would have been accorded to the word heirs, that the word "natural" should not be permitted to affect the meaning which would have been accorded to the word heirs if used alone.

The word heirs when used by a testator to indicate the beneficiary of a bequest of personal property must be interpretated as equivalent to the term "next of kin " in the absence of anything pointing to same other interpretation as more consonant to the testator's intention.

A decedent's widow is neither his heir nor his next of kin.

Upon the accounting herein two questions have arisen. First, as to the true construction of the third article of the will hereinafter quoted, and the second as to whether the widow is entitled to be reimbursed under the provisions of the second article of the will, also hereinafter quoted, for the payment by her of a $2,000 mortgage upon her dwelling house in this city.

Decedent died in May, 1885, leaving as his last will an instrument which was executed in July, 1882. In Nov., 1884, he married one Christina Tems, to whom by the first article of the will he has bequeathed a legacy of $5,000. Mrs. Sinzheimer survived her husband and as admimistratrix c. t. a. of his estate is now accounting before the surrogate. The first question which arises is as to the true construction of the third article in the will, the language of which is as follows: "All the rest, residue and remainder of my property, both real and personal, I give, devise and bequeath to the following parties, namely: $5,000 to Katie Tems, and the balance to my natural heirs." Now, who are his nat

ural heirs? No children were born of his marriage. He left him surviving no ancestor, descendants, brothers, sisters, nephews or nieces. So far as appears his only next of kin at the date of his will and on the day of his death was his aunt Laura Levinger.

Frazer & Minor, for admr. John E. Brodsky, special guardian.

Held, There can be no doubt that if testator had given his residuary estate (which consists wholly of personalty) to his "heirs" instead of his "natural heirs" this aunt would have been entitled thereto to the exclusion of all other persons. The recent decision of the Court of Appeals in Tillman v. Davis, 95 N. Y., 17, has conclusively established that the word heirs, when used by a testator to indicate the beneficiary of a bequest of personal property, must be interpreted as equivalent to the term "next of kin" in the absence of anything pointing to some other interpretation as more consonant to testator's intention. And that a man's widow is neither his heir nor his next of kin has been repeatedly asseverated by the courts of this State. 3 Edw. Ch., 251; 43 Barb., 147; 67 N. Y., 387; 72id., 312.

Held further, That there being nothing in the context of the will, and nothing so far as appears in the circumstances of testator or the state of his family, from which it can be inferred or suspected that by his use of the word "natural" he designed either to enlarge or restrict the meaning

which would have been accorded to the word heirs standing by itself, I think that Laura Levinger is entitled as testator's only next of kin to his entire residuary estate.

In reference to the question as to whether Miss Tems is entitled to be reimbursed for the sum of $2,000 to satisfy a mortgage upon her dwelling situate in New York City, upon which there was then subsisting two mortgages, one for $8,000 and the other for $2,000, which $2,000 mortgage had been paid off by her, such question depends upon the construction to be

Whether Miss Tems borrowed the $2,000 or found it, or received it as a gift of the testator, or otherwise obtained it, is therefore immaterial.

The smaller of the two mortgages was in fact discharged before testator's death, and so far as concerns that mortgage the situation for which he made contingent, testamentary provision has ceased to exist.

Opinion by Rollins, S.

AUCTION SALE.

testator's will, which is in these words: "I hereby order and direct my executors, in case my said friend Christina Martha Tems retains the ownership of the house and lot now owned and occupied by her at the time of my decease, to pay and fully discharge the two mortgages, one of $8,000 and the other of $2,000 now liens upon the said house and lot, or any balance of either or both, and to fully free, release and discharge said property therefrom and to satisfy such mortgages."

Held, That the portion of the foregoing provision of the will which I have italicized is inconsistent with any other interpretation than this: that to the extent that the mortgages in question were a lien upon the house and lot at the time of the testator's death, and to that extent only, are his executors authorized to apply all or part of the sum of $10,000 for discharging the incumbrance upon such property.

TERM.

Walsh, respt., v. Meyer, applt.
Decided Dec. 6, 1886..

Upon an auction sale if the seller violates the agreement, either by omitting to show a good title in due time, or by refusing to execute the conveyance, the vendee may maintain an action against the auctioneer to recover the deposit without giving him notice of the vendor's default, but interest thereon is so recoverable only from the time of a demand thereof from the auctioneer, and a refusal by him to return it. The expenses of the vendee cannot be recovered from the auctioneer.

Appeal by defendant from judgment of District Court of New York City for 9th judicial district.

Action to recover amount of deposit paid by plaintiff to defendant, the auctioneer, upon the purchase by plaintiff of certain real property at public auction, and also expenses of searching title, etc., upon the ground that title was not given as agreed.

M. H. Regensburger, for applt.
James Flynn, for respt.

Held, That if the seller violates the agreement, either by omitting to show a good title in due time, or by refusing to execute the conveyance, the vendee may maintain an action against the auctioneer to recover the deposit, but not the expenses or interest; or against the vendor, to recover the interest and expenses as well as the deposit, and in some cases for the loss of the bargain. Chitty Con., 11th Am. ed., 426. The auctioneer is a stakeholder between the parties, and, in strictness, an action may be maintained against him to recover the deposit without giving him notice of the vendor's default.

De

Id. The right to recover interest from the auctioneer was at one time doubted, but such a right exists where the auctioneer has refused to return the deposit after a demand has been made upon him for it. 71 N. Y., 370. In the State of New York, therefore, the liability of the auctioneer for interest upon the demand from the time of his refusal to return it to the purchaser is not to be doubted. fendant in this case was liable for the deposit and for no more, because there is no evidence that the return of the deposit was demanded. A demand of the deed was proved, and plaintiff was referred to the vendor's attorney, but no demand of the deposit was shown. Interest upon the deposit was not, therefore, recoverable. The District Court erred in allowing plaintiff to recover his expenses from the auctioneer. This is too clear to require argument. It is highly probable that plaintiff could have been com

Vol. 25-No. 8.

pelled to accept the conveyance if the vendor had chosen to avail himself of the remedy that an action for specific performance would have afforded him, but he has not sought relief in equity, and his rights are not now before us for determination.

Judgment reduced to the amount of the deposit-$102, with costs, making in all $119.50, and for that amount affirmed, without costs of the appeal.

Opinion by Van Hoesen. J.; Daly, J., concurs.

ASSIGNMENT FOR CRED-
ITORS. TITLE.

N. Y. COURT OF APPEALS.
Kip et al., exrs., applts., v.
Hirsch, respt.

Decided Dec. 7, 1886.

In 1840 one D. made an assignment for creditors which was recorded and included certain real estate. Shortly thereafter a mortgage thereon was foreclosed, the assignee not being made a party, and the premises bought in. D. lived thirty years and the assignee twenty years thereafter and it did not appear that the assignment was acted on or any claim made to the real estate thereunder. Held, That under the circumstances the presumption is that the purposes for which the trust was created have ceased and the title reverted to D. or those claiming under him. Chapter 545, Laws of 1875, is applicable to assignments made before as well as after its passage.

This was an action for the specific performance of a contract for the purchase of certain lots in the city of New York. Defendant claimed that the title offered was defective. It appeared that in June, 1835, K., plaintiff's testator,

owned the lots in question; that he conveyed them to one D., the latter giving back a mortgage for a portion of the purchase money. In May 1840, D. made a general assignment for the benefit of creditors to one S. He transferred to the assignee, with his other property, the lots in question. The assignment provided that, when the trust was fully executed the assignees should return the surplus, if any, to the assignor. This assignment was recorded in June 1840.

In August, 1840, K. commenced an action for the foreclosure of his mortgage. D., the mortgagor, was made a party defendant, but the assignee was not. On the sale under the decree in the forclosure suit, K. bid off the premises, and a master's deed was executed to him December 30, 1840, which was recorded February 23, 1841. The lots were vacated and remained so until 1867, when plaintiffs leased them for nine months, the lessee agreeing to pay as rent the taxes on the lots. Plaintiffs were authorized by the will of K. to make such a lease. The lessee took possession of the lots, fenced them in, and occupied them for storing lumber until 1883, when he relinquished his business to his sons who are now in the occupation of the lots. In 1875 defendant entered into an agreement with plaintiffs for the purchase and sale of the lots.

It appeared upon the trial that the assignee of D. lived twentyfive years after the assignment was made to him, and that the assignor lived thirty years. It did

not appear that any of the property embraced in the assignment was ever sold, or that the assignment was ever acted upon in any manner. No successor in the trust was ever appointed in the place of S. and it did not appear that he ever claimed or asserted any title to the lots in question, or that any creditor of D. or any other person has ever made any claim under the assignment or attempted to enforce the trust.

Isaac L. Miller, for applt.

John H. V. Arnold, for respt. Held, That the circumstances of the case are such as to create a legal presumption that the purposes for which the trust was created have ceased and that consequently the estate of the trustee has ceased and the title reverted to D. or those claiming under him. 1 R. S., 730, § 67.

Chapter 545 of the Laws of 1875, purports to amend § 67 of the statute of Uses and Trusts, 1 R. S., 730, which provides that "when the purposes for which an express trust shall have been created shall have ceased, the estate of the trustee shall also cease," by adding "and where an estate has been conveyed to trustees for the benefit of creditors, and no different limitation is contained in the instrument creating the trust, such trust shall be deemed discharged at the end of twenty-five years from the creation of the same, and the estate conveyed to trustee or trustees and not granted or conveyed by him or them, shall revert to the grantor or grantors, his or their heirs or deviseesros.

persons claiming under them, to the same effect as though such trust had not been created."

Held, That this statute is applicable to the present case and is also applicable to assignments made before as well as after its passage. 2 Sandf. Ch., 293.

McCahill v. Hamilton, 20 Hun, 388, distinguished.

Order of General Term, reversing judgment in favor of plaintiffs, reversed, and judgment of Special Term affirmed.

Opinion by Rapallo, J. All concur, except Miller, J., dissenting.

Facts sufficient to authorize the granting of an order of arrest under subd. 1, § 550, of the Code.

This action was brought to recover the possession of certain chattels with damages for their detention and depreciation. The sheriff seized a portion of the chattels and returned that the remainder had been assigned, concealed, removed or disposed of. An order of arrest was granted upon affidavit which tended to establish that the goods purchased by defendant was obtained by fraud of plaintiff's firm. Plaintiff's affidavit shows that between Sept. 1 and Oct. 21, 1885, his firm sold to defendant goods and merchandise upon his representation that he was doing a good business, which

the affiant declared to be untrue, "which appears by the affidavits annexed," and to which he refers. These affidavits showed that twenty-three days after the last sale by plaintiff's firm to defendant the latter made a general assignment to one of his sons, with a fraudulent preference in favor of a son residing in England of $4,220; that defendant's assets at the time of the assignment were $7,212.25 and his liabilities about $14,308,17. The ground of arrest as stated in the order is that specified in subd. 1, §550, of the Code of Civil Procedure.

William J. Gaynor, for applt.
Abram Kling, for respt.

to

Held, No error; that the affidavits presented a case justifying the judge granting the order in deciding that the cause of arrest under said subd. 1 was made out; that it was reasonable to infer that defendant's representations plaintiff's firm, that he was doing a good business, upon the faith of which the goods were sold, were false; that the fraud in the purchase of the goods justified the further inference that the inability of the sheriff to find the goods and take them on the requisition was in consequence of a fraudulent disposition or concealment of the goods by defendant in pursuance of his original fraud, with intent that they should not be taken and to deprive the true owner of the benefit thereof. 70 N. Y., 92.

Order of General Term, affirming order denying motion to vacate order of arrest, affirmed.

Per curiam opinion. All concur.