including his interest as mortgagee, is fully supported by Chancellor Walworth in Williams v. Thorn, 11 Paige, 465. He says: "In other words, a mortgagor of premises who himself held a mortgage thereon at the time he mortgaged his interest in the premises to another cannot set up such prior mortgage, or any interest he has acquired under the same, against his own mortgage, or against any person claiming under it; and a purchaser under a foreclosure of the mortgage given by Strong will take the premises discharged of any incumbrance thereon which Strong, either as mortgagee or otherwise, held at the time he mortgaged such premises." No different adjudication has been made since this decision on the subject. It is true, cases may be found in which the court has relieved a wife from the effects of this legal principle, holding that, she having no interest in the land, except an inchoate right of dower, and no interest in the object of the mortgage itself, her intention was manifestly only to subject her inchoate right of dower. In Gillig v. Maass, 28 N. Y. 210, Wright, J., says: "Of course, a mortgagor of premises, who himself holds a mortgage thereon at the time he mortgages his interest in the premises to another, cannot set up such prior mortgage, or any interest he has acquired under the same, against his own mortgagee, or any person claiming under him." I find no authority equal to this which seeks to at all qualify this plain declaration of a principle,-a principle which ought to commend itself to any judicial mind by reason of its sheer

common sense.

I have no comment upon the claim of defendants that the collateral interest which the Merchants' National Bank of Plattsburgh had, in the two mortgages now owned by defendants at the time of the execution by the mortgagee, Frank Palmer, of the two mortgages here sought to be foreclosed, prevented such mortgages from being affected thereby. I see no force in the claim, since the claim, if of any value, could only be made by such bank. As the bank has been satisfied, and the collateral released to Frank Palmer himself, the claim ceased to exist, if any there ever was, the moment of such release by the bank; and that moment the claim of these plaintiff's extended over and absorbed all the interest the bank possessed, and any subsequent transfer by Palmer must be held subject to plaintiffs' superior liens. The bank, holding the mortgages as collateral, could not assign the mortgages to Theodora Palmer, or any other person, so as to convey any title thereto. The bank could only release, or else it must only transfer, the notes for which the mortgages were held as collateral security, in order to convey the slender interest it held in the mortgages.

For the reasons stated, the defendants cannot, in this action, set up either of their said mortgages against the mortgages of plaintiffs.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK,

JJ.

C. McLean, (Henry E. Barnard, of counsel,) for appellants. D. F. Dobie, for respondents.

PER CURIAM.

Affirmed, on the opinion of court below.

(70 Hun, 598; mem. report without opinion.)

MONSON V. NEW YORK SECURITY & TRUST CO. et al. (Supreme Court, General Term, First Department. June 30, 1893.) CONSTRUCTION OF WILL-PECUNIARY LEGACY.

Testator gave the residue of his estate to his executors in trust, with power to sell, and reinvest the proceeds, but expressed a preference "that investments made by me in my lifetime should be continued so long as the same, in the judgment of my executors, can be done without loss or detriment to my estate." The will further provided that after the death of testator's widow the executors should allot such residue, and "the

proceeds and investments thereof, into as many shares, each of the value and amount of $20,000," as there should be daughters of testator then living, or deceased leaving issue. Held, that it was the intention of testator that the trusts thus created should consist of the sum of $20,000 each, and not to make a specific gift of securities which might come into the executors' hands at testator's death.

Appeal from special term, New York county.

Action by Alonzo C. Monson, as executor of, and trustee under, the last will and testament of David Dunham Withers, deceased, in his lifetime, and at the time of his death, sole executor of, and trustee under, the last will and testament of Reuben Withers, deceased, against the New York Security & Trust Company and others. The relief asked by the complaint was that plaintiff's accounts as executor "be settled and allowed, and that, in accordance therewith, the rights and interests of the defendants herein in and to the property and funds belonging to the estate of the said Reuben Withers, deceased, be finally settled, adjudged, and determined, and that provision may be made by the judgment to be entered in this action for the payment and distribution of the said property and funds in accordance with the rights and interests of said defendants, as so adjudged and determined, less the commissions which may be adjudged to be retained or deducted, according to law, on account of the said executorship and trusteeship of said David Dunham Withers, and that, upon distributing and paying over said property and funds in accordance with the decree of this court, the plaintiff and his successors, and the estate of plaintiff's testator, be forever released and discharged from all right, title, interest, claim, and demand on the part of the defendants in and to said property and funds on account of the trusteeship and executorship of said David Dunham Withers under the will of said Reuben Withers, and on account of the trusts thereby created, or arising therefrom, and that the plaintiff have such other and further relief as this court shall deem meet, and his costs of this action." From a judg

ment construing the will, and passing plaintiff's accounts, defendants, the New York Security & Trust Company, Virginia M. Paine, William Paine, and Mary H. Bischoffsheim, Augustus Clason and William P. Clason, Cora De Raucourt, executrix, Florence De Wilhorst and Cora De Wilhorst, and Richard W. Freedman, as guardian ad litem of Sophie De Raucourt, appeal. Affirmed.

The will of Reuben Withers, omitting the formal parts, is as follows:

First. I will and direct that all my just debts and funeral expenses be paid by my executors so soon as conveniently may be done after my decease. Second. I give and bequeath to my dearly beloved wife, Matilda Anne Withers, all my wines, liquors, and family stores which may be in the possession and use of myself and my family at the time of my decease, forever. Third. I bequeath to my son Alfred D. Withers the interest now accrued, and which shall hereafter accrue during the residue of his natural life, upon the two bonds aud mortgages,-one made by Caleb La Grange (his wife unit. ing in the mortgage) to John B. Montgomery, to secure the payment of five thousand dollars and interest, dated the first day of May, one thousand eight hundred and forty-eight, by said Montgomery assigned to the Poughkeepsie Savings Bank, and by said bank to me; and the other made by my said son

Alfred D. Withers (his wife uniting in the mortgage) to George W. Berrian, Junior, of the city of New York, to secure the payment of eight thousand dollars and interest, and by the said Berrian assigned to me; said mortgages being upon the farm now occupied by my said son in the town of Vestal, in Broome county, in this state. And it is my wish that no step shall be taken by my executors for the collection of the principal of said mortgages during the life of my said son, so long as he shall continue to occupy the said farm, and shall execute such papers as may be advised by counsel, and required by my said executors, to prevent the debts from being barred by any statute of limitations; and, in the case of the collection of said principal sums during the life of my said son, I give him the interest accruing thereon during his lifetime, such principal to be invested by my executors, and the interest collected and applied to his use by them. From and after the death of said son, I give and bequeath the said principal sums to his descendants then living, in equal shares, per stirpes, and not per capita, to them, their executors and administrators, forever. Fourth. I give, devise, and bequeath all the rest, residue, and remainder of my estate, real and per sonal, which I am now seised or possessed of, or entitled to, or which I may be seised or possessed of, or entitled to, at the time of my decease, to my executors hereinafter named, to have and to hold to them as joint tenants, and not as tenants in common, upon the trusts and with the powers fol. lowing, that is to say: Fifth. To take possession of all my estate, real and personal. and to collect and receive the rents, issues, income, and profits thereof with power to sell all or any part of my real estate at such times and in such manner, and on such terms and conditions, either at public or private sale, and for cash or on credit, or partly for cash and partly on credit, as to my qualified executors for the time being may seem expedient and proper, and to collect and receive the proceeds of such sales, and to collect and get in all my personal estate, and to keep my estate and its proceeds safely and securely invested; my own preference being that investments made by me in my lifetime should be continued so long as the same, in the judgment of my executors, can be done without loss or detriment to my estate, and my will being that my house and appurtenances, furniture and contents thereof, both of use and ornament in housekeeping, in the Second avenue, in the city of New York, now occupied and used by me for my family residence, shall not be sold by my executors so long as my wife shall continue to occupy and use the same, but that she shall be permitted so to use and occupy the same for her residence and housekeeping. Sixth. To set apart out of my estate, and the proceeds and investments thereof, an amount sufficient to produce the clear yearly income of nine hundred dollars, and to apply the said clear yearly income of nine hundred dollars yearly, and every year, to the use of my son Reuben B. Withers during his natural life. Seventh. From and after the death of my said son Reuben B. Withers, I give, devise and bequeath the capital specified in the sixth article to his descendant or descendants, if any, whom he shall leave surviving him, in equal shares and portions, per stirpes, and not per capita; if he shall leave no descendants surviving him, then to my son Alfred D. Withers, if he shall then be living; or. if he shall not be living, then to the descendant or descendants of iny said son Alfred then surviving, if any, share and share alike, per stirpes, and not per capita, forever. Eighth. To apply the net rents, issues, income, and profits of all the rest, residue, and remainder of my estate, and of the proceeds and investments thereof, to the use of my said wife, for and during her natural life, free from the debts, contracts, control, or engagements of any other person. Ninth. Upon the death of my said wife, to allot and set apart out of the said rest, residue, and remainder of my estate, and of the proceeds and investments thereof, (exclusive of what is disposed of in the third, sixth, and seventh articles of this, my will,) into as many shares, each of the value and amount of twenty thousand dollars, as there shall then he survivors of my three daughters Elizabeth Mary Center, Eupheme D. Clason, and Virginia Paine, and of the descendants of either of my said three daughters who may have previously died leaving descendants or a descendant, and also of the descendants of my daughter Cora, whether she be then

living or not,-all the descendants of either deceased daughter counting but as one, however, for the purpose of such allotment,-and to apply the net rents, issues, income, and profits of one of such shares or portions to be set apart for that purpose to the use of each of my said three daughters Elizabeth Mary Center, Euphemie D. Clason, and Virginia Paine, who may then be living, during the natural life of such daughter, respectively, free from the debts, contracts, control, or engagements of any other person, and in like manner, during the life of my daughter Cora, to apply the net rents, issues, income, and profits of one of such shares or portions to be set apart for that purpose to the use of the descendants of my daughter Cora who may be living, from time to time. during her lifetime, in equal shares, per stirpes, and not per capita, my said executors, in their discretion, being at liberty to make such application by paying the same over to my said daughter Cora for the use and benefit of her said descendants, but being under no obligation so to do; and if either of my said three daughters, or my said daughter Cora, shall not then be living, to divide and distribute one of such shares to the descendants or descendant of each such deceased daughter, share and share alike, per stirpes, and not per capita. To have and to hold to them, respectively, their respective heirs, executors, and administrators, forever. Tenth. Upon the death of each of my said three daughters who shall have been living at the time of the allotment directed by the ninth article of this, my will, and also upon the death of my daughter Cora, to divide and distribute the share or portion of my estate, and of the proceeds and investment thereof, of which the income is, in pursuance of the said ninth article of this will, to be applied to the use of such daughter during her life, or to the use of the descendants of my daughter Cora during her life, to and among the descendants of such daughter, if she shall leave any, her surviving, share and share alike, per stirpes, and not per capita, and, if such daughter shall leave no descendant surviving her, to and among the then survivors of my said three daughters, other than my daughter Cora, and the descendants of either of my daughters who may have died leaving descendants or a descendant, share and share alike, per stirpes, and not per capita. To have and to hold to them, respectively, their respective heirs, executors, and administrators, forever. Eleventh. Upon the death of my said wife, if my said sons Reuben B. Withers and Alfred D. Withers shall then both be living, or if the said Reuben B. shall be then living, and the said Alfred D. shall have died, leaving descendants or a descendant who shall then be living, to allot and set apart out of the rest, residue, and remainder of my estate, and the proceeds and investments thereof, if any, remaining after the deduction of the said equal shares or portions of twenty thousand dollars each, specified in the ninth article of this, my will, a value and amount sufficient, together with the capital specified in the sixth article of this, my will, to make up the onehalf of the value and amount of my residuary estate, its investment and proceeds, remaining after the deduction of the said shares or portions of twenty thousand dollars each, specified in the said ninth article, computing the capital specified in the sixth article as a portion of such residue, and to apply the net rents, issues, income, and profits of the said one-half of such residue, if more than the capital specified in the sixth article, but, if less than the capital specified in the sixth article, then of the whole of that capital, according to the provisions of the sixth article, to the use of my said son Reuben B. Withers during the residue of his natural life; and from and after the deaths of my said wife and son Reuben B. Withers, I give, devise, and bequeath the said share or portion of my estate, its investments and proceeds, if any, which would be added to the capital specified in the sixth article by virtue of this article, to the descendants of my said son Reuben B., if he shall leave any surviving him, share and share alike, per stirpes, and not per capita; and, if he shall leave no descendants surviving him, then to my son Alfred D. Withers, if living, or to his descendants, if he shall have died leaving a descendant or descendants who shall be living, in equal shares, per stirpes, and not per capita, forever. Twelfth. Upon the death of my said wife, if my sons Reuben B. Withers and Alfred D. Withers shall then both be living, or if the said Reuben B. shall then be living and said Alfred D.

shall have died, leaving descendants or a descendant who shall then be living, I give, devise, and bequeath all the rest, residue, and remainder of my estate, its investments and proceeds, after the deduction of the said shares or portions of twenty thousand dollars each, specified in said ninth article, and after deduction of the capital specified in the sixth article, if such rest, residue, or remainder shall be less than the capital specified in the sixth article, but, if it shall be more, then the balance of the said rest, residue, and remainder, after deducting therefrom, and adding to the capital specified in the sixth article, sufficient to make said capital specified in the sixth article equal to what is left, to my said son, Alfred D. Withers, if living, or to his descendant or descendants who may then be living, if he shall have died, leaving a descendant or descendants who shall then be living, share and share alike, per stirpes, and not per capita, forever. Thirteenth. Upon the death of my said wife, if my said son Reuben B. shall not be living, I give, devise, and bequeath the share or portion, if any, of the rest, residue, and remainder of my estate, and its proceeds and investments, which would be added to the capital specified in the sixth article by virtue of the provisions of the eleventh article if my said son Reuben B. were then living, to the descendant or descendants of my said son Reuben B., if any shall be living, share and share alike, per stirpes, and not per capita, and, if none shall be then living, then to my son Alfred D. Withers, if living, or his descendant or descendants, if he shall have died, leaving any who shall be living, in equal shares and portions, per stirpes, and not per capita, forever. And, in the same contingency provided for in this article, I give, devise, and bequeath the share or portion of the said rest, residue, and remainder which is given, devised, and bequeathed to my son Alfred D. Withers, or his descendant or descendants, by the twelfth article, in the contingency therein provided for, to my said son Alfred D. Withers, if living, or to his descendant or descendants, if he shall have died leaving descendants or a descendant who shall then be living, in equal shares or portions, per stirpes, and not per capita, and, if none shall be living, then to the descendant or descendants of my said son Reuben B. Withers, who shall then be living, in equal shares and portions, per stirpes, and not per capita. Fourteenth. Upon the death of my said wife, if my son Reuben B. Withers shall then be living, and my son Alfred D. Withers shall have died, leaving no descendant who shall then be living, then to apply the net rents, issues, income, and profits of the whole rest, residue, and remainder of my estate, after the deduction of the said share or portions of twenty thousand dollars each specified in the ninth article, to the use of my said son Reuben B. Withers during his natural life; and from and after his death I give, devise, and bequeath the whole of the said rest, residue, and remainder, after such deduction, to his descendant or descendants, if any, whom he shall leave surviving him, in equal shares and portions, per stirpes, and not per capita. Fifteenth. I hereby declare that the reasons why no provision is made for my son David Dunham Withers, and no greater provision for my son Alfred D. Withers, are that my son said David Dunham Withers is already wealthy in his own right, and that I have already made large advances to my son Alfred D. Withers. Sixteenth. I hereby constitute and appoint my son David Dunham Withers, and my friends James M. Waterbury, of the city of Brooklyn, and George R. J. Bowdoin, of the city of New York, executors of, and trustees under, this, my will. Lastly. I hereby revoke and annul all former and other wills by me at any time heretofore made, declaring this, and none other, to be my last will and testament.

The following is the opinion of Mr. Justice PATTERSON at special term:

The main question, and the only one requiring special consideration, in this cause, relates to the construction to be given to that clause of the will of Mr. Reuben Withers by which the trusts for three of his daughters, and the descendants of a fourth, are created. They date from the death of the testator's widow, which occurred in 1879. Notwithstanding the ingenious argument of the counsel for the New York Security & Trust Company, I am