
  What expenses to the executors' attorneys shall be deducted!
  WHAT IS THE MEANING OF THE REPORT AT FOL. 195? 
  IS IT A FINDING OF FACT OR CONCLUSION OF LAW?
   It certainly would be an intolerable condition if it were necessary to go over the same question on another reference.

The decree should be modified by striking out all provisions for any interest.

                                                             Respectfully submitted,
                                                                 HORACE E. PARKER,
                                                                    Attorney for Appellant, 
                                                                          Carrie Chapman Catt,
                                                           Office and P. O. Address,
                                                                               100 Broadway,
                                                                     Borough of Manhattan,
                                                                             New York City, N. Y.


19
#6

Appellate Division of the Supreme Court,
                                                             FIRST DEPARTMENT.
           IN THE MATTER
                     of
The Estate of FRANK LESLIE, also known 
as MRS. FRANK LESLIE, also known as
 the Baroness de Bazus, deceased.

      Brief on behalf of Respondent Carrie H. Wrenn, a niece and one of the next of kin of decedent and a legatee under her will.

      This brief is submitted as a discussion of a phase of the appeal which will probably not be dealt with in the other briefs, but which goes to the very bottom of the entire proceeding.
      The alleged purpose of this proceeding is to open the probate of Mrs. Leslie's will.
      But what is its true purpose: The question whether a proceeding is a bona fide proceeding or a piece of purely vexatious litigation, brought without probable cause, is a very material one upon an application to open a solemn judgment

2
of a court, where a heavy burden rests upon the 
applicant to show a meritorious case, freedom 
from laches and good faith on his part - and is a 
very important question on this appeal. 
     It is our purpose to show what the real object 
of this proceeding and the appeal is. 
     1. The testatrix died on September 18, 1914, 
leaving an estate of nearly $2,000,000. 
     Her will was probated on December 7th, 1914. 
     The appellant is a total stranger to both the 
blood and the estate of the decedent, being only a 
stepgrandson, i. e., a son of a child by a former 
marriage of Mr. Frank Leslie, the decedent's late 
husband, and he is not mentioned in this will, and 
does not claim to be a legatee or devisee under any 
former will. 
      Nevertheless this stranger to the estate, long 
before the will was probated, was planning to 
make the series of attacks upon this estate which 
he has since made. 
     A reference to the letter of November 2, 1914, 
written by James H. Westcott (appellant's original 
attorney) to this respondent, in which he 
asked for certain information on the pretext of 
writing a sketch of Mrs. Leslie's life, will, we 
think, convince the court that before this will was 
probated the appellant had planned to attack it, 
and to attack it upon the theory of this very proceeding 
(fols. 1071-1075). 
     James H. Westcott was not preparing a 
"sketch" - he was preparing a law suit (fol. 1071). 
     The nature of the contemplated claim is, in the 
light of subsequent events, sufficiently disclosed by 
the direction of his inquiries in this letter, and his 
very marked and otherwise unaccountable interest 
in the collateral relatives of the decedent, and 
the particular side of the house on which they 
were related to her (fols. 1072-1073). 

3
     But why, if as much as a month before the probate, 
this appellant was contemplating the assertion 
of this very claim, did he not demand to appear 
and assert that claim in the probate proceeding? 
Was it because he did not possess anything 
on which to base such a claim except the naked 
statute and a desire to share in this estate? 
     But if he possessed nothing but the bare statute 
and his cupidity, how could he in good faith 
have even contemplated the assertion of such an 
astonishing claim? And yet he was contemplating 
it without a doubt. 
     Why? 
     There are only two conceivable theories upon 
which a person in the situation of the appellant - a 
stranger to the blood and the estate - could possibly 
assert any claim of any sort. 
     He could, of course, claim to be a creditor, since 
any one could be a creditor; or he could assert 
the astonishing claim he has made in this proceeding. 
     That he could not claim to be a creditor in the 
ordinary sense is sufficiently clear from the course 
he actually pursued - and besides, the claim of 
any ordinary creditor could never result in his 
obtaining any very substantial part of the estate. 
     But the ink had hardly had time to dry on the 
probate degree, before this appellant, together 
with Lonetta L. Hollander and Florence L. Weissbrod, 
also grandchildren of Mr. Frank Leslie, deceased, 
commenced actions in the Supreme Court, 
against the executors, for an aggregate sum of 
over $1,000,000. based upon the preposterous 
claim that his decedent had broken a contract 
alleged to have been made with her deceased husband, 
Mr. Frank Leslie, in 1879, to make a will in 
favor of said plaintiffs (fols. 796-799). 


4
These actions (obviously inconsistent with the
present proceedings, in that they necessarily imply
the validity of the probate of this will, and the due
appointment of the defendants as executors thereof) 
were still pending at the time the present proceeding
was instituted in July, 1915 (fol. 799), and
in the interim had, of course, served the very useful
purpose of preventing distribution. 
Does or does the letter of Westcott's together
with the promptness with which he began the action
immediately after probate justify a belief that
his real purpose was to use a bow and two strings, 
first to claim a large part of this estate on one
theory, and then to claim on another theory practically
the whole of it, with the prospect or hope, 
by tying up the estate in an endless litigation
and, as well shall see, intimidating the next of kin
by scandal, of securing at least some of it, as the
price of peace? 
At least the result has been that this estate has
been involved in litigation--constant, however, inconsistent
--instituted by this appellant, ever since
the will was probated. 
And the present appeal still further entangles 
the estate in litigation and still further postpones
the settlement of its affairs, leaving the beneficiaries,
whatever their necessities absolutely without
relief. 
Was this intolerable situation created without
design?
It is incredible that any one who reads the
record in this case could, for one moment believe 
that this proceeding was begun with the slightest 
bona fide expectation of succeeding on the merits.
The appellant's claims are absolutely diaphanous. 
Mrs. Frank Leslie, who died at the age of seventy-nine
(fols. 1709-1712) was one of the most 


5 
prominent and best known public women in
America (fols. 788-791). 
As head of the Leslie publishing house, and as a  
lecturer and writer, she had been continuously in
the public eye for many years (fols. 788-791). 
In appearance Mrs. Leslie was a woman of striking
and unusual beauty, and a decided blond with
a remarkably fair complexion, blue eyes and
straight golden hair (fols. 792-793; 819-820; 845-
846; 982-984;  989-990; 997-1020; 1033-1036;  Wrenn
Ex. 12;  Wrenn Ex 7). 
Testatrix possessed an estate of nearly two million 
dollars, in which this appellant seeks to share, 
and he now comes forward, after her death, to
charge that this well known woman was of illegitimate
birth, and this striking blond was the child
of a negro mother. 
The alleged evidence purporting to support
these claims, the Surrogate has characterized as
"of the most inadequate and nebulous kind" (fol.
1913) and the most cursory glance will show it to
be a mass of incompetence, irrelevancy and immateriality,
the equal of which has seldom been
offered to any court, to support charges so grave. 
To prove his primary charge of illegitimacy,
the appellant would have to overcome one of the
strongest presumptions known to the law. 
"The presumption of fact of legitimacy is
one of the strongest known to the law, and of
course it cannot be overthrown, except by 
evidence which is stronger. 
Mayer v. Davis, 119 App. Div. 96-99; 
Matter of Matthews, 153 N. Y. 443; 
Hynes v. McDermont, 91 N. Y. 451. 
It is impossible that the appellant could ever
have believed that this presumption had been
overcome by his papers.

6 

It is incredible that any one could ever have
imagined that any court would bastardize a person
upon such evidence. 
Nay more, it is impossible that this appellant
could ever have believed his own papers. 
Could he have believed the statements of Clarence 
D. Levy, that Mrs. Leslie had a "deep olive
complexion", or that "her hair was very dark
and kinky"?  9fols. 723-724).  Could he have believed
it, after he had failed to secure from any 
one of his other affiants and particularly Sarah 
C. Powers, (the mother of Lonetta L. Hollander,
one of the plaintiffs in the actions commenced 
against the executors, immediately after the will 
was probated, who swears that she knew Mrs. 
Leslie "for at least forty years, and she saw her 
once a year since 1892") a single word to support 
those false statements of Levy?  (fols. 689-696; 
661-668). 
The absolute falsity of the Levy affidavit stands
out conspicuously beyond possible discussions,
and it is simply impossible that the appellant
could ever have believed a word of it.  Then why 
was it retained?  Was it, or was it not, solely to 
force the next of kin to buy their peace? 
Could he have believed the affidavit of Louisa
C. Burge (fols. 645-660) knowing her character 
and her life, (fols. 873-885;  901-908) and having
every opportunity to verify her statements, if
they were true, by her brother, Thomas S. Legare, 
and his wife Annie L. Legare (669-680)?  Could
he have believed it, after both the latter failed
to verify it? 
Surely if the mother of Louisa C. Burge made
these astounding statements to this daughter-- 
"many times",--(656-659) she would have made 
them some time to her son Thomas S. Legare, and
his wife Annie L. Legare, with whom she lived 


7 

many years, and at whose home she died (657; 
677-678). 
Unable to verify the story told by Louisa C. 
Burge, by either of the Legares, the appellant
took another course with them.  They are induced 
to sign cunningly and craftily drawn affidavits 
(fols. 669-675;  677-680) containing imputations 
and inuendoes which they did not notice and have
since absolutely repudiated (849-856; 861-866). 
The craft and cunning employed in drafting
these affidavits, and the affidavit of Hortense
Follin (fols. 633-643) all subsequently repudiated 
in toto (fols. 825-848) by the affiants, also testify
most eloquently to the bad faith of the whole proceeding. 
Could the appellants' then counsel, James H.
Westcott, who showed such inventiveness in his
plan of campaign, have believed for one moment
that the affidavits of Levy (fols. 721-728) or of
Annie E. Haws (fols 681-685) were competent,
relevant, or material?  The Levy affidavit is not
even properly executed (fol. 728). 
Even the petitions of Gorham Davenport (fols. 
485-499;  525-528) appellant's counsel must have 
well realized were wholly incompetent;  for opportunity
to judge of their competency was as
open to him as it has been to us;  and it did not
take us very long to show that they were barred
under the rule of "lis motam" besides being false. 
But if it could not have been believed that the
evidence appellant produced overcame the presumption
of legitimacy, and if he could not have
even believed his own evidence, how can this proceeding
be treated as instituted in good faith? 
Again the appellant no where even alleges that
the decedent died intestate, although intestacy is
an essential condition precedent to his claimed

8 

status.  This alone is a fatal lack in his pretended 
case. 
He does not even allege that the will which he
seeks to attack is invalid;  only saying that he
wishes to file objections to it (fols. 81-82). 
But how if the decedent had left a series of
wills, all executed in due form, and covering a
period of some twenty years of her life? 
Surely the appellant was bound to prove at
least prima facie that she left no will, i. e., that 
she died intestate.  It is an essential element of
any such case under the statute, that inspired this
proceeding. 
We must assume that he did not allege intestacy,
because he could not hope to prove it;  but
if he could not hope to prove intestacy, he himself
could never have even hoped to succeed in this
proceedings;  and if he could not have hoped to
succeed, why did he bring the proceeding? 
Was his motive proper or improper?  And if
improper, what light, we ask again, is shed upon 
the papers, on which he presented it;  and what
value can any of them have, coming from such a 
source? 
The appellant appears, therefore, on his own
papers, to have brought a proceeding in which he
himself could not have believed, or hoped to succeed
--in court--whatever he might have expected
or hoped--out of court. 
The respondents, however, do not stop with
merely pointing that out.  They produce affirmative,
incontestable, proof that Mrs. Leslie was
of legitimate birth. 
What more satisfactory, persuasive, convincing
proof could ever be produced, than the many
old letters and ancient documents, written between
fifty and seventy years ago by various members 
of Mrs. Leslie's family, showing beyond a peradventure, 


9 

the falsity--not of appellant's evidence,
for he has none worthy the name, but of his
charge of illegitimacy?  Letters are produced 
from her father to her mother, and herself, beginning
as early as 1840; letters from her paternal
grandmother to herself, and to her mother, Mrs.
Susan Follin, written in the French language, and
in terms of the greatest affection and regard; letters
from her brother, Augustus Noel Follin (the 
father of this respondent), and his will made in
1852, in which all of the members of his and decedent's
immediate family are mentioned; letters 
from her brother, Ormand W. Follin, and from 
other members of her family--in all of which are 
repeatedly recognized every relationship necessary
to establish her legitimacy.  (Osborn Exhibits.) 
Can any one, reading these letters, for one moment
believe that this proceeding was originally
brought in good faith by appellant, or that this
appeal (now brought with the full knowledge of
their contents, and without dispute as to their authenticity)
is brought in good faith? 
Still further.  It is only upon the presumption
of the bad faith of this entire proceeding, that the 
charges, outrageous and scandalous, but absolutely
irrelevant, and the general character of the
appellant's papers, can be explained. 
Take the record in the case of Peacock vs. Peacock 
(fols. 153-299).  In so far as this could be 
competent, relevant or material, upon the question
of legitimacy, raised by the appellant, it plainly
constitutes strong affirmative proof of Mrs. Leslie's
legitimacy;  for it shows that Mrs. Susan
Follin was the mother of Mrs. Leslie (fols. 176-
179, 202, 244, 259, 276, etc.), and was so understood
and treated by everybody concerned in that 
controversy. 



10 

Of what value to the appellant, therefore, was
the Peacock record, as evidence, since it disproves
the very foundation of his entire claim.  Why, 
then, was it used? 
Was not the only possible reason and motive
that he could have had in including in his papers
the record, the scandal it contained, and the possible
value of that in forcing a settlement out of
court? 
Again, take the affidavit of Annie E. Haws (fols. 
681-688), and its scurrilous and brutal attack upon
Mrs. Leslie, and the memory of her mother, Mrs. 
Susan Follin (fols. 686-687). 
What could be more grossly incompetent thatn
this?  No one would have been permitted, for one
moment, to testify in open court to any of the
statements [*t*]herein contained; and this applies also
to the affidavit of Clarence D. Levy (fols. 721-728). 
Of what value to the appellant were these affidavits, 
except for their scandal?  And what possible
value could that scandal have been believed
to have--in court? 
Mrs. Leslie was a very prominent and well-known
woman. 
She left the bulk of a large fortune to another 
very prominent and well known woman, Mrs. Carrie
Chapman Catt, for the furthermore of woman
suffrage. 
Is it not reasonably plain what was in appellant's 
mind?
Would Mrs. Leslie's relatives, or Mrs. Catt, or
the Woman Suffrage Movement face the publicity
and scandal of these unspeakable charges, or
would they escape them--by a consideration?
And when we find appellant actually inserting
(Peacock record) in his own papers, proof of legitimacy,
a fact fatal to himself, that he may also insert
scandal, in itself of no value for any other 


11 

purpose, except its power to coerce a settlement
of his demands, is it not a necessary and not
merely a fair inference, that this was the reason,
and the only reason, for inserting it? 
Is it not a fair conclusion from it all, that the 
appellant never expected these papers to see the
light of day, or this case to get into open court? 
But, suppose the scandal failed?  Might not the 
same thing--pressure--be accomplished by simply 
entangling the estate in endless litigation?  Might 
not the beneficiaries under this will, irrespective
of scandal, and, in despair, through the continual
postponement of their legacies, eventually buy
their peace? 
Is it not this, perhaps, and this only, the real
purpose of this appeal? 
It may be that no appeal would ever have been
taken, had not the court below, of its own motion,
raised the new and novel question of the Decedent's
Estate Law, of which this appellant seeks to
avail himself (fols. 1877-1907). 
This view certainly seems to be strongly confirmed
by the fact that in his brief the appellant
has, except for a minor question of practice, confined 
and limited himself to that question exclusively, 
emphasizing by this silence, the absolute
impossibility of ever contending on thee papers 
for the existence of the facts that are indispensable
to his success. 
The purpose of the violent effort made by this
appellant to avoid and evade the facts, is thus
quite transparent. 
Knowing full well that his own papers were and
are grossly insufficient upon their face (fol. 1913); 
knowing also full well that his allegations of fact
have been, as the Surrogate has said, "entirely
disproved" (fol. 1917), knowing moreover, that in 



12 

his proceeding the origin, life and memory of the
decedent "are most unjustly attacked" (Fol. 
1915), he nevertheless brings this appeal because, 
if it can be limited to the question of law raised 
by the Surrogate, as he attempts to limit it, he
hopes, perhaps, to divert the attention of this 
court from his complete failure upon all the facts. 
In a word, is he not hoping and trying to win this
appeal upon law, not merely without but against,
the facts? 
Does he not wish and hope to raise, before the
eyes of these beneficiaries, the spectre of a fresh
start in this litigation? 
The question of law raised by the Surrogate,
however, was and is quite unnecessary to the determination
of this case.  Upon the record, it
seems really academic. 
The case has been, can be, and should be, determined
upon the facts. 
The Surrogate, in his opinion, whatever else he
has said, has stated that the evidence purporting 
to support the appellant's claims, is of the "most
inadequate and nebulous kind" (fol. 1913), and in
his decree has dismissed the proceeding upon the
facts (fol. 1866). 
If thus unproved it was properly dismissed on
the appellant's own papers, wholly aside from any
other reason. And one good reason is enough. 
But the Surrogate has gone even further, and 
said that "the contention of Mr. Leslie's heirs at
law, as to Mrs. Leslie's status, is entirely disproved"
(fol. 1917). 
If so the appellant's application was properly
dismissed on the merits. 
The casuistic attempt on the part of the appellant
in his brief to limit this last holding of the
Surrogate, to the point of "servile" as distinguished
from "legitimate" status, will deceive
no one. 


13 

The contention of Mr. Leslie's heirs at law, as
to Mrs. Leslie's status, was primarily that she was 
illegitimate, and the proofs which so "completely
disprove" this contention, if they disprove anything 
at all, disprove the charge of illegitimacy
primarily, and the charge of mixed blood only as
a necessary incident to such disproof of her alleged
illegitimacy. 
It is a wise and well established rule that courts
ought not to decide cases upon new and novel
points of law, where it is possible to decide them
upon other grounds.  A fortiori, where it is not 
only possible, but necessary; and where this has 
been done, it certainly should not be reversed as
appellant asks. 
The reports are full of instances where this rule
has been observed, and the courts are continually
refusing to consider questions academic to the particular
case before them, however interesting. 
The rights of parties are too concrete and vital
to be buffeted about the courts, that some academic
question of law may be decided. 
So far as this case is concerned, the question
of law raised by the Surrogate is and always has
been purely academic. 
The parties interested in this particular estate 
are in no way interested in the determination of
that question.  They gave the Surrogate, as he
recognized and stated, abundant other reasons
for his decision. 
They are interested,--most deeply interested--
in putting an end to an unconscionable a piece of
litigation as has ever been instituted in any court; 
in vindicating the reputation and memory of those
so brutally attacked in this proceeding; an in obtaining
at an early date a settlement of this estate, 
and a payment of their legacies. 



14
     They most solemnly urge for this purpose, 
therefore, that this case be decided in a way that 
will end it - on the facts, instead of gratifying the 
appellant by entering upon any discussion of the 
immaterial question, by which he would fain lead 
them as far as possible from these facts, and the 
propriety of this request from them is obvious. 
Whether this statute by constitutional, or not, 
matters nothing here. Assume for mere argument's
sake, that appellant is right:- that it is 
constitutional. Where does that leave him? It 
leaves him with an absolute failure to make out 
any case under it, and with his pretented case 
affirmatively disproved. 
     They respectfully submit that public interest, 
too, demands that this proceeding be disposed of 
in the most absolute and final way, and that its 
institution and prosecution be condemned in the 
most vigorous terms, lest it become an example 
and pattern for future proceedings of like character, 
whenever there be others unconscientious 
enough to follow it. 
     2. We cannot pass unnoticed the appellants 
statement (Brief p. 1) that none of the essential 
elements of his alleged status are disputed, 
except his charge of illegitimacy. 
     The heavy burden of proof resting upon appellant 
cannot be so easily escaped. 
     None of the elements of his alleged status are 
conceded, unless it be his relationship to his own 
grandfather, Mr. Frank Leslie. 
     He has not only failed to prove illegitimacy, but 
the charge has been conclusively disproved. 
     Incidentally his charge of negro parentage is 
also disproved. 
     His contention that Mrs. Leslie's mother left no 
heirs, is entirely dependent upon his charge that 
her mother was a negro slave, which is disproved. 

15 
     Nowhere has he even attempted to prove that 
Mrs. Susan Follin, her real mother, left no heirs; 
a necessity which he thought to avoid, by selecting 
another mother, whose legal capacity to have any 
heirs he apparently planned to dispute; thus, as 
everywhere, looking to the law to supply his lack 
of facts. 
     This, and this alone, appears to be the reason 
why a negro mother, rather than a mother of any 
other race, color, or nationality, whatsoever, was 
invented for the testatrix. 
     Therefore, it having been conclusively shown 
that Mrs. Leslie, was not the daughter of a negro 
slave, but of Mrs. Susan Follin, appellant's claim 
that she left no relatives on her mother's side, remains
not only absolutely unproven by appellant, 
but without any attempt to prove it.
     Another essential element of appellant's alleged 
status is intestacy on the part of the decedent. 
     This is indeed a sine qua non - an absolute condition 
precedent; for the statute upon which appellant 
rests his claim could never apply unless 
"the decedent died intestate. 
     And yet appellant not only fails to show intestacy 
even prima facie, but he does not even allege 
intestacy. 
     This alone is absolutely fatal to his pretended 
case. 
     Again he has utterly failed to trace Mrs. Leslie's 
estate to the estate of Mr. Leslie. 
     True, she received all he had - but what did he 
have? 
     Mr. Frank Leslie, the elder, died insolvent, 
nearly thirty-six years ago, with his affairs in the 
hands of an assignee for the benefit of his creditors, 
and it was Mrs. Leslie who, by raising over 
$40,000, after his death, and settling with his 
creditors (fol. 578), rescued the publishing busi-


16 

ness, and built it up into what it afterwards became. 
In one Mr. Leslie ended in insolvency, 
and Mrs. Leslie transformed that into success. 
In tracing assets, a reasonable degree of certainty
is absolutely necessary, and we submit that
no court, on appellant's own papers, could separate
what part, if any, of Mrs. Leslie's estate,
came to her from her husband, from what part of
her estate she herself created with her own
money and personal labors in this business. 
Therefore, the appellant has failed to show this 
essential element of his pretended case also. 

3.  Appellant's question of practise is not merely
unimportant, but trivial.
This is true for several reasons. 

(A).  The appellant seeks to shift his entire
ground on this appeal.  He asked below (fols. 82-
84) a final decision, vacating the probate already
had, and bringing him into a new probate proceeding.
He now says (Brief, p. 22) that he only
wanted a preliminary hearing on his own status.
An appeal is not the place for such a somersault. 

(B).  He tenders an issue upon the propriety of
"decree" or "order" to embody an actual decision.
If there be any confusion on this point, 
he has himself alone to blame for it.  He came to
court with both a notice of motion (fols. 17-28) 
and a petition (fols. 29-84).  He now says that he 
has had "no trial" (Brief, p. 17), meaning apparently 
no chance to offer witnesses and documents. 
He did not even suggest it below.  He
made no request for it;  he offered no witness or
further documents; he merely presented his moving
papers--the very ones recited in his notice of
motion (and nowhere else); he made no objection 


17 

to the opposing papers, offered as such and in 
no other way; and he argued the case on all these 
papers, and on nothing else. 
He had his day in court precisely as he chose
to ask and use it. 

(C).  If there has been any error of practice,
it is unimportant, and easily corrected.  This
court can either substitute an "order" for the
"decree"; or else remand the case to the Surrogate
with instructions to do that. 
But upon no sound theory has there been any
such error.  If in the Supreme Court, under complaint
and answer parties should submit their
case on affidavits, instead of in the usual way, 
without objection from either side, could either 
afterwards object to a "judgment" instead of an
"order" and could either say that there had been
"no trial"?  Mere methods of procedure can be, 
and constantly are, waived in civil cases, and the
waiver, when made, is final. 

(D)  Neither the alleged error of practice, nor
anything else in the record, entitles appellant to
a reference now, and the "new trial" thus involved. 
Cases are not referred either after trial, decision
and judgment, or after motion, hearing, decision, 
and other.  Call the practice here followed
either one, and it does not entitle appellant to
another attempt before a referee. 

(E).  Lastly, there is absolutely nothing in the
record to show, or even to suggest that appellant
should now or hereafter have a decision in his
favor.  If this entire mass of facts--although
much of it would properly have to be rejected-- 
were put before any tribunal, either by witnesses, 
or in any other way, the result must be the same. 



18
      But this point of appellant has already been dignified by more notice than it deserves. The answer to it is in a nutshell. He had the very hearing he sought; he made no objection at the time; and his only real objection now is that he did not get the decision he wanted.
       4. This appeal and appellant's application should be dismissed as wholly without merit, and based upon charges not only entirely unsubstantiated by him but wholly disproved, and the decree affirmed with costs.
                                                                                             GEORGE A. STRONG,
                                                                                          Attorney for Respondent
                                                                                                          Carrie H. Wrenn.
GEORGE A. STRONG,
                 Of Counsel.

17

?
To be argued by 
HORACE E. PARKER.

SUPREME COURT
APPELLATE DIVISION---FIRST DEPARTMENT.

IN THE MATTER
of the
ESTATE OF FRANK LESLIE,
Deceased.

Reply Brief of Appellant Carrie 
Chapman Catt.

THE EXECUTORS' POINT I.

THE EXECUTORS IN THE POINT I ADMIT 
THAT THEY HAVE "NO INTEREST IN THE DETERMINATION."

The executors then devote a good portion of 
their first two points to the subject.

Apparently in their first two points the executors 
again urge upon the Court the giving of interest.

The executors brief at page 3 suggests that 
"they had supposed" that the controversy between 
the residuary and pecuniary legatees was 
whether interest ran from completion of publication 
to creditors or from one year after issuance 
of letters testamentary.

2
Apparently, if this supposition is frank, neither 
the residuary nor the pecuniary legatees had 
succeeded in making their positions understood to 
the executors. 
Under the old statute the time was fixed by 
statutory mandate. 
Repealed, Sec. 2721 (old). 
This statutory mandate has been repealed and 
it has been held in this case that even a pecuniary 
legatee in dire need could not compel payment of 
a portion of legacy. 
It is interesting that Judge Brown, the Referee, 
was a member of the Second Division of the Court 
of Appeals, which Second Division decided the 
case of 
Matter of Accounting of McGowan, 124 
New York, 526.

The McGowan case and the Rutherfurd
case are obsolete,--insofar as they
construe a statute repealed in 1914.
Just as cases under (repealed) Sec.
2653a, are of no importance now,--insofar
as they construe that statute.

The same questions arose in this case that arose
in the McGowan case, except that in the McGowan
case the only question was whether the statute
then in existence applied in a case where letters
testamentary had not been issued, but only letters
of temporary administration.
But the statute under the McGowan and Rutherfurd
cases have been repealed.
THE SAME POINTS WERE URGED UPON JUDGED BROWN
ON THE ACCOUNTING; AND JUDGE BROWN REFUSED TO

3

FIND, AS LATE AS JANUARY 19, 1917, THAT THE PECUNIARY
LEGATEES WERE ENTITLED TO ANY INTEREST
WHATSOEVER.
At the request of three pecuniary legatees
Judge Brown found as fact that letters testamentary
were issued December 7, 1914.
(Folio 107.)

He also found as fact that notice to creditors
was completed June 20, 1915,
(folio 108).

and that none of the general legacies bequeathed
by said Will had been paid in full
(folio 109).

(The Executors had taken care of Mrs. Wrenn
prior to January 12, 1915)
(folio 280).

He refused to find as conclusion of law that the
general legatees were "entitled" (on January
19, 1917), to
(folio 110)

"immediate payment."
He refused to find as a conclusion of law that
(as late as January 19,1917) the legacies bore interest
from the time of publication
(folio 110).

He refused to find that (as late as January 19,
1917), the legacies bore interest commencing with
one year after issuance of letters testamentary
(folio 111).

These pecuniary legatees excepted
(folios 111-113).

4 

They afterwards were heard under their exceptions
on the argument on March 6, 1917, 
(folio 38). 

See Appellant's Brief, Point II and Point V. 
It is respectfully urged that the Court had no
power to "reserve" the question of interest. 
And even if the Court had the power so to do
that judicial discretion should not have been so
exercised. 
The pecuniary legatees had been heard;  the
matter had been adjudicated;  they had their opportunity
to appeal;  they did not appeal;  and
the mater was closed against them when the Surrogate
confirmed the findings of fact and conclusions
of law submitted by such pecuniary legatees
and ruled upon by the Referee and confirmed by
the Surrogate. 
Just why the Executors displayed zeal in pressing
this special proceeding--and after the time
to appeal had expired,--they do not state in their
brief. 
If the Surrogate had the power, or assuming
that he had the power, if it lay within the judicial
discretion to reserve the question, there would be
nothing to prevent reserving the question on each
accounting. 
The executors in their brief suggest at page 5 
that the decree settling the account reserved the 
question of interest "for future determination."
Apparently the executors must use the word
"determination" in legal sense having used
same in a legal brief. 
But there was no "determination" at a later
time,--there were no new findings of fact, and
there were no new conclusions of law.
(Mr. Wrenn's Brief, Point IV.) 


5 

But Mrs. Wrenn, does not say that findings and
conclusions submitted on the accounting were not
necessary. 
The old conclusions of law and the old
findings of fact are undisturbed, and the
pecuniary legatees are bound. 
The Executors present expression "application 
at the foot of the accounting decree" (their 
brief, p. 2) does not tally with the facts nor with
the papers before this Court. 
Besides, the code and the cases do not provide
for any such thing. 
The application was begun by a petition with 
the issuance of citation thereon. 
Such application was an independent proceeding
brought by the executors apparently with the
desire to urge upon the Court that the findings of
the Referee were incorrect. 
The order or decree is an ordinary form of decree 
and near the end recites "and the Surrogate 
having heard the proofs and allegations of the
parties." 
The opinion (fol. 335) of the Surrogate in this
proceeding suggests that the decree settling the
account "reserved for future decision" the question; 
the executors say "for future determination." 
The decree on accounting says that the question
"is reserved."
The executors at page 5 refer to the case of
Matter of Snedeker, 61 Misc., 216, which, oc
course, is not in point;  and furthermore was a 
proceeding upon the judicial settlement of the account
of the executors. 
Mrs. Wrenn in his brief concedes in his Point
I on page 4, that interest does not commence until
one year after issuance of letters testamentary. 



6

Mr. Wrenn in Point III apparently frankly admits that his proceeding was an independent proceeding.
It was regarded b ythe Executors and all other as an independent "proceeding."
(Mr. Wrenn's Brief, top p. 4.)

Mr. Wrenn in his Point IV apparently regards the present proceeding as an independent "case."

THE EXECUTORS' POINT III.

In the petition of the executors apparently the Simons case is given as an excuse for not accounting. (Folio 65.)

The executors on page 6 refer to some "intimation" they say was made by the Surrogate upon the argument of this application.
"Upon the hearing,"- they say.
If any such intimation were made by the Surrogate residuary's attorney did not hear it; nor anything of the sort.
The argument was had on December 14, 1917, (folio 264).

As a matter of fact, the Surrogate had not then seen the paper; as a matter of fact the papers on the application were not filed in their entirety until January 2, 1918,
(folio 322).

It is respectfully suggested that such intimation by the Surrogate is something which has been imagined since the argument was had.
It is respectfully suggested that the record now before this Court is somewhat involved.


7

This was due in part to some quite unnecessary allegations in the petition and to some which were not in fact correct.
The executors say at the foot of page 7 of their brief that they received innumerable "suggestions" from the residuary's attorney in regard to the Simons case.
Some of these "suggestions" are printed in the residuary's brief at pages 36 and 37.
There are 10 "suggestions"; and these and more were "suggested" to Mr. Cromwell early in 1915.
Fols. 304-314.
Particularly fol. 305.

Mr. Cromwell's office had these and other like "suggestions" later.
Not until December, 1915, would Mr. Cromwell's office entertain a discontinuance of the two-thirds litigations.
In the Simons case such "suggestions" were again made to Mr. Cromwell's office and to Mr. Cramer's attorney, and still later by them to the United States Supreme Court; but only after the service upon them of notice by residuary.
It seems a pity that Mr. Cromwell and his office should persist in referring to opinions of the Court of Appeals and the Appellate Division as mere "suggestions".
Most lawyers refer to such opinions as "authorities",- not "suggestions".
There is a good deal in this record which it is unfortunate to have here.
This is due to the allegations in the petition.
The allegation in the petition at folio 59 that "the executors interposed answers in said actions and succeeded in obtaining their discontinuance in December, 1915," was apparently incorporated

8

in the petition for the purpose of having it go uncontradicted; and apparently in the hope that at some future time on an accounting the executors' attorneys might place Mrs. Catt in the position of having acquiesced in such allegation.
The petition is verified by Mr. Cramer only.
(Fol. 74.)
Of course, this allegation is absurdly incorrect.
(Fols. 304-314.)
Not under residuary's attorney again urged such discontinuance and offered to pay the costs would Mr. Cromwell's office discontinue.
(Fols. 308, 309.)
It is perhaps unfortunate that this record is long.
However, it is unfortunate that the Executors saw fit to institute this proceeding.
In passing, the Executors' brief, at page 8, refers to the Simons case; and they seem so to misunderstand the letters they have received, that it is not, perhaps, out of place to suggest two things.
The Executors did not want any other party defendant; and their willingness not to oppose an application to intervene was rather late,—the appeal is not yet determined by the Supreme Court of the United States.
In the second place it was crude for Mr. Cramer's counsel so to act with the Cramer claim still in litigation.
The present proceeding should be dismissed on each of the following grounds:

1. 
The matter, already adjudicated, has been foreclosed,—and no appeal therefrom.

2. 
The Surrogate had no power to entertain it.


9

3. 
Assuming that the reservation in the accounting decree was not void, it was not a proper use of judicial discretion. 
As the Surrogate himself said in memorandum: "Why is the question of interest reserved?"
Statement of facts, p. 8.

4. 
This proceeding was for "instruction in the premises."

5. 
This proceeding did not ask to disturb the findings and conclusions of the Referee and the Surrogate.

6. 
The findings and conclusions were not disturbed.

7. 
And no appeal was taken

Respectfully submitted, 
HORACE E. PARKER, 
Attorney for Appellant,
No. 100 Broadway
Borough of Manhattan, 
New York City, New York.

17
#3

3 copies recd
Oct 31 1916
[?]




To be argued by 
JOHN N. BLAIR.

Supreme Court,
APPELLATE DIVISION-FIRST DEPARTMENT,

In the Matter of the Estate
of
FRANK LESLIE, also known as Mrs. 
Frank Leslie, also known as the 
Baroness de Bazus,
Deceased.

APPELLANT'S REPLY BRIEF.

Separate answering briefs have been served on 
behalf of the Respondents-Executors, of Carrie 
Chapman Catt, of Maynard D. Follin and of Carrie 
H. Wrenn.

Time does not permit nor does necessity exist 
for detailed reply to all of these. Whatever of 
argument is to be found among them is fairly 
summarized and ably presented in the Brief of 
the Executors. This argument it is our purpose 
now to meet

But before passing to that task, we may be permitted
to say a word in answer to the slurs cast 
upon the motives, procedure and good faith of 
this Appellant by the other three Respondents. 
These worthy people have had temptingly displayed
for their acceptance and enjoyment a fortune 
of over a million and a half dollars, which 
they regarded as already within their grasp. Now

All of following not in recvd: -
all p 3
Part p4
Part 11, 12
All p. 17
Part 18
Part 25
Part 27
Part 33
Part 35
Part 36

2
they see their claim to all this money put in question.
Their enjoyment of it is postponed and, they 
realize, endangered by the insistence of this petitioner 
upon what he has the effrontery to believe 
to be his rights. Perhaps it is not unnatural 
that they should resent this and say unkind things 
about him. 
     They indignantly point out what is unquestionably 
true, that appellant wants, and appeals to 
the courts to award him, a portion of this fortune.
They complain, and it is equally true, that 
he presents his claim without alleging either relationship 
with decedent, or place in her so-called 
will. He asks a share in the property, accumulated 
by his grandfather and now constituting no inconsiderable 
part of this estate, because he believes 
and alleges that under the statutes of this state, 
and the law and practice affecting probate of testamentary 
documents which can be proved to have 
been executed by persons of doubtful testamentary 
capacity and under circumstances implying moral 
duress, he is, and should be given opportunity to 
prove himself, entitled to it. 
     Who are these outraged respondents who now  
unite to point parallel fingers of scorn at this 
interrupter of their plans? 
     Are they of the family of this decedent? Are 
they grateful and appreciative acceptants of her 
favoritism and bounty? 
     Mrs. Catt is a total stranger to the family of 
decedent, being connected with it neither by blood 
nor affinity. She is named in the alleged will 
as residuary legatee, under what is intended to 
be a moral, if not a legal, trust for the cause of 
Woman's Suffrage. Her sole claim to the wealth 
so fortuitously and temptingly displayed where 
she can touch but not grasp it, rests upon the 
genuineness of this testamentary disposition; yet, 

3
at the first threat to subject that will to legal test, 
she appropriated more than Three hundred thousand 
dollars of these funds of Woman Suffrage 
to buy off the threatening contestants. Some of 
the obloquy which she displays toward this petitioner 
might well be spared for her associate 
Respondents whose threats to contest, based upon 
aspersions regarding the testamentary capacity 
of her friend and benefactress, were so grave as 
to be appraised by their makers and valued by 
her at six figures each. 
     Mr. Follin is of decedent's blood. He is grandson 
of her father. But he was not mentioned in 
her will. His information concerning the circumstances 
surrounding that instrument and his expressed 
determination to present that information 
before the Court were valued at $100,000, for 
which portion of the residuum Mrs. Catt sought 
and obtained his silence and consent to the probate. 
     Mrs. Wrenn claims to be a niece of decedent, 
but is, in fact, a stranger to her blood, as we undertake 
to show conclusively. She is remembered 
in the will as legatee of the life interest of a trust 
of $50,000, with remainder to Mrs. Catt. But 
neither the tenderness induced by belief in near 
relationship, nor gratitude for this substantial 
testamentary remembrance restrained this lady 
from threatening contest of the will. Doubtless 
her intimate acquaintance with decedent, outlined 
in her affidavit in this proceeding, made the evidence 
in her possession more dangerous to the 
proponents than that available to Mr. Follin; for 
it was appraised at a much higher figure. In the 
very business like instrument recorded by her in 
this proceeding on January 5, 1916, her consideration 
for willingness '"to withhold the filing of 


4
such objections and to assent to the probate of 
said last will and testament" is fixed at an amount 
represented by assignment to her by the residuary 
legatee of $175,000, plus the remainder of said 
trust fund of $50,000, plus certain transfer taxes 
and other minor benefits. (See Record of Assignments, 
New York County Surrogate's Court, 
Liber 16, p. 128 et seq.)
     And yet, in their briefs, as in the previous argument 
before this Court on the motion for a commission 
to examine the newly discovered witnesses 
Davenport and Sanderson, this so agreeably 
united trio, struggle for words in which to 
voice their indignation at the temerity of the "outsider" 
who dares question the ancestry of their 
more or less voluntary benefactress; nay, more, 
who actually threatens, if he be given opportunity, 
to present in the probate proceeding the facts 
which they have, for mutual considerations, agreed 
shall not be made public. 
     This appellant makes no pretenses and asks no 
favors. He admits that he wants a share in this 
estate, and means to get it, if by diligence in discovering 
and presenting evidence and precedents, 
he can succeed in convincing this Court that he 
is entitled to a hearing other than and different 
from that granted him below. His guage of battle 
has been cast and invites attack upon him with 
all weapons recognized in the rules of legal warfare. 
     But among those weapons he believes that 
groundless imputations of unworthy motives, particularly 
when hurled by residents of glass houses, 
have no proper place. 

5
REPLY. 
     Our principal brief was addressed to support 
of the proposition that the learned Surrogate, in 
his belief that the statutes upon which petitioner 
founded his claim to intervene in this proceeding 
were void as opposed to natural right, had denied
his application upon that ground - doing so with 
the greater satisfaction, it is true, because the 
facts alleged in the petition imputed to an estimable 
lady the misfortune of illegitimate birth and 
a taint of negro blood. But we argued, we hope 
convincingly, that his indignation at the nature 
of plaintiff's allegations had led the Court below 
to dismiss the application upon the law, rather 
than to subject the issues to trial upon their merits. 
We called attention to a few of the innumerable 
precedents in support of petitioner's right 
to such trial of his issues of fact; and asked that 
this Court, by virtue of its peculiar authority to 
act in cases of this character as a Court of first 
instance, proceed by reference or otherwise, to 
grant him trial of those issues as framed by the 
allegations (where conflicting) of his petition and 
of the answer thereto. 
     We did not review the evidence offered by each 
side, nor indulge in argument as to its competency, 
probative force nor cumulative weight, because, 
after mature deliberation, we were of the opinion 
that such questions might more appropriately be 
reserved for the trial. 
     Now, however, we find that this omission is 
charged to other motives. We are challenged to 
show meritorious foundations for our client's claim. 
We willingly accept that challenge. 

6

The Issues.

First let us consider what the issues are as joined and defined by the petition and answer.
Par. I of Petition alleges that petitioner is a grandson of Frank Leslie first.
Admitted by Par. 1 of Answer.

II. That alleged will of decedent was filed for probate May 22, 1914. 
Admitted do.

III. No codicil. Decedent died resident of N. Y. County, Sept. 17, 1914. 
Admitted do.

IV. The persons entitled to citation include petitioner.
Denied, Par. 2 of Answer.

V. Amount of decedent's estate $30,000 realty, and $1,750,000 personalty.
Corrected to more than $100,000 realty and $1,737,477.70 personality by Par. 3 of Answer.
VI. Decedent left no husband, decedents, nor relatives on the part of her mother.
Admitted by Par. 4 of Answer.

VII. Decedent born in New Orleans June 5, 1836. Her father was Charles Follin, her mother a slave. Charles Follin married once only, to Caroline C. Trescott at Charleston, Oct. 4, 1830, had by his wife but one child, Ormond Follin, born about 1832; said wife died Oct. 30, 1833; Follin never married any other person; had no legitimate child except Ormond; decedent his illegitimate child by said negro slave; her parents never married, her mother had no other child; that, at the time of her death decedent had no relatives


7

on the part of her mother; that her mother died in or about 1837; no person in existence capable of inheriting through said mother; decedent originally known as Miriam Florence Follin; lived in N. Y. from 1845 to death; married Frank Leslie first July 13, 1874.
Par. 5 of Answer admits date of birth but denies knowledge of place; admits Charles Follin her father; denies that mother was a slave; avers that mother was Susan Danforth, lawful wife of Follin; admits allegations respecting Follin's birth, marriage to Mrs. Trescott, birth of son Ormond (in 1831), death of Mrs. Trescott Follin; denies that Follin never married any other person and had no other legitimate child by a negro slave and that father and mother of decedent were never married; admits that decedent's mother never had any other child and that decedent left no relatives on the part of her mother; denies that mother died 1837 but avers death in 1868; admits decedent known as Miriam Florence Follin and lived in N.Y. for many years, but denies knowledge of date of commencement of such residence.

VIII. That Frank Leslie First left all his property to decent by will, proved Dec. 7, 1880; that prior to his death he had assigned a large part of his property, consisting of papers and publications, to an assignee for creditors and prior to date of his said will made composition agreement with creditors and for reassignment to him of said property; and property so assigned was in hands of assignee when Leslie died. 
Admitted by Par. 6 of Answer.

IX. Said assigned property worth $1,000,000 or more and producing $75,000 per annum net.
Denied by Par. 7 of Answer.

8

X. June 1, 1881, assignee conveyed said trust property to decedent as executor of and sole legatee of assignor; decedent became owner in possession thereof and thereafter received from assignee balance of $19,246.10.
Denied by Par. 7 of Answer.

XI to XV inclusive name descendants of Frank Leslie First; only allegation of importance is that petitioner is one of his four grandchildren.

"XI" admitted by Par. 1 of Answer. XII to XV denied by Par. 7 of Answer. But relationship of petitioner to Leslie First has been expressly admitted by Par. 1.

XVI. Petitioner's grandmother divorced Frank Leslie First July 18, 1872, and grandfather married decedent July 13, 1874. 
Admitted by Par. 1 of Answer.

XVII. Entire estate left by decedent above $10,000 consisted of property so given her by Frank Leslie First and income, issues, profits and accretions thereof and its accumulations; no part received from first or second or fourth husband or father or mother.
Denied by Par. 8 of Answer.

XVIII. Grandchildren of Frank Leslie First entitled to receive all of decedent's estate received from their grandfather.
Denied by Par. 9 of Answer.

XIX to XXVI, inclusive, contain no important averments except that petitioner was not cited in proceeding for probate of decedent's will and is entitled to such citation.
Denied by Par. 12 of Answer.


9

From this review it appears that the following material allegations of the petitioner are admitted:
That decedent was born June 5, 1836. That Charles Follin was her father. That she lived in New York City for many years and died a resident thereof. That she left her surviving no relative on the part of her mother. That she left an estate of more than $1,800,000. That her third husband was Frank Leslie First who, by his will, gave her all his property. That petitioner is a grandson and one of the heirs and next of kin of said Frank Leslie First.
The following material allegations of the petition are denied:
That decedent was born in New Orleans; that her mother was a negro slave; that her mother was never married to Charles Follin, her father, and that she was an illegitimate child; that Charles Follin never was married to any woman other than Caroline Trescott and never had any legitimate child other than Ormond, his son by said wife.
That a substantial part of the estate left by decedent consisted of property given her by will of her third husband, Frank Leslie First, and of accumulations thereof.

Respondents-Executors point out on page 13 of their brief that the Surrogate might properly have dismissed the petition on the law if either of two circumstances had existed:
FIRST: If petitioner would not have been entitled

10 

to the relief he claims, had all his allegations been
admitted to be true. 
SECOND:  If no substantial evidence had been offered
to support his claims. 
We agree with this statement. 
The Surrogate, according to our interpretation 
of his decision, in support of which our principal
brief is offered, found the first condition fulfilled 
and held accordingly.  We have in that brief endeavored
to show that he erred in his interpretation
of the law. 
We now submit, with equal confidence, that
he would have been in error had he based his decision 
upon affirmance of the second condition. 
Before proceeding to review the evidence offered 
by petitioner in support of those issues as
to which it is incumbent upon him to present some
substantial proof, we yield with reluctance to the 
conviction that, because of a series of charges
and innuendoes repeated at various times
throughout the briefs which have been served by
our adversaries, it is both proper and necessary
that we should refer to the following facts: 

Contumely has been showered upon the petitioner,
not only by respondents but in large measure
by the Court below, because of the allegation 
in the petition that decedent was the daughter 
of a negro slave. 
The learned Surrogate says of this: 

"Of course, such a claim seems to us now
at this lapse of time a monstrous claim" (fol. 
1912). 
"In all countries where a servile status exists 
or has once existed, the free born and
their descendants are for a long period of
time thereafter outraged by charges detracting
from their more superior status, or by 


11 

what they regard as an unjust attempt to
include them, being of the higher caste, within
the ranks of the service caste.  In view of
this well known fact, if for no other reason,
this general indignation is not to be ignored
in courts of justice.  To my mind the cause 
of the indignation in this instance furnishes
only another argument against a construction 
which would tend to bring those  of  alien
blood within the description of heirs at law to
one dying without heirs of her own blood"
(1914). 

For the act and consequences of miscegenation
all right thinking minds feel repulsion.  The innocent
offspring of such unions are or should be 
objects of sympathy; and where, as has happened 
on numerous occasions within the experience of
those who have lived or spent time in the states 
where slavery flourished, such offspring has,
through dilution of blood in the negro ancestry,
exhibited physical traces only of the caucasian inheritance,
humanity and decency demand that any
chance shreds of history which, if repeated, would
bring the humiliating fact to light, should be left 
buried in oblivion, unless good cause necessitate
their publication. 
Appellant's present attorney and counsel had
no knowledge of this proceeding until after the
issues had been joined and argued, and the Surrogate's
opinion handed down.  But, after painstaking
examination of all the data available to the
original attorney and his associates, after wading
through the history of the Leslie family as the
same was connected with and affected by this decedent; 
after personal conversation with Noel
Davenport and Lemuel A. Sanderson, the only 
persons living, so far as known, who knew Charles 
[*] not in record*] 



12 

[* not in record | *]
Follin well,--persons, too, of whom appellant had
no knowledge when his petition was filed--they believe
that the allegations of the petition were justified, 
however questionable some of the so-called
corroborative affidavits may be found;  and they
are content to stand equally responsible with their
predecessors for the maintenance thereof. 
But no mention was made of this unpleasant
feature of the case in appellant's principal brief, 
and such restraint is now noted and emphasized
by our adversaries.  This omission was intentional,
because the feature was unpleasant, and
because, in our view, its further discussion has, 
since the service of the answer, become unnecessary. 
[* 26,27
See P.32,34,35*] 
Petitioner must, to establish his claim, allege 
and maintain two separate propositions.  First, 
that decedent was an illegitimate.  Second, that
she left no relative on the part of her mother.  The
evidence in his possession showed that she was illegitimate
and that her mother was a slave and
therefore, in the words of the learned Surrogate
"a propertyless person, not stock or stirp of descent." 
Both essential facts were alleged.  But, when 
the answer was served, the non-existence of surviving
relatives on the part of decedent's mother 
was expressly admitted (750,756).  In that state
of the record, the identity of her mother became
no longer an issue, all that was necessary to prove
concerning her being that she was not married 
to Charles Follin.  For this reason only have we 
been mute upon this argument concerning the
mother's identity and we did intend to remain
so.  That privilege is now denied us. 


13 

POINT I. 
Every material issue tendered by Petitioner's 
moving papers which has been traversed by the
answer, is proven by competent and "substantial" 
evidence. 

These controverted claims are, as we have
shown: 
1.  That decedent was born in New Orleans. 
2.  That her mother was a negro slave. 
3. That her mother was never married to Charles
Follin, her father. 
4. That her father never had any other wife 
than Croline Trescott, and never had any other 
legitimate child than Ormond Follin, her son. 
[*} But are pp. 36 + 42 *] 
5. That a substantial part of the estate left by
decedent consisted of property which she had received
under the will of her third husband, grandfather 
of his petitioner. 

Considering these issues in order we find: 
1. Decedent is shown to have been born in New
Orleans by
a. Her numerous oral statements to that effect
made to Sara C. Powers (664). 
b. Her admission, embodies in writing in the
record of her marriage to Ephraim George Squier, 
in 1857 (1610). 

2.  Evidence as to the identity of her mother is
contained in
a. The affidavit of Louisa C. Burge (658). 
This witness is a grandaughter of Caroline Trescott
Follin, wife of Charles Follin, by her first
marriage, and is therefore not related to Charles 
Follin by blood, but is related to him by affinity
through his marriage to her grandmother.  Her 



14 

testimony of declarations made by her mother,
who was a step-daughter of said Follin and a 
member of his immediate family in New Orleans
from 1830 to 1837 (651, 654, 310, 355, 373, 396) 
concerning questions of pedigree of said Follin's 
family, particularly concerning the birth and
parentage of a child born to him in the city of
their residence in 1836 while said declarant was 
still a member of his family, is competent. 
See generally cases cited under Point IV below, 
and, particularly, as to cases in this state, those
cited under Sub-division A thereof, to wit: 

Matter of Seabury, 1 A. D. 231.
Washington v. Bank for Savings, 65 A. D. 
338. 
Jackson v. Curley, 8 Johns, Rep. 128. 
Eisenlord v. Clum, 126 N. Y. 552. 
Clark v. Owens, 18 N. Y. 434. 

The Competency of this witness is attacked by
Respondents upon the supposed authority of
Aaholm v. People, 211 N. Y. 406 (fully discussed
under a subsequent point in this brief in which 
we show that the rule which it enunciates has no
application to any of the witnesses in this case). 
But not content to rest upon this objection, which 
is quite sufficient, if well taken, they seek to impeach
her credibility upon the grounds (p. 24 of
Executors' brief) that she is seventy-five years 
of age, is poor, living "in almost abject squalor
in a cheap tenement" (fatal disqualification for
truthfulness!) "is so nearly blind that she cannot
read" and is "addicted to the use of intoxicants."
To what extent the slow dragging hours
which her dimmed eyesight forbid her to pass in
reading are drugged away with intoxicants is not
stated. 
Our adversaries' brief, for its authority for the 


15 

above proof that this aged witness is unworthy 
of belief, refers to affidavits of A. S. Wrenn (page 
219 of the Papers) and of Annie Owens (p. 226). 
The first of these accusing affiants went, with
another man (purpose and identity, save as to
name, undisclosed) to the wretched home of the
blind old woman at an hour when the man who
lives with and takes care of her was absent. 
What followed is best told in his own words 
(882-2): 

"I told her that I was a nephew of Mrs. 
Frank Leslie.  I asked her if any one had 
told her not to answer any questions and she
replied that that was a question.  She said
that she was nearly blind and that she could 
not see to read or write although she could
sign her name.  She said that she lived with
a man named Savage, who took care of her, 
and she repeatedly referred us to said Savage, 
saying that he attended to her business,
and no doubt would answer our questions
satisfactorily.  I told her I did not care to
see Savage, that she and not Savage was responsible
for her affidavit, and that I could
not see the point of talking to a third person
about her affidavit. 
"I told her that her affidavit contained 
statements which were untrue."  (The italics 
are ours.  Can it be believed that such a sentence
was actually spoken by a man to a woman
with whose family he claims relationship 
by marriage,--still more, to a woman seventy-five
years old, nearly blind and abjectly poor? 
If his manner had portended such insult, no
wonder the poor old woman bemoaned the
absence of the man who took care of her.) "I
further told her that it contained certain 



16 

things which reflected upon members of my
family.  We offered to read her a copy of
the affidavit, but she said it was not necessary
and that we would be wasting our time.  She
again and again said she would not answer 
any questions and for us to see Savage." 
(884). 

If any one is discredited by this affidavit, we
submit that it is not Louisa C. Burge. 
The other affidavit of impeachment is by one
Annie Owens.  As to who or what she is the record
is silent.  She is not above imputing (under
whatever circumstances she may have been induced
to inject herself into this litigation) lascivious
conduct to a woman seventy-five years old
and nearly blind and "having a deformity or
hump upon her back" (904,907) 
Mrs. Burge is a living member of an "old Southern 
family," good enough at least to have been
united in marriage with the father of Mrs. Leslie.
If slander and scandal mongering are to be
charged against any party to this proceeding is
the guilty party that one who alleges that the
wealthy Mrs. Leslie was the innocent victim of
her father's wrong or those who brutally insult
and then befoul the hoary and decrepit age of the
abjectly poor and defenseless Mrs. Burge? 
We now maintain that this affidavit of Mrs. 
Burge, competent in law, uncontradicted in fact
and unimpeached by any proof of bias, inducement, 
untruthfulness of character, lac, of opportunity
for knowledge or other disqualifying circumstances,
is sufficient "substantial evidence" in
support of this issue to shift the burden of proof
and require a trial with its opportunities for
further examination and cross-examination. 
b.  But this is not all the evidence available on 


17 

[* ] not on record*] 

this subject. There have been filed in this Court
in this proceeding affidavits made this year by
two thoroughly intelligent and respectable and,
in view of what has been charged against Mrs. 
Burge it may seem important to add, prosperous 
gentlemen, each of whom was a nephew of Charles
Follin and knew him well.  We refer to the affidavits
of Lemuel A. Sanderson of San Francisco,
dated May 6, 1916, and of Noel Davenport of Colton,
California, dated January 5, 1916.  Both were 
filed on June 16, 1916, with notice of this petitioner's
motion made on that day for commissions
to take the testimony of said witnesses upon
interrogatories, and for leave to postpone service 
of his Points herein until after the return of
said commissions.  That motion was denied without
opinion; the ground is therefore not known. 
But if a trial shall be granted as prayed, the testimony
of both those witnesses may and will be 
offered.  It is then, we submit, proper for this 
Court if they shall see fit, to read both said affidavits. 
If they will do so, they will find ample 
and uncontrovertible corroboration for Mrs. 
Burge's testimony. 
Their competency to testify to facts concerning
the pedigree of Charles Follin's family and to
declarations made to them (in the case of Sanderson,
by Charles Follin himself, and in the case of 
both witnesses, by sisters of said Follin and by
other members of his family), is based upon their
close blood relationship to said Follin.  Sanderson
is the son of Almiade Follin, Charles Follin's sister' 
Davenport, of Hortense Josephine Follin, another
of Charles Follin's sisters. 
The objections raised by Respondents to the
competency of these witnesses to prove such pedigree
are discussed and shown untenable in a subsequent
point in this brief. 



18 

3.  That the mother of decedent was never married 
to her father, Charles Follin is proved by
a. Petition of Gorham Davenport for settlement
of his account as Executor of the last will of
Melanie N. Follin, dec'd (1369, et seq.); 
b. Petition of Gorham Davenport for Letters 
of Administration of the estate of Charles Follin, 
dec'd (photographic copy, p. 351). 
Gorham Davenport was husband of Hortense 
Josephine Follin, a sister of Charles Follin (468),
[* | not in record *]
and father of the Noel Davenport (466), whose affidavit, 
verified January 5, 1916, is on file in this 
Court and has been referred to above.  His character, 
business and financial position in Mobile,
where he lived, his reputation for probity, and his
generosity toward various members of his wife's
[*| not in record* ]
family are all described by Lemuel A. Sanderson,
nephew of his wife, who lived in his family, whose
affidavit, verified May 6, 1916, is also on file in this
Court, and to which reference is made for proof
as to these facts.  His character is also shown by
his selection by his mother-in-law Melanie N. Follin
--who had numerous sons and daughters--as 
executor of her will (469). 
This Davenport was executor of the will of Mrs. 
Melanie N. Follin, mother of Charles Follin (469),
and filed his verified petition for settlement of
his accounts as such with the Judge of Probate
of Mobile County, Alabama, on July 30, 1860.
This document is printed in full in the Papers on
pp. 343 et seq. and a photographic enlargement of
a part of the original is inserted as page 347. 
By her will (p. 117) Mrs. Melanie Follin devised 
and bequeathed her residuary estate to certain
of her children therein named in equal shares. 
Among these beneficiaries was Charles Follin
(468).  Charles Follin had died on November 


19 

18th, 1859 (526) and it was therefore incumbent
upon the executor to set forth in his accounting
proceeding the names of all said Follin's heirs 
and next of kin.  He met that duty by incorporating
the following averment: 

"That Charles Follin died leaving a son
Ormond W. Follin his only heir at law [and a 
daughter] who resides in Charleston, South
     - and is of age 
Carolina, [his only children and heirs.]"  (Corrections
copied from original;  see photographic 
copy, p. 347). 

In the next paragraph of the same petition it
was originally written (and not corrected) that
among the heirs is "Ormond W., the only son and
representative of Charles Follin, deceased" 
(1375). 
Six weeks later, on September 14, 1860, Gorham
Davenport presented to the same Probate Judge
his verified petition for letters of administration
of the estate of Charles Follin, dec.  Here again 
it was his duty to disclose to the court upon his
oath the names of all children left by said intestate. 
He therein stated: 

"That said intestate left no widow and but
one child, a son, named Ormond, who is of
age and resides out of the State of Alabama
and as petitioner believes in Charleston, South
Carolina" (see photographic copy, p. 351). 

No evidence is given as to the identity of the
person in whose handwriting these petitions were 
made.  Albert S. Osborn, expert in handwriting,
has shown in his affidavit presented by Respondents,
that both are signed by Gorham Davenport
in whose hand the letter on p. 352 was written.

20 
By comparison of the reproduction of both petitions 
with said letter, it appears, to the inexpert 
eye at least, that the two petitions were written 
by the same person, but by a different hand from 
that of the man who signed each in the name Gorham 
Davenport and who wrote and signed the letter 
on p. 352. It would seem, therefore, to be a 
fair and reasonable assumption that the petitions 
were written by the lawyer who represented Mr. 
Davenport in both proceedings - such being the 
usual course. 
     Now what interpretation is to be placed upon 
these two statements? That they are competent 
declarations regarding the pedigree of Charles 
Follin's family can scarcely be questioned. If 
it be, the question is answered by the authorities 
cited below under Point IV. As such they are 
proof of what they state. 
     There can be no question about what the second 
states. It is unequivocal: "Intestate left no widow 
and but one child, a son named Ormond." 
     The first is open to interpretation by argument, 
for it said, as originally written 
     
     "That Charles Follin died leaving a son 
Ormond W. Follin his only heir at law and a 
daughter who resides in Charleston, South 
Carolina, his only children and heirs" 

and as corrected (apparently in the same hand) 

     "That Charles Follin died leaving a son Ormond 
W. Follin his only heir at law who resides 
in Charleston, South Carolina, and is 
of age." 

     Let us consider first the comments made on 
this evidence by the Respondents. 
     The attorney for Mrs. Catt dilates upon it in 


21 
characteristic fashion on pp. 74-81 of his brief. 
First he says "This petition was in the handwriting 
of Gorham Davenport" citing, as authority 
the photographic reproduction and Osborn's 
affidavit. Neither affords any substantiation for 
this statement and, as we have said, we feel no 
doubt that the Judges, on comparing the handwriting 
of the petitions with that of the signatures 
and the letter written by Gorham Davenport 
(p. 352), will agree with us that the former 
are not in Davenport's handwriting. Then he 
adds as argument: "Gorham Davenport knew 
that this petition in his handwriting was false in 
two particulars" because "he knew that Charles 
Follin left his widow Susan surviving him and 
their daughter, the testatrix." In support of this 
he refers to the letter of Davenport to Miriam in 
which he addressed her as "My dear child" and 
signed himself "Affectionately your uncle Gorham 
Davenport" and to various proofs that Mrs. 
Danforth and Miriam had long been recognized 
and treated by various members of the family as 
Charles Follin's wife and daughter. On p. 80 he 
adds "Gorham Davenport knew this (July 30, 
1860) petition was false in another particular." 
This was the omission to include in his list under 
the caption "The heirs are now as follows," 
together with the names of other children of the 
testatrix, the names of Almiade Follin Sanderson 
or her children, and of Virginia Follin Bayol
or her children. The circumstances evidently escaped 
this counsel's attention that this is not a 
petition for probate in which heirs and kin, even 
if not mentioned in the will, should be named, but 
a petition for an accounting, in which only those 
mentioned in the already proven will were interested. 
Neither of testatrix's daughters Almiade 
or Virginia were included by Melanie Follin in 



22 

her distribution by will of her estate which was 
"to the following named children"; and the two
above mentioned were not named. 
This second imputation of wilful perjury, at
least, will have to be withdrawn. 
The final argument of Mrs. Catt's counsel, re
the second petition, is found on p. 81.  It is: "Gorham
Davenport knew this petition also was false
for the same reasons." 
Mrs. Catt's only ground, therefore, for dismissing
the petitions as wilful perjury is Davenport's
action in addressing Miriam and Susan Danforth
respectively as daughter and wife of Follin, and
his knowledge of the fact that others of the Follin
family, including his wife, had for many years, 
done likewise. 
But, turning to the brief of the Executors, we
find a real effort made to state and support by
argument matter in impeachment of this evidence. 
We invite attention to the discussion therein beginning
at p. 35. 
These counsel are frank enough to concede at
the outset (p. 36) that "These two petitions at 
first blush appear to lend some support to the
appellant's contention."  But they think this effect
is destroyed by the following facts which
they find in the record: 

FIRST: The correction in the first petition, hereinabove 
described, "is obviously of such a nature
as to at once not only arouse suspicion but also
invalidate these papers as evidence on this particular
point." 

SECOND:  The petitions appear to be directly
contradictory to the "Affectionately your uncle
Gorham Davenport" letter. 

THIRD:  Davenport had a pecuniary interest to 


23 

be served by perjuring himself in these two petitions. 

We will consider these three grounds of impeachment
seriatim. 
FIRST:  Does the correction and interlineation
of the first petition not only arouse suspicion, but
also invalidate the document as evidence on this
point? 
[* | not a record*]
For reasons outlined above, it seems fair and
reasonable to assume that this petition, which is
obviously not in Davenport's handwriting, was
drawn for him to sign and verify, by his lawyer. 
That lawyer, resident in the then small City of
Mobile, doubless knew, what was the common 
knowledge of the family, friends and acquaintances
of the Follins and Davenports, that Charles Follin
was the father of Miriam as well as of Ormond. 
He was evidently in doubt as to just how 
to express the situation; and that doubt can only
be reasonably explained by the assumption that 
he knew of Miriam's illegitimacy.  For he wrote
"Charles Follin died leaving a son Ormond W. 
Follin, his only heir at law and a daughter who
resides in Charleston, South Carolina, his only
children and heirs," and added "Ormond W. Follin,
the only son and representative of Charles
Follin deceased."  How could his son have been 
his only heir at law and his only representative,
if he also left a daughter?  Under one circumstance
and one only: in case the daughter was illegitimate.
Is there any escape from this conclusion? 
But then came the realization--whether as an 
afterthought of the man who drew the petition,
or on the suggestion of Davenport when he read
before signing it, we do not know--that, if the 



24 

[*If not a daughter, Clarks
not a father & no relation.*]

daughter was illegitimate, she was not, in the eye
of a Probate Court at least, a daughter at all. 
So the statement was corrected and reference to
the daughter stricken out. 

It is a well known and inevitable rule of legal
interpretation that inconsistencies, like ambiguities,
must be examined and interpreted in the
light of probability as evidenced by all available 
surrounding circumstances.  Here we have, as
our circumstances, a document prepared by some
one employed for the purpose by Davenport, which
was not only to be filed in a Probate Court as the
commencement of his proceeding for settlement 
of his final account as an executor, but which must 
be sworn to, and whose contents must be true in
fact, as the law interprets the facts.  It is common
experience that the drafting of such documents 
is intrusted to lawyers.  Is it reasonable to suppose
that a lawyer would have first drawn the original
statement in that unusual form and then made
the correction, if he had not at first suspected
and afterwards been told by his client that Ormond 
was the only legitimate child, and that
Miriam was illegitimate?  We cannot agree that 
this language as originally written and as amended, 
whether considered separately or together,
arouse suspicion and invalidate the evidence.  On 
the contrary, we feel on safe ground in advancing
this paper as both competent and convincing proof
of Miriam's illegitimacy. 

SECOND:  Are these petitions so contradictory as
to be inconsistent with the "Affectionately your
uncle" letter? 

Apparently inconsistent, without doubt.  But
not infrequently in human experience, apparent
inconsistencies vanish where the explanation is
presented. 


25 

Is there any explanation available in this instance? 
Does the evidence, or any reasonable inference
consistent with the evidence, disclose a
state of facts which would explain this apparent
inconsistency?  If so, it should be accepted.  For
the alternative is to impute wilful (not careless or
forgetful) perjury;  and such a crime is never
to be lightly presumed against the character and
memory of any man--least of all of such a man 
as the affidavit of Lemuel A. Sanderson, his living                [*not in record*]
nephew, and the confidence reposed in him by
Melanie N. Follin show Gorham Davenport to
have been. 
[not in record]

We think there is such explanation.  We believe
that there is a fairly inferable state of facts
which will at once reconcile not only this, but all
other seeming inconsistencies arising from comparison
of the various proofs offered in this case.

We have shown that Miriam Follin was born                               
[*If a creole, comment have [?]*]
in New Orleans in June, 1836, and of a "creole" or                      ________creole*]
woman of mixed white and negro blood who was
a slave. We infer that this woman was the mistress                 
 [*"her mother was a negro 
of Charles Follin, the father of her child, slave" &c aff. Leslie Follin*]
and was so dear to him that when she died, shortly
after the birth, he decided to, and did, recognize
the paternity and receive and bring up the infant
as his daughter.  There is no particle of evidence
to show how much African blood this mother possessed;
but from the evident passion felt for her
by her master, and the complexion and features                       
[*Like Dusan Follin*]
of her daughter, it is a reasonable and apparently
necessary inference, that she was light in color,
very probably an octoroon.

Follin took the infant, after her mother's death,                        
[*and they didn't know the name*]
into the family which he was then maintaining
in the former Mrs. Trescott Follin's house in New                      
[*"a slave [?????] to the State &c"*]
Orleans. There she lived with her father, the
[*ref. 654 Louisa C. [Burgrs?] aff.*]

26
Trescott children, and her half-brother Ormond
(654, 1593, & seq.).

In 1838 Follin failed in business in New Orleans
and made an assignment for creditors on
Sept. 22 of that year (1235). Then occurs a hiatus
of two years in his history. The next date appearing
 in the evidence in on a letter written by
him in New Orleans to Susan Danforth, evidently 
then residing at some distance (probably New
York), dated December 3, 1840 (p. 315). In this
he addressed her as "My dear, dear Susan";
signs himself "Most sincerely your devoted husband,
 C. Follin" and sends "Kiss for my dear little
Miriam, love to Noel and for yourself My
dear dear Sue."

What had occurred in the meantime to make little
Miriam, then four and one-half years old, to
New York, into the care of "his wife Susan" and
to introduce the new figure of "Noel" to whom he 
sends his love?

Upon the answer to this question depends the
solution of Respondents' carefully presented list
of contradictions; of Respondent Mrs. Wrenn's 
claim to be of Follin blood; and such answer re-
moves the foundation stone of the whole opposition
to petitioner's claim–the allegation that
this Susan, who is elsewhere shown to be Susan
Danforth, was Miriam's mother and Charles Follin's
wife.

What had occurred in the intervening two years 
must be inferred. Neither side has offered any 
direct proof. Our inference on this subject, supported
as we shall show, by much evidence and 
not contradicted by any, is this:

Follin went, sometime between September, 1838,
and the autumn of 1840 to New York where he met, 
fell in love with and accepted as his wife a widow
named Mrs. Susan Danforth. This widow had

27
one son Augustus Noel Danforth, then about thirteen
years old (p. 288). Follin, evidently more
fond of the child Miriam than of Ormond who
was by this time a boy eight or nine years old,
leaving Ormond with his maternal relatives in 
Charleston, took Miriam to New York and established
a family to which he contributed this daughter
and Mrs. Danforth contributed her son. He
doubtless reported to his mother and brothers and
sisters that he and Mrs. Danforth had been married
and that both children were to be treated, as
step-children are very commonly and properly
treated, as son and daughter respectively of both
parents. This relation was accepted and approved
by the entire family for years.

Miriam married in 1857 at Providence, R.I., one
Ephraim George Squier and the young couple took   [*Peacock Record*]
up their home with Mrs. Susan Follin in her house
on 39th St., New York (1031). When Charles Follin
had abandoned their home or been abandoned
by it, we do not know ; but in 1858 we find him and [*? not in record*]
his brother Adolphus living alone together in an
apartment in New York City (Sanderson's affidavit).
Shortly thereafter, broken in health and
pocket, unattended by Susan Danforth, he returned [*untrue*]
to Mobile to the care of Gotham Davenport,
who paid for his room, board and servant
hire to the time of his death, and then paid his
funeral expenses. We have no direct proof, but
there is reasonable ground for inference that at
some time, possibly during this last illness, Follin 
confessed to Davenport that no ceremony of marriage
had united him with Susan Danforth, after 
which the petitions were verified with the statement
that he left no widow.

At various steps in our argument we take occasion
to consider in more detail the different bits of
evidence here merely referred to. We believe they

28 

fully substantiate all that we have presented as
proven fact.  For the inferences deducible from
said facts, which we have supplied to make an intelligible
history, we are, of course, solely responsible. 
It is our earnest conviction, arrived at after 
careful study of all the evidence, that the above 
recital of facts is substantially correct.  As such
we submit it as our answer to the second ground
upon which discredit is sought to be cast on Gorham
Davenport's petitions. 
As to the existence, weight and competency of
the evidence to support those facts which we have
taken as proved, we request the Court to reserve
judgment until they shall have completed the reading
of our review of the evidence. 

THIRD:  Had Davenport a pecuniary interest to
be served by alleging falsely that Follin left no
widow and but one child, his son Ormond?  And, 
if so, was this interest of such real and substantial 
character as to render those declarations in his 
petitions incompetent because not "natural effusions" 
and not made ante litem motam, as urged 
on p. 39 of Executors' Brief? 
An affirmative answer to these questions is vigorously
maintained in Executors' Brief (p. 37 & 
seq.).  Their argument is:  Mrs. Melanie Follin
left an estate consisting of both personalty and
realty.  Davenport as executor secured the 
Court's permission to sell the realty in order to
make division of the estate.  Such sale did not
effect an equitable conversion under the law of
Alabama, and if Follin had had a wife she would,
at his death, have become entitled to dower in so
much of his interest in his mother's estate as
represented his share in the proceeds of this
realty.  If there were no widow the whole of Follin's
estate--interest in this proceeds of realty as 


29 

well as personalty--would be subject to the claims
of his creditors.  Charles Follin died insolvent and
"Davenport asserted a claim against him in excess
of his interest in his mother's estate."  By having
himself appointed administrator and swearing
away the widow who would have superior rights,
he could collect from himself, as executor of M. N. 
Follin, the only assets of Charles Follin and apply
them to his own indebtedness.  If it appeared that
Follin had a widow this would be impossible, for a
considerable portion of the estate would go to her. 
On the above showing, respondents submitted 
that "Gorham Davenport had a very strong motive 
for leaving out of his papers any mention of
the widow."  Mrs. Susan Follin wouldn't know it
and "he could use the entire estate of Charles Follin
in payment of his debts and could satisfy the
widow with the statement that her husband died
insolvent."  *  *  *  "A strong motive for Gorham
Davenport to conceal the truth was presented
and he apparently succumbed to the temptation." 
It is interesting to see what constitutes, in the
minds of these respondents, a strong motive to lead
a man of presumably ordinarily upright character 
to (1)  commit perjury;  (2)  falsely deny the fact
of a woman's marriage to her reputed husband; 
(3) cheat the woman out of her dower in that husband's
property. 
These are three pretty serious offenses, punishment
for which, should they be discovered, would
be imprisonment, damages and the contempt of all
right thinking people.  What is this estate, of
which a considerable portion proved the strong
temptation to which this heretofore honorable
man succumbed? 
The entire amount of Charles Follin's distributive
share in this mother's estate, remaining unpaid
to him at the time of his death, was $268.86 



30 

(539).  The total claims against this estate presented
to the administrator amounted to
$6,257.96 (542).  Of these, the claim of Gorham
Davenport was for $291 and was for funeral and
other expenses and was allowed and paid as a 
preferred claim.  The items for it are given as
follows (545): 
1859
Nov. 17th.  By cash pd. for six carriages 
at Funeral,     $24.00 
Nov. 17th.  By cash paid D. Robinson for
coffin,     85.75 
By cash paid adv. administratorship,
 4.50 
By cash paid fees of Probate 
Court,     16.75 
By cash paid room, board & 
servant hire during his last
sickness from July 1 to
date,     157.50
By cash paid for leaches,     2.50 
_____________
$291.00 

Of the above items all but "Room, board, &c.,
$157.50" are funeral and administration expenses 
and were unquestionably entitled to preference. 
They aggregate $133.50.  After paying 
these, there remained of the estate $135.35.  So, 
if the court erred in allowing this board and
keep and attendance during his last sickness as
part of the funeral expenses, and as such entitled
to a preference;  and if no commissions,
costs or other expenses were to be deducted from
the $135.35 remaining to be divided between
widow and creditors; then, in those events, Davenport's
total unpreferred claim of $157.50 would 


31 

have shared with the other unpreferred claims 
aggregating $5,966.96 in distribution of $135.35. 
To be exact, his booty, the price of and temptation
to his perjury, defamation and cheating,
157.50
would have been $135.35 X  ----------or, as
5966.96 
nearly as we can figure it, Three dollars and fifty-seven
cents. 
Perhaps our figuring is wrong and he might
have gained more; the whole room rent of $157.50;
or even the whole estate of $268.85.  He had advanced 
the room rent to the time of the 
death.  Neither putative wife nor comfortably 
married daughter had bothered about that detail. 
He had provided, out of his own pocket, a coffin 
and a funeral.  There is no record of even a 
wreath of flowers furnished by this "widow." 
Doubtless he could, as is suggested "probably feel
secure in the belief that Mrs. Susan Follin would 
never know the contents of the papers" and he
could satisfy the widow with the statement that
her husband died insolvent, "a fact probably
known to her."  (Executors' Brief, p. 38.) 
The fact is that when, poor broken and insolvent,
abandoned by the woman who "probably
knew" of his financial condition, he returned to
his own people to die, Gorham Davenport, his 
brother-in-law, supported, cared for and buried 
him.  And this man, the last friend and benefactor
Charles Follin had on earth, is unhesitatingly
charged with serious crime for the most
trivial conceivable of motives, in order to discredit
his testimony. 
Our adversaries must regard this evidence as
dangerous, to condescend to repel it with such
ammunition. 



32

     c. Genealogical tree of the Davenport and
Follin families drawn by Gorham Davenport.
This contains the record of Charles Follin's life
and family (p. 240), as follows: "Charles Follin,
30 Sept. 1799. Married Nov. 17, 1859." In the 
branch prepared for names of children occurs the
one name "Ormond."
     If Davenport falsified the petition to cheat the
widow he was thorough and falsified this tree for
the same purpose. For no other reason can be 
suggested for leaving off either Miriam or Susan
Danforth, if they belonged on that record.
     d. Affidavit of Lemuel A. Sanderson of file in
this Court.
     e. Affidavit of Noel Davenport, do.
     The Court is earnestly requested to re-read
these affidavits, now on file in this court in this
proceeding.
[*not in record*]

     FOURTH:- That decedent's father Charles Follin 
never had any other wife than Caroline Trescott 
and never had any other legitimate child
than her son Ormand is proven by
     a. Petitions of Gorham Davenport above recited.
     b. Family Tree prepared by Gorham Davenport, 
do.
     c. Affidavit of Louisa C. Burge, do.
     d. Affidavit of Lemuel A. Sanderson, do.
     e. Total absence of proof of any other marriage,
and consequently, of any other possible legitimate 
child.
     It is unnecessary for us to discuss the possibility 
of his having married any one other than
the two additional wives charged to him by the
answer.

33

     The first of these is the mythical and totally 
unbelievable person whom, in respondent's answer, 
he is alleged to have married before his 
marriage to Mrs. Trescott. Not a scintilla of
evidence is offered in support of this averment,
unless the fact that the boy Augustus Noel called
him "father" be pointed to as such evidence.
But Augusts Noel also called Mrs. Susan Danforth 
"mother." Does this prove her his mother?
If so, did Follin marry her before he married 
Mrs. Trescott? If so, were they divorced or did
Follin commit bigamy?
     If Noel's mother was not Mrs. Danforth but
somebody else, then his manner of addressing
and referring to Follin as "father" was consistent 
with his having a father who was somebody
else.
     So, eliminating Noel's assumed relationship,
as we must do if we are to avoid a reductio ad
absurdum, there is nothing left. We are not told 
the name of this dream wife; her place, or 
date of marriage, of residence nor of death.
We are shown that any person, or letter or
document or record ever mentioned such a wife;
or ever mentioned Noel in connection with the Follin-
Danforth menage in 1840.  At that time Noel
was fourteen years old.
     Such being the state of the evidence after
exhaustive combing of all possible sources of information 
by both sides, the existence of any
former marriage and the possibility of Noel's
birth therefrom are simply incredible.
     The only proof which throws any light on 
Noel's origin points irresistibly to his having 
been the son of Mrs. Danforth by her husband
Mr. Danforth.
[*Mr. Danforth not in record*]
[*deepp 26, 27*]
     The fact that he called her "mother" is no

34 

proof.  But it is as valuable as the counter-fact
that he called Follin "father." 
The fact that he named his eldest child "Danforth"
as testified by his daughter, Mrs. Wrenn
(1024), is strong presumptive evidence that that
was his family name.  Mrs. Wrenn adds that
that name was changed, after her father's death, 
to Noel.  Why? 
The fact that by his last will (p. 390) he bequeathed
"all proceeds from a journey now being
commenced by me to Bogota, N. G., all 
monies, interests or other things whatsoever to 
my dear mother Susan Follin, recommending to
her care and generosity my lawful wife Caroline"
is strong presumptive proof that he was 
the son of said mother;  while the fact that in 
said will, made in 1852 and witnessed by C. Follin, 
[* nephew?*] 
he made no mention of Charles Follin as his
father is equally strong presumption that he did
not feel similar filial love to Follin. 
The fact that respondent Carrie H. Wrenn,
daughter of said Augustus Noel, in her affidavit
(1021 & seq.) makes no averment that her said
father was the son of Charles Follin by a wife to
whom he was married prior to his marriage to
Mrs. Trescott, as alleged in the 5th paragraph
of the answer (759), is strong presumptive evidence
in disproof of the averment in the answer. 
The fact that she nowhere directly names her
father's parents is presumptive evidence that if
she named them truly, it would disprove the answer
and harm respondents' case.  It is significant
that in this affidavit in which she does not
name her father's parents she does say:  "My
mother was a daughter of Nathaniel Reeder and
Hannah Reeder."  It is also significant that she
is careful not to say directly that Susan Follin
was her grandmother.  Her language on this 


35 

subject is (1026):  "I also always knew and well
remembered said Susan Follin who I always
knew as my grandmother Follin."  Thereafter 
she refers to "grandmother Follin" in her affidavit
twenty-six times.  Only twice does she refer
to Charles Follin, and that in connection with
other people than her father.  At 1043 she says: 
"I have always heard and understood from my 
mother and all the family that my said Aunt
Miriam was the daughter of my grandmother
Follin and of my grandfather Charles Follin,
and the sister of my father Augustus Noel Follin. 
These relationships have been recognized in
my family all my life.  There was never the
least question about them."  At (1049) occurs
her only other reference to Charles Follin. She 
says:  "I have been asked about Charles Follin,
Jr., and his sister Virginia Follin.  I never
knew them, but have often heard them spoken 
of by members of my family as cousins of my
father and my said aunt who lived in Honduras
and who had been sent North to be educated 
under the care and supervision of my grandfather
Charles Follin and grandmother Susan
Follin." 
Since, as we have shown, both Charles Follin
and Susan Danforth could not have been her
grandparents unless they had been married, divorced  
and remarried, or unless Follin had
committed bigamy when he married Mrs. Trescott,
this affiant must be asked to choose between 
the two and her choice is indicated by the
figures 26 to 2. 
There is absolutely no evidence that Augustus
Noel was Charles Follin's son, or that Follin was
ever married until years after his birth.  There 
is ample circumstantial evidence to warrant the
finding that he was the son of Mrs. Susan Danford
Follin by her husband Danforth.

36 

The second wife charged to Charles Follin, in
addition to Mrs. Trescott, is Susan Danforth. 
He certainly held her out to his family and the 
world as his wife, from 1840, and he lived with her
as such until some time before his death.  It may
be that in New York, where they resided, this constituted
a common law marriage. 
Against this presumption we have the petitions
and family tree of Gorham Davenport, to whom 
he may fairly be presumed to have told the truth 
about lack of ceremonial marriage, prior to his
death in Davenport's house;  Follin's positive 
[* not in record [ *] 
statement concerning marriage to Lemuel A. Sanderson
the year before his death; and the pedigree 
testimony of Mrs. Burge and Noel Davenport. 
But, married or not, we have Follin's own evidence
that Mrs. Danforth was not the mother of 
Miriam, this decedent.  Miriam, it will be remembered,
was born in New Orleans, June 5, 1836. 
Mrs. Danforth's name was never heard in connection
with any member of the Follin family until 
after Charles Follin left New Orleans between
1838 and 1840; and, on May 28, 184-- (last figure 
of date torn from original at some time before it
was photographed) Follin wrote to Susan Danforth
a letter in which he said:  (1252)  "Mother 
and Sister fear you will Not like N. Orleans as well
as New York, about which they seem to express
some concern, tho' Sister observed, you told her
you had spent several years in Carolina & that
you said you liked the sunny south   I myself,
dearest Sue, have Not only had My own misgivings 
on this score, but have so repeatedly expressed
myself to you, however you have resolved
to try it & then you will be enabled to judge for
yourself." 
If Susan Danforth had never been in New Orleans
prior to 1840, she was not the mother of a 
child born there in 1836. 


37 

FIFTH:  That a substantial part of the estate left
by decedent consisted of property which she had
received under the will of her third husband,
Frank Leslie First, grandfather of this petitioner, 
is proven by

a. Last Will of Frank Leslie First (p. 35 & seq.). 
By this it appears that her said third husband,
grandfather of this petitioner, devised and bequeathed
to this decedent all of the property, real
and personal, of which he might die seized or possessed, 
particularly describing and including the
trade-mark or name under which he had published 
newspapers and periodicals and all his interest in
the publications established by him and known by
his name and in the property connected therewith. 
He recited that said property had been
theretofore assigned by him to one Isaac W. England, 
for benefit of his creditors; that, by agreement 
with creditors made March 20, 1879, he was 
entitled to receive back all said assigned property,
subject to the conditions of said agreement;  but
that the assignee was endeavoring to defeat the
agreement for return.  He directed that his said
wife, this decedent, take his place in said agreements
and perform the same on his part, and continue
the business of publishing the various publications, 
with power and right to dispose of same
for her own use and benefit.  He appointed decedent
his sole executrix. 

b.  Supplementary account of Isaac W. England; 
Assignee, dated May 28, 1881 (p. 141 & seq.).  By
this it is shown that the composition agreement of
March 20, 1879, referred to in Mr. Leslie's will, 
had been declared by the Court valid and binding
(575).  That the assignee had paid to creditors
the fifty-five per cent of their claims required to
release same under said agreement (574) as fol-

38 
lows: forty per cent out of the earnings of the 
publications in his control (572), which had been, 
for the 194 weeks ending May 28, 1881, $285,365.70,
or about $1,500 per week (571); and fifteen per 
cent, acting for Mrs. Frank Leslie as executrix, 
whose money, to the amount of $43,784.67, was advanced 
to him for the purpose (577-8), and that, 
after providing for all expenses, he was prepared 
to return to Mrs. Leslie, as executrix, a balance 
of $19,246.10 in case and to turn over to her the 
assigned estate with its accretions (587). 
     c. Affidavit of Louis H. Cramer (p. 204 & seq.). 
Mr. Cramer is one of the executors-respondents. 
He avers (816) that he was continuously in charge 
of the Leslie properties at Saratoga from 1870 to 
1883; that in 1883 he was employed by Mrs. Leslie, 
this decedent, as business manager of the Frank 
Leslie Publishing House in New York City until 
she sold out the publishing business in 1895; that 
from that year until her death he had full control 
of all her property and financial affairs.
     Mr. Cramer's ability to disprove the claim that 
a large part of the property constituting the 
estate of this decedent was received by her under 
the will of her said third husband, if it be not 
true, is shown. He offers no evidence on the 
subject. In the answer, which he verified, he contented 
himself with denying that the portion of 
the estate received from other sources does not 
exceed $10,000, and averred that its reasonable 
value greatly exceeded that sum; but the exact 
amount thereof he was not able to state (Ans., 
Par. 8, 762-4). 
     We submit that the above is competent and 
substantial proof of the claim that a large and 
important fraction of decedent's estate was received 
by her under the will of this petitioner's 

39
grandfather. This is sufficient proof to comply 
with the conditions of the statutes under which 
he claims and to entitle him to a trial at which 
to prove the exact amount of this fund to which 
he and his co-heirs are entitled. 
     Much emphasis is laid by respondents upon 
the injustice and inequity of the attempt of this 
"stranger" to inject himself into this proceeding 
and secure a share of this estate. But, if the 
court shall determine that petitioner and those 
similarly situated have a legal right to be cited 
upon this probate and to contest this alleged will, 
what foundation can there be for a claim by any 
one of these respondents to deny to him and 
them the moral right? His grandfather accumulated 
a large fortune and on his death left 
the whole of it to this decedent, completely dis-inheriting 
his wife and three children. Is this 
descendant of one of those children a "stranger" 
to this fortune, and is he to be scorned and reviled 
for his presumption in seeking this belated 
restoration of his inheritance? 
     If so, why? What were the circumstances 
under which the original Frank Leslie family 
was broken up and the hearth and fortune 
entered and enjoyed by this second wife? If 
the first wife or any of her children were at 
fault, the sympathies of right-thinking people 
might be expected to go out to the more worthy 
successor and those who claim under her. What 
evidence is there on this point? It is short, but 
pithy. 
     Mr. Frank Leslie married Sarah Ann Welham 
on Feb. 14, 1842, and by her had three sons (54, 
747). Twenty years later, on July 18, 1872, she 
"duly obtained a divorce from the said Frank 
Leslie in the Court of Chancery at Trenton, New 


40 

Jersey";  and on July 13, 1874, the husband
married "said Baroness de Bazus" (60, 747).
A barren record.  For enlightenment we turn
to the affidavit of Mrs. Carrie H. Wrenn who, in
1866, when she was sixteen years of age, visited,
as she informs us, her grandmother Follin at her 
home, No. 135 East 39th Street, New York City. 
(This, it will be remembered, was six years before
the first Mrs. Leslie's decree of divorce.) 
The affiant was in this house several months. 
She adds:  "The household, at the time of my
visit, consisted of my grandmother Follin, my
Aunt Miriam, her husband Ephraim George 
Squier and Mr. Frank Leslie, who boarded with
them and who later married my said aunt. 
There were no other members of the household
except the servants"  (1031). 

POINT II. 
The evidence offered by Respondents in support
of their answer proves no facts which, either 
directly or by fair and reasonable inference, contradict
the evidence presented by Appellant as
to any material allegation of his petition. 

Respondents-executors differ with this view.
They say (on p. 45 of their brief):  "The respondents
might well have relied upon the weakness 
of the appellant's proof or upon the strong 
presumption of legitimacy.  But a mere decision
it not proven would have left the outrageous
claim of the appellant as a subject for the gossip
of scandal-mongers for the years to come. 
The executors, therefore, went further, and utterly
disproved appellant's 'fanciful story.'" 
They aid us in our analysis by adding:  "The
executors have disproved appellant's claim in 


41 

three ways, any one of which would have been
sufficient, to wit:  (1)  by letters and other records,
(2)  by direct testimony of living witnesses,
and (3)  by proving wholly inconsistent surroundings
and circumstances." 
It will be convenient to review this "disproof"
under those groupings: 
(1)  Letters and other records.  These are almost
as the sands of the sea for number.  Fortunately,
our adversaries have selected from the
mass those which they think sustain their contentions
(just as, for that matter, we have done 
with our papers) and we may refer to those thus
put forward as fair specimens, at least, of the
whole.  These they have grouped as follows: 
Letters from Charles Follin to Susan Danforth
Follin. 
Letters from M. N. Follin to decedent. 
Letters from Ormond Follin to decedent. 
Letter from Gorham Davenport to decedent. 
Other letters to decedent. 
Other records. 

We will consider them in the same order: 

Letters from Charles Follin to Susan Danforth
Follin and letters from M. N. Follin,
Ormond Follin, Gorham Davenport and other
members of the Follin family to decedent. 
These papers are relied upon to establish the
same facts and may be considered together. Concerning
them counsel for the Respondents claim
that they all show "the existence of beautifully
tender and loving family ties."  This we fully
admit. 
They also claim that they show "legitimate
relationship" and contain "the clearest evidence
of the fact that Susan Danforth was the wife 





42

of Charles Follin and the decedent was their
child." This we seriously dispute.
     Charles Follin's letters to Susan Danforth
are sufficient in our judgment to establish a
common law marriage to her under the Law of
New York. There is, however, no scintilla of
proof of any ceremonial marriage; and, as we 
have pointed out, the inference is permissible, 
if not irresistible, that Follin admitted to Davenport, 
if not his or his other relatives, that such ceremony 
had never taken place; and Davenport was
evidently advised by the Alabama lawyer who
drew his petitions that because of such lack of
ceremony, Mrs. Danforth was not Follin's widow.
But this point is of no importance and we pass
it. What is of importance is the claim, not that
Follin and Mrs. Danforth were married on and 
after 1840, but that Miriam, this decedent, was 
the lawful child of their union.
  We have, under a previous Point, reviewed
the evidence, including letters in this group,
which prove such birth to have been physically
impossible, because of non-presence of the alleged
mother at its proven place and time. We have 
shown a fatal lack of letters, records or testimony 
of any sort connecting, in however remote
or inferential a manner, Susan Danforth or her
son Noel with Charles Follin, or Miriam or any
other person whose name appears in this history, 
at any time prior to 1840 - four years after
Miriam's birth. We have called attention to
the fact that the language of all these letters,
if it is to be taken literally, would establish with
equal positiveness that both Noel and Miriam 
were the children of Charles and Susan - a
postulate denied by the respondents in their
answer and conclusively disproven by the evidence 
which shows Noel to have been born be-

43

fore, and Miriam after, the Follin-Trescott marriage.
     But if these terms of relationship and endearment, 
so tenderly exchanged among the members 
of this family and its relatives and connections, 
do not prove the relationship thereby
imputed to its several members, what shall be
said of them? Must we regard them as false
and as intended to be misleading? If we do
we shall be justly chargeable with ignorance 
of the customs of respectable family life as well
as with poor judgment. They were not false
and they do not mislead.
     Do we, as will doubtless be urged against us
on this point, create, by this admission, a paradox? 
We believe not. A complete, reasonable
and sufficient explanation for all these letters is 
offered by our hypothesis set forth under point
I above, as to the origin and membership of 
this family group and the attitude thereto of
this respectable Southern gentlewoman, Charles
Follin's mother, and her equally respectable 
daughters, sons, sons-and daughters-in-law and
their relatives and connections. We there suggested 
as such hypothesis, that Miriam was, by
tacit consent, accepted as step-child of Susan;
Noel, by like consent, accepted as step-child of
Charles; and Charles and Susan, because of
their own declarations and in the absence of
any reason for doubt of their truth, accepted
as husband and wife. Is this explanation untenable? 
Not, certainly, because it is inconsistent 
with any proven fact. Not because it is 
contrary to the custom existing among respectable 
American and French-American families.
We venture to assert that every counsel in this
case and every Justice in this court has acquaintances 
who habitually refer to their step-children

44
as "my son" or "my daughter"; whose stepchildren, 
in turn refer to them as "my father" 
or "my mother." It is so usual as to be all but 
universal. Charles Follin himself followed this 
custom by addressing and referring to Mrs. 
Trescott's daughters by her first husband as 
"his daughters" (651). 
     But we have alleged that Miriam was an illegitimate 
and daughter of a slave. "Is it conceivable,"
we are asked with reference to the 
letters written by Mrs. Melanie Follin to her 
granddaughter, "that such letters could be written 
by a Southern gentlewoman to the illegitimate 
daughter of a slave? Is it conceivable that 
this fine old Southern lady would have such 
feelings toward the decedent and her mother if 
there were even a vestige of truth to the petitioners
story? These letters show not merely 
the affection and tender regard of Melanie Noel 
Follin, but also of the various other members of 
the family toward the decedent and her mother." 
     We think it is conceivable, and that without 
any reflection upon this excellent family, or 
any strain upon the credulity of intelligent 
people. 
     The question as stated involves in reality two 
questions. Is it conceivable that this family 
should use words of endearment to Charles Follin's 
illegitimate daughter, and, if yea, that they 
should do so if such daughter were offspring of 
a slave? 
     Why should they not address endearingly the 
innocent child of their blood, whose father, repenting 
his sin, had endeavored so far as possible 
to make redress by recognizing her and 
taking her to his heart and his home? Was 
such action contrary to any law of God or of 
man? Was it opposed to any precept or teaching 

45
of the Catholic Church, of which Mrs. 
Melanie Follin certainly, and the other members 
of her family presumptively, were devout members?
Was it violative of the traditions of the 
best and oldest French families, from which they 
were sprung? It might have been improbable - 
perhaps impossible - if the family had been of 
Puritan faith and practice and of New England 
ancestry. But we find no improbability - certainly 
no vestige of impossibility - under the 
conditions here shown to have existed. 
     The second question, founded on slave parentage, 
does not, we are free to acknowledge, permit 
of quite such dogmatic treatment. We 
Northerners have always been taught to believe 
that the line of social demarcation between the 
slave-holding class and the slave was broad 
as the firmament and deep as Avernus. So it 
was - but, there were some apparently contradicting 
circumstances. That forgetfulness of 
this line of separation was not uncommon among 
the sons of the master class is unhappily proven 
by the wide dissemination of mixed blood. This 
dilution, continued often enough, then produced 
as it still produces, "negroes" with blue eyes, 
flaxen hair, pink cheeks and charming personalities.
The "touch of the tar brush" as the 
euphemistic phrase went, carried its legal disability 
not infrequently after all ocular demonstration 
of its existence had faded. Tragic and 
pitiful as it is, it is none the less true that the 
term "negro slave," as applied to human chattels 
in the South, did not necessarily imply a 
being with black skin, thick lips and kinky hair. 
Those so described in law varied in complexion 
and figure all the way from the aspect of the 
aboriginal African, through shades of brown and 
yellow to skin and figure of true European type. 



46
Such, we have no reason to doubt, was the slave
mother of this decedent.
[*???? off*]     How, then, it will be asked, do we account for
the testimony offered with these moving papers,
[*x*] to show that this decedent possessed negroid features.
In answer, we are compelled to admit that
we do not believe it to be true. Many witnesses 
deny it. Photographs disprove it. A thousand 
circumstances make it incredible. We think
a serious error was committed in giving credence
to such statements and in presenting them with 
this petition. But this is not to be taken as sign
of waning in our belief, or of withdrawal of our 
serious contention, that decedent was the daughter 
of a "negro slave." We maintain unhesitatingly, 
and believe that the universal experience
of Americans proves that there is no necessary
inconsistency between our two statements.
     But we have not yet answered out adversaries'
question: Is it conceivable that Mrs.
Melanie Follin and her family would have recognized
as one of themselves, a daughter of their 
blood, who, however white her skin and delicate
her features, had this deadly taint? We now
answer: It certainly is.
     It is proven that both Gorham Davenport and 
his wife Hortense knew of Miriam's birth and
that they always addressed and treated her with 
affection. There is no proof that Mrs. Melanie
Follin knew who her mother was, but the chances
are she did. Why, knowing this, should she not
write to her as her "dear grandchild"? She was 
her son's daughter and had been recognized by
him. She had been taken into the family and 
accepted as a daughter and had been recognized by
him. She had been taken into the family and 
accepted as a daughter by the white lady in 
New York who her son represented to be his
new wife. Let us ask a counter-question: Is
it conceivable that his fine old Southern gentlewoman

47
woman or her sons or daughters knowing all of  [*"a Man ?????? to the ????? of John Ren Prescott" Petition ?????*]
these facts, should have refused to recognize this
white child of her son and their brother, when
the child had been accepted by the father and
take into his family? Is it conceivable that
they should have proclaimed to the world the
bitter truth of her parentage and by their own 
acts have brought scandal and disgrace on the 
family name?
     Other Records. These are collected (on pp.55
and 56 of Executors' brief). They are declarations
by decedent on tombstone, marriage certificate,
application for appointment of a guardian,
&c., that she was the daughter of Susan Follin.
We do not question these. She made many other
similar declarations. They are sufficient to create
a presumption of their truth, nothing more.
And we have met and disproved this presumption
by showing facts utterly inconsistent with
it. Furthermore, there is no evidence that she
did not believe every one of such declarations.
It is reasonable to suppose that both Mr. Follin
and Mrs. Danforth had every desire to bring
her up to believe her and their daughter. When
she heard some of the rumors to the contrary,
what more natural than that she should have 
passionately rejected and refused to believe 
them?
2. Direct testimony of living witnesses.
     But three are called by Respondents on this 
point (p. 57, Executors' Brief). These are Miss 
Hortense Follin; Miss Amelia M. McConkey
and Mrs. Carrie H. Wrenn.
     Miss Follin merely substantiates the evidence 
of the letters and records. Miss McConkey
heard decedent call Mrs. Susan Follin "mother."
Mrs. Wrenn's relation (or rather lack of rela-

48

tion) to the family and the contents of her 
affidavit have been elsewhere discussed at length.
2. Inconsistent surroundings and circum-
stances.
Under the head "Surrounding Circumstances,"
the brief refers (on pp. 59-60) to: Affidavits
of executors as to decedent's culture, refinement
and social standing; dispute of the Levey story
-which we repudiate; reference to an attack 
upon Mrs. Susan Follin's character, which we
regard as uncalled for, regret as in bad taste,
and gladly abandon as unproven.

[*Levey
o?a?s
Leslie*]

POINT III.

The first of the two propositions contained in
Respondents'-Executors' first point is in terms a
mere denial of Point I in our principal brief, but,
in their argument, they rely upon the alleged rule
that the opinion of the Court below may not be
considered in determining the ground upon which
his decision rested. The authorities cited to substantiate
this view do not support it.

They say, in concluding and summarizing
this view: 'the opinion of the learned Surrogate
is (as are all his deliverances) its own justification
and its own best argument. * * * It 
is submitted * * * as a complete brief on
the branch of the law which he holds forceful
and sufficient to entitle the respondents to a
dismissal of the appellant's application below."
As Appellant, in Point I of his main brief, has
fully discussed this opinion, on which the Respondents-Executors
so implicitly rely, he will
reply but briefly to this counter-argument.
In spite of our adversaries' absolute reliance

49

on the Surrogate's opinion, they deny Appellant
the right to look to it to interpret the formal
decision later signed by the Surrogate; and after
cursorily dismissing the cases cited by Appellant
in support of his contention that the opinion
may be so examined, they advance two decisions
to show the contrary.
The first is Morehouse v. Brooklyn Heights
R. R. CO., 185 N. Y., 530. This might be pertinent
if this appeal were before the Court of
Appeals; but it is not a precedent in the Appellate
Division. The first case cited by appellant
(Bogart v. Allen, 54 A. D. 500, 1st Dept.)
explains why, at p. 504. There it is shown that
the contention that, in the Appellate Division,
a trial judge's "opinion cannot be referred to
to ascertain the grounds or reasons for his
disposition of the case" applies to the Court
of Appeals but not this court. "That such use
cannot be made of an opinion of a lower court
in the Court of Appeals has been very frequently
stated by that tribunal, but in this court  a
contrary rule prevails."
The second and last case cited by Respondent-Executors
on this point (Dann v. Palmer,
151 A. D. 151, 4th Dept.) was one in which
there was "a statement at the close of the opinion,
stating that findings may be submitted"
(p. 153, prevailing opinion), and in which "the
opinion shows that the judge had considered
the questions of fact as well as of law, and had
reached a conclusion thereon" (same page). The
only question before the Appellate Division was
whether or not requests to find were submitted
soon enough after the opinion was rendered.
The prevailing opinion in the Appellate Division 
held not; the dissenting opinion held otherwise,
and the Court of Appeals adopted the latter
view.

50 

The distinction between the Dann and Leslie
cases is obvious.  In the former, the opinion
itself stated that "findings may be submitted"
and showed "that the judge had considered 
the questions of fact as well as of law, and had
reached a conclusion thereon."  In the case at
bar the Surrogate explicitly concluded his opinion
by stating:  "But for the other reasons 
already stated"  (i. e. because the statute under
which appellant claimed was against natural 
right, etc., and not for the reason that "on the
paper submitted to me the contention of Mr. 
Leslie's heirs at law in respect of Mrs. Leslie's
status is entirely disproved")  "the application
of Mr. Leslie's heirs at law must be dismissed. 
Settle order" (not decree) "accordingly." 
It being manifest from the very opinion of the
trial court in the Dann case, that he had passed
upon the facts, it was held that he not only
might be must make findings under the Code
section then under construction, and that such
findings might be in such form as he saw fit. 
The continuous references in the Dann opinion
to the trial court's opinion show the  necessity
of the rule of this Court that the trial court's
opinion may be consulted.  Respondent's contention,
in a nutshell, is that the trial court, having
stated in his opinion that he had decided 
solely on the law, and having then signed a
formal decision, order or decree stating that the
case was dismissed on the merits, Appellant has
thereby been accorded a hearing according to due
process of law and is estopped from complaining.
The statement is its own refutation.  Under such 
a doctrine any court of first instance might expressly
and in so many words refrain from deciding
the merits of a controversy before it and,
by subsequently signing a paper which says that 


51 

he has decided "on the merits," throw the litigant
out of court. 
Aside from any other reason, however, section
2763 of the Code of Civil Procedure provides 
that "upon an appeal from a determination
of the Surrogate, made upon an application
pursuant to sub-division six of section 2490"
(the section under which this application was
made) "the appellate court has the same power 
as the Surrogate, and his determination must be 
reviewed as if an original application were made 
to that court  *  *  *."  Under this section (part
of which only is quoted) appellant relies on this
Court to give him a hearing, if any of the evidence
presented by him to this court makes out
his prima facie case. 

POINT IV. 
The testimony offered by relatives by blood or
affinity of Charles Follin as to declarations made
to such witnesses by Charles Follin or members 
of his family concerning the birth and parentage
of Miriam, his illegitimate daughter, are competent. 

The contention of the Respondents is that a
father is not of the family of his child born out
of wedlock, and that neither the father nor members 
of the father's family can testify concerning
the child's birth and parentage.  Applied to this
case, the claim is that Charles Follin is not of 
the family of his admitted (but alleged illegitimate) 
daughter Miriam, and that neither his
declarations nor those of persons related to him 
by blood or marriage are admissible to prove
Miriam's pedigree.  By this contention Respond- 



52
ents will most conveniently exclude any testimony 
whatsoever as to the pedigree of the decedent, 
as it is admitted that neither her mother 
nor any relative on the mother's side is living. 
     This claim must admittedly stand or fall, as 
the case cited as its authority, Aaholm v. People, 
211 N. Y., 406, supports or does not support it. 
     The Appellant might legitimately inquire into 
the consistency of the Respondent's insistence 
that the declarations of Charles Follin and members 
of his family are inadmissible, when followed 
by Respondents' introduction in evidence 
of like declarations. But Appellant realizes that 
this question of evidence is fundamental and 
must be answered at some period in this litigation; 
and he is desirous that it be determined as 
early as possible. He, therefore, discusses and 
answers it now. In approaching this point, Appellant 
will show: First, that the Aaholm case 
does not support Respondents' claim that a 
father and his relatives cannot testify to the 
pedigree of the former's illegitimate child; and, 
second, that the law admits such testimony
     The pertinent facts in the Aaholm case were: 
     Sergeant John Kenneally married Mary Finn 
and by her had a son William Kenneally. One 
John Kenneally had as mother Margaret Kearns 
Hardiman. The questions were: Had Sergeant 
John married Margaret Kearns Hardiman; and 
was John Kenneally the issue of such marriage? 
The only evidence that John Kenneally was the 
lawful son of Sergeant John and Margaret 
Kearns Hardiman consists of declarations by 
her and members of her family that she had 
married Sergeant John and had by him John 
Kenneally as a son. These declarations the 
Court of Appeals excluded. Therefore, respondents 
say, the declarations of Charles Follin and 

53 
members of his family that Miriam was his 
natural daughter must be excluded! Respondents, 
with great naiveté, pay no attention to the 
sole ground on which these declarations were 
barred, which was that proof of relationship of 
declarant to the family in question must be given, 
aliunde, before evidence of such declarations may 
be offered to prove pedigree. No such question 
has arisen in the case at bar. 
     In the Aaholm case the Court said: "The admissibility 
of such" (pedigree) "declarations 
is subject to three conditions: 1. The declarant 
must be deceased. 2. They much have been made 
ante litem motam, i. e. at the time when there 
was no motive to distort the truth. 3. The 
declarant must be related either by blood or 
affinity to the family concerning which he 
speaks." It is not contended that the testimony 
offered in the Aaholm case or by Appellant in 
this case violates either of the first two of these 
conditions, but only the third (save in the case 
of Gorham Davenport, whose testimony is said 
to violate the second condition and is elsewhere 
discussed in this brief). Note, the, why the 
declarations of Margaret Kearns Hardiman were 
objected to and excluded in the Aaholm case (p. 
413): 
     "The declarations which we are considering 
concededly conform to the first two of 
these conditions. The question here is 
whether they come within the third. The 
learned counsel for the respondent contends 
* * * that the declarations of * * * 
Margaret Kearns Hardiman, as to her marriage 
to Sergeant John Kenneally, are not 
alone sufficient to bring them within that part 
of the rule requiring the declarations to be 

54 

made by a member of the family concerning
which they are advanced.  More concretely
stated, the decision is that such declarations
are not competent, unless there is some proof 
dehors the declarations themselves, that the 
declarant was related to the family which the 
declarations are intended to affect.  Counsel
for the appellant insists, on the other hand,
that these declarations, if taken as true, are
shown to have been made by a member of the
family of Sergeant John; and the contention
in this regard seems to be that the declarations
themselves supply the necessary corroborative 
testimony.  *  *  *  (p. 409).  The 
ground on which these declarations were held
to be incompetent is that there was no evidence, 
except these declarations, to prove the
declarant's relationship to the testator's family. 
This presents the important question on
this appeal.  *  *  *  (p. 417.)  When a declarant
who claims relationship by consanguinity
has been shown to be a member of one
branch of a family, it is of course not necessary
to prove him also related to the other
branch in order to make his declarations competent; 
but until there is some independent
evidence connecting his family with the other 
family, the case is not brought within the 
qualification of the rule which is supported by
the great weight of authority.  Much more is
this qualification to be observed in cases of
asserted relationship by affinity, as in the case 
of the declarant upon whom the petitioner relies 
to prove his consanguinity to the testator. 
Proof of the marriage of the petitioner's
mother to Sergeant John Kenneally is essential
to establish the petitioner's relationship
to the testator.  There is no such proof in the 


55 

case at bar, unless we accept the mother's
unsupported declarations as evidence of the 
asserted relationship, and this we regard as
inadmissible."  (Italics ours.) 

It is clear that what the Aaholm opinion condemned
was the practice of allowing a would-be 
witness to swear himself into a family by his own 
unsupported oath, and then claim that as a member 
of the family his testimony was admissible as
to the family's pedigree.  There is no question in
the case at bar that Charles Follin was the father
of the decedent; it is admitted--proclaimed by all. 
Certainly Charles Follin, declarant, is, in the
words of the third condition of the Aaholm case, 
"related  *  *  *  by blood  *  *  *  to the family" 
(of the decedent) "concerning which he speaks"' 
and his relatives, the other declarants, are likewise
related--either by blood or marriage. 
A careful reading of the opinions relied upon
and followed by the Court of Appeals in the
Aaholm case, shows that they do not support Respondents'
contention.  These are two opinions
of the United States Supreme Court--Blackburn 
v. Crawfords (3 Wall. 175, 187), and Fulkerson v. 
Holmes (117 U. S. 389).  They support the only
point decided in the Aaholm case, viz, that a 
witness cannot make himself one of a family by
his own unsupported oath; but the Blackburn case 
clearly establishes the fallacy of Respondents' interpretation
of the Aaholm case, because in the
Blackburn case, beside the point referred to, there
arose the identical question raised in the case at
bar, which was answered in this Appellant's favor.
This case expressly admits the testimony of a
father as to the illegitimacy of his putative child. 
The issue in this Blackburn case was of title.
In the words of Mrs. Justice Swayne (p. 191):

56

"The defendants in error brought an
action of ejectment, to recover the premises
in controversy. They claimed title as the
children of Thomas B. Crawford and the
heirs at law of his brother, David Crawford,
from whom the estate descended. The
plaintiff in error denied that legitimacy, and
alleged that their father and mother, Elizabeth
Taylor, were not married."

It was proven aliunde that one Sarah Evans
was sister to Elizabeth Taylor and that she
had been dead several years. Then a stranger's
testimony was offered to the effect that he had
heard Sarah Evans say that Thomas B. Crawford
and Elizabeth Taylor were married. Furthermore
(we quote from the opinion, p. 193):

"The plaintiff in error gave in evidence
the will of Thomas B. Crawford * * *.
It spoke of the defendants in error as his
natural children by Elizabeth Taylor, and
provided for them accordingly. * * * 
The plaintiff in error then offered to prove
by the attorney what was said by the testator 
in their interviews preceding the preparation
of the will, and in that connection,
concerning the illegitimacy of the children
and his relation to their mother. The Court
excluded the evidence." 

[apparently wrong]

We see, then, that two classes of evidence
were submitted in this case: A statement by a
stranger that he had heard a sister of the alleged
mother say that the mother had married
the father; and a statement by the father that
his children were not legitimate. The Court admitted
the testimony of the putative father, but 

[x [?] correctly
[?]]


57

excluded that of the alleged mother's sister, saying
of this latter:

"It is well settled, that before the declarations
can be admitted, the relationship of
the declarant to the family must be established
by other testimony. 1 Tayl. Ev., sec.
576. Here the question related to the family
of David Crawford. The defendants in error
claimed to belong to the family, and
to be his nephews and nieces. To prove
this relationship, it was competent for them
to give in evidence the declarations of any 
deceased member of that family. But the
declarations of a person belonging to another
family—such person claiming to be 
connected with that family only by the intermarriage
of a member of each family—
rests upon a different principle. A declaration
from such a source of the marriage
which constitutes the affinity of the declarant,
is not such evidence aliunde as the 
law requires." 

What more convincing proof of the scope of
the opinion in the Aaholm case could there be
than its reliance upon a decision which so
clearly holds that the testimony of a father
is admissible to prove the illegitimacy of his
putative child; while also holding, in clear
contradistinction, that the alleged mother cannot
be made a member of the family of the
putative child and its father by the unsupported
testimony of herself or her family?

The similarly equal and identical scope of
the decisions in the Fulkerson and Aaholm 
cases has been recognized by the Respondents-Executors,
who phrase it thus (p. 25): "that,
in a controversy to determine those entitled to 


58 

share in the estate of a decedent, evidence as
to statements made by other deceased persons
as to the pedigree of the person whose estate 
is in controversy, is incompetent, unless by some
outside evidence the declarants have been shown 
to have been related de jure to such deceased 
person."  Respondents-Executors then quote 
from the opinion in the Fulkerson case as reproduced
in the Aaholm opinion, inadvertently,
however, making the words of the United States 
Supreme Court to read as if they were those 
of the Court of Appeals, thus demonstrating
the identity in counsels' minds of the holdings 
in the two cases. 
It hardly seems necessary to point out that 
in the case at bar the testimony of Appellant's
witnesses as to decedent's pedigree is not subject
to the objection that the only proof that
each is a member of the Follin family is his or 
her unsupported oath.  That Gorham Davenport
(who made the petitions as executor of 
Melanie N. Follin's estate and administrator
of Charles Follin's estate and prepared the
family tree) was the husband of Hortense Follin, 
sister to decedent's father, is admitted. 
That Lemuel Sanderson is a nephew of decedent's
father is proven by Noel Davenport's affidavit
and by the family tree.  That Noel Davenport
is a nephew of decedent's father is proven 
by Melanie N. Follin's will (466), by Lemuel
Sanderson's affidavit and by the family tree. 
That Louisa C. Burge is Charles Follin's step-granddaughter 
is proven by Legare's affidavit
(675). 
Having now demonstrated not only that the
Aaholm decision does not pretend to discuss the
question of the admissibility of a putative
father's declarations as to the legitimacy of his 


59 

child, but that the Supreme Court of the United 
States (in the opinion on which the Court of
Appeals rested in the Aaholm case) had held 
such testimony competent, it now remains for
the Appellant to review before this Court the
overwhelming authorities in support of the admissibility
of those declarations.  (These decisions 
also hold that the testimony of others 
than the father or his relatives are competent; 
but Appellant takes it that Respondents' serious
contention is that declarations by the father and
his relatives are the ones to be barred.) 
The following discussion is carried on under
four headings:  (A)  The New York decisions 
(chronologically.)  (B)  The decisions in other 
States and in England holding such testimony
admissible;  (C)  The decisions contra;  and (D) 
The Test-writers. 

A.  The New York Decisions. 
In New York, the general rule permitting the
declarations of deceased members of a person's
family to be admitted as evidence to prove such
person's pedigree has been consistently followed. 
In 1811, in Jackson v. Cooley, 8 Johns. Rep. 
128, it was said (p. 130-1): 
"Mr. L. further stated, that his information
(as to J. W. being heir of W. W.) 'was 
derived from the several powers of attorney
he received and correspondence with the 
parties, and conversations with G. B., S. C., 
and other acquaintances of the families of
W.'  (and one Y.).  '*  *  *  This testimony
was sufficient, prima facie, to be submitted
to the jury.  *  *  *  The declarations
of persons, who from their situation 



60 

were likely to know, are competent evidence. 
*  *  *  The declarations of the members 
of a family, and of others living in habits 
of intimacy with them, are said, by Lord
Kenyon, to be received as evidence of pedigree.' " 

In 1858, the Court of Appeals in Clark v. 
Owens, 18 N. Y. 434, said, per Selden, J. (p. 
442):--
"It is well settled that upon all questions
relating to births, marriages and deaths, in
the absence of higher evidence, resort may
be had to what is commonly said and understood
to be true among the immediate relatives
and family connections of the party to
whom the inquiry relates." 

Again in 1891, the Court of Appeals, in Eisenlord
v. Clum, 126 N. Y., 552 said, per Peckham, 
J. (p. 563): 
"In cases of pedigree hearsay evidence
of declarations of persons who from their
situation were likely to know, is admissible
when the person making the declaration is
dead.  (Jackson v. Cooley, 8 Johns., 128.)" 

The rule laid down by the Court of Appeals in
the Eisenlord case has been applied by this Court
to a case in which illegitimacy was an issue, in 
Matter of Seabury, 1 App. Div., 231 (1896).
Here Mr. Justice Willard Bartlett said (p. 233): 
"The evidence offered by the appellants to
establish the alleged illegitimacy of the 
mother of the respondents Smith consisted
of testimony as to declarations in respect to
the birth and parentage of Harriet Smith, 


61 

made by persons now deceased.  This proof
was received under the rule which makes 
such declarations admissible in regard to
matters of pedigree, where they emanate
from deceased persons connected by blood 
or marriage with the family of the person 
whose pedigree is under investigation. (1. 
Whart. on Ev., Sec. 208; Eisenlord v. Claum, 
126 N. Y., 552, 565.)" 

In 1901, in Washington v. Bank for Savings,
65 A. D., 38, Mr. Justice McLaughlin, for the
said court, said (p. 342): 

"It has never been questioned in this
State, so far as we are aware, since the decision
of Jackson v. Cooley (8 Johns., 128),
but that in case of pedigree, hearsay evidence, 
declarations of persons who from
their situation were likely to know, is admissible
when the person making the declaration
is dead.  (Eisenlord v. Clum, supra.)" 

Other decisions to the like effect are: 
1901.  Young v. Shulenberg, 165 N. Y., 
385.
1906.  Layton v. Kraft, 111 A. D., 842.
1907.  Matter of Fail, 56 Misc., 216. 

B.  Decisions in England and other states than 
New York holding such testimony admissible. 

The two important English decisions are: 
Goodright v. Moss, 1 Cowp., 591 (1777), and
Murray v. Milner, L. R., 12 Ch. Div. 845, approving
and following, in 1875, the Goodright decision. 
the statement of the earlier case says in
part: 

"And the only question in the cause was,
whether the lessor of the plaintiff was the

62 

legitimate son of Francis and Mary Stevens; 
or was born of Mary before their marriage 
*  *  *.  They first offered witnesses
to general declarations by the father and
mother that Samuel the lessor of the plaintiff
was born before marriage."  Lord Mansfield
rendered the opinion, which was concurred
in by Aston and Willes, JJ., and 
said in part: 
"Two questions have been made.  1st, 
Whether the father and mother could have 
been examined, if alive.  2dly, If they could,
whether their declarations, though ever so
solemn, can be admitted as evidence after 
their death.  *  *  *  As to the first question,
I should as soon have expected to hear it
disputed, whether the attesting witnesses
to a bond could be admitted to prove the
bond.  I have known it done over and over 
again.  And it is much too clear to admit
of a doubt  *  *  *  The next question is,
whether the declarations of the father and
mother in their life-time, can be admitted in
evidence after their death.  *  *  *  An entry
in a father's family Bible, an inscription on
a tombstone, a pedigree hung up in the
family mansion (as the Duke of Buckingham's
was), are all good evidence.  So the
declarations of parents in their lifetime 
*  *  *." 

The statement of the later case of Murray v. 
Milner shows that: 

"The main question was whether the father
and mother of the claimant (to be next of kin
to the decedent) had ever been married. 
*  *  *  The father, by his will,  *  *  *  bequeathed
an annuity  *  *  *  to the claimant 


63 

by the description of 'my son or reputed son
commonly called or known by the name of
John Murray.' " 

Fry, J., writing for the Court, said (p. 849): 

"It has been argued that the will is not
capable of being looked at as a declaration by
the deceased father of the claimant, because 
it is said you must either admit the marriage 
before you can show that there is any relationship
between the declarant and the claimant,
or you must deny the existence of the
relationship, and then it would be the declaration
of a mere stranger.  In my judgment,
that argument cannot prevail.  It would lead 
to great difficulty.  As long ago as Goodright
v. Moss, decided by Lord Mansfield in 1777, 
it was determined that general declarations
are good evidence after the death of a parent
to prove that a child was born before marriage." 

In other states of this country the decisions are
all but unanimous in holding that testimony of
declarations by a father and his relatives as to his
child's illegitimacy is admissible. 
In Barnum v. Barnum, 42 Md. 251 (1875), Alvey,
J., delivering the opinion of the Court, said (p. 
304): 

"Dr. Richard Barnum himself, over and
over again, both in Arkansas and in Maryland, 
to strangers and to members of his own
family, declared that the boy John was illegitimate,
and that he had never been married 
to the mother, Caroline Butler.  These declarations
are not only competent evidence 
(Stevens v. Moss, Cowp. 591;  Hargrave v. 



64 

Hargrave, 2 C. & K., 701; Crawford v. Blackburn,
17 Md. 149), but they proceeded from a 
source certainly well informed upon the subject, 
and, in the absence of all apparent motive
to falsify the truth, they must be accepted 
as reliable." 

Other decisions to the like effect are as follows: 
Haddock v. V. & M. R. R., 3 Allen (Mass.) 
298 (1862). 
Champion v. McCarthy, 81 N. E. 808
(Ill.) 1907. 
Jackson v. Jackson, 80 Md. 176 (1894). 
Niles v. Sprague, 13 Ia. 198 (1862). 
Watson v. Richardson, 80 N. W. 407 Ia.
(1899). 
Alston v. Alston, 86 N. W. 55 (Ia.
1901). 
State v. McDonald, 104 Pac. 966 (Oregon,
1909). 
In re heaton's Est., 67 Pac. 21 and 73 
Pac. 186 (Cal., 1902). 
Smith v. Smith, 123 N. W. 146 (1909). 

C.  Decisions Contra. 
These are few and were decided upon the supposed 
authority of Crispin v. Doglioni, 3 Swabey
& Tristram's Reports, 44, decided in 1863.  We 
quote that opinion in full.  It cites no authorities.
It is contrary to the long established principle of
Goodright v. Moss, supra, and it was overruled a
few years later in Murray v. Milner, supra.  In
the Crispin case, plaintiff alleged he was the natural
son of a foreigner and entitled by the foreign
law of his domicile to succeed to his father's property. 
Evidence of a brother of the deceased as
to his relationship to plaintiff was tendered.  Sir
C. Creswell said (p. 46): 


65 

"As the question is to be decided on principle, 
I think the evidence is inadmissible. 
The admissibility of hearsay evidence is
exceptional, and ought not to be carried
further than the decisions in the books, for
it is a departure from the first rule of evidence. 
I can well understand that where a 
matter is likely to be discussed and well
known in a family, a member of the family
may be allowed to give evidence of it;  but
in this case the plaintiff, according to his 
own account, is filius nullius by our law. 
The question is, whether a declaration of
one brother may be admitted as to another 
brother having had intercourse with a 
woman, and having had a child by her;  I
think it ought to be excluded." 

So far as we have been able to learn, this case 
has never been followed nor cited with approval
in England.  Its supposed authority was, however, 
relied on for the decisions in this country 
in Northrop v. Hale, 76 Me. 306 (1884), and
Flora v. Anderson, 75 Fed. 217.  Its doctrine
has been repudiated in all the cases cited under
sub-division B above and has been discussed 
and criticized in the following case and by the 
text writers:  In Champion v. McCarthy, 81 N. 
E. 808 (1907), the Supreme Court of Illinois
spoke as follows: 

"It is not denied that hearsay evidence,
such as declarations of deceased parents
and members of the family, may be proven
to establish pedigree;  but it is contended 
that the rule permitting such proof is limited 
to cases of legitimate relationship, and
cannot be heard to establish illegitimacy. 
While this position is apparently sustained 



66 

in Flora v. Anderson (C. C.), 75 Fed. 217 
*  *  *  that case is not in harmony with
the great weight of authority, as well as 
the better reason.  That case followed the
English case of Crispin v. Doglioni, 3 Swab. 
& . . . . . . . . .44, which appears to have been 
based upon the common law rule that an illegitimate
is filius nullius.  This common 
law rule has been abrogated in this and 
other states by statute  *  *  *; and when
such statutes have been enacted, Crispin v. 
Doglioni cannot be regarded as authority
to be followed.  *  *  *  The rule that 
declarations of the supposed parent and
deceased members of his or her family may
be proven to establish the parentage, where
the relationship is illegitimate, is supported
in Cranford v. Blackburn, 17 Md. 49; Blackburn
v. Cranford, 3 Wall (U. S.) 175, 18 
L. Ed. 186;  Watson v. Richardson, 110 Ia. 
678, 80 N. W. 407;  and Alston v. Alston,
114 Ia. 29 (86 N. W. 55).  In all these cases
it is held that the declarations of the putative
father may be proven." 

D.  The Text-Writers. 
The test-writers on the law of Evidence unanimously
support the cases cited in headings "A" 
and "B" above, which hold the parent's declarations
competent to prove a child's illegitimacy
and with equal unanimity condemn the Crispin
decision and those following it. 
In Wigmore on Evidence (Sec. 1492), it is
said: 

"It has been ruled in England that where
the relationship claimed and to be testified
to is that of an illegitimate child, the father's 


67 

relations are not qualified declarants, because
(apparently) the claimant is legally
not of the declarant's family (citing the
Crispin case).  But this seems a mere juggling
with legal rules.  The question is,
Was the declarant in such a position as to
be likely to know something of this alleged
fact of family history:  Whether the illegitimate 
child is or is not a lawful heir
according to the rules of the substantive
law about succession, is quite beside the
point in determining the evidential question
of the declarant's probable information.  The
principle of the ruling has been disapproved 
in England,"  (citing Murray v. Miler,
supra.) "and ought not to be followed in
this country.  It seems never to have been 
doubted that the declarations of the parents
themselves or the reputation in the household
where the child lived, as to a child's 
legitimacy or illegitimacy, are receivable; 
although it is obvious that upon the false
theory of Crispin v. Doglioni, the father's
declarations of illegitimacy would be inadmissible. 
There is a danger of being too
nice in the logical application of the substantive
law of relationship, to the present
testimonial rule, which rests rather upon 
the moral probabilities of trustworthiness
in the declarant." 

In Chamberlayne on Evidence (Sec. 2911), it
is said: 

"The * * * query whether the relationship 
of the declarant to the person concerning
whom a pedigree fact is sought to be 
established must be legitimate has proved

68 

troublesome to the courts.  Under the common
law, which regards an illegitimate child
as the child of nobody, belonging to no
family, who comes into courts with such a 
brand upon him and seeks to establish the
unlawful relation as the basis to a claim to
an inheritance, cannot introduce evidence of
declarations of members of the family to
which he proposed to show his de facto relation. 
It will be observed that this forms an
exception to the general rule, which has
often been questioned, that in order to prove 
relationship between A. & B., the declarations
of a deceased person, shown to be related
to either, may be introduced in evidence. 
However, where a statute has modified 
the rigors of the common law in regard 
to illegitimates, giving to them, under certain
conditions, the rights of legitimates, to
a greater of less extent, the rule is to the
contrary.  A situation which is often confused
with these just mentioned arises where
a relationship is acknowledged as a matter 
of fact, and its lawfulness only is disputed.
In such a case, it is beyond question proper
to receive evidence of declarations of members 
of the family tending to show the nature
of the relationship, whether legitimate 
or illegitimate.  For example, where a plaintiff
claimed as a legitimate son of a deceased, 
the will of the deceased, containing 
declarations tending to show illegitimacy,
was properly admitted in evidence." 

See also, to the same effect: 
Chamberlayne on Evidence, Secs. 2932,
2916, 2915, 2955. 


69 

Jones on "Evidence," Sec. 312. 
Elliott on Evidence, Vol. 1, SEc. 376. 
Cyc., "Bastards," p. 630. 

POINT V. 
Nowhere in Respondents' briefs is found an attempt
to sustain by argument the correctness of
the rule of statutory interpretation adopted by
the Surrogate in his opinion and made, as we
have shown in our principal brief, the foundation
for his denial of Appellant's application.  It appears, 
therefore, proper to assume that Respondents
rely solely upon their argument that 
the Surrogate's determination was made upon the
facts. 

POINT VI. 
The question which is seriously raised as to
the legitimacy of this decedent has been held
by this Court in a case involving a similar question
to be of sufficient importance to require trial 
in this Court by reference of such issue. 

In re Pfarr's Est., 113 St. Rep., 639 (1903,
App. Div., 2nd Dept.) was an appeal from a decree
revoking letters on the ground that the administrator
was illegitimate.  Jenks, J., said (p. 
640): 

"I am certain that the issue was capable
of more thorough presentation upon both
sides.  If the issue involved a mere matter 
of dollars and cents, I should hesitate before
making the recommendation which follows, 



70 
for it is not for this court to direct rehearings 
merely because further evidence might 
have been adduced, but to dispose of the question 
upon the record presented by the counsel, 
on whom alone rests the responsibility 
of presentation. But section 2536" (now 
Sec. 2673) "of the Code of Civil Procedure
is plain authority that we may act otherwise; 
and in a case of this character, where it is 
evident that further and important testimony 
may be adduced by either side, and 
records may be brought to court to resolve 
questions still in doubt, I think that justice 
will be best promoted by ordering a reference 
pursuant to said section of the Code. 
Ordered, that a reference by made of the issues 
of the legitimacy of the administrator," 
etc. (Italics ours.) 

71
POINT VII. 
     Respondents' briefs and this reply thereto make 
clear, we respectfully submit, that because of his 
failure correctly to determine and weight the evidence 
submitted to him, as well as because of 
error in legal principles applied, the Surrogate 
has failed to administer substantial justice to 
either party to this proceeding. Respondents 
unite in expression of a desire that the charges 
concerning decedent's legitimacy be definitely 
and permanently disposed of. This, it is apparent, 
can be done only by findings made after a 
trial of the facts, at which witnesses may be cross-examined 
and all letters, documents and other information 
in the possession of executors or other 
respondents - not merely those believed by them 
to be helpful to their contention - may be brought 
to light. 
      First the above reasons, as well as for those presented 
in our principal brief, Appellant now asks 
for such trial. 
Respectfully submitted, 
FRANK H. TWYEFFORT, 
Attorney for Appellant.
JOHN N. BLAIR, 
Of Counsel. 

#4
17

Supreme Court,

APPELLATE DIVISION-FIRST DEPARTMENT.
IN THE MATTER OF THE ESTATE
OF
FRANK LESLIE, also known as Mrs. 
Frank Leslie, also known as the 
Baroness de Bazus,
Deceased.

APPELLANT'S BRIEF.
Statement.
This is an appeal from a determination of 
the Surrogate's Court of New York County, denying 
a motion to re-open the proceeding in which 
the alleged will of Mrs. Frank Leslie was admitted
to probate, and to obtain the issuance of 
a citation in such proceeding to appellant as one 
of the heirs at law and next of kin of the decedent. 
In the moving papers it was alleged, and is not 
disputed, that decedent left no descendants, 
mother, or relatives on the part of her mother; 
that apart, at least, of the property, both real 
and personal, left by her upon her death had been 
received by her under the will of her deceased 
husband, Mr. Frank Leslie (whose name she subsequently 
took); and that this appellant is one 
of the heirs and next of kin of said Mr. Frank 
Leslie. It was alleged and disputed that decedent 
was born out of wedlock. This was the only issue 
of fact raised by the motion.

2

     Appellant relied upon the provisions of subdivision 
16 of Section 98 and Section 91 of the 
Decedent Estate Law, which declare that when a
widow dies, owning property left her by her husband 
but leaving no blood kins or heirs, then her
deceased husband's kin and heirs shall be deemed
to be her kin and heirs.

     The alleged will had been probated on consent
of certain persons alleged in the petition, upon
information and belief, to be heirs at law and
next of kin of the decedent, among whom this appellant 
was not named. By reason of the fact 
that a petition (among other papers) was annexed 
to appellant's above mentioned notice of motion
to re-open, the learned Surrogate held that this
was not a motion in the probate proceeding but
a distinct proceeding instituted by petition: and
therefore, in March, 1916, entered a decree ordering 
both that appellant's motion be denied and 
his petition dismissed. IN the same month this 
appeal was taken.

POINT I.

     The Court below denied Appellant's Application 
upon the law, not upon the facts.

     The decision, it is true, recites (fol. 1832) "that
the aforesaid petition of Arthur Leslie should be
dismissed and his aforesaid motion denied, in all 
respects, on the merits, both on the law and on 
the facts." But the opinion indisputably shows
that the merits of the only issue of fact raised
by the motion, namely, decedent's legitimacy or
illegitimacy, were not judicially passed upon; and
that the court made its determination upon the
sole and, if correct, sufficient ground that subdivision 

3

16 of Section 98 and the whole of Section 
91 of Decedent Estate Law, under which alone 
this appellant could claim a right to intervene in
the proceeding, are void if taken to mean what 
they say.

     It is well settled that the purpose of the rule
requiring the opinion of the lower court to be
printed in the book on appeal to the Appellate Division 
is to enable the Appellate Court to ascertain 
the grounds or reasons for the lower court's
disposition of the case, and to review the decision
accordingly.

Bryant v. Allen, 54 App. Div., 500, 504
(1900), 1st Dept.
Fox v. Metropolitan Street R. Co., 93
App. Div., 229, 231 (1904), 1st Dept.
Rathbone v. Ayer, 121 App. Div., 355,
362 (1907); rev'd on another point, 196
N. Y., 503.
Tenoza v. Golliek, 80 App. Div., 638
(1903).

The carefully expounded opinion of Mr. Surrogate
Fowler leaves no room for doubt as to the
grounds of his decision.  He has stated them unequivocally.

In the introduction he says:
"The application depends wholly on a recent 
statute of this State, to which I shall
hereafter refer (fol. 1878). * * * I regret
that this is one of the cases where I must
resort to arguments and sources of law not
depended on by the counsel in the cause, because
my conscience imperatively prompts me
to find elsewhere than in their briefs and arguments
the reasons of my judgment (fol.
1880).  * * *  The promovents now here
seeking relief depend solely on the recent

4

statute of this State, to which I have before
referred. * * * They must stand or fall
by the act I am about to specify * * * (fol. 
1886)."

After an extended discussion of the statute
above mentioned, and an expression of opinion
that it is contrary to natural right, he says (fol.
1905):

"I therefore hold that the heirs of Mr.
Frank Leslie are strangers to this probate
proceeding and that they have no right or
title which justifies their present application
in this court." 

And finally, after a brief adimadversion concerning
the suggestion that one of decedent's
parents was of servile status, but without any
consideration of or finding concerning the one all
important issue of her birth in or out of wedlock,
he concludes with this ruling (fol. 1917):

"But for the other reasons already stated
the application of Mr. Leslie's heirs at law
must be dismissed." 

Interpreting the formal decision in the light
of the carefully considered opinion of the Surrogate,
as the authorities demand be done, it is clear
that the learned Court below felt himself powerless
to pass on the merits of the claim of one 
whose only title to be heard was based upon a 
statute which he adjudged to be inoperative. 


5

POINT II.

The decision of the Surrogate that Section 91
(and necessarily also sub-division 16 of Section
98) of the decedent estate law are void, because
contrary to "natural right," and unenforceable
in his court, was erroneous; and the order or decree
entered in accordance therewith should be
reversed.

The law of this State says that on a petition
for probate of a will which "relates to both real
and personal property, the husband or wife, if
any, and all the heirs, and all the next of kin of
the testator" must be cited (Code of Civil Procedure,
Section 2610). This section is found in
Chapter 18 of the Code of Civil Procedure.

Section 91 of Decedent Estate Law, discussed 
by the learned Surrogate in his opinion, reads as
follows:

"When the inheritance shall have come to
the intestate from a deceased husband or
wife, as the case may be, and there be no person
entitled to inherit under any of the preceding
sections, then such real property of
such intestate shall descend to the heirs of
such deceased husband or wife, as the case
may be, and the person entitled, under the
provisions of this section, to inherit such real
property, shall be deemed to be the heirs of
such intestate."

In approaching the question, "What does this
statute mean?" the Surrogate remarks that "It
does not purport to be an amendment to our ancient
statute of distributions making a new class
of kindred known to the law as 'next of kin.'"
In making this observation, he appears to have
overlooked the other section of the statute relied 

6

upon by appellant which not only purports to be
an amendment to our statute of distributions and
to make a new class of kindred known to the law
as next of kin, but is such an amendment and does
make new next of kin. This section, sub-division
16 of Section 98 of the same law, provides:
     "If there be no husband or wife surviving
and no children, and no representatives of a
child, and no next of kin, and no child or children 
of the husband or wife of the deceased,
then the whole surplus shall be distributed 
equally to an among the next of kin of the
husband or wife of the deceased, as the case
may be, and such next of kin shall be deemed
next of kin of the deceased for all the purposes 
specified in this article or in Chapter
eighteen of the Code of Civil Procedure; but
such surplus shall not, and shall not be construed 
to, embrace any personal property except 
such as was received by the deceased
from such husband or wife, as the case may
be, by will or by virtue of the laws relating 
to the distribution of the personal property 
of the deceased person."
     The statue applies equally, therefore, to next
of kin and heirs, and specifically states that the
persons created next of kin shall be deemed such
"for all the purposes specified in *** chapter 
eighteen of the Code of Civil Procedure." We
must infer that, if the learned Surrogate had considered 
this statute specifically also, he would
have held it equally at variance with his interpretation 
of "natural right" as Section 91 of the
same law.
     Before considering his argument on this subject, 
it may be permitted to call attention to the
fact that, even if the deductions of the Court below 


7

were correct, they furnish no ground for a
refusal to recognize the validity of the above
statutes. He nowhere suggests that either of
them is in conflict with any provision of the Constitution,
 either of this State or of the United
States, and in the absence of such constitutional
prohibition, the determination of the question of
right to enact a statute rests in the legislature,
not in the courts.
     "The question whether the act under consideration 
is a valid exercise of legislative 
power is to be determined solely by reference
to constitutional restraints and prohibitions.
The legislative power has no other limitation.
If an act can stand when brought to the test
of the Constitution the question of its validity
is at an end, and neither the executive nor
judicial department of the government can 
refuse to recognize or enforce it. The theory
that laws may be declared void when deemed
to be opposed to natural justice and equity,
although they do not violate any constitutional 
provision, has some support in the
dicta of learned judges, but has not been approved, 
so far as we know, by any authoritative 
adjudication, and is repudiated by numerous 
authorities. Indeed, under the broad 
and liberal interpretation now given to constitutional 
guaranties, there can be no violation 
of fundamental rights by legislation
which will not fall within the express or implied 
prohibition and restraints of the Constitution, 
and it is unnecessary to seek for 
principles outside of the Constitution, under
which such legislation may be condemned."
     Bertholf v. O'Reilly, 74 N. Y., 509, 514-5
           (1878).

8 

Cooley says on this subject, in his "Constitutional
Limitations": 
"Nor can a court declare a statute unconstitutional
and void, solely on the ground of
unjust and oppressive provisions or because it
is supposed to violate the natural, social or
political rights of the citizen, unless it can
be shown that such injustice is prohibited or
such rights guaranteed or protected by the
Constitution (star p. 165). 
*  *  *  *  *  *  *  * 
"The moment a court ventures to substitute
its own judgment for that of the legislature
in any case where the constitution has 
vested the legislature with power over the
subject, that moment it enters upon a field 
where it is impossible to set limits to its authority,
and where its discretion alone will
measure the extent of its interference.
"The rule of law upon this subject appears 
to be that, except where the Constitution
has imposed limits upon the legislative
power, it must be considered as practically
absolute, whether it operate according to natural
justice or not in any particular case. 
The courts are not the guardians of the rights 
of the people of the State, except as those
rights are secured by some constitutional provision
which comes within the judicial cognizance" 
(star p. 168). 

To same effect: 
People v. Lochner, 177 N. Y., 145 and
cases cited on pp. 156-159. 

It is not upon the ground of any conflict, real
or supposed, with constitutional guaranties, that 
the learned Surrogate bases his criticisms of these 


9 

statutes, but because he finds them in discord with
what he understands to be a principle of American
public law that "our legislatures cannot enact 
any law contrary to natural right" (fol. 1892).
His argument, condensed and paraphrased, is, in
substance: 
This statute cannot be supported as an
attempt to raise up a new class of heirs at 
law, for "God only, and not man, can make
an heir at law" (fol. 1889).  As the Legislature
could not declare that, if a man die without 
a wife, the women folk resident in his
house shall have dower in his land, or that, 
if he die without heirs or next of kin, the
people in the next house shall succeed to his
estate, so it cannot bestow rights of succession
upon heirs of Mr. Frank Leslie (fols. 
1890-1). 
Because a contrary construction would
impute fatuity to the Legislature, I find the
real intention of the act to be to provide for 
cases of escheat, in which event the rights 
which the State would acquire are by these 
statutes devolved upon the class designated
(fols. 1896-7).  As this class has no title in
itself, it could acquire nothing by release, so
its rights, if any, are to be regarded as a gift.
Such gift can confer no greater rights than
those enjoyed by the grantor (the State) (fol. 
1901);  and therefore, the recipient cannot
contest the probate of the alleged will of the
heirless person because the State could not 
(fol. 1904).  For these reasons "it would be 
highly irregular and contrary to all precedent
and authority to vacated the decree of
probate sought to be vacated at the instance
of Mr. Frank Leslie's heirs at law now claiming
escheats in succession to the State of 
New York" (fols. 1905-6). 


10 

Furthermore, the enforcement of a gift is
solely within the domain of equity and beyond
my powers (fol. 1907). 

Not, therefore, because of any constitutional
limitation, but because "God only, and not man, 
can made an heir" does the learned Surrogate declare 
these statutes unavailing to accomplish the
clear meaning of their words.  Similar ideas as 
to natural right of inheritance have been urged 
on previous occasions but have been declared 
unfounded. 
The common law itself recognized and ruled
upon different claims to succession under the
same circumstances;  the Statutes of Wills took
away any "natural right" to inherit; the inheritance
and transfer tax laws of this nation and its 
component states are grounded upon the right of
the national and state legislative bodies to prescribe 
who shall succeed to the property of deceased 
persons;  the statutes permitting adoption 
of children not related in any way to the adoptive 
parent and giving such children the right to succeed
to the foster parents' property assume the
power of the legislature to create new classes of
heirs at law and next of kin; the Married Women's
Acts partly destroy the ancient right of a husband 
to curtesy; and the statutes of Descent and Distribution,
enacted in the numerous states of this
one nation, under one given set of facts often prescribe
different courses of succession. 
In discussing the question whether the common
law "rule of shifting inheritance" was in force in
Illinois (the Congressional Ordinance of 1787 for
the government of the Northwestern Territory, of
which Illinois was originally part, having provided 
a statutory scheme for descent and distribution 


11 

from intestates), the Supreme Court of the
United States said: 
"Before the revolution, some of the colonies
had passed laws regulating the descent of
real property upon principles essentially different
from those of the common law.  *  *  * 
With the close of the Revolution came a new 
state of things.  *  *  *  The equality of
the legal rights of every citizen was a maxim
universally recognized and acted upon as
fundamental.  The spirit from which it proceeded
has founded and shaped our institutions,
State and National, and has impressed
itself upon the entire jurisprudence of the
country.  One of its most striking manifestations
is to be found in the legislation of the
States upon the subject under consideration.
Of the results an eminent writer thus speaks: 
'In the United States the English common 
law of descents, in its most essential features, 
has been universally rejected, and each State 
has established a law of descents for itself.'
(4  Kent's Commentaries, 412).  Another 
writer, no less eminent, upon this topic says: 
'In the law of descents there is an almost
total change of the common law.  It is radically
new in each State, bearing no resemblance
to the common law in most of the 
States, and having great and essential differences
in all.'  (Reeve on Descents, 11.) *  *  * 
(p. 717).  *  *  *  The Ordinance of 1787 contains
a complete series of provisions upon the
subject.  *  *  *  We find here no trace of 
the common law.  These provisions are diametrically
opposed to all its leading maxims. 
We cannot infer from their silence that anything
not expressed was intended to be
adopted from that source by implication or
construction. 



12 

"The statute governing the descent of real
estate, already referred to, is also a complete 
code upon the subject of which it treats.  It
is to be presumed to cover every case for
which the legislature deemed it proper to provide. 
If the same question had come before 
us under the ordinance, we should have said
with reference to the common law, conflict is
abrogation and silence is exclusion.  The
spirit and aims of the two systems are wholly
different.  *  *  *  We apply to the statute
also the remark that silence is exclusion.
*  *  *  (p. 718.)  One class of posthumous
children are provided for.  We see no reason 
to believe that another was intended to be included.
*  *  *  The intention of the legislature 
constitutes the law.  That intention is
manifested alike by what they have said and
by what they have omitted to say.  Their 
language is our guide to their meaning, and 
under the circumstances we can recognize 
none other.  We cannot go farther than they
have gone.  The plaintiff in error asks us, 
in effect, to interpolate into the statute a provision
which it does not contain.  Were we 
to do so, we should assume the function of
the legislature and forget that of the court. 
The limit of the law is the boundary of our 
authority, and we may not pass it." 
Bates v. Brown, 5 Wall. (U. S.), 710, 718
(1866). 
See also Hutchinson Investment Co. v. Caldwell,
152 U. S., 65 (1893). 

In considering the effect upon a husband's
courtesy of the Married Women's Act, our Supreme
Court said: 
"What were the rights which actually
vested in the husband previous to that act? 


13 

In regard to real property, belonging to the
wife at the time of the marriage, he took a 
vested interest, and became at once entitled 
to the rents and profits during their joint
lives, and in the event of the birth of a living 
child, to a contingent right, on the death of
his wife, to the sole enjoyment of the estate 
during his life;  but, as to any of her future 
acquisitions, the nature and extent of his 
interest were subject to any change which the
legislature might thereafter make in the laws 
relating to the acquisition, disposition and
enjoyment of property.  All regulations of
this kind, the rules of inheritance, the rules 
relating to wills, successions and conveyances, 
and all the provisions by which the transmission
of property is either directed or intercepted,
are the offspring of law, and entirely
dependent on the legislative power. 
"Any person, therefore, whatever may be
his prospective possible rights, arising from
existing legislation, in regard to property not
yet vested in him, is liable to have them 
abridged or altogether revoked by any future
legislation;  whether such person is an
heir apparent, heir presumptive, or stands in
the relation of a husband, whose wife may at 
any time afterwards become entitled to
property.  *  *  *" 
Sleight v. Read, 18 Barb., 159, 164 (1854). 

In determining the question whether a conveyance
in trust for one's life and after such one's
death to such one's heirs at law gave such heirs 
at the time of the execution of the deed of trust
a vested right in remainder which could not be 
defeated by the subsequent adoption of another
person [the plaintiff], the Court of Appeals said: 



14

"And we are thus brought to the consideration 
of the second question ***
whether plaintiff was an heir at law for the
purpose of taking the real estate in question.
*** (p.134). It is too well established
to require any discussion that the relationship 
of appellants to Mrs. Thomas which originally 
made them her heirs at law, did not
confer any vested right during the life of
the sister to the continuance of such heirship,
but that the legislature had the power to
change this and provide for a different line
of inheritance; also, that a child adopted under 
the provisions of the act of 1873, giving 
no right of inheritance is entitled to the benefit
of the statute enacted subsequently to the 
adoption conferring such right (citations.)
The only query is whether the statutes in
force at the time when it became necessary to
determine the identity of the heirs at law of 
Mrs. Thomas" (the life tenant under the
deed) "did or did not make the plaintiff one of 
those heirs *** (p. 137) *** it is 
urged that the court, if possible, ought somewhat
to adapt its interpretation of the deed
and statute to the end to be reached, and that
end is the prevention of the creation by adoption
of an heir who will displace natural heirs,
and disappoint what is assumed to have been
the expectations of the grantor * * * (p
138), * * * the argument that the intention
of the grantor will be violated by allowing
plaintiff to inherit, while superficially a
potential [sic] one, does not stand the test
of careful analysis. Of course, the donor
when he executed his deed could not apprehend
that at a given date many years hence
statutes would be enacted providing for the

15

adoption of children and conferring upon
them the right of inheritance. But, upon the
other hand, he must be assumed to have
known that the lines of inheritance were governed
by statute and at any time could be 
changed. * * * He took his chances upon
the happening of just what happened."
Gilliam v. Guaranty Trust CO., 186 N.Y.,
127, 133 (1906).

See also Dodin v. Dodin, 16 App. Div., 42 (1897),
affirmed 162 N. Y., 635.

The theory of a "natural right" to inherit has
been disposed of again and again in decisions
upholding the validity of National and State inheritance
and transfer tax laws. See Magoun v.
Ill. Tr. & Savings Bank, 170 U. S., 283 (1897);
Knowlton v. Moore, 178 U. S., 41 (1899); Scholey
v. Rew, 23 Wall. (U. S.), 331 (1874).

The right of the State to limit and condition
inheritance by aliens is undisputed. See McCormack
v. Coddington, 184 N. Y., 467 (1906).

When the learned Surrogate declared in his
opinion (as noted, supra) that "It has never
been understood that the ultimate right of the
State in what is known as caducary successions,
including escheats, entitled it to contest the probate
of a will of an heirless person in order to
promote its right to escheats" (fol. 1902), he
overlooked the fact that the Court of Appeals in
Matter of Davis, 182 N. Y., 486, 474, had cited with
approval the decision in Gombault v. Public Administrator,
4 Bradf. Surr. 226 (1857), as authority
 for the proposition that intervention is
allowed in probate proceedings by a public administrator
when the decedent left no known next 
of kin, and by the attorney general when he left
no known heir at law. In the latter case the Court
had said (p. 229):

[right margin notations illegible]

16

   "It does not appear that the decedent left 
any known heirs or kindred, and the will has
been contested by the Public Administrator,
representing the City of New York, and in 
behalf of the Attorney General, representing 
the State of New York, as in the case of an 
escheat in default of a valid testamentary
provision * * * (p. 244). There are no 
kindred intervening against this disposition,
no persons of the decedent's blood who have 
been disappointed in expectations of a natural 
succession; but the controversy is between 
the State, claiming an escheat of his
property, on the one hand, and, on the other,
parties standing towards him in relations of
intimate intercourse, confidence, and affection, 
and in whose favor he had expressed his
testamentary intentions at various times antecedent."

    An interesting review of ancient authorities on
the subjects discussed in Surrogate Fowler's opinion 
is contained in a full discussion of this case in
Harvard Law Review, March, 1916, pp. 521, et 
seq. The author's conclusions concerning this
opinion are summed up in the words: "The principal 
case deserves consideration only as an interesting 
legal anachronism."
    In the Columbia Law Review for April, 1916
(pp. 329, et seq.), is a discussion of this same
opinion by an author who, after reviewing the authorities, 
says: "In view, therefore, of the differences 
which, from the earliest days have
marked the rules of descent, not only as between
different countries, but also within the realm of
England, and which now distinguish our American 
statutory laws of inheritance, it is difficult to
sustain the elaborate and aritificial interpretation


                                 17

placed upon the statute under consideration in the
principal case. It is submitted that statutory
heirs should be accorded all the rights, including
citation to the probate of a will, which the law 
confers upon those heirs who have been said to
be created by natural laws."
    Whether an attempt to support the determination 
below be made on the theory that the statutes 
in question are void as against natural right
or on the ground that the appellant cannot attack
the will because the State could not, is immaterial ;
because the question of the natural right to inherit 
cannot be ruled upon by the courts, and the
State could contest the will.

                                 Point III
    Appellant has had no trial of the merits of the
allegations set forth in his moving papers
    In considering whether or not Arthur Leslie
has had a trial of the merits of his contention it
is well to bear in mind of what such a trial must
consist. In Turpin v. Lemon, 187 U.S., 51 (1902),
Mr. Justice Brown said (p.58) :
            "Due process of law was well defined by
        Mr. Justice Field in Hagar v. Reclamation
        Dist. No. 108, 11 U.S., 701, in the following
        words :
            "'It is sufficient to observe here that by
        "due process" it meant one which, following
        the forms of law, is appropriate to the case,
        and just to the parties to be affected. It
        must be pursued in the ordinary mode prescribed 
        by the law ; it must be adapted to the
        end to be attained ; and wherever it is necessary 
        for the protection of the parties, it must

18
give them an opportunity to be heard respecting 
the justice of the judgment sought. 
The clause in question means, therefore, that
there can be no proceeding against life, liberty,
or property which may result in the deprivation
of either, without the observance of 
those general rules established in our system
of jurisprudence for the security of private
rights.'"
     The decision of the learned Surrogate recites
that the issues raised by the application of the 
appellant "having been brought on for trial before
me and the proofs and allegations of the respective
parties having been heard, namely":
(reciting the papers annexed to Arthur Leslie's 
notice of motion and those submitted in opposition)
"Now, after due deliberation having been
had I decide and find as follows: That the last
will and testament bearing date May 22, 1914, of
the above named decedent was duly admitted to
probate by this Court on Dec. 7, 1914, by decree
duly made and entered on said date in a proceeding
in which all the heirs at law and next of kin
of the above named decedent, to wit: Carrie H. 
Wrenn and Maynard D. Follin, duly appeared
and consented to the probate of the said last will
and testament; that the aforesaid petition of Arthur
Leslie should be dismissed and his aforesaid
motion denied, in all respects, on the merits, both
on the law and on the facts * * *" (fols. 1818
and 1831).
     The appellant has duly excepted to such statements
in the decision on the ground "that the
papers filed by the parties to this proceeding were 
a notice of motion based upon a petition and supporting
affidavits, certified copies of records and 
documents, and an answer supported solely by


19
affidavits and documents; that the hearing and decision
thereupon was a decision and hearing on a 
motion; and that the said issues had not been
brought on for trial before said Surrogate and
that the proofs and allegations of the respective
parties had not been heard" (for. 1836).
     The opinion of the learned Surrogate was over
three thousand words in length and it was only
in the last two paragraphs that any reference even
was made to the merits. As has been previously
shown under Point I, the learned Surrogate 
specifically stated that such reference to the merits
was not the ground upon which the application
of Arthur Leslie was dismissed. It was there also
shown that in this reference to the "merits" the
servile status as distinguished from the illegitimacy 
of the decedent was alone considered, and
that such servile status is not the issue in the case. [*Black slave Rented*] 
POINT IV.
     Appellant has a right to trial of the merits
of his allegations.
     Bearing in mind the requirement that due process
of law "must be pursued in the ordinary
mode prescribed by the law,: the customary manner 
of status in Surrogates' Courts proceedings
should be followed in this case.
     In Matter of Hamilton, 76 Hun, 200, it was 
stated in a petition for probate that a woman
claimed to be the widow of the decedent, whereupon
citation was issued to the alleged widow,
who filed objections on the citation's return. Her
right to contest was objected to on the ground
that she was not the widow. It was held the

20

proper practice to try out the issue of the alleged
widow's marriage to the decedent. Van Brunt,
P. J., said (p. 203):
     "Upon the matter coming on for trial before 
the Surrogate, the Surrogate directed
that as the status of the appellant claiming 
to be the widow was denied; and her right
to object to the probate was denied, the burden 
was upon her to show that she had a 
status in court *** (p. 204). It is a 
very familiar rule in the conduct of a trial 
of cases, particularly those in the nature of
equity proceedings where there is a preliminary 
question as to the right of one of the
parties either to bring the action or to intervene 
as a defendant, to try such question and
to determine the status of the parties before 
attempting to pass upon the final rights in 
respect to which the action is brought. Such
is the foundation of almost all interlocutory
judgments in equity actions, except those 
rendered upon demurrer.
     "In actions for a partnership accounting
it is familiar practice, where the partnership
is denied as to one of the parties, to first try
the question of partnership before allowing
such party claiming to be a partner to vex 
the court and the other parties to the litigation 
with his presence in a controversy in
which he may have no interest. So in the case
at bar, only those persons who are interested 
in the probate of this will had a right to con-
test the same."
     In Matter of Lord, 90 Misc., 222 (1915), (see
also in the Appellate Division, 154 Supp., 1130)
one claiming that she was the widow of a decedent
was not cited on the proceedings to probate his


21

will, and moved to open the probate decree on
numerous affidavits, in opposition to which other
evidence was submitted. Sawyer, S. (p. 225),
said:
     "I have carefully considered the voluminous 
affidavits submitted both in support and
against this motion and have come to the conclusion 
that the so-called widow should be 
given a chance to offer proof in a court of
record in substantiation of her alleged marriage. 
I will open the decree and give the 
so-called widow a chance to intervene in the
probate proceedings, granting her an opportunity 
to examine witnesses, file objections, 
etc., the same as if she had been cited on the 
original probate.
     "The next question to be considered is one 
of procedure, as the will in this case was 
offered for probate prior to the new Surrogates' 
Practice Act, which went into effect
September 1, 1914. The law in effect at the
time of the offering of the will for probate 
will control. If objections are filed and answers 
interposed attacking the validity of the 
so-called marriage, then this court as a preliminary 
proposition will hear and determine
the question of the alleged marriage. If tis
court determines that there was no marriage,
then the objections will be dismissed.
     "Court are concerned only in hearing and
determining the rights of those who have an
interest in property where there may be a 
violation of some right. Matter of Nelson, 89
Misc. Rep., 25.
     "As to the right of this court to hear and 
determine as a preliminary proposition the
question of this so-called marriage there can
be do doubt. Matter of Hamilton, 76 Hun,
200."

[*This case was certified
to 611 app., - see Question
certified

The Error was
admitted by manifest,-
the Error did not
have to be proved,
being admitted.

Only question was the 2 years
hint of time.*]

22
In Matter of Henderson, 157 N. Y., 423 (1898),
a motion was made by an executor, under the
same section of the Code as that under which the
motion at bar was made, to correct a clerical error 
in an accounting proceeding. O'Brien, J., said
(p. 428):

"It is said that since the Surrogate must 
exercise his powers to open and correct the 
record, only in a like case and in the same
manner as the Supreme Court, he must necessarily 
act within the same time. * * *
The statute, in speaking of a like case, means
that the party making the motion must show 
[*"must show'*]
the existence of the error or mistake in the
same way as if the record was in the other
court, and, in providing for the exercise of 
the power in the same manner, all that is
meant is that the surrogate shall proceed in
the same way to hear the application. Proof
must be made, notice given and a judicial 
hearing of the parties had * * * ."
The right to a trail of the preliminary issue of 
a contestant's status has been upheld when the 
contestant claimed to be an adopted child and
sought to compel an administrator to file an inventory 
(Matter of Comins, 9 App. Div., 492);
when persons claiming to take part of an intestate's 
estate as representatives of deceased 
uncles and aunts applied to intervene in accounting 
proceedings and their claim was denied by 
nephews and nieces on the ground that the latter
took all as next of kin (Matter of Thompson, 41
Misc., 233; affirmed without opinion, 87 App. Div.,
609, and 172 N. Y., 454); when one sought to reopen 
a decree of probate on the ground that she
was the widow of the decedent and was not cited
(Matter of Reinhardt, 92 Misc., 96-1916; and


23
Matter of Bitter, 154 Supp., 975-1916); and
when the status of an alleged creditor, petitioning 
for administration, was denied on return of the 
citation (Goulburn v. Sayre, 2 Redf., 310). 
An interesting opinion concerning the right to
a trial under circumstances alike in many respects
to those in the case at bar was rendered by this
Department in Matter of St. John, 104 A. D., 460
(1905); and the conclusion was reached that:
"It is the settled policy of our courts to
permit a person having or in good faith
claiming to have an interest in the subject-
matter of a judicial proceeding to appear in
that proceeding with a view of having his
contentions passed upon in the regular way"
(p. 464). 

POINT V. 
This Court has power and is charged with the
duty, under Section 2763 of the Code, to pass
upon the merits of the issues presented and make
such disposition in accordance therewith as justice 
requires. 
The application below was under sub-division 
6 of Section 2490 of the Code of Civil Procedure
"to open, vacate, modify or set aside * * * a 
decree" of the Surrogate's Court, admitting to
probate the alleged will of Mrs. Frank Leslie, the
decedent herein. The Code of Civil Procedure, 
Section 2763 (formerly Section 2586) provides in 
part:
"Upon an appeal from a determination of
the Surrogate made upon an application pursuant 
to sub-division 6 of Section 2490, the 
Appellate Court has the same power as the
[*"2490 says:-
"Exercises only in a like [case], 
and in the same manners, as
a court of record and of
general jurisdiction exercised
the same powers"

                                                                             24
         Surrogate and his determination must be reviewed as if an original application were made to that 
         court."

         Appellant respectfully requests, that, in pursuance of the Court, this Court proceed by reference or otherwise as in its discretion shall be deemed best, to grant trial of the issue of the fact presented by Appellant's moving papers and the answering papers of Respondents.
                                                        Respectfully submitted,
                                                             FRANT H. TWYEFFORT,
                                                                          Attorney for Appellant.
JOHN N. BLAIR ESQ.,
                   Of Counsel.

[Filed with Clerk of Court of appeals
on May 21 1918
18 copies of brief [and] motion in [61 app.?]
one [?] copy with adm serv. 1 copy Each resp.
1 copy of record in app. Div.
notice of motion &c with adm. serv.]

[*17*]

COURT OF APPEALS
OF THE STATE OF NEW YORK

IN THE MATTER
of the
Judicial Settlement of the Account 
of Proceedings of LOUIS H. 
CRAMER and WILLIAM NELSON 
CROMWELL, as Executors of the 
Last Will and Testament of

FRANK LESLIE,
Deceased.

Brief of Mrs. Carrie Chapman Catt, Appellant, 
on Motion for Leave to Appeal 
to the Court of Appeals.

December 4, 1914 (prior to the probate of the 
Will). Mrs. Carrie H. Wrenn and Mrs. Carrie 
Chapman Catt entered into a contract in writing.

Printed at folios 248 to 264.

By this indenture Mrs. Wrenn covenanted that 
she would convey to Mrs. Catt all of her interest 
as heir at law and next of kin of said decedent 
to Mrs. Catt in consideration of $160,000.

This conveyance was to be made on distribution 
on receipt of the purchase price; and the purchase 
price was to be paid on distribution simultaneously 
with the receipt of the conveyance.

No conveyance has ever been made. 

This appeal was taken by Mrs. Catt because she 
has never received the conveyance which Mrs. 
Wrenn covenanted to make (which conveyance is 
not decreed); and because the Court has changed 
the carefully stipulated price and increased it.

2 

Mrs. Catt duly proposed findings of fact and
conclusions of law;  excepted for failure to find; 
and argued her exceptions before the Surrogates
and Appellate Division.  The Decree adopts the
findings and determination. 
(Fol. 24.) 

Mrs. Wrenn's entire claim and argument even 
in the Appellate Division on her brief was really
as follows: 
Mrs. Wrenn admitted that the only amount 
stipulated to be paid was the flat sum of $160,000, 
on distribution out of a larger fund;  but Mrs. 
Wrenn claims that the instrument operated an
"assignment". 
Mrs. Wrenn argued that being an "assignment"
it necessarily drew interest although the instrument
did not so provide. 

This is flatly contrary to the cases of 
Chester v. Jumel, 125 N. Y., 237, and
Howard v. Johnston, 82 N. Y., 271, 
in each of which cases there was an "assignment"; 
but in each of which cases no interest on 
the "assignment" was given because the "assignment"
did not stipulate for interest. 
And flatly, is contrary to the cases cited by appellant. 
In Chester v. Jumel, 125 N. Y., 237, this 
Court said at page 254: 
"WE DO NOT THINK, AND INDEED IT IS NOT
CLAIMED BY ANYONE, THAT THE DEBT WAS EXCLUSIVELY
MADE PAYABLE FROM A PARTICULAR
FUND, OR THAT THE CREDITOR WAS CONFINED TO
A PARTICULAR FUND FOR ITS ENFORCEMENT.  THE 


3 

CONTRACT UNQUALIFIEDLY ADMITS AN EXISTING
INDEBTEDNESS AND REFERS TO A FUND ONLY AS 
SECURITY FOR ITS PAYMENT." 

In that case there was the "debt" of $30,000
on August 28, 1880,--due and payable on that 
date. 
In that case there was also an "assignment" of
$30,000 out of a fund, later to be distributed.
This Court held that the "assignment" did not 
draw interest,--but that the "debt" drew interest
from the time the plaintiff could bring action
therefor. 
In Chester v. Jumel, throughout this Court 
speaks of the various "assignments". 
In Howard v. Johnston, 82 N. Y., 271, the "assignment"
did not carry interest,--because not
stipulated. 
In Woerz v. Schumaker, 161 N. Y., at 535, this 
Court said: 
"But the argument is based entirely upon 
the proposition that interest is not nominated
in the bond. 
I think this argument is faulty, since it assumes
that the question is to be governed by
the rules applicable to ordinary written contracts." 

In that case the Court says the instrument was
not a common law contract entered into by the
parties "where individual minds have met with
respect to mutual stipulations". 
(That case, at p. 535.

Mrs. Catt, the residuary of the Estate of the
deceased, Mrs. Frank Leslie, appealed (both on
the law and the facts) to the Appellate Division,
First Department, from such decree insofar as
such decree confirmed the Referee's report or

4 

gave or awarded to Mrs. Carrie H. Wrenn any
sum of money in excess of the sum of $160,000 on
distribution of the estate. 
(Notice of Appeal, fols. 14, 15, 16.) 

Mrs. Carrie H. Wrenn and Mr. Maynard D. 
Follin, the only heirs at law and next of kin of
said deceased, threatened contest of the will in
1914. 
(Agreements, fols. 250 and 278.) 

Separate agreements in writing prepared by
counsel were executed.  These agreements provided
for the conveyance to Mrs. Catt by such
heirs at law and next of kin, of all their interest
as heirs at law and next of kin upon the payment
to them respectively out of the estate of the
specifically agreed and stipulated amounts therein
contained. 
The only appeal taken by Mrs. Catt was in respect
to Mrs. Wrenn and an appeal respecting
the Cramer claim;  Mrs. Cramer having made a 
claim of approximately $200,000 as an individual
for services. 
The Cramer claim did not come on for argument. 
The only part of the decree subject to appeal in
the Appellate Division was respecting the written
agreement between Mrs. Catt and Mrs. Wrenn.
Mrs. Wrenn has not received the amount of
consideration for the conveyance which she covenanted
because she would not conveyance; 
and of the $160,000 only $158,000 has been paid to
her. 
The Appellate Division unanimously affirmed
the decree. 
No opinion was written by the Appellate Division. 


5 

Mrs. Catt made a motion in the Appellate Division
to have that Court certify to the Court of
Appeals questions of law and for leave to appeal
to the Court of Appeals from the order of affirmance, 
the decree appealed from and the order of the
Appellate Division the determination of the Surrogate's
Court. 
This motion is made for leave to appeal to this
Court, and is made under the provisions of Sections
190 and 191 of the Code. 
The appeal by Mrs. Catt to the Appellate Division
was both on the law and the facts. 
Case on Appeal, folio 14. 

Such appeal to this Court should, it is respectfully
submitted, be allowed as required in the interest 
of substantial justice. 
Mrs. Wrenn and Mrs. Catt on December 4, 1914,
made the carefully prepared contract which went 
through the hands of their attorneys, having been 
drafted by a member of the firm of Sullivan & 
Cromwell who were the attorneys for the petitioners
in the proceeding for the probate of the will. 
Counsel put in such contract in writing all of
the terms, covenants and conditions which were 
agreed upon, or which counsel on behalf of their
clients were willing to have inserted,--and interest
was not one.
(See Contract.) 

The contract is writing signed by Mrs. Wrenn
and Mrs. Catt provides for a conveyance to Mrs. 
Catt to be make by Mrs. Wrenn conveying to
Mrs. Catt all the interest of Mrs. Wrenn as heir
at law and next of kin of said deceased subject to
the terms of the instrument. 
The instrument in question is Exhibit I for 
Mrs. Wrenn and Exhibit I for Mrs. Catt and ap- 



6 

pears in the printed record herewith submitted
at folios 248 to 263, both inclusive. 
The parties as the consideration for such conveyance
by Mrs. Wrenn agreed upon the amount
to be paid her. 
By carefully stipulated contract the parties
agreed that the only amount that Mrs. Wrenn was
to receive on distribution out of the residue was
"the said sum, to wit, the net amount of $160,000.." 
Mrs. Catt did not owe Mrs. Wrenn any money; 
both parties to the instrument were strangers. 
It has been admitted all along by Mrs. Wrenn
by her answer on the accounting; by her proposed 
findings of fact and conclusions of law;  by her
argument on the record before the Referee; by
her exception, and by her brief in the Appellate
Division as follows: 

(a) 
That she was not entitled to receive any part
of the contract price save on distribution. 
(b)
That the money was to be paid out of a fund, 
and out of a fund only, and on distribution only. 
(c)
That the only sum of money which the parties
stipulated to be paid was the flat sum of $160,000,
and that as provided in the contract the flat sum
of $160,000 is the only sum of money which by the
instrument Mrs. Catt authorized the Executors 
ever to pay Mrs. Wrenn as the consideration for
the conveyance to be made by Mrs. Wrenn to Mrs. 
Catt. 

The report of the Referee awards interest to
Mrs. Wrenn on the $160,000 not form the date of 


7 

distribution and not from any default, but from
the date of the contract. 
THE REPORT OF THE REFEREE AND CONCLUSIONS
OF LAW AND THE FINDINGS DO NOT, IT IS RESPECTFULLY
SUBMITTED, MAKE ANY PROVISION WHATSOEVER
WHICH RECOGNIZES ANY RIGHTS OF MRS. CATT TO
RECEIVE SUCH CONVEYANCE SIMULTANEOUSLY WITH
THE PAYMENT OF THE PURCHASE PRICE THEREOF; 
NOR WHICH BY DECREE OF ESTOPPEL OR OTHERWISE
PAYS ANY ATTENTION WHATSOEVER TO ANY RIGHTS AS
PROVIDED IN THE CONTRACT ON THE COVENANTS OF
MRS. WRENN FOR THE BENEFIT OF MRS. CATT. 

The grounds upon which leave is asked 
of this Court to appeal to this Court are
as follows: 

I. 
In that the agreement does not give Mrs. Wrenn
any interest, or income, or profits. 
Agreement, fols 254, 257. 
Mrs. Catt's proposed fact (5) fol. 228. 
Mrs. Catt's proposed Conclusion of Law
(1) fol. 229. 
Mrs. Catt's proposed Conclusion of Law
(2) fol. 230. 
Mrs. Catt's exceptions (3) fols 206-208. 
Mrs. Catt's exceptions (4) fol. 208. 
Mrs. Catt's exceptions (5) fols. 209-211. 
Mrs. Catt's exceptions (7) fol. 212. 
Mrs. Catt's exceptions (8) fol. 213.
Mrs. Catt's exceptions (9) fols. 213-215. 

II. 
Because the agreement provides for the payment
of a carefully stipulated amount (1) out of a 



8 

fund;  (2) out of a fund only;  (3) on distribution; 
(4) and Mrs. Catt and the executors did not owe
the sum of $160,000, on December 4, 1914;  (5) nor
until distribution. 
(Same.) 

III. 
Because the agreement of the parties does not
provide, nor is any claim made that the parties 
in their agreement provided, for any income or
interest;  not that, the parties stipulated to the
payment of any sum in excess of $160,000 on distribution. 

IV. 
Because the only claim which Mrs. Wrenn has
made that she is entitled to more than the stipulated
$160,000 is upon the sole and only ground
that the agreement operates an "assignment" of 
the sum of $160,000, payable on distribution only
and out of a fund only. 
Whereas, a[*N*] "assignment" of a portion of a
fund payable out of the fund and on distribution
only does not draw interest, unless the instrument
so provides. 
Because the decree is in flat conflict with Chester
v. Jumel, 125 N. Y., 237 and Howard v. Johnston,
82 N. Y., 271, and the "assignments" in
those cases;  and in flat conflict with the agreement
in evidence and the cases cited below by appellant. 

V. 
Because the decree has no provision requiring
Mrs. Wrenn to make the conveyance which she
covenanted with Mrs. Catt to make. 
Mrs. Catt's proposed Conclusions of Law
 (2) fol. 230. 


9 

No provision in Report,--See fol. 195. 
Exceptions of Mrs. Catt (5) fols. 209, 210. 
Exceptions of Mrs. Catt (9) fols. 213, 214. 

VI. 
Because the consideration for such conveyance
has by such decree been increased by the Court
in excess of the stipulated price agreed on by
Mrs. Wrenn and Mrs. Catt in their written agreement. 
Mrs. Catt's proposed Conclusions of Law
(1) and (2) fols. 229, 230. 
Exceptions of Mrs. Catt (3) fol. 207. 
Exceptions of Mrs. Catt (4) fol. 208. 
Exceptions of Mrs. Catt (5) fols. 209, 210. 
Exceptions of Mrs. Catt (8) fols. 212, 213. 

VII. 
Because the decree disregards the written agreement
in that it wholly eliminates Mrs. Wrenn's
covenant;  because it overlooks the terms of the
agreement;  because a new consideration is substituted 
by the Court for the one agreed on by the
parties;  because an increased purchase price is
provided for without providing for any conveyance. 
Mrs. Catt's Proposed Findings and Conclusions. 
Mrs. Catt's exceptions, fols. 200-215. 

VIII. 
Because the Referee "found" as a "fact":--
That the only sum which the parties agreed
should be paid to Mrs. Wrenn was "the said sum, 
to wit, the net amount of $160,000". 
Mrs. Catt's proposed "Fact" at fol. 225. 



10 

But awarded Mrs. Wrenn $160,000 and interest
at fol. 195 of Report. 
Mrs. Catt's exceptions throughout, fols. 
200-214. 
Mrs. Catt's exceptions (3) fols. 206, 207. 
Mrs. Catt's exceptions (4) fol. 208. 
Mrs. Catt's exceptions (5) fols. 209, 210. 

IX. 
Because the Referee refused Mrs. Catt's "Conclusion
of Law" No. 1, fol. 229. 
Mrs. Catt's exceptions throughout. 
Mrs. Catt's proposed Findings and Conclusions.
Mrs. Catt's exceptions (8) fol. 212. 

X. 
Because the Referee refused Mrs. Catt's "Conclusion
of Law" No. 2, fol. 230. 
Mrs. Catt's exceptions (9) fols. 213, 215. 

XI. 
Because the Referee found Mrs. Wrenn's "Conclusion
of Law 4" that Mrs. Wrenn "is entitled 
to receive, out of the corpus of the said residuary
estate" the sum of $160,000. 
Mrs. Catt's exceptions (6) fols. 210, 211. 
Mrs. Catt's exceptions throughout. 

XII. 
Because the findings of "Fact" as "Found"
establish as uncontradicted fact, as does the contract
itself, that:--
The only sum agreed on by the parties to be 
paid to Mrs. Wrenn is $160,000. 
Whereas, the Report awards not only the agreed
price established as uncontradicted "Fact"-- 


11 

but gives Mrs. Wrenn more than the agreed consideration.
Agreement at fol. 254. 
Agreement at fol. 257. 
Mrs. Catt's exceptions throughout. 
Mrs. Catt's proposed Findings. 

Under Section 2757 of the Code the
appellant appealed both on the law and
on the facts. 

SINCE THE ARGUMENT IN THE APPELLATE DIVISION
THERE HAS BEEN PRINTED IN THE ADVANCE
SHEETS OF THE REPORTS THE FOLLOWING CASE: 
Lynch v. Conger, 181 App. Div., 
221 (3rd Dept.) 
In that case the "equitable assignment" to the
attorney for actual services performed by him did
not bear interest until June 27, 1916, at which 
time the defendants made it impossible for the
plaintiff to receive the $5000 "equitably assigned". 
Even in that case the "equitable assignee" was
not entitled to interest from the date of his agreement,
but only from the time when distribution 
should have been made to him out of the fund in
question except for the default of the defendants 
In that case the "equitable assignment" did not
draw interest from June 16, 1914 (when the equitable
assignee finished his service in full) but
only from default on June 16, 1916. 

Mrs. Wrenn's counsel cited no statute
and no case on the subject. 

Mrs. Catt's principal brief in the Appellate
Divisions follows at length:-- 



                                                                       To be argued by 
                                                                    HORACE E. PARKER.

                          SUPREME COURT
           APPELLATE DIVISION-FIRST DEPARTMENT,

                 IN THE MATTER
                          of the
Judicial Settlement of the Account of proceedings 
of LOUIS H. CRAMER and WILLIAM NELSON 
CROMWELL, as Executors of the Last Will and 
Testament of

                           FRANK LESLIE,
                                                 Deceased.

Brief of Appellant, Carrie Chapman Catt, on Appeal on the Law and on the Facts from such Portion of the Decree on Accounting as Grants to Carrie H. Wrenn anything more than the Net Amount of $160,000.

                                                 Statement of Facts.

    The decedent, a resident of the County and State of New York, died on September 18, 1914. 
    The heirs at law and next of kin were Mrs. Carrie H. Wrenn and Mr. Maynard D. Follin. 
    Mrs. Wrenn was a legatee under the Will, being


2 

the life beneficiary of a $50,000 trust clause (fol. 
140), and a legatee of jewels (fol. 143) and personal
belongings (fols. 142, 145);  her husband,
Thomas A. Wrenn, was the life beneficiary of a 
$5,000 trust clause (fols. 149, 150); and the children
of Mrs. Wrenn received $30,000, pecuniary
legacy, being $10,000 for each child (fols. 147, 
148). 
Mr. Follin (practically a stranger) was not a
legatee under the Will. 
Mrs. Carrie Chapman Catt, this appellant, was 
given most of the estate, and is the residuary. 
(Article Twelfth, fol. 153-155.) 

Mrs. Catt had the remainder in 3 trusts; two for
$55,000 for the benefit of Mr. and Mrs. Wrenn
during their respective lives, remainder to Mrs.
Catt. 
(Fol. 141.)
(Fol. 150.)
(Fol. 151.) 
Contests of the Will were threatened by both
of the heirs at law and next of kin. 
(Carrie H. Wrenn agree., fol. 251); 
(Maynard D. Follin agree., fols. 279,281); 
(Test. Horace E. Parker, fols. 103-123). 

Negotiations with Mrs. Wrenn were carried on
between her attorney, George A. Strong, Esq., and
Mrs. Catt's attorney, Horace E. Parker; such conferences
being about 3 or 4 in number and all being 
in the presence of Mr. Cromwell. 
(Test. Horace E. Parker, fols. 105-123); 
(See fol. 123). 
In addition to these, Mrs. Cromwell had some
conferences with Mr. Strong.
(Test. Horace .E Parker, fols. 107, 119,
123.) 


3 

As the result of the conferences between Mr. 
Strong and Mr. Parker in the presence of Mr. 
Cromwell, a bargain was struck. 
After the negotiations were had and a bargain 
struck, Mr. Jaretzki, a partner of Mr. Cromwell's, 
at the request of Mr. Cromwell, prepared 
a draft agreement for each heir. 
(Test. Horace E. Parker, fols 110, 111, 113,
114); 
(Test. Horace E. Parker. fols. 1180123). 

After the preparation of the drafts of agreement 
in the ordinary course, and after the terms
of the written contract had been agreed to between
the attorneys, the agreements were signed
by Mrs. Wrenn and by Mr. Follin.
(Fols. 110-116.) 

Mrs. Catt's attorney had stated to Mr. Strong
and to Mr. Cromwell and to Mr. Garvin and Mrs. 
Catt would not settle with Mrs. Wrenn unless she
settled with Mr. Follin; and that agreements with
the two heirs must be signed by them and presented
to Mrs. Catt for signature simultaneously.
(Test. Horace E. Parker, fols. 107, 112, 
113, 114.) 

This was done. 
(Fols. 112-123.) 

The agreement with Mr. Follin, the agreement 
with Mrs. Wrenn and the 2 assignments were
simultaneously signed by Mrs. Catt; and all 4 instruments
simultaneously delivered between the
parties. 
(Fols. 113, 114.)  

The agreements were different (test. H. E. P., 
fols. 117, 118) in two (2) respects: 
(Wrenn agreement, fols. 248-261); 
(Follin agreement, fols. 277-282). 



4 

Mrs. Wrenn's agreement was to and did provide 
for the assignment by Mrs. Catt to Mrs. 
Wrenn or her nominee or nominces all Mrs. Catt's
remainder interest in two (2) trust clauses of
$50,000 (fol. 252) and $5,000 (fols. 256,257), respectively,
contained in the Will for the benefit
of Mrs. Wrenn and her husband for their lives, 
respectively. 
And, also, in that the settlement with Mr. Follin
being of a much similar amount was to be paid
prior to distribution at agreed dates after the probate
of the will. 
(Follin agree., fol. 280); 
(Test. H. E. P., fols 109-111). 

Both contracts provided for conveyances to
Mrs. Catt by the two heirs of all their rights as 
heirs at law and next of kin upon the payment to
them of the specific amounts.
(Wrenn agree., fols. 257-258); 
(Follin agree., fol. 280); 
(2nd Follin agree., fol. 298). 

But these conveyances were not to be made by
the heirs until simultaneously with payment to
them of the specific amounts. 
(Wrenn agree., fols. 257-258);
(Follin agree., fol. 280); 
(2nd Follin agree., fol. 298). 

The agreement between Mrs. Catt and Mrs. 
Wrenn contemplated an immediate assignment by
Mrs. Catt by separate instruments to be known as
assignments of the remainder interests in the said 
two (2) respective trust clauses of $50,000 and
$5,000, respectively, for the benefit for the lives 
of Mrs. Wrenn and her husband. 
(Fols. 253, 257.) 


5 

Such separate simultaneous assignments were 
executed by Mrs. Catt in blank. 
(Test. H. E. P., fols. 113, 123); 
(Ex. I for L. G. W., fols 265-268); 
(Ex. II for L. G. W., fols. 271-274). 

On December 4, 1914, before the Will was admitted
to probate, Mrs. Catt signed the four (4)
instruments, consisting of the agreement with 
Mr. Follin, the agreement with Mrs. Wrenn and
the two (2) assignments in blank for Mrs. 
Wrenn, pursuant to the terms of Mrs. Wrenn's
agreement. 
(Test. H. E. P., fol. 113.) 

Mrs. Catt having executed the two assignments 
of the remainders of the two trust provisions
under paragraph "Third" of the contract
with Mrs. Wrenn. 
(Test. H. E. P., fol. 113.) 

The two (2) assignments executed in blank by
Mrs. Catt were delivered;  and subsequently, under 
the agreement of the same date, the name of
the nominee was filled in by Mrs. Wrenn or by
her attorney, viz.:  Mrs. Louise G. Wrenn, apparently
a daughter-in-law of Mrs. Wrenn. 
The report of the referee is entirely in error in
suggesting that these assignments were later
made. 
(Rep., fol. 191.) 

Later, and on December 7, 1914, the will was
admitted to probate. 
December 7, 1914, Mrs. Wrenn, under clause
"Second" of the contract, consented to the decree
of probate. 
Mr. Follin did also. 
On and immediately after December 12, 1914, 




6 

there were commenced in the Supreme Court
three (3) distinct actions at law by Arthur Leslie,
by Lonetta L. Hollander and by Florence L. 
Weissbrod. 
(Fols. 76-80.) 

The only two (2) defendants in such actions
were the two (2) executors. 
(Fols. 76-80.) 

Such three actions alleged that in 1879 Mrs. 
Leslie, deceased, and her then husband, Mr. 
Frank Leslie, entered into an agreement (admittedly
oral) by the terms of which Mr. Leslie
was to and did execute a will to his wife, the decedent,
giving her everything in consideration of
her promise to her then husband (in 1879) that
she would give by will one-third as she chose and
the other two-thirds for the benefit of her husband's
children (by a former wife) or grandchildren; 
each one of such three parties plaintiff being
a grandchild of Mr. Frank Leslie;  and the
other grandchild, Frank Leslie, never having
commenced action. 
(Fols. 79, 80.) 

After the commencement of these actions, but
long before their discontinuance by stipulation,
Arthur Leslie, one of the four (4) grandchildren
of Frank Leslie, by a former wife, instituted an
application in the Surrogates' Court to open the
probate of the will upon the ground that Mrs. 
Frank Leslie was the only child of an unnamed
negress slave belonging to the estate of one John
Sen Trescott.
(Fols. 76-78.) 

The application was argued before Mr. Surrogate
Fowler and was dismissed; and it was appealed 


7 

by substituted attorneys thereafter to
the Appellate Division, First Department.
(Fols. 76-78.) 

In November, 1916, the Appellate Division
sustained the dismissal. 
(Matter of Leslie, 175 App. Div., 108.) 

Order was entered by the Appellate Division
of such dismissal on November 17th, 1916. 
At the earliest possible time Mrs. Catt instituted
proceedings in the Surrogates' Court for
partial distribution of the estate.
(Decree, fols. 36-37.) 

On January 25th, 1917, as soon as it could be 
done, an order or decree of partial distribution
was presented to Mr. Surrogate Cohalan and was
signed. 
(Fols. 36, 37.) 

Mrs. Wrenn was paid $158,000 (fols. 37, 38). 
The full amount of $160,000 was not paid because
Mrs. Wrenn would not receipt in full nor
give an assignment to Mrs. Catt of all her right,
title and interest as heir at law and next of kin
in the estate as set forth in paragraph "Fourth"
of her contract of Dec. 4, 1914. 
Mrs. Wrenn has not yet delivered the conveyance
of all her interest as heir and next of kin to
Mrs. Catt and will not now do so. 
Mrs. Wrenn was offered the $160,000 specified 
in paragraph "Third" of the agreement upon
her delivery of the conveyance and receipt of
the money. 
This was after the filing of the referee's report. 
Mrs. Wrenn refused to accept the $160,000 as
payment.

8 

In the present proceeding for the judicial accounting
of the executors the account was filed
December 15, 1915, the citation thereon was returnable
January 28, 1916. 
Mrs. Wrenn filed an answer. 
(Fols. 86-98.) 

Hon. Charles F. Brown was appointed Referee. 
Mr. Strong and Mr. Gregory, a partner of Mrs. 
Wrenn's son, placed in evidence the three (3) instruments
dated December 4, 1914, executed between
Mrs. Wrenn and Mrs. Catt and Mr. Strong
asked that the distribution of the estate be had to the 
end that Mrs. Wrenn should be paid. 
(Fols. 125, 126, 127.) 

Subsequent to this, partial distribution was
made by order or decree entered January 25th,
1917. 
(Decree, fols. 37, 38.) 

Mrs. Wrenn has never made, at any time, any
claim that she was entitled to $160,000 except
upon distribution.
By her answer of Jan. 27, 1916, Mrs. Wrenn
asked for income (fol. 95). 
(See her answer, fol. 97.) 


9 

POINT I. 
There is no adjudication of Mrs. 
Wrenn's covenants. 
That Mrs. Catt is to receive the conveyance
covenanted by Mrs. Wrenn is
not adjudicated. 

See Report of Referee, fols. 187-197; 
See Contract at fols. 257-258; 
Mrs. Catt's Proposed Find. of Facts I,
fol. 225; 
Mrs. Catt's Proposed Conclusion of Law
2, fol. 226; 
Mrs. Catt's Exceptions, fols. 199-214; 
Mrs. Catt's Exceptions, fols. 209, 213; 
See Point XIII. 

Why the agreement? 

(The same is true of the Follin agreement.) 
The agreement grew out of a contest of the
will, which Mrs. Wrenn said she contemplated, so
that Mrs. Wrenn should, by descent and distribution, 
receive one-half of the estate as heir-at-law
and next of kin; and a successful contest would
mean that the legacies to Mrs. Wrenn and her
family would be void. 

The agreement was for the purpose of buying
out Mrs. Wrenn's interest (and Mr. Follin's ) as
heir and next of kin; and also preventing a contest
--thereby saving to Mrs. Wrenn and her family
the benefits of the will by probate thereof
(Article 16 of Will, fols. 161,162.) 
Did Mrs. Wrenn covenant to deliver conveyance
on distribution when she received "the sum 




10 

hereinabove agreed to be paid to her?"  9fols.
257, 258) 
or 
Did Mrs. Wrenn make a provisional, conditional
conveyance, on December 4, 1914, "subject
to and conditioned upon payment" of the specified
"sums hereinabove agreed to be paid to her",
--"and subject also to" payment of the specific
bequests to her on distribution?
(Fols. 257, 258.)

Did Mrs. Wrenn promise anything?
(See Finding of Fact 2, at fol. 226.) 

Not a word by the report (itself) or the decree. 
It is, indeed, a poor contract which does not
obligate a seller to make the conveyance covenanted
to be delivered. 
Mrs. Catt wasn't making just a contribution to
Mrs. Wrenn;  Mrs. Catt was buying out Mrs. 
Wrenn as heir; and Mrs. Wrenn was selling out
as heir. 
Mrs. Catt and Mrs. Wrenn bargained for a 
conveyance;  this Mrs. Wrenn was not to deliver
until simultaneously paid. 
(Wrenn agree., fol. 258.) 

In the meantime the will was to be probated.
(Fols. 252, 253.)

Mrs. Wrenn covenanted to sell out to Mrs. 
Catt. 
(Agreement, fol. 258.)

Where is the "conveyance"?  It has never
been delivered. 
If the agreement is to be adjudicated, it should
be adjudicated, --and it has not been. 


11 

Findings of fact and conclusions of
law should be made by this court [if the
matter were properly before the referee] 
and the mutual obligations of the
parties decreed. 
See Point XIII. 

Only equity can reform a contract;  and even
equity cannot decree payment for a conveyance
without decreeing conveyance. 
The Referee "reformed" the agreement by
changing it completely. 
He says Mrs. Wrenn is entitled to income (fol.
195);  whereas, the agreement does not,--and excludes
income. 
He says the $160,000 comes out of "corpus"
(fol. 242);  whereas, the agreement does not
--and excludes such a holding. 
He says (on the other hand) that the $160,000
is payable out of "any moneys" (fol. 194.)
He eliminates, apparently, from the written 
contract Mrs. Wrenn's covenants to convey for
the consideration price, and on payment. 
He changes and increases the consideration for
conveyance,--and then leaves Mrs. Catt without
a conveyance either by deed or by estoppel. 
And without any testimony of "Mistake" or
misunderstanding,--either of fact or of law.
In Delaware Trust co. v. Calm, 195 N.
Y., 231, it was held that conveyance and payment
were contemporaneous conditions.
The Court said, at page 235: 

"Under these circumstances it was the
duty of the plaintiff or its assignors to tender
performance on their part and to demand
performance on the part of the defendants
before subjecting them to the expense
and annoyance of an action to recover 



12 

the amount of the purchase price.  Otherwise
the sellers would have both money and
property and the buyers nothing.  The contract
was for the purchase of property, not
a lawsuit by which the property might be
obtained." 

See also, pages 236, 237. 
McCammon v. Kaiser, 218 N. Y. 
46; 
Ketchum v. Alexander, 168 
App. Div., 38. 

The essence of the transaction which Mrs. Catt 
had with Mrs. Wrenn and also with Mr. Follin
was a purchase by Mrs. Catt of all the right, title
and interest which said heirs at law and next of
kin had on December 4, 1914. 
(Wrenn agree., fol. 258.) 
(Follin agree., fol. 280.) 
(2nd Follin agree., fol. 298.) 

The consideration that Mrs. Wrenn was to receive
was specifically specified. 
The conveyance Mrs. Catt was to receive was
provided for.
(Wrenn agree., fol. 258.)

Incidentally, and in the meantime, Mrs. Wrenn
was not to file a contest. 
(Fol. 252.) 

It was the law at one time that next of kin
could waive on probate and then open the probate. 
Whether that was the law in December, 
1914, counsel took no chance,--but made the
agreement by which Mrs. Wrenn was to sell out
by conveyance on payment of the purchase price. 
The will worked a conversion of realty into personalty. 


13 

On settlement of ordinary litigation, commenced, 
or to be commenced, the attorneys ordinarily
provide for a release and a discontinuance.
Just a discontinuance itself is not enough. 
The essential thinig is the release,--with discontinuance
as an incidental. 
There is nothing in the Report of the Referee 
(itself) which indicates any covenant to convey
on the part of Mrs. Wrenn, except the contract 
itself and the Residuary's Proposed Finding of
Facts No. 2 (fol. 226). 
There is no determination of law. 
(See Appellant's Exceptions, fol. 209.) 
There is not a word in the Referee's Report itself, 
whether of Finding of Fact or Conclusion of
Law, which indicates that Mrs. Catt is ever to get
the conveyance for which she bargained. 
There is not a word in the report itself either
of Finding of Fact or Conclusion of Law which
indicated that Mrs. Wrenn even contracted to
convey. 
Mrs. Catt's proposed findings are printed at
pages 75 to 77. 
Mrs. Wrenn's proposed findings are printed at
pages 78 to 83. 
Mrs. Catt's exceptions to the report are printed
at pages 67 to 72. 
Mrs. Wrenn's exceptions to the report are
printed at pages 73 and 74. 
The decree provides: 

"*  *  *  that the report  *  *  *  be and it hereby
is in all respects confirmed, and that said
report be and it hereby is adopted as the
determination and decision of this Court as
to all the matters contained in and covered
by said report."
(Decree, fol. 34.) 



14 

Mrs. Catt was entitled to have found: 
Her Conclusion of Law I. 
(Fol. 229.) 
"That said Carrie H. Wrenn is not entitled
to any interest whatsoever upon said
sum of $160,000, and on distribution is entitled
only to said "the net amount of $160,000.' " 
Refused.--C. F. B. 

Mrs. Catt's exceptions, fols. 206, 207, 208, 211,
212.
Her Conclusion of Law 2. 
"That it is the legal duty and promise of
said Carrie H. Wrenn upon receipt of said
'the net amount of $160,000' to execute and
deliver to said Carrie Chapman Catt a conveyance
of all the interest of her, said Carrie
H. Wrenn, as heir at law and next of kin of
said decedent, and as particularly set forth
in said agreement."
Refused--C. F. B. 

Mrs. Catt's exceptions, fols. 209, 213, 214. 
See agreement, fols 248-261; 
Particularly:  fols. 251, 254, 258. 

There is no conclusion of law that Mrs. Wrenn
covenanted or promised to or did give any conveyance
as heir at law and next of kin. 
(See Agreement, fols. 257, 258.) 

Although the Referee did find a "Fact" Mrs. 
Catt's (proposed) "Findings of Fact" Nos. 1 
and 2 (fols. 224-226). 
"Fact":  "That by" (the agreement) Mrs. 
Catt "agrees to transfer and assign" (to Mrs.
Wrenn) "out of the share of said residuary"
*  *  *  "and agrees that said sum, to-wit, the net
amount of $160,000 may be paid"  (to Mrs. 


15 

Wrenn) "by the executors"  *  *  *  "and did by
said instrument direct the executors  *  *  *  to pay
said net sum of $160,000"  (to Mrs. Wrenn). 
(Fols. 224-226.) 
And although the Referee did find as "Fact" 
Mrs. Catt's proposed "Fact" 2.
(Fol. 226.) 

2. 
"That in and by said written agreement
said Carrie H. Wrenn agreed and promised
and bound herself to convey, and does convey
to said residuary all the interest of said
Carrie H. Wrenn in said estate as therein 
provided." 
Found.--C. F. B. 
"As therein provided," in said agreement. 
(While the Follin interest is not before
this Court, the finding of the Referee with
regard thereto is at fols. 193 and 194.) 

In view of the provision of the first agreement
between Mrs. Catt and Mr. Follin, which provided
that Mr. Follin was to make a proper assignment
to Mrs. Catt of all of his interest as heir-at-law 
and next of kin on payment of the first 
$25,000 of the $40,000, which assignment was to 
be made on the first payment (fol. 280);  and in
view of the phraseology of the second agreement
between Mr. Follin and Mrs. Catt (see fols. 297, 
298) by which Mr. Follin "expressly" covenanted
for himself, his heirs, executors, administrators 
and assigns, that upon receipt of the aforesaid
sum of $100,000 mentioned by Judge Brown
in his report, that Mr. Follin would "execute and
deliver to said party of the second part, her
heirs, executors, administrators and assigns a

16
complete release of all his interest in the estate 
of said decedent"; the report of Judge Brown, 
at fols. 193 and 194, is palpably an oversight. 
     See 1st Follin $40,000 agreement at fols. 
280, 281; 
     See Follin $100,00 assignment at fols. 
289-291; 
     See 2nd Follin agreement at fols. 297-298; 
See Reports at 194. 
     Neither Mrs. Wrenn nor Mr. Follin were to receive 
any interest. 
     But both were to deliver conveyances covenanted 
by them.
POINT II. 
     Mrs. Wrenn's only claim to the $160,000
is not as a legatee, but solely under 
written contract prior to probate; and 
she is entitled only to what the written 
contract expressly provides. 
     "The instrument is (* * *) a common 
law agreement or contract, where individual 
minds have met with respect to mutual stipulations." 
     See Woerz v. Schumaker, 161 N. Y., 
531, at 534. 
     Negotiations prior to probate were had between 
Mrs. Wrenn's lawyer and Mrs. Catt's 
lawyer, and between Mr. Strong and Mr. Cromwell. 
     (Test. H. E. P., fols. 103-123.)
     Mr. Strong and Mr. Parker had in the presence 

17
of Mr. Cromwell about three (3) conferences and 
finally agreed upon terms. 
     (Test. H. E. P., fol. 123.)
     No suggestion was ever made for even trust 
company interest or income on the amount of 
$160,000 until after the commencement of the 
Westcott litigation. 
     There is no provision in the agreement for interest; 
the agreement throughout states and 
stipulates what each party "agrees" to do. 
     Mrs. Catt and Mrs. Wrenn were strangers; 
they have never met each other. 
     Their only dealings were between their counsel 
and Sullivan and Cromwell, attorneys for the 
petitioners; and the papers that were signed by 
the clients were papers that were signed by 
the petitioners, the lawyer for Mrs. Wrenn and 
the lawyer for Mrs. Catt. 
     (Test. H. E. P., fols. 103-123.)
     Both of the contracting parties naturally used 
the phraseology which had been prepared and 
agreed to by counsel and submitted by them. 
     The executors were not to pay before distribution 
under the Code. 
     Mrs. Catt did not agree to the payment before 
distribution under the code. 
     Of course, Mr. Strong knew his client was to 
wait until distribution. 
     The attorneys for the parties distinctly understood 
that they were specifying the exact amount 
of money which Mrs. Wrenn was to receive; they 
knew that Mrs. Catt owed no money to Mrs. 
Wrenn and had never had any business dealings 
with her; they knew that such payment was to 
be made out of a fraud only, and only when dis-

18 
tributed; and they knew that such payment could 
not be made until distribution of the estate. 
     Mrs. Wrenn's only claim of "the said sum, towit,
the net amount of $160,000" was only by virtue 
of an express contract made not with the decedent 
but with the residuary legatee under the 
will. 
     At no time did Mrs. Wrenn ever make an application 
for payment of the $160,000. At no 
time could the same have been paid except when 
the greater part of it was paid (in January, 1917, 
pursuant to decree.) 
     The parties contemplated a present transaction 
with respect to the two (2) assignments 
which were made; Mrs. Catt having only remainder 
interest therein and the interest on 
such trust provisions going during the life of the 
cestuis to such cestuis, - the interest on the 
$160,000 belonging to Mrs. Catt unless she chose 
to give it away, - which she did not intend and 
did not do. 
     The agreement under which the two (2) assignments 
were made and under which on distribution 
Mrs. Wrenn was to receive $160,000 
contemplated that upon distribution there should 
be passed to Mrs. Wrenn direct a check for $160,000 
or an endorsement of check for such amount 
by Mrs. Catt; and Mrs. Catt was at the request 
of Mrs. Wrenn or her attorneys or of the executors 
to execute such further orders, directions, 
"assignments" and other instruments as may be 
reasonably requested of her to carry out the foregoing. 
     (Agreement, fols. 255, 256.) 
     That Mrs. Wrenn was ever to receive more 
than the flat, expressly stipulated amount of 
$160,000 was an afterthought; at any rate, - an 
afterthought, so far as communicating at any 
time to Mrs. Catt or her attorney any such claim, 

19
-until at some time after the commencement of 
the Westcott litigations made it apparent that 
distribution could not be had as soon as it sometimes 
had under the provisions of the Code when 
conditions permit. 
     That the "agreement" for such $160,000 was 
not intended by the attorneys nor by the clients 
through their attorney, nor by the executors, as 
being an assignment if very clear from the express 
provision of such "agreement." 
     The executors would not, of course, pay  Mrs. 
Wrenn any part of the $160,000 except upon Mrs. 
Catt's receiving the conveyance contracted for, 
and on receiving receipt in full for the only sum 
which by the contract "may be paid" by them 
and which Mrs. Catt does "direct" them to pay 
pursuant to the express provisions of the agreement. 
     What Mrs. Catt agrees may be paid is expressly 
stipulated. 
     What Mrs. Wrenn agrees is the full amount to 
be paid her is expressly stipulated. 
     The parties and their attorneys knew that Mrs. 
Wrenn's only rights grew out of an express contract 
containing every term, condition and agreement 
which the parties were willing to stipulate. 
     "the terms, conditions and agreements 
hereinafter contained," -to 
hereinafter contained," - to 
the exclusion of any terms or conditions 
or agreements not thereinafter 
contained. 
(Fol. 251.) 

20 

POINT III. 
Mrs. Wrenn's only right with Mrs. 
Catt was to receive payment of an explicitly
stated amount out of a fund on
distribution of the fund. 

Mrs. Catt owed Mrs. Wrenn nothing. 

Mrs. Catt did not promise to pay Mrs.
Wrenn. 

The executors did not promise to pay
Mrs. Wrenn. 

Chester v. Jumel, 125 N. Y., 237; 
Denike v. Denike, 155 N. Y., 671 (Aff. 
S Misc., 604); 
Howard v. Johnston, 82 N. Y., 271; 
Murray v. Baker, 6 Hun, 264; 
Simon v. Burgess, 146 App. Div., 37; 
aff. 213 N. Y., 589; 
Koster v. Lafayette Trust Co., 147
App. Div., 63; 
Lawrence v. Church, 128 N. Y., 324, at
332. 

[Harward v. Hewlett, 5 Redf. Rep., 330, where
a gift of $1,000 "to be paid to her at majority" 
does not draw interest until majority,--the residue
receives the interest meantime. 
In Chester v. Jumel, et al., 125 N. Y., 
237, the claim of $30,000 of the plaintiff was for
legal services rendered prior to August 28, 1880,
and due and payable that date, in connection with
litigation involving the Jumel Estate. 
The case appears below in 5 Supp., 809. 


21 

The opinion in 5 Supp., the opinion in the
Court of Appeals, and the record on appeal set
forth, and the findings of fact, were uncontradicted
that George J. Schermerhorn had performed
legal services for Charles Adolphe DeChambrun 
prior to and subsequent to August 28, 
1880;  for some of which services performed before
as well as after August 28, 1880, Schermerhorn
had been paid;  but it was uncontradictedly
found that such payments were not a part of the
agreement of August 28, 1880. 
For the unpaid services rendered by Mr. 
Schermerhorn by Mr. DeChambrun up to August
28, 1880, the parties settled upon the amount
due and entered into the following agreement
and stipulation: 

"It is hereby stipulated and agreed by and
between Charles Adolphe DeChambrun * * * 
and Charles J. Schermerhorn * * * that in
consideration of the services rendered by
said Schermerhorn, at the request of said
Chambrun * * * said Chambrun agrees to
pay said Schermerhorn the sum of Thirty 
thousand Dollars ($30,000), and such sum of
$30,000 is hereby made a lien upon any
moneys or property, which said Chambrun
may receive * * * ."  Executed August 28, 
1880. 

(The asteriks indicate omitted portions of the
agreement, which ran for the benefit of the executors, 
administrators, successors and assigns
of the respective parties.) 
The suit was in equity to determine certain
questions arising in the Jumel litigation.
The referee allowed interest to Mr. Schermerhorn
on the $30,000 from August 28, 1880); the
General Term disallowed interest on the $30,000,
except from 1888, when the property was sold. 



22 

The Court of Appeals allow interest to Mr. 
Schermerhorn on the $30,000 from August 28, 
1880, upon the ground that on that day by agreement
and adjustment of the parties, Dechambrun
immediately owed Schermerhorn $30,000 
for the legal services already performed, the
value of the amount thereupon being agreed on
that day, DeChambrun having promised to pay
the same, and the amount being due on that day. 
The Court of Appeals, at page 253, after mentioning
that no exceptions had been taken to the
findings of the referee allowing interest to Schermerhorn, 
and after mentioning that on the appeal
form the judgment allowing interest to
Schermerhorn no appeal was taken except upon 
a different ground, said: 

"But, supposing the question is fairly
raised on this appeal, we are of the opinion
that interest was properly allowed to Schermerhorn. 
The agreement of transfer in
plain language imported a liquidation of an
existing debt from DeChambrun to Schermerhorn 
at the sum of $30,000, and the creation
of a lien on the fund as a security for
such debt.  The giving of the security did
not postpone the time for the payment of the
acknowledged debt, or shield DeChambrun
from prosecution for its immediate collection, 
if the creditor elected to pursue that
course.  The contract operated as an admission
of an existing debt for a good consideration, 
and the law implies a promise to
pay it.  There being no time specified for its
payment, the law makes it payable immediately,
and gives interest for delay in discharging
the obligation after it becomes due. 
(Purdy v. Phillips, 11 N. Y., 406.) 
It cannot be disputed but that DeChambrun 
was liable to prosecution for the debt 
at any time after the liquidation of the 
amount, or but that interest was recoverable
from him in such an action as damages for 


23 

not satisfying the debt when it ought to have 
been paid.  How then can it be claimed that
Schermerhorn is not entitled to interest 
when seeking to enforce payment against
the property of his debtor pledged as security
for such indebtedness.  DeChambrun
was by force of his contract liable to pay interest, 
and it was this debt he attempted to
secure.  The debt was the sum liquidated
with the necessary incidents attached to its
nonpayment.  The debt by operation of law
necessarily grew in amount as the duty of 
paying it was delayed, and cannot be legally
satisfied except by the payment of the sum
due upon it when it is attempted to be discharged. 
(People v. County of New York, 5 
Cow., 334; Dana v. Fiedler, 12 N. Y., 40.) 
We do not think, and indeed it is not
claimed by anyone that the debt was exclusively
made payable from a particular fund, 
or that the creditor was confined to a particular
fund for its enforcement.  The contract
unqualifiedly admits an existing indebtedness
and refers to a fund only as security
for its payment." 
(Purdy v. Phillips, 11 N. Y., 406, was an action
on a bond due.)
At 254 the Court said: 
"The court below have sought to
make a distinction between the
amount of the debt admitted to be
due and the amount for which security 
was given." 

(Mrs. Wrenn's rights as heir did not draw interest
--they were not a debt admitted to be due, 
and Mrs. Catt did not owe Mrs. Wrenn.) 
The Court of Appeals also cites, on page 255, 
three (3) English cases in which, upon examination
of the cases, it appears clear that at the time
of the making of the respective agreements that

24 

the defendants owed to the plaintiffs a definite
sum of money and had promised to pay the same
[the debt was due and payable] at the time of
the making of the respective contracts; and that 
the plaintiff in each case could sue at once without
waiting for distribution of the property
mentioned. 
Chester v. Jumel and these cases are particularly
good in that they discriminate between
cases: 

(a)  Where the defendant had promised to pay
a legal debt then existing and due;  and, further, 
and as additional security for the debt already
due, gave an order or lieu for payment out of 
specific property; and 

(b)  the entirely different case where the defendant
owes plaintiff nothing, and where a simple
arrangement is made whereby plaintiff must
look only to a specific fund on distribution thereof
for payment, and where in no case could be sue
defendant for any liability whatsoever, except, 
perhaps, where a defendant afterwards makes 
it impossible for distribution to be had, or where 
the defendant unnecessarily delays distribution.
[The Jumel litigation was in the courts in 133
N. Y., 614; 128 N. Y., 431; 59 Fed., 504.] 
In Howard v. Johnston, 82 N. Y., 271,
action was brought in 1874 upon a promissory
note for $1,000 dated April 13, 1868, and also
upon a contract bearing same date, executed by
defendant, by which he agreed to pay plaintiff
$5,000 "out of any moneys or property" which
should be received by him from the sale or license
of certain patented inventions. 
The defendant, in connection with certain other
owners of patents, executed an assignment thereof
to one Harding in September, 1868;  Harding
receiving the same in trust to collect thereon and
divide the same among the several assignors and 


25 

himself in certain specified proportions;  and it
was provided that the distribution was to be made
as fast as received, and that out of the first proceeds
before making any dividends, except to defendant, 
Howard was to pay to the plaintiff the
sum of $6,000, which sum was included, as the
Referee found, to secure and pay, the debt of the
defendant to the plaintiff upon the note and contract
in suit. 
In the action by the plaintiff a Referee was appointed; 
and the Referee had held that upon the
assignment to Harding defendant became liable 
to pay the $5,000 together with interest thereon. 
The General Term reversed the judgment on
the ground that Harding was simply an agent for
the owners who had exercised reasonable care to 
protect the interest of the plaintiff;  that it did 
make plaintiff's claim due and did not entitle him
to interest. 
There was no default in paying over the proceeds
as fast as received save in one instance and
the Referee charged interest from the time on the
amount then received. 
The Court of Appeals said at page 274: 

"Folger, Ch. J. We concur with the learned 
General Term, that interest did not begin to
run upon the contract, in favor of the plaintiff, 
either at the date of the transaction with 
the Syracuse company or of that with conclusion
ae well set forth in the opinion delivered
at General Term by Talcott, J., on the
first appeal there, and need not be repeated."

[The General Term twice held, and the Court of
Appeals once, that plaintiff was in no event, except
from distribution, to receive any interest.] 
In Howard v. Johnston there was the essential
element that defendant had given a promissory 



26 

not and a written contract to pay; there was in
April, 1868, a debt from defendant to plaintiff. 
In Murray v. Baker, 6 Hun, 264, the
defendant had built some houses in Brooklyn and
the plaintiff agreed to do some flagging in connection
with such houses, the agreement being in
writing signed by the plaintiff and states among
other things: 

"I further agree to put down * * * the 
flagging that Mr. Baker wishes, * * * 
and wait for my pay until Mr. Baker sells
some of the houses for cash, and then, when
sold, I want my bill for flagging paid." 

The defense was that the defendant had not at
the time of the trial sold nor able to sell any
of the houses for cash. 
Judgment for the defendant was affirmed. 
Mrs. Catt never promised to pay Mrs. Wrenn
nor did the executors. 
The "agreement" did not subject Mrs. Catt to
any personal promise to pay; and Mrs. Wrenn
by her contract received and made a simple promise
to look only to a fund on distribution for a specific
amount flatly mentioned. 
In Simon v. Etgen, 152 App. Div., 399,
the court refers to various cases where a direct
obligation to pay was made but payment was deferred. 
In Ledyard v. Bull, 119 N. Y., 62, the 
Court said, at page 74: 

"Interest is payable for the loan or retention
of money by express contract, or as
damages for non-payment of money due.
Here there was no contract to pay interest; 
and hence, no interest could be claimed upon
the $75,000, unless that amount became due
and payable, and the son was in some way in 


27 

default for not paying. The general rule is
that in the absence of an agreement to pay
interest, it is implied by law as damage for
not discharging a debt when it ought to be
paid." 

The Court also said at pages 74 and 75: 
"Now what are the facts to which these 
rules of law must be applied?  The father 
did not take from his son any obligation for
the payment of the $75,000, and there is no
hint in the letter that he expected any interest
thereon." 

The Court also said at page 75: 
"If there had been any understanding that
he was to have interest, would there not have
been some mention of a matter of such importance,
or would not the interest have been
credited against the moneys had? 

(In that case the parties had agreed so as to
make administration of an estate unnecessary.) 
There is no "hint" in Mrs. Wrenn's formal
written contract that she expected interest,--or
that Mrs. Catt or the executors expected her to
receive any. 
"If there had been any understanding that" she
was to have had interest, the lawyers would have
"mentioned",--"a matter of such importance." 
In Koster v. Lafayette Trust Co., 147 
App. Div., 63, the Court said at pages 66 and
67: 

"It is well recognized that 'A contract or
debt may be limited to payment out of a
special fund, making the raising and sufficiency
of the fund a condition precedent to
the liability; in which case the promisor would
not become absolutely liable unless the fund
failed through his own default.  (Leake
Cont., 446;  See Wakeman v. Sherman, 9 N. 
&., 85, 92;  Lorillard v. Silver, 36 id., 578; 



28 

Tebo v. Robinson, 100 id., 27; Scouton v. Eislord,
7 Johns., 36; Tyng v. U. S. Submarine
& Torpedo Boat Co., 1 Hun, 166; Murray v. 
Baker, 6 id., 264.)" 

Mrs. Catt was never "in default" and January
1917, was the earliest time when distribution could
be had. 
In Denike v. Denike, 155 N. Y., 671 (affirming
without opinion 8 Misc., 604), the Court (General
Terms, City Court) below said: 

"Clement, C. J.  The plaintiff brought this
action to recover of the defendant the sum of
$1,000, with interest from July 11, 1883.  In
the complaint the plaintiff alleged that on or
about July 11, 1883, the defendant applied to
him for a deed of his interest in certain real
estate, and promised, in consideration thereof, 
to pay him the sum of $1,000 and interest 
from said July 11, 1883, upon the final settlement
of the estate of one Abraham Denike, 
who had devised the real estate in question 
to plaintiff, defendant, and Elizabeth A. Burnham. 
Plaintiff further alleged in his complaint
that by reason of such promise of the
defendant he delivered to him a deed conveying
all his right, title, and interest in and to 
said real estate, and that a decree upon a final
accounting of the estate of Abraham Denike 
was made and entered on February 6, 1893. 
The defendant denied that he promised to pay
plaintiff the sum of $1,000 at the time of the
delivery of the deed, but testifies that two 
years afterwards, in 1885, he did tell the
plaintiff that he would give him $500 if he received
a distributive share in the final accounting
of the estate of Abraham Denike.  It 
appears in the final accounting that there was 
nothing to divide.  The testimony of defendant
is confused, and it is difficult to understand
what he did mean to say.  The jury 
found a verdict for the plaintiff for the sum 
of $500, with interest from July 11, 1883.  If 


29 

the jury had found a verdict for $1,000, with
interest from the date of the final accounting,
February 6, 1893, it would have been in accordance
with the testimony of plaintiff.  The
plaintiff did not testify that the defendant
agreed to pay interest in addition to the $1000
but that he agreed to pay $1,000 at the last accounting. 
As there was no promise to pay interest, 
and the defendant was not in default
until the date of such accounting, on no theory 
of the case was it possible for the defendant
to be liable for interest, except from the date 
of the final accounting.  The jury could have 
found a verdict for plaintiff for the sum of 
$807.58 (the amount of damages in the judgment),
and the defendant could not complain; 
but it appears on the face of the verdict that
the plaintiff was awarded $500 of principal
and $307.58 interest.  The question whether
defendant was liable to plaintiff for the sum
of $1,000 or a smaller amount was one purely 
of fact, and was properly submitted to the
jury.  Judgment and order denying new trial 
reversed, and new trial granted, costs to abide
the event, unless within 10 days plaintiff's
attorney files a stipulation reducing the damages
to the sum of $500, with interest from
February 6, 1893, in which case judgment and
order denying new trial are affirmed, without
costs of appeal. 
(Italics not so in opinion.) 

The facts in Denike v. Denike were 
that the defendant did promise to pay
the plaintiff; and did promise to pay on
the accounting; and that plaintiff was
not to look to the fund for payment, but
to distribution only as the time when defendant
was to pay;--without a promise
of interest before distribution.

In Palmer v. North, 35 Barb., 282 (1861) 
Stephen Stafford died leaving a will.  Objections

30 

were made by some heirs that certain legacies
were too small.
     Edwin Stafford promised the widow and three
daughters of deceased that if they would not oppose 
the probate and admit service of the citation
that he, Edwin Stafford, would pay the three
daughters two hundred dollars each.
The action is by an assignee of the 3 daughters
against Edwin Stafford's estate.
The claim was stipulated and a referee appointed,
who found:

"3rd. That the amount of the principal so
due the plaintiff was $600, and the amount of
interest $252, making in all the sum of $852
due the plaintiff, for which he was entitled
to a judgement against the defendant as administrator."

The defendant appealed.

Held: Edwin Stafford's promise to his sisters
to pay them $200 each matured on the probate.
The Court said, p. 294:

"The strength of the evidence is in favor
of the conclusion that the money fell due at
that time. There is nothing fixing definitely
any other period, and the evidence points to
the time when the duty to pay should be
deemed fixed and absolute."

(The principal points in the case were legality
of contract, etc.)
Edwin Stafford did promise to pay his sisters;
the agreement to pay was not deferred; and his
sisters were not to look to a fund for payment.
In Palmer v. North the agreement was oral.
Our contract was carefully reduced to writing
after conferences were had and after all the provisions
the parties were willing to have made 
were inserted.

31

"the terms, conditions and agreements
hereinafter contained."
(Fol. 251.)
"the said sum to wit the net amount
of $160,000"
("Third", fol. 254);
"payment * * * of the sums hereinabove
agreed"
("Fourth", fol. 258).

These exclude by explicit language.

"The instrument is (* * *) a common-law
agreement or contract, where individual
minds have met with respect to mutual stipulations."
(See 161 N. Y., at 535.)

In Palmer v. North the arrangement was verbal.
In our case:

"the said sum, to-wit, the net amount of
$160,000"
(Fol. 254.)
"may be paid to"
(Fol. 254.)

and Mrs. Catt

"Does hereby direct" the executors to pay
to Mrs. Wrenn "out of her (Mrs. Catt's)
share of the said residuary estate."
(Fol. 254.)

This was the lawyer's phraseology.
It was no affair of Mrs. Wrenn's whether the
 $160,000 was paid out of Mrs. Catt's "principal"
or out of Mrs. Catt's interest on the "principal"
(if "principal" may properly be used here
with residue).
Ordinarily residue is the residue that is left
after debts (of a decedent) are paid; but if Mrs.

32 

Catt should direct, or if the executors should pay
the $160,000 out of interest and accumulation only
Mrs. Wrenn could not complain. 
There is not a word nor any promise that the
$160,000 shall be taken out of "principal";  or
out of "interest";  or out of principal and interest,
--merely the words "out of her (Mrs. Catt's) 
share of the residuary estate",--given to Mrs.
Catt by the same will under which Mrs. Wrenn 
and her family received benefits 
The Executors did not in their accounting nor
in any other way keep a separate account of principal
and interest from December 4, 1914. 
If Mr. Jaretzki or Mr. Cromwell or Mr. Strong
or Mr. Parker had any idea that the contract was
other than it was, Mr. Strong certainly would
have asked that an interest account be kept separately. 
Mrs. Wrenn and Mrs. Catt do not even now
know what average rate the Estate produced,--
nor, apparently, the Executors themselves. 
And Mr. Strong would doubtless have been active
on the accounting had he made money than a
blanket request, in Mrs. Wrenn's answer, for more
than his client was to receive. 
The Will gave the residue by "Article Twelfth" 
to Mrs. Catt;  and "Article Sixteenth" provides
for lapse into residue in case of failure or direct
or indirect questioning the provisions of the Will.
The contract provides ("Third"): 
Mrs. Catt promises to assign to Mrs. Wrenn or
her nominees Mrs. Catt's remainder interests in
the $50,000 trust and in the $5,000 trust. 

(Article "Second" of Will, fol. 140.) 
(Article "Eighth" of Will, fol. 149.) 
See Contract, fol. 253. 
See Contract, fols. 256-257. 


33 

This Mrs. Catt did. 

(Test. H. E. P., fol. 113.)
(Assignment, fol. 265.) 
(Assignment, fol. 271.) 

Mrs. Catt promises to pay the inheritance tax
not only on the 2 remainders but on Mrs. Wrenn's 
and Mr. Wrenn's life estates therein, and on Mrs. 
Wrenn's specific legacies. 
(Contract, fols. 254, 255, 256, 257.) 

So that out of the residue Mrs. Catt was to assign
(and did simultaneously with agreement
made), say, $20,000 or $25,000, value of the 2 remainders, 
and promised to pay transfer tax. 
Also ("Third") promises to pay inheritance 
tax on Mrs. Wrenn's legacies under Articles 3rd,
4th, 5th, of the Will. 
(Contract, fols. 253-257.) 

Mrs. Catt also ("Fifth") waived forfeiture of
legacies. 
(Fols. 259, 260.) 

So that there came out of the residue: 
(1)  Principal of $50,000 trust clause (conveyed.) 
(Louise G. Wrenn, assignment, p. 89.)
(2)  Principal of $5,000 trust clause (conveyed).
(Louise G. Wrenn, assignment, p. 91.) 
(3)  Transfer Tax on above, and on Mrs.
Wrenn's specific legacies under the Will. 

The contract ("Third") then further provides
for the further sum of $160,000: 

"out of her (Mrs. Catt's) share of the said
residuary estate. 
(Fol. 254.)

34 

Mrs. Catt would lose no interest on either of
the two trust clauses by actually and immediately
making, executing and delivering an assignment
of the principal,--for the cestuis took the net income
for their lives under the will;  and actual
conveyances by the 2 assignments of the remainder
principal of $55,000 lost Mrs. Catt no interest, 
--even though the statutory distribution did 
not take place within a year, or even longer. 
Of course transfer tax would precede statutory
distribution of the Estate under the Code and the
Surrogate's Court Rules. 
With the very considerable sum of $160,000,
Mrs. Wrenn was not to receive and Mrs. Catt did
not give interest;  and if a bargain had not been
struck, as it was, by a future payment out of a 
fund on distribution, and if the agreement were 
not as it actually was, Mr. Strong, Mr. Jaretzki
and Mr. Parker knew enough to insert all the benefits
Mrs. Catt would consent to. 

POINT IV. 
"The said sum, to-wit, the net amount
of $160,000." 

There is no express promise to  pay or
allow interest. 

The "agreement" of December 4, 1914, 
excludes interest. 
Ledyard v. Bull, 119 N. Y., 62, 74; 
Howard v. Johnston, 82 N. Y., 271; 
Denike v. Denike, 155 N. Y., 671; affirming
8 Misc., 604; 
Saratoga Trap Rock Co. v. Standard
Accident Ins. Co., 143 App. Div., 852; 


35 

Matter of Cole, 85 Misc., 630; 
Chester v. Jumel, 125 N. Y., 237 (and 
cases cited); 
Dana v. Fiedler, 12 N. Y., 40; 
Harward v. Hewlett, 5 Redf. Rep., 330.

The Court said in Denike v. Denike, 8 Misc., 
604, affirmed in 155 N. Y., 671, without opinion: 
"As there was not promise to pay
interest, and the defendant was not
in default until the date of such accounting,
on no theory of the case 
was it possible for the defendant to
be liable for interest, except from
the date of the final accounting." 

In Denike v. Denike, the defendant did promise
the plaintiff that he would pay the plaintiff. 
(Mrs. Catt did not so promise Mrs. Wrenn.) 
In that case the time of payment was deferred; 
here the time of payment was deferred,--and was
to be out of a special fund only.  In that case payment
was not to be made out of a fund. 
In Chester v. Jumel, 125 N. Y., 237, the defendant
did promise to pay the plaintiff the amount; 
the amount had been earned by prior legal services
performed;  the time of payment was not deferred; 
the debt was due and payable August 28, 
1880; and as additional security for a debt already
due and on which plaintiff could sue without waiting
the defendant gave the plaintiff a lien on the
special fund, not deferring payment. 
In Chester v. Jumel, it was the debt that drew
interest from default, --not the lien on the special
fund. 
In Saratoga Trap Rock Co. v. Standard Accident
Ins. Col, 143 App. Div., 852 
The Court said at page 855: 



36 

"There is no claim in the present case
that there was any express promise to pay
interest.  The general rule is that in the absence
of an agreement to pay interest it is
implied by law as damages for not discharging
a debt when it ought to be paid.  (Ledyard
v. Bull, 119 N. Y., 62, 74).  Where a 
contact provides for the payment of money
upon the happening of an event, it is not due
until the even transpires and interest does
not begin to run until that time.  (Howard v. 
Johnston, 82, N. Y., 271.)" 

In Matter of Cole, 85 Misc., 630, the Court said,
at page 635: 

"I do not think he is entitled to this interest. 
Interest is only allowed where there 
is a contact, express or implied, to pay interest
or as damages for the non-payment of
money due.  There is no express contract for
interest here nor is there anything in the evidence
from which an implied contract could
be inferred.  And interest could not be recovered
as damages for non-payment of
money due or for breach of contract, because
I do not find that this sum of $550 was due
or that the testator should have paid same
at any particular time." 

In Woerz v. Schumacher, 161 N. Y., 530, where
the trustees of an insolvent savings bank advanced
to the first receiver with a provision for reimbursement,
it was held that interest should run
as therein provided. 

The Court said, at page 535: 

"The instrument is not, in any just sense, 
a common-law agreement or contract, where
individual minds have met with respect to
mutual stipulations.  In a certain sense it
is not a contract at all.  The receiver, of his
own will, had no power or capacity to execute
it,  or to bind anyone by it.  He as a mere instrument 


37 

to execute the will of the Supreme
Court, and, hence, one of the real parties to
the instrument is the court itself." 

In that case the plaintiffs had loaned to the first
receiver and the instrument under order of court
provided for reimbursement of the loan. 
Matter of Trustees, etc., 137 N. Y., 95 was a 
condemnation case. 

The Court said, at page 98: 

"Before interest can be allowed in any case
it must be by virtue of some contract express 
or implied, or by virtue of some statute, or
on account of the default of the party liable
to pay, and then it is allowed as damages for
the default.  Here there was no contract obligation
to pay interest upon the award, and
there was no statute imposing or requiring its
payment;  and it only remains for inquiry
whether the bridge trustees were in default
in not paying the award on the thirtieth day
of April." 

In Forschirm v. Mechanics and Traders' Bank, 
137 App. Div., 149, the plaintiff was a depositor
in defendant bank for which temporary receivers
were appointed. 

The Court said, at page 151: 

" 'Before interest can be allowed in any
case it must be by virtue of some contract, 
express or implied, or by virtue of some 
statute, or on account of the default of the
party liable to pay, and then it is allowed as 
damages for the default.'  (Per Earl, J., in
Matter of Trustees, etc., 137 N. Y., 95, 98.)" 

Even a demand promissory note does not draw
interest until demand. 
Van Vliet v. Kanter, 139 App. Div., 
603. 




38 

See also: 
Lawrence v. Church, 128 N. Y., 324 at
332.  (Promise of payment in agreement 
at 325.) 

There is no contract express or implied to pay
or allow interest;  and there was no default. 
There is no express promise of interest or income. 
There can be no implied promise of interest or
income;  for certainly the law does not imply what
the attorneys have not consented to and where a 
bargain has been struck providing for the payment
of an exact specific sum out of a fund only
and distributable at a future time. 
"The instrument is ( * * * ) a common-law
agreement or contract, where individual
minds have met with respect to mutual stipulations." 
Mrs. Catt did not owe Mrs. Wrenn any money; 
they are and were complete strangers except as
explicitly set forth in the agreement and the two 
(2) assignments made under the agreement. 
There was no assignment, lien or encumbrance,
--to secure an existing debt upon which debt with
interest a party could sue at any time. 
Mrs. Wrenn has no claim to any part of the
residue save as expressly set forth in the four
corners of the agreement. 
Mrs. Catt explicitly stated the full extent to
which she consented to payment out of the residue. 
The Executors were not authorized or directed
to pay anything but the eract sum stipulated. 
Mrs. Wrenn has not claimed that there was a 
default by Mrs. Catt or the Executors;  she did
not claim that she was not paid (all except $2000) 
at the earliest possible moment;  and she would 


39 

have received the contract price if she had kept
her contract to deliver the conveyance. 
When on December 4, 1914, before probate, after 
several conferences, after negotiations and consultations
with clients, the lawyers submit and
there is signed agreement specifying just what 
contract rights Mrs. Wrenn is to be given and is
to receive, the law does not imply that "the said
sum, to-wit, the net amount of $160,000" shall 
be construed to mean any larger amount. 
Furthermore, Mrs. Wrenn in her own covenant
to convey says (as does Mrs. Catt) in par. 
"Fourth",--"upon the payment  *  *  *  of 
the sums of hereinabove agreed to paid" to her. 
(Fols. 258.) 

If it had been payable prior to distribution it
would have been so provided. 
The $40,000 settlement with Mr. Follin did so
provide because so agreed. 
Again, as suggested in Ledyard v. Bull, 119 N. 
Y., at 74, 75, (see Point III), "there is no hint", 
there is no "mention". 
Counsel who drew the contract knew how to do 
both. 

POINT V. 
"The said sum, to wit, the net amount
of $160,000." 

This does not mean the "uncertain" sum, consisting
of $160,000 together with interest, income
or increment thereon to some future time, when
neither the Executors nor Mrs. Catt were in default.

40 

Mrs. Wrenn's only grievance is that the unfortunate
Westcott litigations necessarily held up
distribution under the Code until January, 1917,
--a feeling in which Mrs. Catt and the other legatees
concur. 

POINT VI. 

The agreed amount could not be paid
before January, 1917. 

Mrs. Wrenn does not claim otherwise. 

(Her answer, her proposed findings, and the
Report.) 
Her answer (fol. 96). 
Her proposed conclusions of law 9 (refused)
fol. 247. 
There could be no default certainly before January
25, 1917. 
See Cases, Point III. 
Mrs. Wrenn's proposed Conclusions of Law No.
9, at fol. 247, was refused; and the report was
filed Jan. 19, 1917. 
(Decree, fol. 27.) 

The Referee's action on such proposed conclusion
of law was adopted and confirmed by the decree 
(fol. 34) and Mrs. Wrenn did not appeal. 
The application of Arthur Leslie to open the
probate followed the "two-thirds" actions, and
never until January, 1917, could distribution be
made even to the pecuniary legatees. 
(Point XI,     .) 
(Statement of Facts,     .) 

The 3 "two-thirds" litigations commenced on 


41 

and after December 12, 1914, were not discontincued
until December, 1915. 
The application to open the probate was not
affirmed in this court until November, 1916. 
Mrs. Wrenn had no action against the Executors
obviously prior to January, 1917. 
Even then she could not require payment in the
Surrogates' Court, except upon an accounting; 
even with the Executors' consent. 
Matter of Wood, 38 Misc., 64; 
Tilden v. Dows, 3 Den., 240; 
Peyser v. Wendt, 2 Den., 221; 
Rogers Estate, 16 Supp., 197. 

(She did not take under the Will.)
Mrs. Catt was the natural one to make application; 
she did;  it was not opposed;  and Mrs. 
Wrenn was forthwith paid--and would have been
paid in full on receipt in full on conveyance as
she covenanted. 

POINT VII. 

Before she receives her $160,000 she
must execute and deliver to Mrs. Catt 
the conveyance of all her interest as
heir and next of kin. 

McCammon v. Kaiser, 218 N. Y., 46; 
Delaware Trust Co. v. Catm, 195 N. Y., 
231; 
Ketchum v. Alexander, 168 App. Div., 
38. 
See Point I. 

And she must give receipt in full to the executors. 



42 

In fact, by the agreement, the parties plainly
say the only sum that Mrs. Catt "agrees may be
paid" and the only sum Mrs. Catt "does hereby
direct" is "the said sum, to-wit, the net amount
of $160,000". 
(Agreement, fol. 254.)
(Agreement, fol. 258.) 

POINT VIII. 

The "agreement" of December 4, 1914,
was not and was not intended even as 
an equitable assignment;  and the only
assignments contemplated or intended
were those made. 
On distribution Mrs. Wrenn was to
convey to Mrs. Catt and was to receive
"the said sums hereinabove agreed to be
paid to her" then distributable, as
stated. 

"Assignment" is not a word of magic;  the
paper within its four corners states what is to be
received. 
The instrument is labeled "Agreement made". 
(Fol. 248.) 

"This agreement" shall bind parties and their
representatives to cover in case of death of either
party.
(Fol. 260.) 

The acknowledgments are of "the foregoing
agreement". 
(Fol. 262.) 


43 

The cover was labeled "Agreement". 
(Fol. 264.) 

The lawyers' expressions show that the instrument
was an agreement. 
The agreement contemplates 2 assignments,
--both of which were made,--executed by the assignor
with appropriate language, both reciting
the agreement and Mrs. Catt's promise to execute 
the 2 assignments in question. 
The 2 assignments (fols. 266, 267; 272, 273) recite
the "agreement" this day entered into between 
the contracting parties, and when the lawyers 
intended to make an assignment such instrument
was executed by one person only with the
natural expression "to have and to hold unto the
said (          ) to his own use absolutely
and forever". 
Assignment re $50,000, fol. 268. 
Assignment re $5,000, fol. 272.

The papers intended by the lawyers as assignments
do not bind the legal representatives; they
were 2 completed instruments taking immediate
effect, and fulfilling all that was then to be completed. 
The "agreement," on the other hand, looked to
distribution;  and at such time the payment to
Mrs. Wrenn out of the residue of the carefully
specified and definite amount of $160,000, when,
it was contemplated Mrs. Wrenn should convey
to Mrs. Catt all Mrs. Wrenn's interest as heir and
next of kin. 
(Agreement, fol. 254.)
(Agreement, fol. 258.) 

Mrs. Wrenn was not so to convey until she
should be paid "the sums hereinabove agreed to
be paid to her."
(Agreement, fol. 258.) 



44 

It was to be "subject to",--"and conditioned
upon" the payment of a specified explicit sum. 
(Fol. 258.)

"the said sum, to wit, the net amount of
$160,000."
(Fol. 254.)

It was to be "subject also",--"to the specific
bequests" to Mrs. Wrenn under Articles 3rd 
[household effects], 4th [jewelry] and 5th [personal
effects]. 
(Fol. 258.) 

Mrs. Wrenn has never tendered such conveyance
to Mrs. Catt, nor is she, now, willing to receipt
in full if paid the specified amount. 
Mrs. Wrenn has never claimed that she was 
entitled to be paid, except on distribution. 
Her bequests under the will she was not entitled 
to on December 4, 1914,--certainly not for a year
after issuance of letters testamentary. 
The $50,000 and $5,000 trusts were not segregated 
at the time of the Report. 
Her conveyance to be made to Mrs. Catt was
expressly "subject to and conditioned upon the
payment" of the various specified sums. 
(Fol. 258.)

And then the "agreement" provides for
["Fifth"] a release as to threatened contest so
that at a later time Mrs. Wrenn and her sons
could be paid legacies.
(Fol. 259.)  

Mr. Strong, naturally, did not want his client
to convey to Mrs. Catt his client's rights as heir
until time for payment of the specified sum of
$160,000--it was to be "subject to and conditioned
upon payment" on distribution. 


45 

The will had not been probated. 

MRS. WRENN WAS NOT TO BE BOUND AN UNCONDITIONAL
CONVEYANCE UNTIL SHE GOT HER MONEY.
MRS. CATT DID NOT CONSENT TO PAYMENT UNLESS 
SHE RECEIVED AN UNCONDITIONAL CONVEYANCE. 

Mr. Jaretzki, Mr. Strong and Mr. Parker all
knew how to draw an assignment when intended 
as such;  and 2 assignments (fols. 265-275) were
drawn with apt language--"to carry out the terms 
of the agreement  *  *  *."  And all three (and
Mr. Cromwell) knew whether the settlement and
agreement was to be for a larger or different
amount than they stated. 
And all three knew that the residue would not
be paid until distribution;  that the $160,000 was 
part of the residue;  that a direction to the executors
and that they "may" pay a specified exact
amount on distribution was in view of Mrs. Catt's
receiving a conveyance absolute from Mrs. Wrenn 
when on distribution money was available to pay
over. 
Mrs. Wrenn received $158,000 out of $160,000
and she could have had the $2,000 had she kept
her agreement.  The executors would not, of
course, pay the money without a receipt in full. 
Mrs. Catt has received a far less proportion
than has Mrs. Wrenn. 



46 

POINT IX. 

If the agreement were an assignment,
Mrs. Wrenn conveyed "subject to and
--conditioned upon the payment  *  *  *
of the sums hereinabove [expressly] 
agreed  *  *  *." 

The expressly agreed sums were:  (1) the $50,000
trust clause remainder, (2)  the $5000 trust
clause remainder, (3)  transfer tax on these and
on Mrs. Wrenn's legacies under the will;  (4)  "the
said sum, to wit, the net amount of $160,000"; 
(5)  Mrs. Wrenn's gifts in will. 

(1)--fols. 253 and 258; 
(2)--fols. 256 and 258; 
(3)--fols. 254, 255, 257, 256 and 258; 
(4)--fols. 254 and 258; 
(5)--fols. 258, 259, 260 and 258. 

If the agreement had been an assignment by
Mrs. Catt to Mrs. Wrenn, there was a conveyance
by Mrs. Wrenn to Mrs. Catt "subject to and conditioned
upon", only of and on the payment to
Mrs. Wrenn of the explicit $160,000 on distribution
and the payment of her legacies under the
will,--"of the sums hereinabove AGREED to be 
paid to her",--"and subject also to the specific
bequests made to" Mrs. Wren under the will,--
"and which specific bequests" Mrs. Catt was not
to receive. 
(Fols. 254, 258.) 

The same language is used by Mrs. Wrenn as
by Mrs. Catt. 


47 

If there were an assignment by Mrs. Catt to
Mrs. Wrenn, there were likewise assignments to
Mrs. Wrenn of the trust remainders without the 2
assignments;  and the language by Mrs. Wrenn
would operate a conveyance by Mrs. Wrenn to
Mrs. Catt of all rights,--again specifically stating
the exact amounts.  And the 2 assignments of the
same date were at least unnecessary if the agreement
were mutual assignments. 
The same language is used. 

POINT X. 

Even if there had been an assignment
on December 4, 1915, it would have been
by agreement out of residue, and the
parties excluded any interest or income
thereon. 

Again, as mentioned in Point III, Mrs. Wrenn
could not complain if Mrs. Catt directed the Executors
to, or the Executors did, pay the amount
out of any part or portion of the residue; whether
out of Mrs. Catt's corpus or accrued income. 
If the Executors on distribution sold some real
estate (which was equitably converted into personalty 
by "Article Thirteenth" of the Will) to pay
Mrs. Wrenn the contract amount, Mrs. Wrenn
could not complain. 



48 

POINT XI. 

Even if the agreement were an assignment; 
and even if an assignment necessarily
bore income;  Mrs. Wrenn stood
in no better position than Mrs. Catt. 

The 3 unfortunate Westcott "Two-thirds" actions
and the Westcott application to open the
probate were pieces of litigation of which Mrs. 
Catt obviously knew nothing, and could know
nothing. 
If she had known, she would not have contracted
either with Mrs. Wrenn or Mr. Follin.
It cannot be seriously urged by Mrs. Wrenn
that, before probate, that Mrs. Catt could reasonably
be supposed to have contracted with in view: 

(I.) 
Actions on a verbal contract between Mr. and
Mrs. Leslie made in 1879 (when a husband and
wife could not contract) and in the face of the
later contested will of Mr. Leslie. 
92 N. Y., 636;  aff. 15 Week. Dig., 56. 

(II.) 
Applications to open the probate on the ground
that Mrs. Leslie was a negress slave and the only
illegitimate child of an unknown negress slave
which never existed. 
The contract between Mrs. Catt and Mrs. Wrenn
(and Mr. Follin) was made December 4, 1914, and
contemplated avoidance of a contest by Mrs. 
Wrenn, a niece;  and, obviously contemplated 


49 

that there could not be a contest by any one
else,--the very reason for the agreement. 

MRS. WRENN AND MR. FOLLIN BOTH STATED AND
REPRESENTED THEMSELVES IN THEIR CONTRACTS TO
BE THE HEIRS AND NEXT OF KIN; AND IT IS OUTSIDE 
THE PALE OF IMAGINATION TO SUPPOSE THAT MRS. 
CATT IN THE FACE OF THESE TWO WRITTEN STATEMENTS
IN THE TWO CONTRACTS TO AVOID ANY CONTEST
OF THE WILL, COULD BE TAKEN TO HAVE CONTEMPLATED
CONTESTS OF THE WILL BY WESTCOTT;  OR
COULD BE TAKEN, WITHIN THE CONTEMPLATION OF
THE PARTIES OR THE EXPRESS AGREEMENT, TO HAVE 
INTENDED TO EXONERATE MRS. WRENN FROM ANY
EXPENSES TO CONNECTION WITH FUTURE CONTESTS. 

Mrs. Catt did not say that she would enter into
such a contract with Mrs. Wrenn and between her 
and Mrs. Wrenn pay out of the income the expenses
of these Westcott litigations, leaving Mrs. 
Wrenn to receive the undiminished income (say,
4% or perhaps 4 1/2%) on $160,000, and particularly
when the litigation was directed at the two
heirs, and at the probate in direct consequence. 
If by assignment, the contract and mutual
status of Mrs. Catt and Mrs. Wrenn were fixed 
by their agreement reduced to black and white in
writing as of December 4, 1914, it is exceedingly
clear that of that date were fixed the proportionate 
shares of the residue of the two. 
In other words in such case, December 4, 1914, 
were the date as of which the contractual participation
of the 2 were fixed; in such case should be 
taken the status of the residue as between the 2 
contracting parties. 
The application to open the probate, if granted,
really meant that Mrs. Wrenn and Mr. Follin had
falsely represented themselves to be the heirs and 



50 

had procured (however innocently) contracts on
the faith of the false statements; and such litigation
was more directly aimed at Mrs. Wrenn and
Mr. Follin than against the will itself, as the litigation
looked only to the establishment of a status, 
later to attack the will. 
If Mrs. Wrenn and Mr. Follin had been adjudicated
not to be heirs the will would not thereby
be invalidated. 
The 3 "Two-thirds" litigations were discontinued
without costs by stipulation;  the actions
were at law,--which did not lie,--and the only defendants
were the executors. 
If an equity suit to impress a trust on the estate 
had been commenced and won, obviously Mrs.
Wrenn's ultimate $160,000 would have been impressed
along with the rest of the estate. 

In Lawrence et al., as Exrs. v. Church,
as Exc., 128 N. Y., 324, the court said at page
331: 

"Such expenses are not, as to the
parties to the agreement, expenses of
administration to be deducted  *  *.
They could never have been in the
contemplation of the parties." 

In that case the agreement appears on pages
325 and 326. 
In that case the expenses arose in litigation between
the parties themselves. 

(See Opinion on page 331.) 

In other words, in such case there would surely
be just as much reason and sense in charging up 
against the income of $160,000 all the expenses of
the extraordinary Westcott litigations as there 
would be in charging them up against any other 
part of the same residue. 


51 

And there would be just as much sense in charging
them up against Mrs. Wrenn's $160,000 as
against Mrs. Catt's,--assuming, all along, that the
"agreement" was an "assignment" or "an absolute
assignment." 
(And assuming still further, that there was a 
provision for proportionate income.) 
The "sum of" $160,000 was not marked, was
not dogeared, was no more to be traced than any
part of the same residue. 
The debts of the estate were (relatively) small 
in amount; and the legal expenses of the executors 
would be small aside from the extraordinary
Westcott litigations which Mrs. Catt did not promise
Mrs. Wrenn to pay in exoneration of Mrs.
Wrenn's $160,000. 
When Mrs. Catt was to exonerate Mrs. 
Wrenn it was so provided,--the transfer
tax. 
(Fols. 254, 255, 257.) 
There cannot be infused into the contract exonerations
of expenses other than those covenanted
by Mrs. Catt; for Mrs. Wrenn's only right to any
part of the $160,000 is created and provided for
only by individual contract. 
THE INDENTURE DOES NOT STATE THAT ANY PARTICULAR
PART OF THE RESIDUE SHALL BEAR THE EXPENSES 
OF EXTRAORDINARY LITIGATIONS NOT CONTEMPLATED
BY THE PARTIES. 
As between these two contracting parties such
expenses of such litigations were obviously not
administration expenses of the estate contemplated
as between the two on December 4, 1914, 
when they contracted. 
It might, perhaps, become of comparatively little
importance on the score of actual results to
Mrs. Wrenn, because as between the 2 there will

52 

be comparatively little income left to the residue
if the executors' bills to their attorneys continue
in proportion to their charges hitherto,--and if
such charges are sustained. 
[Assuming all along that the indenture had specifically
provided that Mrs. Wrenn was entitled
to income on $160,000.] 
During the accounting Mrs. Wrenn did not participate
in any objections to lawyers' charges and 
was seemingly not financially interested so long
as she should receive,--"the said sum, to-wit, the
net amount of $160,000",--the amount she contracted
for,--and providing distribution should
follow soon after so that she would receive it. 
The account of the executors was filed December 
15, 1915; and although the "Two-thirds" litigation
had been discontinued without costs at that
time, the Westcott litigants were by the executors 
cited on the accounting;  though Mr. Surrogate
Fowler had not yet decided the Arthur Leslie application
to open the probate. 
The 4 grandchildren of Mr. Frank Leslie were
objected to as improper parties by Mrs. Catt and
Mrs. Wrenn.  And on motion of Mrs. Wrenn were
stricken from the citation as improper parties to
this proceeding. 
The only action by these 4 grandchildren would
have been in equity to impress a trust on the
property passing under the will; and Mrs. Wrenn
was obviously as much interested in not having
her ultimate $160,000 impressed with such a trust
as was Mrs. Catt and the other legatees under the
will,--including Mrs. Wrenn herself. 
Pahlen v. United States Trust Co., 186
N. Y., 178; 
[Also 100 App. Div., 264;  108 App. 
Div., 365]; 
[And numerous other cases]. 


53 

Mrs. Wrenn was obviously interested in having
the application to open the probate thrown out; 
for in her contract she had represented as fact her
heirship and on such heirship only she was to receive
only $160,000 on distribution;  and it would
be an odd situation if such litigation, defended by
the executors and Mrs. Catt in particular, should
eventuate into an expense to be borne solely by
Mrs. Catt,--as between Mrs. Catt and Mrs. 
Wrenn. 
Again, as said in Lawrence v. Church, 128 N. 
Y., 324 at 331: 
"Such expenses are not, as to the parties
to the agreement, expenses of administration
to be deducted.  *  *  *  They could never
have been in the contemplation of the parties." 

Even if Mrs. Catt and the executors had by some
instrument absolutely and unqualifiedly transferred,
set aside and segregated $160,000 for Mrs. 
Wrenn and done so by instrument other than an 
equitable assignment, it would seem that out of 
such fund should be paid all of the expenses of the
application to establish the heirship of the "Leslies" 
and necessarily to establish that Mrs. Wrenn 
and Mr. Follin were not heirs,--or rather out of
Mrs. Wrenn's and Mr. Follin's portions. 

To say that the expenses of defending the Westcott
litigations were or should have been within
the contemplation of the contracting parties as
against Mrs. Catt is to say that the contracting 
parties contemplated that the statements made by 
Mrs. Wrenn that she "represents that she is a 
niece of the said Frank Leslie and one of her heirs 
at law and next of kin" were false [however innocently 
made]; that the parties contemplated or
should have contemplated that they were false;

54 

and that in the face of such representations upon
the faith of which the contracts were made, that
the parties contemplated or should have contemplated 
that the Westcott litigations of which Mrs. 
Catt obviously knew nothing, might be brought. 

POINT XII. 

The answer of Mrs. Wrenn verified
more than one year after the agreement; 
and her proposed findings submitted 
over 2 years after the agreement.

Not the slightest "mention" of "interest" or
"income" or "increment" is suggested in the
"agreement"; nor is claimed [as pointed out in
Ledyard v. Bull, 119 N. Y., at pp. 74 and 75] to
have been "hinted" or "mentioned" in the negotiations
prior to the agreement, nor in the drafts, 
when the bargain was struck and as struck put
down in black and white and signed and sealed 
and delivered. 
"If there had been any understanding that he
was to have interest"
Ledyard v. Bull, at 74 and 75,
"some mention of a matter of such importance"
Ledyard v. Bull, at 74 and 75, 
would have been made.
Particularly, where as in Mrs. Wrenn's answer
of January 28, 1916, her proposed findings, her 
requests on the trial for quick distribution after
January, 1917, and the report ; it is conceded that 
she was not entitled until distribution and only
then out of a fund. 


55 

POINT XIII. 

Findings of fact and conclusions of
law should be made by this Court. 

See Point I. 
See Point III. 
The Referee's report is in such shape that it is
impossible to tell what are findings of fact and
what are conclusions of law. 
The findings, insofar as they are findings of
fact, are such that the Referee was obviously in
error not only in what took place but what the
agreement specifically sets forth on its face. 
The findings, insofar as they are findings of law, 
are directly in conflict with what the agreement
specifically sets forth on its face. 
Of course, the indefinite claim of "increase"
of "interest" or "income" or "increment" came
at the fag end of a long reference. 
There was insufficient time taken up by the attorneys
in the consideration of this matter;  but
that the Referee read the agreement wrong, and
forgot or overlooked the facts as to the making
and delivery, is obvious. 
The 3 papers consisting of the agreement and
the 2 assignments; together with the Follin agreement; 
all dated December 4, 1914; all these 4 papers 
were simultaneously executed and delivered. 

(Testimony H. E. P., fol. 113.)
(Uncontradicted.

The Referee is absolutely in error in finding
[whether as fact or law] that the assignment
[in blank] of the $50,000 remainder was "there-

56

after by an assignment in writing", &c., delivered; 
and the same is true as to the $5000 remainder. 
(Report, fols. 191-193.)
The referee indicates [whether of fact or law] 
that:
"On December 4th, 1914, an agreement in writing 
was entered into between * * * whereby 
it was agreed as follows : 
[This is of course correct.]
(Fol. 187.)
"1. That said Carrie Chapman Catt agreed to 
transfer" the remainder in the $50,000 trust.
[This is of course correct.]
(Fol. 188.)
"2. Said Carrie Chapman Catt further agreed 
to and did by said instrument assign and transfer" 
and does not follow the language of the paper,
- and does not mention paragraph "Fourth". 
[But he "found" Mrs. Catt's proposed 
fact I.]
"3. The said Carrie Chapman Catt further 
agreed to assign and transfer" [ the $500 trust ] 
and
"Thereafter"- did assign and transfer the two 
trust remainders (for. 191).
If by the "agreement in writing" the $160,000 
were assigned then by the same agreement and in 
the same language were assigned the 2 trust remainders,
- and in "Fourth" a conveyance by 
Mrs. Wrenn,- which is either a conveyance or is 
not one.
If it is a conveyance by Mrs. Wrenn (in the same 
language used by Mrs. Catt) Mrs. Catt is entitled 
to findings of estoppel against Mrs. Wrenn establishing 


57
such a conveyance,- "subject to and conditioned 
upon the payment" to Mrs. Wrenn of 
the explicit sums, to-wit, $160,000, the trusts assigned 
and Mrs. Wrenn's specific bequests upon 
distribution.
(Agreement, fols. 254, 258.)
If it is not a conveyance obviously Mrs. Wrenn 
has covenanted to convey on receipt of the same 
identical sums.
The covenants of Mrs. Wrenn, the report itself 
does not even mention,- and yet the very essence 
of the agreement was that Mrs. Wrenn was to 
"convey" her rights as heir (as was Follin),- 
and by the agreement she was not to do so unless 
and until paid the contract price.
[See Follin agreement at fol. 280.]
[See 2nd Follin agreement at fols. 297, 298.]
What the referee says as to income his report 
(at fols. 194, 195) is not clearly stated assuming 
that he was not in error in fact as well as in law.
The agreement permits payment of the $160,000 
out of income derived from the residue,- or 
the corpus,- the will gives the residue and of 
course the "income" to Mrs. Catt.
Indeed the report says "out of any moneys" 
(fol. 194) payable to Mrs. Catt "residuary 
legatee". The report itself does not say out of 
corpus, but then follows provision as to "interest".
The decree says "out of any moneys payable to 
Carrie Chapman Catt as residuary legatee 
under the Will * * * ."
(Decree, fol. 37.)

58
Apparently the Referee says that Mrs. Wrenn 
must wait until decree of final distribution for her 
$160,000.
"At the time of payment" of the $160,000 "out 
of any moneys payable to"  Mrs. Catt "which 
shall ultimately be paid to the residuary legatee" 
is certainly not clear, and becomes less clear on 
study.
The referee "found" Mrs. Wrenn's proposed 
Finding of Law, No. 2,- that, as between the contracting 
parties, Mrs. Wrenn "became entitled to 
the immediate possession" on December 4, 1914, 
of $160,000 "of the Corpus of said residuary estate" 
(fols. 241, 242).
(The Referee "found" Mrs. Wrenn's proposed 
"fact" No. 1. But he also "found" Mrs. Catt's 
"fact" No. 1.)
(Fols. 224, 225.)
If this was only between the two, could the 
executors use the $160,000, or the interest thereon, 
or both in the Westcott litigations?
How could she be "entitled to the immediate 
possession" even as between the two?
Distribution had not been made.
The Will was not yet probated.
The Referee then "found" Mrs. Wrenn's proposed 
conclusions of law No. 3 "that on the 4th 
day of December, 1914," that Mrs. Wrenn "became 
entitled to all the right", &c., of Mrs. Catt 
as residuary legatee "then had" in the residuary 
estate "to the extent of" $160,000 "and to all 
rights, benefits and advantages subsequently accruing 
therefrom."
(Fol. 242.)
Mrs. Wrenn's proposed findings of law No. 4 
"Found" changes the phraseology and meaning 
of her own agreement,- the agreement says nothing 


59
of the sort in fact or law; and provides quite 
to the contrary.
(Fol. 244.)
No. 5 of law proposed by Mrs. Wrenn was refused 
(fol. 244).
In this (refused) proposed conclusion further 
to reform the agreement by substituting a new 
agreement Mrs. Wrenn tried to reach out for all 
the gains, shirk all the losses, and have Mrs. 
Catt shoulder all the expenses (not even contemplated) 
of the Westcott litigation,- one of which 
directly contested Mrs. Wrenn's own heirship.
To such refusal Mrs. Wrenn excepted (fol. 219). 
But Mrs. Wrenn did not appeal.
The refusal of Mrs. Wrenn's proposed conclusion 
of law No. "9". "That there should be an 
immediate distribution of the Estate" in connection 
with the agreement, her answer of January 
28, 1917, and her requests for distribution,- all 
these established beyond peradventure:
(a)
That the $160,000 was payable (only) out of a 
fund.
(b)
Only on distribution.
(c)
That Mrs. Catt never owed Mrs. Wrenn.
(d)
Subject to the 2 assignments of the trust remainders 
and transfer tax.
"out of her (Mrs. Catt's) share of the said residuary 
estate"
(Agreement, fol. 254.)
whether out of principal or interest, Mrs. Catt 
could say

60
                                                                            (e)
was to be paid
       "the said sum, to wit, the net amount of $160,000",
said being
        "the sums hereinabove agreed to be paid to 
her."
                                                                   ____________
The agreement does not say "corpus",--and it 
does not say "interest".
And no court can change the contract.
                                                                   ____________

                                                                  POINT XIV.
                                                The decree should be modified.

The words appearing at fols. 194, 195, as follows:
           "Together with such proportion of interest 
* * * and ending with "to the residuary 
legatee".
should be stricken out, and Findings made and 
the decree modified.
      And the decree should further set worth that it 
is the duty of said Carrie H. Wrenn to tender 
conveyance as provided in Paragraph Fourth of 
said contract before receiving or being entitled 
to said $160,000 or any part thereof.
                                                         Respectfully submitted,

                                                                    HORACE E. PARKER,
                                           Attorney for Mrs. Carrie Chapman Catt,
                                                                                      100 Broadway,
                                                                                             New York City

Service of a copy of within brief is
hereby admitted
New York City, N. Y.
May 18, 1918.

Copy received May 18/18.
George A. Strong
Duer Strong & Whitehead
Attys. for Respondent Carrie H. Wrenn.

Sullivan & Cromwell
Attys. for Respondent Wm. N. Cromwell, Esq.

Edgar J. Brackett
Atty. for Respondent L. H. Cramer, Esq.

Higgins & Higgins, Printers, 48 New Chambers St., N. Y.

Transcribed and reviewed by contributors participating in the By The People project at crowd.loc.gov.