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whole of the real estate as an un- The will of testatrix, after providing that divided and indivisible property, her executor should hold two parcels of and while Edmund lived that trust

real estate in trust to apply the in

come thereof to the maintenance of her was intended to be executed ac

mother and youngest son, or should sell cording to the manifest desire of

the same and apply the income derived the parties.

from the proceeds to the same purpose, That if at common law the wid

and that, upon the death of her mother

and the coming of age of her youngest ow of William E. Waring would

son, one of such parcels, or the avails have taken the trust as the execu- thereof if it should have been sold, should trix or representative of her hus- be given to her youngest son, contained band, or as sole devisee under his

the following clause : “And all the rest,

residue and remainder of my property and will, that rule has been changed

estate I do then give, devise and bequeath by the statutes of this State, so to my children John, Thomas, and Mary, that the trust, both as to the real the survivor and survivors of them, share and personal property, passed into

and share alike." Held, That the right to

take the residuum of the estate vested at the hands and under the control

the time of the death of the testatrix in of the Supreme Court. 1 R. S., the three children named. 730, 8 68; Banks & Bros. 7 Ed., 3d Affirming S. C., 19 W. Dig., 239. Vol., 2183, and Chap. 185, Laws of The petitioner's testatrix died 1882, $1.

leaving her surviving her mother, That, notwithstanding the fact one son by her second husband and that the latter statute was enacted two sons and one daughter by her after the creation of the trust, it first husband. By her will she dewas applicable to it, for William vised to her executor two houses E. Waring was living at the time and lots, in trust, to collect the inof its enactment, and at that time come and profits, or in his discreMrs. Waring had no vested right tion to sell and convey the premises in the office of trustee, and that or either of them and receive the her possible right of succession proceeds, and therefrom to pay such under the common law was not sums as might be necessary, not to such a vested interest as is pro- exceed $10 per month, to her tected by the constitution from mother as long as she survived, legislative change.

and from the balance such sums Anderson v. Mather, 44 N. Y., as might be necessary for the edu249, distinguished.

cation and maintenance of her son Order affirmed.

by her second marriage, and the Opinion by Davis, P.J.; Brady balance of the income and profits and Daniels, JJ., concur.

divide equally between her three children by her first marriage, and

upon the death of her mother durWILLS.

ing the niinority of her son by her N. Y. COURT OF APPEALS.

second husband to apply the net In re settlement of accounts of income of profits of one of said Mahan, exr.

houses and lots, if unsold, and if Decided March 3, 1885.

sold to apply the net income and

profits of the proceeds or avails Winthrop Parker, for respt. thereof for the use of said son until Held, No error; that the limitahe should attain the age of twenty- tion of the residue of her estate by one years, and from the death of the testatrix to her children by her mother and upon said son at- her first husband after her mother's taining the age of twenty-one death must be deemed to have years the testatrix provided : “I taken effect as a valid remainder do give, devise and bequeath the said on the death of the testatrix, and premises *

if then uncon- the words of survivorship must veyed, or the avails thereof if the be held to refer to that event. As same shall then have been con- the children named survived her veyed, and all accumulations of at her death they took an interest the income and profits thereof to in presenti in the rents and profits my said son James, his heirs, ex- or income of the real estate or its proecutors and assigns forever; and ceeds, and as to the body or residue all the rest, residue and remainder the solvendum in futuro was anof my estate I do then give, devise nexed to its disposition or enjoyand bequeath to my children ment, and not to the bequest. 25 (naming those by the first hus- Wend., 144 ; 29 N. Y., 139 ; 70 id., band) the survivor or survivors of 512; 76 id., 133; 89 id., 225. them share and share alike."

Judgment of General Term, The will was admitted to probate affirming decree of Surrogate, in 1871, and soon after the real affirmed. estate was sold by the executor. Opinion by Danforth J. All The son by the second husband be- concur. came of age in February, 1882, and the mother of the testatrix died in

N. Y. STOCK EXCHANGE. November, 1882. One son of the

PLEDGE. children by the first husband alone

N. Y. SUPREME COURT. GENERAL survived. The executor's account

TERM. FIRST DEPT. showed that of the proceeds of the sale of the two houses and lots

John H. Morris v. U. S. Grant there remained in his hands $12, et al.

et al. In re petition of Henry B. 580. The son who alone survived Laidlaw. of the children by the first husband Decided Jan. 9, 1885. claimed one-half of this amount.

The committee on securities of the N. Y. The Surrogate directed that such Stock Exchange has no jurisdiction to dehalf should be divided into three termine the legality of a tender or delivparts, and one-third paid to said son,

ery of bonds to a purchaser who refuses

to receive them upon the ground that the one-third to the administratrix of

seller cannot convey a good title. his sister and one-third to the ad- A determination by a committee of the N. ministrator of his brother.

Y. Stock Exchange of such a question William J. Kane, for applt.

between members of the Exchange, one

of whom is the purchaser of certain bonds William F: Reilly, and Walter

from the other, who is a pledgee of the B. Burke, for applts.

same, and who is selling them to pay his

Such a

loan, is not binding upon the pledgor, been given came to the knowledge who is not a member of said Stock

of the buyer at the sale after the Exchange, and has had no notice of the delivery but before payment thereproceedings resulting in such determination nor opportunity to be heard therein. for, and he, for that reason, obThe purchaser of bonds regularly sold by a jected to receive and pay for the bona fide pledgee of the same has no right bonds. The question of his oblito refuse to receive them for the reason that intermediate the sale and the deliv- gation to receive and pay was re

ferred for arbitration to the standery a third party has served a notice upon the pledgee that he claims said bonds up- ing committee of the Board of on the ground that they were deposited Exchange, known as the “Comby him with the pledgor as collateral se

mittee on Securities,” and such curity for a loan, and that the latter had no authority to pledge them.

committee finally determined that notice does not prevent the pledgee's con- the portion of the bonds delivered veying a good title upon such sale.

on the day of the sale was well Appeal from an order of the delivered and must be paid for, the Special Term. The petitioners, who delivery having been made before were members of the N. Y. Stock the receipt of the notice from the Exchange, loaned $100,000 to Grant RR. Co., but that the portion de& Ward, who were not such livered on the next day might be members, and took as security returned and payment refused. fifty-three $1,000 bonds of the N. The petitioners, thereupon, reY., Chicago & St. Louis RR. Co. ceived back the latter bonds, and, This loan was not paid, and, there- a receiver of the estate of Grant & upon, the bonds in question were Ward having been appointed in sold, at the request of the petition- this action in the meanwhile, ers, under the rules of the N. Y. brought these proceedings for leave Stock Exchange, by the chairman to sell such bonds with a view to of that organization, for a price charge said receiver with any defimore than sufficient to extinguish ciency which might arise on the the loan. Ten of the bonds so sold sale. were delivered at once to the pur- Wm. B. Hornblower, for applt. chaser, but the remainder was not Anson Maltby, for the petitiondelivered until the following day. ers, respts. On the morning of that day the Held, That the petitioners estabpetitioners received notice that the lished no right to the relief prayed RR. Co. claimed the bonds in for. question upon the ground that they First. Because under the constihad been deposited by said com- tution of the Board of Exchange pany with Grant & Ward as col- the Committee on Securities had lateral to a loan made by that firm no jurisdiction of the question reto the company, and that Grant & ferred to them. Cons. N. Y. Stock Ward had no authority to use them Exchange, Art. IV. as a pledge for the loan to them Second. Because Grant & Ward made by the petitioners.

had no notice of the supposed arbiThe fact of such notice having tration and no opportunity to be

heard thereon, and, not being mem- When a mortgagor has, subsequent to the bers of the Stock Exchange, were

exe'ution of the mortgage, made an asnot bound by such arbitration.

signment for the benefit of his creditors,

and his assignee, who has no other interThirdly. Because, if the dealings est in the property than that derived of Grant & Ward in regard to the under the assignment, is made a party to loan could be construed to subject

an action to foreclose the mortgage, inthem to the rules of the Exchange

dividually and not as assignee, the judg

ment in such action will have the effect in relation to the sale and delivery

of cutting off his interest as assignee. of their collaterals, that could go In order to make a general assignment for no further than to hold them the benefit of creditors effectual and opebound by adjudication made by

rative as a conveyance of real property in

the city of New York, as to subsequent committees clothed with jurisdic- purchasers in good faith of such property tion by such rules.

from the assignor, it must be recorded as Fourthly. Because the petition

a deed in the office of the Register of ers were bona fide holders for value

Deeds of the county of N. Y., and when

such a subsequent purchaser in good faith of the bonds under the pledge, and

mortgages such property, a purchaser at could convey a good title to the the foreclosure sale of such mortgage acpurchaser, and no claimant,on such quires the title of the mortgagor notwithgrounds as were named in the no

standing the fact that he has notice of the

assignment. tice served, could prevent the vest

An assignee in bankruptcy of a mortgagor ing of a good title in the buyers, appointed under the late bankrupt laws and that it was the duty of the subsequent to the commencement of an

action for the foreclosure of the mortpetitioners to have disregarded such

gage and the filing of a notice of the notice and to have enforced the

pendency of such action is a subsequent sale.

purchaser or incumbrancer and is not a Order reversed.

necessary party to the action. Opinion by Davis, P. J.; Brady Appeal from an order denying a and Daniels, JJ., concur.

motion to relieve the appellant from a purchase made under a

judgment in this action for the FORECLOSURE.

foreclosure of a mortgage. N. Y. SUPREME COURT. GENERAL The property in question was TERM. FIRST DEPT.

owned in 1873 by one Schiffer, who Louis A. Wagner v. John Hodge mortgaged it to Burbank, who et al.

foreclosed the mortgage and bought

in the property, and subsequently Decided Jan. 28, 1985.

conveyed it to one Norton, who When a mortgage describes the property conveyed it to Nosser, who con

mortgaged as being situated easterly of a certain point when in fact it is situated veyed it to the defendant. The westerly of said point, but also contains objections to the title were founded a further description of said property by upon alleged defects in the morta certain lot number on a map filed in the gage to Burbank and the action by Register's office by which said property is

which it was foreclosed. One of accurately located, a purchaser at the sale on the foreclosure of the said mortgage

such defects was that, while the acquires title to the property.

property was in fact situated on 76th street west of 3d avenue, it had purchased the property withwas described in the mortgage as out notice of such assignment. being situated east of it, and this Held, That inasmuch as Jacobs error was perpetuated throughout had no interest in the property the foreclosure proceedings and in other than that which he had acthe referee's deed. The mortgage quired under the assignment, and and the deed, however, further what he had was subsequent to and described the property as Lot No. subject to the mortgage, the judg13 on a certain map filed in the ment would probably be entitled office of the Register of the county to the effect of cutting off all his of N. Y., and upon such map the interest in the property. correct location of Lot 13 was 73 N. Y., 292 ; 58 N. Y., 463; 2 stated and given.

Abb. N. C., 238, distinguished. Geo. S. Hamlin, for applt.

That to render a general assignLewis Sanders, for plff.

ment for the benefit of creditors Held, That from the reference effectual and operative as a conmade to this map and the map it- veyance of real property in N. Y. self the lot was capable of being city as to subsequent purchasers in accurately placed and located not good faith of such property from withstanding the subsequent mis- the assignor, it should be recorded description of its location by the as a deed in the office of the Regismeasurement stated in the mort- ter of the County of N. Y. Chap. gage, and that under the authori- 86, Laws of 1813, SS 170, 171; ties enabled the purchaser to ac- 2 Bliss, Olney & Whitney's Laws quire the title to the lot under the of the City of N. Y., 1456; 2 R. S., purchase made by him. 10 N. Y.,

10 N. Y., 6th ed., 1152, $ 78; 37 How., 219. 509; 94 N. Y., 274.

That Norton and Nosser, thereAnother objection to the title fore, acquired a legal title to the was that, subsequent to the execu- property notwithstanding the astion by Schiffer of the mortgage signment, and since the mortgage to Burbank, he had made a general foreclosed in this action was given assignment for the benefit of his upon such title the purchaser at creditors to one Jacobs, and that the foreclosure sale would acquire Jacobs had been made a party to such title and hold the property the action to foreclose said mort- free and clear of the incumbrance gage individually and not as as- of the preceding assignment alsignee. It appeared that Jacobs though he himself was previously had no other interest in the prop- informed of its existence. 46 Barb., erty except such as he had derived 211; 13 N. Y., 509. from the assignment, and it also A further objection made to the appeared that while such assign- title was that an assignee in bankment had been filed with the ruptcy of Schiffer had not been County Clerk it had never been made a party to the Burbank forerecorded in the office of the Regis closure. It appeared, however, that ter, and that Norton and Nosser such assignee was appointed after

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