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gage was not filed. He subsequently made a general assignment for the benefit of creditors. The assignee, with the consent of Shoemaker, surrendered the property to the plaintiff as assignee of the mortgage, from whom it was taken by the sheriff upon an execution issued upon a judgment against Shoemaker, rendered after the property came into the possession of the plaintiff. It was held that the invalidity of the mortgage, by reason of its not having been filed, did not justify the taking of the property upon the execution. In Kitchen v. Lowry, 127 N. Y. 53, 27 N. E. Rep. 357, it was held that a creditor can only avail himself of the omission to file a chattel mortgage when he has a judgment, and proceeds under it to obtain a lien upon the mortgaged property, by levy or otherwise, and that this must be done before the mortgagee has reduced the property to possession, and sold it. In Karst v. Gane, 32 N. E. Rep. 1073, Andrews, C. J., in delivering the opinion of the court, after speaking of the failure to file the mortgage for six weeks, says:
"The simple contract creditor runs the risk of having his remedy to assail the mortgage defeated by a bona fide transfer of the property by the mortgagor to the mortgagee, in payment of the mortgage, before he has obtained judgment and execution or any lien on the property."
The question thus appears to be settled beyond controversy. As we have seen, the mortgagee had reduced the mortgaged property to possession, sold it, and applied the proceeds upon her claim, before any judgment was obtained, or lien perfected, against the property; and, under the cases to which we have referred, she can. not now be made to account for the proceeds of the sale. Whether a receiver appointed in supplementary proceedings could maintain an action of this character, under a different state of facts, it is not necessary to now determine. If the mortgaged property was still in the possession of the mortgagor, where it could be reached upon execution, no action would be necessary. Upon the appointment and qualification of a receiver, he becomes vested with the property of the judgment debtor. If, before such appointment, the mortgagee has seized the property upon his mortgage, and sold it, he, by that act, divested the mortgagor of all interest in the property, or right of redemption, leaving nothing to pass to the receiver upon his appointment. In this case the title of none of the mortgaged property vested in the receiver. Under the statute he is authorized to disaffirm, treat as void, and resist, all acts done, transfers and agreements made, in fraud of the rights of creditors. But, the referee having found as a fact that the transaction in question was not fraudulent, we fail to see how the plaintiff can maintain this action. The judgment should be reversed, and a new trial ordered; costs to abide a final award of costs. All concur.
(69 Hun, 608.) STOKES v. WESTON et al.
(Supreme Court, General Term, Fifth Department. June 23, 1893.) WILLS-CONSTRUCTION-DEATH OF DEVISEE.
Testator devised property to his wife for her life, and afterwards to his three children equally, “but, in case of the death of my sons, A. and C., or either of them, without issue living at the time of his decease, then the share of the one so dying without issue shall be divided equally between my grandchildren, H. and P.” Held, that such provision did not mean the death of A. and C. during testator's lifetime, so as to give them a vested estate if they survived testator.
Appeal from special term, Cayuga county.
Action by Charles E. Stokes against Henry Weston and others for partition. From an interlocutory judgment entered on a de cision of the court, defendants Henry Weston and Porter Weston appeal. Reversed.
Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
Coburn & Hunter, for appellants.
HAIGHT, J. This action was brought to partition real estate. The only question presented upon this appeal is as to the proper construction of the will of Samuel Stokes. Samuel Stokes died on the 24th day of October, 1889, possessed of real and personal estate. He left him surviving his widow, Eliza Stokes, the plaintiff, Alfred Stokes, and Clara McGee, his children, and Henry Weston and Porter Weston, his grandchildren, and the children of Clara McGee. He left a last will and testament, which has been duly proved and admitted to probate, in which he first devised and bequeathed to his wife, Eliza, the use of all of his property for and during the term of her natural life.
"Second. I give, bequeath, and devise to my children, Alfred Stokes, Charles E. Stokes, and Clara McGee, the rest, residue, and remainder of my property in equal proportions; but, in case of the death of my sons, Alfred and Charles E., or either of them, without issue living at the time of his decease, then the share of the one so dying without issue shall be divided equally between my grandchildren, Henry Weston and Porter Weston."
The trial court has construed this provision of the will to the effect that the death of the sons without issue meant their death during the life of the testator, and that, inasmuch as they had both survived him, they each became vested with one-third of the estate, subject only to the life estate of their mother. The court, in its opinion, states that: "There is nothing ambiguous about this clause. Its meaning and the intention of the testator are clearly expressed, and such intention, to my mind, was that his two sons should take an equal one-third share of his estate absolutely, provided they did leave issue, but, in the contingency that either should die without issue living at the time of his death, whether that contingency arose before or after the death of the testator, then his share should
go to the grandchildren; and the embarrassment which I labor under arises from the fact that I am unable to give effect to the language of the will according to its natural import without doing violence to well-settled rules of construction."
We fully agree with the views expressed by the learned trial judge as to the meaning and intention of the testator, but we differ with him in what he considers to be “well-settled rules of construction.”
"But, in case of the death of my sons, Alfred and Charles E., or either of them, without issue living at the time of his decease, then the share of the one so dying without issue shall be divided equally between my grandchildren," etc.
The pronoun "his,” preceding the word "decease," must refer to the noun or nouns that precede it. In other words, “his” refers to the nouns "Alfred” and “Charles,” and the meaning is the same as if the words “Alfred” and “Charles” were substituted in the place of the pronoun. This is the fair grammatical construction of the sentence. It is contended, however, that under the authorities the pronoun “his” refers to the testator, and that the time mentioned is that of the testator's death, instead of that of the sons', or either of them. Our reading of the cases does not sustain this construction. It is unquestionably a well-settled rule of construction that, where there is a devise to one person absolutely, and, in case of his death, to another, the words of contingency refer to a death in the lifetime of the testator. Clayton v. Lowe, 5 Barn. & Ald. 636; Doe v. Sparrow, 13 East, 359; Woodbourne v. Woodbourne, 23 Law. J. Ch. 336; Gee v. Mayor, etc., 17 Adol. & E. (N. S.) 737; Livingston v. Greene, 52 N. Y. 118; Embury v. Sheldon, 68 N. Y. 227; Quackenboss v. Kingsland, 102 N. Y. 128, 6 N. E. Rep. 121. But this rule has no application when the first devisee takes a life estate; and it is equally well settled that, where there are words in the context indicating an intention on the part of the testator that the death of the devisee refers to some other time than that of the testator's death, effect must be given to such intention. Buel v. Southwick, 70 N. Y. 581; Nellis v. Nellis, 99 N. Y. 505, 3 N. E. Rep. 59; Vanderzee v. Slingerland, 103 N. Y. 47, 8 N. E. Rep. 247; In re New York, L. & W. Ry. Co., 105 N. Y. 89, 11 N. E. Rep. 492; Fowler v. Ingersoll, 127 N. Y. 472, 28 N. E. Rep. 471; Mead v. Maben, (Sup.) 14 N. Y. Supp. 732; (see dissenting opinion of Learned, P. J., page 737, reversed, 131 N. Y. 255, 30 N. E. Rep. 98, in which the dissenting opinion in the court below was approved. Nelson v. Russell, 135 N. Y. 137, 31 N. E. Rep. 1008;) In re Denton, (N. Y. App.) 33 N. E. Rep. 482; Washbon v. Cope, (Sup.) 22 N. Y. Supp. 241; Mullarky v. Sullivan, (N. Y. App.) 32 N. E. Rep. 762.
In Mullarky v. Sullivan, supra, O'Brien, J., in speaking of the death within the lifetime of the testator, says:
"It is only in the case of an absolute devise or bequest to one, and in case of his death to another, that the words are given such a meaning; and the rule has no application to a case where the first devisee or legatee takes a life estate.”
In Fowler v. Ingersoll, supra, Brown, J., says: “The words of contingency are substitutionary merely, and are intended to prevent a lapse in case the first devisee is not living at the death of the testator, and do not create an executory devise or remainder over upon the death at any time of the first taker. But this rule has no application when the first devisee or legatee takes a life estate, and is applied only when the prior gift is absolute and unrestricted. The reason assigned for the rule is that, as death is a certain event, and time only is contingent, the words of contingency can only be satisfied by referring them to a death before some particular period, and, none being mentioned, the time referred to inust be pre sumed to be the testator's own death. But this reason fails in the case of a life estate, as in such a case the presumption would be that the words of contingency refer to the event which would determine the life estate.”
As we have seen, the will devised and bequeathed to the wife, Eliza, the use of all of the testator's property for and during the term of her natural life. A life estate was thus created. It was the remainder only that was devised to the children; thus bringing the case within the rule stated in the case above referred to.
Again, the will under consideration contains the phrase, "at the time of his decease,” which, used in the connection in which it appears, indicates that the time referred to and intended by the testator was that of the death of his sons, Alfred and Charles, or either of them. A careful examination of the authorities fails to slow a case in which the testator has so clearly expressed his inteation where it has not been recognized and carried out. The decision of this court in the Case of Tallmage, partially reported in 20 Wkly. Dig. 69, is not in conflict with the views herein expressed.
In that case the testator had given an estate to his daughters Elsie and Jane. He then provided that, "in case of the dectase of both of my said daughters Elsie and Jane, and without any children them surviving, then, and in such case, I give and bequeath said shares of said property aforesaid to my sister, Jane M. Tallmage; but in case of the death of either of my said daughters without children, then, and in such case, the survivor of either of them shall have and hold and be the owner of the whole of my said property.” Here was a provision that in the case of the death of either daughter the survivor should take absolutely the whole estate. The sister, Jane M. Tallmage, could not take unless the death of the daughters should occur simultaneously, or unless the death of the daughters referred to a time preceding that of the testator. It was under these circumstances that we held that the death of the daughters mentioned in the will referred to a time preceding the death of the testator.
Upon the trial the plaintiff stated in open court that he did not desire a partition of the property unless he obtained a construction of the testator's will in conformity with the allegations and prayer of his complaint. Our views are adverse to his contention. The judgment should therefore be reversed, and the plaintiff's complaint dismisser, with costs.
(70 Hun, 267.) MAITLAND v. BALDIVIN.
(Supreme Court, General Term, First Department. June 30, 1893.) 1. TESTAMENTARY POWERS-CONSTRUCTION.
A provision in a will giving at the death of testator's wife a certam sun “in such manner and forni, aid to such person or persons, as she. by last will and testament, may direct, limit, and appoint,” does not require the wife to make a direct, absolute gift, but allows her to dis
pose of the money in trust or otherwise. 2. TRUSTS-CREATION-LEGAL TITLE.
1 Rev. St. p. 728, § 55, declares that express trusts may be created for the following purposes: “(3) To receive the rents and profits of land, and apply them to the use of any person, during" life, or for a short term. Page 773, § 2, makes the provisions in regard to real estate applicable to personal property. Beld, that a devise to trustees, of certain money, to invest same, and pay over the income as provided, creates an
express trust, clothing the trustees with the legal title. 3. WILLS-PARTIAL INVALIDITY.
The fact that a bequest for life, with limitation over, inay not be good as to the limitation, does not affect the life estate. Haynes y. Sherman,
22 N. E. Rep. 938, 117 N. Y. 433, distinguished. 4. TESTAMENTARY POWERS-SUSPENSION OF ALIENATION.
1 Rev. St. p. 737, $ 128, declaring that the period during which the absolute right of alienation may be suspended by any instrument in execution of a power shall be computed, not from the date of such instrument, but from the time of the creation of the power, expressly recognizes the
right to suspend, by such instrument, the power of alienation. 5. PARTIES – WAIVER OF OBJECTION.
An objection to parties, unless taken by answer or demurrer, is waived, in an action at law.
Motion for judgment on verdict subject to opinion of the court.
Action by Thomas A. Maitland, executor of Sarah Parish Dillon, deceased, against Townsend B. Baldwin, executor of Robert James Dillon, deceased. Plaintiff moves for judgment on a verdict directed in his favor, subject to opinion of general term. Motion granted.
Argued before VAN BRUNT, P. J., and FOLLETT and BAKER, JJ.
J. E. Ackley, Henry G. Ward, and Eugene P. Mullin, for the motion.
John McL. Nash and S. P. Nash, opposed.
VAN BRUNT, P. J. This action was brought to recover a legacy. The facts of the case are as follows: One Robert J. Dillon died in November, 1872, leaving a last will and testament which contained the following provision:
"At the death of my wife, I give $350,000, in such manner and form, and to such person or persons, as she, by her last will and testament, may direct, limit, and appoint.'
He named as one of his executors Townsend B. Baldwin, who is now the sole surviving executor and trustee of said will. His wife, Sarah Parish Dillon, died on the 31st of October, 1891, leaving a last will and testament in which she named the plaintiff as one