would have been accorded to the word ural heirs? No children were born heirs, that the word “natural” should

of his marriage. He left him surnot be permitted to affect the meaning which would have been accorded to the viving no ancestor, descendants, word heirs if used alone.

brothers, sisters, nephews or The word heirs when used by a testator to nieces. So far as appears his only indicate the beneficiary of a bequest of

next of kin at the date of his will personal property must be interpretated as equivalent to the term “next of kin”

and on the day of his death was in the absence of anything pointing to

his aunt Laura Levinger. same other interpretation as more conso- Frazer & Minor, for admr. nant to the testator's intention.

John E. Brodsky, special guarA decedent's widow is neither his beir nor

dian. his next of kin.

Held, There can be no doubt Upon the accounting herein two that if testator had given his requestions have arisen. First, as siduary estate (which consists to the true construction of the wholly of personalty) to

his third article of the will hereinafter heirs" instead of his “natural quoted, and the second as to heirsthis aunt would have been whether the widow is entitled to entitled thereto to the exclusion be reimbursed under the provis- of all other persons. The recent ions of the second article of the decision of the Court of Appeals will, also hereinafter quoted, for in Tillman v. Davis, 95 N. Y., the payment by her of a $2,000 17, has conclusively established mortgage upon her dwelling house that the word heirs, when used in this city.

by a testator to indicate the beneDecedent died in May, 1885, ficiary of a bequest of personal leaving as his last will an instru- property, must be interpreted as ment which was executed in July, equivalent to the term “next of 1882. In Nov., 1884, he married kin” in the absence of anything one Christina Tems, to whom by pointing to some other interpretathe first article of the will he has tion as more consonant to testabequeathed a legacy of $5,000. | tor's intention. And that a man's Mrs. Sinzheimer survived her hus- widow is neither his heir nor his band and as admimistratrix c. t. a. next of kin has been repeatedly of his estate is now accounting be- asseverated by the courts of this fore the surrogate. The first ques- State. 3 Edw. Ch., 251; 43 Barb., tion which arises is as to the true 147; 67 N. Y., 387; 72 id., 312. construction of the third article in Held further, That there being the will, the language of which is nothing in the context of the will, as follows: “ All the rest, residue and nothing so far as appears in and remainder of my property, the circumstances of testator or both real and personal, I give, de- the state of his family, from vise and bequeath to the following which it can be inferred or susparties, namely: $5,000 to Katie pected that by his use of the word Tems, and the balance to my nat- “natural” he designed either to ural heirs.” Now, who are his nat- enlarge or restrict the meaning which would have been accorded Whether Miss Tems borrowed to the word heirs standing by it- the $2,000 or found it, or received self, I think that Laura Levinger it as a gift of the testator, or otheris entitled as testator's only next wise obtained it, is therefore imof kin to his entire residuary estate. material. In reference to the question as

The smaller of the two mortto whether Miss Tems is entitled | gages was in fact discharged beto be reimbursed for the sum of fore testator's death, and so far as $2,000 to satisfy a mortgage upon concerns that mortgage the situaher dwelling situate in New York tion for which he made contingent, City, upon which there was then testamentary provision has ceased subsisting two mortgages, one for to exist. $8,000 and the other for $2,000, Opinion by Rollins, S. which $2,000 mortgage had been paid off by her, such question depends upon the construction to be

AUCTION SALE. placed upon the second article of N. Y. COMMON PLEAS. GENERAL testator's will, which is in these

TERM. words: “I hereby order and direct

Walsh, respt., v. Meyer, applt. my executors, in case my said friend Christina Martha Tems re

Decided Dec. 6, 1886.. tains theownershipof the house and Upon an auction sale if the seller violates lot now owned and occupied by her the agreement, either by omitting to at the time of my decease, to pay

show a good title in due time, or by re

fusing to execute the conveyance, the and fully discharge the two mort

vendee may maintain an action against gages, one of $8,000 and the other

the auctioneer to recover the deposit of $2,000 now liens upon the said without giving him notice of the vendor's house and lot, or any balance of

default, but interest thereon is so recov.

erable only from the time of a demand either or both, and to fully free,

thereof from the auctioneer, and a rerelease and discharge said proper- fusal by him to return it. The expenses ty therefrom and to satisfy such of the vendee cannot be recovered from

the auctioneer. mortgages.”

Held, That the portion of the Appeal by defendant from judgforegoing provision of the will ment of District Court of New which I have italicized is incon- York City for 9th judicial district. sistent with any other interpreta

Action to recover amount of detion than this: that to the extent posit paid by plaintiff to defendant, that the mortgages in question were

the auctioneer, upon the purchase a lien upon the house and lot at the by plaintiff of certain real property time of the testator's death, and to at public auction, and also expenses that extent only, are his executors of searching title, etc., upon the authorized to apply all or part of ground that title was not given as the sum of $10,000 for discharging agreed. the incumbrance upon such prop- M. H. Regensburger, for applt. erty.

James Flynn, for respt.

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Held, That if the seller violates pelled to accept the conveyance if the agreement, either by omitting the vendor had chosen to avail himto show a good title in due time, self of the remedy that an action or by refusing to execute the con- for specific performance would veyance, the vendee may main- have afforded him, but he has not tain an action against the auction sought relief in equity, and his eer to recover the deposit, but not rights are not now before us for the expenses or interest; or against determination. the vendor, to recover the interest Judgment reduced to the amount and expenses as well as the depos- of the deposit - $102, with costs, it, and in some cases for the loss making in all $119.50, and for that of the bargain. Chitty Con., 11th amount affirmed, without costs of Am. ed., 426. The auctioneer is a the appeal. stakeholder between the parties, Opinion by Van Hoesen. J.; and, in strictness, an action may Daly, J., concurs. be maintained against him to recover the deposit without giving him notice of the vendor's default.


ITORS. TITLE. Id. The right to recover interest from the auc ioneer was at one N. Y. COURT OF APPEALS. time doubted, but such a right ex

Kip et al., exrs., applts., v. ists where the auctioneer has re

Hirsch, respt. fused to return the deposit after a demand has been made upon him

Decided Dec. 7, 1886. for it. 71 N. Y., 370. In the State In 1840 one D. made an assignment for cred

itors which was recorded and included of New York, therefore, the lia

certain real estate. Shortly thereafter a bility of the auctioneer for interest

mortgage thereon was foreclosed, the asupon the demand from the time of

signee not being made a party, and the his refusal to return it to the pur- premises bought in. D. lived thirty years chaser is not to be doubted. De

and the assignee twenty years thereafter

and it did not appear that the assignment fendant in this case was liable for

was acted on or any claim made to the real the deposit and for no more, because estate thereunder. Held, That under the there is no evidence that the return circumstances the presumption is that of the deposit was demanded. A

the purposes for which the trust was

created have ceased and the title reverted demand of the deed was proved,

to D. or those claiming under him. and plaintiff was referred to the Chapter 545, Laws of 1875, is applicable to vendor's attorney, but no demand assignments made before as well as afof the deposit was shown. Inter

ter its passage. est upon the deposit was not, there- This was an action for the spefore, recoverable. The District cific performance of a contract for Court erred in allowing plaintiff to the purchase of certain lots in the recover his expenses from the auc-city of New York. Defendant tioneer. This is too clear to require claimed that the title offered was argument. It is highly probable defective. It appeared that in that plaintiff could have been com- June, 1835, K., plaintiff's testator,

Vol. 25-No. 8.

owned the lots in question; that he not appear that any of the propconveyed them to one D., the lat. erty embraced in the assignment ter giving back a mortgage for a was ever sold, or that the assignportion of the purchase money. In ment was ever acted upon in any May 1840, D. made a general as- manner. No successor in the trust signment for the benefit of cred- was ever appointed in the place of itors to one S. He transferred to S. and it did not appear that he the assignee, with his other prop- ever claimed or asserted any title erty, the lots in question. The as to the lots in question, or that any signment provided that when the creditor of D. or any other person trust was fully executed the assig- has ever made any claim under nees should return the surplus, if the assignment or attempted to enany, to the assignor. This assign- force the trust. ment was recorded in June 1840. Isaac L. Miller, for applt.

In August, 1840, K. commenced John H. V. Arnold, for respt. an action for the foreclosure of his Held, That the circumstances of mortgage. D., the mortgagor, was the case are such as to create a made a party defendant, but the legal presumption that the purassignee was not. On the sale un- poses for which the trust was creader the decree iv the forted have ceased and that conseclosure suit, K. bid off the quently the estate of the trustee premises, and a master's deed was has ceased and the title reverted executed to him December 30, to D. or those claiming under him. 1840, which was recorded February 1 R. S., 730, $ 67. 23, 1841. The lots were vacated Chapter 545 of the Laws of and remained so until 1867, when 1875, purports to amend s 67 plaintiffs leased them for nine of the statute of Uses and Trusts, months, the lessee agreeing to pay 1 R. S., 730, which provides that as rent the taxes on the lots. “when the purposes for which an Plaintiffs were authorized by the express trust shall have been creawill of K. to make such a lease. ted shall have ceased, the estate of The lessee took possession of the the trustee shall also cease,” by lots, fenced them in, and occupied adding “and where an estate has them for storing lumber until 1883, been conveyed to trustees for the when he relinquished his business benefit of creditors, and no differto his sons who are now in the oc- ent limitation is contained in the cupation of the lots. In 1875 de- instrument creating the trust, fendant entered into an agreement such trust shall be deemed diswith plaintiffs for the purchase charged at the end of twenty-five and sale of the lots.

years from the creation of the It appeared upon the trial that same, and the estate conveyed to the assignee of D. lived twenty- trustee or trustees and not granted five years after the assignment or conveyed by him or them, shall was made to him, and that the as- revert to the grantor or grantors, signor lived thirty years. It did his or their heirs or deviseesros, 220;


persons claiming under them, to the affiant declared to be untrue, the same effect as though such “which appears by the affidavits. trust had not been created."

annexed,” and to which he refers. Held, That this statute is applic- These affidavits showed that able to the present case and is also twenty-three days after the last applicable to assignments made sale by plaintiff's firm to defendbefore as well as after its passage.

ant the latter made a general as2 Sandf. Ch., 293.

signment to one of his sons, with McCahill v. Hamilton, 20 Hun, a fraudulent preference in favor 388, distinguished.

of a son residing in England of $1,Order of General Term, revers

that defendant's assets at the ing judgment in favor of plain- time of the assignment were $7,tiffs, reversed, and judgment of 212.25 and his liabilities about Special Term affirmed.

$14,308,17. The ground of arrest Opinion by Rapallo, J. All as stated in the order is that speciconcur, except Miller, J., dissent-fied in subd. 1, $550, of the Code ing.

of Civil Procedure.

William J. Gaynor, for applt. ARREST. AFFIDAVIT.

Abram Kling, for respt. · N. Y. COURT OF APPEALS.

Held, No error ; that the affi

davits presented a case justifying Fitch, respt. McMahon, the judge granting the order in deapplt.

ciding that the cause of arrest unDecided Dec. 17, 1886.

der said subd. 1 was made out; Facts sufficient to authorize the granting of

that it was reasonable to infer that an order of arrest under subd. 1, $ 550, of defendant's representations to the Code.

plaintiff's firm, that he was doing This action was brought to re- a good business, upon the faith of cover the possession of certain which the goods were sold, were chattels with damages for their false; that the fraud in the purdetention and depreciation. The chase of the goods justified the sheriff seized a portion of the chat- further inference that the inability tels and returned that the remain of the sheriff to find the goods der had been assigned, concealed, and take them on the requisition removed or disposed of. An order was in consequence of a fraudulent of arrest was granted upon affi- disposition or concealment of the davit which tended to establish goods by defendant in pursuance that the goods purchased by de- of his original fraud, with intent fendant was obtained by fraud of that they should not be taken and plaintiff's firm. Plaintiff's affi- to deprive the true owner of the davit shows that between Sept. 1 benefit thereof. 70 N. Y., 92. and Oct. 21, 1885, his firm sold to Order of General Term, affirmdefendant goods and merchandise ing order denying motion to vacate upon his representation that he order of arrest, affirmed. was doing a good business, which Per curiam opinion. All concur.

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