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and 114 New York State Reporter debtor, as disclosed by the examination of the latter in supplementary proceedings. The property in question consists of a seat in the Consolidated Exchange, of the estimated value of $2,000, but against which the debtor testifies there are debts, for money loaned, now outstanding. The application is opposed upon the three grounds: That the examination discloses no property to which the receivership could attach; that the seat and its attendant privileges constitute the defendant's necessary working tools, and, as such, are exempt from judgment creditors; and finally, that the cases in which such applications have been granted concerned only the New York Stock Exchange, the rules of which are different from those of the Consolidated Exchange.

So far as the judgment creditor's right to the receivership is concerned, the first objection is of no force. The examination does disclose that the debtor owns a seat in the Consolidated Exchange, of the estimated value of $2,000. It is true that the examination states that against this seat there are claims of other members; and these claims, under the rules of the association, have preference over, and are to be paid before, all other claims. The debtor does not show, however, the nature or extent of these claims, or disclose the probability that the amount thereof is sufficient to exhaust the fund that might be created by a disposition of the seat; and it may be that he has a substantial equity therein, to which the receiver would be entitled. Where there are conflicting claims against the debtor's property, the court cannot try and determine them, but should appoint a receiver (Teller v. Randall, 40 Barb. 242; Corning v. Tooker, 5. How. Prac. 16), who will receive such title to the property as was in the judgment debtor, and subject to the conditions and restrictions by which it was surrounded in the latter's hands. . The alleged existence of the other indefinite claims should not prevent the receivership, though it may subsequently cause that receivership to be of no practical benefit, so far as a realization of assets is concerned.

The second objection is made upon the authority of Keiher v. Shipherd, 4 Civ. Proc. R. 274, where it was held that the share in the New York Law Institute, of the value of $150, held by the judgment debtor, a lawyer in active practice, and the privilege it confers, constituted his necessary working tools and library, as a member of the legal profession, and as such was exempt from judgment creditors. That case is not identical with the one now before the court, for, though the constitution of the law institute, and the nature and extent of the privilege of membership therein, were not in that case, and are not now, fully set forth before the court, for the purpose of comparison, it may be said that the share and its attendant privileges are commonly supposed to consist of the right to make use of the books and facilities supplied by the institute. These books and similar facilities constitute the working tools of the lawyer. It is financially and physically impossible for the ordinary practitioner to own and keep all or most of the books in which the law is recorded or expounded, but he may obtain access to and the use of them by securing membership in an association which does possess them; and, when he does, that membership constitutes, in law, his books or li

brary or working tools. Such is the full extent and significance of the decision referred to, as is evident from the authority upon which it is based, viz., Robinson's Case, 3 Abb. Prac. 466, where it is held that the professional books necessary to a professional man who supports his family, for the practice of his profession, are exempt from execution, as a part of his family library. The membership in such an institute, with its priviliges, as above stated, and as commonly understood, is essentially different, in legal nature, from the valuable right, license, or franchise to transact business in a special board or exchange, with a limited membership, and with peculiar rights and suitable facilities for the conduct of such business. Again, even assuming that the seat in question constituted the judgment debtor's working tools, it would, under section 1391 of the Code, be exempt only to a sum not exceeding $250 (Faxon v. Mason, 76 Hun, 408, 27 N. Y. Supp. 1025), whereas the debtor's own testimony shows it to be now worth about $2,000.

The third objection of the debtor seems to concede that, so far as seats in the New York Stock and Cotton Exchanges are concerned, they are subject to the claims outside, including judgment creditors, and receiverships thereof may be ordered; but it further asserts that, by reason of the different rules of the Consolidated Exchange, a seat in the latter is not subject to such claims or receivership. The differences between the rules of the said exchanges, and consequently the differences between seats or memberships therein, and the effect of these differences upon the merits of this application, are not presented to the court. It has been held that a membership in the New York Cotton Exchange is property which passes to a receiver, who may maintain an action to compel the debtor to convey his seat to the member or to a member-elect, with whom the receiver may negotiate for its sale. Ritterband v. Baggett, 4 Abb. N. C. 67; Powell v. Waldron, 89 N. Y. 328, 42 Am. Rep. 301. The court of appeals, in People v. Feitner, 167 N. Y. 1, 60 N. E. 265, 82 Am. St. Rep. 698, indicates, at page 6, 167 N. Y., and page 267, 60 N. E., 182 Am. St. Rep. 698, a difference between the rules and regulations of the stock exchange and those of the cotton exchange. But an examination of these portions of the judicial authorities which quote the provisions of the constitution and by-laws of the stock exchange indicates that, so far as the nature of the membership and the merits of this application are concerned, they are very similar to, and in many respects identical with, those of the Consolidated Exchange, which are here referred to in opposition to this motion. And a membership in the former exchange has frequently been judicially declared to be property which passes to assignees in bankruptcy, is subject to the claim of creditors, and of which a receiver may be appointed. In re Ketchum (D. C.) i Fed. 840; Hyde v. Woods, 94 U. S. 523, 24 L. Ed. 264, referring to membership in the San Francisco Stock and Exchange Board; Bank v. Murphy, 60 How. Prac. 426; Belton v. Hatch, 109 N. Y. 593, 17 N. E. 225, 4 Am. St. Rep. 495; People v. Feitner, 167 N. Y. 1, 7, 60 N. E. 265, 82 Am. St. Rep. 698. As a final answer to the last objection of the judgment debtor, we have in the case of Roome v. Swan, 15 Civ. Proc. R

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and 114 New York State Reporter 344, an instance not only of the appointment of a receiver of a seat or membership in the very exchange of which the judgment debtor herein is a member, viz., the Consolidated Stock and Petroleum Exchange of New York, but also a statement of the subsequent procedure to make that receivership effectual.

For the above reasons, the motion for the appointment of a receiver should be, and is hereby, granted. As the right, title, and interest of the receiver is probably subordinate to the rights of the creditors of the judgment debtor who are his fellow members in the exchange, and as the receiver's jurisdiction over the seat or membership must be subject to and exercised in accordance with the rules and regulations of that exchange, the order to be presented should incorporate the practice suggested in Bank v. Murphy, 60 How. Prac. 426, and Roome v. Swan, 15 Civ. Proc. R. 344, 2 N. Y. Supp. 614. Settle order on notice.

Ordered accordingly.

(39 Misc. Rep. 416.)

RIGHTLR v. LUDWIG et al.

(Supreme Court, Special Term, New York County. December, 1902) 1. DESCENT OF REALTY.

Laws 1896, c. 547, 204, provides that a surviving father shall inherit from an intestate who dies without lawful descendants, unless the inheritance came to him on the part of his mother, and she being then alive. A wife died testate, and left a husband and three sons, one born after her will. The shares of her elder sons never vested in them a b60lutely under the terms of the will, because of their death intestate, unmarried, and without issue. Held, that the share of the oldest son, which on his death passed to the second son, did not on the latter's death pass to the third son, but to his surviving father, as such son did not take directly from his mother, but from his brother, and the mother also being dead. Action by John Walter Righter against Edward I. Ludwig and others for partition. Judgment for plaintiff.

Louis F. Reed, for plaintiff.

Phelps & East (Charles Henry Phelps, of counsel), for defendant Ludwig

L. Austin Johnson, for defendants Jeanette Bacigalupo and Angeline Court.

Chas. Martin Camp, guardian ad litem for Marie Louise Court.

TRUAX, J. In 1863 one Achille Ludwig became the owner of the property which is the subject of this action. In 1866 he aná his wife, Agnes, conveyed one equal undivided half of said property to Paul Jeanne, and later said Paul Jeanne and Annie, his wife, conveyed one equal undivided half back to Agnes Ludwig, wife of said Achille. Agnes Ludwig died in 1880, at which time she and her said husband, Achille Ludwig, each owned an undivided one-half of said property. On her death, in 1880, Agnes Ludwig left, her surviving, her husband, Achille Ludwig, and three sons, Charles Achille Ludwig, Franklin B. Ludwig, and Edward I. Ludwig. Said Agnes Ludwig died, leaving a last will and testament, bearing date the 13th day of February, 1886, which contained the following clause in reference to the property in question:

1 1. See Descent and Distribution, vol. 16, Cent. Dig. 88 42, 86.

"Second. I give, devise, and bequeath my undivided hall part of the house and lot situated on the easterly side of Sixth avenue, and at present known by the street number one hundred and thirty-four on said Sixth avenue,

unto my two children, Charles Achille Ludwig and Frank Ludwig, and to their heirs, executors, administrators, and assigns, forever, to be equally divided between them, share and share alike; and in case of the death of either of my said children during his minority, without leaving lawful issue him surviving, I give, devise, and bequeath the share or part of the child so dying to the survivor of them, and to his heirs, executors, administrators, and assigns, forever; and in case of the death of both of my said children during their respective minority, without either of them leaving lawful issue him surviving, then and in such case I give, devise, and bequeath the shares of both of my said children to my husband, Achille Ludwig, his heirs and assigns, forever."

The defendant Edward I. Ludwig was born after the execution of said last will and testament of said Agnes Ludwig, and before the death of either Charles Achille Ludwig or Franklin B. Ludwig. The said last will and testament of said Agnes Ludwig was duly admitted to probate on the 3d day of October, 1880. Charles Achille Ludwig died intestate, unmarried, and without lawful issue on the 6th day of December, 1886. Franklin B. Ludwig died in 1895, intestate, unmarried, and without lawful issue. Achille Ludwig died on the 23d day of December, 1901, leaving a last will and testament, dated September 20, 1901, which said last will and testament has been duly admitted to probate, and by which last will and testament he gave, devised, and bequeathed all his interest in the property in question to the defendant Marie Louise Court, subject, however, to the use of the mother of the said Marie Louise Court, Angeline Court, of such interest in the said property until said Marie Louise Court should reach the age of 30 years. The will also provided that, if the said Angeline Court should die before the said Marie Louise Court should reach the age of 30 years, the said Marie Louise Court should come into immediate possession and title of said property. By the said will the said Achille Ludwig appointed the defendant Angeline Court executor, and gave her full power and authority to sell and convey his said real estate. The said Marie Louise Court is now of the age of 17 years. On the 11th day of December, 1899, the said Achille Ludwig mortgaged his interest in said property to the defendant Bacigalupo, and on the 29th day of March, 1901, the said Achille Ludwig further mortgaged his property to the defendant Angeline Court, both of which mortgages are still in full force and effect. On the 3d day of March, 1902, by deed dated on that day, said Angeline Court, as executrix of Achille Ludwig, deceased, conveyed to the plaintiff herein all the right, title, and interest of the said Achille Ludwig, deceased, in said property hereinbefore mentioned. The defendants Cordes and Sparrow are tenants in said property under leases which terminate on the ist day of May, 1903.

I decide that John Walter Righter, the plaintiff herein, is now seised in his own right, in fee simple, as tenant in common, of, in, and 114 New York State Reporter 344, an instance not only of the appointment of a receiver of a seat or membership in the very exchange of which the judgment debtor herein is a member, viz., the Consolidated Stock and Petroleum Exchange of New York, but also a statement of the subsequent procedure to make that receivership effectual.

80 N.Y.S.-2

For the above reasons, the motion for the appointment of a receiver should be, and is hereby, granted. As the right, title, and interest of the receiver is probably subordinate to the rights of the creditors of the judgment debtor who are his fellow members in the exchange, and as the receiver's jurisdiction over the seat or membership must be subject to and exercised in accordance with the rules and regulations of that exchange, the order to be presented should incorporate the practice suggested in Bank v. Murphy, 60 How. Prac. 426, and Roome v. Swan, 15 Civ. Proc. R. 344, 2 N. Y. Supp. 614. Settle order on notice.

Ordered accordingly.

(39 Misc. Rep. 416.)

RIGATER v. LUDWIG et al. (Supreme Court, Special Term, New York County. December, 1902) 1. DESCENT OF REALTY.

Laws 1896, c. 547, $ 204, provides that a surviving father shall inherit from an intestate who dies without lawful descendants, unless the inheritance came to him on the part of his mother, and she being then alive. A wife died testate, and left a husband and three sons, one born after her will. The shares of her elder sons never vested in them a b6olutely under the terms of the will, because of their death intestate, unmarried, and without issue. Held, that the share of the oldest son, which on his death passed to the second son, did not on the latter's death pass to the third son, but to his surviving father, as such son did not take directly from his mother, but from his brother, and the mother also being dead. Action by John Walter Righter against Edward I. Ludwig and others for partition. Judgment for plaintiff.

Louis F. Reed, for plaintiff.

Phelps & East (Charles Henry Phelps, of counsel), for defendant Ludwig.

L. Austin Johnson, for defendants Jeanette Bacigalupo and Angeline Court.

Chas. Martin Camp, guardian ad litem for Marie Louise Court.

TRUAX, J. In 1863 one Achille Ludwig became the owner of the property which is the subject of this action. In 1866 he ana his wife, Agnes, conveyed one equal undivided half of said property to Paul Jeanne, and later said Paul Jeanne and Annie, his wife, conveyed one equal undivided half back to Agnes Ludwig, wife of said Achille. Agnes Ludwig died in 1880, at which time she and her said husband, Achille Ludwig, each owned an undivided one-half of said property. On her death, in 1880, Agnes Ludwig left, her surviving, her husband, Achille Ludwig, and three sons, Charles Achille

q 1. See Descent and Distribution, vol. 16, Cent. Dig. $$ 42, 86.

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