People v. Robinson

Headnote

Where, after the issuing of a common law certiorari to remove into the supreme court for review, proceedings had before referees appointed by a county judge to hear and determine an appeal from the order of commissioners of highways laying out a private road, the relator dies, leaving a will by which she appoints an executor, and authorizes him to control and manage the r real estate devised, during the minority of the devisees, and “ to receive the rents, issues and profits thereof,” and apply them for certain specified purposes, the executor is the trustee of a valid active trust, and as such has the legal title and an actual estate in such real estate ; and is the proper person to continue the proceedings upon the certiorari, as relator, in the place of his testatrix.

An appeal does not lie to the county judge, from the decision of a jury summoned upon the application of commissioners of highways, determining that a private road applied for is necessary, and assessing the damages of a land owner.

Consequently the county judge has no power to appoint referees to hear and determine an appeal of that nature.

COMMON law certiorari, issued by the supreme court, on the application of Mary Keenholts, to A. D. Robinson,

Albany county judge, Titus Rushmore, James B. Wands and John I. Groesheck, referees, to remove into this court for review the proceedings had before the referees, who were appointed by the said county judge to hear and determine the appeal of Jew I. Jewett from the order of the commissioners of highways of the town of Guilderland, in that county, laying out a private road. From the return of the judge and referees to the writ, it appeared that Mary Keenholts, on the 16th day of December, 1854, made application to the commissioners of highways of the town of Guilderland for the laying out of a private road across the lands of Jew I. Jewett, pursuant to chapter 174, laws of 1853 ; and that thereupon the commissioners proceeded, as required by that statute, to obtain a jury to determine as to the necessity of the' private road applied for, and to assess the damages of Jewett. On the 8th day of January, 1855, a jury, selected, summoned and sworn as required by that act, viewed the premises, heard the allegations of the parties, and such witnesses as they produced, and determined that the private road, as applied for, was necessary, and they assessed the damages of Jewett at the sum of $180. On the 11th day of January, 1855, the commissioners laid out and made a record of the road as applied for. On the 23d day of the same month Jewett appealed from the order of the commissioners to said county judge; who, on the „ 23d day of March, 1855, appointed three of the defendants referees, to hear and determine the appeal, and on the 24th day of April, 1855, the referees reversed the order of the commissioners. Mary Keenholts, by her counsel, appeared before the referees at the time of their meeting, and objected to their jurisdiction to hear and determine the appeal, which objection the referees overruled. After the return to the writ was filed in this court, Mary Keenholts died, leaving a will appointing John Keenholts sole executor, and authorizing him to control and manage the real estate'devised, during the minority of the devisees, who were respectively of the ages of eleven and thirteen years, and “to receive the rents, issues and profits”

thereof, and apply them for certain specified purposes. On the petition of John Keenholts, he was substituted as relator, at a special term of this court. When the cause was moved for argument, by the relator, the counsel for Jewett moved to dismiss the writ and all the proceedings, on the ground that the writ had abated by the death of Mary Keenholts, and that the proceedings could not be continued in the name of the executor. The motion to dismiss, and the argument upon the merits, were heard at the same time.