Dederick agt. Fisk. the state courts, pending a decision upon an appeal which has been taken to the supreme court of the United States, in the case of Doyle agt. Sharpe, and which, it is claimed, will there be soon determined. If the decision, which the plaintiff obtained at the Ulster circuit, was right, very clearly the motion ought to be granted. The defendant, relying upon several decisions in the federal courts, had seized the property in question in behalf of creditors of a bankrupt firm, intending to litigate the bona fides of the plaintiff's title. If the state courts have held that a marshal holding such a warrant as the defendant held was in no position to raise the question of fraud, or to dispute the title of the claimant, it would seem that justice requires when a cause is now pending on appeal to the federal court, which will present that question, to stay an action pending in the state court. This would be just to all parties; to the defendant, because he ought not to be barred from his defense, if he has one, and to the plaintiff, also, who would thus be saved. from a heavy expenditure, if the law as maintained in the state courts is reversed. On the present motion, however, it is now maintained by the plaintiff's counsel (it is not the same counsel who appeared for the plaintiff at the circuit) that the court held wrong at the circuit, and, as the reported case in 74 N. Y. shows, the court of appeals never decided that the question of fraud could not be litigated by a marshal seizing property as the defendant has seized it. A careful reading of the full report of Doyle, and others, agt. Sharpe induces me to believe that he is right in his view. The question of fraud was litigated upon that trial (see page 155), and the submission thereof to the jury was approved. The judge, on page 156, says: "The question whether the plaintiffs were bona fide purchasers, for a valuable consideration, and had possession on their own account, and for themselves, was one for the jury, and we are unable to see that it was improperly submitted to their consideration on the trial, by the judge in his charge. As they Dederick agt. Fisk. found for the plaintiff, their verdict is not the subject of review upon this appeal." And again, on page 159, he says: "If the views expressed are sound, then, the question as to the right of the plaintiffs was for the jury, and the judge committed no error in charging them that if Doyle, as a matter of fact, was in possession of the goods, claiming them as owner himself, that the plaintiffs were entitled to recover their value. The charge thus made presented the true construction to be put upon the statute and was entirely correct." It would seem from the opinion, construed by the light of these express declarations, that it had been claimed by the defendant, that as the warrant commanded him "forthwith to take possession, provisionally, of all the property and effects of the debtor, and safely keep the same until the further order of the court," he was absolutely protected in such seizure and that it was for the bankrupt court to adjudicate disputed questions of ownership. This proposition is probably the one which the learned judge combats, though the language separated from the rulings at the circuit, and from the expressed approval of the submission of the question of fraud to the jury, would seem to warrant the position taken by plaintiff's counsel at the circuit, and urged by the defendant on this motion, and also to justify the syllabus of the reporter to the case, as reported in 74 N. Y., which syllabus certainly justifies the objection and the ruling at the circuit. It matters not much, however, which view of the scope of the decision of the court of appeals is sound. It hardly rests with the plaintiff to now repudiate the soundness of a decision obtained in her behalf, and to defeat a motion made on the faith thereof. If the view taken at the circuit and based upon an imperfect report of a decision was wrong, and that case only decides what is herein stated, it is still obvious that a most important point remains to be settled by the federal The object and policy of the bankrupt law, as has frequently been urged, were to vest all questions concerning the estate of the bankrupt, and its distribution in the tribunal court. Dederick agt. Fisk. having jurisdiction of such proceedings by that act. If this be otherwise then state courts may decide what estate a bankrupt has for the federal courts to distribute, and thus really deprive them of their power to administer upon the assets, or by a claim of equal power to determine of what the estate consists, produce confusion by a collision of jurisdiction. We do not undertake to say where the power to decide conflicting claims of ownership of property arising upon the distribution of a bankrupt's estate should be lodged, whether in the state or national courts, or in either. Neither do we now decide whether, under the law as it existed, and irrespective of the decision of the court of appeals in Doyle agt. Sharpe, the bankrupt court alone had power to decide what property belonged to the estate it was invoked to distribute, or whether the state courts might or might not legally decide the same question; but we do say, however, that looking at the objects and purposes of the bankrupt act, and the provisions of the warrant issued by the district court of the United States in bankruptcy, that the marshal shall take possession of the property "provisionally and safely keep the same until the further order of the court;" that a grave question is presented whether the marshal is not absolutely protected in so doing, and that a case which presents such a question to the federal court submits a proposition worthy of grave attention. * * * As the case of Doyle and others agt. Sharpe, has been treated as one foreclosing all defense to this action, and as the court can see that the appeal in that case does present a grave question which may be decisive of the present action, and that such appeal is now pending in the supreme court of the United States, the decision of which tribunal must control, this action will be stayed until the first day of January next, to await the decision on such appeal. If the cause is not then determined, the defendant may apply for a further order. If the appeal is not prosecuted to a speedy hearing the plaintiff may apply for relief. The defendant must also stipulate to Mayer agt. McCune. take evidence of plaintiff or of any witness whose testimony she desires to perpetuate. Ten dollars costs of motion shall abide result of the action. N. Y. COMMON PLEAS. AGNES MAYER, individually and as executrix of the last will and testament of John M. Mayer, deceased, agt. JAMES McCUNE. estate Specific performance - Will-Power of executrix to sell or exchange real - How far testator's indebtedness an incumbrance and lien as affecting title to property sold by executrix. Where, in an action for the specific performance of a contract between the plaintiff and defendant for the sale and exchange of certain real estate, it appeared that the plaintiff was the owner in fee of the premises 437 West Thirty-ninth street, and assumed to convey the premises 412 West Fortieth street as executrix under the will of John M. Mayer; in said will the testator first directs the payment of his debts and then devises the premises last named to his wife, the plaintiff, for life or during widowhood, upon her death or remarriage the said premises were devised in fee to his surviving children or their issue. Full power was given to the plaintiff as such executrix at any time and on such terms as she might think satisfactory to sell, mortgage or lease the whole or any part of the testator's real estate, and to invest the proceeds of such sale in good and safe securities or purchase other real estate, to sell the said securities and real estate so secured or purchased, and to continue the said transfer or disposition of the real estate of said testator or the proceeds thereof as long, and to repeat the said operations as often as said executrix might think best and proper; provided, however, that the proceeds of such sale or other disposition of said real estate shall be considered real estate. It further appeared that a judgment had been recorded against the plaintiff, as executrix, as aforesaid, in an action commenced against the said John M. Mayer, deceased, in his lifetime, in whose place and stead the said executrix was substituted as defendant pendente lite. It was conceded that this judgment is still unpaid, and that the personal property of the deceased, in the hands of said executrix, does not exceed the sum of $150: Mayer agt. McCune. Held, that the objection that the plaintiff had no power to exchange the Fortieth street property is untenable. It would seem a fair and rational construction of a power as broad in its terms as the one contained in the will, to hold that it would authorize a direct exchange which would accomplish the result of a sale, and a purchase of other realty in a single transaction and carry into effect the obvious intention of the testator. Held, also, that the objection that plaintiff cannot give a warranty deed or sell the property in fee simple is equally untenable. She could certainly give a valid title under the power in the will and, if she saw fit, could give her personal warranty of the title. A purchaser has no right to expect from an executrix anything more than a covenant against her own acts, but if she contracts to give a covenant of warranty, and actually executes it, the covenant will be valid and she will be bound thereby. Held, further, that, the objection that her testator's indebtedness for the judgment, was an incumbrance and lien on the property for which it could be sold by creditors at any time within three years from November 7, 1877, to pay his debts is fatal to the action for specific performance. The power of sale in the will is not expressly for the purpose of paying debts and legacies. It does not even sanction the conversion of the real estate into personalty. It authorizes the executrix to reinvest the proceeds of the real estate at her pleasure and in her discretion; provided, however, that said proceeds, whatever the form they may assume, shall always remain realty, thus specially withholding the character of a personal fund accessible to creditors. Such proceeds could be followed only in equity, and, under the circumstances, it would seem that no bar or hindrance would exist to a creditor's application for a resale of the premises. Equity will not aid an effort to impair or destroy the legal remedies of creditors or sanction an attempt on the part of an executrix to vest individually in herself and mingle with her own property, real estate which, until her testator's debts are paid, is chargeable with a trust. Equity Term, May, 1880. THIS action was brought for the specific performance of a contract between the parties above named, dated February 11, 1880, for the sale and exchange of certain real estate in the city of New York. The defendant agreed to sell and convey to the plaintiff the house and lot known as 413 West Fiftieth street in said city, for the sum of $16,000, subject to a mortgage of $6,000. The plaintiff individually agreed to pay for |