Matter of Dowd.

The will speaks as of the time of the death of the testator; the rights of all devisees, legatees, heirs and next of kin hinge upon that period of time. If the wife had survived the testator, she would have taken the entire estate, all the personal, and all the real converted into personal property before the death of the testator. She would have been sole legatee of "all the testator's personal estate." I think the corporations named in the will cannot take as legatees. The subject-matter of the devise and bequest to them was wholly destroyed or changed by the voluntary act of the testator in his lifetime. The whole scheme of his 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 the avails of the sale of his real estate in the savings bank is not sufficient to rebut this presumption of law (See Adams agt. Wynne, 7 Paige, 99). It is quite possible that, but for this revocation by the act of the testator, the ulterior devise to these corporations would have taken effect on the failure of the primary devise, by the death of the wife in the lifetime of the testator (McLean agt. Freeman, 70 N. Y., 81). But I am unable to see how, unless by a republication after su revocation, their claim to the bounty of the testator under this will can prevail.

The Roman Catholic orphan asylum cannot, I think, successfully claim, as residuary legatees, for another reason. When it is manifest, from the express 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. In this case the thing given is gone (Dayton on Surrogates, page 440). If the wife had survived there would have been no residuum; she would have taken the whole as personal estate. As she died before the testator, and the entire estate, by his subsequent act, became personal property, and was such at the time of his death, it is to be treated as a lapsed legacy, and, in the absence of a legatee

Matter of Dowd.

capable of taking under the will pro tanto revoked, I think it must be distributed to the next of kin, under the statute of distribution.

This view of the case renders it unnecessary to decide the interesting question involved in the construction of the statutes on the subject of devises and bequests to charitable uses.

The change in the phraseology in the latter statute (Section 1, chap. 360, Laws of 1860) by substituting the word "having" for "leaving," found in section 6, chapter 319, Laws of 1848, is noticeable, although it seems to have been ignored by the court of appeals in Lefevre agt. Lefevre (59 N. Y., 434). In that case the majority of the court apparently hold that the provisions of the earlier statute on this subject, limiting the time for a valid devise or bequest to benevolent and charitable societies, were not repealed by the latter act. Section 2 of the act of 1860 repeals all laws inconsistent with the act, and the court characterizes only that part of the proviso of section 6 of the act of 1848, which forbids the taking, by the corporations named, of a devise in a will not made more than two months before death, as being in harmony with the act of 1860. The fair inference is that all other provisions of the earlier act are inconsistent with the latter.

The word "having" may be construed as referring only to the time of the execution of the will without involving the serious consequences urged by way of argument against such interpretation, inasmuch as under sections 43 and 44 Revised Statutes above referred to, the subsequent marriage of a testator, followed by birth of children, or a subsequent marriage alone of an unmarried testatrix, are to be "deemed" revocations of their wills respectively. It seems, therefore, not unreasonable to infer that the legislature intended by the act of 1860 to designate the time of the execution of a will as the period of time when the restrictions therein provided for were to be operative. This impression is fortified by the fact that the earlier act was passed, not so much for the protection of families as to cater to a popular sentiment then

Bliss agt. Molter et al.

quite prevalent. As already stated, however, we do not deem it necessary to pass upon this question in this aspect not yet, so far as we are aware, sharply presented to the court of last

resort.

SUPREME COURT.

ARCHIBALD M. BLISS agt. JULIUS F. MOLTER et al.

Affidavit made before an attorney in the action-discharge of attachment.

The acknowledgment of an undertaking, executed in pursuance of the provisions of the Code of Civil Procedure, and the justification of the sureties therein, written thereon, are essential parts of the instrument (Code of Civil Procedure, secs. 810, 812).

The affidavits of justification of sureties, on an undertaking given to discharge an attachment, are affidavits made in the action and, if made before the attorney for the defendant, the undertaking will not be approved or the discharge granted.

Special Term, December, 1879.

In this action plaintiff obtained an attachment against the property of the defendants. Defendants having filed an undertaking made a motion to discharge the attachment. Plaintiff opposed the motion on the ground that the undertaking had been executed before defendants' attorney as notary. In reply, defendants' attorney claimed that the undertaking had been executed before he appeared in the action as attorney.

D. S. Ritterband, for defendant, for the motion.

Adolphus D. Pape, for plaintiff, opposed.

VAN VORST, J.-The rule excluding from consideration. affidavits taken in an action before the attorney therein, as a

Bliss agt. Molter et al.

notary or commissioner, is an old one (Taylor agt. Hatch, 12 Johnson, 340; Anon., 4 How., 290).

The execution of this undertaking was acknowledged, and the justification of the sureties was had, before the person whose name is indorsed on the undertaking as attorney for the defendant.

The acknowledgment of the undertaking and the justification of the sureties are essential portions of the instrument (Code of Civil Procedure, secs. 810, 812).

The affidavits were taken in a pending action, the one in which the undertaking is entitled.

Although the attorney did not indorse his name on the paper, until after the affidavits were taken, still it is quite apparent that, in preparing the undertaking, he was acting as the attorney for the defendant and would not be likely to indorse his name until after the completion of the instrument.

The application for the discharge of the attachment can only be made after the defendant has appeared, and upon such application he gives the undertaking (Code, secs. 687, 688).

Vary agt. Godfrey (6 Cowen, 587) implies that if the person was retained as attorney, that would be sufficient to exclude the affidavit.

It is suggested that these cases are all before the Code, but I do not understand that the Code has made a different rule in this regard.

It is only right that the plaintiff should have a good undertaking in substance and in form, as its effect is to release the lien of his attachment.

The undertaking cannot be approved, and the order discharging the attachment, which is asked, cannot be granted and a new undertaking must be made.

Christman agt. Rumsey.

U. S. CIRCUIT COURT

JOHN CHRISTMAN and P. ELMENDORF SLOAN agt. JOHN A. RUMSEY and MOSES RUMSEY.

Patent-Driven wells — Grounds for a reissue of a patent — what is not new matter within the meaning of the statute― Though one claim is invalid it does not prevent a recovery on the other.

Where the petition for a reissue of a patent sets forth that by reason of an insufficient or defective specification the original patent is inoperative or invalid, and that such error arose from inadvertence, accident or mistake, and without any fraudulent or deceptive intention: Held, that this is a ground of reissue set forth in section 53 of the act of July 8, 1870 (16 U. S. Stat. at Large, 205), and the decision as to the fact set forth belongs exclusively to the commissioners of patents, and his action conclusively establishes that fact.

Where it was urged that the original specification stated the invention to be "a new and improved pump filter," while the reissue specification states the invention to be "an improvement in pump filters;" it being also contended that the original claims the whole and nothing else, while the reissue makes two claims, neither of which claims the whole or includes the collar or head-piece "B," and that the first two sentences above cited in the reissued specification are new matter in violation of section 53 of the act of 1870:

Held, that these two sentences cannot properly be called "new matter" within the meaning of the statute. They do not at all relate to the description or operation of the apparatus of the patentee. Held, further, that the difficulties stated to have existed in prior pointed pump tubes may well have been known to the patentee from hearsay, although the first driven well point he may have seen was his own. As the patentee's pump tube is a pointed pump tube, and as it does overcome such difficulties in clogging in such a tube, the presumption is 'that it was made to overcome such difficulties, and, therefore, that such difficulties had been heard of by the patentee.

It is further urged that the original specification describes the invention as applicable to all pump filters, whether used upon points for driven wells or upon well tubes used in open wells or cisterns or streams, while the reissued specification introduces new matter by confining the invention to driven wells only. It is contended that in this there is a violation not only of the provisions of section 53 of the act of 1870 in regard to