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SECOND DEPARTMENT, JULY TERM, 1903.

(Vol. 86. at five-thirty P. M., Jessie Crawford served her summons upon Charles C. Hart at Ballston Spa. On October 28, 1901, Jessie Crawford filed her complaint and lis pendens, and recorded the latter instrument. On November 2, 1901, Frances Hart served her summons and complaint upon Nellie Hart, the remaining defendant in her action. On November 9th the Special Term of this court made an order ex parte amending the papers and proceedings in the action brought by Jessie B. Crawford by adding as defendants Frances Hart, George W. Boyce, Kate M. Boyce, George Jewell, Mary Colyer and John McCoy, permitting the filing of an amended complaint and lis pendens, ordering a supplemental summons, and that all proceedings stand with the same force and effect as if the action liad been originally brought against these defendants. On November 13, 1901, Frances Hart, George W. Boyce, Kate M. Boyce and John McCoy, and on November 14, 1901, George Jewell and Mary Colyer, were respectively served with a summons by Jessie B. Crawford, dated November 7, 1901.

The sole question raised by the answer herein is whether there was and now is another action pending in the Supreme Court in the county of Westchester, in which action Jessie B. Crawford was and is plaintiff, and in which this plaintiff and the other defendants named in the summons and complaint herein are defendants, being for the same cause set out in the complaint herein. The action of

. Jessie B. Crawford was not pending against Frances Hart, the plaintiff herein, or against Charles C. Hart, her father, until they were served with process respectively. (Burton Co. v. Cowan, 80 Hun, 392, citing Warner v. Warner, 6 Misc. Rep. 251; 57 N. Y. St. Repr. 764; Haynes v. Onderdonk, 5 T. & C. 176.) Frances Hart filed her summons and complaint and lis pendens, and recorded the latter instrument and also served some of the defendants in her action on October 25, 1901. As she was not served in the action brought by Jessie B. Crawford until after November 9th, therefore no action was pending against her until that date and until after she had begun her action. Consequently the plea of prior action pending is not available against her. (Warner v. Warner, supra; Middlebrook v. Travis, 68 Hun, 155; Utica Clothes Dryer Mfg. Co. v. Otis, 37 id. 301.) As to the ex parte order of the Special Term for the service of the supplemental summons and complaint upon Frances Hart, it is sufficient

App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. to say that in any event such action was only begun as to her when she was brought in by amendment. (Shaw v. Cock, 78 N. Y. 194.)

( On October 23, 1901, when Charles C. Hart transferred his interest to Frances Hart, whereby alone she was enabled to bring her action, there was no action pending against him, for he was not even served with the summons until October 26, 1901, and not until October 28, 1901, did the plaintiff Jessie B. Crawford file her complaint and lis pendens and record the latter. The Trial Term has found that Charles C. Hart knew of the summons at the time he made his

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to Frances Hart. But, legally, that was no impediment to him. For the summons, though outstanding, had not been served upon him, and, therefore, no action had been begun against him. Even proof of the service of a suinmons has been held insufficient to establish the plea of another action pending. (Hoag v. Weston, 10 Civ. Proc. Rep. 92; Phelps v. Gee, 29 Hun, 202.) It is undoubtedly true that the plea of a former suit pending is permitted to stop vexatious suits. Sparry's Case (5 Coke, 61) was thus decided upon the maxim, “ Nemo debet bis vexari si constet curiæ quod sit pro una et eadem causa.” (See, too, Porter v. Kingsbury, 77 N. Y. 164.) But in Porter's case, ANDREWS, J., says that the plea must be one which, in its nature, related to the facts existing at the commencement of the action in which the plea was interposed. Undoubtedly, Jessie B. Crawford is vexed, and she has grounds for her plaint that Frances Hart has stolen a march upon her. The beginning, within a space

of four days, of separate suits by different plaintiffs for partition of the same realty may be only a coincidence. But when the second suitor had no interest in the premises until after she learned of the beginning of the first suit against some of the defendants by receiving the summons served upon one of them, wherein her father was named as a defendant, and when, after handing that summons to an attorney, her father, with knowledge of that summons, immediately conveys his interest to her, so that she is enabled to bring her suit, which she does forth with by the said attorney, there are grounds for the inference, inasmuch as there are many defendants resident in different localities, that the second suitor has entered upon a race for the laurels of a plaintiff's costs. But even if these facts went beyond inference, and as far as moral proof, we do not see our way clear under the issue and upon

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SECOND DEPARTMENT, JULY TERM, 1903.

(Vol. 86. the facts found to halt this plaintiff in her course. The question presented is not of legal ethics, but of legal rights, and we have no alternative but to affirm the judgment, which we do, without costs. The present attorney and counsel for the plaintiff submits an order which establishes that he was substituted for the original attorney on December 6, 1902.

Present — GOODRICH, P. J., BARTLETT, WOODWARD, HIRSCHBERG and JENKS, JJ.

Interlocutory judgment affirmed, without costs.

James V. McManus, as Executor, etc., of John A. McManus,

Deceased, Appellant, v. ELLEN C. McManus and Ella AGNES Svenson, Respondents, Impleaded with Others.

Legacies charged on real estate knowledge of the testator that his personal prop

erty would be insufficient to pay them. A testator, by his will, gave to his wife a life estate in his dwelling house, and

in the event of the death or remarriage of his wife a life estate in such property to bis adopted daughter. The will directed the testator's executors to pay the taxes, assessments and repairs on the dwelling house as long as it should be occupied by his wife or adopted daughter. By another provision of the will the testator bequeathed $5,000 to his adopted daughter to be paid to her as

soon after his death as possible. The only personal estate of any appreciable amount which the testator had at

the time of the execution of the will was represented by several savings bank accounts which he had opened in his own name in trust for his wife, his adopted daughter and his sisters. At the testator's death, the beneficiaries of the several savings bank accounts appropriated the money to their own use without objection upon the part of the executors and apparently in accordance with the testator's intentions. The testator knew, at the time of executing the will, that, without the savings bank accounts, his personal property was insuffi. cient to pay the taxes, assessments and repairs on the dwelling house and the

legacy of $5,000 to his adopted daughter, Held, that the payment of such taxes, assessments and repairs and of the legacy

of $5,000 constituted a specific charge upon the testator's real estate.

APPEAL by the plaintiff, James V. McManus, as executor, etc., of John A. McManus, deceased, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Kings on the 14th day of October, 1902, upon the

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

decision of the court, rendered after a trial at the Kings County Special Term, charging a legacy under the will of John A. McManus, deceased, upon the real estate of said testator.

Vincent Victory, for the appellant.

Edward F. Clark and William J. Harding, for the respondents. PER CURIAM:

This is a suit for the construction of the will of John A. McManus. The plaintiff is the executor under the will; the defendants comprise the widow and next of kin of the testator, as well as Ella Agnes Svenson, formerly Ella A. McManus, a legatee under the will. By the 2d article of the will the testator gave a life estate in his dwelling house, No. 77 St. Marks avenue, Brooklyn, to his wife, and, in the event of the death or remarriage of his wife, a life estate in the same property to his adopted daughter, Ella Agnes McManus (now Svenson). In this same article provision is made for the payment of the taxes on the St. Marks avenue property in these words: "I do hereby order and direct that my executors pay the taxes, assessments and repairs on said house so long as it shall be occupied by my wife or adopted daughter.” In the 4th article of the will the testator bequeaths to his adopted daughter already mentioned the sum of $5,000, to be paid to her as soon after his decease as possible.

The principal questions litigated upon the trial were (1) whether the

payment of the taxes, assessments and repairs on the St. Marks avenue property, as directed by the 2d article of the will, constituted a specific charge and lien upon the real estate of the testator, and whether a trust for that purpose was imposed upon the executor; and (2) whether the legacy of $5,000 bequeathed to the adopted danghter was a specific charge and lien upon the real estate of the testator. The evidence sustained the finding made by the learned trial judge, to the effect that the testator, at the time of executing his will, knew that his personal property was insufficient to pay the legacies bequeathed in the 2d and 4th articles of the will. In view of the proof on this subject we concur in the conclusion expressed in the opinion rendered at Special Term, to the effect that the legacies in question are chargeable upon the real estate of the testator; and the reasons which led the learned judge below to reach that

APP. Div.-Vol. LXXXVI. 16

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. result also command our assent.* In affirming the judgment we deem it unnecessary to add anything further to what he has said, except a single observation in regard to the form of the decree. We do not understand that the judgment compels the executors to sell the testator's real estate at present and without any further proceedings in order to pay the $5,000 legacy to the adopted daughter. It is merely an adjudication that the lands be charged with a specific lien for the benefit of the legatee, and provision is made for subsequent application to the court by any of the parties to the action for further directions to give force and effect to the decree.

Present — GOODRICH, P. J., BARTLETT, WOODWARD, HIRSCHBERG and JENKS, JJ.

Judgment affirmed, with costs.

* The following is the opinion delivered at the Special Term: WILMOT M. SMITH, J.:

I am satisfied that if the testator bad personal estate of any appreciable amount at the time of the execution of his will, it was represented by the accounts in the various savings banks opened by him in his name in trust for his wife, his adopted daughter and his sisters. The only reasonable conclusion that I can arrive at from the evidence in the case is that the testator intended when the accounts were opened to create a trust for the benefit of the beneficiaries named therein; that he believed that at any time during his lifetime he had the right to revoke the trust and change the disposition of moneys as he saw fit, and that all moneys standing in trust at his death should belong to the beneficiaries named in the various accounts. No other theory harmonizes all the facts in the case; and the parties to the action seem to have adopted that theory in part, for all of the trust accounts in existence at the time of the testator's death have been closed out by the beneficiaries and the money appropriated to their own use without objection on the part of the executors. If the accounts in the savings banks belonged to the estate of the testator and the executors obtained possession of the same, there would undoubtedly be sufficient personal property to satisfy the legacies. Without these accounts the testator must have known when he made his will that his personal estate was insufficient to pay the legacies. It is manifest that he intended that these provisions for his wife and daughter, so carefully and thoughtfully made, should become effective. He owed his first duty to them. Intending that these legacies should be satisfied and having reason to believe that his personal estate would be insufficient for that purpose the result follows, in accordance with the law established in this State, that the legacies should be charged upon the real estate. (Hoyt v. Hoyt, 85 N. Y. 142; McCorn v. McCorn, 100 id. 511.)

Judgment directed accordingly.

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