Cassard v. Hinman.

within the statute against gaming, &c., and void. The Court of Common Pleas in England, in Grizewood v. Blane, 20 Eng. L. and Eq. R. 290, held, that a contract for the sale and delivery of certain railway shares, at a certain price, on a future day, was, on the finding of the jury, that it was the intention of neither party actually to buy or sell, a gambling transaction, within the statute, 8 and 9 Vict. ch. 109; by which it is enacted that "all contracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void."

WILLIAMS JUSTICE said "there was ample evidence of a mutual understanding between the plaintiff and defendant that the contract of sale was colorable only, and if so, the transaction was avoided by the statute."

The whole case turned on the question of the intention of the parties, as a question of fact, and the case, at the trial, was put to the jury distinctly upon that issue. Apart from that, the contract could not, it would seem, have been impeached.

In the case at bar, the intention, as admitted by the demurrer, is of equal force in its bearing upon the question in controversy, as would be a verdict on the point.

It was contended on the argument that the words in the English statute "by way of wager," give a broader application to it, than our own statute possesses; but to this I do not agree, nor do I see how the case of Grizewood v. Blane could have been otherwise decided, had the language of that statute been identical with our own.

The language of our own statute is fully as comprehensive, if not more so, than that of the English. It is, that, "all wagers, bets, or stakes made to depend upon any race, or upon any gaming by lot or chance, or upon any lot, chance, casualty, or unknown or contingent event whatever, shall be unlawful," and "all contracts for or on account of any money, or property, or thing in action, so wagered, bet, or staked, shall be void."

It is much broader than our former statute, entitled "An Act to prevent horseracing;" 1 R. Laws 223, § 5. In respect to this former statute, Justice Van Ness, in Bunn v. Riker, 4 J. R. 426, expressed his wish that, the Court had been prepared to decide that that statute had made all wagers illegal. In that case, however, it was not necessary to decide upon the construction of the

Cassard v. Hinman.

statute, as it was one of betting on the result of an election, which was held void at common law.

A wager is something hazarded on the issue of some uncertain event. A bet is a wager, though a wager is not necessarily a bet.

The statute was, evidently, intended to prohibit all that class of agreements by which money was to be lost or won, according to the event of a mere future contingency; not hazards of buying or selling in ordinary trade in reference to a supposed future condition of the market, and by the result of which money might be lost or realized; but the putting at hazard, either a certain sum ascertained, as in the case of a bet, or a sum to be determined as to its amount by the event on which its loss or gain is to depend; as in the case of an agreement to pay mere differences. The sole inducement to such an agreement, is the hope of winning that sum in the turn of the wheel of chance. It has no respect to trade, other than as an element entering into the combinations which are to affect the event, neither has it any respect to the exercise of that honest judgment in respect to the future, and that wholesome industry in the pursuit of one's lawful business, which it is the policy of the law to encourage; but it is simply and purely a betting or staking of money on the event of a mere uncertainty, and has all the elements of a pure game of chance. Such agreements are fraught with all the evils against which the statute in question was intended to guard, and when the Court perceives that the real nature of the transaction, however unobjectionable in the form in which the parties may have seen fit to clothe it, is to do that which comes within the prohibition of the statute, it will, and as long as the statute stands on our books, ought to look beyond the letter of the contract and refuse its aid to its enforcement.

That the statute in question was thought, by the Legislature which enacted it, comprehensive enough to embrace all contracts in which the gain or loss was intended to be dependent on an uncertainty, is evident from § 10, which, expressly, excepts from its operation, contracts of insurance, when made in good faith, and for the security or indemnity of the party insured.

A wager policy, or a policy in which the insured has no interest, and which is in effect a mere betting on the chances

Cassard v. Hinman.

of a ship's safe arrival, was, before this statute, held to be a valid contract; but the Legislature, apprehensive that the generality of the terms used in § 8, might embrace honest transactions of insurance, as well as those which were of a mere gambling description, expressly provided as above, by § 10, that insurances which were of a bona fide character, and intended as actual contracts of indemnity, should not be affected by the statute.

It is said the present transaction is analogous to that of buying and selling stocks, of which the vendor has not the possession or title, &c., and that, as the Legislature has expressly forbidden the latter, it is to be presumed, that transactions like this, were not intended to be prohibited by the act against gaming.

This may be a true inference, so far as the contract of sale and purchase, expressed by the agreement, is concerned. On its face the contract is valid, and not within the statute. There is no statute forbidding the buying or selling of property (other than stocks) at a future time, merely because the party has not the possession or ownership of it at the time; but it does not follow that, when the contract assumes the character of a wager, it does not fall within the prohibition of the statute.

It may be said that § 7 of the Stock Jobbing Act, which expressly declares that wagers concerning the present or future price of stocks, shall be void, was useless, if section 8, of the Gaming Act, was as broad in its meaning as I contend for.

To this, it is an answer to say that, in the Stock Jobbing Act, the Legislature was dealing with a single distinct mischief, and not only making void, contracts in respect to this species of property, which it did not intend to avoid in respect to any other, but providing by way of remedy, that any money paid by way of premium or difference in respect to such contract, or in pursuance of a wager, as to the present or future price of stocks, might be recovered back. There was a propriety, therefore, in making a special enactment as to such wagers; and the Legislature may well have supposed, that in respect to all others, they were already sufficiently prohibited by section 8 of the Gaming Act.

It is impossible to read the present transaction in the light of this answer, other than as a contract to stake a certain sum, to be ascertained by the event, on the chance of an unknown contingent event that it had no respect to trade-that it is of the

Conover v. Hoffman.

precise character with that of a betting on an election, or on any other uncertain event-that it is fraught with the very mischief which the Statute was intended to extirpate, and is, therefore, within its spirit and meaning-that it is in effect a wager, and, therefore, void.

Judgment at Special Term affirmed.

GUSTAVUS A. CONOVER and JOHN J. CONOVER, v. ANN CORNELIA HOFFMAN.

A general power to sell real estate given by will to the executors, as such, and not by their names as individuals, is not revoked by the refusal of one of them to act, but survives to, and vests in those who qualify.

Such a power is not revoked by a codicil devising the estate to the executors in trust to make an equal division thereof among the children of the testator and their heirs. When there are no express words of revocation, the provisions in a codicil are never construed as revoking those of the will, unless they are so entirely repugnant that, to give effect to those in the codicil, those in the will must wholly fail.

There is no such repugnancy between a power to sell and a trust or power to divide. A general power to sell given to executors, includes an authority to sell for the payment of debts; and to the execution of such a power, the rights of devisees and heirs have always been held subordinate; and the power previously given can no more be taken away by a direction to divide the estate than by a devise of the estate itself.

When the power exists for any purpose, a bond fide purchaser is protected, no matter for what purpose the power is in fact exercised. A power to sell, and a power to divide, are so far from being incompatible, that the exercise of the former may be necessary to the proper execution of the latter; that is, a sale may be necessary to enable the trustees of the power to make a just and equal division. Held, in the principal case, that a purchaser from the executors acquired a valid title, disentangled from any trust, and freed from any limitations, created by the will. Judgment at special term affirmed with costs.

(Before BOSWORTH & SLOSSON, J.J.)

Heard, March 2; decided, May 16.

THIS action was brought to compel the specific execution of a contract relative to the purchase and conveyance of real estate. . The contract is set forth in the complaint, and admitted in the answer, and the defendant, as purchaser, refused to perform it,

Conover v. Hoffman.

on the ground that a good title could not be given by the plaintiffs. The cause was referred to Murray Hoffman, Jun., to take the testimony and report the same, with his opinion thereon. The referee, in January, 1857, made a report, stating all the material facts of the case, and his conclusions of law therefrom. His report and opinion are in these words:

"To the Judges of the Superior Court:

"The subscriber, to whom it was referred by an order of this Court, made on the seventh of May, 1856, to take testimony as to the validity of the plaintiffs' title to the lands and premises described in the complaint, which are the subject of this action, and to report such testimony with his opinion thereon, reports that he has been attended by the attorneys of the plaintiffs and defendant, and has taken the testimony hereto annexed.

"The following opinion thereon is submitted.

"This action was commenced on the fourth of April last, to enforce the specific performance of a contract.

"The complaint states that on the 26th of January, 1856, the plaintiffs entered into a contract therein set forth with the defendant, to sell to her the house and lot known as number 41 West Eighteenth street, in the city of New York, and on the first of April ensuing tendered to her a warranty deed, properly executed and acknowledged as required by the contract, and demanded of her payment of the purchase money in accordance with its terms.

"The complaint avers that the plaintiffs have good title to the premises, free and clear from all incumbrances, and have complied with every stipulation of the said contract, but that the defendant refuses to comply with or perform the same.

"The answer acknowledges the contract as stated in the complaint, and that the defendant declined to receive a warranty deed in due form tendered to her, on the ground of defective title, which defect is therein stated as follows:

"That the title to the premises was in one James R. Smith at the time of his death, but that said Smith left a will and codicil thereto, making such dispositions of his estate that his executors had not the power to convey his real estate in fee, and make good the title thereto. That they, or some of them, made a deed