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(Supreme Court, Special Term, New York County. May, 1907.) WILLS-ANNUITY-ELECTION BY ANNUITANT.

Where an executrix under the will is required to invest a certain sum in the purchase of an absolute annuity, the annuitant may elect to take the capital sum, instead of having it invested for the purchase of an an. nuity. Action by Antionette Marsh Reid against Elizabeth Brown to construe a will. Judgment for plaintiff.

Deyo, Duer & Bauerdorf, for plaintiff.
William H. L. Lee, for defendant.

TRAUX, J. This is an action brought to obtain a construction of the following clause of the will of Edward J. Brown, deceased:

“(5) I give and bequeath to Antoinette Marsh Reid, wife of Willard O. Reid, such annuity, payable half-yearly during her life, as the sum of fifteen thousand dollars will purchase. I direct my executrix or executrices to expend the sum of fifteen thousand dollars out of my estate in the purchase of such annuity, payable to said Antoinette Marsh Reid half-yearly during her life, by such insurance company or companies or other corporation or corporations as my executrix or executrices may select."

Clause 6 provides that, "in case the said Antoinette Marsh Reid shall die before me, I give and bequeath the said sum of fifteen thousand dollars" to various charitable corporations. The plaintiff, Mrs. Antoinette Marsh Reid, has survived the testator and has elected to take the sum of $15,000, instead of the annuity which might be purchased therewith, and brings this action to have it established that she is entitled so to do. The answer admits that the plaintiff has undertaken to make such election, but denies that she has any right of election.

The annuity to Mrs. Reid being absolute and unqualified, and the executrix being instructed to expend $15,000 to purchase the same, Mrs. Reid may elect to take that sum, instead of having it expended in the purchase of the annuity. The rule applicable to this case is as follows:

"Where an absolute and unqualified annuity is given, with instructions to invest a sum sufficient to purchase the annuity, the annuitant may elect to take the capital sum instead of having it invested for the purpose of producing the annuity.” 2 Am. & Eng. Encyc. of Law (20 Ed.) 399.

The conditions of fact set forth in this rule are precisely those presented in the case at bar, and the following cases fully support the rule: In Ford v. Batley, 17 Beav. 303, a testator directed his executors to purchase an annuity from government or any other public company for A. B. Held, that A. B. was entitled to have a government annuity, or, at his option, take the price in lieu of the annuity. The court said: "It is obvious that if an annuity were purchased he might sell it immediately afterwards.” In Stokes v. Cheek, 27 Beav. 620, a testatrix directed a government annuity to be purchased, and declared the annuitant should not “be allowed to accept the value of the annuity in lieu thereof." Held, that the declaration was ineffectual, and that the

and 140 New York State Reporter annuitant was entitled to receive the purchase money instead of the annuity. The court said: “It would be an idle form to direct an annuity to be purchased which the annuitant might sell immediately afterwards." "Wakeham v. Merrick, 37 L. J. Eq. (N. S.) 45, L. J. 1868, 16 Wkly. Rep. 73, 17 L. T. (N. S.) 134, holds that, where a sum of money is so bequeathed for payment of an annuity that the whole of the principal is dedicated to the annuity (which is true of the bequest under consideration), the interest of the annuitant in the bequest is an absolute one, and he or his representatives will be entitled to be paid the whole of the sum. See, also, Palmer v. Cranford, 3 Swanst. 482. The precise point of the right of an annuitant to elect to take the fund instead of the annuity which it would buy has never been passed upon in this state; but the fundamental principle underlying the English cases, viz., that an annuity is only a transferable legacy, has been repeatedly adjudicated in our courts. Cocks v. Barlow, 5 Redf. Sur. 406, 414; Lang v. Ropke, 5 Sandf. 363, 370; Hawley v. James, 16 Wend. 61; Griffen v. Ford, 1 Bosw. 123, 143, 144; Maurice v. Graham, 8 Paige, 484, 487; Hunter v. Hunter, 17 Barb. 25, 90; Mason v. Jones, 2 Barb. 229, 247. It has also been held in this state that the right to receive an annuity can be taken from an annuitant to satisfy the claims of creditors. DeGraw v. Clason, 11 Paige, 136. If the testator had deemed it necessary to protect the plaintiff against herself, he could have done so through the instrumentality of a trust. On the other hand, so far as the estate is concerned, the exercise of election by taking the principal of the fund is not detrimental to the estate, because, whether the principal is laid out for an annuity, or whether it goes to the annuitant, it is absolutely lost to the estate. In this vital respect a fund expended to raise an annuity differs from a fund set apart in trust to raise income for a designated beneficiary. An annuity does not possess any element of a trust. Matter of Collins, 144 N. Y. 522, 39 N. E. 629.

Judgment is ordered for plaintiff, with costs.

(121 App. Div. 501.)

PIERCE V. McLAUGHLIN REAL ESTATE CO. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) 1. DISCOVERY-EXAMINATION OF DEFENDANT-GROUNDS.

No examination of defendant in an action for an accounting is necessary to enable plaintiff to frame a complaint.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Discovery, f 51.) 2. ACCOUNT-COMPLAINT-SUFFICIENCY.

A complaint, in an action for an accounting, need only show that plaintiff is entitled to an accounting, and plaintiff, after filing a complaint showing that he is entitled to an accounting, may obtain an interlocutory judgment that defendant file an account. Appeal from Special Term, Kings County.

Action by Benson H. Pierce against the McLaughlin Real Estate Company. From an order denying a motion to vacate an ex parte order for the examination of defendant to enable plaintiff to frame his complaint, defendant appeals. Reversed.

Argued before HIRSCHBERG, P. J., and HOOKER, RICH, MIL LER, and GAYNOR, JJ.

James P. Judge, for appellant.
Albert A. Hovell, for respondent.

GAYNOR, J. The plaintiff does not state in his affidavit what kind of an action he has brought by the service of the summons. It may be gathered from such affidavit that it is a suit for an accounting. It states that the plaintiff had an oral agreement with the defendant to get purchasers of real estate owned or controlled by it, the plaintiff to be paid a percentage of the net profit the defendant should realize on the real estate thus sold, and that many sales were made by the plaintiff. No examination is necessary to frame a complaint for an accounting. If the defendant be under the duty to account to the plaintiff, and refuses to do so, as the plaintiff's affidavit alleges, then all that the plaintiff needs to do is to frame a bare and lean complaint showing that he is entitled to an accounting. Then the course is to obtain an interlocutory judgment that the defendant file an account. The practice following that is equally familiar to the profession. The plaintiff wants to get the account before he serves a complaint.

The order should be reversed. Order reversed, with $10 costs and disbursements, and motion granted, with costs. All concur.

(54 Misc. Rep. 463.)

HALL et al. v. SENIOR et al. (Supreme Court, Special Term, New York County. May, 1907.) 1. WILLS-CONSTRUCTION-DEATH OF LEGATEE.

Testator devised all his property to his wife for life, after her death the estate to be equally divided between his children then living, and, in the event of the death of any child before the death of his wife, such share to go to the issue, or child or children of such deceased child or children. Held, that the interest of a child who died before the death of the life tenant became extinguished, and the share intended for him passed to his children and the devisees free from all claims of their fa

ther's creditors. 2 EXECUTION-SUPPLEMENTARY PROCEEDINGS-POWERS OF RECEIVER.

Where a receiver was appointed in supplementary proceedings, he acquired no title to the real property of the debtor, nor any power to sell the same, but only to take possession, for the purpose of satisfying the judgment; bis right being subject to be terminated by the sale of the property under execution and a deed to the purchaser, or by the expiration of the 10 years during which the judgment was a lien on the premises.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 21, Execution, $ 1173.] Action by Amanda M. Hall and others against Charles A. Senior and others for partition. Judgment rendered.

Edward H. Senior died in 1868 seised of considerable real estate in New York and Putnam counties. His will contained the following provision:

"Second: I will, bequeath and devise all my worldly estate of whatsoever kind or nature, real, personal and mixed unto my dearly beloved wife Amanda

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and 140 New York State Reporter Melvina Senior, for and during her natural life, and after her death the said estate of which I may die seised, possessed of, or entitled to, both real, personal and mixed, I direct to be equally divided between our children who shall be then living, and in the event of the death of any of our children before the death of my dear wife, then such share which such child would have been entitled to shall go to the issue or child or children of such of our deceased child or children.

"It is my will and I so direct that my dear wife shall make especial provision for the comfort and support of our son Thomas S. Senior, and that the same or the cost of such especial comfort and support of our son Thomas, shall be a charge upon my estate during his, our said son Thomas' natural life, and that he shall share with the rest of our children after the demise or death of my dear wife."

The widow was appointed executrix. With estate assets she purchased other real estate, the deeds running to her as executrix. She died in 1902. One son, Edward, predeceased her, leaving several children. In his lifetime judgments were recovered against said son, and a receiver in supplementary proceedings was appointed of his property. His interest in the testator's real estate was sold and conveyed by the sheriff under an execution, and was also sold and conveyed by the receiver under an order of the Marine Court. Also, during the lifetime of the widow, there was sold and conveyed under the execution of one Stillwell the interest of another son, Charles, not only in the property of which the testator died seised, but also in the property which the widow had acquired as executrix. In 1874 certain other creditors obtained a judgment against Alfred, another son of the testator. In 1891 an order was made by the City Court granting leave to issue execution and execution was issued. The interest of the debtor in the testator's real estate was sold and conveved by the sheriff, and the same by mesne conveyances is claimed by the defendants Govin and Simpkins. In 1879 William T. A. Hart recovered a judgment against William and Theodore Senior. After a second execution in 1891, a receiver in supplementary proceedings sold the interest of the debtors in the testator's real estate, pursuant to an order of the City Court. The executrix conveyed certain Downing street property to her daughter, purporting to be acting under a power of sale contained in the will. The deed expressed a consideration of $30,000, but none was in fact paid. Eighteen days later the daughter incumbered the Downing street property and also certain Forty Ninth street property with a blanket mortgage, the proceeds of which mortgage were simultaneously used in the purchase of the Forty-Ninth street property. The daughter then reconveyed both properties to the executrix. The executrix conveyed to the son Thomas the homestead property in Putnam county, purporting to be acting in compliance with the directions contained in the will. The validity of this conveyance is attacked only by the purchasers at the receiver's and sheriff's sales.

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Henry B. Hathaway, for plaintiffs.

Alphonse Dession (John M. Stoddard, of counsel), for Charles, Alfred, Theodore, and William Senior, and Burke.

John C. West, for children of Edward M. Senior.

Coudert Brothers (Charles B. Samuels, of counsel), for Hart &
Smith.
Merrill & Rogers (A. H. Holbrook, of counsel), for Stillwell.
Charles S. Simpkins, for Simpkins.
William H. Blymer, for Govin.
Jacob Fromme, for Burt as receiver.
Justus W. Smith, for Hollister.

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O'GORMAN, J. After providing for the maintenance of his son Thomas, the testator gave a life estate in all his property to his widow, with remainder over to his nine children. They took a vested inter

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est, liable, however, to be divested in the event of their predeceasing their mother. The will expressly declares that, in the event of the death of a child before the termination of the life estate, the issue of said deceased child shall take the parents' share. One son, Edward M. Senior, died before his mother's decease, and his interest and that of those claiming under him thereupon ceased. The rights of judgment creditors, receivers, and purchasers at sheriff's sales, so far as they affected Edward M. Senior, became extinguished when he died. When his death occurred, the share intended for him passed to his six children, absolutely freed from their father's liabilities. They did not take as heirs of their father, but as devisees of their grandfather, the testator. The supplementary proceedings instituted upon the Hart judgment recovered against the defendants William A. Senior and Theodore E. Senior were not void. The defects in those proceedings were not jurisdictional, and were waived by the appearance and examination of the judgment debtors and the appointment of a receiver without objection. Glover v. Gargan, 10 App. Div. 527, 42 N. Y. Supp. 74. But, although the appointment of the receiver was valid, his attempted sale of the judgment debtor's real estate was ineffectual to pass title. A receiver appointed in proceedings supplemental to execution does not acquire any title to the real property of the judgment debtor, nor any power to sell or transfer such real property. His interest is simply a right to take possession of the judgment debtor's real property for the purpose of satisfying the judgment, and is subject to be terminated by a sale of the real property under execution and the delivery of a deed thereof to the purchaser. It is also subject to be terminated by expiration of the ten years during which the judgment under which the receiver is appointed is a lien upon the premises. Chadeayne v. Gwyer, 83 App. Div. 403, 82 N. Y. Supp. 198; Damers v. Sternberger, 52 Misc. Rep. 532, 102 N. Y. Supp. 740; Steenberge v. Low, 46 Misc. Rep. 285, 92 N. Y. Supp. 518. The sheriff's deed under the Brown judgment, purporting to convey the interest of Alfred Senior in Nos. 57 and 59 Downing street, No. 134 West Forty-Ninth street, and the leasehold in West Houston street was wholly ineffectual, as it rested on an execution issued 17 years after the docketing of the judgment. Execution cannot reach real estate after it has ceased to be a lien. Baumler v. Ackerman, 63 Hun, 40, 17 N. Y. Supp. 436; Matter of Harmon, 79 Hun, 226, 29 N. Y. Supp. 555. Section 1252 of the Code of Civil Procedure is restricted to judgments "hereafter rendered”; that is, after September 1, 1877. The judgment of Brown against Alfred Senior was recovered May 5, 1874. The testator never owned the Forty-Ninth street property, nor the Houston street leasehold. These two properties were acquired by the widow of the testator, and, while they were purchased with the money of the estate and the title taken in the name of the widow as executrix, the interest of the testator's children in these properties was never a legal estate until the death of the executrix in 1906. Lockman v. Reilly, 95 N. Y. 64. The sheriff's deed to Benjamin Stillwell conveyed all the one-ninth interest of Charles A. Senior in the properties Nos. 57 and 59 Downing street and No. 79 Carmine street.

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