of the Methodist Episcopal Church Society" sufficiently indicates the Missionary Society of the Methodist Episcopal Church, the intention of the testator being clearly shown. Petition by Stephen R. Gray, executor of Esra L. Pasco, deceased, for construction of said decedent's will, and directions as to payment of debts, legacies, etc. The first clause of the will was as follows: "I give, devise, and bequeath to my wife, Barbara A. Pasco, all my real and personal property, to have and to hold as long as she may live, subject to the following terms and restrictions: I do hereby authorize and empower my said wife to sell all or any of my real estate that she may deem best and proper." By items 2, 3, 4, 5, and 6, specific legacies were given, and a trustee appointed to take charge of the estate at the death of the wife. The wife died testate, directing the payment of her debts and funeral expenses. The complaint in this action asks the direction of the court, as to whether the debts and funeral expenses of the wife shall be paid from her estate or from that of the husband, also in what order, and out of what particular funds, they shall be paid, and to whom the specific legacies shall be paid, the legatees being evidently incorrectly specified in the will. H. L. Washburn, Jr., for plaintiff. Warren S. Kelley, for defendants. LEARNED, J. I do not think it necessary to cite authorities for most of my conclusions. It is evident that the testator, Esra L. Pasco, by the name "Betsey E. Farley Pasco," meant the defendant Betsey E. Pasco Farley; that by the name "Georgianna Crana Baker," he meant the defendant Georgianna Baker Crana; that by the name “Magie Miles Sager," he meant the defendant Maggie Sager Miles; that by the name "Mary Gifford Sager," he meant the defendant Mary Sager Gifford. Charter v. Charter, L. R. 2 Prob. & Div. 315, L. R. 7 H. L. 364. The legacies must be paid accordingly. By the "Missionary of the Methodist Episcopal Church Society," the testator meant the "Missionary Society of the Methodist Episcopal Church," and the legacy must be paid accordingly. The executor of Barbara L. Pasco, as was admitted on the argument, has sold the specific legacies in her will, in items 2, 3, 4, and 6, under an agreement with the legatees that the avails (or value) shall stand in place of the specific articles. The real estate of Barbara has been sold, and the purchaser holds the purchase price as security. As the real estate would be eventually liable for her debts, it seems to be of little consequence to distinguish between these avails, now in the purchaser's hands, and her personal property, so far as the payment of debts is concerned. It could only be material between legatees and devisees. She directs the payment of her just debts and funeral expenses. I think that those should be paid out of her estate, as it is sufficient, and not out of the estate of Esra L. Pasco. His will, inartificially drawn, gives a life-estate in real and personal property. Then, in the third item, it says: "After the death of my said wife, and her debts and funeral expenses are paid, the balance of my estate that shall or may be left, to be divided," etc. Now, it is quite possible that, if Barbara had left no property from which to pay her debts and funeral expenses, these would have been payable out of Esra's estate, or if, leaving property, she had, in her will, claimed from Esra's estate such payment, then, perhaps, that estate would have been charged; but, as she directed the payment of her debts and funeral expenses, which it was not necessary for her to do, in ordinary cases, in order to make them payable from her estate, it is reasonable to understand that she meant what she said, and that her executor was to pay them from her estate. If it be urged that Esra also meant what he said, the answer is this: He probably intended to provide, if there should be any necessity therefor, that his wife should be suitably buried, and the little debts she might contract should be honorably discharged; but, as she has provided for these things herself, his estate is not to be called upon; just as if she paid her debts in her life. Barbara, by virtue of a power in the will, sold certain land for $3,000. In this $3,000 she had a life-estate only; although, of course, it was applicable to debts, etc., under Esra's will. She kept no accounts of her dealings with the estate; but, so far as can be ascertained, there remained in her hands $656.25 of the estate of Esra, after allowing her all credits. That is to say, this sum ought to have been in her hands at her death. This appears to have partly, or perhaps wholly, come from the real estate sold by her, under the power in Esra's will. Her administrator has realized, from the assets named in the residuary clause, $375.98, subject to expenses of administration, and fees, etc., of administrator, and from her whole personal property, $999.27. The undisputed claims against her estate are $566.06, and funeral expenses are $162.17. The avails of her real estate sold since her death are $3,333.33, from which should be deducted expenses of sale, etc.,-about $140.16. It therefore appears that the personal and real property of Barbara, are enough to pay all claims against her estate. Specific legacies must be applied to payment of debts, before land, unless special direction to the contrary is given in the will. Rogers v. Rogers, 1 Paige, 188; affirmed, 3 Wend. 503. Hoes v. Van Hosen, 1 N. Y. 120. This disposes of any question as to the legacies in items 2, 3, 4, 5, and 6. The debts owing by Barbara, including the aforesaid liability to the estate of Esra, and the funeral expenses, are more than enough to absorb all the avails of the personal property, including the specific legacies. And therefore some part of the avails of her real estate will be needed. Her administrator, then, is to pay First, her funeral expenses, say, 162 17 Then her debts, including the debts to Esra's estate, say, 566 06 656 25 $1,384 48 Avails of personal property, 999 27 Balance which must come out of avails of real estate, 385 21 3,193 17 -to be paid to the parties mentioned in the eighth clause of her will. These figures are not given as accurate amounts. There are commissions of the administrator, and there may be interest on the debts. These are given only to illustrate my meaning. It will be seen that I consider the balance which should have been in Barbara's hands at her death, and of personal property and of avails of real estate of Esra, to be a debt owing to his estate. I do not think that the authority to sell real estate, contained in the first clause of his will, changed the provision that she was to have a life-estate. The sum of $250 to the "Rural Cemetery" should, of course, be paid out of the $650.25; but I do not see that this will practically make any difference. If paid to the cemetery by the administrator, it reduces the amount owing by Barbara's estate to Esra's. Each of the attorneys appearing for plaintiff and defendants should be allowed their bills of costs out of the estates. As to the proportion of costs between the two estates, and as to any extra allowance, I will not decide without hearing counsel. INDEX. NOTE. A star (*) indicates that the case referred to is annotated. ABATEMENT AND RE VIVAL. Death of party. 1. Laws N. Y. 1875, c. 611, § 21, declares that if any certificate or report made by the officers of a corporation, created under that act, shall be false in any material representation, all the officers signing it shall be liable for all debts of the corporation contracted during their term of office. Held, that such cause of action abates with the death of the creditor; the language of section 21 of the act being identical with Laws 1848, c. 40, § 15, and the cause of action under the latter act having been held by the courts to abate.-Boyle v. Thurber, (Sup.) 789. ACTION. See, also, Abatement and Revival; Champerty and Maintenance; Limitation of Actions; Pleading; Practice in Civil Cases; Venue in Civil Cases; Writs. Between husband and wife, see Husband and Wife, 8. By and against Corporations, see Corporations, 11, 12. Executors, see Executors and Administrators, 15-20. Factors and brokers, see Factors and Brokers, 3-5. Husband and wife, see Husband and Wife, 6, 7. Infants, see Infancy, 1, 2. Municipal corporations, see Municipal Stockholders, see Corporations, 13-17. For damages for nuisance, see Nuisance. misappropriated funds, see Railroad Companies, 13, 14. price of chattels, see Sale, 11-20. Nature of action for seamen's wages, see Seamen. On negotiable instruments, see Negotiable Instruments, 12, 13. Particular forms, see Assumpsit; Death by Wrongful Act; Deceit; Divorce; Partition; Replevin; Specific Performance; Trespass; Trover and Conversion. To annul marriage, see Marriage. recover dower, see Dower, 3, 4. set aside fraudulent conveyances, see Fraudulent Conveyances, 11, 12. vacate charter, see Railroad Companies, 1. Form of action. 1. A complaint alleging that a gratuitous bailee of a negotiable note, and his co-defendants, wrongfully, fraudulently, and consent of without the knowledge or plaintiff, the payee and owner of the note, indorsed his name thereon, negotiated it, and converted the proceeds to their own use, to plaintiff's damage, for which he demands judgment, states a cause of action in tort, and can be sustained only by proof of fraudulent conversion, the complaint (881) To toll statute, see Limitation of Actions, 4, 5. v.2N.Y.S. -56 Lot containing a waiver of the tort.-Allen | dered cannot exceed $2,000. Under section v. Allen, (Sup.) 566. 2. Where a complaint under the Code alleges all the facts necessary for either eq uitable or common-law relief, it cannot be dismissed for any objection to the form of the action.-Vinton v. Board of Supervisors, (Sup.) 367. Election. 817, allowing the consolidation of actions, held, that the court may order the consolidation of several actions, each of which is for less than $2,000, though the aggregate amount exceeds that sum, especially where defendants waive by stipulation any irregularity by reason thereof. Bush v. Abrahams, (Čity Ct. N. Y.) 391. Admiralty. AFFIDAVIT. 3. In an action on a contract for the sale of stocks which stipulated that plaintiff might demand return of the stocks on re: See Demurrage; Shipping. payment of the price, and that, if defendants should pay any other person for the same kind of stocks more than they paid plaintiff, they would pay him the difference on his sale, a complaint seeking to enforce liability for failure to return the stocks, and for refusal to pay such difference, sets up inconsistent causes of action.-Stewart v. Huntington, (Sup.) 205. 4. Where the owner of goods wrongfully taken has waived the tort and recovered in an action ex contractu against some of the tort-feasors, he is estopped to bring trover against the others. Terry v. Munger, (Sup.) 348. 5. The effect of an election by plaintiff Stewart v. is to eliminate the other cause of action 6. A complaint in one count alleged an agreement with the M. R. Co., defendant, for the purchase of the property of another company at the sale under foreclosure by the former, and for the organization of a new company by the stockholders of the old one, of whom plaintiff was one, and to whose rights he had succeeded; that the property was sold to defendant trust company, and a new company was formed principally of directors of the M. R. Co.; that the new company issued stock to the trust company in payment for the property of the old one, and issued a mortgage to defendant trustees, and that its officers, who were defendants, had acted fraudulently, and in the interest of the M. R. Co., and demanded enforcement of the agreement, and damages for its breach, and an injunction against the officers of the new company from acting as such. Held, that a cause of action on the agreement was improperly joined with one for the removal of the officers of the new company; and that neither cause affected all the parties. -Stanton v. Missouri Pac. Ry. Co., (Sup.) 298. 7. Code Civil Proc. § 315, relating to the jurisdiction of the city court of New York, does not restrict jurisdiction as to the amount claimed, but section 316 declares that the sum for which judgment is ren For attachment, see Attachment, 2–7. publication of summons, see Writs, 3. In lieu of bill of particulars, see Pleading, 9. On motion to quash indictment, see Crim inal Law, 3. Preliminary to arrest, see Arrest, 1. Right to cross-examine affiant. Under Code Civil Proc. N. Y. § 885, which provides that where a party intends to make or oppose a motion, and it is necessary for him to have the affidavit of a person, not a party, to use on the motion, the court may appoint a referee to take the deposition. where the witness appears before the referee, refuses to answer on the advice of the opposing party's attorneys, but afterwards objection to the examina tion is withdrawn, and the attorneys disclaim, under oath, any interference, they will be allowed to be present, but not to cross-examine the witness.-Keenan v. O'Brien, (Sup.) 242. APPEAL. Costs on appeal, see Costs, 12-14. In criminal cases, see Criminal Law, 6, 7. Weight and sufficiency of evidence, see Insurance, 7. Jurisdiction-Appealable orders. 1. No appeal lies from an order entered on the trial of an issue of law raised by demurrer to a complaint giving the plaintiff leave to serve an amended complaint within a stated time, unless the decision is followed by a judgment either interlocutory or final, in accordance with Code Civil Proc. N. Y. § 1021. as amended in 1879. providing that, on hearing a demurrer, the court should give a decision in form that the demurrer is sustained or overruled, and that the successful party have judgment thereon.-Uhler v. Ryer, (City Ct. N. Y.) 729. 2. An order giving treble the damages found by the jury, under Code Civil Proc. N. Y. 1184, cannot be reviewed, unless specified in the notice of appeal, as provided by section 1301, relating to the review of intermediate orders.-Purton v. Watson, (City Ct. N. Y.) 661. 3. An order postponing the trial of a cause for the term is discretionary, and not appealable.-Myers v. Myers, (Sup.) 465.* Amount in controversy. 4. Where defendant, in a justice's court, pleads a set-off for $55, though his bill of items is only for $50, he is entitled to a new trial, on appeal to the county court, under Code Civil Proc. N. Y. § 3068, which provides that, where the sum for which judg. ment was demanded by either party in his pleadings exceeds $50, the appellant shall be entitled to a new trial.-Dudley v. Brinckerhoff, (Sup.) 321. Time of taking. 5. Under Code Civil Proc. N. Y. § 1351. providing that appeals to the general term must be taken within 30 days after service upon appellant's attorney of a copy of the judgment appealed from, and notice of the entry, a written admission signed by appellant's attorney of "due and timely service of a copy of the within judgment and notice of entry," estops appellant from alleging irregularity in the service or contents of the notice.-Mohr v. Dorschel, (Sup.) 33. Practice-Use of affidavits. 6. Code Civil Proc. N. Y. § 3057, relating to appeals from justices' courts, which provides that "where an appeal is founded upon an error of fact in the proceedings not affecting the merits of the action, and not within the knowledge of the justice, the court may determine the matter upon affidavits," etc., does not authorize the use of affidavits on appeal to show alleged misconduct of the justice after the case was submitted to him for decision; inasmuch as the matters alleged in such affidavits, if they existed, must have been wholly within the knowledge of the justice.-Vallen v. McGuire, (Sup.) 381. Review-In general. 7. On appeal from an order granting a new trial, the general term may review exceptions taken on the trial, though a new trial was granted on the ground that the verdict was against the evidence.-Fenno v. Hannan, (Sup.) 474. Objections not raised below. 8. A witness was asked to state the rental value of plaintiff's residence "without these piles of sand being there, and blowing as described." been himself examined as to the blowing Held that, the witness having that it left it to the witness to consider the of the sand, an objection to the question effect of the evidence given by a group of witnesses would not be considered, it not having been made at the trial.-Dunsbach v. Hollister, (Sup.) 94. 9. In an action for breach of warranty of certain onion seed, where plaintiff is asked what a clerk of defendant, who was sent to examine the crop, said afterwards, and states, without objection, what he stated before seeing it, and that afterwards he asked what the damage was likely to be, the portion of the answer responsive to the question is immaterial, and the rest of the answer cannot now be objected to.-Coates v. Harvey, (Super. Ct. Buf.) 5. 10. Though, on trial of an action by an attorney retained by a voluntary association against a receiver afterwards appointed, proof of services rendered after the appointment of the receiver was made, without objection, a refusal to grant a new trial will be reversed on appeal.-Beneville v. Whalen, (C. P. N. Y.) 20. New York could not try an action for waste 11. The objection that the city court of under the Code will not be considered on appeal, where the point was not raised at the trial.-Purton v. Watson, (City Ct. N. Y.) 661. 12. An order in an action for divorce, reone of the attorneys, will not be reviewed ferring to a referee certain charges against on appeal, after the death of the attorney. -Beadleston v. Beadleston, (Sup.) 815. 13. On appeal to the general term of the city court of New York from an order denying a new trial, errors may be reviewed, though not excepted to. -Richmond v. Brewster, (City Ct. N. Y.) 400. 14. The point that a counter-claim was |