
    Hiram Hitchcock, as Executor, etc., Resp’t, v. Fanny M. Peaslee, et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed April 9, 1895.)
    
    Judgment—Modification-.
    Upon, a motion to sot aside, alter or modify a judgment founded on matters in pais and dehors the record, the general rule is that the relief sought is discretionary.
    Appeal from order of the general term of the supreme court in the first judicial department, which-affirmed an order of special term confirming the report of a referee and denying a motion to require Fanny M. Peaslee to give security for a portion of a trust fund created by the will of Edmund E. Peaslee, deceased.
    
      Robert Hunter McGrath, Jr., for app’lts; C. M. Bovee, Jr., for resp’t.
    
      
      See 63 St. Rep. 871.
    
   Finch, J.

This appeal should be dismissed. The father of the defendant Fanny M. Peaslee by his will gave to her “twenty thousand dollars in trust, the same to revert at her death without, issue equally” to his wife and son. An action was brought by his executors, seeking to some extent a construction of the will, in which it was adjudged that the fund of twenty thousand dollars was payable to the daughter and should be put in her possession, but that she was not at liberty to spend or waste the principal and was bound to keep it securely invested for the benefit of those entitled to the contingent remainder. In pursuance of the decree the money was paid over to the daughter. The testator’s wife thereafter died and the executor of the mother made a motion at the foot of the decree for an order requiring the daughter, who continued to hold the fund as life tenant, to give security for its preservation and as a safeguard against loss or waste. The matter was sent to a referee to take proof of the facts, and it then appeared -that the whole fund had already been lost by unfortunate investments in stocks. Wall street had engulfed it bodily. After this severe loss, the daughter insured her own life to provide for the ultimate restitution of the fund and for a time managed to pay the premiums. The mother on ascertaining the facts protested against the hard remedy, begged the daughter not to continue the policy, nnd promised to forgive her the loss and never to call upon her for the fund. It became difficult for her to bear the annual drain of the premiums, and she then notified her brother of the situation and suggested that he should keep the policies in life until she should be able to do it herself. He refused, and she allowed ten thousand dollars of the insurance to lapse, but kept ten thousand dollars in force. By the will of her mother she has become entitled to about thirty thousand dollars absolutely and ten thousand dollars for her life. On this state of facts the court required her to give security for the one-half of the fund payable to Edward, and she has submitted to the order without an appeal, but the court refused the application as to the ten thousand dollars which was to revert to the mother, and Edward as executor of her will and his associate in that office appeal from the refusal after an affirmance by the general term.

I think it is obvious that the order of the special term rested in its reasonable discretion which was exercised in behalf of the moving parties quite as fully as was justifiable. There was no absolute legal right to have the security sought. The possession of the fund had been adjudged to belong to the- daughter. Whether she should give bonds for its preservation or ultimate payment over was a question dependent upon the after-occurring circumstances, and which the court might answer either way after giving them reasonable consideration. If the daughter, after having lost the fund, was insolvent, an order requiring her to give security would be in effect that she find somebody willing to pay the debt for her to her own brother. If, on the other hand, her mother’s legacy had made her worth three times the amount of the lost fund the court may have deemed the demand for security unreasonable, especially in view of the daughter’s claim that the mother had released the fund to her and discharged the liability. Such a question as that might very well be excluded from a determination upon a mere motion. Where one moves at the foot of a decree it is usually with permission given or reserved in the decree itself, and contemplates orders intended to carry out and effectuate the decree. Here the effort is to alter and modify it It gave the fund without conditions, and is sought to be changed by imposing conditions. Practically it is a motion to set aside the judgment, founded on matters in pais and dehors the record. The general rule in such cases is that the relief sought is discretionary. (Williams v. Montgomery, 60 N. Y. 648.)

The appeal should be dismissed, with costs.

All concur. •

Appeal- dismissed.  