author: Barrett, J.:

text:
    In the Matter of the Judicial Settlement of the First Account, and First Supplemental Account, of WILLIAM MITCHELL, as Sole Acting Executor of the Last Will and Testament of CLARISSA E. CURTIS, Deceased.

      Tenancy by the curtesy — marriage and birth of issue before the married women's acts — right of the husband to the wife’s real property subsequently acquired — to the wife’s personal property — equitable conversion — contribution■ — “proceeds of a sale ” means the net proceeds — taxes — a controversy under Gode of Givil Procedure, section 2812.
    A husband and wife were married and had issue prior lo the passage of the married women’s acts (chap. 200, Laws of 1848, as amended by chapter 875, Laws of 1819), and in 1856, through a third person, the husband conveyed certain real estate lo his wife.

      Held, that the husband did not, by reason of the marriage and the birth of issue prior to 1848, acquire a vested right to a tenancy by the curtesy in such lands, which the wife could not defeat by a subsequent testamentary disposition thereof
    That property acquired by the wife subsequent to the marriage was subject to any change, as to its disposition on her death, which the legislature might direct.
    That the husband was entitled to the personal property of the wife acquired before the passage of the married women’s acts.
    The will of the wife, which related lo both real and personal estate, described a piece of real estate, and stated that in the event of its sale during her lifetime, or of a sale after her death, “ then after such sale and from the proceeds thereof” she gave an annuity to her husband. Bequests to other persons were also made “ from the proceeds of the sale,” and a power of sale was given to her executors.

      Held, that there was an equitable conversion of the real estate into personalty.
    The daughters were the principal beneficiaries under the will, which contained general and specific gifts, one of the latter being of the real estate upon the proceeds of which was charged the annuity to the husband.

      Held, that the taxes upon this real estate, whether accruing before or after the death of the testatrix, should be paid from the joroeeeds of its sale, and that the legacy to the daughters was not obliged to contribute to the payment thereof.

      The “proceeds” of a sale are ordinarily the amount thereof after deducting the expenses, including taxes.
    In determining whether a bequest is general or specific tlie intention of the testator, as deduced from the whole will, must govern.
    A few weeks after leasing a house for a year the testatrix died, and her daughters continued to occupy it until the end of the term. The landlord assigned his claim for rent to one of the daughters, who presented it to the executor for payment. The executor disputed it.

      Held, that the daughter was entitled to payment, and that the executor had no right, under section 2812 of the Code of Civil Procedure, to retain a sum to meet it, as being “a controversy which arises respecting the right of a party to share in the money or other personal property to be paid, distributed or delivered over.”

      Appeal by Clara Isabelle Curtis, as tlie assignee of tlie claim of Merritt Merwin against tlie estate of Clarissa E. Curtis, deceased, for rent of a liouse at Bridgeport, occupied by tlie decedent in her lifetime, from tlie following portions of tlie decree of distribution, entered in tlie above-entitled proceeding in the Surrogate’s Court of the county of New York on the 2d day of March, 1891, after a reference had been made to William P. S. Melvin, in whose report the facts fully appear:

      First. From the following portion of said decree: “And it appearing that Clara Isabelle Curtis, as assignee of Merritt Merwin, claims that the sum of four hundred and twenty dollars, with interest from the 9th day of August, 1887, is due to her from the estate of the testatrix for the rent of the house No. 86 South avenue, Bridgeport, Connecticut, and that the executor claims that there should be deducted from said sum of four hundred and twenty dollars and interest the amount of the rent of said premises which accrued between the 3d day of November, 1886, and the 16th day of October, 1887.

      “ And it further appearing that said deductions will amount, with costs, to more than said- sum of four hundred and twenty dollars, and interest;
    “ It is further ordered, adjudged and decreed that said executor shall not pay said sum of four hundred and twenty dollars and interest to said Clara Isabelle Curtis, but that he reserve from the personal property bequeathed by the fourth clause of said will the sum of live hundred dollars to protect the estate in the event that it should be determined in an appropriate tribunal that they, said Clara Isabelle Curtis and Julia Frances Munson, are liable for a. proportionate part of the rent of said house, No. 86 South avenue, Bridgeport, Connecticut, as aforesaid,” said appellant claiming that said decree should have ordered, adjudged and decreed that said claim of Merritt Merwin should be paid to her as his assignee by the executor out of the personal estate of said testatrix, and not retained by him as therein ordered.

      Second. “ From all other portions, parts and provisions of said decree which are inconsistent with the payment of the claim of this appellant as assignee of said Merwin to her by said executor.”

      Gortlandt Irving, for tlie executor, "William Mitchell.

      E. A. S. Man, for Clara Isabelle Curtis and Julia Frances Munson; also for Clara Isabelle Curtis, assignee.

      William. Fullerton, for Janies L. Curtis.

       William P S. Melvin, Referee.— Tlie facts in this case are simple, and, in the main, undisputed, but the objections that are urged by the husband of the testatrix and her children are of the utmost importance. It appears that the testatrix, Clarissa E. Curtis, and Janies L. Curtis intermarried in the city of New York on June 18, 1832. There were four children by the marriage, of whom two survive, namely, Clara Isabelle Curtis, born April 1,1833, and Julia Frances Munson, born September 19, 1838. Both these daughters unitedly file objections to the account of the executor, and their father, separately, and in his own behalf, files objections. The latter claims a right in the real estate left by his wife as tenant by the curtesy; and, further, that the entire personal estate left by his wife belongs to him after payment of her debts and funeral expenses; and, finally, that no distribution of the proceeds of the real or jiersonal estate should be. ordered on this accounting, and that no distribution of the proceeds of the real estate can be directed until after his death. His daughters, on the other hand, accepting the will of their mother, substantially limit their contention to this, briefly stated: That a certain bequest in their favor should not be defeated by devoting the property covered by the terms of the bequest to the payment of taxes, assessments and other charges upon the real estate at the time of the death of their mother.
      The material portions of the' will of Mrs. Curtis, so far as this proceeding is concerned, are as follows:

        “First I give and bequeathallmy jewelry, laces and other wearing apparel, and all my silver and plated ware, all my paintings, pictures, books, bookcases, and all my household goods, stores and furniture to my daughters, Clara Isabelle Curtis and Julia Frances Munson, share and share alike, absolutely. In case either should die before me, her share to go to the survivor.”

        “Secondly. I direct my executor to pay all my debts and funeral expenses.”

        “Thirdly In the event of a sale in my lifetime of my real estate situated between 107th street and 108th street and the Boulevard and Riverside Park, in the city of New York, or in the event of a sale after my death, then, after such sale, and from the proceeds thereof, I give an annuity of twelve hundred dollars to my husband, James L. Curtis.”

        “Fourthly. All the rest of my personal property owned by me absolutely, amounting now to about twenty-six thousand dollars, except the proceeds of said plot of real estate, I give and bequeath to my executors, hereinafter named, in trust to receive and collect the income, interest, dividends and profits thereof, and to apply the same to the use of my daughters, Clara Isabelle Curtis and Julia Frances Munson, during their lives, share and share alike, and to the survivor for life.”

        “Fifthly. I give, devise and bequeath my plot of real estate, or the proceeds thereof, if sold before my death, to my said executors in trust to divide the same into eight equal portions, and to receive and apply the rents, interest, income, dividends and profits of (8) three of such portions to the use of my daughter Clara Isabelle Curtis during her life; and of (3) three other of said portions to the use of my daughter Julia Frances Munson during her life; and of one of said portions to the use of my granddaughter, Edith Hastings, during her life, and of the remaining portion to the use of my grandson, Ernest Hastings, during his life.”

        “Sixthly. I give and bequeath from the proceeds of the sale of my above-speci fled plot of ground ($500) five hundred dollars to Eliza Fitzpatrick, and ($500) five hundred dollars to Elizabeth S. Higgins, who have been my dressmakers for many years.”
      Then follows a bequest of "all the respective remainders upon the respective life estates in the real and personal property hereinbefore created ” to certain residuary legatees, coupled with a power of sale to her executors, or the one who should qualify, at such time as they may deem fit.
      This will was made or dated March 30, 1882.
      At the time of the death of Mrs. Curtis she owned considerable personal property. All of it was included under the terms of the first of the foregoing bequests, except a block of railroad stocks, inventoried by the executor as 250 shares of the capital stock of the New York Central and Hudson River Railroad Company at a value of $26,250, besides a sum in cash, namely, $2,420.43.
      1. Now, as to the real estate left by the testatrix. It appears that on the 29th day of December, 1856, Mr. Curtis executed, under seal, a deed of bargain and sale to Eastburn Hastings, in consideration of the sum of twenty-five thousand eight hundred and thirty-four dollars and thirty-three cents, of eight lots on One Hundred and Eighth street in the city of New York, and also of thirty-one other lots in the same vicinity. The conveyance was made subject to a number of mortgages, the amount of which formed part of the consideration and the receipt of which consideration was in ordinarv" terms "hereby acknowledged.” Afterwards, on the 30th day of December, 1851!, Eastburn Hastings made a like deed, under seal, to Clarissa Emma Curtis, the wife of James L. Curtis, for the very same consideration named in the deed to Mr. .Hasting, conveying the same property subject to file same mortgages, which likewise formed part of the consideration, the receipt of which was also in terms acknowledged. These deeds were properly delivered and Mr. Curtis procured the same to be duly recorded. He testified, moreover, that the object in making the transfers was to secure his wife and liis children against the contingency of his sudden death or future possible business embarrassments. lie admitted that the title was not in him and that Mrs. Curtis continued in the undisturbed possession of the property, as “ all was very comfortable with ourselves.”
      Some testimony was presented in this proceeding, on the part of Mr. Curtis, which showed that the consideration named in the deeds was not paid by either Mr. Hastings or Mrs. Curtis, but if this testimony was offered for the purpose of annulling the deeds it cannot avail. “A man is estopped by his deed' to deny that he granted or that he had a good title to the estate conveyed, but he is not bound by the consideration expressed; because that is known to be arbitrary and is frequently different from the real consideration of the bargain. ” (Wilkinson v. Scott, 17 Mass., 249.) He is estopped from alleging that the deed was executed without consideration, though he may explain or vary it by parol proof. (McRea v. Purmort, 16 Wend., 460.) “ In a conveyance by bargain and sale there must be some good consideration given or at least said to be given for the land, and if the deed makes mention of money paid, as in consideration of £100, or the like, and in truth no money is paid, yet the bargain and sale is good.” (Shep. Touchst., 222; Fisher v. Smith, Moore’s R., 569; Chiles v. Coleman, 2 A. K. Marsh, 228; Bank of U. S. v. Housman, 6 Paige, 526.)
      But it is likely, however, that the testimony relative to the non-payment of the price mentioned was introduced not for the purpose of annulling the deeds, but rather to present in a strong light the idea of the contestant that these deeds operated in effect as a conveyance from husband to wife, and hence were not entitled to the favor of the law. It is proper, then, to consider the force of the objection of Mr. Curtis that his wife could, not by her last will and testament defeat his alleged life estate in this realty as tenant by the curtesy, and this involves an examination of the terms of the statute which enabled women to hold property free from the control of their husbands, and conferred upon them power to devise the same as if they were unmarried. Its language is (Laws 1848, chap. 200, as amended by Laws 1849, chap. 375):
      “Any married female may take by inheritance or by gift, -grant, devise or bequest from any person other than her husband, and hold to her sole and separate use, and convey and devise real and personal property and any interest or estate therein, and the rents, issues and profits thereof in the same manner and with like effect as if she were unmarried.”
      In the first iliaco, then, are these two deeds in effect a conveyance from Mr. Curtis to Mrs. Curtis ? Tnat may have been the effect, but with the language of the statute before us, and, technically, we'must say that it was not a conveyance such as the law excepted from its beneficien! provisions. At the time these deeds were made it was the careful endeavor of the parties that they should not conflict with this statute. It was a question, Mr. Curtis testified, whether he had the right to convey property directly to his wife, and hence it was to obviate this objection that Mr. Hastings was selected as the intermediary. Direct conveyances between married parties were never encouraged, and though sometimes sustained in equity, In law they were always refused recognition because of the unity of husband and wife. To avoid this objection, consequently, it was the almost invariable rule to have such deeds made through the intervention of a trustee, and the statute was drawn not to prevent or discourage what had been allowed time out of mind (Hunt v. Johnson, 44 N. Y., 27), but to prevent a construction which would sanction such direct conveyances. Its very exception, as it were, explicitly declares that only conveyances direct from the husband to the wife shall not receive the benefit of its favor. The primary purpose of these acts was to enable every feme fsovert to hold property in her own right without the intervention of trusts or marriage settlements. (Owen v. Cawley, 36 N. Y., 603; Wilbur v. Fradenburg, 52 Barb., 478.) The object of the statute was remedial, as expressed in the very title of the act — to remove the disability which attaches to coverture, and should have a liberal construction. (Darby v. Callaghan, 16 N. Y., 79.) But this should "be a construction liberal for the one sought to be benefited, not for him who seeks to turn the phraseology of the law by a liberal construction to his own favor to defeat conveyances to wives, and so far as such a one is concerned so far as the construction to be placed on the exception, the words, “ from any person other than her husband,” the law should be construed strictissime. It is the duty of the courts, when the intention of the legislature is apparent, to see that the design and ■object of the statute is not evaded by construction, but, on the contrary, is permitted to have full effect and operation. (Hurd v. Cass, 9 Barb., 366.)
      If, theD, the will of the testatrix as to this real estate was made under sanction •of tlie law, had the husband any right to an estate as tenant by the curtesy of which she could deprive him by the execution of the will ? There is no question but what in the absence of a testamentary disposition by her of this property, the right of tenancy by the curtesy survives in this State, notwithstanding the enabling acts relative to married women. (Hatfield v. Sneden, 54 N. Y., 280.) But the contestant maintains that he had a vested right in this property on the birth of issue which could not be disturbed by statute; that the married women’s acts can have no application to those who contracted the relation of marriage and had issue born to them before those acts, and he declares that an examination of all the cases reported in this State will fail to show in a single case that issue was born prior to the passage of the act. It is true that the reports fail in this particular, but counsel for the executor has called my attention to the very important case of Tharber v. Toivnsend. and the fact that the papers on file in that case as well as the defendant’s points, disclose that a child was born about 1837. The importance of this case, in view of the objection of the contestant, Mr. Curtis, Warrant my giving its particulars as it appears in 22 New York, 517. The syllabus of the case recites that ‘ ‘ the acts of 1848 and 1849 to protect tlie rights of married women are not liable to objection, 'as impairing the obligation of a contract, because they defeat the expectation which the father of a living child had, previous to those acts, of being- tenant in curtesy in lands acquired by his wife during converture, and subsequent to those acts.”
      This was an action in ejectment in the Mayor’s Court of the city of Albany, by Margaret Thurber, a married woman, and another not her husband. Upon the trial it was proved that the plaintiff, Mrs. Thurber, married in 1833, and had a daughter, the issue of said marriage, who was living- at the time of the trial, as was her father. The laud in question came to Mrs. Thurber by descent in 1854.
      The defendant, for the purpose of upholding a lease made by Mrs. Thurber’s husband, asked the court to charge the jury that Mr. Thurber, by his marriage and the birth of a child, acquired an estate by the curtesy in the lands of his wife which could not be defeated by the legislature. The court charged to the contrary, and the defendant excepted.
      The jury found for the plaintiff. On appeal this judgment of the Mayor’s Court was affirmed by the General Term of the fourth district, on all questions of law, and by the Court of Appeals in all respects.
      In Sleight v. Read (18 Barb., 159), in the General Term of the first district, Judge Clerke, referring to the acts of 1848 and 1849, .asks, “What were the rights which -actually vested in the husband previous to that act ? ” And presents the following cogent summary of the law :
      “ In regard to real property belonging to the wife at the time of the marriage he took a vested interest, and became at once entitled to the rents and profits during their joint lives, and in the event of a birth of a living child to a contingent right on the death of his wife to the sole enjoyment of the estate during his life, but as to any of her future acquisitions the nature and extent of his interest were subject to any change which the legislature might thereafter make in the laws relating to the acquisition, disposition and enjoyment of property. All regulations of this kind, the rules of inheritance, the rules relating to wills, successions and conveyances, and all the provisions by which the transmission of property is either directed or intercepted, are the offspring of law, and entirely dependent on the legislative power.”
      “Any person, therefore, whatever may be his prospective possible rights arising from existing legislation in regard to property not yet vested in him, is liable to have them abridged or altogether revoked by any future legislation, whether such person is an heir apparent, heir presumptive, or stands in the relation, of a husband, whose wife may at any time afterward become entitled to property. The marriage contract does not imply that the husband shall have the same interest in the future acquisitions of the wife that the law gives him in the property she possesses at the time of the marriage, but that he shall have whatever interest, if any, which the legislature, before she is invested with them, may think proper to prescribe. This is precisely the kind of contract to which Mr. B. and Mr. A. were, respectively, parties at the time of their respective marriages, and this contract, or the obligations to enforce it, has certainly not.been impaired by the Act of 1849.
      “Mrs Bishop and Mrs. Alexander married previous to the death of their father, from whom this property descended, and previous to the enactment of this statute. “Instead of tlie law wliicli existed at tlie time of tlieir marriage, giving the-husband a right to the rents and profits during the joint lives of the husband and wife, the legislature in its wisdom, or at all events in the legitimate exercise of its ■ power, deemed it proper to enact that all future property descending to the wife should be transmitted to her, to her sole and separate use, and that she should hold the rents, issues and profits thereof, in the same manner and with the like effect as if she were unmarried.
      “ This was, in effect, a modification of the laws of inheritance entirely within the control and direction of the legislative power.
      “ This modification does not operate on a marriage contract made before its passage so as to be within the scope of the provision of the Constitution of the United States prohibiting to the States the passage of laws impairing the obligation of' contracts, because, as I have shown, the interest of the husband in the future-acquisitions of the wife is subject to the power of the legislature in controlling and directing the acquisition and disposition of property, and this contingency was an ingredient of the contract ”
      And so, too, it was held, in Blood v. Humphreys (17 Barb., 660), by Judge Mason in commenting on this law: " neither does this act conflict with any provision of our State Constitution so far as the property in question is concerned; as the same-was conveyed to her since the passage of that act.
      "The legislature may qualify the wife to hold and convey property without in any manner depriving the husband of any of his property, and without impairing - any of his rights of property; and, besides, all of these relations of after-acquired property are wholly dependent upon the municipal law and do not rest in any manner upon any contract, express or implied, between the parties.”
      An interesting case in connection with this subject is that of Kelly v. McCarthy (3 Bradf., 7), in which the learned surrogate discusses the contract of marriage with reference to the questions arising out of it regarding the lex loci contractus, and the lex loci domicilii, and says: “With regard to most, if not all of them, the weight of authority is in favor of the lex loci domicilii over tlie lex loci contractus, and on the obvious ground that there are many incidents of marriage not the-subject of express contract, but flowing from municipal regulation and dependent., therefore, except as to vested rights in property, upon municipal regulation for theiicontinuance. * * * Vested rights in the property of the wife, already acquired under the law regulating the marriage contract, cannot, of course, be disturbed by

        an alteration of that law, but it is quite a different thing to modify the law as to the incidents of marriage in respect to pioperty to be acquired after the change of the law.”
      For these reasons we entertain no doubt that Mr. Curtis has not a life estate in the real estate of his wife as tenant by the curtesy. (See, also, Cooley’s Const. Lim., 360-362; Schouler on Husband and Wife, § 313; Ransom v. Nichols, 22 N. Y., 110; Moore v. City of New York, 8 id., 110; Holliday v. McMillan, 79 N. C., 315; Dunn v. Sargent, 101 Mass., 336; Hill v. Chambers, 30 Mich, 422; Matter of Clark, 40 Hun, 237; Southard v. Plummer, 36 Me , 64.)
      2., We come now to the consideration of Mr. Curtis’ second objection, namely, that; as the husband of the deceased, by his marriage to her in the year 1832, he is entitled to receive the whole of her personal estate after the payment of her debts and funeral expenses.
      And at the very threshold of the inquiry we must admit that the principle for which he contends is correct, with this restriction, that it should apply only to such personal property as Mrs. Curtis received befoi-e the said law of 1848-1849. Because, as to all personal property which she receives after the married women’s acts went into operation, by the force of those very statutes a testamentary disposition of such personal property by his wife ended all possible claim by him to it. The question has been before the highest court of the State, and it has been repeatedly determined that the husband has a vested interest as to the personalty acquired by his wife before the acts, of which he cannot be deprived by legislation. (Westervelt v. Gregg, 12 N. Y., 205; Barnes v. Underwood, 47 id., 351; Ransom v. Nichols, 23 id., 110; Robins v. McClure, 100 id., 328.)
      But there is no proof before me that the personal property left by Mrs. Curtis was acquired by her prior to the statutes of 1848-1819. The testimony relative to what property Mrs. Curtis had at the time of her marriage, or at later periods during her married life, was given by her husband, who said that, at the time of their marriage, she had some property, “but not what we would call nowadays considerable. I can tell you very nearly the amount of property, I think. The amount of property my wife received from her father’s estate, from the personal estate, was less than $9,000, and subsequently a piece of real estate was sold which was about four thousand — about $13,000. The amount received from her mother’s ■estate was $15,000 — say about $28,000 in the aggregate. And she had at the .time of her death personal property — one item of property for which she paid $30,000, which is in the New York Central Railroad.” This is all the testimony-in the case relating to the personal estate of the deceased, except the language of the testatrix herself in her will, in which she says, “all the rest of my personal' property owned by me absolutely, amounting now to about twenty-six thousand dollars,” etc., etc.; and I cannot indulge the presumption that the personal estate actually left by deceased is a part or the whole of that of which her husband testified she received from the estate of her father or mother.
      3. Having determined the objections raised byiUr. Curtis, it is proper to turn to those presented by his daughters, Clara Isabelle Curtis and Julia Frances Munson. They are five in number, hut, excepting the fifth, they may all he condensed, substantially, in the single one, namely, that these ladies object to the bequest to their use of the residue of the personalty, contained in the fourth item of the will of their mother, being diminished or impaired by the payment, out of that fund, of that portion of the mother’s debts, namely, the taxes, assessments or the liens or incumbrances which existed on the real estate at the time of their mother’s death; that by the will a distinct trust of the real estate was created, and that all liens and charges against said real estate and all expenses and disbursements incurred by the executor in regard thereto should he paid out of the proceeds of the sale thereof, and, consequently, that the block of railroad stock, of which mention has been made, should he held subject to the trusts as to personal property created in said will. As to the fifth objection raised by them, namely, that certain legacies should he paid out of the proceeds of the realty, it is sufficient to say that it must have been made under a misapprehension on the part of the objectors, for the will explicitly provides that the legacies to Elizabeth S. Higgins and Eliza Fitzpatrick should he paid out of the proceeds of the sale of the real estate.
      This question, then, of the daughters, involves a criticism of the character of the several bequests, and an interpretation of the language of the will of the testatrix. And at the very outset of the inquiry, looking at the will in its entirety, regarding the bequests that were imposed on the realty by the third and fifth items of the will, namely, first, by the foundation of an annuity from the proceeds of the sale of the real estate in favor of her husband; and, second, by the fact that the said legacies to Elizabeth S. Higgins and Eliza Fitzpatrick are to he paid out of the same proceeds in connection with the fact that a power of sale was given to the executor, which power he has exercised, we are led to the conclusion that there has been an equitable conversion of the realty into personalty for all the purposes of the will. (White v. Howard, 46 N. Y., 163; Van Vechten v. Keator, 63 id., 52; Glacius v. Fogel, 88 id., 434; Lent v. Howard, 89 id., 169; Hobson v. Hale, 95 id., 588; Chamberlain v. Taylor, 105 id., 185 ; Asche v. Asche, 113 id., 235.)
      But this equitable conversion cannot have the effect, as suggested by the learned counsel for the decedent’s daughters, of causing all of the property, both real and personal, left by the testatrix to pass under the trust created by the fourth item, of the will; indeed, in the view I entertain of the will, it cannot now make any material difference whether or not there was an equitable conversion to any of the parties interested. In case of an equitable conversion the executor has by virtue of his office the administration of both kinds of property, real and personal, and should account for all as assets. This the executor is, in fact, doing, and he now brings the entire estate into court for distribution. (Erwin v. Loper, 43 N. Y., 535.)
      But if we may regard the entire estate as personalty, how is it, then, relative to .the provisions of the will ? We may then regard all the provisions contained in it technically as bequests, and, so, let us see how they stand with reference to eacli ■ other. The first, third, fifth and sixth items are what is termed speeific bequests, and the fourth and seventh items arc general bequests. Now, it is an indisputable rule that chattels specifically bequeathed cannot be sold for the payment of general legacies and can be sold for the payment of debts only after the other assets not specifically bequeathed have been applied (Stall v. Wilbur, 77 N. Y., 158); another rule is that when the personal assets not specifically bequeathed are insufficient to pay all the debts, then the speeific legacies must abate or contribute, in proportion, . to the value of their individual legacies. (3 Wms. Exrs., 1371). In other words, though general legacies be swallowed up, it is only when the residuary and other legacies have been sacrificed, and nothing remains of the personal estate for satisfying legal debts and charges, but what was specifically bequeathed, that specific •and demonstrative legacies can be compelled to contribute for the deficiency. The question becomes important, considering the fact that at the time of the death of the testatrix the taxes and assessments resting on her real estate amounted, with interest, to the great sum of $36,611.65. Who shall bear this great load ? Shall it be deducted’ from the proceeds of-the real óslate, or shall it be paid out of the personalty ? And, primarily, shall the residuum bequeathed by the fourth item of the will be • devoted as far as it will go to that purpose although it exhausts the entire fund passing under this item, which, as we have seen, amounts by the inventory to about -$38,500. Iwas at one time inclined to regard this fourth item as a specific bequest, moved by the tendency of some modern decisions (Woodworth’s Est., 31 Cal., 595; Warley v. Warley, 1 Bailey Eq. [S. C.] 397; Godard v. Wagner, 2 Strobh. Eq. [S. C.] 1; Re Beckett, 15 N. Y. St. Rep., 717), and so cast the burden of this mass of indebtedness proportionally on all the specific legacies; but greater study of the will leads me to the conclusion that the solution of the problem is to be found in the instrument itself. No light is to be obtained from the instruction in the second item of the will to the executors to pay all the debts of the testatrix and funeral expenses. Lord Chancellor Campbell says with reference to such directions: “ I will not say that the words here relied on are mere words of style like the pious phrases with which the wills usually begin, but they do not seem to me to show" that the testator had in mind the option given him of making the debt fall on the mortgaged land or on the personal estate.” Nor does the statute (R. S., part 2, chap. 6, tit. 3, art. 2, § 27), preferring the payment of taxes, etc., by administrators and executors, necessitate their payment out of the personalty in the face of a contrary direction to be found in a will, the estate being solvent. What does the will in question say .expressly or by implication? And in this interpretation of the will we should bear in mind that the canons of construction of wills are more liberal than those of contracts. The intention of the testator is the great guide, subject, of course, to this, that this intention be agreeable to the rules of lawr. It has been called the “polar star” by which the court 'should be guided, and though Redfield dislikes the expression as being too fanciful, nevertheless his whole learned treatise on the construction of walls points to innumerable examples of the endeavor of •courts to learn the purpose or intention of the testator. In Mann v. Mann (14 Johns., 1) it is aptly said, by the learned counsel who argued the cause for the appellants, “the rules in regard to the construction of wills are that-they must and ought to be construed liberally and benignly, not technically,” and the court declared “that where there is a specific legacy charged upon a fund of any way doubtful description, that construction wall be most favored which will prevent a total failure of the bequest. * * * It is the duty of courts to search for a ■construction that will carry it (the wall) into effect.”
      Again, " the common-law rule that the personal estate of a deceased person will be applied to the payment of his contract debts to the relief of his real estate, is not, however, of universal application, and will not be enforced where it is in apparent hostility to the plain intent of the deceased as expressed in his will, and will defeat bequests made therein.” (Rice v. Harbeson, 63 N. Y., 493, and see
        Arcullarius v. Geisenhainer, 8 Bradf., 72.) Indeed, this humane principle of construction has been crystallized in a maxim, one of the oldest in the law, which comes to us even from the time of Bracton, and of the most frequent application in this very matter of the construction of wills. Benigne faciendo) sunt interpretations chartum ut res magia mleat guam pereat.

      Now, regarding the will in this benign spirit, with a full view of everything within the four corners of the instrument (Hoxie v. Hoxie, 7 Paige, 192) what do we find? We are first struck by the manifest intention on the part of the testatrix to provide amply for her daughters, Miss Curtis and Mrs. Munson. Between them she divides all her jewels, silver, works of art and household goods; gives them equally a life estate in all the rest of her personal property and gives them for life the chief portion of the real estatate. And, looked at more critically, we find that she uses the word “ proceeds” in four parts of her will, namely, in the third, fourth, fifth and sixth items. The consideration we shall give to the third and fourth will be sufficient for all. The third item looks to the possibility of a salé of the realty during the lifetime of testatrix or after her death, in either of which events she provides “from the proceeds” an annuity for her husband of $1,200. Now, in the ordinary business of life, what are the proceeds of a transaction with reference to those who are to be benefited by the outcome? Evidently, the amount remaining after deducting the charges incidental to the matter. If a title to real estate is to be closed, the grantee sees to it that all the taxes, assessments or other liens are first deducted from tho purchase-price and the remainder will generally be said to be the proceeds.

      Indeed, it is the net proceeds that the testatrix had in mind when the will was framed. This becomes still more evident when we consider the language of the fourth item of the will. In this she gives to her daughters’ use “ all the rest of my personal property, owned by me absolutely, amounting now to about $26,000, and except the proceeds of said plot of real estate.” The exception was made because there was, as we have seen, the possibility of the sale of the real estate during her lifetime; and this very exception discloses that though it might become personalty, still the fund of “about $26,000” she determined should remain intact. Moreover, the testatrix announces aDout how much she expected this fund or res'iduum would be — about $26,000. Bear in mind that the vouchers filed herein show that at the time the will was made there were arrears of taxes and assessments already amounting to upwards of $10,000. If these were contemplated to be deducted from the personalty she could not say “about $26,000,” for there would not then have been that sum, hut only about $16,000 for distribution. At the time of her death these unpaid taxes and assessments amounted, as we have seen, to more than $36,000, enough to far more than extinguish this legacy. Is it possible to entertain the idea that the testatrix intended to offer, as it were, Dead Sea fruit of bitterness and disappointment to the dearest objects of her benefactions. The only fair and reasonable construction of this will seems to be to regard the word “ proceeds ” as equivalent to “ net ” .proceeds of the real estate. This will render the structure of the whole instrument harmonious, and will work no benefit to one part at the sacrifice of another. This is our conclusion, and so I have held that the personal property shall not be applied towards the payment of taxes and assessments on the real estate, and only to such debts of the testatrix as are not peculiarly incidental to the real estate.
      4. There remains for consideration but one question of minor importance respecting the amount involved, though the dispute is very earnest regarding it. It appears that the testatrix was, at the time of her death, the lessee of a house in Bridgeport, Connecticut. The lease was for one year from October 16, 1886, to October 16, 1887, for the rent charge of $420. The testatrix died there on November 3, 1886. The testimony shows that her daughters, the contestants, continued to occupy the house from that time to the termination of the lease. The executor suggests in his account that the amount of the rent be charged against them. The landlord, Merritt Merwin, has, since this reference was ordered, assigned the claim for the entire rent to Miss Curtis, who now presents the claim and demands its payment. Some testimony was given by Mr. Curtis, who-was called by the executor, that these ladies remained in the house “at the special request of Mrs. Curtis before her decease, that the children should remain there for the term for which she hired the house; ” but if, by this evidence, it was sought to show that there was a donatia causa mortis of the outstanding term, it seems to me to he altogether insufficient. As I have deemed it within the jurisdiction of this court to determine the rights of these parties, I have set off against the probated claim of Miss ’Curtis, as assignee, for the rent, the relative value of the premises at the same rate ($420 per annum) for the period of time for which she and her sister occupied them.

   Barrett, J.:

We agree with tlie learned referee in the conclusion arrived at .as to the main question presented in this matter, namely, that of equitable conversion. Tliis question was elaborately considered by tlie learned referee, and nothing need be added to his able and convincing opinion on that head. The report in this particular was confirmed by the learned surrogate, and an opinion filed expressing full concurrence with tlie referee’s views. Subsequently, however, the learned surrogate decreed that the taxes and assessments which accrued against the real estate between the death of the testatrix and the date of the sale should not be paid out of the jiroceeds of such sale, but should be paid out of the income to be derived from tlie investment of these proceeds. This ruling, it seems to ns, was not in harmony with his previous decision confirming the report of the referee. By that report and the decision confirming it, the taxes and assessments which accrued upon the-property prior to the death of the testatrix were directed to be paid out of the proceeds' of the realty. This was upon the distinct ground that, in order to carry out the provisions of the will and the-intentions of the testatrix, an equitable conversion of the real estate into personalty for all the purposes of the will must be implied, and that sucli equitable conversion was thereby effected. If the reasoning which led to this conclusion was correct, and we think the referee has demonstrated its correctness, then all the liens upon the property, whether accruing before or after the death of the testatrix, should be paid out of the proceeds of the sale. The real estate in question was vacant land, and no income was derived from it between the death of the testatrix and the time of the sale. The oestui que trust did not, therefore, benefit, in the least from this property while the liens in question continued to accrue. And it was clearly the net proceeds of the sale, after paying all existing incumbrances — that is, existing at the time of such, sale — which the testatrix intended by the iiftli clause of her will to divide into eight equal portions.

The reasoning with regard to the liens existing when the testatrix died applies equally to those which accrued down to the date of the sale. We think that the decree on this head should be affirmed on the executor’s appeal, and reversed on the appeal of Clara Isabelle Curtis and Julia Frances Munson.

With regard to Mr. Curtis’ appeal, we concur in the result -arrived at by the learned surrogate, and also with the referee in the .-.general discussion of the married women’s acts of 1848 and 1849.

As to the rent of the Bridgeport house we differ with both the •learned referee and the learned surrogate. That rent was due to the landlord, and he assigned his claim therefor to Clara Isabelle Curtis. By this assignment Miss Curtis became entitled to payment quite the same as the landlord would have been had the assignment not been made. The estate had no claim against Miss Curtis which could bo set off against the debt for rent thus assigned. Whatever .claim the estate had was against Miss Curtis and her sister Mrs. Munson, and even that was disputed. The remedy of the executor was by action against Miss Curtis and Mrs. Munson, and he was not entitled to reserve $500, or any other sum, from the personalty payable under the will, to himself as trustee, or from the income ultimately coming to the beneficiaries. Section 2812 of the Code of Civil Procedure is inapplicable to the facts under consideration. There was here no claim in controversy respecting tlie right of any person to share in the money to be distributed. The decree in this respect should, therefore, be reversed, and the executor required, without reservation, to pay Miss Curtis the amount due for the rent in question, with interest. It should also be reversed in the particular already pointed out, and the executor required to pay all liens, assessments and interests out of the proceeds of the realty.

In all other respects the decree should be affirmed, with costs to the executor, and to Miss Curtis and Mrs. Munson, jointly, payable out of the fund.

PatteksoN, J., concurred.

Decree affirmed (with the exceptions stated in opinion), with costs to the executor, and to Miss Curtis and Mrs. Munson, jointly, payable out of the fund.


source: Caselaw Access Project

author: INGRAHAM, J. :

license: Public Domain

text:
    WILLIAM C. PATE, Plaintiff, v. AUGUSTUS HOFFMAN, Defendant.

      IAen — upon personal property, is not discharged, by the recovery of a money judgment — a receiver of the lienor is a proper pa/i'ty to a foreclosure thereof.

    Augustus Hoffman owned a picture, which he delivered to Louis R. Menges for repair and for storage, agreeing that Menges should have a lien upon the picture for the value of liis services. Menges made an assignment for the benefit of creditors, and one Bowman, his assignee, having obtained possession of the picture, brought an action against Hoffman for the amount of the lien and recovered a personal judgment therein, but collected nothing upon the execution issued thereon.
    A receiver of the property of Hoffman, whose receivership had been extended over the judgment of Bowman, demanded possession of the picture, which was refused.

      Held, that the lien was not affected by the recovery of a personal judgment while it remained unsatisfied, or by the extension of the receivership over such judgment, and that Bowman still had a right to sell the property to satisfy the lien.
    That the receiver was a proper party to an action brought for the foreclosure of the lien, and that it was error to deny an application made by Bowman, as assignee, for leave to commence an action against the receiver for such foreclosure.
    Appeal by Henry FI. Bowman, as assignee for tbe benefit of creditors of Louis E. Menges, petitioner in this action, from an order, entered in the office of tbe clerk of tbe city and county of New York on tbe 2d day of September, 1891, denying the motion of said Bowman, as such assignee, for leave to commence an action against tbe plaintiff, as receiver of Augustus Hoffman, tbe defendant in tbe above-entitled action, for the purpose of foreclosing a lien upon a certain oil painting formerly belonging to said Hoffman.
    It appeared by the petition of Flenry II. Bowman, for leave to bring an action for tbe foreclosure of a lien against the plaintiff, as receiver of Augustus Hoffman, in tbe above matter, and an affidavit •attached thereto, that tbe plaintiff recovered his judgment against Hoffman on January 4, 1871, and was himself appointed receiver July 28, 1890; that tbe petitioner, Bowman, became assignee of Menges for tbe benefit of creditors, under an assignment dated January 15, 1885, and recorded in tbe clerk’s office on February 11, 1885. That as such assignee, tbe petitioner received a picture, then in tbe bands of Menges, belonging to Hoffman, and which the latter liad put in Menges’s bands for repairs and for storage, at tbe same time agreeing tliat Menges should have a lien therefor. On March 14, 1889, Bowman recovered a judgment in the Oourt of Common Pleas for the amount of said claim and lien, consisting of storage and repairs made to said picture by Menges. An execution issued thereon was returned unsatisfied.
    Subsequently an order was made in the Oourt of Common Pleas extending the plaintiff’s receivership in the above-entitled action over the judgment of Bowman, in the action in that court, and directing the judgment-debtor to deliver his property to the receiver appointed by the Supreme Oourt. Under this order, the plaintiff demanded said picture, which demand was refused, and Bowman now seeks to foreclose his lien, by action.

      A. B. Smith, for the assignee, appellant.

      O. E. Souther, for the receiver, respondent.
   INGRAHAM, J. :

The right of the appellant to hold possession of the property upon which he had a lien was not affected by the recovery of judgment for the amount of the indebtedness to secure the payment of which he held the property as security. It had the effect of settling the amount of the defendant’s liability to the petitioner, but did not affect the lien upon the security or his right to have the same sold and the proceeds applied to the payment of the amount due. Nor did the fact that a receiver of the debtor’s property, appointed on the application of another creditor, was extended so that the receivership would include the judgment obtained, by the petitioner, affect the petitioner’s right to hold the security until his debt was paid. Petitioner had the right to take any proceeding to collect his judgment without resorting to the security. If his judgment had been collected, then lie would have no further interest in the property held as security, and such property would belong to the receiver and could be applied by him to the payment of the creditor at whose instance lie had been appointed, but until such judgment was paid the lien upon the property was superior to the title of the receiver.

Petitioner having failed to collect his judgment by the proceedings instituted, had then the right to resort to the property upon which he had a lien to secure the payment of the debt, and for such purpose to commence an action to have the property sold and its. proceeds applied to the payment of his demand. To such an action the receiver in whom had vested the title to such property subject to the lien was a proper party, and he should have been allowed to make the receiver a party to such an action.

We think, therefore, that the motion should have been granted, and the order appealed from must be reversed with ten dollars costs and disbursements and motion granted.

YaN Brunt, P. J., and Daniels, J., concurred.

Order reversed, with ten dollars costs and disbursements and motion granted.


text:
    REBECCA M. F. QUACKENBUSH, Plaintiff, v. MARIE O’HARE and Others, Defendants.

      Foreclosure — surplus money — rule that property be sold in the inverse order of its alienation not applicable in proceedings therefor — ma/rshalling of the assets.

    The equitable principle requiring a sale of property to he made in the inverse order of alienation cannot be invoked in a proceeding to reach a surplus arising on the foreclosure of a mortgage.
    Upon an application for the direction of the court in regard to certain surplus moneys arising under a mortgage foreclosure, it appeared that the mortgage under which a party to such proceeding was entitled to said surplus also covered other pieces of property:

      Held, that the person holding subsequent mortgage liens upon the premises, upon the sale of which the surplus had arisen, could not compel the prior lienor to satisfy his mortgage, in the first instance, out of the last property conveyed by the mortgagor, being other property than that sold under the foreclosure.
    In such a proceeding the owners of the pieces of property, other than that foreclosed, are not before the court, and the court has no power to marshal the assets.
    Appeal by the claimants, Washburn & Barnes, from an order, entered in the office of the clerk of the city and county of New York, and dated on the 14th day of August, 1891, directing the distribution of the surplus moneys herein.
    The above-entitled action was brought for the foreclosure of a mortgage upon the sale under which a surplus arose. In proceedings to obtain the direction of the court in regard to the proper disposition of this surplus a referee was appointed, who found the following facts:
    I. That S. T. Cannon is the holder of the legal title to a mortgage •on the property sold in foreclosure in this proceeding for two thousand dollars ($2,000), dated July 9,1885, and recorded on July 22, 1885, in the office of the register of 'the city and county of New Torlc.
    II. The claimants 'Washburn & Barnes held a mortgage on the premises sold in foreclosure herein for $3,230.67, which said mortgage is dated January 28, 1887, and was recorded on February 11, 1887, in the office of the register of the city and county of New York.
    TTT- There are no liens upon the surplus moneys in this proceeding, except the above-mentioned mortgages, held, respectively, by S. T. Cannon and Washburn & Barnes, and the mortgage of S. T. Cannon is a prior lien in point of time.
    IY. That on the 11th day of November, 1886, the defendant, Marie 0’ITare, made, executed and delivered to the Murray ITill Bank a mortgage to secure the sum of twenty-five hundred dollars ($2,500), and covering the following described property: All that certain lot of land, with the buildings thereon, erected, situate, lying and being on the southerly side of Seventy-fourth street, in the city of New York, distant sixty feet westerly from the soutli-westerly corner of First avenue (1st) and said Seventy-fourth street; running thence southerly fifty-one feet; thence running westerly and parallel with Seventy-fourth street twenty feet; thence running northerly and parallel with First avenue fifty-one feet, and thence running easterly and again parallel with Seventy-fourth street twenty (20) feet to the point or place of beginning, be the said several •dimensions more or less.
    Y. That the said mortgage is now held by the Murray Hill Bank, .and was given in express terms, subject to a first mortgage only of twenty-five hundred dollars ($2,500).
    YI. That the mortgage held by S. T. Cannon covers three separate parcels of property, one parcel of which is the property covered by the Murray Hill Bank mortgage, another jDarcel was on Third street, and another parcel was on the property foreclosed in this action.
    YII. The surplus moneys in this action, amounting to $2,751.50, arose from the sale of a lot of land on west side of Second avenue. ill the city of New York, fifty feet five inches north of One Hundred and Tenth street, twenty-five feet two and a half inches wide, and 100 feet deep, upon foreclosure of a mortgage thereon for $1,000 made by Marie 0’ITare to Elizabeth Iiillenbrand, and assigned to-plaintiff, dated February 23, 1881, and recorded February 29,1881,. in Liber 1818 of Mortgages, page 113, being a purchase-money mortgage.
    YIII. On July 9, 1885, Marie O’Hare gave her bond to Lambert. Suydam dated that day for $2,000, payable on July 9, 1886, with interest, and also said Marie O’Hare and James O’Hare, her husband, made a mortgage to said Lambert Suydam to secure said bond dated same day, and recorded July 22, 1885, in Liber 1966 of Mortgages,, page 73, whereby they mortgaged three parcels of land, to wit: Said Second avenue lot, a house and lot in West Third street, New York city, on south side of said street, fifty feet west of Macdougal street, twenty-five feet wide and 100 feet deep; and a house and lot on south side of Seventy-fourth street, sixty feet, west of First avenue, in said city, twenty feet wide and fifty-one feet two inches deep, all belonging to said Marie O’LIare.
    IX. By assignment dated January 2, 1886, recorded January 5,. 1886, in Liber 1958 of Mortgages, page 469, Lambert Suydam assigned the bond and mortgage for $2,000 aforesaid to James. Suydam, who held same till June 14, 1887.
    X. During the year 1886, and the beginning of 1887, Marie O’Hare owned a parcel of land at north-east corner of Ninety-fifth street and Third avenue, New York city, and was engaged in erecting ten houses thereon, her husband, James O’FIare, acting as her superintendent and agent in such erection.
    'XI. Abraham Steers furnished to said erection during such period a large amount of material, consisting of sash blinds, doors and trim, under contract with said Marie O’FIare.
    XII. He received from her a mortgage on said Third avenue premises for $10,000, and credited her with such mortgage and Such amount thereof on his account against her.
    XIII. On January 28, 1887, said Marie O’Hare made her two> promissory notes, each dated that day, each made to order of Wash-burn & Barnes, one payable in three months for $1,600, with interest, and the other payable in four months for $1,630.67, with interest, wliicli notes were made to secure payment for brick to tlie aggregate of such amounts furnished by said Washburn & Barnes to said Marie O’Hare for and used in said erection at Third avenue and Ninety-fifth street.
    XIY. The defendants, George W. Washburn and William IT. Barnes, at that time and ever since composed the firm of Washburn <fc Barnes, and have ever since been the owners and holders of said notes, which are past due and payable, but no part of which lias, been paid.
    XY. At the same time, said Marie L. O’Hare executed a mortgage to said Washburn & Barnes, dated January 28, 1887, and acknowledged by said Marie L. O’Hare on same day, made to secure payment of said two notes and mortgaging said Second avenue lot,, the premises from which the surplus moneys herein arose.
    XYI. Such notes and mortgages were delivered to said Wash-burn & Barnes on January 30, 1887.
    XYII. Thereafter, and on February 2, 1887, said Marie O’Hare executed and delivered to said Abraham Steers her full covenant warranty deed, conveying to him the house and lot of land in West Third street, hereinbefore described, and which deed conveyed (as was therein stated), subject, however, to all mortgages, interest, taxes and assessments then outstanding and unpaid, and which were a lien on said premises.
    XYIII. At the same time, said Abraham Steers and Marie O’Hare signed and sealed an agreement, in writing, dated February 2, 1887, which recited said deed, and that James O’Hare was indebted to Steers in $11,729.50, and that such indebtedness might, within the next twelve months, be either increased or diminished, and then provided that said Steers would, at any time within the period of twelve months from such date, February 2, 1887, upon the payment to him of such indebtedness of $11,729.50, or so much thereof as might be due at the time of such payment, or if a greater amount than said sum should be due, then, of the amount so due, execute and deliver to said Marie O’Hare, or to her nominee or nominees, a deed of said premises in West Third street.
    XIX. Such period of twelve months has long since elapsed, and said Steers has not made any deed of said premises to said Marie O’Hare or any other person.

      XZ. That said property was subject to a first mortgage of $18,000, to a second mortgage of $5,000, and to .the said mortgage of $2,000 made to Suydam, hereinbefore mentioned.
    XXI. The indebtedness referred to in said agreement between Steers and Marie O’Hare, as an indebtedness of James O’Hare, was, in fact, the account in favor of Steers against Marie O’Hare for materials furnished to said Third avenue and Ninety-fifth street houses.
    XXII. No part of such amount was paid to said Steers by said Marie O’Hare witliin said period of twelve months or thereafter; and said Marie 0’ITare never requested a reconveyance of said Third street property to her, nor did any nominee of her request any such conveyance, nor did she, nor any nominee of her, make any payment as provided for in the agreement of February 2, 1887.
    XXIII. Ever since February 2, 1887, said Steers has held and possessed said West Third street property and still continues so to do.
    XXIV. In the month of June, 1887, said Steers requested defendant, Sylvanus T. Cannon, to pay the mortgage for $2,000, made by Marie O’Hare to Lambert Suydam and assigned to James Suydam, covering said premises in West Third street (and also covering the lot in Seventy-fourth street and the premises on Second avenue, from which the surplus herein arose).
    XXV. At such time said Steers asked said Cannon, as one of the firm of Paddock & Cannon, who were Steers’ attorneys, to take up and hold such $2,000 mortgage, and he then offering and agreeing to reimburse Paddock & Cannon for the money they should pay in doing so.
    XXVI. Pursuant to such requests of Steers, said Cannon, using the money of Paddock & Cannon, paid -said mortgage of $2,000 and interest, fifty-five dollars, to said James Suydam, who thereupon delivered to said Cannon an assignment of said mortgage of $2,000, dated June 14,1887, and acknowledged that day, recorded June 16, 1887, in Liber 2192 of Mortgages, page 264.
    XXVII. As he' had agreed, Mr. Steers, a short time thereafter, reimbursed and repaid Paddock & Cannon, his attorneys, the money they had paid to said Suydam upon said mortgage of $2,000 at the time of the delivery of such assignment to Mr. Cannon aforesaid.
    XXVIII. Mr. Cannon has continued holding such assignment of mortgage for and in behalf of Mr. Steers and so holds the same.

      XXIX. The only claimants to the surplus moneys herein are Sylvanus T. Cannon, who claims same to the extent of said mortgage of $2,000 and interest, and Washburn & Barnes, who claim same under their mortgage made to them, above mentioned.
    XXX. Under the mortgage to Washburn & Barnes, made as above mentioned, there is due, owing and unpaid, $3,230.67 and interest from January 28, 1887.
    The referee found, as conclusions of law:
    I. That S. T. Cannon has the first lien upon the surplus moneys herein, which said lien is prior to the lien of Washburn & Barnes, for the amount due upon the mortgage of $2,000 held by him, being for the said sum of $2,000, with interest thereon from the 1st day of January, 1887, amounting in all to the sum of $2,540.
    II. That Washburn & Barnes have the next lien upon the said •surplus moneys for the amount of the mortgage held by them and the interest due thereon.

      Early de Prenclergast, for the claimants, Washburn & Barnes, appellants.

      Henry Q-. Atwater, for the claimant Cannon, respondent.

      Moses Weyman, for the Murray Hill Bank.
   INGRAHAM, J. :

The equitable principle that where several pieces of property are -covered by a mortgage to secure the payment of a sum of money and the owner of the equity of redemption has conveyed the several pieces of property to different grantees, in an action to foreclose the mortgage the court will order the property sold in the inverse, •order of the alienation, so that the property last conveyed shall be first sold to pay the amount due, to secure which the mortgage was given, is not applicable to this case.

No application is made in this action to sell any portion of the mortgaged premises. By the conveyance or mortgaging of the separate parcels of property by the mortgagor the lien of the respondent's mortgage was not affected; it still remained a lien upon all of the several pieces of property mortgaged and the surplus money in this proceeding, being the proceeds of a piece of property upon wliicli the respondent’s mortgage was a hen, the respondent was. entitled to have such surplus applied to the payment of his mortgage.

The owners of the parcels of property covered by the respondent’s mortgage, other than the parcel foreclosed in this case, are not parties to this action and the court has no jurisdiction over them. It cannot make a decree directing a sale of the property, and the effect of sustaining the contention of the appellant would be to destroy the respondent’s lien upon a portion of property upon which he had such a lien by the execution of the mortgage. The court having no power in this proceeding to marshal the assets so as to apply the rule above stated, the rule cannot be applied at all. Whether or not the appellants Washburn & Barnes would be entitled to be subrogated to the rights of the respondent to enforce the mortgage against the West Third street property is not presented on this, appeal, and need not, therefore, be discussed.

When Steers took a conveyance of the West Third street property,, he had -no notice that the property foreclosed in this suit had been conveyed or that a mortgage to the appellant had been given, and as that mortgage was not recorded he had no constructive notice of it, so that he had the right to assume that the piece-of property foreclosed in this action would, if the rule contended for by the appellant was applicable, be primarily liable for the payment of this mortgage, and the subsequent purchase'of the mortgage under which the respondent claims transferred to the respondent the right of the original mortgagee to obtain the payment of his mortgage from the proceeds of any of the property upon which it was a lien.

It is clear that the mortgage was not merged by its transfer to the respondent, for transferring the mortgage instead of satisfying-it, or taking an assignment to himself, was a clear intimation by Steers that it was not .the intention that the mortgage should merge, even assuming that Steers, by payment of the mortgage, or the amount paid by the respondent for it, becomes its equitable owner. It is not claimed that Steers has realized anything out of the parcel of property conveyed to him, and the defeasance executed by Steers shows that such conveyance was simply a mortgage, and that by it he acquired only a lien upon the property to secure the amount of the mortgagor’s indebtedness to him.

It does not appear from the record that any motion was made in the court below to bring other parties in, so that the questions raised by the appellant could be determined, and to awrard this surplus money to the appellant would be, in effect, to hold that the appellant’s lien was prior to that of the respondent, when, in fact, the respondent’s lion was prior to the appellant’s.

The respondent was the real party in interest, as he was the owner of the mortgage, and it was to him that the money must be paid. The fact that, as between himself and some other person, such other person might be equitably entitled to a transfer of the mortgage, does not make such other person the real party in interest. It is-the real owner of the obligation that is entitled to enforce it.

I think, therefore, the order was right and should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Martin,_ J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ADOLPHE A. CAILLE, Appellant, v. HENRY C. MERRICK, Respondent.

      ■Office — title thereto— construction of the Binghamton city charter — vacancy in an office — the employment of a person to perform its duties is not an occupancy by him of the office — a statute not so construed as to create a co-ordinate power in a mayor and in a common council.

    The charter of the city of Binghamton (Laws of 1888, chais. 214, tit. 2, § 2) provided that no person should be appointed to a city office unless he were at the time a resident elector of said city; and in relation to city officers it further provided (tit. 8, § 2) that the common council should meet annually on the first Tuesday after the annual city election; that it might, at such'first or any subsequent meeting, appoint by ballot the city officers, among others a city engineer, “whenever the terms of office of any of said officers are about to expire, and such appointment is required; ” but that if it failed to appoint any such officers within three weeks from said first meeting, or failed to fill any vacancy within three weeks after such vacancy should occur, it should become the duty of the mayor, immediately upon the expiration of said three weeks, to appoint such officers and fill such vacancies, which he must do in writing, under his hand and seal, and file the appointment with the city clerk.
    ■One Merrick was appointed, in 1889, city engineer. He resigned, and his resignation, to take effect April IB, 1890, was accepted. One Oaille, not then a resident elector of the city, and, therefore, ineligible, was, pursuant to a resolution of the common council of March 81, 1890, employed, as of April 1, 1890, .by contract, “ as surveyor and engineer.”

      On August 13, 1890, the mayor appointed Caille city engineer, but tbis appointment, not being under seal, was defective.
    On August 29, 1890, tlie common council, by resolution, appointed Merrick to tbe same office.
    On September 22, 1890, tbe mayor again appointed Caille to tbe office by an appointment which complied with tbe charter, and Caille duly qualified.
    Merrick having refused to surrender tbe office an action was brought by Caille to determine tbe title thereto.

      Held, that a vacancy began to exist in said office when, on the 15th day of April, 1890, tbe resignation of Merrick, accepted by tbe common council, took effect.
    That tbe contract subsequently made by it with Caille was an employment, and was not an occupancy of the office preventing or affecting tlie vacancy then existing.
    That, under said charter, tbe common council had not power, on August 29,1890, to apiioint Merrick to said office, more than three weeks having expired since said vacancy occurred.
    That the power so to do thereupon vested in the mayor, and that his appointment of Caille to said office on September 22,1890, was valid and gave Caille title thereto.
    That the phrase in said charter giving to the common council power to appoint a city engineer at its first, or “ any subsequent meeting,1' must be construed, as regards the power to fill a vacancy in that office, to mean any subsequent meeting held within three weeks from the time when the vacancy occurred.
    That where there is doubt as to the construction of a statute it should be so construed, if possible, as not to create a co-ordinate power in a mayor and in a common council to appoint to the same office, such a construction necessarily involving a conflict of authority.
    Appeal by tbe plaintiff, tbe People of tbe State of New York, on the relation of Adolphe A. Caille, from a judgment, in favor of the defendant, dismissing tbe plaintiff’s complaint, entered in the Broome county clerk’s office on March 22, 1891; and also from an order, entered in the clerk’s office of Broome county on the 29th day of November, 1890, denying a motion for a new trial upon the minutes of the court, after a trial at the Broome Circuit before the court and a jury, at which the plaintiff’s complaint was dismissed.

      A D. Wales, for the appellant.

      E. O' Connor, for the respondent.
   Martin,_ J. :

The sole purpose and object of this action 'was to determine the title to the office of city engineer of the city of Binghamton, N. Y. The right to that office was claimed both by the relator and the ■respondent., the former claimed title to the office by virtue of an ..appointment made by the mayor of the city, the latter under an appointment made by its common council.

The.common council, at its annual meeting, held on the first Tuesday after .the .annual city election in the year 1889, duly appointed the respondent as city engineer for the term of two years. In the latter part of March, 1890, the respondent resigned the office, his resignation fo take effect on the fifteenth day of the following April. His resignation was duly and properly accepted by a majority vote -of the .common council, and filed with the city clerk. From that -time he .ceased to perform the duties of the office until the twenty-ninth of August of that year. Soon after the resignation of the respondent -and its acceptance, all the members of the common -council belonging to the then dominant party and the mayor, who was a member of the same party, held a caucus, at which the relator was present. The caucus determined that the relator should be ..appointed by -the council, city engineer, to fill, for the unexpired term, the vacancy caused by the resignation of the respondent. It •.was, however, subsequently discovered that the relator was ineligible to the office for the reason that he was not a resident elector of •the city, it being provided by the charter that no person should be •elected or appointed to any city office unless he should be at the time .;a resident elector of said city. (Laws of 1888, chap. 214, tit. 2, §2.) The caucus .then determined that the relator should be employed to perform the duties of city engineer until' such time as he should become qualified to hold the office by becoming a resident elector, when it was understood that he was to be appointed. In pursuance -of this determination the common council, at a meeting held March .31, 1890, passed the following resolution :

“liesolved, That the mayor and city clerk be, and they are hereby, .authorized and directed to enter into a contract with A. A. Oaille for his services -as surveyor and engineer at a salary of one hundred and twenty-five dollars per month, to date from April 1 st, 1890.”

Under this resolution the relator was employed, and continued to do the work 'usually performed by the city engineer, until about August 29, 1890, when the common council attempted to appoint the respondent .to fill the vacancy occasioned by his. previous .¡resignation.

During tlie time the relator discharged the duties of such office die was treated by the mayor and common council as though duly and properly appointed thereto. Shortly after his employment numerous complaints were made as to errors committed by him in establishing ‘grades and curb lines of streets, which tended to show either that he did not possess sufficient capacity to properly discharge the duties of the office, or that he was negligent in the performance of such duties. The evidence disclosed that his errors were so numerous and glaring that the board of street commissioners called the attention of the common council to the inefficiency of the relator and his work; and it also tended to show that lie had little, if any, experience in performing the kind of work required of a ■city engineer.

After the complaint of the board of street commissioners had been received, and the Common Council had become fully aware of the many complaints as to the errors and inefficiency of the relator, and on the 29th day of August, 1890, it held a meeting at which it sought to appoint the respondent as city engineer. At that meeting, when it had reached the order of business designated as “Miscellaneous Business,” one of the aldermen moved that the council proceed to ballot for a city engineer to fill the unexpired term caused by the resignation of the respondent. Thereupon the president of the board of aldermen took a paper from his pocket and threw it on the desk of the city clerk, which paper was as follows:

“Binghamton, N. Y., August 13, 1890.
To the Honorable the Gormnon Oov/neil:
Gentlemen.— By the power given me by the charter, I hereby appoint A. A. Caille, city engineer.
“F. H. STEPHENS,
Mayor.”

The president of the board then refused to put to vote the motion to proceed to ballot for a city engineer, and an appeal was taken from such ruling, which the president also refused to entertain, whereupon the clerk was ordered to put the motion on the appeal, and it was sustained by a vote of eleven to one. The president was then requested to put the question on the original motion, which he ■did not do, and the clerk being ordered to do so called the roll and the motion was carried, ten voting in favor of the motion and three against it. The clerk was then requested to appoint tellers, and the council proceeded to ballot for a city engineer, the respondent receiving nine of the twelve votes of the aldermen present. The following resolution was then adopted :

“Resolved, That the services of A. A. Caille be dispensed with at the close of the present month.”

Subsequently, and on the 22d of September, 1890, the mayor made, executed and filed with the city clerk the following appointment:

“ STATE OF NEW YORK, County of Beoome, City of Binghamton,
“A vacancy having existed in the office of city engineer, and the common council having failed to fill said vacancy within three weeks after the same occurred; by virtue of the power vested in me as mayor of said city, I hereby appoint Adolphe A. Caille of Binghamton, N. Y., city engineer to fill said vacancy.
“ Witness my hand and seal this 22d day of September, [l. s.] 1890.
“FRANK H. STEPHENS,
‘■Mayor of the Oity of Binghamton?

It was indorsed as follows: “Appointment of Adolphe A. Caille, as city engineer, filed September 22, 1890. W. J. Flannigan, City Clerk.”

After this appointment was made and filed, the relator subscribed and filed his oath of office as required by statute, and duly qualified as such officer. He then demanded of the respondent the possession of said office, which was refused.

On the trial the court dismissed the complaint on the ground that, by reason of the employment of the relator, no vacancy existed in the office until the time of the appointment of the respondent, and, therefore, the common council had the authority to make such appointment, as the vacancy had not then existed for the period of more than three weeks.

It is true the evidence showed quite conclusively that there was an understanding between the mayor and a majority of the common council that no city engineer was to be appointed, either by the council or the mayor, until the relator should have resided in the city for tlie period of four months, and thus become qualified to hold the office, and that he was to be employed, in the meantime, to discharge the duties of such office, and was to receive an amount equal to the salary as a compensation for his services. It is also trae that he was, in many respects, treated, both by the mayor and council, as though he were, in fact, such officer. If, therefore, the common council, or the council and mayor together, had the power to make such contract, and it resulted in preventing the occurrence of a vacancy in that office while the employment under it continued, it would seem to follow that the vacancy first arose when the contract was terminated. But we áre unable to discover any principle upon which it can be held that the employment of a person by contract to perform the duties of an office which he was disqualified from holding in any manner prevented the office from becoming vacant The very fact that such disqualification existed rendered it impossible to prevent the occurrence of a vacancy. A public office is never conferred by contract, but finds its source and limitation in some act or expression of the governmental power. When, therefore, the authority in question was conferred by contract, it must be regarded as an employment only, and not as the occupancy of a public office. .(Mechem on Public Officers, § 5.) While municipal corporations may make authorized contracts, they cannot make contracts or pass by-laws which shall cede away, control or embarrass their legislative or governmental powers, or which disable them from performing their public duties. (1 Dillon’s Municipal Corp. [4th ed.j, § 91.) We think the employment of the relator did not prevent the office from becoming vacant, after the time when the respondent’s resignation took effect, and that the vacancy occurred on April 15, 1890.

Moreover, it was clearly and positively alleged in the complaint, and not denied by the answer, that a vacancy had existed in such office for more than three weeks before August 29, 1890. The respondent also alleged in his answer that he ceased to be such engineer on April 15, 1890; that the office remained vacant and unfilled until August 29, 1890, and that it had remained vacant from the time of respondent’s resignation until his election to said office on August 29, 1890. The same fact was also admitted on the trial. Under these circumstances, it is not apparent to us how it can be held that the office in question had not remained vacant for more than three weeks prior to the 29th of August, 1890.

Again, if the relator’s employment was, in effect, a filling of such office so that no vacancy existed until such employment was terminated, the council had no authority to appoint the respondent, as they could only appoint when a vacancy existed. Thus we are led to the conclusion that the judgment in this case cannot be upheld on the ground that a vacancy in such office had not existed for more than three weeks before the action of the common council by which they sought to appoint the respondent.

It may be observed, in passing, that the attempted appointment of the relator made by the mayor, dated August 13, 1890, and which was presented to the city clerk on the twenty-ninth of that month, was insufficient, as it was not in conformity with the statute which required that such appointment should be in writing under the hand and seal of the mayor and be filed with the city clerk. (Laws of 1888, chap. 211, tit. 3, § 2.) That appointment was neither under his seal nor filed with the city clerk.

The next, and practically the only, remaining question that need be considered is, whether the common council had, at the time it attempted to exercise it, power to appoint a city engineer. If it had not, then its. attempted appointment of the respondent was void, irrespective of any question as to the regularity of its proceedings. This question is dependent for its solution upon the construction to be given to the provisions of the charter of the city of Binghamton relating to that subject. The portion of the charter which relates to the office of city engineer provides that the common council shall meet annually on the first Tuesday after the annual city election ; that, at such annual meeting, they shall choose a president of the board of aldermen; and the common council may also, at such first or any subsequent meeting, appoint by ballot one city clerk, one recorder, one treasurer, one eitu engineer, one corporation -counsel, one sealer of weights and measures, one sexton, and one janitor of the city buildings, whenever the terms of office of any of said officers are about to expire, and- such appointment is required, but if the common council fail to appoint any such officers within three weeks from said first meeting, or fail to fill any vacancy which may occur in any elective or appointed office, which it is authorized to fill by the provisions of this act, within three weeks after such vacancy shall occur, it shall become the duty of the mayor, immediately upon the explication of said three weeks, to appoint to such offices, and to fill such vacancies, which he shall do in writing under his hand and seal, and file with the city clerk, who shall thereupon notify the person or persons so appointed, the same as if such appointment had been made by the common council.” (§ 2 of tit. 3 of chap. 214, Laws of 1888.) The charter also provides: “ The city engineer shall hold his office for two years. He shall be paid an annual salary of not less than twelve hundred and not to exceed fifteen hundred dollars, to be paid as the common council may determine. He shall perform such duties with regard to surveying, engineering and other similar work as the council may prescribe.” { § 22 of tit. 4.)

We find no express provision in the charter winch provides for filling any vacancy that may occur in the office of city engineer. If, however, in the absence of such provision it is to be assumed, as we think it should, that the body or officer having the power to make such aj)pointment has the same power when there is a vacancy ■occasioned by resignation, as when it is caused by the expiration of the term of office, and is to be exercised in the same manner, then it follows that the provisions oí the charter must still control in ■determining the power of the common council.

It will be observed that the section relating to the appointment of such officer provides that the common council may, at its first annual meeting, or at any subsequent meeting, appoint a city engineer ; but it then declares that, if the council fail to make such appointment within three weeks, it shall become the duty of the mayor, immediately upon the expiration of that time, to make such appointment. The respondent contends that the provision, that such appointment may be made at any meeting subsequent to the first annual meeting, is evidence of an intention on the part of the legislature that it may be made by the council at any time while such vacancy exists, although more than three weeks may have elapsed. If that provision stood alone, the construction contended for would doubtless be correct, but in construing a statute effect must be given, if possible, to all the language employed. (People ex rel. Freligh v. Matsell, 94 N. Y., 179, 183; People v. McGloin, 91 id., 250.) Every part must be viewed in connection witli tire whole so as to make all its parts harmonize, if practicable, and give a sensible and intelligent effect to each. (People ex rel. Gilmour v. Hyde, 89 N. Y., 18, and cases cited in opinion.) Therefore, in determining the effect to be given to the provision that the appointment may be made at the first annual meeting of the common council, or at any subsequent meeting, we should consider the further provision that unless the common council shall make such appointment within three weeks, it shall become the duty of the mayor to appoint, and construe these provisions together. When we thus read this statute, it becomes quite manifest that the term, “ or any subsequent meeting,” should be construed as only including a subsequent meeting held by the council within three weeks after a vacancy has occurred, and while it had the express power to make such appointment.

That the council had the absolute power to appoint a city engineer at any time within three weeks after a vacancy occurred is obvious. But the power conferred was required by the statute to be exercised in a definite manner and within a limited time. If it was not exercised within that time, it then became the absolute and immediate duty of the mayor to make such appointment. This provision shows quite clearly that the designation of the time within which the council may appoint was intended as a limitation of its power. The power conferred upon the common council was absolute, except as to the time and manner of executing it. In that respect it was limited and conditional, and could be lawfully exercised only within the limits prescribed. If it was not thus exercised, it then vested in the mayor and was to be exercised by him alone. “ The provisions of the charter as to time and mode of election, the appointment, qualifications and duration of the terms of officers, must be strictly observed.” (1 Dillon on Municipal Corn. [4th ed.], § 207.) It could be exercised only at the time, in the manner and to the extent prescribed by law. (Mechera on Public Officers, § 124.) “The designation of certain times and agencies necessarily excludes the adoption of any others for the accomplishment of the objects provided for.” (People ex rel. Smith v. Schiellein, 95 N. Y., 124, 128.) When we read the statute, according to the natural and most obvious import of the language employed, without resorting to a subtle and forced construction for the purpose of limiting or extending its operation, we conclude that it was the intent of the statute that the common council should have the exclusive power to appoint a city engineer at any time during the period of three weeks after a vacancy in that office occurred, but that if, for any reason, the council did not exercise the power granted within that time, then the power to make such appointment passed to, and vested in, the mayor alone, and rested in him until such appointment was made.

We cannot think that it was the intent of the law-makers that the power should rest in the council for three weeks, and after that time that the common council and the mayor should have co-ordinate power to make such appointment. It is not, we think, reasonable to suppose that such was the intent. Whenever the language admits of two constructions, it -is obvious that the more reasonable of the two should be adopted as that which the legislature intended. (Endlieh on Interpretation of Statutes, § 258, and cases cited.)

The propriety of thus construing this statute beepmes more apparent when we consider the liability of a conflict between the mayor and council, if such co-ordinate power was held to exist, and the inconvenience, uncertainty and mischief that might follow. After the expiration of three weeks, if the mayor refused to discharge his duty by appointing an engineer, he could be compelled to do so. Could the council also be compelled to make such appointment ? If the power of the council continued, as it affected third persons and the public interest, the statute would be regarded as mandatory, and the duty to make such appointment would also continue, and the council could be compelled to appoint. Under such a construction there might be two actions at the same time, one to compel the mayor to appoint, the other to enforce an appointment by the council. A construction which might produce such a ■condition of things should not, we think, prevail. This statute .should not be construed so as to work such mischief, unless required by words of the most express and unequivocal import. (People v. Mallory, 2 T. & C., 76, 81: People v. Lambier, 5 Den., 9.) If the statute is construed as vesting the power of appointment in the council for three weeks, and after that time in the mayor alone until made, it becomes certain and reasonable, and the mischief which would arise from the opposite construction would be avoided.

Again, tlie duty imposed upon tlie mayor was an immediate one, and tlie manifest intent of the statute was that it should be discharged at once by filling such vacancy immediately upon the expiration of the three weeks within which the council could appoint, and not that it should remain vacant after that time, with co-ordinate power in the mayor and council to appoint. Hence we are of the opinion that as the office had been vacant more than three weeks at the time the common council attempted to appoint the respondent, it had no power or authority to make such appointment, and it was, therefore, void; and that as the mayor alone had the power to make the appointment after a vacancy in the office had existed for three weeks, and he having exercised it in the manner provided by the charter in appointing the relator on September 22, 1890, his appointment was valid and entitled him to the possession of the office.

If correct in these views, it becomes unnecessary to examine the other questions presented by the appellant, as the judgment must be reversed for the reasons already stated.

Hardin, P. J., and Mbrwin, J., concurred.

Judgment and order reversed and a new trial ordered, with costs to abide the event.