Shackleton agt. Hart. T. FROTHINGHAM, for respondent. G. E. MUMFORD, for appellants. JOHNSON, Justice. The action before the justice arose upon contract. It was for the recovery of money only, and the amount claimed did not exceed $100. I do not see, therefore, why the justice had not jurisdiction to entertain and try the action. There is nothing, I think, in section 190 or 191 of the Code to affect the jurisdiction of a justice, in actions upon these instruments. The undertaking in question is clearly a contract, obligation, or liability, within the meaning of § 91 of the Code, and the action was not , barred at the time it was commenced. The case of Rooney agt. The Second Avenue Railroad Co., (18 N. Y. R. 368,) Russel agt. Meacham, (16 Howard P. R., 193,) and Wilkins agt. Batterman, (4 Barb., 47,) are to the effect that the client cannot, by any settlement, release, or discharge, executed to the other party, deprive his attor ney of his lien for his costs, nor of his right to enforce such lien by action in the name of his client on the debt thus sought to be released or discharged, to recover such costs. The principle that the attorney is the equitable assignee of the judgment, to the extent of his claim for costs, would clearly, as it seems to me, extend to the undertaking of bail, when assigned by the sheriff to the plaintiff in the action. The lien extends not only to the judgment, but to all the securities for its payment and satisfaction in the hands of the client, and the latter could no more be released or discharged to the prejudice of the attorney's lien, than the former. The assignment of the principal debt, carries with it as a matter of law, all the collateral securities for its payment in equity as well as in law. The action was properly brought, and the judgment rightfully rendered, and must be affirmed. Wilson agt. Wilson. SUPREME COURT. JAMES WILSON agt. MARY L. WILSON and others. It was well settled, previous to the Revised Statutes, that the words "die without issue," and "die without leaving issue," (respecting which there was no distinction,) in a devise of real estate, imported an indefinite failure of issue, and not the failure of issue at the death of the first taker. And since the statute of 1786, abolishing estates tail, the result has been that a limitation of a future contingent estate upon failure of issue, is void, both as a contingent remainder and an executory devise; and the first devisee takes the whole estate. But courts and judges have been astute to find, and prompt to seize, any reason in a will for applying a different construction, and for holding that the testator not only intended, but legally manifested his intention that the devise over should take effect upon the death of the first taker. In this case the codicil to the will upon which the questions arose, after reciting the devise in the will, was in these words: "Now I do order that if my son Thomas M. Wilson shall decease without leaving any male issue, the real estate given to my son Thomas shall be disposed as follows; and I do dispose thereof, that his widow and child shall have the use of one-half of the real estate as long as she remains his widow, and after her death or marriage it shall be equally divided between my son James, my daughter Elizabeth, and my son Thomas M. Wilson's child or children." Held, that from the language of the will (codicil) the inference was plain that the testator intended that the estate limited upon failure of male issue of Thomas M. Wilson, should vest successively at the death of Thomas. Also held, that Thomas M. Wilson took a defeasible fee in the whole of said real estate, and that upon his death without male issue, and the death of his widow, the (whole) land passed by executory devise to James Wilson, Elizabeth Park, and the children of Thomas M. Wilson in fee. Elizabeth Park, after the death of the testator, executed and delivered a release and quit-claim to Thomas M. Wilson, of all claim, or right of claim, which she then had, or which might thereafter arise to her, or to her heirs or assigns, to the real estate in question by virtue of the codicil. Held, that this release of her contingent right, to one who had the entire and exclusive possession and present estate, brought it within the case of Miller agt. Emans, (19 N. Y. R., 384,) and vested in Thomas M. Wilson all her contingent right and interest, which afterwards became a vested estate in him. Held also, that this contingent right and interest was devisable and assignable by Thomas M. Wilson, (and which was actually mortgaged by him in his lifetime,) and on the death of Thomas M. Wilson his children took, as his heirs, and not as purchasers, the fee of the one-third of the lands to which Elizabeth Park would have been entitled but for her release. Wilson agt. Wilson. Second District General Term, November, 1860. Present, LOTT, BROWN and EмOTT, Justices. THIS action was brought for the partition of a farm of land in the county of Westchester. It comes up by separate appeals by the plaintiff and several of the defendants, from different portions of the judgment, which was rendered at special term, upon the report of a referee, who had been directed to take proof of the title and of the other matters stated in the pleadings. JAMES W. WILSON, for plaintiff. DAVID P. HALL, for defendants, Wilsons and Reynolds. COE & WALLIS, for defendant Mead. By the court, EMOTT, Justice. The referee reported both his conclusions of fact, and the evidence taken before him, and this evidence is part of the case upon which the appeals were argued. There were some questions of fact raised and discussed at the argument before us, and I have examined the pleadings and proofs with reference to these, as well as the other points in the case. It may perhaps admit of some doubt whether we can consider these questions, or the correctness of the conclusions of the referee or the court at special term, as far as they were purely conclusions of fact. But waiving any such difficulty, if there be any, I am satisfied with the results obtained in these particulars in the court below, and I shall assume and will proceed to state the facts as I understand them to be, and to have been found at the trial. 1. The lands in question were owned by Thomas Wilson, who died in June, 1812, leaving a will made on the 28th day of April in that year, by which he devised all his lands to his son, Thomas M. Wilson, in fee, charged with the Wilson agt. Wilson. payment of his debts, with a provision for his wife, and with a legacy to another son, James Wilson; but also leaving a codicil to this will, made on the 2d day of May, 1812. This codicil recites the devise in the will, and proceeds: "Now I do order that if my son, Thomas M. Wilson, shall decease without leaving any male issue, the real estate given to my son Thomas shall be disposed as follows, and I do dispose thereof that his widow and child shall have the use of one-half of the real estate as long as she remains his widow, and after her death or marriage, it shall be equally divided between my son James, my daughter Elizabeth, and my son Thomas M. Wilson's child or children." When the testator, Thomas Wilson, died, he left surviving him, his son, Thomas M. Wilson, and James Wilson, who is the plaintiff in this action, and a daughter, Elizabeth Park. Thomas M. Wilson entered under the devise and continued in possession of the lands until his death. He died in 1824, without male issue, but leaving a widow, who died in 1857, and three daughters, Mary L. Wilson, Ann Elizabeth Wilson, and Sarah S. Reynolds, who are still living, and are made defendants to this action. Elizabeth Park also survived her brother, Thomas M. Wilson, and died in 1856, leaving a son, a daughter, and the children of a third daughter, all of whom are parties to the suit. The first question in the cause arises out of these facts: It is what estate Thomas M. Wilson took under the codicil, and what are the rights of the parties to this action representing the devisees named in the codicil in consequence? 2. It further appears that in June, 1812, after the death of the testator, Thomas Wilson, Elizabeth Park executed and delivered a release and quit-claim to Thomas M. Wilson of all claim or right of claim which she then had, or which might thereafter arise to her or to her heirs or assigns, to the real estate in question by virtue of the codicil. Upon HARVARDY LAW SCHOOL LIBRARY. Wilson agt. Wilson. this, question is raised whether the instrument was effectual to pass any, and what, estate to the releasee. 3. It further appeared that on the 1st day of July, 1823, Thomas M. Wilson mortgaged to James Wilson, the present plaintiff, 24 acres, part of the land now in question, to secure the payment of $1561.25, which mortgage was duly recorded on the 17th of February, 1825. After Thomas M. Wilson's death, James Wilson, in consideration of $1525.71, paid to him by Richard Mead, assigned this indenture of mortgage to said Mead. The assignment contained no covenants, but it purported to assign, transfer, and set over, not only the mortgage, but "the land and premises described therein." Richard Mead is dead, and his administrator, Thomas A. Mead, is made a defendant, and asserts and asks payment of this mortgage. Whether it can be enforced, and against what interest or estate of either of the parties to the action, is the other principal question before us. I will proceed to consider these three questions. There are some other points of controversy of a minor character, to which it may be necessary to allude. It is well settled that the words "die without issue," and "die without leaving issue," in a devise of real estate, import an indefinite failure of issue, and not the failure of issue at the death of the first taker. It has sometimes been attempted to make a distinction between the words "without issue," and "without leaving issue," but the attempt has not been successful. (See Duentry agt. Duentry, 6 T. R., 307; Penny agt. Agar, 12 East, 253; Romilly agt. James, 6 Taunt., 263; and Forth agt. Chapman, 1 P. Wms., 663.) The case of Patterson agt. Ellis, in the court of errors of this state, (11 Wend., 259,) asserts the doctrine broadly, and is conclusive against any distinction between "without issue" and "without leaving issue," as to their legal effect before the Revised Statutes. Chief justice PARSONS declares the rule in the same way in Ide agt. Ide, (5 Mass. R., 500.) Since the statute De Donis, (13 Edw. I.,) and the statute |