McLaughlin agt. The Mayor.

N. Y. COMMON PLEAS.

PHILIP MCLAUGHLIN, plaintiff, agt. THE MAYOR, &c., OF NEW YORK, defendants.

Substitution of assignee of plaintiff after his death - Motion for, must be on notice to personal representatives of deceased plaintiff - Practice.

Where a plaintiff had, pending the action, transferred his interest and died, and after his death his assignee, on notice to the defendant alone, moves to be substituted as plaintiff, the motion should be denied for want of notice to the personal representatives of the deceased plaintiff.

General Term, November, 1879.

APPEAL by defendant from order of special term on motion of John Dowling, assignee of plaintiff, to be substituted as plaintiff after death of plaintiff.

Charles P. Miller, for appellant.

E. P. Wilder, for respondent.

J. F. DALY, J.-Plaintiff died during the pendency of the action, and John Dowling, who claimed to be assignee of the cause of action by assignment made during plaintiff's lifetime, upon notice to the defendant only, moved, at special term, for an order that he be substituted as plaintiff. Objection was made that no notice of the application had been given to the personal representatives of the deceased plaintiff. The order was granted and defendant appealed.

In the case of Franklyn agt. Graham, reported as a note to section 756 of the new Code (1877), and originally reported in 1860 as a note to section 121 of the former Code, it was held by this court at special term (chief justice DALY), that "where a plaintiff had, pending the action, transferred his VOL. LVIII

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McLaughlin agt. The Mayor.

interest and died, and after his death his assignee, on notice to the defendant alone, moved to be substituted as plaintiff, the motion was denied for want of notice to the personal representatives of the deceased plaintiff." This decision has been followed for over eighteen years in this court, and has not been, as far as we have any knowledge, questioned in this or any other court of the state. The practice so established seems to be eminently proper. It is intended as a check upon any possible fraud upon the estate of the deceased plaintiff, and upon defendant. If the alleged assignment were a forgery defendant, after paying the judgment obtained by the assignee, would be compelled to pay the claim over again when the action was revived by the personal representatives of the deceased and prosecuted to judgment. In that aspect of the case defendant has a vital interest in the inquiry as to the genuineness of the alleged transfer. On the other hand, should the pretended assignee exhaust the ability of defendant by his execution the estate of the deceased plaintiff would be afterwards deprived substantially of the debt.

Defendant has, therefore, an interest in the order, and the representatives of the deceased a still greater interest. It may be said that defendant had the right, upon the motion, to produce proofs of the want of genuineness of the paper, but greater protection is afforded defendant by notice to the representatives of the alleged assignor of the application for substitution of the assignee, for such notice would work an estoppel against the estate in favor of defendant. There might be delay to the assignee because of failure to apply for letters of administration on the estate of the deceased plaintiff, but an assignee who elects to prosecute the action in the name of his assignor takes the chances of inconvenience and delay arising from the death of the latter.

Order reversed.

C. P. DALY, C. J., and BEACH, J., concur.

Matter of Dowd.

MONROE COUNTY SURROGATE'S COURT.

In the Matter of the estate of PATRICK DOWD, deceased.

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Will-what will work a revocation - who may not claim as residuary legatees- Effect of alteration of the interest of the testator in the property devised after execution of the will.

Where a testator sells and conveys all of his real estate previously devised by him, his estate and interest therein is wholly divested, and not merely altered.

At common law the least alteration of the interest of the testator in property devised or bequeathed by him, would work a revocation of the devise or bequest of such property.

An alteration of the nature or character of the interest of the testator in the property devised or bequeathed does not, under the provisions of sections 42 and 48 of 2 Revised Statutes, 64, in all cases work a revocation in respect to such property.

But where the testator, in his lifetime, wholly divests himself of the property previously devised or bequeathed, the revocation is, as to such property, as complete and perfect as it was at common law.

A testator, by his will, bequeathed to his wife all his personal estate and the use for life of all his real estate, and authorized his executors, together with his wife, to sell and convey his real estate, and to deposit the avails in a savings bank, his wife to receive, from time to time, while any of the fund so deposited remained, sufficient for her support during her life, and if any of the avails of such sale remained after paying such expenses, together with her funeral expenses, and the reasonable expenses of the executors, the balance to be paid to St. Mary's Roman Catholic Church and the Roman Catholic orphan asylum. The testator, in his lifetime, and after the execution of the will, sold all his real estate and deposited the avails in the Rochester Savings Bank, such avails constituting his entire estate. His wife died after this sale, but before the death of the testator :

Held, that the corporations named in this will could not take as legatees, the subject-matter of the devise and bequest to them being totally destroyed or changed by the voluntary act of the testator in his lifetime.

The whole scheme of the testator's testamentary disposition was essentially varied by him, and the law presumes a revocation in consequence of the change in his family and property. The fact that he deposited

Matter of Dowd.

the avails of the sale of his real estate in the savings bank is not sufficient to rebut this presumption of law.

Held, further, that the Roman Catholic orphan asylum could not claim as residuary legatees.

When it is manifest, from the expressed words of the will, that the gift of the residuum is confined to the residuum of a particular fund, or description of property, or to some certain residuum, the legatee will be restricted to what is thus particularly given.

As in this case if the wife had survived there would have been no residuum as she would have taken the whole as personal estate; she having died before the testator, and the entire estate, by his subsequent act, having become personal property, and being such, at the time of his death, it is to be treated as a lapsed legacy, and in the absence of a legatee capable of taking under the will pro tanto revoked, it must be distributed to the next of kin, under the statute of distribution.

Is the provision of the act of 1848 as to devises and bequests for charitable uses repealed by the act of 1860, "relating to wills" (Chap. 360, Laws of 1860), quære.

September, 1879.

PATRICK DOWD, late of Brighton, Monroe county, made his will March 20, 1863. He bequeathed to his wife, Elizabeth Dowd, all his personal estate, and the use, for life, of all his real. He authorized his executors, "together with his wife," to sell and convey his real estate, and to deposit the avails of the sale in one of the savings banks in Rochester. He directs that his wife should be entitled to receive from his executors, from time to time, while any of the fund so deposited remained, sufficient thereof, to procure her a convenient and comfortable place to live, together with all necessary food and clothing, and all necessary medical attendance, and other necessaries in sickness. He then provided as follows:

"If any of the avails of such sale or sales of my real estate shall remain, after paying the expenses above mentioned, together with the funeral expenses of my said wife Elizabeth, then, after such reasonable expenses as my said executors shall be entitled to, then, when such money shall be received by my said executors, they shall pay to St. Mary's Roman Catholic Church, in the city of Rochester, such sum as shall

Matter of Dowd.

remain, not exceeding $100 in amount, and if any more of such money remain, the same shall be paid over to the Roman Catholic orphan asylum in the city of Rochester."

The testator, in his lifetime, after the execution of the will, sold all his real estate, and deposited the avails in the Rochester Savings Bank. These avails constitute his entire estate.

His wife, Elizabeth Dowd, died after this sale, but before the death of the testator. The next of kin of the testator are his nephews and nieces. They claim his entire estate, after payment of debts and expenses of administration. The Roman Catholic church, and Roman Catholic orphan asylum claim to take such residue, respectively, as legatees under the will.

MONROE, Surrogate. By the sale and conveyance of the testator of all his real estate, previously devised by him, his estate and interest therein was wholly divested, and not merely altered.

At common law, the least alteration of the interest of the testator in property devised or bequeathed by him, would work a revocation of the devise or bequest of such property (4 Kent, 529). Our Revised Statutes specially define what shall be an express revocation, and what shall be an implied, or, in other words, what shall be "deemed" a revocation (Sections 42-48, 2 Revised Statutes, 64). An alteration of the nature or character of the interest of the testator, in the property devised or bequeathed, does not, under the provisions of these sections, in all cases, work a revocation in respect to such property.

But, I apprehend, there is no doubt, where the testator, in his lifetime, wholly divests himself of the property previously devised or bequeathed, the revocation is, as to such property as complete and perfect as it was at common law (Beck agt. McGillis, 9 Barb., 35; Brown agt. Brown, 16 Barb., 572; Vandermark agt. Vandermark, 26 Barb., 418; Adams agt. Wynne, 7 Paige, 97; McNaughton agt. McNaughton, 34 N. Y., 201).