text:
    In the Matter of Priscilla C. Drinker.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Trustees—Testamentary—Petition to pay incomes—Plea in abatement.
    If a party who is required to answer any asserted liability, desires to rest upon a defense in the nature of a plea in abatement, that another proceeding is pending for the same cause, it is his duty to make the substance of the defense clearly apparent. Quaere, whether such a plea in this proceeding can be applied.
    Appeal from order of surrogaté directing the trustee to pay to the respondent the sum of $1,000 for account of income.

      Ovide Dupre, for app’lt; J. 8. Davenport, for resp’t.
   Brady, J.

The prayer of the petition in this proceeding is that the trustee be ordered to pay to the petitioner the balance of the income of the estate unpaid and also that she be personally charged with the costs of this proceeding. As a part of the petition there appears to be a letter dated September 27, 1886, directed to the trustee signed by the petitioner in which it is said that fully two years had expired since any money for income was paid to the writer and that there was a large amount due.

The objection interposed by the trustee was in the nature of a plea in abatement, she alleging that at the commencement of this proceeding there were two others pending in the surrogate’s court for substantially the same cause. But it has not been made so clearly apparent as to justify the application of the rule if it may be applied herein that another ■proceeding is pending for the same cause and is a bar to this.

The statement by the trustee is that there are two proceedings, the first of which in order of time was commenced on or about the 10th of December, 1881, and which is still pending but has recently been decided by the surrogate and in reference to which a proposed decree has been served. It cannot be assumed in the absence of any evidence on the subject that that decree will embrace anything occurring subsequently to December 1881. She also alleges that the second proceeding was commenced on the 16th of February 1886, and an order made requiring her to file her account. But it appears that from that proceeding an appeal was taken. The petition states the receipt of income from September 1885 to September 1886, and for the months of September and October amounting to more than the sum which the surrogate in this proceeding directed should be paid and the proceeding therefore clearly relates to income accruing subsequently to the presentation of her last petition in February, 1886. There is much confusion in the dates of these various elements in the papers and they have not been distinctly and clearly set forth even by the briefs. But nevertheless sufficient appears to satisfy the inquiring mind that there are factors which were not embraced within the proceeding commenced in February, 1886, even if that could be used as a reason why this proceeding should not be entertained.

If a party who is required to answer any asserted liability desires to rest upon a defense in the nature of a plea in abatement it is his duty to make the substance of the defense clearly apparent. This has not been done in this case. On the contrary, so far as the subject is eliminated from "the record there would seem to be no justifiable pretense for the interposition of such a plea.

The order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and Daniels, J., concur.


source: Caselaw Access Project

author: Brady, J.

license: Public Domain

text:
    In the Matter of the Petition of J. Hooker Hammersly to Intervene, etc.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. Will—Probate of—Code of Civ. Pro., 2617, 2621 and 1865.
    It is necessary for a person in order to avail himself of the provisions of the Code, sections 2617, 2621, 1865, to establish by competent proof that he belongs to one of the classes of persons specified, and he must also prove the provisions of the prior will.
    2, Same—Revocation in will.
    The will admitted to probate expressly revokes all former wills and thus in terms unmistakable expresses the intentions of the testator.
    Appeal from order dismissing application.

      John E. Parsons, for app’lt; James C. Carter, for resp’t.
   Brady, J.

The petitioner sought to intervene in the proceedings for the probate of the will of Louis C. Hammersly, and his application rested upon the assertion, that a prior will was in existence at the testator’s death, in which he was named as a legatee or devisee, and which was still in existence or had been fraudulently destroyed. The sections of the Code applicable here are 2617, 2621 and 1865. ' By the first of these a legatee or devisee named in a will, may be allowed to appear, but the right to do so, is of no avail as appears from the other sections, when the object is to establish the prior will “ unless the will was in existence at the time of the testator’s death, or was fraudulently destroyed in his lifetime, and its provisions are clearly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness,” and it became necessary for him therefore by competent proof to establish his claim. He failed in both respects; not having shown either that he was a legatee or devisee, or the provisions of the prior will as required by the statute. The sections referred to are not new. The rules embraced in them are only rehabilitated. 2 Rev. Stat. 68. sec. 67, Knapp v. Knapp, 10 N. Y., 278; Lafferty v. Lafferty, 5 Redf., 326; Grant v. Grant, 1 Sand. Ch., 235.

The petitioner urges by his counsel that circumstances creating the grave suspicion that the prior will was destroyed have been shown, and that the proponent of the will offered for probate should not only have been called upon to respond to the charge thus initiated, but that he should be permitted to prove declarations of the testator affecting the designed continuance by him of the prior will and the intention not to revoke it. The latter question has called forth the best efforts of the learned counsel for the petitioner, inasmuch as the learned surrogate rejected the evidence suggested after a deliberate consideration of its admissibility, expressing his views fully and maintaining their correctness by due authority.

It seems to be quite enough, however, for the purposes of this appeal to declare that the petitioner did not establish his right to intervene, under the rules governing his application for that purpose. He did not, as already said, prove that he was of any of the classes of persons as alleged by him, so interested or identified with the prior will, as to require a direction that he might intervene. And this failure of proof necessarily involved another, which in fact occurred, namely, to prove the provisions of the prior will, definitely or indefinitely. With these legal obstacles in limine, a discussion of the admissibility of evidence affecting the intention to revoke, would be obiter dictum, and. will not, therefore, be indulged in. In this case, however, it may be said that, in addition to the presumption of law, that a will proved to have had existence, and not found at the death of the testator, was destroyed, animo revocandi. Knapp v. Knapp (supra).

The later will now admitted to probate expressly revokes all former wills, and thus in terms unmistakable expresses the intention.

For these reasons, the order appealed from should be affirmed.

Van Brunt P. J., and Daniels, J., concur.


author: Daniels, J.

text:
    Michael Shaughnessy, Resp’t, v. George K. Chase, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. Arrest—Order of—Grounds fob granting.
    This action -was brought to recover damages for the conversion by the defendant of certain stock and dividends received from the same. An order of arrest was issued upon the affidavit of the plaintiff, which set forth and stated the purchase of the shares by the defendant for the plaintiff with money furnished to him by the latter; it was further stated that the shares were left on deposit and in the possession of the defendant, and that while they so remained he received scrip dividends upon them; that the defendant had sold the shares, and refused to deliver them or pay over the dividends to the plaintiff, but had converted them to his own use. Held, that the affidavit sufficiently stated a case against the defendant to warrant the making of the order of arrest.
    2. Same—Affidavits in opposition—Necessity to consider.

      Held, that it was necessary to consider whether this affidavit was not so far overcome in weight and effect by affidavits on behalf of the defendant as to require the order of arrest to be vacated, for although the action was for conversion of property, the plaintiff had no more right to subject the defendant to an unauthorized arrest than if the charges upon which the order rested were not a portion of the subject matter of the cause of action.
    3. Same—Action for conversion—When not maintainable.
    The proof by the affidavits presented by the defendant concerning his • alleged misconduct, in opposition to those of the plaintiff, decidedly preponderated in his favor and tended to show that the shares had been sold at the desire of the plaintiff and under his authority Held, that an action for their conversion could not be maintained by the plaintiff.
    4. Same—When vacated—Order void in part cannot stand.

      Held, that the claim for conversion forming the larger part of the plaintiff’s cause of action, the order of arrest could not be sustained, for it is not allowable to include with a cause of action on which a party may be arrested another upon which the law will not permit him to be held to bail. That the order being void in part, must be'wholly vacated and set aside.
    Appeal from an order denying a motion to vacate an order of arrest.

      Clifford A. H. Bartlett, for app’lt; Christopher Fine, for resp’t.
   Daniels, J.

The action was brought for the recovery of the value of three thousand shares of the preferred stock of the Northern Pacific Railroad Company, and the dividends received from the same, which were alleged to have been converted by the defendant to his own use. The order of arrest was made on the affidavit of the plaintiff, which set forth and stated the purchase of the shares by the defendant for the plaintiff with money furnished to him by the latter. It was further stated that the shares were left on deposit and in the possession of the defendant, and while they so remained, he received scrip dividends upon them, amounting to the sum of $33,300, that the defendant had sold the shares and had refused to deliver them, or pay over the scrip dividends to the plaintiff, but had converted the shares and the dividends to his own use. This affidavit sufficiently stated a case against the defendant to warrant the making of the order of arrest, and the only question which it is necessary now to determine is whether it was not so far overcome in its weight and effect by the affidavits on behalf of the defendant, as to require the order of arrest to be vacated. For while the action was for the conversion of property, the plaintiff had no more right to subject the defendant to an unauthorized arrest, than he would if the charges upon which the order rested were not a portion of the subject-matter of the cause of action. Liddell v. Paton, 7 Hun, 195.

The defendant in his affidavit very generally denied the material statements contained in that made by the plaintiff. But its force and effect were not wholly dependent upon these general denials. For they were followed by a further and detailed statement, to the effect that the transaction between these parties out of which the controversy arose, included the previous purchase by the defendant of six thousand shares of the preferred stock of the railroad company. And that after making this purchase a proposal was made by him to the plaintiff to take a half interest in the shares, which the plaintiff consented to do; that the shares remained in this condition upon a falling market when the plaintiff became desirous of selling them. But to this it is stated, that the defendant declined to assent, and finally an agreement was made between the parties, by which the defendant took the stock off the hands of the plaintiff. And that this was the completion of the dealings between these parties concerning this stock.

Upon this affidavit alone, unsupported by anything beyond the assertion of the defendant, it may be that the order should not be set aside. But the case does not remain dependent upon this affidavit. For other proof has been produced having a tendency to corroborate the statements made by the defendant, while the plaintiff’s case depends upon the affidavit on which the order of arrest was made. For the second affidavit made in answer to the defendant’s application to have the order vacated, has added no real weight or force to the case as it was first presented. The defendant states the fact to be that the first affidavit of the plaintiff was exhibited to him before it was verified, and that in a conversation which afterwards took place between these parties, the plaintiff stated that he had not sworn to the affidavit and should not do so. And this statement is further maintained by an affidavit to the like effect made by Herbert D. Chase, the defendant’s son. The case as it was presented on behalf of the plaintiff was further met by the affidavit of Julia Platt, which seems to have been obtained and presented by the plaintiff himself. For while this affidavit states the fact to be that the defendant informed the affiant that he held 3,000 shares of the preferred stock of the railroad company as the agent of the plaintiff, it still adds a further statement of the defendant to the effect, that the plaintiff had directed him to sell the shares, and that he persisted in that direction until a sale of the 3,000 shares had been made. This conversation, as well as the others mentioned in this affidavit sustaining the charge that the defendant had purchased the shares for the plaintiff, was also supported by the affidavit of Antoinette Wood. The account given of the state and condition of their business by the defendant was also supported by the affidavit of John N. Moore, who related a conversation between these parties concerning a further dealing in other stocks. And in which when the parties were present, the defendant is related to have expressed a willingness to become interested to the amount of $10,000 in connection with the plaintiff Mr. Shaughnessy, but stated that he was a little short of ready cash at the time as he was carrying quite a good deal of the preferred Northern Pacific stock, and that the plaintiff herein Mr. Shaughnessy was also carrying through him, the said Chase, an equal, or large amount of the said preferred stock, or to that effect.” It was also affirmed by the defendant that his transactions with the plaintiff were made the subject of another action upon an account in the superior court of the city of New York. But without placing any particular weight on that circumstance, as the identity of the causes of action has been denied by the plaintiff, it is quite evident that the proof concerning the alleged misconduct of the defendant decidedly preponderates in his favor. If as the affiant Platt stated the fact to be, and it seemed to have the sanction of the plaintiff himself, the shares had been sold at his own desire and under his authority, an action for their conversion could not afterwards be maintained by the plaintiff. And as the claim for such a conversion formed the larger part of the plaintiff’s cause of action, the order of arrest could not be sustained, for it is not allowed to include with a cause of action on which the party may be arrested, another upon which the law will not permit him to be held to bail. The order being bad in part is required wholly to be vacated and set aside. The same result will follow from the fact of the dealings of the parties being confined to the shares stated by the defendant to have been purchased by himself, and in which the plaintiff was afterwards with his assent allowed to participate. For if that was the arrangement between these parties, and the defendant, with the plaintiff’s assent, took the plaintiff’s interests in these shares, and closed their transactions in that manner, then there would be no cause for arrest. And that the defendant was carrying the shares for the plaintiff is sustained by the statement contained in the affidavit of Mr. Moore, and if he was simply • carrying them the case does not disclose any other arrangement or understanding under which that was being done than that mentioned in the affidavit of the defendant.

As this case is presented by these affidavits it has not been made out with that degree of clearness in favor of the plaintiff as will sustain the order made for the defendant’s arrest. It was considered by the justice presiding at the special term as one of the closely controverted cases with which he ought not to interfere. But the view which appears to be best warranted by the affidavits is that considering them altogether an order of arrest should not be made upon them. But the order appealed from should be reversed, with ten dollars costs, and also disbursements, and an order entered setting aside the order of arrest.

Van Brunt, P. J., and Brady, J., concur.


text:
    Peter A. Welch et al., Resp’ts., v. Minnie Tobias et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Fraudulent conveyance—Though fraudulent as to creditors good BETWEEN PARTIES.
    A conveyance of property was set aside on the ground that it was made to defraud creditors at the suit of certain creditors of the grantor and an order directing a sale of said property, and that whatever surplus might remain out of the proceeds, after paying the claims of said creditors, should be paid to the city chamberlain. Held, that as to all other parties not assailing or questioning said deed, it conveyed the property to the grantee and that she was entitled to whatever surplus remained. That the direction that it . be paid the city chamberlain was error.
    Appeal from a judgment recovered at the special term.

      John E. Parsons, for app’lts; Henry Welile, for resp’ts.
   Daniels, J.

By the judgment which was recovered in the action, a deed of real estate made by Minnie Tobias to Bertha Abrams was held to be fraudulent and void as against the plaintiffs, who were judgment and execution-creditors of the grantor. She was engaged as a partner in business with A. Sinsheimer. Her husband preceded her in the business in that relation, but he with the consent of the other partner sold out his interest to his wife, who was represented to be responsible for the debts of the firm, because she owned a house in Fiftieth street which she after-wards conveyed to her mother. After she became interested in the business it appears to have been unsuccessful, and she conveyed this real estate by deed to her mother in consideration of an alleged preceding indebtedness of upwards of $3,000. The evidence given upon the trial by the partner, Sinsheimer, was to the effect that a conversation took place between himself and Mrs. Tobias when Mrs. Abrams was present concerning the business, and this property in which Mrs. Tobias stated she did not. owe anything to any body. Bothi herself and her mother, however, denied so much of this conversation, and testified that her mother had loaned to her $3,000 in Pittsburg, in 1877, and that she •had afterwards loaned her the sum of $1,000, together with other similar amounts. But no vouchers, or other written evidence was produced authenicating these loans, or the indebtedness of Mrs.' Tobias in any sum to her mother. The deed of the property is dated the 12th of September, 1882, and it was not recorded at or near the time when it was executed, and after its delivery these parties continued to occupy the property described in it. Before it was executed the grantee testified that she saw that her daughter could not pay her, and then she says: I told her to give me the house and I would give her what she needs, so much money I give her when she needs something. * * * If she needs five dollars or ten dollars, I am sure I would not let my daughter go without money.” But how much she had paid her in this manner was not shown in the case.

The evidence which was given, however, direct and circumstantial, did authorize the justice presiding at the trial, to infer that the object of making the deed was to place the property beyond the reach of the creditors of the grantor, and at the same time to reserve to herself some benefit from the title being conveyed to her mother, and that this understanding was observed and carried into effect after the deed itself was delivered. And while the testimony was not very forcible upon this subject, as it rarely is in this class of cases, the court had the right to believe that the parties were actuated with this fraudulent intent, notwithstanding the affirmance of the honesty of the transaction by the two parties to the conveyance.

But while it was entirely right to set aside the conveyance as to the plaintiffs and to direct a sale of the property for the payment of their judgment and of the costs of this action, there was no authority for directing the surplus of of the proceeds to be paid into the hands of the city chamberlain as that has been done by the judgment; As to all other parties not assailing or questioning this deed it conveyed the title to the property to the grantee, and whatever surplus might remain out of the proceeds after making such payments belonged directly, and should be paid, to her. This direction contained in the judgment should be reversed, and a further direction inserted in it requiring the payment of the surplus proceeds to be made to Bertha Abrams. And as' so modified the judgment should be affirmed without costs of the appeal to either of the parties.

Brady and Bartlett, JJ., concur.


author: Van Brunt, P. J.

text:
    Ethelbert Swezey and ano., Appl’ts., v. Henry Solomon and ano., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 14, 1887.)

    Evidence—Immateriality of evidence as to the result of other litigations BETWEEN THE PARTIES.
    In an action for goods sold and delivered, the defense being the inferior quality of the goods, it is improper to admit in evidence the result of other litigations between the same parties as to other sales.
    Appeal from judgment in favor of defendants, entered on the verdict of a jury at circuit, and from- order denying motion for new trial.

      L S. Wood, for app’lt; George W. Poucher, for resp’t.
   Van Brunt, P. J.

The complaint in this action alleges

a sale and delivery by the plaintiffs to the defendants of certain flour. • The answer denied the sale of the flour and set up that the flour mentioned in the complaint was agreed and warranted by the plaintiffs to be of a good, sound and merchantable quality, and fit for consumption and use for human food; but that the same was unsound in quality, unwholesome and unfit for human food. Evidence was offered upon both sides in reference to the issues thus raised; the plaintiffs claiming a sale of the flour and that it had been accepted by the defendants, and the defendants claiming that there was no sale and that the flour was worthless. One of the plaintiffs was called as a witness on his own behalf and testified in respect to the transactions mentioned in the complaint. One" of the questions involved was as to the relations to the plaintiff of certain persons, who, it is claimed, were the agents of the plaintiffs in reference to this transaction. Upon cross-examination, after the witness had been examined in reference to the shipment of the flour in question, he was asked the • following question: “Please state whether Haines & Schley had previous to June, 1883 (which was the month of the first transaction mentioned in the complaint) sold for your account flour to the defendants and other parties at Savannah ?” To which the witness answered, “Yes, I said that before.” He then asked: “Prior to this sale in suit, June, 1883, had you sold through your agents, Haines & Schley, to the defendants other flour within a short time prior to that?” This question was objected to as irrelevant and incompetent; the objection was overruled and an exception taken. The witness answered, “That I cannot state without the aid of my books.”' “Don’t you know the fact that the defendants had made a claim against your firm for damages growing out of that flour without your books ?” This question was objected to as irrelevant and immaterial; the objection was overruled and an exception taken. The witness answered, “Give me some date to go by; I do not understand the question.” “About the time of the commencemencement of this suit by you against the defendants, do you know the fact that the defendants sued your firm for damages resulting from other sales of flour made within a short time of this through your agents down there?” This was objected to as irrelevant and immaterial; the objection was overruled, on the ground that it was proper to refresh the witness’ memory, and the plaintiffs excepted. The witness answered, “I do; they sued and recovered a verdict against us.”

Thus the defendants were allowed to give evidence in respect to other litigations which had taken place between the defendants and-the plaintiffs, in which the defendants had claimed damages of the plaintiffs in respect to other transactions in flour; and the witness was compelled to state that such litigations had existed, and that they had resulted in a verdict against the plaintiffs.

This evidence tended very materially to the injury of the plaintiffs. It was made to appear thereby that the plaintiffs had in previous instances shipped unsound flour, and, therefore, the jury were probably led to the conclusion that the flour in suit was damaged more easily than would have been the case had this evidence not been before them. The question as to other litigations between these parties was entirely immaterial. It had no bearing upon the issue involved in this suit. The evidence in the other case may have been essentially different from the one at bar; and the jury in the case at bar should not have had before them the result of other litigations which might have prejudiced them against the claim of the plaintiff in this action. It is very evident that the learned judge in the ruling which he made upon this question, had not before his mind, nor was his attention called to this tendency of the evidence. The evidence was admitted upon the theory that it would refresh the witness’ memory in regard to times or dates. The evidence, however, does not seem to have been used for any such purpose, and although that may have been the ground which was stated to the court for the admission of the evidence, it does not seem to have had any bearing in that direction, because the moment that the answer is given which fixes no date, the counsel proceeds to another branch of the examination, and the question of dates is no longer referred to.

Now it cannot-be said that evidence of this character may not have tended to the injury of the plaintiffs. Juries are very apt to be influenced by that which other juries have done in analogous cases, and they may very well have gotten the impression that the relations between the parties in reference to the other transaction were the same as were disclosed by the evidence in the case at bar. It is clear that the jury had no right whatever to consider what had been the result of litigations between these parties as to other flour, they not having heard the evidence and not knowing the circumstances which governed the other jury in coming to the conclusion which they did. The jury in the case at bar had only the right to consider the proofs and circumstances of the particular case before them, and find their verdict thereon uninfluenced by what other juries had done in other cases, as to the proofs and circumstances in which we have no knowledge.

As we cannot say that this evidence did not tend to injure the plaintiffs, but on the contrary, are of the opinion that it tended very seriously to operate to their disadvantage, the judgment and order appealed from must necessarily be reversed and a new trial ordered, with costs to the appellant to abide the event.

Barlett, J., concurs.


author: Macomber, J.

text:
    Emily P. Delafield, Resp’t, v. Emily Augusta White et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 14, 1887.)

    1. Will—Powers — In trust—Construction of clause creating a TRUST TOGETHER WITH AN UNQUALIFIED DEVISE.
    Where in a will one clause gives certain property in trust, there being no mention of the rents and profits, and other clause makes unqualified devises of the same property, and a subsequent clause gives the trustees power to sell the land, this will be construed to be a power in trust simply to sell, and the money derived from the sale will pass under the terms of the will to the devisees.
    2. Mortgages—Foreclosure of—Distribution of.surplus—Rights of THE DEVISEES OF THE MORTGAGOR.
    Surplus money arising from judicial sale of real estate stands in the place of the land for all purposes of distribution among persons having vested interests or liens on the land. Therefore the devisees of the mortgagor on a foreclosure sale are entitled to the whole of the surplus money accruing to their respective interests under the will, subject to the assertion of other legal claims which were or have become liens.
    3. Same—Rule as to liens—Remedy of lienors—Positton of contract CREDITORS.
    It is only in case of a lien upon the property or the fund that presents a proper case for a distribution of the moneys. The remedy of parties having a lien is to apportion the fund by motion and not by action. Contract creditors .are not in a position to assert any further equitable rights against the estate of the deceased than they would have against any individual who should owe them for a debt resting solely on a simple contract.
    Appeal by the two infant defendants, Mary A. Howard and James C. Howard, claimants for surplus moneys arising upon sale on foreclosure of mortgage.

      The questions presented by the claim of these infants arise under the following provisions of the will of Mary C. C. Morison:

      First. I give, devise and bequeath all my estate, both real and personal, to my executors hereinafter named in trust and for the uses and purposes hereinafter named. * * *

      Fourth. I give, devise and bequeath my property, No. 53 West Thirty-fifth street, New York city, and the rents, profits and income thereof, to my nieces Emily Augusta White and Josephine M. Leaycraft, for and during their natural lives, and share and share alike.

      Fifth. Upon the death of the said Emily Agusta White, I give, devise and bequeath her share in said property to my four nieces, Josephine M., Mary, Lizzie and Malvina Leaycraft, share and share alike.

      Sixth. Upon the death of said Josephine M. Leaycraft, I give, devise and bequeath her share in said property to her children, share and share alike.

      Seventh. Whenever in the judgment of .my executors, they shall deem it best to sell said property, I empower them to do so, and in the event of such sale, I order and direct them to safely invest the proceeds, and to pay the annual income to my said nieces Emily Augusta White and Josephine M. Leaycraft, share and share alike, and upon the death of either, to pay her share of the principal as I have above directed.

      James B. Ludlow, forapp’lts; Samuel A. Noyes and John H. V. Arnold, for resp’t.
   Macomber, J.

There seems to be no irreconcilable repugnancy in the several provisions of this will, though the language used in section first, unexplained and unqualified, would appear to vest the title of the real estate on West Thirty-fifth street, in the executors, subject to the execution of some legal trust. It will be seen, however, that the subsequent provisions of the will, make an absolute and unconditional devise of the property and the rents, issues and profits thereof, to sundry beneficiaries. The seventh section of the will read in connection with the first, gives to the executors only the power, under certain circumstances, to sell the real estate, and invest the proceeds thereof for the purposes named. This is a simple power in trust. The terms of the Revised Statutes (§ 56 2 R. S., 729), are explicit: “ A devise of lands to executors or other trustees to be sold or mortgaged where the trustees are not also empowered to • receive the rents and profits shall vest no estate in the trustees; but the trust shall be valid as a power, and the land shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the power.” See also Van Horne v. Campbell (100 N. Y., 317), and the authorities there collated by Chief Judge Ruger.

If this is the correct construction of the will, it would seem as a matter of course, that the rights of the infants would follow the surplus arising from the sale of the real estate. Surplus moneys arising from judicial sales of real estate stand in the place of the land for all purposes of distribution among persons having vested interests or liens on the land, and for the actual purposes of this appeal, these moneys must be treated as real estate. Dunning v. Ocean Bank, 61 N Y., 497.

The specified devisees are consequently entitled to the whole of the surplus money according to their respective interests therein under the will, in connection, however, with the assertion of other legal claims which were liens upon the real estate before its sale, or have become liens upon the fund since that time. It is only in case of a lien upon the property or the fund that presents a proper case for a distribution of the moneys. This has been universally assumed by the courts to be the established rule, and I know of no departure therefrom, save in this instance where the learned referee has awarded certain portions of the fund to simple contract creditors. The remedy of parties having a hen is to apportion the fund by motion and not by action, as was held in the case of Fleiss v. Buckley, 90 N. Y., 286. But a legal hen is'the very foundation of the claim. Judge Danforth there says: “The learned counsel for the appellants disclaims any intention to charge the devisees * * * personally, but declares the action is in rem to apply the fund to the parties whose superior equity entitles them to it. It is precisely this object which the proceedings already pending in court will attain, if it is hmited to those claimants who have, in any form, a hen upon the. fund, or who, by virtue of any lien upon the land, are entitled to follow its proceeds.” The court, in that case, further held that a judgment alone against a decedent’s estate, where no execution had been issued, would.not entitle the judgment creditors to share in the distribution of surplus moneys, but the judgment must be paid only in due course of administration. See also People ex rel. Short v. Bacon, 99 N. Y., 275. Judge Dan • forth again there asserts. “If the sale had produced a surplus, a different question would have been presented, and the case cited by the learned counsel for the appellants Fleiss v. Buckley (90 N. Y., 286), would be authority for holding a hen upon it, provided one had previously existed upon the land.”

Thus much relating generally to the claims allowed by the referee to Charles H. Howard, Mr. Ardold and Mr. Meyers. These gentlemen are, each' of them, simple contract creditors, and appear to have no legal hen, either upon the land or upon the fund. There is no equitable principle which the learned referee has sought to invoke in this instance by which a claim can be thus allowed and aserted against a fund in court. Claimants of that description, however just the debt, are not in a position to assert any further equitable rights against the estates of deceased persons than they would have against any individual who should owe them for an indebtedness resting solely upon a simple contract, except in a proper case, as the statute now is, the moneys will be ordered into the surrogate’s court to be administered upon.

But it is claimed that the decree of the surrogate of New York established Mr. Howard’s demand. That portion of the decree relating to this subject is as follows: “It is ordered, adjudged and decreed that from the proceeds of the sale of the real estate, whenever the executors shall sell the same, they shall be at liberty and are hereby authorized to reimburse themselves f©r the said sums of money so advanced, paid, paid out and expended by them, together with interest thereon to the date of such reimbursement, amounting in the-aggregate to the sum of $2,300.35.

In the first place the executors have not sold the property, ■either actually or theoretically. In the next place the surrogate’s decree was not an adjudication that they be paid these moneys, but a permission only given them to repay themselves for this claim which is now held by Mr. Howard. I am not disposed to extend the influence of that decree beyond what the strict language used therein would warrant, because it was entered by consent and apparently under an arrangement by which many persons were to receive allowances of money, and not altogether with that careful guarding of the infants’ interests which has been displayed by the guardian ad litem on this appeal.

The order of the special term confirming the referee’s report should be reversed, with ten dollars costs and disbursements, payable to the guardian ad litem by the respondents personally, and the case remitted to the special term, with directions to proceed and distribute the surplus moneys in accordance with articles four, five and six of Mrs. Horison’s will as hereby construed. In the event of the life tenant’s consenting to take a gross sum, the said fund now in court, after deducting that amount and the necessary costs and expenses of these proceedings, shall be paid to the said infants or their guardian according to their respective interests therein.

Brady and Daniels, JJ., concur.


author: Brady, J. Daniels, J.

text:
    George B. Vanderpoel, Executor, etc., App’lt., v. Frederick W. Loew, Individually and as Executor, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 14, 1887.)

    1. Will—Construction of—Intention of the testator.
    In the interpretation of wills, the court is to he guided hy the intention of the testator, to subordinate the language to the intention, and it may reject words and limitations, or supply or transpose them to determine the correct meaning, if upon examination of the will the intention appears clearly, but its plain and definite purpose is endangered by inapt or inaccurate modes of expression.
    2. Devises—Trust estates—Statute against perpetuities—Suspension OF THE POWER OP ALIENATION.
    The devise being made a trust to be held for the benefit of the eestuis que trust during their lives, the question as to whether or not this trust is void as an unlawful suspension of the power of alienation, the property vesting in the trustees in sólido, may be answered by taking the clauses of the will together and front them deducing the intention of the testator. Conceding that the trustees hold these shares in severalty, a devise providing that in case of the death of either of the devisees that share shall be divided between the surviving devisees and the lawful issue of the decedent does not suspend the power of alienation beyond two lives in being at the death of the testator.
    Appeal from judgment of the special term.

      William Manx and A. G. Vanderpoel, for app’lts; J. H. Choate and I. Langdon Ward, for resp’ts.
   Brady, J.

The object of this action is a construction of the will of Jacob Vanderpoel, who died on the 8th of February 1884, seized and possessed of real and personal property situate in this state. He left him surviving the four children named in the third paragraph of his will, and his granddaughter, provided for in the second paragraph. Of the children, the plaintiff George B. Vanderpoel, is married and has one child, aged nine. Mary Elizabeth Vanderpoel, one of the daughters, is a widow, forty-five years of age and has no issue. Julia Vanderpoel, the other daughter, intermarried with Frederick W. Loew, and, as the issue of such marriage, there are now living two children thirteen and fifteen years of age, respectively. The son Waldron B. Vanderpoel, is thirty years of age and unmarried; Mary Elizabeth Vanderpoel, the grandchild, is seventeen years of age and is also unmarried.

His last will and testament which bears date the ninth day of February, 1882, and which was duly admitted to probate on the_26th of February, 1884, is still contested by some of the heirs although declared to be a valid instrument by the learned judge at the special term. The testator by the first clause of the will directs the payment of his debts and the erection of a monument and then gives and devises all the rest residue and remainder of his estate to his executors in trust for certain purposes namely to set apart $20,000, invest the same in good securities and to collect the income and apply the same in their discretion to the education and support of his granddaughter Mary Elizabeth Vanderpoel, daughter of his son Benjamin W. Vanderpoel, during her minority and thereafter to pay over to her the income absolutely during her natural life free from the interference or control of any husband she may have. To invest the rest of his property and pay over one-fourth part of the income thereof to his daughter Mary Elizabeth Vanderpoel and one-fourth part thereof to each of his three other children named, such payments to be made at times to be agreed upon by his executors and his children. The will then provides as follows:

Fourth. Whenever any one of my said children shall depart this life leaving lawful issue, him or her surviving, then my said executors shall set apart one undivided one-fourth part of all the rest, residue and remainder of my estate so invested for the benefit of my children as above mentioned, or in case my said grandchild shall depart this life leaving lawful issue her surviving, then they shall take the said sum of $20,000 so set apart for her benefit, as above set forth, and shall invest the same in the way and manner above mentioned, for the use and benefit of the issues of such deceased child or grandchild, and shall use and employ the rents, issues, proi.ts and income thereof, for its or their maintenance and education, or in case it or they shall be of a sufficient age to justify the same, then to pay over such rents, issues and profits to it or them, until it or they shall respectively arrive at the age of thirty years, when the whole of the principal so set apart as above mentioned, or such part thereof as they may be respectively entitled to (if the issue shall consist of more than one) shall be paid over to it or them. To have and to hold the same to it or them, to its or their sole use, benefit or behoof forever. •
In the event that any one of my said children or my said grandchild shall die without leaving any lawful issue him or her surviving, then the income and profits of my estate to which he or she would have been entitled if living, shall be divided between my surviving children above mentioned and the lawful issue of my deceased child, share and share alike, such issue to take the share to which the parent, if living, would have been entitled, and the principal shall form a part of the common fund to be divided among the lawful issue of my said children whenever such issue shall arrive at the age of thirty years, as above mentioned.

It is urged that these trusts are void as in contravention of the statute relating to perpetuities, suspending, as they are claimed to do, the power of alienation for more than two lives in being. The proposition is that the scheme of the testator was to keep the estate in solido, in the hands of the executors, investing and collecting the income as a whole and paying it out in specific proportions during the lives of the four children named and one grandchild, until as to one or more portions the death of a child leaving issue and the attainment of the age of thirty years by one or more of such grandchildren, and as to the remainder the attainment of that age successively by the surviving grandchildren, issue of the testator’s children successively dying. The appellants feel the necessity of maintaining this proposition in order to drag the trusts into the destroying arms of the statute invoked against them. This view is not to be sustained If there has been any period when, in the interpretation of wills, the intention of the testator could not as a rule be rescued from obscurity and doubt and carried out by proper construction, it has passed away forever.

The intention is now the guiding star, and if upon the examination of a will its appears clearly, but its plain and definite purpose is endangered by inapt or inaccurate modes of expression, it is the duty of the court to subordinate the language to the intention, and it may reject words and limitations, or supply or transpose them to determine the correct meaning. Phillips v. Davies, 92 N. Y., 199; Shepard v. Gassner; 41 Hun, 326. And any other rule would, as suggested in the last case cited, frustrate the disposition of his property designed by the testator, and which, if lawful, should be made as directed by him. Here it is evident that he intended the property entrusted should be held in separate shares, and that as to each he meant to create a separate and distinct share. It will have been perceived that he directs the payment of the one-fourth part of the income to each of his children during their respective lives, and he repeats as to each child the payment; for example, one-fourth part to Mary Elizabeth; one-fourth part to my daughter, Julia Vanderpoel Loew, and so as to the others. And, in continuance of this thought, it appears from the fourth paragraph that he provided in the event of any child or grandchild dying without leaving any lawful issue him or her surviving, then the income and profits to which he or she would be entitled if living, should be devided between the surviving children and the lawful issue of any deceased child, share and share alike, such issue to take the share to which the parent, if living would have been entitled, and the principal, it is declared, shall be a part of the common fund to be divided, etc. This reference to the principal is and can be to no other than the share which had previously been given to be held in trust, and, as was said in the Matter of Verplanck, (91 N. Y., 444), although the whole sum is given solido to the executors, and they are required to invest the whole sum, yet each legatee is interested only in his share, and became a tenant as to his interest therein and took distributively and not jointly.

Here, as suggested, the interests are carved out of a single trust, it is true, but are entirely distinct. Whenever the share of any beneficiary vests according to the will and becomes payable, it is the duty of the trustees to pay it over accordingly and the trust as to that share ceases at once. Savage v. Burnham, 17 N. Y., 561, 571; see, also, Harrison v. Harrison, 36 id., 543-548; Mason v. Jones, 2 Barb., 229, 242; S. C., 3 id., 375. In the last case cited it was said that even if the will were capable of receiving a different interpretation for the want of words of severance in the immediate devising clause, yet when the whole will was looked at, it was not perceived that any violence was done to its general import by adopting a different meaning. And this principle was reiterated in the case of Phillips v. Davis, supra, in which it was said as we have seen, that it was the duty of the court in following the guiding star, intention, to reject words and limitations and to supply or transpose them to ascertain the testator’s meaning; and it was further said in that case that the court was bound -by the familiar principle prevailing at law and in equity that a will which admits of a twofold construction, one of which defeats and the other upholds it, that which sustains should be adopted. See, also, on this subject, Post v. Hover, 33 N. Y., 593, 601; Matter of Verplank, 91 id., 443; Du Bois v. Ray, 35 id. 163.

The trust considered therefore, being in shares, there was as to each a suspension of the power of alienation during one life only, namely the owner of each share. The provisions as to the grandchildren are also objected to as within the grasp of the statute. The intention of the testator was to control the use and enjoyment of the shares given by him, and thus to keep them intact until each grandchild who might arrive in the due course of nature attained the age of thirty years. He did not mean that the share should not vest, but that the distribution or payment of each proportionate part thereof to the different owners if more than one, should not be made until each arrived- at the age of thirty years, a period in the life of each which he thought must necessarily pass before the object of his bounty would have the experience or ability or both, to handle the principal. He gave the shares in severalty to the persons named or described, but restricted for a limited period the absolute unconditional use of them. “You may each enjoy,” he said in effect, “the income, but you cannot control or dispose of the estate until you reach the age of which I think you should have that power.”

Under these provisions the issue would each take an unassailable vested interest in the parents’ share limited to the enjoyment of the income until he or she reached the age of thirty. Manice v. Manice, 43 N. Y., 369, 370; Warner v. Durant, 76 id., 133, 136; Stevenson v. Lesley, 70 id., 512, 516; Tucker v. Bishop, 16 id., 402, 405; Bushnell v. Carpenter, 92 id., 270; Pearson v. Dolman, L. R., 3 Eq., 320; Fox, v. Fox, L. R., 19 Eq., 286.

The executors when any child dies leaving issue him or her surviving, are to set apart the one-fourth belonging to the parent. During the life of the child the remainder is contingent, depending first, upon the birth of issue, and secondly upon the death of the parent before that of the issue, but this contingency would happen and be determined within one life, namely that of the parent, being one of the testator’s four children. It is not a valid objection that the limitation was in favor of persons not in esse. Gilman v. Reddington, 24 N. Y., 13, 14; Harrison v. Harrison, 36 id., 543, 545; Savage v. Burnham, 17 id., 561, 571, 572.

The result of the examination of the material questions presented by this appeal is thus expressed. The principles defining the duty of the court in such an essay, as declared by the court of appeals in Phillips v. Davis (supra), have been invoked and have proved important factors, essential perhaps, to the full development of the testator’s intention, which was not made as clearly manifest as it should have been by the terms of the will. It is fortunate that these allies may be resorted to for the reason that there may be, and perhaps will always be, serious contentions over wills which attempt to bind an estate, or limit or control its use by ambiguous phrase or infelicitous and cloudy expressions. When, however, we can push aside the doubt in the light of the testator’s intention, and give that prominence over mist, subtlety and ambiguity, we can more certainly effectuate the wishes of the owner and donor of the estate.

We think the judgment should be affirmed, but under the circumstances disclosed by the record, with costs of the various litigants to be paid out of the estate.

Macomber, J., concurs in the result.'

Daniels, J.

Full concurrence is given to the opinion of Mr. Justice Brady for an affirmance of the judgment in this action,, but one point presented in support of the appeal requires further consideration than it has already received, and that is the effect of the direction in the will depending on the event of any one of the testator’s children, or his grandchild, Mary Elizabeth Vanderpoel, dying without issue. In that event it has been directed that then “the income and profits of my estate to which he or she would have been entitled, if living, shall be divided between my surviving children above mentioned, and the lawful issue of my deceased child, share and share alike, such issue to take the share to which the parent, if living, would have been entitled, and the principal shall form a part of the common fund to be divided among the lawful issue of my said children whenever such issue shall arrive at the age of thirty years, as above mentioned.” By this direction it has been urged by the counsel in support of the appeal that an unlawful suspension of the power of alienation has been provided for by the testator, but that is not the effect which this direction is considered entitled to receive. For if either of the children, or this grandchild, shall die without issue, then the income and profits of the share alloted to such person, is to be divided between the surviving children of the testator, and the lawful issue of any deceased child, share and share alike. If this direction shall take effect as it has been provided, then each of the surviving children of the testator, and the issue of such children, will take the rents and profits provided for the deceased beneficiary, in equal, separate and distinct shares, and the principal of the fund provided for such beneficiary will be in the same manner divided among the persons directed to be entitled to finally receive it. In no event will a compliance with this direction result in an unlawful suspension of the power of alienation. For as to the principal of the estate, as no other direction for its disposition has been given, it will vest in equal portions among the persons entitled to receive it in remainder, on the decease of the respective beneficiaries, entitled to share in the apportionment of the income and profits of the estate. To illustrate this construction and make it still further evident, in case either of the testator’s children shall die without issue, then his or her share of the rents and profits are to be divided in as many shares as there will be survivors to receive it, and each survivor during his life will enjoy his or her share separate and distinct from the other beneficiaries. And upon the decease of either one of these persons such share will go with his own share under the will immediately to the persons provided for in remainder. And the utmost extent of the suspension of alienation will m that manner be limited by the lives of two persons in being at the time of the decease of the testator.

For these reasons and those assigned in the ' opinion of Mr. Justice Brady, the judgment should be affirmed.

Macomber and Beady, JJ., concur.


author: Macomber, J. Brady, J.

text:
    The Germania Fire Insurance Co., App’lt., v. John R. Francis, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 14, 1887.)

    1. Evidence—Foreign judgment—Effect of.
    In an action brought in this state upon a foreign judgment, the judgment will be conclusive when it is proved that the same was recovered and that the foreign court obtained jurisdiction of the subject and person. The courts of this state can neither inquire into the facts proved nor into the law applied, unless fraud in procuring the judgment is shown.,
    3. Same—Necessary evidence of.
    It is only upon proof of a judgment record that an action can be maintained to enforce á foreign judgment. There must he evidence of a judicial record showing upon its face jurisdiction of the person of the defendant and of the subject matter. A mandate from the supreme court of the United States is not alone sufficient evidence of the recovery. Brady, J., dissents.
    Motion for a new trial by the plaintiff, upon exceptions ordered to be heard at the general term in the first instance.

      G. W. Cotterill, for plaintiff; John E. Risley, for def’t.
   Macomber, J.

At the close of the plaintiff’s evidence, the court dismissed the complaint, and ordered the exceptions to be heard at the general term in the first instance. The ground of such dismissal is not stated.

When this case was before the court on a previous appeal, the decision was put upon the ground that the claim made by the plaintiff had been paid and satisfied, through certain judicial proceedings in the state of Illinois. lío evidence having been given of such matters, however, at the last trial, the question previously decided does not arise.

Much of the argument of counsel is devoted to the con tention that the supreme court of the United States, under its own rules of practice, and under the statutes, did not have jurisdiction to award the costs for which the action is brought. But, in my judgment, we have not the power to question the propriety or the terms of the judgment, if there be a judgment, where jurisdiction of the subject and person has been acquired, and judgment rendered in a foreign court. A court of this state, unless fraud in procuring the judgment is shown, can neither inquire into the facts proved nor into the law applied to those facts by which such court was governed. Hence, if there be a judgment of the supreme court of the United States -or of a court of a sister state before us, we are bound to give judgment for the plaintiff theréon, because as the case is made up, there appears to be no claim made by the defendant of payment or of want of jurisdiction of his person or of the subject-matter, or that the supposed judgment was procured by fraud.

The real question in the case, however, is whether there is a judgment of the supreme court of the United States which has been recovered by the plaintiff against the defendant.

The only document that was pur in evidence consists of the usual mandate of the supreme court of the United States which follows its decision upon writs of error. It is in the name of the president of the United States, and is attested by the chief justice of the supreme court, and is addressed to the judge of the district court of the United States for the northern district of Mississippi. It recites that lately in the latter court, there was a cause pending between John B. Francis, plaintiff, and the Germania Fire Insurance Company, defendant, wherein the verdict of the jury and the judgment of the district court entered in said cause, on the 21st day. of June, A. D., 1869, was in favor of that plaintiff in the sum of $2,930.50, besides costs, and which cause was removed to the supreme court of the United States by a writ of error.

It then declares that at the December term of the supreme court in the year 1870 that cause came on to be heard and was considered, and that such judgment of the district court was reversed, with costs, and that such costs were $241.10. It then orders that the cause be remanded to the district court, with directions to transmit it to the circuit court of'Monroe county in that state for further proceedings in conformity to law and justice, and in conformity to the opinion and judgment of the supreme court.

There is annexed to this paper a certificate of the clerk of the supreme court of the United States to the effect that the paper is a true copy of the mandate issued in the case of the Germania Fire Ins. Co. v. Francis, No. 82, December term, 1870.

Such is the only paper upon which the plaintiff seeks to maintain an action against the defendant. It is not, in my judgment, sufficient to support a recovery. It is only upon proof of a judgment record that an action can be maintained to enforce the judgments of the courts of foreign states. There must be evidence of a judicial record showing upon its face jurisdiction of the person of the defendant and of the subject matter. Here we have simply a mandate, so-called, from the supreme court of the United States, which, so far as appears, is of itself not a matter of record, which directs an inferior federal court in the state, whose judgment had been transferred by writ of error to the supreme court to take further action in the cause.

Instead of obeying this mandate ¿he plaintiff brings it to the state of New York and undertakes by an action at law to enforce it as-a judgment It lacks every essential element of a judgment. There is no process or pleading, no proof of .service of process, no appearance by the defendant, and there is no judgment, it is simply an order, which, in connection with other judicial proceedings, might form the basis of a judgment. There is a total failure of proof. In the case of Forsyth v. Campbell (15 Hun 235), it was held that to prove the existence of a judgment upon which an execution was issued, it was not sufficient to produce in court a certified copy of an order for judgment made by the county court directing a reversal of a judgment of a justice of the jieace, with costs. In that action, on the trial, the plaintiff put in evidence a certificate under the hand and seal of the clerk of the county annexed to a paper which was in the usual form of an order for judgment. In respect to the title of that court, names of the parties and amount of the judgment, it corresponded with the allegations of the complaint. It recited the fact that an appeal had been brought on for argument, and was argued before the court, and it adjudged and ordered that the judgment of the justice’s court, from which the appeal was taken, be reversed, and that the appellant recover $27.26 for his costs and disbursements, and that he have judgment against the defendant for that sum. It was signed by the deputy clerk. The certificate signed by the clerk was to the effect that he had compared the annexed copy of a judgment with the original entered in his office, and that it was a transcript therefrom, and of the whole of said original; in this particular differing entirely from the case now under consideration. Yet even this paper, the court says, was not a judgment-roll or a judgment, but was merely a certified copy of an order for a judgment. See also Townshend v. Wesson, 4 Duer, 342; Archer v. Furniss, 4 Redf., 88; Burnell v. Weld, 76 N. Y., 103; Howard v. Smith, 33 Supr. Court (J. & S.), 124; S. C., 35 id., 131; Sheriff v. Smith, 47 How. Pr., 470; Baker v. Kingsland, 10 Paige, 366; Lansing v. Russell, 3 Barb. Ch., 325.

The plaintiff has failed to produce any evidence that it has a judgment of the supreme court of the United States, or of any court in the state of Mississippi, and consequently its complaint was properly dismissed.

Judgment is ordered for the defendant on the non-suit, with costs.

Daniels, J., concurs.

Brady, J.

(dissenting).—This action is based upon an alleged judgment of. the supreme court of the United States. It has had a somewhat chequered career and is again here for consideration. The complaint has been dismissed for the plaintiff’s supposed failure to prove any cause of action. The defendant’s counsel asked for judgment for his clients for that reason, and the request was granted, although the exceptions were ordered to be heard here in the first instance. The demand made by the plaintiff, rests upon a mandate issued from the supreme court of the United States, in the case of the defendant against the plaintiff, and is as follows:

UNITED STATES OF AMERICA, ss..

The President of the United States of America:
To the Honorable the judge of the district court of the United States, for thenorth[l. s.] ern district of Mississippi, greeting :
Whereas, Lately in the district court of the United States for the northern district of Mississippi, before you, in a cause between John R. Francis, plaintiff, and the Germania Fire Insurance Company, defendant, wherein the verdict of the jury and the judgment of the said district court entered in said cause on the 31st day of June, A. D., 1869, is in the following words, viz.: Came the parties by their attorneys, and thereupon came a jury of good and lawful men, to wit, jury No. 1, who, being duly elected, sworn to, and charged well and truly to try the issue joined between the parties, on their oaths, do say they find the issue in favor of the plaintiff, and assess his damages at the sum of $2,930 58 damages. It is, therefore, considered by the court that the said plaintiff do recover of the said defendant the said sum by the jury aforesaid assessed together with his costs herein expended, as, by the inspection of the transciipts "of the record of the said district court, which was brought into the supreme court of the United States by virtue of a writ of error, agreeably to the act of Congress, in such case made and provided, fully and at large appears.
Whereas, in'the present term of December, in the year of our Lord one thousand eight hundred and seventy, the said cause came on to be heard before the "said supreme court on tire said transcript of record, and was argued by counsel. On consideration whereof.il is now here ordered and adjudged by this court that the judgment of the said district court, in this cause be and the same is hereby reversed, with costs, and that the said defendant recover against the said plaintiff, John R Francis, two hundred and forty-one dollars and ten cents, lor its costs herein expended, and have execution therefor.
And it is further ordered, that this cause be and the same is hereby remanded to the said district court, with directions to transmit it to the circuit court of Monroe county, for further proceedings in conformity to law and justice.
6th March, 1871.
You, therefore, are hereby commanded that such execution and further proceedings be had in said cause, in conformity to the opinion and judgment of this court, as according to right and justice and the laws of the Ünited States ought to be had, the said writ of error notwithstanding.
Witness: The Hon. Salmon P. Chase, chief justice of said supreme court, the first Monday of December, in the year of our Lord one thousand eight hundred and seventy.
( Clerk.......................$221 10
Costs of defendants................1 Attorney................... 20 00
$241 10
Taxed by D. W MIDDLETON,
True copy.
Clerk Supreme Court United Slates.
Test., JAMES H. McICENNEY,
Clerk Supreme Court United Stales.
I, James H. McICenney, clerk of the supreme court of the United-States, do hereby certify that the foregoing is a true copy of the mandate issued in the case of the Germania Fire Insurance Co. v. Francis, No. 82, December Term, 1870. *
In testimony whereof, I hereunto subscribe my name and affix the seal of said supreme court, at the city of Washington, the 7th day of May, A. D. 1871.
JAMBS H. McICENNEY,
Clerk Supreme Court United Slates.

The admission of this paper was objected to, but the objection was overruled. It was claimed that it was not duly authenticated, but this was not maintainable. It conforms to the provisions of the Code on the subject. Section 943. It was also contended, and it seems successfully, that it lacked all the elements of a judgment and was but a mandate only. This is an erroneous view of its character. It is in’ some respects like our remittitur from the court of appeals which directs this court to execute the judgment pronounced (Code, section 194), but goes farther for the reason that it awards the costs and declares the amount thereof.

, It further appears upon examination that the United States court upon consideration of" the plaintiff’s appeal ordered and adjudged that the judgment appealed from be reversed with costs, and that the plaintiff (then defendant), recover against the plaintiff (now defendant); the sum of $241.10 for his costs and have execution therefor, and sent this mandate announcing this judgment. It was sent to the court from the judgment of which the appeal was taken with directions for that court to transmit .the cause to the court of original jurisdiction for further proceedings, and commanded that execution and the further proceedings be had in the cause in conformity to the opinion and judgment as according to right and justice and the laws of the United States ought to be had, that is to say, that the merits be considered and a judgment pronounced, but not whether the costs should be awarded. They were given absolutely. The laws of the United States in each state provide that a judgment for money may be enforced by action, if duly authenticated and such is the law of this state. The validity of this mandate though. now again questioned was not doubted on the former argument herein. It was distinctly held to be evidence of a proceeding which created a cause of action for the costs awarded, but the judgment was supposed to have been superseded by other proceedings in the litigations had before Judge Treat. This court said on the motion for a re-argument that the appeal was disposed of on the assumption that the judgment was valid and regular. The record now does not present any question which may be predicated of the want of jurisdiction in the United States court to hear the appeal taken by the plaintiff" and therefore the cases affecting such an element do not apply. Here the jurisdiction existed and the power to impose costs in such cases is not to be doubted. The consideration of the exceptions herein, therefore, leads to this conclusion, namely, that if the contention of the defendant be correct, then the plaintiff is limited to his remedy by execution under the mandate and must make his judgment out of property in the state of Mississippi. This cannot be the law. A judgment rendered in a court of competent jurisdiction proceeding according to the course of the common law, and having jurisdiction of the person and subject-matter, may be enforced here if only authenticated. There is no limit to such a judgment therefore as claimed.

The mandate was a judgment for costs and was absolute, and no reference to any practice has been made showing tlie necessity of any other proceeding upon it to make it effectual as such. Indeed, it cannot be necessary, for the mandate is the guide to the circuit court. It is the 'judgment of the supreme court committed to that court. Sib bald v. The United States, 12 Peters, 488; United States v. Fossatt, 21 How., 445. The Revised Statutes, section 101, cited by the respondent, do not so declare. That section provides that the supreme court shall not issue execution in a cause removed before it from a district court, but shall send a special mandate to the inferior court to award execution thereon, an order of proceeding rendered necessary only because the execution cannot be issued out of the supreme court.

The mandate is not to enter judgment for costs, and obviously for the reason that one has already been pronounced and exists upon which enforcement by execution is commanded.

This is the extent of the restriction, namely, you shall not issue execution out of the supreme court of the United States. It is not deemed necessary, however, to pursue this subject further. It has been judicially declared that the plaintiff recover certain costs, and this is a judgment for money to be collected by the general mies governing such claims.

The judgment below is wrong, the exceptions of the plaintiff having been well taken, and there must be a new trial.

Ordered accordingly, with costs to the appellant to abide the event.


text:
    John H. Riker et al., Ex’rs, Resp’ts, v. John H. Cromwell et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 14, 1887.)

    1. Wills—Construction of clauses—Residuary clause and one constituting a GIFT.
    A clause in a will is to be construed as constituting a gift, and not a residuary clause, when it is designed to effectuate previous gifts, and not to bestow what was previously intended for another.
    2. Same—Valid gift to trustees.
    A bequest to the executor, with an expression of the hope that they will carry out the testator’s purpose, is in effect an absolute gift not for any particular purpose agreed upon or preconceived, but for objects such as the testator would have favored. There is but a wish, desire or hope expressed, and such a disposition is valid. Distinguishing Matter of the Will of O’Hara, 95 N. Y., 403.
    3. Same—Intention of testator.
    When from the will, taken as a whole, the intention of the testator appears clear but its plain and definite purposes are endangered by inapt • or inaccurate modes of expression, it is the duty of the court to subordinate the language to the intention. It may reject words and limitations, supply and transpose them to get at the correct meaning. The rule of the court is to carry out the intention of the testator, where it may be done without distinct violation of settled doctrines, and not to permit intestacy in any case where the will in effect and by just interpretation disposes of the whole estate.

      Appeal from a judgment rendered at special term.

      Franklin & Clifford and A. H. Bartlett, for app’lts; S. P. Nash, H. B. Closson, M. M. Budlong, Edward W. Phelan, *D. B. Nash, W. H. "Greene and Robert Sewell, for resp’ts.
   Brady, J.

The object of this action was the construction of the last will and codicils of Sarah Burr who died in this city on the 1st of March, 1882, and by which with the exception of a few legacies to distant relatives and other individuals she gave her large estate to religious corporations and charities and seminaries in existence or to be established. The instruments, will and codicils by which this distribution was directed were assailed as containing bequests to several corporations and institutions which were void, and the amounts of which, therefore, became part of a residuary estate to which the next of kin were entitled. It was said in response that the trusts were valid, the gifts effectual, the whole estate disposed of even if there were lapsed or void legacies, and that the next of kin had no interest in the residuary estate and no standing in court. The learned judge presiding in the court below adopted the views presented by the respondents and hence this appeal. The point is here again urged and by all the respondents that the residuary estate, no matter from what source it may emanate, whether from lapsed or void legacies has been appropriated, and the next of kin have no interest beyond what is expressly given them by the testatrix.

The objects of her solicitude and bounty are numerous, embracing institutions, religious, semi-religious and charitable, representing different creeds and colors, and none ask who have appeared for any change or modification of the judgment pronounced except the next of kin who wish to obtain and enjoy more of the estate than the testatrix was willing to give them, a very natural and perhaps a very just feeling, inasmuch as they are relatives, and to use an old but significant aphorism “blood is thicker than water.” It is not potent enough, however, to transform express provisions in a will or codicil, or to invade the realms of testamentary law, and revolutionize established rules. And if the residuary estate be disposed of as alleged and determined, there is no need to consider any other question presented by the record.

The testatrix begins her will by expressing emphatically her intention to dispose of all her estate, real and personal, and then proceeds to carry out this design by distributing it, providing generally as to such distribution as follows :

Seventh. In case from any misnaming of the societies or institutions to which legacies are intended to he given, as above expressed, or in case from want of corporate capacity to take and hold the sums expressed to be given, the said legacies as above expressed, or any of them, cannot take effect and be executed in manner above expressed, then as to such ineffectually intended gift or . sum I give such sum to my executors, to be applied to the charitable uses or purposes as above indicated, in such manner as they shall be able,"giving the same, however, to them absolutely, relying on their carrying out substantially my purposes
And further as follows:
Eighth. All the rest, residue and remainder of my estate, including vom and lapsed legacies, if any, not carried out by the terms of the preceding clause, I give and bequeath in equal parts:
To the New York City Bible Society;
To the American Church Missionary Society,
To the American Board of Commissioners for Foreign Missions;
To the American Home Missionary Society;
To the American Colonization Society, and
The New York Dispensary,
to which must be added legatees of this residuary named in the second - codicil, thus removing all possible doubt of her intention to leave nothingundisposed of—to leave no part of her estate which might become residuary and subject to appropriation, disposition or distribution by operation of law.
This design was again substantially expressed in the first codicil as follows:
In case of misnaming of the institutions, or any of them, or want of corporate capacity to take and hold, or any informality of any kind, any of the legacies intended to be given in my will or this codicil cannot take effect or should become void, then in such case I give such sums mentioned in any such legacy to my executors, to be applied to the charitable uses or purposes as above indicated, in any such manner as they may be able, giving the same to them, however, absolutely, relying on them to carry out substantially my purposes.
Confirming my said last will and testament as herein modified, I do hereby declare as a codicil to my last will and testament
And again, by the second codicil, which contains the following clauses.
Third If any of the legacies or bequests given by me in this codicil should, from any cause whatever, fail to take effect, I give and bequeath the amounts of such legacies or bequests so failing to take effect, unto my executors, who shall qualify, as joint tenants, absolutely, in full confidence that they, or the survivor or survivors of them, will dispose of such amounts as I would have desired myself to do.
Fourth. I hereby republish my said will and first codicil as altered hereby.
Not only does the will thus declare this intention, but the last codicil contains also the folio-wing clause-
Second. And I do hereby will and direct that the following named institutions, to wit: The Sheltering Arms, etc. (naming fourteen additional societies), shall share my residuary estate remaining after the payment of all the legacies and carrying out all the trusts and provisions made by me in my said will and first and second codicils (excepting the residuary bequests given in the eighth clause of my said will) in equal shares with the institutions named in the said eighth clause of my said will; and I give and bequeath the same * accordingly, it being my intention that the corporations, institutions and societies herein above named in this second, clause, together with the six corporations, institutions and societies named in said eighth clause of my said will, shall receive in equal shares the residue of my personal estate and of the proceeds of my real estate

There are not only no references to next of kin, but a well expressed determination that her estate should be enjoyed by the charities, institutions and corporations named and described, as she had dispensed it, or by such of them as could take not only what was given them, but the residuary estate springing from legacies void or lapsed and which could not be used as designed, and also beyond them such dispositions as might be made by her executors, tc whom she gave and absolutely, to dispose of such parts of the estate as might not fall to the legatees. named.

She intended that all named should be benefited by receipt of the legacy, but if not for any reason, hoped that her executors would substantially carry out her purposes, or do what she would have desired herself tc do, as expressed m the seventh clause of the will and in the codicils.

The effect of this is an absolute gift, not for any particu lar purpose agreed upon 01 preconceived, but for objects such as the testatrix would have favored if she could legally do so This is evident from the subsequent provisions in clause eight, to which reierence lias been made, and by which lapsed and void legagies are disposed of.

The testatrix, by the seventh and eighth clauses of the will, thus distinctly proviaes. as already suggested, for the appropriation of any part of her estate which having been given, could not be received or applied. By the seventh clause, all sums given as legacies which fail co be taken for any reason, she gives to hei executors to be applied to charitable purposes, as indicated, m such manner as they shall be able, giving the same to them, a bsolutely relying on their carrying out substantially her purposes and doing what she would have desired to do. It was not it should be said, a residuary clause. It was designed to effectuate previous gifts and not to bestow what was primarily intended for another. The case of Kerr v. Dougherty (79 N. Y., 327), does not apply, therefore, even if the doctrine it declares be upheld.

And by the eighth clause, she disposes of all the rest, residue and remainder of her estate, including, it must lie carefully noted, void and lapsed legacies, if any not carried out by the terms of the preceding clause, that is, the seventh.

The money is given to the executors in order to prevent a lapse of legacies no doubt, but the further precaution is adopted, by which if that gift fail, the subject of it falls into the residuary estate covered by the eighth clause.

The effect of this is therefore to embrace all the residue of the estate even that apparently given to the executors by the seventh clause if “ not carried out according to the terms of that clause. If therefore the gift thus made to the executors should for any reason be declared invalid, then the funds embraced in it must be distributed as directed by the eighth clause. It would include those as among the lapsed and void legacies, and the words (not carried out), by the terms of the preceding clause should be read which cannot be legally applied according to the terms of the preceding clause.

In other words it is as if the testatrix said, if any of the legacies given cannot take effect, and the executors cannot take the sums indicated by them as I have provided in the seventh clause then they shall be divided as part of any residuary estate equally between the corporations specifically named in the eighth clause and those added by the second codicil

This provision was designed to meet all contingencies, and is certainly broad enough to do it and this interpretation is in entire harmony with the expressed intention of the testatrix to dispose of the whole of her estate so certainly and fully declared at the outset; and subsequently, for it will have been perceived that m the codicils the pro • visions thereto are repeated and continued, the testatrix in them confirming and republishing her will

Where upon examination of a will taken as a whole the intention of the testatrix appears clear, but its plain and definite purposes are endangered by inapt or inaccurate modes of expression, the court may, and it is its duty to subordinate the language to the intention; it may reject words and limitations, supply 01 transpose them to get at the correct meaning, Phillips v Davies et al., 92 N. Y. 199.

It is contended however that the gift to the executors is invalid, and the learned counsel for the appellant says. “The whole purpose and scheme of the testatrix was to dispose of her entire estate to charity, and it- is to provide against any of the specific bequests failing to take effect that she gives them to her executors as such to be applied to.the charitable purposes indicated,” '

It may. be answered that no matter what her scheme was, the gift to the executors was absolute, founded upon no promise to or understanding or agreement with her as to the use to be made of the fund that might be received, and therefore kindred in that respect to many cases in which similar language has been employed, and which the courts have held the gift absolute, unaffected by the wish or hope or desire expressed. ,

See Lawrence v. Cooke (32 Hun, 126), where the cases are collated. See, also, Foose v. Whitmore et al. (82 N. Y. 405), and Willets v Willets (35 Hun, 401); see, also, Power v. Cassidy et al. (79 N. Y., 602)

The matter of the will of O’Hara (95 N Y , 403), one of the cases upon which the appellants’ counsel relies to destroy the gift to the executors, does not conflict with the rule declared herein. The decision in that case rests as said by Rixch, J , on proof uncontradicted, that the testatrix made thé residuary devise and bequest in its absolute and unconditional form in reliance upon a promise of the legatees to apply the fund faithfully and honorably to the charitable uses dictated by a letter of instructions. Here, there is as already suggested, no promise, understanding or command, but a wish, desire or hope.

It may be that the discussion of this feature of the appeal is unnecessary, for the reason that assuming the bequest to the executors to be void, that would not benefit the appellants or give them any standing in court, as the fund would, as we have seen, become a part of the residuary estate and go as directed.

The scheme of the testatrix, as revealed by the will and codicils, was to dispose of her entire- estate, and it is not difficult to ascertain that it was her intention to limit her next of kin to the portion given them, and to, give to the •societies or corporations named for that purpose equally whatever became, for any reasons, residuary estate.

The declared rule of the court is to carry out the intention of the testatrix where it may be done without distinct violation of settled doctrine, and not to permit intestacy in any case where the will in effect, and by just interpretation disposes of the whole estate.

The point discussed therefore, which is so thoroughly pressed, as already suggested and decided against the appellants, renders the consideration of all others unnecessary.

Indeed, the discussion of them under such circumstances if it led to the vindication of all the bequests made, would be obiter.

The judgment for these reasons should be affirmed, with costs to the respondents to be paid out of the funds of the estate, and without costs to the appellants.

Daniels and Macomber, JJ., concur.


text:
    In the Matter of the Estate of Nathaniel Gilman, Deceased.

      (Supreme Court, General Term, First Department,

      Filed March 14, 1887.)

    1. Surrogate’s court—Authority op surrogate to control the assets BELONGING TO THE ESTATE.
    The surrogate’s court has the authority to control the assets of the estate, but it cannot do so to the prejudice of the interests of the persons entitled finally to participate in the distribution of the property. Nor should it, as a matter of discretion, exercise any control over the fund which, by any possibility, might result in injury or loss to the persons entitled to be benefitted under the will of the testator.
    3. Same—Authority op surrogate to direct the repayment op money— Code Civ. Pro., ¿5 2481, sued. 6.
    The surrogate, having vacated an order under the terms of which money belonging to the estate has been paid to certain of the beneficiaries at his or her instance, may require the repayment of the same by the persons who have received it. This authority is conferred upon the surrogate by subd. 6, section 2481, Code Civ. Pro.
    Appeal by Wellesley W Gage and Anna K. Gilman, from an order of the surrogate of the county of New York, directing the repayment to the Union Trust Company of the sum of §10,900, with interest at the rate of six per cent from the 26th of June, 1885.

      George Bliss, for Wellesley W. Gage; Lathan G. Read, for Anna K. Gilman; Raphael J. Moses, Jr., for Charles B. Gilman, exector, etc.; and Caroline G. Garczynski, legatee, etc., resp’ts.
   Daniels, J.

The money in controversy was directed to be, and was, paid to Wellesley W. Gage by the Union Trust Company, for what was found to be owing to him by Anna IC. Gilman, as her proctor, attorney and counsel, and §425 the fees of a referee. The order directing the payment was obtained at the instance of Anna K. Gilman, an executrix of the estate, entitled on its distribution to one-tenth of the amount to be distributed. She applied for an order direct ■ ing her attorney to deliver the papers in his possession, together with a stipulation for the substitution of another person as her attorney in the litigation to which she was a party. He claimed a lien upon the papers for the amount due and owing to him for his services, and on the reference he was found to be entitled to the money paid to him in satisfaction of his demands, together with the fees of the referee. »

The money on deposit with the trust company had been placed there under an order of the surrogate made on the 24th of May,' 1866, by which the executors, Edward McClellan and George F. Gilman, were directed to “deposit in the Union Trust Company to the credit of themselves, as executors of Nathaniel Gilman, deceased, and for the security of the individual shares or interests of the said petitioner, all the United States bonds and interest bearing notes, together with their coupons, belonging to the estate of Nathaniel Gilman, deceased, now in their possession and under their control, or in the possession or control of either of them, said bonds, or notes, to remain in the possession of said trust company until the further order of this court.”

This order was not before, or in the mind of, the surrogate at the time when he directed, as he did, by an order on the 26th of June, 1885, the payment to be made to the attorney. After this payment had been made, Charles H. Gilman, as an executor and legatee, and Caroline G. Garczynski, who is a surviving child of Elizabeth Redington, a daughter of the testator, and entitled to one-twentieth of the estate, commenced proceedings for an application to the surrogate to vacate the order by which the payment of the money had been directed and under which it was made. They were not parties to the proceeding which resulted in that order, and claimed in support of tneir application that Anna K. Gilman had already received more than she was entitled to out of her father’s estate, and that the surrogate, therefore, should in no view direct the payment of this money upon an indebtedness by her to her attorney. And it was further insisted under the language of the order of 1866, that the fund and securities deposited with the Trust Company could not legally be appropriated to such payment.

The amount of the deposit under the order of 1866 was $201,500, but it had been greatly reduced from time to time by applications made and allowed in favor of different persons by the predecessors in office of the present surrogate. And that was specially relied upon in support of a motion for reargument after a decision had been reached by the • surrogate, that the order directing this payment was an improper one. But the fact that other orders had been which should not have been made, formed no jurisdiction for the order then in controversy if that itself was an improper one. It has also been urged in support of the appeal that the decision made by this court affirming the order of 1866 sustains the proceedings of the surrogate in directing the payment, but neither the decision then made, nor the opinion preceding it, sanctions any of these payments. It was considered that the surrogate, under the order of 1866, had the power to control the fund in the possession of the trust company, as justice might require that to be done, but not that it was judicious in any instance to make either of the payments which had been directed to be made, and were made by the trust company. On the contrary the inclination of this court has been at all times to discountenance the application made for the distribution of any parts of this estate pending its settlement, it having been considered that the misfortune to which it has been subjected in the way of litigation has been greatly aggravated by the allowances from time to time made and paid to the different applicants, whose applications were favorably acted upon by the surrogate’s court, presided over by the present surrogate’s predecessors. It is quite evident that, as a matter of prudence and good management, the payments should not have been directed, and if they had npt been, this unfortunate estate, which, for more than twenty years, has been involved in continuous litigation, would have long before this been settled up and the property distributed among the persons entitled to receive it. It is a standing reproach to the courts that the estates of deceased persons maybe embroiled in litigation in this manner, and the individuals designed to be benefited by them prevented from enjoying the bounty of .the testator for the greater part, if not the entire period, of their natural lives. And instead of doing anything to promote that end, it should be discountenanced and avoided by every just legal expedient.

While, therefore, the surrogate’s court did have the authority to control this deposit, it could not do so to the prejudice of the interests of the persons entitled finally to participate in the distribution of the property. Neither should it, as a matter of discretion, exercise any control over the fund which, by any possibility, might result in injury or loss to the persons entitled to be benefitted under the will of the testator. This was probably the view which, in part, induced the surrogate to vacate the preceding order and require the money paid under it to be restored again to the trust company. It had been improvidently paid out, and that would not have been permitted if the circumstances affecting the right of Anna K. Gilman to this appropriation of it had been before the surrogate at the time. They were not, and as the application to vacate the order was made without any want of diligence on the part of the applicants, it was a judicious exercise of the authority of the surrogate to make the direction which he finally gave.

The power to make it was provided by subd. 6, of section 2481 of the Code of Civil Procedure. That vested in the surrogate all the authority over the orders of his court by way of opening, vacating, modifying, or setting them aside, which a court of general jurisdiction has been permitted to exercise. And a court having such jurisdiction it has been held, where it is not restrained by a positive enactment, has the power, “ to vacate, on motion, its process, order, or judgment, to prevent a perversion thereof, or to frustrate oppression.” Levy v. Loeb, 5 Abb. N. C., 157,166, affirmed 75 N. Y., 609; Dinsmore v. Adams, 49 How., 238; McLean v. Stewart, 14 Hun., 472.

The case of Story v. Dayton (22 Hun., 450), has no application to this proceeding, for the reason that it was decided under the law as it existed before this very enlarged authority was provided for the surrogate’s court. The case of Tilden, (98 N. Y., 434), in no manner affected the decision made by the surrogate, for this application was made with diligence, and brought before him for adjudication before any such lapse of time intervened as would pre - vent its favorable consideration. And it was also warranted by the very broad language of section 724 of the Code of Civil Procedure, providing for the correction of mistakes in legal proceedings.

The appellant, Anna K. Gilman is justly chargeable with responsibility for the money paid by the Trust Company. It was paid as the result of her own application, and in consequence of which she received the papers from the attorney, and the stipulations for substitution, which it was her object to secure. After instituting these proceedings and obtaining their advantages in this manner, she cannot be at liberty to deny her responsibility for the repayment of the money received by the attorney on her account. It was to pay her indebtedness, and secure these advantages to her, that the direction of the surrogate was given. The order was accordingly right in requiring her to repay the money to the Trust Company, and so it was as to the attorney himself who in fact received and appropriated the money. And as the executor, George F. Gilman, neither obtained, received, or used the money, he in no way became liable for its return to the Trust Company.

But before the attorney could justly be required to refund the money, the order should have provided for the return of the papers to him, upon which he claimed a lien for his services. The final order had the effect of rescinding that under which the payment had taken place, and it could not legally be. rescinded without placing the parties in the relative positions occupied by them, previous to the time of the payment of the money. The primary obligation indicated by the facts was upon Anna K. Gilman. It was her indebtedness which was to be provided for and paid, and in accordance with that fact, the order should be modified by inserting some further directions. These directions should require her within twenty days after service of a copy of the order, to repay this amount of money with the interest which would have been allowed by the Trust Company, to that company, or in default of such payment to return the papers received by her from her attorney, with proper stipulations to vacate the orders of substitution; and then requiring the attorney within twenty days after the return of such papers, to pay to the Trust Company this sum of money, together with the same rate of interest, less the amount paid to the referee, which should be absolutely required to be paid within twenty days by Miss Gilman, and as so modified the order should be affirmed, with costs against the appellant, Anna K. Gilman.

Van Brunt, P. J., and Brady, J., concur