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Appeal from Special Term, Orange County.

Action by Mary E. Danvers and another, executrices of Jane C. Cummings, deceased, against Norman A. Sly and others. From an order directing Emma S. Thompson, the owner of the judgment of foreclosure and sale of a mortgage, to assign the judgment to the First National Bank of Middletown on payment to her of the amount due, Norman A. Sly and another appeal. Reversed.

Argued before JENKS, P. J., and BURR, THOMAS, WOODWARD, and RICH, JJ.

George H. Decker, of Middletown, for appellants. Alton J. Vail, of Middletown, for respondent. RICH, J. This is an appeal from an order of the Special Term directing the present owner of a judgment of foreclosure and sale of a mortgage executed by the defendant Sly upon real property owned by him to assign and transfer such judgment to the defendant bank, upon payment to her of the amount found due and unpaid thereon.

The appellant Sly is a veteran of the Civil War and a pensioner of the United States. In 1901 he purchased a farm in Orange county for $3,000, paying $1,000 down and securing the balance by his bond and a purchase-money mortgage on the premises. This action was to foreclose the mortgage, and a decree of foreclosure and sale was entered on November 22, 1904. The amount found due and unpaid principal, interest, and costs—was $2,256.56. Sly paid the interest and costs included in the judgment, which was assigned by the plaintiffs to Emma S. Thompson, who owns it and states in her affidavit: "That she desires to hold and retain said judgment as an investment."

She is not a party to this action. The interest accruing since such assignment has been paid by Sly, and the premises have not run down or deteriorated in value. Sly states in his affidavit that all payments made by him on the purchase price of the farm, and interest upon deferred payments, were paid with his pension money. At the time of the commencement of this action (October 26, 1901) the defendant bank was a judgment creditor of Sly to the extent of $256.90, and was made a party defendant. On December 21, 1911, it served notice of motion for an order directing the referee appointed in said judgment to execute the same, or, in the alternative, that the amount due and unpaid upon said judgment be computed and ascertained, and said Emma S. Thompson ordered and directed to execute, acknowledge, and deliver a transfer and assignment thereof to said bank, upon payment of such amount, and that it be subrogated to all the rights and remedies of Mrs. Thompson under, and arising from, said judgment.

The learned Special Term held that the bank was entitled to the relief sought, and left it optional with Mrs. Thompson which of the forms of relief she would agree to, but ordered that, if she should fail to stipulate within 10 days which course she would pursue, the motion should be granted to the extent of directing the assignment. I do not think this order should be permitted to stand. If the state

ment of the defendant Sly that the money paid upon the property was pension money is true, the bank has no lien thereon. If this order is affirmed, it will deprive the judgment creditor of her investment, and take from Sly his equity in his farm, and limit his statutory pension rights in the land to the surplus money, if any, arising from the sale, without in any manner benefiting the bank; for, if his statement is true, the bank can gain nothing financially by acquiring the judgment of foreclosure. The appellant ought not to be divested of his rights in his farm until the question of the exemption from the lien of the judgment of the bank is determined.

The only evidence of the value of the farm lies in the fact that Sly paid $1,000 more for it than is unpaid on the foreclosure judgment, and his affidavit that, “in his opinion, the said farm is not worth to exceed the sum of $1,000 to $1,500, over and above the said judgment of foreclosure and sale. The inference is fairly warranted that, if the land is subject to the lien of the bank's judgment of $256.90 and interest, the value of the plaintiff's equity in the land is much more than sufficient to pay it, and the judgment could be collected by a sale of the equity on execution or in supplementary proceedings, where the owner would have an opportunity to establish the exemption he claims. It seems to me that no equitable reason was shown requiring the direction that the judgment of foreclosure be assigned.

The case presented is not within the rules stated in the cases of Smith v. Jarvis, 26 Misc. Rep. 507, 57 N. Y. Supp. 483, and Kelly v. Israel, 11 Paige, 147. In both of those cases the defendant seeking relief concededly had a valid mortgage lien (subsequent to that of the foreclosure judgment) and was interested in the proceeds of the sale. In the case at bar, if the facts sworn to by the mortgagor and judgment debtor are true, the bank has no lien upon the real 'property involved and no interest in the proceeds of its sale. The bank has slept upon its claimed rights for more than seven years, and does not at this late day show that in any substantial way its interests have been or will be jeopardized, or in any manner affected, by past or further delay, which in the Smith-Jarvis Case, supra, was held to be a condition precedent to the exercise of the discretion vested in the court of directing a referee under a judgment of foreclosure and sale to proceed, upon the motion of a defendant, against the wishes of the plaintiff, to execute the judgment.

The order must be reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur, except THOMAS, J., who dissents.

(152 App. Div. 482.)

In re PELLEGRINO. (Supreme Court, Appellate Division, Second Department. September 10, 1912.) BAIL (8 79*)—FORFEIT-RELIEVING SURETY FROM EFFECTS OF JUDGMENT.

While, under Code Cr. Proc. $ 597, a court, during the time a defendant in a criminal action is at large, may abate in part the debt of a surety whose bond has been forfeited, such abatement is not warranted, though the surety used diligence to capture the fugitive, where he would have paid voluntarily and without hardship.

(Ed. Note. For other cases, see Bail, Cent. Dig. 88 350-369 ; Dec. Dig. $ 79.*]

Hirschberg and Woodward, JJ., dissenting. Appeal from Kings County Court. Application by Angelo Pellegrino for relief from a judgment on a penal bond. From an order remitting a portion thereof, the People of the State of New York appeal. Reversed, and motion denied.

Argued before HIRSCHBERG, BURR, THOMAS, WOODWARD, and RICH, JJ.

Hersey Egginton, Asst. Dist. Atty., of Brooklyn (James C. Cropsey, Dist. Atty., of Brooklyn, and Harry G. Anderson, Asst. Dist. Atty., of New York City, on the brief), for the People.

Peter P. Smith, of Brooklyn, for respondente

THOMAS, J. The court, after judgment of conviction affirmed and the failure of the surety on the bond for the appearance of the defendant to comply therewith, forfeited the bond, and judgment in the sum of $10,000 was entered, which as against the surety the court ordered canceled upon the payment within 20 days of the sum of $6,000. The surety used diligence to effect the discovery and surrender of the fugitive defendant. The surety is amply able to pay the judgment.

It is urged that the court has not the power to abate in part the debt while the defendant in the criminal action is at large. There is no such limitation upon its power expressed in the statute (Code of Criminal Procedure, $ 597), but the present facts furnish no occasion for its exercise. The debt is due, payable, collectible, and, so far as appears, would have been voluntarily discharged. The surety would suffer by any considerable payment, as his property is the product of industry. But he contracted the obligation without constraint on the part of the obligee in the bond, and has failed to protect himself by due custody of the offender, and the court should not modify the hardship of just payment by abating from the sum due upon any grounds that appear.

The order should be reversed, and the motion denied, without costs.

BURR and RICH, JJ., concur.

HIRSCHBERG and WOODWARD, JJ., dissent. For other cases see same topic & & NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexen

137 N.Y.S.-20

(152 App. Div. 468.)

PEARSON v. REED et al. (Supreme Court, Appellate Division, Second Department. September 10, 1912.) 1. WILLS ($ 439*) CONSTRUCTION-INTENTION OF TESTATOR.

The intention of testator governs in the construction of his will.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 952, 955, 957;

Dec. Dig. $ 439.*] 2. WILLS (8 820*)-LEGACIES-CHARGES ON REAL ESTATE.

Testator, a farmer, directed his executors to pay his debts, including a mortgage on his farm, out of his personal property, life insurance, and bank stock, and, if the same proved insufficient, the executors should sell such part of the farm as would discharge the balance, and, subject to the payment of debts, he gave his wife household furniture, utensils, wearing apparel, stock, farm produce, and implements. He gave the residue of the real and personal property to his wife for life, and at her death directed his executors to pay a beneficiary, not of testator's blood, a specified sum, which sum he bequeathed to him, “payable as aforesaid.” Held, that the legacy to the beneficiary was not a charge on the real estate.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 2114-2119, 2121;

Dec. Dig. $ 820.*] 3. WILLS ($ 732*)-LEGACIES—CHARGES ON REAL ESTATE.

A legacy is presumably payable from testator's personal property, and is not a lien on his land.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1732–1737, 18011818; Dec. Dig. $ 732.*] Appeal from Trial Term, Dutchess County.

Action by Rodman J. Pearson against William L. Reed and another. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

See, also, 149 App. Div. 959, 133 N. Y. Supp. 1136.

Argued before HIRSCHBERG, BURR, THOMAS, WOODWARD, and RICH, JJ.

Ralph Hickox, of New York City, for appellant.
Charles F. Cossum, of Poughkeepsie, for respondents.

THOMAS, J. The question is whether a legacy to plaintiff, not of testator's blood, is a charge upon the real estate. The testator, a farmer, in December, 1887, made his will, whereby he directed his executors to pay his debts primarily from the proceeds of sale of the personal property on his farm and money collected on his life insurance, and also therefrom to pay the mortgage on his farm, or, if insufficient, to use therefor the proceeds of sale of bank stock, or, if such property proved insufficient, to sell such part of the farm therefor as would discharge the balance of the mortgage, with power to allow such balance to remain after appropriating the personalty as directed. Subject to the payment of debts, he gave his wife all household furniture, utensils, books, pictures, silverware, and wearing apparel, which amounted to $1,200, and stock, farm produce, or farming implements or machines, to *For other cases see same topic & $ NUMBER in Dec. & Am, Digs. 1907 to date, & Rep'r Indexes the value of $1,000. Then he gave the residue of the property, real and personal, to his widow for life, and at her death directed his executors to pay plaintiff $1,000, and the remainder he gave to an adopted daughter, who died before the widow, whereby the defendant Reed took the remainder under the sixth clause of the will. After payment of the debts, mortgage, and expenses of administration, and gifts to the widow, there was $46 left, which was applied on plaintiff's legacy.

[1, 2] The testator's intention governs, and the scheme of the will

, and what testator said in it to effect his plan, must be studied. The testator made the gifts to his wife first selectable from the property on his farm and in his home; but even they were subject to the payment of debts. The testator foresaw that such farm property and his life insurance might not meet his debts and mortgage, and so he pointed out the next source of funds, viz., his bank stock, and he conceived that even then there might be a deficiency, and he gave a limited power of sale to sell the farm in whole or part to make up what was needed. After the payment of debts and the mortgage, the gifts to his wife were to be next. But it occurred to him that all the personalty might be consumed, and even that the farm might need to be sold, in whole or in part, before the estate for his widow's life would be reached. At least the possibility of it was in his mind. But plaintiff's legacy was not payable until the widow died, when nothing but the farm, or proceeds of sale thereof, in whole or in part, might be left.

It is difficult to conceive that the testator provided the gift to plaintiff as a courteous, but formal, recognition of his friend, without emolument, unless the personalty was sufficient. And yet I consider that he had nothing more in his mind, through a probable miscalculation of his resources, for in the fourth subdivision of his will he directs his executors, at the decease of his widow, to pay plaintiff $1,000, "which sum I hereby give and bequeath to him, payable as aforesaid." The executors could pay only from the personalty, and if that was expended they could not pay from the land. They had no power of sale of the land, save for the specific purpose of paying the mortgage, and only so much as would furnish sufficient proceeds for that purpose. Had he intended that the legacy should be paid from the proceeds of sale of the land, he would have given power to sell it for that purpose. So, in finding in what way the testator calculated that the legacy would be paid, we must regard what he said on the subject, and what facilities he understood would be used to effect his design. The balance of his judgment was that his farm would be preserved for his wife, and that she might, if she preferred, take personal charge of it, and that there would also be personal property for her life use.

[3] In the whole will there is not found intention to make the case an exception to the rule that the legacy is presumably payable from the personal property, and is not a lien on the land.

The judgment should be affirmed, with costs. All concur.

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