Embury v. Sheldon. vested consistently with the intention of the testator (Moore v. Lyon, 25 Wend. 144, supra). Although some of the cases to which we have been referred by the defendants' counsel may be considered as holding a different doctrine from that laid down in the cases cited, we think that they are adverse to the weight of authority, and to the rule in this State as established in the reported decisions. As the remainder of the estate became vested upon the death of the testator, we think that it was subject to alienation by Daniel Embury, Jr., and no provision of the Revised Statutes interferes with the right of the remainder-man to make a disposition of the same (1 R. S. 722, § 6 [2 R. S. 6th ed. 1101]; Id. 725, § 25). But it is not material whether the plaintiff took by the will; for as we have seen, it is entirely clear that she took by descent or succession from Louis, her son (1 R. S. 752, § 6). The plaintiff, being entitled to a vested remainder in the future estate created by the testator after the expiration of the trust term, had also a right to the intermediate rents and income which might accrue after the death of Louis until the trust estate was finally brought to a close. In regard to such rents and income, the intention of the testator is apparent from the will itself, which provides for their disposition to the lawful issue of Daniel Embury, Jr., in case of his death leaving such issue surviving him. If, however, no disposition is made of such rents and income by the will, then if Louis had died leaving a widow and children they would be precluded from taking under the same. Such a result would be inconsistent with the plain import of the will, and against the manifest intention of the testator. That such was not the design is also apparent from the further provision that only in the case of the death of Daniel, without issue surviving him, the rents and Embury . Sheldon. profits should go to other member of the family who are named. But if such intention is not to be presumed then the rents and profits would be "undisposed of," and as no provision is made for the accumulations of the same, by virtue of section 40, 1 R. S. 726 (2 R. S. 6th ed. 1104), they passed to the plaintiff as the person "presumptively entitled to the next eventual estate.” This provision of the statute has been held to apply in cases bearing similar characteristics (Kilpatrick v. Johnson, 15 N. Y. 320; Gilman v. Reddington, 24 Id. 19; Schettler v. Smith, 41 Id. 340, 349). After a careful examination we discover no reasons assigned by the revisers for the section last referred to which are inconsistent with the interpretation given, and we think that such construction is fully sustained by the authorities last cited. It is insisted, however, that under section 62, 1 R. S. 729 (2 R. S. 6th ed. 1107), the right to a share of the rents and profits, being undisposed of by the will, goes to the heirs of the testator. This position we think cannot be maintained, because, First. Such a construction would render the sections last cited inconsistent with section 40, and as a statute is to be construed so as to give effect to the whole, if possible, it will be presumed that section 62 was intended to cover cases other than these provided for by section 40. Second. It is clear that section 62, was intended to provide for undisposed-of legal estates or interests in land, as it declares that "the estate or interest shall go to the heirs as a legal estate." By section 60, the beneficiaries under the will in question, during the existence of the trust estate, take no interest, legal or equitable, in the lands, and as to the trust estate only have a right to enforce the performance of the trust in equity. But during the life of the trust, the estate is vested in the trustees, and after its expiration the remainder-men Embury v. Sheldon. take in possession. It thus appears that there is no estate or interest which can pass as a legal estate "undisposed of," and merely an equitable right to require the trustees to account or to pay over a share in the rents, income and profits to such persons as may be entitled to the same,—and section 40 points out distinctly to whom this equitable right belongs. It is also claimed that section 40 applies to a pure legal estate, and that no expectant estate is limited to the plaintiff within its terms. We think it is applicable to all cases where trusts are created and there is an expectant estate. It was not necessary that the plaintiff should be named as the expectant to make it applicable here. And it is sufficient that by the death of the person entitled to the same she has lawfully become such expectant and takes the place of the expectant. Although section 40 is in the article of the revised statutes which relates to the creation and division of estates, and not in that regarding uses and trusts, this does not affect its application to the trusts now considered created by the testator. The authorities cited, where it has been held to apply where uses and trusts had been created, are in point and determine the question. The judgment of the general term was right and should be affirmed. All the judges concurred. VOL. II.-27 Pake v. Proal. PAKE v. PROAL. N. Y. Superior Court; Special Term, October, 1877. EXAMINATION BEFORE TRIAL. Under the Code of Civil Procedure, a subpoena is not necessary to accompany an order for the examination of a party before trial.* Motion to vacate order for examination of a party before trial, for want of the issue of a summons or subpœna therewith. George E. King, for the plaintiff and motion. G. W. Dillaway, for defendant, opposed. FREEDMAN, J.-Section 874 as originally enacted as part of the Code of Remedial Justice, provided that upon the application of the person desiring to take deposition, the judge must also issue a subpœna, directed to the person to be examined, requiring him to attend at the time and place specified in the order granted under section 873. It further provided, that if the person so subpoenaed fails to obey the subpœna, his attendance may be compelled and he may be punished in like manner, and the proceedings thereon are the same, as if he failed to obey a subpœna issued from the court in which the action is pending, &c. The legislature of 1877 amended the section by striking from it the requirement of a subpoena, and by directing that if the party or person served with the order fails to obey the same, his attendance may be compelled and he may be punished, in like manner as if he failed to obey a subpœna issued from the court.* *The requirement was not struck out of section 886 relating to cases where the party is a non-resident of the county in which he is required to appear, but perhaps the words "a subpoena" may be read "an order," to give full effect to the amendment. VOL. III.-8 Leigh v. Atwater. The mode of the service of the order is prescribed by section 875. If a party has appeared in the action, the service of a copy of the order and of the affidavit upon which it was granted upon his attorney, in like manner as a paper in the action, is sufficient. If a party has not appeared in the action, the papers must be served upon him, as directed by the order. If no action is pending, they must be personally served upon each of the persons named therein as expected adverse parties. The summons resorted to under the old Code for the purpose of bringing a party into court for examination having been superseded by the subpoena substituted by the Code of Remedial Justice, and the requirement of a subpoena having in turn been abrogated, nothing more is now necessary than service as prescribed by section 875. The motion to dismiss the proceedings for want of a summons must be denied, and the defendant required to appear for examination. LEIGH v. ATWATER. N. Y. Supreme Court, First Department; Special Term, October, 1877. BILL OF PARTICULARS. In an action for damages for conspiring to withhold evidence in a previous action, the defendant may have a bill of particulars setting forth specifically the evidence withheld or concealed,—if oral, the names and residences of the witnesses who would or should have testified, if documentary, the documents claimed to have been suppressed.* *In PETERS v. LINK (N. Y. Superior Court, Special Term, Nov. 1877), in an action on a contract to exchange lands, on terms to be fixed by arbitration, the allegation of award in the complaint being general, a bill of particulars was ordered of the award, and time and |