text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM SERVEN, Respondent, v. DANIEL D. DEMAREST, County Treasurer of Rockland County, Appellant.

      Board of supervisoi-s — cannot control drawing of drafts, by supei’intendmts of the poor.

    The board of supervisors of a county has no power to direct the county treasurer not to pay, out of the poor funds, any draft drawn by the superintendents of the poor to their own order or to the order of either of them, nor to direct him not to pay any draft, unless the object for which the money is to be paid be specified therein.

      Appeal from an order, made at Special Term, directing a peremptory mandamus to issue, compelling the respondent to pay a draft drawn by the relator.
    The relator is one of the superintendents of the poor of the county of Rockland, and on the 8th day of April, 1878, his co-superintendents, Richard B. Marks and James Coates, made a draft in his favor on D. D. Demarest, county treasurer of Rockland county, for $27.11, without stating the object or purpose for which the money was to be used. This draft the county treasurer declined to pay, as he had been directed by a resolution of the board of supervisors not to pay any drafts of the superintendents of the poor, unless the object for which the draft was made was stated, and not to pay any orders drawn by said superintendents to the order of themselves, or to the order*of either one of them, and also as said board had resolved and notified him that he would not be allowed, on the auditing of his accounts, any sums paid out by him unless they were paid in accordance with such resolutions. Upon such refusal the relator,William Serven, moved for a mandamus to compel the said county treasurer to pay the draft, and from the order made at Special Term granting such mandamus this appeal is taken.

      Andrew Fallon, for the appellant.

      John O. T. Smidt, for the respondent.
   BARNARD, P. J.:

The only question presented by this appeal is, whether the board of supervisors have any power to regulate the manner in which the superintendent of the poor shall draw the moneys in the hands of the county treasurer for the support of the poor. William Serven, Richard B. Marks and James Coates are superintendents of the poor in Rockland county. Defendant is comity treasurer. In April of this year (1878,) the board of supervisors directed the county treasurer not to pay any draft from the superintendents, payable to their own order, or to the order of either of the superintendents, out of the poor funds, nor to pay any draft unless the object for which the money was to be paid was specified in the order. The draft in question is payable to the order of one superintendent, and signed by the other two, and does not specify the object for which the money is to be used. We think the supervisors exceeded their powers. The superintendents are a corporation, with the ordinary powers-of a corporation, for public purposes. (1 R. S., 617, § 16.)

Among the duties they are required to do is the purchase of furniture, implements and materials for the support of the poor. (1R. S., 617, § 16, sub. 4.) “ They are empowered to draw from time to time, on the county treasurer, for all necessary expenses incurred in the discharge of these duties, which drafts shall be paid by him out of the moneys placed in his hands for the support of the poor.”

The superintendents give security that they will render a true account of all moneys received and expended, to the supervisors, and the supervisors audit the account. It will be seen that the superintendents are an independent board. They can purchase independently, and draw moneys from the. county treasury independently. The expenditure is to be submitted to the board of supervisors. If after the settlement of the accounts there is any sum due to the people fi’Qm the superintendents, the bond would be enforced.

The order should be affirmed, with costs.

Gilbert, J., concurred; DyioiaN, J., not sitting.

Order affirmed, with costs and disbursements.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    CLINTON RAYNOR, Appellant, v. HARRISON GORDON, Executor, etc., of HENRY GORDON, Deceased, and the said HARRISON GORDON, Individually ,and ROSILLA F., his wife, Respondents.

      Action by a judgment-o'editor— to compel the foreclosure of a mortgage given to the deceased debtor, in his lifetime, by his executor.

    Where a mortgage given by an executor to his testator, prior to the latter’s decease, is the only asset of the estate, and the executor refuses to pay the same, a judgment-creditor of the deceased may maintain an action to compel the sale of the mortgaged premises, and the payment of his debt from the proceeds of sale.
    Appeal from a judgment entered upon an order sustaining a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.

      George Miller, for the appellant.

      William Wickham, for the respondents.
   Barnard, P. J.:

The facts in this case are brief. Henry Gordon died leaving a will, by which the defendant, Harrison Gordon, was appointed executor. The executor qualified as such, At the time of Henry Gordon’s death, Harrison Gordon owed Henry Gordon $1,000, secured by mortgage on lands. The executor, Harrison Gordon, refuses to pay this mortgage. Plaintiff is a judgment-creditor of Henry Gordon, deceased, and this mortgage is the only asset of the estate. The plaintiff asks for a sale of the premises, and for payment of his debt out of the proceeds of sale. I think the complaint states facts sufficient to make a cause of action. This court has jurisdiction of an action for accounting by executors. It has jurisdiction to sell land when the land is properly applicable to the claim of judgment-creditors. In such a case a receiver is never necessary. The creditor may bring his action in his own name. If a receiver is necessary to sell, the judgment in this action will provide for one for that purpose. The defendant may as well be required to do his duty in this court as in another. The order sustaining the demurrer should be reversed, with costs and disbursements, and the defendant be permitted to answer over in twenty days, on payment of costs.

Gilbert, J., concurred; DykmaN, J., not sitting.

Order sustaining demurrer reversed, with costs, and demurrer overruled, with leave to answer on payment of costs.


author: BakNakd, P. J.:

text:
    JOSEPH WILD, Respondent, v. TEUNIS G. BERGEN, Executor of PHEBE J. COWENHOVEN, Deceased, REBECCA BACKHOUSE and others, Appellants.

      Power of sale to executor to •pay debts — direction that it be executed within two years — when a creditor can compel a sale after the expiration of that time.

    In March, 1868, plaintiff and defendant’s testatrix joined in an undertaking’ for one Mackay, which, plaintiff was, on the 4th day of March, 1875, compelled to pay. Defendants’ testatrix died March 25, 1869, leaving a will by which she authorized, directed, and empowered her executors, “ within two years after my (her) decease,” to sell so much of certain lands therein described as might be necessary, with her personal estate, to pay her debts and legacies. The personal estate being exhausted, the executors, within the two years, sold a portion of the lands and paid the legacies and all the debts except plaintiff’s. This action was commenced in 1877 to compel an execution of the power of sale to raise funds to pay the testatrix’s share of the amount plaintiff had paid on the joint undertaking.

      Held, that the testatrix did not intend to limit the execution of the power of sale to two years, but only to compel the payment of the debts and legacies within that time.
    That even if this was not so, the plaintiff could not be deprived of his beneficial interest under the power, by the failure of the executor to execute it within the time limited.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe trial of this action by the court without a jury.
    This action was brought in the Supreme Court for the purpose of enforcing an equitable contribution from the estate of Phebe Cowenhoven, deceased, to the plaintiff, in respect to certain moneys paid by him upon the joint obligation of himself and Mrs. Cowenhoven. The plaintiff and Mrs. Cowenhoven became, on March 9, 1868, sureties upon an undertaking on appeal in an action in this court, brought by one Mackay. The judgment was subsequently, and February 21, 1870, affirmed on appeal, and the plaintiff was compelled to pay, and did, on March 4, 1875, pay the amount of the judgment appealed from, and costs, some $7,434.81 in all. Pending the appeal,, and on March 25, 1869, Mrs. Cowenhoven died leaving a will, the seventh clause of which was as follows, viz.: “I direct and authorize and empower the executors of this my will, or such of them as shall act, and the survivor and survivors of them, within two years after my decease, to sell so much of my land, on the west side of the Bath and Greenwood Plankroad, running through my farm, as shall, with my personal property not otherwise disposed of, be deemed by them to bo necessary to pay my debts, and the several sums of money given and bequeathed in and by the second, third, fourth and fifth items of my will; and in case of such sale I direct and authorize and empower them to execute and deliver the necessary and proper deeds of conveyance therefor to the purchaser or purchasers thereof, and I do hereby charge the said land with the payment of the said sums.”
    By the eighth clause of said will said land was devised by the said testatrix, subject to the directions and powers given, and the charge created in and by said seventh clause of her said last will, to the defendant Rebecca Backhouse, for life, with remainder in ■fee to the children of said Rebecca Backhouse.
    The defendant Bergen alone qualified as executor. He sold a part of the land embraced in the power, disposed of all the assets which came to his hands, paid all the debts and legacies (excepting the debt to the plaintiff), and had a final accounting in the Surrogate’s Court. Afterwards the plaintiff’s liability upon the undertaking became fixed, and after he had paid the judgment, as above stated, he brought this action, in which it was adjudged that the plaintiff was entitled to have the lands described in the .seventh clause of the will sold, and that the executor and trustee sell so much as should be sufficient to cover the plaintiff’s claim, aucl pay the same out of the proceeds.

      Philip S. Oroohe, for tbe appellants.
    The power of sale was to pay debts and legacies, and was limited to two years after the decease of the testatrix, and was inoperative after two years from her death. (Richardson v. Sharp, 29 Barb., 222; Dunham v. Ooldbacher, 56 id., 579.)

      F. A. Paddock, for the respondent.
   BakNakd, P. J.:

Joseph Wild and Phebe Cowenhoven became co-obligors upon an undertaking for John Mackay. Wild, the plaintiff, has been called upon to pay the bond and has done so. Phebe Cowen-hoven died before Wild paid the claim, leaving a last will, by the seventh clause of which she directed, authorized and empowered her executor to sell certain land described therein, to pay debts and legacies. The personal estate is exhausted. The executor sold a portion of the lands, and with the proceeds paid all debts but the plaintiff’s claim, and all the legacies. The seventh clause of the will directed the sale of these lauds ‘ ‘ within two years after my decease.” This action was not commenced until after the expiration of two years from the decease of the testatrix. The plaintiff has an equitable claim for contribution against the estate. The executor has no assets, and the question is, whether he can execute the power after the expiration of the two years. I think he can be decreed so to do. The direction to sell the lands described to pay debts, in effect made plaintiff a beneficiary under the power, entitled to demand its execution. The plaintiff’s liability on the bond did not become fixed until after the expiration of the two years. It was not the intent of the seventh clause of the will to limit the execution of the power to two years. It directed the sale within two years, as a safeguard against the executor taking any longer time to pay debts and legacies. If this is not the true construction of the will, but that the testatrix limited the execution of the power to the two years, the limitation would not defeat this action. The direction to sell the lands, and with the proceeds to pay testatrix’s debts, imposed the duty upon the executor, which the plaintiff was entitled to have performed by him. It is substantially a trust for the benefit of plaintiff among other creditors. Can the plaintiff be deprived of his beneficial interest under the power, by the failure to execute it by the trustees? This is antagonistic to a universal equitable principle, that a trust shall not fail because of the neglect of the trustees to execute it within the time limited. No objection having been made to the complaint, I think the judgment should not be modified as to the clause permitting application for further relief to be made at the foot of the judgment, in case the land fails to satisfy the debt. All the residuary legatees are before the court, and all the facts established from which a complete and final determination can be made.

I think the judgment should, therefore, bo affirmed, with costs.

DykmaN, J., concurred; Gilbert, J., not sitting.

Judgment affirmed, with costs.


author: BabNaed, P. J.:

text:
    CATHARINE S. FULLER and M. LOUISA FULLER, Appellants, v. G. HILTON SCRIBNER and others, Defendants, and GEORGE H. PURSER, Purchaser, Respondent.

      Money judgment recovered, before serw.ee of the summons, but after the filing of the Us pendens in a foreclosure action — cut off by the judgment of foreclosure.

    On September 17, 1877, this action, to foreclose a mortgage, was commenced by filing the complaint and notice of Us pendens in the county clerk’s office, and by the service of the summons and complaint on two of the defendants, the other defendants being subsequently served. Ryan, the owner of the equity of redemption, was served October 13, 1877. September 24,1877, and before the service on Ryan, a money judgment was recovered and docketed against him.

      Held, that although the judgment-creditors were not made parties to the action, yet their interests were cut off by the judgment and sale in this action.
    Appeal from an order made at Special Term, denying a motion made by the plaintiffs to compel George H. Purser, the purchaser at the sale made under a judgment of foreclosure and sale of mortgaged premises, to complete his purchase, etc

      The action was commenced by filing the complaint and notice of pendency of action in the Westchester county clerk's office, and making personal service of summons on Sarah P. Scribner and Patrick Kelly, two of the defendants, on the 17th day of September, 1877 ; followed by subsequent service on the other defendants. It appeared that James M. Thorburn and others, after the commencement of this action, as above stated, recovered a judgment in Westchester county on the 24th September, 1877, against Timothy Ryan, the owner of the equity of redemption of the mortgaged premises. These judgment-creditors were not parties to this action. Ryan was not served with the summons in the foreclosure suit until the 13th of October, 1877, and after the recovery and docketing of the judgment against him by Thorburn and others. Judgment in the foreclosure suit was perfected March 30th, 1878, for $5,448.66, principal and interest, and $344.13 costs and allowance. George H. Purser purchased the premises at the sale under the foreclosure judgment for $8,000. Purser refused to take title on the ground that the judgment in favor of James M. Thorburn and others was a subsisting lien on the property, and not affected by the foreclosure judgment.

      D. Hawley, for the appellants.
    An action for the foreclosure of mortgage is virtually in rem, and if commenced as to one defendant must necessarily be commenced as to all. (Cleveland v. Boerum,, 24 N. Y. R., 613, 622; Lament v. Cheshire, 65 N. Y., 30.) The judgment-creditors of Ryan, whose judgment was recovered pendente lite, have no right of redemption here. Their judgment being recovered subsequent to the commencement of the action, they are subsequent incumbrancers. (Cook v. Man-cius, 5 Johns. Ch. R., 89; Peoplés Bank v. Hamilton Manuf. Co., 10 Paige C. R., 481; Code of Procedure, § 282; Code of Civil Procedure, § 1251; 3 R. S. [5th ed.], 637; Burrill’s Law Dictionary, “Incumbrance;” Webster’s Dictionary, “Incum-brance;” Act of 1823, Laws of 1823, p. 213, § 11; 2 R. S. [1st ed.], p. 174; 2 Edmond’s Statutes, p. 181, § 43.) The words in section 132, “and every person whose conveyance or incumbrance is subsequently executed or subsequently recorded, shall be deemed a subsequent purchaser or incumbrancer,” do not limit the section to specific liens recorded at length in the county clerk’s or register’s office. (Webster’s Dictionary, verb “record,” noun “record;” 3 R. S. [5th ed.], p. 638, §§ 10, 11, 12, where “record” of judgment is alluded to, and p. 642, § 27, “satisfied of record;” Qraig v. Ward, 36 Barb. S. C. R., 382; Catlin v. Billings, 16 N. Y. [2 Smith[, 622; Jackson v. Walker, 4 Wend. R., 462; Smith v. Briggs, 9 Barb., S. C. R., 252; Crandall v. Cropsey, 10 N. Y. Legal Obs., 1, citing Lombard v. Bayard, Wallace, J., 7 Pennsylvania Law Jour., 250.)

      Thomas Allison, for Purser (the purchaser), the respondent.
    A Us pendens filed has no force or effect, except such as is prescribed by section 132 of the old Code. (Bodgers v. Bonner, 45 N. Y. R., 387.) If an incumbrancer by judgment is not an incumbrancer within the meaning of section 132 of the Code, then his rights are determined by the old chancery practice. Under that practice it was well settled that the pendency of the action was notice only from the time of the service of the subpoena after bill filed. (Murray v. Winter, 1 Johns. Ch., 566; SJcee v. Spraker, 8 Paige, 184, 189; Hayden v. Buclclin, 9 Paige, 512.)
   BabNaed, P. J.:

The question whether a judgment-creditor was an incumbrancer, within the meaning of section 132 of the Code, was not presented by the facts of the case in Rodger v. Bonner (45 N. Y., 379). In that case a levy had been made by attachment upon certain lands. Before judgment was obtained in the attachment suit another creditor recovered judgment, and the Court of Appeals decided that the levy took precedence of the judgment recovered after the levy; that the levy created a lien, and that the judgment was subject to all prior liens, whether the creditor knew of the lien or not. The case is no authority for holding that when a foreclosure suit is commenced, and when the notice of lis pendens is duly filed, and the summons partly served on all the parties who wore proper at the date of the filing of the notice of Us pen-dens, a judgment subsequently obtained is not cut off by the decree of foreclosure. Such a doctrine is opposed to the general understanding and practice of the profession. It cannot be sustained by authority. A judgment in rem (a foreclosure action is virtually so) binds the parties litigant and all the others, if the suit was commenced against the proper parties. (Cleveland v. Boerum, 24 N. Y., 613.) It binds all parties and all who claim under them “by any means.” (Cleveland v. Boerum, 27 Barb., 252.) Notice of pendency is designed “ to carry out the well-known legal maxim pendente lite nihil innoventur.” (Lamont v. Cheshire, 65 N. Y., 30.) Judgment-creditors, by judgments obtained after filing notice of lis pendens in foreclosure suits, could not be made parties at their own request. (People’s Bank v. Hamilton Manuf. Co., 10 Paige, 481.) An incumbrancer by judgment pendente lite need not be made a party. (Cook v. Mancius, 5 Johns. Chy., 89; Bishop of Winchester v. Paine, 11 Vesey, 194.) Unless a judgment-creditor, after notice of lis pendens filed, is cut oil' by the decree, a foreclosure action would be interminable, or it could be made so by the confession or recovery of judgments against the owner of the equity of redemption. Many titles would be unsettled.

The order should be reversed, with costs and disbursements, and an order granted that the purchaser take the title.

Gilbbkt, J., concurred; DyiimáN, J., not sitting.

Order reversed, with costs and disbursements, and order granted that purchaser take title.


author: BarNArd, P. J.:

text:
    ROBERT M. GRINNELL and SOPHIE, his wife, Respondents, v. CHARLES F. MACLEAN, Appellant, Impleaded with EDWARD M. BAKER and others.

      Proprietors of Montwiik — right of, to partition lands — chapter 139 of 1852 does not vest the title in the corporation.

    Chapter 139 of 1852, entitled “An act to incorporate the proprietors of Montank la.n ds, in the town of East Hampton, in Suffolk county,” did not vest the title to such, lands in the corporation, or entitle it to the possession thereof, except for the mere purpose of management in subordination to the proprietors; and it does not prevent one of such proprietors from maintaining an action for the partition of said lands.
    Nor does the fact that the Montauk Indians have certain rights therein, paramount to those of the proprietors, prevent such partition. Such rights are in the nature of an incumbrance to be recognized and protected upon the sale.

      Applay v. Trustees of Montauk (38 Barb., 275), followed and approved.
    Appeal from an order overruling a demurrer to the complaint, and from an interlocutory judgment decreeing partition.
    The action was brought to partition certain lands in the town of East Hampton, Suffolk county, known as Montauk. The lands are owned by a large number of persons, exceeding 120 in number, who are known as proprietors. The title was derived from the Indians, who it was claimed had certain interests in the lands paramount to those of the proprietors.

      Edward W. Crittenden, for the appellant.

      Q. L. Rives, for the respondents.
   BarNArd, P. J.:

This is an appeal from an interlocutory judgment on a partition suit, overruling a demurrer to the complaint and directing the usual reference as to title and incumbrances. It is claimed by the appellant that by force of the act, chapter 139 of Laws of 1852, entitled “An act to incorporate the proprietors of Montauk lands, in the town of East Hampton, in Suffolk county,” the title of the premises in question is vested in the corporation thereby created; and that the plaintiff has; therefore, neither the title nor the possession essential to maintain the present action.

The construction and effect of the act above referred to was considered by this court in the case of Appley v. Trustees of Montauk (38 Barb., 275). It was there held that the corporation was not vested with the title to the land by the act, and that it did not give the corporation the possession of the lands, except for the mere purpose of management in subordination to the proprietors. A re-examination of the subject, with the light thrown upon it by the full and able argument in this case, leads to the same conclusion arrived at in the case just cited. We find nothing in the act itself purporting to take the title from the individual proprietors and vest it in the body corporate. Neither can we see how the act, if it contained provisions which would have the effect claimed by the appellant, could escape the obvious objection on the ground of unconstitutionality. The proprietors being very numerous and the property of very great extent, the act was passed to enable them the better to manage the property by means of trustees, with certain corporate powers to rent out, manage, and protect the premises. The possession and powers of its trustees are simply those of a bailiff or steward of the property, and offer no obstruction to the maintenance of an action for the partition of the property. The Montauk Indians are alleged, in the complaint, to have the right to occupy certain portions of the land, to cut fencing materials from other portions, and to receive an annuity of five dollars charged upon the whole premises. Those rights, which are paramount to the title of the proprietors, are in the nature of incumbrances, which must be recognized and protected, but form no bar to a partition suit. (Maynard v. Maynard, 4 Edw. Ch., 711.) The Indians were proper parties to the suit, in order that these rights may be ascertained and defined. They have not appealed, and their rights are not now under review, except to ascertain whether they form a bar to the suit. We think they do not.

Judgment appealed from should be affirmed, with costs.

Gilbeet, J., concurred; Dyeman, J., not sitting.

Judgment affirmed, with costs.


author: BakNABD, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. E. VOGLER, Landlord, v. LUCIUS N. PALMER, Tenant.

      Purchase)' at tax-sale— smnmary proceedings to recove)' land — when proceedings before justice stayed — chapter 384 of 1854, title 5, section 33.
    The purchaser, at a tax sale in the city of Brooklyn, of a lease of a lot for one thousand years, assigned the same to the relator, who instituted summary proceedings to recover the same, under section 33, title 5 of chapter 384 of 1854. Upon the return-day the defendant filed an affidavit denying the principal facts alleged in the relator’s affidavit, and alleging that the tax sale was void. Upon the adjourned day defendant filed an affidavit that he had acquired title, by deed from the owner, after the tax sale, and was in possession thereunder; and also filed a bond, with sureties approved by the justice, conditioned for the payment of the costs of any action of ejectment, and the value of the use and occupation from the date of the bond to the date of the recovery of the possession by the landloz’d, with a further condition against waste, etc.

      Meld, that the justice properly decided that the proceedings before him were thereby stayed.
    Certiorari to review summary proceedings, instituted before a justice of the peace in the city of Brooklyn to recover possession of certain lands.
    These proceedings were instituted by thg relator, the assignee of a lease for one thousand years of certain property in Brooklyn, purchased by one Wheeler at a tax sale. Upon the return day an affidavit was filed by the defendant alleging the invalidity of the sale, and denying the material allegations of the affidavit filed by the relator. Upon the adjourned day defendant filed another affidavit stating, among other things, that “ after the sale of said premises, as set forth in the affidavit aforesaid, by which said landlord, E. Yogler, claims title thereto, this deponent did acquire title to said premises by an instrument under seal, duly executed by the owner of the fee of said property, vesting the possession and title, thereto in this deponent, under which this deponent still occupies and holds premises, which title is subsequently acquired to the title of the alleged landlord, set forth in the said affidavit and in these proceedings; ” and also filed a bond, with sureties, conditioned to pay “ all costs which may be recovered against the said Lucius N. Palmer in any action of ejectment which may be brought against him within six months by the said E. Voglcr for the recovery of the possession of such premises, and to pay the value of the use and occupation of said premises from the date hereof to the time the said E. Vogler shall obtain possession of the same by virtue of a recovery in such action of ejectment, and upon the further condition that the said Lucius N. Palmer shall not commit any waste or injury to said premises during his occupation thereof.” To review the decision of the justice holding that the proceedings before him were thereby stayed, this certiorari was issued.

      A. H. & W. D. Osborn, for the relator.

      Daily & Perry, for the respondent.
   BakNABD, P. J.:

The relator made an affidavit, setting forth that he was the assignee of oue A. S. Wheeler, who purchased a lease for a thousand years at a tax sale in the city of Brooklyn; that defendant was in possession of the lands described in the lease. Upon this affidavit he procured a summons under the statute providing for the recovery of possession as between landlord and tenant (2 R. S., 513), as amended by chapter 193, Laws of 1849. This statute provides for the recovery of lauds sold under execution. Chapter 384, Laws of 1854, title 5, section 33, extends the right to recover summary possession under the statute to the grantee at tax sales in the city of Brooklyn. At the return of the summons, the defendant made aird filed an affidavit that the tax was illegal, the sale was invalid, and the tax title worthless, and denying all the principal facts alleged in the landlord’s affidavit. The hearing was adjourned for a few days, and at the adjourned day, when the parties appeared for trial, the defendant filed another affidavit. In this affidavit the defendant made oath that he had acquired title to the premises after the tax sale, by deed from the owner, and that he was in possession, claiming title under this deed. This-affidavit was accompained by a bond with sureties, approved by the justice, conditioned to pay the costs of any action of ejectment and the use and value of the occupation, from the date of bond to the date of the recovery of possession by the landlord. Under these papers, the justice decreed that the proceedings were stayed. We think the decision was correct. The statute as to summary proceedings, in the case of holding over after title perfected under sales by execution, provides that a stay shall be granted when such an affidavit and bond is given. (2 E. S., 516, § 46.)

In Spraker v. Cook (16 N. Y., 567), the Court of Appeals held . that all the facts averred in the landlord’s affidavit are the subjects of an issue in all cases. The affidavit on which the stay was granted complied with the statute. The statute does not require that the nature, extent or legal effect of the claim shall be stated in the affidavit. After providing for a removal of a proceeding involving doubtful questions as to real estate from a Justice’s Court to the Supreme Court, it did not call upon the justice to determine whether the tenant could make out his defense in the higher court. The statute says that the tenant is entitled to a stay on execution upon an affidavit that he claims the possession of such premises by virtue of some title or right acquired after such premises were sold.” The tenant so states in his affidavit. It is not ground of error that the affidavit should have stated the title, so that the justice could determine whether it was a title.

Judgment should be affirmed, with costs.

Gilbert and DtkmaN, JJ., concurred.

Judgment affirmed, with costs.


author: BarNard, P. J.:

text:
    HENRY BORRIES, Appellant, v. A. J. HORTON, BENJAMIN W. CRAFT and HENRY BAKER, Respondents.

      Order of commissioners directing removal of encroachment — party not estopped from disputing its validity, by failing to serve a written notice denying such enei'oachment.

    October 5, 1872, the commissioners of highways made an order, ascertaining, describing and entering of record an old highway running through plaintiff’s land. August 18, 1874, defendants, as such commissioners, made an order requiring plaintiff' to remove a fence erected by him, alleged to be an encroachment thereon, a copy of which order was served upon plaintiff', who did not, as required by statute, within five days, serve upon the commissioners a written notice denying the encroachment. Upon the trial of this action, brought to recover damages for the tearing down of the fence, plaintiff offered to show that the commissioners, by the order of 1872, changed the old highway, thereby taking from plaintiff a portion of his land, and that their action in so doing was void for want of jurisdiction.
    The court held that plaintiff, by reason of his failure to serve upon the commissioners a written notice denying the encroachment, was estopped from denying that the fence was an encroachment; and directed a verdict for defendants.

      Held, that this was error.
    Appeal from a judgment in favor of the defendants, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justices before whom the action was tried.
    This was an action of trespass against defendants, for damages for breaking down a fence upon plaintiff’s farm. They set up by their answer that at the times in the complaint mentioned they were commissioners of highways of and for the town of Oyster Bay, and that the said fence stood upon one of the highways in said town, and that they acted in the premises according to law. Plaintiff having rested, defendants proved that the road running past the plaintiff’s farm, on which the fence in question stood, was an old road three rods wide; that the same had not been sufficiently described of record, and that they made an order, dated the 5th day of October, 1872, ascertaining, describing and entering the said road of record in the town clerk’s office of said town. Thereafter the commissioners made another order, dated August 18, 1874, requiring the plaintiff to remove the fence in question, as encroaching upon the highway, within sixty days from the service thereof. The last-mentioned order to remove the encroachment was served on him August 18, 1874. Plaintiff did not serve a written notice on the commissioners denying the encroachment within five days from the service of the last-mentioned order.
    Plaintiff’s counsel offered to prove that the commissioners, by the order of 1872, altered the old road, taking away part of the plaintiff’s land, without first complying with the statutory requirements prescribed in cases of laying out or altering roads; that in doing so they transcended their authority and acted without jurisdiction, and claimed that the order of 1872 being void, plaintiff had a right to disregard each and every subsequent order founded thereon. The court held that the verdict must, nevertheless, be for defendants, because plaintiff neglected to give notice to the commissioners denying the encroachment, within the time prescribed by statute, to which ruling plaintiff’s counsel duly excepted.

      Franlc Malocsay, for the appellant.

      Downing & Stcmbrough, for the respondents.
   BarNard, P. J.:

The court, erred in holding that the plaintiff must deny an encroachment on oath upon a highway, or that he is finally bound by the order of the commissioners. The statute does not make such order final and conclusive. (2 R. S. [5th ed.], 407, § 141.) If the order was regularly made and correctly recited an obstruction which in fact existed, the order would presumptively evidence those facts. But plaintiff would not be bound to admit the jurisdictional facts upon which that order depended; even if he had denied the obstruction, and the jury had found against him, would he have been estopped from this action? (Doughty v. Brill, 36 Barb., 488; affirmed in Court of Appeals, 3 Keyes, 612.) The plaintiff in this case attempted to prove that the old highway of 1778 was not the highway as described in the commissioners’ order of 1872. The order requiring the plaintiff to remove an obstruction was based upon this order of 1872. Under the statute permitting commissioners to ascertain and describe an imperfect record, they cannot add to tbe old road. Proof was given tending to sbow that the obstruction removed (a fence) was placed by plaintiff so as to widen the road, and not to diminish its width. The offer to prove, if it had been permitted, would have established that the old record did not include the place' where plaintiff had erected his fence. There would then have been proof that the commissioners’ order was made wholly without jurisdiction. (People v. Judges of Cortland Co., 24 Wend., 494.) It needs no authority to establish the principle that an order made where the officer had no jurisdiction is not conclusive.

Judgment reversed and new trial granted; costs to abide event.

Gilbert, J., concurred; DyiímaN, J., not sitting.

Judgment and order denying new trial reversed, and new trial granted; costs to abide event.


text:
    S. HOPKINS KEEP, Appellant, v. LESTER KEEP and CAROLINE J. Y. KEEP, Respondents.

      Submission to arbitration — when void — appealability of judgment.

      ■ This action was brought to set aside a conveyance of real estate, which was claimed in fee by the plaintiif, and also by the wife of the defendant, she being a party defendant herein. After a reference of the action it was agreed, in writing, that all matters in dispute should be submitted to the referee as arbitrator, and that judgment should be entered on his award. Judgment having been entered on the report of the referee, defendants appealed.
    Upon a motion by plaintiff to dismiss the appeal, held,, that the submission being void, because made by a married woman, and because the subject of it was a claim in fee to real estate, the judgment was appealable the same as any other.
    MotioN to dismiss an appeal.

      Erastus New, for tbe appellant.
    P. & D. Mitchell, for tbe respondents.
   Barnard, P. J.:

There were two suits pending, one in favor of plaintiff against defendant Lester Keep, and this one against Lester Keep and wife in favor of plaintiff. The actions were both referred to the same referee to hear and determine. The claim in this suit, as appears from the affidavit of Mrs. Keep, was to set aside- a conveyance of lands in Brooklyn, to which plaintiff and Mrs. Keep claimed to have title in fee. While the trials were proceeding before the referee, it was agreed, in writing-, between the parties in both suits, that the matters in difference in both suits should be submitted to the referee as arbitrator, and that judgment should be entered upon his report or award. The plaintiff had judgment in both actions, and the defendants appealed. The plaintiff -in this action moves to dismiss the appeal. The motion should be denied. The judgment is a judgment of the Supreme Court, entered upon a trial before a referee. The arbitration was illegal for two reasons. It was made by a -married woman, and one of the subjects of the arbitration was a claim of the parties to a fee of real estate. (2 B. S., 541.) If the submission is of no effect, then the judgment must be reviewed like other judgments, being made by a referee duly appointed to try the action as actions are usually tried, and according to legal rules.

Motion denied, without costs.

Present — BarNARD, P. J., Gilbert and LykmaN, JJ.

Motion to dismiss appeal denied, without costs.


author: GILBERT, J.:

text:
    JOHN GELSTON and THOMAS DOUGHERTY, as Trustees and Executors of HENRY SHIELDS, Deceased, Respondents, v. WILLIAM H. SHIELDS and others, Appellants.
    Will— when “ ehilcfo'en ” means illegitimate children — Ghiardian of the person entitled to receive the income of the estate— When tenant for life hound to pay interest on mortgage — When the exercise of a discretionary power of sale, not compelled.

    Henry Shields died in March, 1874, leaving a will which provided, among other things, as follows: “I give to my beloved wife Catharine Shields, the dwelling-house now belonging to me. * * * I direct that my executors shall set apart * * * several sums of §5,000 each, according to the number of my children surviving me, which sums or property of equal value shall be in trust by my executors, and set apart, one for the benefit of each one of my children surviving me; * * * as to all the rest, residue and remainder of my estate, * * * I give and devise the same in equal shares to my children who shall survive me.” * * * I appoint my wife the guardian of the persons of my infant children during their respective minorities.”
    Henry Shields, the testator, was married November 20, 1848, to defendant, Catharine Shields, and had by her eight children, four sons and four daughters, all of whom were living at testator’s death, and five of whom were then minors.
    After testator’s death, an action was commenced by one Jane Shields, who claimed to be the widow of the testator, to recover her dower, and a judgment was recovered by her therein, Catharine Shields and her children being parties to that action. It appeared that the testator married the said Jane in 1833, and lived and cohabited with her until 1848 Two children, a son and a daughter, were born of her, both of whom were living dt his death. Since his marriage with Catharine Shields, he had lived with her as his wife.

      Held, that by the word “ children ” in testator’s will, he meant his illegitimate children by Catharine Shields, and not his legitimate children by Jane.
    That under the provision appointing his wife the guardian of the persons of his infant children, Catharine Shields was appointed such guardian, and that, as such, she was entitled to receive the income of their estates.

      Quaere, as to whether she should be compelled to give security.
    The testator gave to his wife a house, during her widowhood, and directed that if it should be sold by his executors, with her consent in writing, the proceeds should be invested and the interest paid to her during her widowhood; and if testator should dispose of it before his death, she was to have the income of a principal equal to the amount for which it was disposed of. Before his death testator executed a mortgage on the house to secure a debt of his oldest son.

      Held, that the wife was bound to keep down the interest on the mortgage during her life, and had no claim against the estate for the amount so paid.
    In an action brought for the construction of a will, it is not proper to direct the executors to make a sale under a discretionary power of sale vested in them by the will.

      Ceoss-Appeals from a judgment entered upon the trial of this action by the court without a jury. The action was brought to obtain a construction of the will of Ilcnry Shields.
    Henry Shields, the testator, died in March, 1874, leaving a will, which provided, among other things, as follows, viz.: “I give my beloved wife, Catharine Shields, the dwelling-house now belonging to me, known as No. 106 (one hundred and six) Second avenue, in the city of New York, that she now occupies; to have and to hold the same unto my said wife during her widowhood, and if said dwelling-house and lot on which it stands should be sold by my executors, with her consent in writing, the proceeds thereof shall be held and invested by my executors, and the income thereof applied to her use during her widowhood, and upon her death or remarriage, I devise the same in equal share to my then surviving children, and the then surviving issue of any who shall have died in fee simple as tenants in common, the issue of any deceased child to take the share its parent would have taken if surviving. If I shall dispose of said dwelling-house before my death, then, in lieu thereof, I give to my -wife the income of a principal sum equal to that at which I shall have so disposed ofthe same, to be enjoyed during her widowhood, the principal to be held and invested by my executors for this purpose. I give and devise to my executors in trust the sum of $30,000, * * * to be held and invested by them, and the income * * * thereof shall be applied by them to the use of my dear wife during her widowhood. The provisions contained in this will for the benefit of my wife are in lieu of all dower or thirds in my real estate. I give all my household furniture * * * to my dear wife to be hers forever. * * # I direct that my executors shall set apart, out of the residue of my estate, real or personal or both, excluding that hereinbefore mentioned, several sums of five thousand (5,000) dollars, or property in their judgment of equivalent value, according to the number of my children surviving me, which sums, or property of equal value, shall be in trust by my executors, and set apart, one for the benefit of each one of my children surviving me in the manner following: * * * And in the event that any one of my sons shall die before attaining the age of twenty-five years, and without issue surviving him, or if any daughter shall die without issue surviving her, the said principal shall fall into my residuary estate and be disposed of as such. As to all the rest, residue, and remainder of my estate, both real and personal, not hereinbefore well and sufficiently disposed of, I give and devise the same in equal shares to my children who shall survive me, to be their’s forever; the issue of any child who shall die before me to take the same share its parent would have taken if surviving me. I appoint my said wife the guardian of the persons of my infant children during their respective minorities. * * # I authorize my executrix and executors, or those who shall act for the time being, to sell all, or any part of my real estate, cither at public or private sale, for such prices as they shall think fit,' and to give good and sufficient deeds of conveyance therefor in fee simple, and until such sale they shall receive the rents and profits thereof for the purposes of this will. They are authorized to sell and convey all, or any part of said real estate, and they are also authorized to keep the building in good order and repair, and insured against loss or damage by fire, and to use moneys received from insurance companies for loss for the purpose of rebuilding, if, in their judgment, beneficial to my estate; also to compound and compromise all claims in favor of or against my estate.”
    The action was brought to obtain a judicial construction of the will. The justice before whom the action was tried found, among other things, that said Henry Shields was married to the defendant, Catharine Shields, on the 20th day of November, 1848, and that he had by her eight children, four sons and four daughters, all of whom were still living, and seven of whom were at his death infants; that said Catharine Shields, the widow of Henry Shields, deceased, accepted the provisions of the will in her behalf; that since the testator’s death a claim was made by one Jane Shields, or Jane Valentine, that she was the widow of said Henry Shields; that a demand for dower was made by her in the real estate of the testator, and an action was commenced by her for the recovery of such dower against all the parties to this action, and a judgment was obtained by her in this court on the 26th day of May, 1876, for a sale of testator’s real estate, and for the payment to her of a gross sum of money in lieu of her dower in said real estate; that an order was entered in said action for the compromise and settlement of said judgment, and the same was after-wards settled, and said judgment satisfied of record; that the defendants, Catharine J. Bonner and William B. Shields, are children of the said Jane; that said Catharine was born in the year 1840, and said William B. was born in the year 1848, and that three other children of Jane died without issue and intestate prior to the year 1863; that actions were commenced by said Catharine J. Bonner and said William B. Shields, in the City, Court of Brooklyn, against said executors and executrix, to compel a recognition of their claims to be children of Henry Shields, deceased, and beneficiaries under said will, which actions are still pending; that the defendants, Henry L. Bonner, Paul Bonner, Mary E. Bonner and Jennie Bonner, are infant children of said Catharine J. Bonner; that at the time of the execution of said will the dwelling-house and lot No. 108 Second avenue, in the city of New York, in said will mentioned, was clear of mortgage; that the testator subsequently borrowed from the Bank for Savings of the City of New York, the sum of $10,000, and executed his bond, together with a mortgage, covering the said premises, 108 Second avenue, bearing date May 15, 1872, and payable one year thereafter, which mortgage was duly recorded and is still due and unpaid. The justice further found that the testator did not in his will refer to, or intend to provide for, the said William B. Shields or the defendant Catharine J. Bonner or her children, and that the testator’s wife and children, mentioned and referred to in said will, are the said Catharine Shields, his widow, and the eight children above named, the issue of his marriage with said Catharine Shields; and, as conclusions of law, that the defendants, William B. Shields and Catharine J. Bonner, and the children of said Catharine J. Bonner, have not, nor has either of them any rights or interests in the real. or personal property of the testator, the said Henry Shields, deceased; that the defendant, Catharine Shields, is the person referred to in said will as the wife of the testator; that during her tenancy for life or widowhood on the premises, 108 Second avenue aforesaid, she must keep down and pay the interest on the mortgage thereon of $10,000 tm it becomes due, and the animal taxes and water-rates on said premises ; that she must keep said promises in repair and free from waste, and pay the annual premiums for insurance thereof against fire; that the widow, Catha-rine. Shields, is not entitled, as testamentary guardian of the persons of the minor children of said Henry Shields, to receive the rents, income or property of such children. That in order to pay the taxes in arrears, the unpaid claims and the costs and expenses of this action, a sufficient portion of the testator's real estate should be sold and conveyed by the executors and executrix.

      J. J. Perry, for the respondents Catharine J. Bonner, William B. Shields, and guardian ad litem for infant children of Catharine J. Bonner.
    In all wills and devises the words “heirs” and “ children” mean legitimate heirs and children only, and before a court will construe a will to include, under the general term, “children,” illegitimate children, the intention of the,testator must bo clear, unequivocal and positive, and the names of each must be specifically stated. (Gardner v. Hyer, 2 Paige, 11; Beachcroft v. Beachcroft, 1 Macld. Chy. [English]; Barrett v. Hodman, 37 N. Y., 58; Gollins v. Hoxie, 9 Paige, 88; Oartwright v. Vaudry, 5 Yesey, 530.)

      Homer A. Helson, for the respondent Catharine Shields,
    widow of Henry Shields, and her children. The intention of the testator, if not inconsistent with the rules of law, must govern, and this intention is to be ascertained from the whole will. (Brad-hurst v. Bradhurst, 1 Paige, 343; Oovenhoven v. Shuler, 2 ich, 130; jRathbonev. Dyclcman, 3 id., 26; Hmvev.- Van Schaiclc, 3 Barb. Chy., 506; Roome v. Phillips, 24 N. Y., 463; 4 Hun [11 Sup. Ct. Rep.], 363; Van Hostrand v. Moore, 52 N. Y., 21; St. Luke's Homey. Association for Indigent Females, 52 id., 191; Lefemer v. Lefever, 59 id., 440; Holmes v. Mead, 52 id., 322; Gardiner v. Heyer, 2 Paige, 11; 1 Jar. on Wills, 330; 1 Redf. on Wills, 691, § 42, pi. 40; id., 695, pi. 49.) Mrs. Catharine Shields, the testamentary guardian of the infant defendants Shields, is appointed such guardian by article eighth of the will of testator, and as such guardian would be entitled to have the custody and management of their personal property and the profit of their real estate by statute. (3 R. S. [5th eel.], 243; R. S., part II, tit. 3, eh. 8; People ex rel. Brooklyn Industrial School v. Kearney, 31 Barb., 430; 3 R. S. [5th ed.], 2, §§ 5, 6.)

      George G. Blanhe, for the respondents.
    It is the duty of Mrs. Catharine Shields, as tenant for life or widowhood of the premises in Second avenue, to keep down and pay during her tenancy the 'interest on the $10,000 mortgage on these premises, and also the taxes, water-rates, repairs and insurance premiums. (The Estate of Miller, 1 Tucker’s Sur. Rep., 346; Gairns v. Ghabert, 3 Edw. Chy., 312; 2 Brad. Sur. Rep., 77-311; 4 Kent’s Com., 75; 1 Story’s Eq. Juris., § 488; Mosely v. Marshall, 20 N. Y., 200.) Mrs. Catharine Shields, as testamentary guardian under this will, has no right to receive the rents and income of her minor children. (Accounting of Ira Scickett’s Estate, 1 Tucker’s Sur. Rep., 84; Accounting Estate of Frederick A. Biolly, 1 id., 422.)
   GILBERT, J.:

It seems to me to be a stretch of the power of the court to direct an exercise, partial or otherwise, of the power of sale contained in the will. This suit was brought merely for the purpose of obtaining a judicial construction of that instrument. The ■power of sale is discretionary and is one in trust. The execution of such a power ought not to be coerced, except by a judgment rendered in a suit brought for that purpose, and upon proof showing the necessity therefor. If the executrix improperly refuses to co-operate with her co-executors in effecting a sale, she . may be compelled to do so, or be removed by appropriate proceedings. I am also of opinion that the executrix is testamentary guardian of her infant children, and as such is entitled to the custody of their persons, and to the custody and management of their personal estate, and to receive the rents and profits of their real estate. Testamentary guardianship did not exist at common law, but rests upon statutes. (12 Car. 2, ch. 24; 2 R. S., 150, §§ 1, 2, 3; Schoul Dom. Rel., 393.) The power of testamentary disposition given, is to dispose of the custody and tuition of infants. The so-called wife of the testator was appointed guardian of .the persons only of her children. But such guardianship obviously involves the custody and tuition of them. I think, therefore, that her appointment was in substantial conformity with the statute. But, if otherwise, the third section of the Devised Statutes cited confers upon any person, to whom the custody only of a minor has been disposed of, the powers of a testamentary guardian. Whether security should, be required of the guardian, is a question which is not before us.

The provisions of the will in favor of the testator’s so-called wife have not been assailed. By some of those provisions the testator gave to her his dwelling-house, and the lot on which it stands, during her widowhood, and directed that if the same should be sold by his executors, with her consent in writing, the proceeds thereof should be held and invested, and the income applied to her use. The will further provided, that if the testator disposed of the said house and lot before his death, then in lieu thereof he gave to her the income of a principal sum, to be held and invested by his executors, equal to that at which he so disposed of said property. Intermediate the making of the will and the death of the testator, he mortgaged that property for the accommodation of his eldest son, and that mortgage is still outstanding. The gifts for the benefit of his so-called wife were expressly made in lieu of her dower, and she having accepted the same, the question arises whether she is bound to keep down the taxes and the interest which shall accrue upon the mortgage. I think she is. Having elected to accept the provisions of the will, she must take them according to their legal effect. The court cannot alter those provisions, or either of them, in order to obviate any change of circumstances which has occurred since the will was made. The mortgaging of the house and lot, although it was a disposition of that property in one sense, yet it was not such an one as calls for the exercise of the alternative provided by the will. The widow must therefore keep down the taxes on that property, and the interest on the mortgage thereon, and the will makes no provision for reimbursing her in any form. With respect to the terms of the judgment in other particulars, there has been no contest, save on the subject of the gifts for the benefit of children. The testator, by his will, in the clearest language, designates the defendant, Catharine Shields, as his wife; he creates trusts for the benefit of bis surviving children; for “each” of his sons, and “ each” of his daughters, separately, with gifts over to their children, and he appoints his so-called wife guardian of the persons of his infant children during their respective minorities. It appears that after the death of the tes-, tator, a woman, whose maiden name was Jane Valentine, brought an action in this court to recover her dower in the testator’s lands, on the ground that she was his Avidow; that all the parties to this action were parties defendant in that action, and that upon a trial of special issues, it was found and adjudged that the testator and said Jane were married in the year 1833; that said Jane was his widow, and that she was entitled to recover her dower in the lands of the testator. Upon the trial of this action it was proved that, at the date of the testator’s will, there were living a daughter' and a son, who were the offspring of the testator and said Jane, and who are still living; that the daughter was born in the year-1840, and that the son was born in the year 1848. It was also proved that on November 20th, 1848, the testator was formally married, by a priest of the Roman Catholic Church, to the said Catharine; that he had by her four sons and four daughters, all of whom, except one daughter, were ‘ bom before he made his will, and all of whom are living; that from the time of the marriage between the testator and said Catharine,, until his death, they lived together openly, and notoriously, as husband and wife, and together with their children, as they were successively born, formed one household; that said Jane was only fourteen years old in 1833, and that all connection, between her and the testator, ceased in 1848, after which she never saw him. The evidence tended very strongly to show that the testator never recognized said Jane as his wife, or their offspring as his lawful children, and that the kind of recognition which he did bestow upon them was such as indicated that his connection with said Jane was unlawful, and that he did not regard said children as legitimate.

Upon these and some minor facts the justice, at Special Term, found that the children referred to in the will were the issue of the testator’s marriage with said Catharine. The justice did not find that either marriage was lawful or unlawful, or that the issue of either marriage were legitimate or illegitimate. He was requested to find that the children of the testator and said Jane were the lawful issue of their said marriage, which request was refused, and the defendant excepted. Upon that question of fact it was not the duty of the justice to comply with the request, unless the judgment in favor of Jane, before referred to, operated as an estoppel against the children of Catharine. Treating the judgment as evidence merely, to be considered with the other evidence in the case, the request was properly refused. For it is not the right of a party to have a fact found, unless it has been proved by uncontroverted testimony. The judgment recovered by Jane was one in personam, and not one in rem. The question of the legitimacy of children was not involved in the case. That point, therefore, is still open to litigation. Upon the trial of this case; no direct evidence of either the non-existence or of the invalidity of the alleged marriage with Jane was given; but evidence was given, aliunde the judgment in the suit for dower, tending to show that the testator and said Jane were in fact married in the year 1833, and that the defendants Catharine J. Bonner and William B. Shields are the offspring of that marriage, and the only offspring thereof who were living when the testator made his will. Assuming, therefore, the existence of such marriage, and its continuance until the death of the testator, nevertheless the question presented, relative to the gifts to children, is one respecting the intention of the testator only. That intention is to be collected from all the provisions of the will, and the circumstances surrounding the testator at the time the will was made, and when ascertained must control the interpretation thereof.

That rale is too familiar to require a citation of authorities to sustain it. Prima facie the word “children” means legitimate children. But when it appears from the will itself, by express designation, or by necessary implication, that the intended objects of the testator’s bounty are illegitimate children, they will take under the description of “ children.” “ Necessary implication,” said Lord EldoN, in Wilkinson v. Adams (1 V. & B., 422-466), “ means not natural necessity, but so strong a probability of intention, that an intention contrary to that which is imputed to the testator cannot be supposed.” Such manifestation of the testator’s intention is as effectual as if he had-written the word “ illegitimate ” before the word “ children.” In Wilkinson v. Adams, just cited (1 Y. & B., 422), the testator at the time he made his will had a wife living, but no children by her. Another woman, Ann Lewis, was living with him, by whom he had three natural children, all of whom were born before his will was made. All ^ these children, at the time when the testator made his will, had acquired the character and reputation of being his natural children by Aim Lewis. By his will he made a devise in these words, “to the children which I may have by the aforesaid Ann Lewis, and living at my decease,” etc. It was contended that the testator contemplated the death of his wife before his own death, a marriage with Ann Lewis, and his having children by her. But the judges, in an opinion sent to the lord chancellor, upheld the devise, upon the ground that from the material parts ol- the will it appeared that the testator meant the devise to operate in favor of his illegitimate children, born and to bo born by Ann Lewis, and they declared that the case of Cartwright v. Vawdry (5 Ves., 530), relied on by Mr. Perry in this case, could not be considered as a decision. Lord EldoN, after commenting on the case of Cartwright v. Vawdry and other cases, and explaining the former, decided that the illegitimate children were, upon the will itself, the whole taken together, entitled to take as devisees. In Beachcroft v. Beachroft (1 Madd., 430), Sir Thohas Plumee said: “I know of no rule of law which prevents illegitimate children claiming under a class or description as well as any other strangers. Such children are not prohibited from taking, as by the civil law, and I see no reason to prevent them taking under a general description.”

The rule thus stated has been applied in numerous cases, both prior and subsequent. (See Pow. Dev. pt. 2, chap. 17; Jar. on Wills, chap. 31.) Mr. Jarman states (vol. 2, p. 155), as a conclusion from all the cases, that illegitimate children are not objects of a gift to children, or issue of any other degree, unless a distinct intention to that effect be manifest upon the face of the will, and if by possibility legitimate children could have taken as a class under such gift, illegitimate children cannot.” The English courts have usually adhered, with a far greater degree of strictness and pertinacity than would in general be deemed allowable by the courts of tliis country, to any rule for the construction of wills, when once established. In some instances they have done so when an application of the rule required them to violate the manifest intention of the testator. A notable instance of this occurred in the case of Edmunds v. Fessey (7 Jur. [N. S.], 282). In that case there was a bequest “ to each of the sons and daughters of A. E. living' at my death. ” At the death of the testator there were living three sons and one daughter of A. B. One of the sons and the daughter were illegitimate. Sir JoiiN Eojiilly, notwithstanding he was of opinion that it was evident the testator intended to include all the children, held that the illegitimate daughter took the legacy, but that the illegitimate son was excluded. See the remarks of Mr. J. Rcdfield on this subject. (2 Redf. on Wills, 340 et seq.; 1 id,, 656 et seq.) In Williams on Executors, etc. (7th ed., vol. 2, p, 1099), it is stated that the rule of Mr. Jarman is not an invariable one, and that statement is confirmed by recent cases in England.

In Holt v. Sindrey (L. R., 7 Eq. Ca., 170), the testator made a bequest to his daughter Mary, the wife of John Lattimer, for life, and after her death to her children. Mary married one Elen-loy, but separated from him on the day of the marriage, and they never mot again. Within a year after they separated, and more than thirty years before the death of Flcniey, Mary married John D. Lattimer, and had issue by him seven children. Sir Joi-iN Stuart, Y. C., held that the illegitimate children of Mary took under the will, because they were clearly described therein as the objects of the gift. He said, “ the fact that, from ah unknown circumstance, the children begotten of Mary Lattimer were, although the testator did not know it, illegitimate, seems to me to have nothing to do with the question whether they are or are not sufficiently described in the will.” In Lepine v. Bean (L. R., 10 Eq., 160), the testator, William Bean, gave his real and personal estate to trustees in trust, to pay the income to his “ dear wife, Margaret Bean,” for life, provided she should so long continue his widow and unmarried, and after her death or second marriage, upon trust to divide the estate between all his children in equal shares. The testator was not married to Margaret Bean, but he had a wife named Elizabeth Bean living. She was seventy years old, aiul the testator had always lived apart from her, and he had had no children by her. Margaret Bean had always lived with the testator, and was recognized as his wife, and he had four children by her, two of whom had died before the date of the will — one was then alive, and the fourth was born afterwards. These children were all baptized in the name of the testator, and were always known by his name. There the Master of the Bolls, Sir JohN Boiiilly, held that after the death of Margaret Bean, if she continued unmarried, the estate would devolve on the surviving child of the testator and said Margaret. He said, “ lie calls her (Margaret) his wife all through the will, and he also calls the children ‘ my children.’ I think it is pretty clear that by these words he meant his children by the woman he called his wife.” In Crook v. Hill (L. R., 3 Ch. Div., 773; S. C. L. R., 6 Ch., 311), there was a gift to the testator’s daughter, Mary, with power of appointment to her children. She had had two children by one Crook. Mary was not the wife of Crook, although she had gone through the ceremony of marriage with him, nor could she become his wife, because Crook was her deceased sister’s husband. It was held that, as by the will the testator showed that he intended to recognize the children as legitimate, they were entitled to take under the gift to children, notwithstanding they were illegitimate. That decision was affirmed in the House of Lords (L. R., 6 H. L., Ca., 265). The doctrine thus laid down is fully recognized and approved in Dorin v. Darin (L. R., 17 Eq., 463; S. C. L. R., 7 H. L. Ca., 568; Laker v. Hordern, L. R., 1 Ch. Div., 644; Barlow v. Orde, L. R., 3 Priv. Coun. App., 164-189.)

Our own reports do not abound with cases analogous to that which is before the court. The rule as stated by Ch. Walworth, derived from the English cases then (1841) published is, that when there are legitimate children in existence at the time of making the will, so as to satisfy the words of the devise or bequest in their primary sense, an illegitimate- child cannot take under a general devise or bequest to children, as a class, unless there is something appearing upon the face of the will to show that the testator intended to include others besides legitimate children. (Collins v. Hoxie, 9 Paige, 87, 88.) A different rule was not applied in Gardner v. Heyer (2 Paige, 11), for in that case the testator was never married, and a devise to his illegitimate children was held to be good, and the chancellor cited with approval the case of Beachcroft v. Beachcroft (supra). In Cromer v. Pinckney (3 Barb. Ch., 466), the chancellor reiterated the rule in Oollins v. Iloxie, and enlarged it by giving effect to extrinsic circumstances existing when the will was made in determining the construction of the will.

The rule, thus established, simply carries out the intention of the testator, as manifested by the language which ho used, in conjunction with the circumstances which surrounded him at that time, instead of defeating that intention by attributing to words a technical meaning different from the sense in which the testator used them.

It is very true that in the cases cited there were no legitimate children to whom the description of the will could apply, and that if the gifts to illegitimate children had not been upheld, the gifts would have failed altogether. In some of the cases, also, the description of children might have been applied to legitimate children if there had been any, without violating the intention of the testator, and, in such an event, no doubt would have been so applied. But when the intention of the testator to give to illegitimate children is clear, the fact that legitimate children are in existence, who might possibly take under the description of the will, cannot defeat that intention. In all such cases the language used must be interpreted in its ordinary sense, unless, as stated by Ch. Walworth, in the cases above mentioned, there be something upon the will, in conjunction with the circumstances surrounding the testator at the time it was made, to show that another sense was intended. The rule is a reasonable one, and is also a logical consequence of the power of testamentary disposition. A man has a right, qualified only by the restraints of positive law, to give his property to whomsoever he pleases. If he has both legitimate and illegitimate children, he may make either or both the objects of his bounty. Under the description of “ children,” alone, only legitimate children will take. But the will by itself, or in connection with such extraneous evidence as the law permits to be given, may show that the objects intended by the testator include both classes, or one class, to the exclusion of the other. The intention of the testator is the pole star of construction, and must in every case determine the effect to be given to the will. (1 R S., 748, § 2.)

In the case before us I think that the will furnishes very cogent evidence that the persons whom the testator intended by the description of “ children ” were those who were born of the woman whom he called his wife. In the case of Hill v. Crook (L. R., 6 H. L. Cas., 285), before cited, Lord Chancellor CairNES said: “ It appears to me that the terms 1 husband’ and ‘ wife,’ ‘ father’ and ‘mother,’ and ‘children’ are all correlative terms. If a father knows that his daughter has children, by a connection which he calls a 1 marriage ’ with a man whom he calls her ‘ husband,’ terming the daughter the ‘ wife ’ of that husband, I am at a loss to understand the meaning of language, if you are not to impute to that same person, when he speaks of the 1 children ’ of his daughter, this meaning, that as he has termed his daughter, and the man with whom she was living, ‘ wife ’ and ‘ husband,’ so also he means to term the offspring, born of that so-called marriage, the children, according to that nomenclature. That is all that your Lordships have to find. If you find that that is the nomenclature used by the testator, taking his will as the dictionary from which you are to find the meaning of the term he has used, that is all which the law, as I understand the cases, requires.” In Barlow v. Orde (supra), Lord Chancellor Westbury held “that the word ‘ children ’ must be taken in that sense that it was used by the testator — that is to say, its extent of meaning in the vocabulary and mind of the testator must be determined in the will itself.” These remarks applied to those cases, and to this case are sensible and just. See, also, prevailing opinion in Cutter v. Doughty (7 Hill, 305), reversing. S. C. (23 Wend., 513). Whether the testator was lawfully married to Catharine Lalor or not, there can be no question that he thought she was his lawful wife, and that he did not regard his connection with Jane Valentine, whatever it was, as one which created a marriage between them. That being so, it follows as a corollary that the children whom he intended to provide for were the children who were born of the woman whom he called his “ wife.” If no dispute existed respecting the validity of the testator’s marriage with said Catharine, those children would have taken by force of the meaning which the law gives to the term “children.” Using the will as the testator’s glossary, or dictionary, to ascertain the meaning of that term, the result must be the same. In other words, the children designated in the will are those born of the testator’s wife, and for the purpose of the construction of his will she must be treated as his “wife,” whom the testator called his wife. Additional evidence that such was the intention of the testator also arises from the fact that all the provisions for children are in terms for sons and daughters, in the plural number, which, of course, are not strictly applicable to the one son and one daughter of said Jane; from the appointment of his so-called wife Catharine guardian of the persons of his infant children, whereas only one of his children by said Jane was an infant, and from the extreme improbability that the testator intended to make his so-called wife guardian of the person of the infant son of said Jane. Having thus ascertained that the children of Catharine are those intended, the others must necessarily be excluded, for the reason that they do not fall within the geiieral description of children according to the vocabulary of the testator.

Upon the whole I think that the judgment, with the modifications suggested, should be affirmed, with costs to the respondents, 'to be paid out of the estate.

BarNard, P. J., concurred; DykmaN, J., not sitting.

Judgment affirmed, and modified in accordance with opinion.


author: Gilbert, J.:

text:
    THE CITY NATIONAL BANK OF POUGHKEEPSIE, Plaintiff, v. WILLIAM PHELPS and MARTIN E. KINGMAN, Defendants.

      Guaranty — when continuing — when not affected by corporate change — if made by a firm,it ceases on notice of its dissolution.

    In 1861 the firm of Phelps & Kingman executed and delivered to the City Bank of Poughkeepsie the following- paper: “ We hold ourselves responsible for the payment of any sum, not to exceed five thousand dollars (§5,000), Mr. C. H. Woodruff may receive of your bank for legitimate business purposes.”

      Held, that the guaranty was a continuing one.
    Subsequently the bank, then a State corporation, became a national bank, under the name of the City National Bank of Poughkeepsie Held, that its identity was not so changed as to terminate the guaranty.
    In 1863 the firm dissolved, and in 1875 notice thereof was given to the bank. Held, that the guaranty covered all advances made prior to notice of the dissolution, but that neither the firm nor the partner’s, individually, were liable for advances subsequently made.
    Under such guaranty, the signer’s were liable for all notes discounted within six years prior to the commencement of the action, whether to renew old notes or otherwise.
    Motion for a new trial on exceptions ordered to be heard, in the first instance, at the General Term, after a verdict in favor of the plainti if.
    The action was brought to recover of the defendants as guarantors of one Woodruff the amount of certain advances made by the plaintiff to said Woodruff. The guaranty was contained in the following paper, signed by the firm of Phelps & Kingman :
    “New York, Feb. 15, '61.
    1 ‘ City Bank, Poughkeepsie, N. Y.:
    “We hold ourselves responsible for the payment of any sum, not to exceed five thousand ($5,000), Mr. C. H. Woodruff may require of your bank for legitimate business purposes.
    “ Yours respectfully,
    “PHELPS & KINGMAN.”
    Subsequently The City Bank of Poughkeepsie was changed into a national bank, and its name into The City National Bank of Poughkeepsie.

      During the trial the action was discontinued as to Kingman. The firm was dissolved in 1863, of which notice was given to the bank in 1875. After notice of the dissolution of the firm had been received by the bank, the following letter was received from defendant Phelps:
    “A. H. ChampliN, Esq., Cashier:

    “Dear Sir — Several years since the firm of Phelps & King-man gave your bank an obligation, holding ourselves responsible for the payment of any sum, not to exceed five thousand dollars ($5,000), Mr. C. H. Woodruff may require for legitimate business purposes. Mr. Woodruff informs me that you desire to have this obligation renewed, and Mr. Kingman declines to sign the renewal. I regarded the obligation good when given, and believe it to be just as good now as it was then, so that I do not see the slightest advantage in having it renewed. Mr. Woodruff assures me, and as he seems to be improving financially, I have no doubt he will, within a reasonable time, retire the paper for which .the obligation was given. As I do not see how your bank can be prejudiced, please let the matter remain, and oblige
    “Yours, very respectfully,
    “WM. PHELPS.”
    Plaintiff claimed that by this Phelps became liable for advances made to Woodruff after the dissolution of the firm.

      Homer A. Nelson, for the plaintiff.

      William T. Birdsall and Edward 8. Clinch, for the defendant Phelps.
   Gilbert, J.:

The plaintiff was formerly a State bank, incorporated by.the name of the city Bank of Poughkeepsie. On the 15th of February, 1861, the partnership of Phelps & Kingman gave to said bank an instrument, whereby they held themselves responsible for the payment of any sum not to exceed $5,000, which one Woodruff might require of 'said bank for legitimate business purposes. It is objected that no consideration is expressed, as was required by the statute of frauds before the amendment of that statute in 1863. The contract is prospective, and the consideration of it plainly appears, namely, future advances to be made by the bank to Woodruff. That is sufficient. (Church v. Brown, 21 N. Y., 315.) The guaranty, I think, is a continuing one. It is a mercantile instrument, and should receive a liberal construction in furtherance of its object. Its purpose obviously was to furnish aid in carrying on the business of Woodruff, and it is unlimited as to time, and the limitation of amount is restrictive only of the liability of the guarantors. As was said by Lord ElleNbokougi-i in Merle v. Wells (2 Camp., 413), which was a case analogous to this, “ if a party means to be surety only for a" single dealing, he should take care to say so.” (See Coles v. Pack [ L. R.], 5 C. P., 65 ; Mayer v. Isaac, 6 M. & W., 605 ; Clark v. Burdett, 2 Hall, 217 ; Rindge v. Judson, 24 N. Y., 64.)

I think that the change of the plaintiff from a State to a National bank did not destroy either the existence or the identity of the corporation, for the same reason that a citizen of a State does not lose his identity by accepting the privileges and emoluments incident to the civil, or military, or naval service of the country. Such change conferred new franchises, and imposed new duties and responsibilities upon the corporate body in addition to those which it previously had, but nothing more. The corporate property remained ; the respective interests of the stockholders therein were not divested or altered in any sense, and the rights, powers and duties of the trustees or directors continued with only some modifications of a formal character. There was a slight change in the corporate name, but the new name designated the same entity. In short, 'the legal effect of the change was merely the acceptance of a new charter by the corporation. It remained to every intent and purpose as it did before, though its name was altered, and its new charter was granted by the National instead of the State Legislature. (First So. M. E. Church v. Brownell, 5 Hun, 464, 468, and cases cited ; U. S. Rev. Stat., § 5154.) I am of opinion, therefore, that the plaintiff is the creditor, and entitled to enforce the contract on which the action was brought, if it is enforceable at all.

The bank made advances to Woodruff, on the faith of the guaranty, from February, 1861, to July, 1876, and there remains due from him to the bank more than $5,000. The partnership of Phelps & Kingman was dissolved in 1863. But it does not appear that notice of such dissolution was given to the bank prior to March, 1875. It was admitted by the plaintiff that in October, 1875, Kingman gave a notice which released him from liability for (as I infer) advances made thereafter. The legal effect of the dissolution of the partnership, with notice thereof to the bank, I think, was to absolve both guarantors from liability for advances made after the notice was given, unless something occurred to qualify or destroy the effect of such notice. The general rule is certainly well settled, namely, that as to third persons the effect of a dissolution of a partnership is to absolve the partners from all liability for future transactions. It has also been repeatedly held, in accordance with that principle, that a guaranty given to a partnership cannot be extended to new advances or credits, after a change of any of the original partners, by death or otherwise. (Coll. Part., § 421.) By parity of reasoning, a guaranty given by a partnership ought not to be extended to new advances or credits, made after the dissolution of such partnership by death or otherwise, and notice thereof to the person who holds the guaranty. And such is the rule in a case like this, as the same is stated by Mr. Justice Stout. (Story’s Part., § 251.) It is also said by Mr. Starkie that it has been decided that a continuing guaranty is countermandable by parol. (2 Stark. Ev. [2d ed.], 371, n.) And an executor, it seems, is not liable for advances made after the testator’s death, which operates as a revocation, especially if the person making the advances had received notice of the death before making the advances. (Smith’s Merc. Law [3d ed.], 584; Harriss v. Fawcett, L. R., 8 Chy. App., 866, which disapproves Bradbury v. Morgan, 1 H. & C., 249.) Whether the assent of both. Phelps and Kingman to the continuance of the guaranty, after the dissolution, would preserve their joint liability, and extend the same to advances made after the dissolution, and after notice thereof, is a question which it is unnecessary to decide, for such an assent is not claimed. The plaintiff claims to recover solely upon a several liability of the defendant Phelps. I see no objection to a recovery against him, if a several liability against him has been established. (Code of Civ. Proc., §§ 456, 539, 540.) But I am of opinion that the letter of October 6, 1875, on which the plaintiff relies, cannot be reasonably interpreted as an assumption by Mr. Phelps of any new or separate liability. In that letter it is true he affirmed the validity of the guaranty when given, and at the date of the letter, but he declined to renew the guaranty on the ground that the bank would not be ¡irejudiced by his refusal, because Woodruff would retire the paper for which the guaranty was given, and he concluded by asking the bank to let the matter remain. This was very far from an expression of willingness to change, in any respect, the position he occupied when the letter was written, or to incur fresh liability for further advances.

In disposing of the case at Circuit, the court did not advert to that letter, but submitted the case to the jury solely upon the question, whether Phelps notified the bank that he would not continue to be liable upon the guaranty for advances made after October, 1875. That was clearly erroneous, for his liability for future advances ceased when the bank received notice of the dissolution of the partnership, and it did not depend upon the giving or the omission to give such notice. No other notice than that of the dissolution was necessary.

There may be a liability on the part of one, or both defendants, for advances made prior to the notice of dissolution. I am inclined to think that the bank will be entitled to recover such of the advances as were made within six years before the commencement of the action, notwithstanding the notes given therefor may have been renewed, if such renewals occurred before the guaranty expired, unless some other defense thereto shall be established. For it would make no difference whether the bank required payment to be made, and then made a fresh advance, or omitted the demand for payment and granted a renewal. A discontinuance of the action against Kingman, -without an actual release of his liability, would not discharge Phelps. [Irvine v. Millbank, 56 N. Y., 635.)

The judgment must be reversed and a new trial granted, with costs to abide the event.

Present — Gilbert and DyemaN, JJ.; BarNard, P. J not sitting.

Exception sustained, and judgment reversed, and new trial granted, costs to abide event.


author: GILBERT, J. :

text:
    WILLIAM E. RYDER, Respondent, v. WILLIAM R. GILBERT, STEPHEN J. WEAVER, LOUISE E. GILBERT, CHARLES H. MUNDY and FIRST NATIONAL BANK OF SING SING, Appellants, Impleaded with ZIBA CARPENTER, Sheriff, etc.

      Partnership — property of one partner, how converted, into firm, property — executions against firm — priority of, over those against the partners individually.

    In August, 1874, plaintiff sold a stock of merchandise to J. D. Williams, who, thereafter, entered into partnership with his son Louis, no formal agreement of partnership being- made, but each sharing equally in the business and in the profits and losses thereof. The goods bought by J. D. Williams, as well as those subsequently bought by the firm, were sold indiscriminately, and the proceeds received and appropriated by the firm.

      Held, that these facts, in the absence of proof of any contrary agreement, established a community of interest in the property sold by the plaintiff, as well as in that subsequently acquired.
    That, in the absense of proof of an agreement to the contrary, the presumption was that J. D. and Louis Williams were equal partners.
    The plaintiff recovered a judgment against J. D. Williams, individually, for the goods sold to him, and issued an execution thereon, under which a levy was made upon the right, title and interest of J. D. Williams in all the property of the firm. Before a sale thereunder, other executions issued upon judgments recovered against both members of the firm, for firm debts, came into the hands of the sheriff. The sheriff subsequently made an absolute sale of all the said goods.
    In this action, brought for a distribution of the proceeds of the sale, held, that the judgmnet-creditors of the firm were entitled to be first paid, and that only the interest of J. D. Williams in the surplus, if any, could be applied upon plaintiff’s judgment against him.
    That the sheriff having in his hands at the time of the sale an execution against one partner, and also executions against the firm, and having sold the goods absolutely and not the interest of one partner therein, the presumption was that he sold under the executions against the firm.

      Appeal from a judgment, entered upon the trial of this action by the court without a jury.

      Chas. H Mundy, for the' appellants Gilbert, Weaver, Gilbert and Mundy.

      Francis Larkin, for First National Bank of Sing Sing, appellant. .

      Williams & Billiman, for the respondent.
   GILBERT, J. :

The defendant Carpenter, sheriff of the county of Westchester, in June and July, 1876, sold a quantity of merchandise on execution. The object of this action is to settle conflicting claims to the proceeds arising from said sale. That falls within the equitable jurisdiction of the court. It appears that in August, 1874, the plaintiff sold out his stock of merchandise to John D. Williams, and that shortly thereafter the latter formed a partnership with his son, Louis W. Williams, and they continued in business as partners until said partnership was dissolved by the levy and sale hereinafter mentioned. N'o formal agreement of partnership was entered into by them, but it was verbally agreed between them that each should share equally in the business of the partnership, and the profits and losses thereof. John D. Williams, in part payment for said stock, indorsed and transferred to the plaintiff promissory notes of third persons. The notes not having been paid, the plaintiff, on the 10th of June, 1876, recovered three judgments against John D, Williams, upon his said indorse-ments, and on the same day caused executions thereon to be issued to said sheriff. The sheriff immediately levied on the right, title and interest of John D. Williams, in all of the goods in the possession of said partnership, and subsequently made an absolute sale of all of said goods (not of the interest of said John D. Williams therein), and delivered the same to the purchasers at such sale respectively. Intermediate the levy and sale, several executions against both of said partners, upon judgments recovered by the defendants respectively, excepting Carpenter, for partnership debts, were delivered to the sheriff, The justice at Special Term decided that priority must be given to tbe plaintiff’s executions for two reasons : first, that tbe sale by tbe sheriff was under bis executions exclusively; second, that tbe goods purchased of tbe plaintiff bad never been transferred to tbe partnership, and that tbe proceeds of tbe sale of those goods were sufficient to satisfy tbe plaintiff’s executions. Assuming, for tbe present, that tbe goods sold were partnership property, I am of opinion that tbe judgment is erroneous. Tbe sheriff having made a levy upon all the goods under tbe plaintiff’s executions, and being in actual possession of tbe goods when tbe executions in favor of tbe defendants respectively were delivered to him, such levy was good and sufficient for tbe executions in bis bands last referred to, and enured to the benefit of tbe plaintiffs in such executions respectively. (Cresson v. Stout, 17 Johns. R., 117; Van Winkle v. Udall, 1 Hill, 559; Slade v. Van Vechten, 11 Paige, 21; Peck v. Tiffany, 2 Comst., 451; Eighth Nat. Bk. v. Fitch, 49 N. Y., 539.) A levy consists in taking possession of the goods, and the sheriff having such possession, although for tbe purpose of selling tbe interest of one partner only, can do no more by way of making an actual levy for tbe purpose of selling tbe whole interest in tbe goods. (Waid v. Gaylord, 1 Hun, 607.) Tbe sale of tbe sheriff having embraced the corpus of all tbe goods, and not tbe interest of the debtor in the plaintiff’s executions only, tbe presumption which tbe law raises, in favor of tbe regularity of tbe proceedmgs of public officers, is sufficient to show that tbe sale was in fact made under tbe executions against both partners. For after many fluctuations, tbe rule of law has at last become well settled that, under an execution against one partner, while the sheriff may levy upon tbe interest of that partner in tbe goods of tbe partnership, and for that purpose may remove and take possession of tbe goods, bis power of sale is limited to the residuary interest of such partner in tbe goods, subject to tbe equitable lien of tbe debts due to tbe creditors of tbe firm and to tbe other partners, on a settlement of tbe partnership accounts. (Menagh v. Whitwell, 52 N.Y., 158 ; Walsh v. Adams, 3 Denio, 125.) The sheriff acts under a statute power, and can transfer no greater interest than the execution debtor himself could do by a voluntary sale of bis interest in the partnership. That interest, so transferrable, is merely an aliquot share of the surplus, after satisfying the claims of creditors of the partnership and of his copartners, (Morss v. Gleason, 64 N. Y., 204.) If the sheriff had made the sale under the plaintiff’s executions, which he did make, he would have been a trespasser ab initio. For such a sale would imply a seizure of the property of the partner not sued, for his copartners’ -debt. (Waddell v. Cook, 2 Hill, 47 ; Walsh v. Adams, supra.) The presumption stated, I think, was not rebutted by the evidence given on the part of the plaintiff, that the levy was made under the plaintiff’s executions, and that notices of sale of the interest of John D. Williams only, under those executions, were posted, for, as has been shown, it was not the duty of the sheriff to do any act in order to make a levy under the executions of the defendants, and he may have posted other notices of a sale under the other executions. There was ample time to do so, and evidence was given by the defendants, which renders it probable that such other notices were posted.

Having in his hands executions against all the members of the partnership, and others against one member only for his individual debt, it was the duty of the sheriff to sell the partnership property for the satisfaction of the former executions, and if any goods remained, then to soil the interest of the single partner therein for the satisfaction of the execution against him. (Dunham v. Murdock, 2 Wend., 553; Peek v. Tiffany, 2 Comst., 451; Eighth Nat. Bk. v. Fitch, 49 N. Y., 539.) The sale, in this case, was in accordance with the sheriff’s duty, and if it was not preceded by the requisite notice of sale that fact created an irregularity, which had no greater or different effect than that -of selling the rvhole partnership goods under an execution against one partner. In either case there would be a lack of authority to make the sale, for the sheriff was not authorized to sell, under the defendants’ executions, without the prescribed notice of sale, nor under the plaintiff’s, without restricting the sale to the interest of the single partner in the goods. There having been no valid sale under the plaintiff’s executions, he has acquired no right to the proceeds of the goods sold, nor has he any legal or equitable, right to have snch proceeds diverted from the defendants, for the reason that they had a prior lien on the goods sold, and such priority of lien in equity attached to such proceeds. The plaintiff may have a remedy against the sheriff, on proof that the goods were sufficient to satisfy the partnership creditors, and leave a surplus which the sheriff might have made available in satisfaction of the plaintiff’s demand, by a sale of the interest of the single partner therein ; and the sheriff may have become liable to the defendants in the executions for making an illegal sale of their goods. But the irregularity or illegality of the sheriff’s proceedings affords to the plaintiff no muniment of title to the fund in controversy. The case of Fenton v. Folger (21 Wend., 676), would seem to be an authority for the proposition, that the proceeds of a valid sale, under an execution against one member of a partnership, belong to the plaintiff in that execution in preference to a creditor of the partnership who had recovered a judgment against the latter, and had delivered to the sheriff an execution thereon, but which the sheriff did not execute. That was a decision at law, and it can be sustained only upon the ground that the sale under the execution against the single partner was a sale of his interest only, and that there had been no sale of the property of the partnership. If it is susceptible of a construction which sustains the claim of the plaintiff in this case, it is in conflict with the cases in 2 Com-stock, and 49 New York, which have been cited, and must be deemed overruled thereby.

The only remaining inquiry is, whether that portion of the goods sold in this case, which John D. Williams bought of the plaintiff, was the property of the partnership. That it was, seems to be clear in reason and upon authority. Conceding that Louis AY. Williams contributed nothing, the goods contributed by John I). Williams constituted the sole basis of the partnership. The business of the partnership was to sell those goods, and to buy and sell other goods of the like description. Louis was to share equally with his father in the business. The goods bought by John D. of the plaintiff, as well as the goods subsequently bought by the partnership, were sold indiscriminately, and the proceeds were received and appropriated by the partnership. Those acts, in the absence of a contrary agreement, are unequivocal evidence of a community of interest in the property, as well as in the profit and loss. (Story on Part., §§ 16, 27, 29.) -When it-does not appear what is the precise amount of the respective shares of the partnership, the presumption is that they are entitled equally. (Coll on Part., § 167.) Whatever, at the commencement of a partnership, is thrown into the common stock, etc., belongs to the ( firm, unless the contrary be shown. (Lindley on Part., 546.)

In Peacock v. Peacock (16 Ves., 56), it was held that as no distinct share in the partnership property was ascertained by force of any express contract between the partners, they must, of necessity, be equal partners, if partners in anything. That was adopted as a rule of law by Ch. Kent and by the late court for the correction of errors. (3 Kent's Com., 6; Gould v. Gould, 6 Wend., 263-267.) The same principle was decided in Ex parte Owen (4 De G. & Sm., 351), and in Bradbury v. Smith (21 Me. 117). In any event, both parties are estopped by their acts and conduct as partners from averring or proving against creditors of the partnership that the property sold was not partnership property, and the plaintiff, who is a creditor of one of them, is in no better position than his debtor; for it cannot be pretended that the plaintiff retained a vendor’s lien on the goods sold by him. Consequently he is also estopped from denying that the goods belonged to the partnership. (Kelly v. Scott and others, 49 N. Y., 595.)

The judgment must be reversed and a new trial must be granted, with costs to abide the event.

Barnard, P. J., concurred; DykmaN, J., not sitting.

Judgment reversed and new trial granted, costs to abide event.