[225 N. Y.]

Opinion, per COLLIN, J.

[Jan.,

Building Loan Banking Co., 146 N. Y. 260; Corn Exchange Bank of Chicago v. Blye, 119 N. Y. 414; Card v. Meincke, 70 Hun, 382.) A provision withholding or awarding costs is a substantive part of a judgment in an action in equity and cannot be amended. (Stevens v. Veriane, 2 Lans. 90; Smith v. Smith, 121 App. Div. 480; Foley v. Foley, 15 App. Div. 276.)

The record presents no fact which makes inapplicable to the amending judgment in the instant case those rules. They constrain us to reverse the judgment of the Appellate Division and the part of the amending judgment of the Special Term appealed from. It is urged, with reason, that the bank might, with complete safety, have prevented the prolonged litigation by an action of interpleader under the Code of Civil Procedure (Section 820a) or by being throughout less litigious and heedless of the plaintiff's equities. Costs of the appeals should not be awarded it.

The judgment of the Appellate Division and the judgment of January 26, 1915, of the Special Term so far as appealed from should be reversed, without costs

HISCOCK, Ch. J., CHASE, CUDDEBACK, HOGAN, MCLAUGHLIN and CRANE, JJ., concur.

Judgment accordingly.

1919.]

Statement of case.

[225 N. Y.]

MARY R. WRIGHT et al., as Trustees under the Will of JAMES H. WRIGHT, Deceased, Respondents, v. MARY R. WRIGHT et al., Defendants, NEW YORK PUBLIC LIBRARY, Respondent, and Knickerbocker HOSPITAL, Appellant.

Testamentary trust — gift of remainder of residuary estate to a library - consolidation of such library with a municipal public library and surrender of its charter before termination of the trust estate - legacy to library did not vest on death of testator and library having ceased to exist before life estate terminated, the legacy lapsed and became property as to which testator died intestate and passed to his heirs and next of kin.

1. The will of testator provided that one-third of his residuary estate should be held in trust during the life of a named beneficiary. After her death and after payment of certain specific bequests he directed that a certain sum be paid from this portion of his residuary estate to the Washington Heights Library in the city of New York upon condition that it should be maintained at all times as a free circulating library. The rest of the one-third so bequeathed he directed to be given an institution of which the defendant, the Knickerbocker Hospital, is the successor. An act was passed (L. 1901, ch. 57) whereby it was in substance provided that any corporation carrying on a library in the city of New York might convey and transfer all of its property to the New York Public Library on such terms, conditions and limitations as might be agreed upon between the two parties; also that the regents might "accept a surrender of the charter of the library corporation so conveying its property, and forever discharge its directors or trustees from their trusts in the premises," also that any devise or bequest contained in any last will and testament made to any corporation conveying its property under the authority of this act, whether made before or after such conveyance, shall not fail by reason of such conveyance, but the same shall enure to the benefit of " the New York Public Library. After the passage of this act and before the expiration of the foregoing life trust, the Washington Heights Library took proper steps to transfer its property to the New York Public Library and surrender its charter, and subsequently the board of regents in accordance with the provisions of the statute accepted a surrender of the charter of the former library corporation.

[225 N. Y.]

Statement of case.

[Jan.,

The sum bequeathed to the Washington Heights Library is claimed by the New York Public Library under the residuary clause. Held, that the bequest in favor of the Washington Heights Library did not vest on the death of the testator; and that before that corporation became entitled to its legacy under the will it had absolutely ceased to exist and the legacy, therefore, lapsed and did not pass to the New York Public Library as its successor under the foregoing proceedings. (Matter of Bergdorf, 206 N. Y. 309, distinguished.)

2. While as a general rule a residuary clause will include and be applicable to lapsed legacies, it is not the rule in respect of a residuary clause where the legacy which has failed and lapsed was itself part of a residue. In such case, on failure of the intended legacy of part of the residuum, the part as to which disposition has failed will go as in case of intestacy, and the residuum passing under the residuary clause will not be augmented by a "residue of a residue." Hence, the lapsed legacy does not fall into the residuum of the third residuary portion and does not pass under the residuary clause applicable to that portion to the appellant Knickerbocker Hospital, but becomes property as to which the testator died intestate and passes to his heirs and next of kin.

Wright v. Wright, 173 App. Div. 966, affirmed.

(Argued December 12, 1918; decided January 14, 1919.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 24, 1916, affirming a judgment in favor of defendant, respondent, entered upon the report of a referee in an action brought to settle judicially the accounts of the plaintiffs as trustees under the will of James H. Wright, deceased.

Eli J. Blair and Frank H. Platt for appellant. The legacy under review was intended for the Washington Heights Library and not the New York Public Library, Astor, Lenox and Tilden Foundations. This was testator's intent as evidenced by his will and all the surrounding circumstances. (Matter of Thompson, 217 N. Y. 111; Matter of Briggs, 180 App. Div. 752; Lewis v. Palmer, 167 N. Y. Supp. 1053.) The legacy in issue could not

1919.]

Opinion, per HISCOCK, Ch. J.

[225 N. Y.]

vest in the Washington Heights Library until the date of the death of the life tenant. The said Washington Heights Library having become defunct before that date, the legacy lapsed. (Matter of Tamargo, 220 N. Y. 225; Matter of Wells, 113 N. Y. 396; Union Trust Co. v. Thompson, 87 Misc. Rep. 31; Sherman v. Richmond Hose Co., 101 Misc. Rep. 62; Trust Co. of America v. United Box Board Co., 213 N. Y. 334; Godwin v. Liberty- Nassau Building Co., 144 App. Div. 164; Matter of Bain, 104 Misc. Rep. 508; Booth v. Cornell, 2 Redf. 261; Crum v. Bliss, 47 Conn. 592.)

George L. Shearer for defendant, respondent. The conveyance by the Washington Heights Free Library to the New York Public Library effected a consolidation of the two corporations. (L. & N. R. R. Co. v. Kentucky, 161 U. S. 677; Hale v. C. R. Co., 161 Mass. 443; McVickar v. Ross, 55 Barb. 247; Hurd v. N. Y. & C. S. Laundry, 29 Misc. Rep. 183; Montgomery Co. v. Boring, 51 Ga. 582; Chicago Ry. Co. v. Ashling, 160 Ill. 373.) By express provision of law the New York Public Library is entitled to the legacy given by Mr. Wright's will. (L. 1901, ch. 57.) The legacy to the Washington Heights Library vested at the testator's death. (Cons. Laws, ch. 50, § 59.) If the legacy to the library had lapsed, the Knickerbocker Hospital would not be entitled to that legacy. (Kerr v. Dougherty, 79 N. Y. 327; Matter of Hoffman, 201 N. Y. 247; Herzog v. Title Guarantee & Trust Co., 177 N. Y. 86.)

HISCOCK, Ch. J. The questions which are presented to us upon this appeal arise under and in connection with the will of one Wright. For several years before his decease Mr. Wright lived in the territory known as Washington Heights. While this was located within the limits of New York city it was really a community by

[225 N. Y.]

Opinion, per HISCOCK, Ch. J.

[Jan.,

itself, having local and distinct interests and institutions. Mr. Wright, who was a man of large means, became interested in at least two of these institutions which are the contending parties upon this appeal. These were the Washington Heights Library, a corporation of which the name was subsequently changed to that of Washington Heights Free Library, and the Manhattan Dispensary, a corporation of which the name was subsequently changed to that of Knickerbocker Hospital. Without going too much into details it may be stated generally that down to and for several years after the death of Mr. Wright the former institution maintained a public library which possessed as one of its features that of free circulation of books in the community in question. Mr. Wright seems to have been a contributor to the support of these institutions during life and he attempted by his will to make generous provision for their support after his death.

He died in 1894 and thereupon his will was admitted to probate. It disposed of a large amount of property and most of its provisions are not of any consequence in this discussion. After making many specific bequests he made provisions which present the questions now under consideration. He provided that in case he died. without issue, which was what happened, his residuary estate after the above bequests should be divided by his executors into three parts and he provided for the disposition of the third of these residuary parts as follows:

'My executors and trustees shall hold the remaining one-third part of my residuary estate in trust to receive the rents, issues and profits thereof during the life of my said sister (duly designated in the will) and to pay the same to her or in case of her incapacity to apply the same for her personal and exclusive use, and after her death either after, before or with me, to pay or apply such income and principal as follows (and then after various specific bequests):