whole of the real estate as an undivided and indivisible property, and while Edmund lived that trust was intended to be executed according to the manifest desire of the parties.

That if at common law the widow of William E. Waring would have taken the trust as the executrix or representative of her husband, or as sole devisee under his will, that rule has been changed by the statutes of this State, so that the trust, both as to the real and personal property, passed into the hands and under the control of the Supreme Court. 1 R. S., 730,868; Banks & Bros. 7 Ed., 3d Vol., 2183, and Chap. 185, Laws of 1882, $1.

That, notwithstanding the fact that the latter statute was enacted after the creation of the trust, it was applicable to it, for William E. Waring was living at the time of its enactment, and at that time Mrs. Waring had no vested right in the office of trustee, and that her possible right of succession under the common law was not such a vested interest as is protected by the constitution from legislative change.

Anderson v. Mather, 44 N. Y., 249, distinguished. Order affirmed.

The will of testatrix, after providing that her executor should hold two parcels of real estate in trust to apply the income thereof to the maintenance of her mother and youngest son, or should sell the same and apply the income derived from the proceeds to the same purpose, and that, upon the death of her mother and the coming of age of her youngest son, one of such parcels, or the avails thereof if it should have been sold, should be given to her youngest son, contained the following clause: "And all the rest, residue and remainder of my property and estate I do then give, devise and bequeath to my children John, Thomas, and Mary, the survivor and survivors of them, share and share alike." Held, That the right to take the residuum of the estate vested at the time of the death of the testatrix in the three children named.

Affirming S. C., 19 W. Dig., 239.

The petitioner's testatrix died leaving her surviving her mother, one son by her second husband and two sons and one daughter by her first husband. By her will she devised to her executor two houses and lots, in trust, to collect the income and profits, or in his discretion to sell and convey the premises or either of them and receive the proceeds, and therefrom to pay such sums as might be necessary, not to exceed $40 per month, to her mother as long as she survived, and from the balance such sums as might be necessary for the education and maintenance of her son by her second marriage, and the

WILLS.

N. Y. COURT OF APPEALS.

Mahan, exr.

Decided March 3, 1885.

houses and lots, if unsold, and if sold to apply the net income and

profits of the proceeds or avails thereof for the use of said son until he should attain the age of twentyone years, and from the death of her mother and upon said son attaining the age of twenty-one years the testatrix provided: "I do give, devise and bequeath the said premises * * * if then unconveyed, or the avails thereof if the same shall then have been conveyed, and all accumulations of the income and profits thereof to my said son James, his heirs, executors and assigns forever; and all the rest, residue and remainder of my estate I do then give, devise and bequeath to my children children (naming those by the first husband) the survivor or survivors of them share and share alike."

The will was admitted to probate in 1871, and soon after the real estate was sold by the executor. The son by the second husband became of age in February, 1882, and the mother of the testatrix died in November, 1882. One son of the children by the first husband alone survived. The executor's account showed that of the proceeds of the sale of the two houses and lots there remained in his hands $12,580. The son who alone survived of the children by the first husband claimed one-half of this amount. The Surrogate directed that such half should be divided into three parts, and one-third paid to said son, one-third to the administratrix of his sister and one-third to the administrator of his brother.

William J. Kane, for applt. William F: Reilly, and Walter B. Burke, for applts.

Winthrop Parker, for respt.

Held, No error; that the limitation of the residue of her estate by the testatrix to her children by her first husband after her mother's death must be deemed to have taken effect as a valid remainder on the death of the testatrix, and the words of survivorship must be held to refer to that event. As the children named survived her at her death they took an interest in præsenti in the rents and profits or income of the real estate or its proceeds, and as to the body or residue the solvendum in futuro was annexed to its disposition or enjoyment, and not to the bequest. 25 Wend., 144; 29 N. Y., 139; 70 id., 512; 76 id., 133; 89 id., 225.

Judgment of General Term, affirming decree of Surrogate, affirmed.

Opinion by Danforth J. All

TERM. FIRST DEPT.

John H. Morris v. U. S. Grant et al. In re petition of Henry B. Laidlaw.

Decided Jan. 9, 1885.

The committee on securities of the N. Y. Stock Exchange has no jurisdiction to determine the legality of a tender or delivery of bonds to a purchaser who refuses to receive them upon the ground that the seller cannot convey a good title. A determination by a committee of the N. Y. Stock Exchange of such a question between members of the Exchange, one of whom is the purchaser of certain bonds from the other, who is a pledgee of the same, and who is selling them to pay his

loan, is not binding upon the pledgor, who is not a member of said Stock Exchange, and has had no notice of the

proceedings resulting in such determination nor opportunity to be heard therein.

The purchaser of bonds regularly sold by a bona fide pledgee of the same has no right

to refuse to receive them for the reason

that intermediate the sale and the deliv

ery a third party has served a notice upon the pledgee that he claims said bonds upon the ground that they were deposited by him with the pledgor as collateral security for a loan, and that the latter had no authority to pledge them. Such a notice does not prevent the pledgee's conveying a good title upon such sale.

Appeal from an order of the Special Term. The petitioners, who were members of the N. Y. Stock Exchange, loaned $100,000 to Grant & Ward, who were not such members, and took as security fifty-three $1,000 bonds of the N. Y., Chicago & St. Louis RR. Co. This loan was not paid, and, thereupon, the bonds in question were sold, at the request of the petitioners, under the rules of the N. Y. Stock Exchange, by the chairman of that organization, for a price more than sufficient to extinguish the loan. Ten of the bonds so sold were delivered at once to the purchaser, but the remainder was not delivered until the following day. On the morning of that day the petitioners received notice that the RR. Co. claimed the bonds in question upon the ground that they had been deposited by said company with Grant & Ward as collateral to a loan made by that firm to the company, and that Grant & Ward had no authority to use them as a pledge for the loan to them made by the petitioners.

been given came to the knowledge of the buyer at the sale after the delivery but before payment therefor, and he, for that reason, objected to receive and pay for the bonds. The question of his obligation to receive and pay was referred for arbitration to the standing committee of the Board of Exchange, known as the “Com-. mittee on Securities," and such committee finally determined that the portion of the bonds delivered on the day of the sale was well delivered and must be paid for, the delivery having been made before the receipt of the notice from the RR. Co., but that the portion delivered on the next day might be returned and payment refused. The petitioners, The petitioners, thereupon, received back the latter bonds, and, a receiver of the estate of Grant & Ward having been appointed in this action in the meanwhile, brought these proceedings for leave to sell such bonds with a view to charge said receiver with any deficiency which might arise on the sale.

Wm. B. Hornblower, for applt. Anson Maltby, for the petitioners, respts.

Held, That the petitioners established no right to the relief prayed for.

First. Because under the constitution of the Board of Exchange the Committee on Securities had no jurisdiction of the question referred to them. Cons. N. Y. Stock Exchange, Art. IV.

Second. Because Grant & Ward had no notice of the supposed arbi

heard thereon, and, not being members of the Stock Exchange, were not bound by such arbitration.

Thirdly. Because, if the dealings of Grant & Ward in regard to the loan could be construed to subject them to the rules of the Exchange in relation to the sale and delivery of their collaterals, that could go no further than to hold them bound by adjudication made by committees clothed with jurisdiction by such rules.

Fourthly. Because the petitioners were bona fide holders for value of the bonds under the pledge, and could convey a good title to the purchaser, and no claimant, on such grounds as were named in the notice served, could prevent the vesting of a good title in the buyers, and that it was the duty of the petitioners to have disregarded such notice and to have enforced the sale.

Order reversed.

Opinion by Davis, P. J.; Brady and Daniels, JJ., concur.

FORECLOSURE.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

Louis A. Wagner v. John Hodge

et al.

Decided Jan. 28, 1885. When a mortgage describes the property mortgaged as being situated easterly of a certain point when in fact it is situated westerly of said point, but also contains a further description of said property by a certain lot number on a map filed in the Register's office by which said property is accurately located, a purchaser at the sale on the foreclosure of the said mortgage acquires title to the property.

When a mortgagor has, subsequent to the execution of the mortgage, made an assignment for the benefit of his creditors, and his assignee, who has no other interest in the property than that derived under the assignment, is made a party to an action to foreclose the mortgage, individually and not as assignee, the judgment in such action will have the effect of cutting off his interest as assignee. In order to make a general assignment for the benefit of creditors effectual and operative as a conveyance of real property in the city of New York, as to subsequent purchasers in good faith of such property from the assignor, it must be recorded as a deed in the office of the Register of Deeds of the county of N. Y., and when such a subsequent purchaser in good faith mortgages such property, a purchaser at the foreclosure sale of such mortgage acquires the title of the mortgagor notwithstanding the fact that he has notice of the assignment.

An assignee in bankruptcy of a mortgagor appointed under the late bankrupt laws subsequent to the commencement of an action for the foreclosure of the mortgage and the filing of a notice of the pendency of such action is a subsequent purchaser or incumbrancer and is not a necessary party to the action.

Appeal from an order denying a motion to relieve the appellant from a purchase made under a judgment in this action for the foreclosure of a mortgage.

The property in question was owned in 1873 by one Schiffer, who mortgaged it to Burbank, who foreclosed the mortgage and bought in the property, and subsequently conveyed it to one Norton, who conveyed it to Nosser, who conveyed it to the defendant. The objections to the title were founded upon alleged defects in the mortgage to Burbank and the action by which it was foreclosed. One of such defects was that, while the property was in fact situated on