Supreme Court, February, 1899. [Vol. 26. my brother, Harmon Hendricks, deceased, to share and share alike per stirpes." Emeline died intestate and without issue. Matilda subsequently died and the estate in remainder passed to such heirs of Harmon Hendricks as were contemplated by the will. At the time of the death of the testatrix Gomez, Harmon Hendricks had ten children living, all of whom died before Emeline, to whom the first life estate was devised. Some of these children left wills, under which any interest in the real estate in question vested, in the testators, passed. In a partition action none of the devisees of these children were made parties but all persons who answered to the description of the living heirs of Harmon Hendricks on December 6, 1893, the date of the death of Matilda, were made parties. The purchaser at the partition sale objected to taking the title on the ground that the devisees under the wills of said certain children of Harmon Hendricks should have been made parties. The Supreme Court denied his claim and the Court of Appeals affirmed the order appealed from and denied the motion of the purchaser to be relieved and held "Where final division and distribution is to be made among a class, the benefits of the will must be confined to those persons who come under the category at the date when the distribution or division is directed to be made." And in a very similar case Bisson v. West Shore Railroad Co., 143 N. Y. 125, the Court of Appeals held "Though the heirs of the testator were determinable at his death, yet the gift to them was not, by the terms of the will, to vest in possession until after the termination of the life estate given to the widow. That was the time fixed for the gift to take effect and then was the time when the persons would be ascertained, who, coming under the description of heirs of the testator, would be entitled to share with the heirs of his widow, in the distribution of the estate. Within that time the number of his heirs might be diminished by death, or increased by births." These are the rules of construction that must be taken in cases of this kind unless some different meaning of the testator can be ascertained from the context of the will. I can gather no different meaning from the whole will before me. The words "from and immediately after her decease" refer, to Sarah Eliza, and would seem to lend additional strength to the rule that the testator intended the premises in question to go to the children living at the time of Sarah Eliza's death. Time may be said to enter into the substance of a gift or devise when the existence of such a gift or Misc.] Supreme Court, February, 1899. devise depends upon a contingency which may or may not happen. It is so in this case. If Sarah Eliza had left living issue, none of the other children would have taken anything, since she did not leave issue, only those children of John D. Wilklow living at her death take under his will. The defendant Henry Ten Hagen relies largely upon the case of Hennessy v. Patterson, 85 N. Y. 91, to sustain his contention that he as devisee under the will of Mary A. Ten Hagen, is entitled to a one-eighth interest in the property in question. But the will in that case provided in effect for two life estates, and if the second life tenant left no issue then the premises in question were devised to one John Foley. The second life tenant left no issue, but Foley died prior to the second life tenant. The court held that Foley took a contingent interest which vested in him as a right upon the death of the testator, and which descended to his heirs. The difference between that case and this is that that was a devise to a certain person. It was not a devise to a class. Courts are inclined to give that construction to a will which will prevent a whole or partial intestacy rather than have the particular estate pass by the laws of descent. By that clause of the will in that case John Foley must necessarily have taken an interest else there was no residuary devisee. That is not this case. Here there was a class of seven children living at the time of the decease of Sarah Eliza which satisfied the terms of the particular clause in question in this will. I hold, therefore, that there are only seven shares or interests. in this real estate in question and that Henry Ten Hagen, as devisee of his wife or otherwise, has no share or interest therein. An interlocutory judgment in partition may be handed up in accordance with this memorandum. Ordered accordingly. County Court, Niagara County, February, 1899. [Vol. 26. EDWARD M. GRIGG et al., Respondents, v. WILLIAM C. REED, Appellant. (County Court, Niagara County, February, 1899.) Justices' Courts facts. Complaint on judgment must state jurisdictional A complaint, in an action brought in a justice's court upon a judgment, which merely states "that judgment was duly rendered " etc., without stating the facts which conferred jurisdiction, fails to state a cause of action. Section 532 of the Code of Civil Procedure, declaring that, in pleading a judgment, "it is not necessary to state the facts conferring jurisdiction" does not apply to justices' courts. APPEAL taken from a judgment of Sheridan L. Buck, justice of the peace of the city of Lockport, rendered August 23, 1898. Richardson & Judson, for appellant. W. Luther Reeves, for respondents. HICKEY, J. This is an appeal from a justice's judgment in plaintiffs' favor. Respondents brought action in the court below upon two Justice Court judgments, which they had theretofore recovered against the defendant. The complaint below was verified, and, instead of setting up the facts conferring jurisdiction according to the common-law rule, simply alleged "that judgment was duly rendered," etc. Defendant did not appear, and plaintiffs took judgment by default upon their verified complaint. The appeal is taken upon the ground, among other things, that the complaint failed to state a cause of action. Much against my will, I am forced to adopt this view. Respondents relied largely on section 532 of the Code to support their contention that the complaint was sufficient. This section provides that, " In pleading a judgment, or other determination, of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction; but the judgment, or determination may be stated to have been duly given or made." But this section has no application to pleadings in the Justice's Court. Misc.] County Court, Niagara County, February, 1899. §3347, Code, subdivision 4; 2 Wait's Law & Prac. (5th ed.) 223; 3 id. 309. I am of the opinion that the common-law rule, requiring that the facts conferring jurisdiction shall be set out, has never been changed as to pleadings in Justices' Courts. The case of Wheeler v. Dakin, 12 How. Pr. 537, cited by respondents, and which counsel for appellant seems to admit is an authority to that effect, but not controlling, is not in point at all. That was an action in the Supreme Court, and under section 161 of the Code of Procedure, then in force, which corresponds to section 532 of the present Code, it was not necessary that the complaint should state the facts conferring jurisdiction. It was only necessary to state that the judgment or determination had been duly given or made. The law seems to have been the same then as now. If suit were brought in certain courts of record, upon a judgment of an inferior court, the common-law rule of alleging the jurisdictional facts need not be followed; but there is no law changing that rule when the action is brought in an inferior court upon an inferior court judgment. At least, no such law has been called to my attention. No good reason occurs to me why such a distinction should have been made; but it seems to exist, and the remedy is with the legislature, and not with the courts. Chapter 414 of the Laws of 1881, pursuant to which the action was brought, provides that the complaint shall state, "in a plain, concise manner the facts constituting the cause of action." The allegation" that the judgment was duly rendered" is not a compliance with this requirement. Such an allegation has never been held to be a statement of the facts constituting a cause of action. Beach v. King, 17 Wend. 198; Cleveland v. Rogers, 6 id. 440; Cornell v. Barnes, 7 Hill, 37. Such an allegation is by virtue of section 532 of the Code, allowed as a substitute for a statement of the facts in certain courts of record, but not in Justices' Courts. The conclusion thus reached renders it unnecessary to consider the other points urged by appellant as ground for reversal. The judgment below is reversed, with costs. Judgment reversed, with costs. Supreme Court, February, 1899. [Vol. 26. Matter of the Petition of HENRY H. LYMAN for an Order Revok ing Liquor Tax Certificate issued to WILLIAM FAGAN. (Supreme Court, Albany Special Term, February, 1899.) 1. Liquor Tax Law Sale of liquor after surrender of certificate. The sale of liquor by the holder of a liquor tax certificate, after he has surrendered it to the county treasurer to procure a rebate, forfeits the certificate and the rebate also. 2. Same On revocation of certificate, its pledgee need not be served. A mere pledgee of such a certificate need not be served with a petition and order to show cause why the certificate should not be revoked, as such a pledgee is not "the holder of such certificate" within the meaning of the statute (Laws of 1896, chap. 112, § 28, subd. 2, as amended by Laws of 1897, chap. 312, § 19). APPLICATION for the revocation of a liquor tax certificate. William E. Schenck, for petitioner. James J. Farren, for defendant. CHESTER, J. The defendant contests this application on two grounds: first, because the assignee of the certificate has not been made a party to the proceeding, nor been served with a copy of the petition and order to show cause, and second, because, as he claims, he has not violated any provision of the Liquor Tax Law, a conviction for which would cause a forfeiture of his certificate, or of the right to a rebate of a portion of the tax paid thereon. The last-mentioned ground will be considered first. The proof shows that application, under section 25 of the Liquor Tax Law, to surrender the certificate in question, and for a refunding of the pro rata amount of the tax paid for the unexpired term of such certificate, was made to the county treasurer of Albany county on November 30, 1898. The petition, which was accompanied with the surrendered certificate, stated that the petitioner had voluntarily ceased to traffic in liquors during the term for which said certificate was issued. The petition and certificate were received in due course by the state commissioner of excise the next day, December 1st. Notwithstanding this surrender and |