Statement of the Case.

JOHN MCCLELLAND, RESPONDENT, v. GEORGE REMSEN, SHERIFF OF KINGS COUNTY, APPELLANT.

Partnership-Any Partner may secure Creditor.

Either member of a firm has a right to secure a creditor thereof by a transfer of partnership property, or to give a chattel mortgage for that purpose.

APPEAL from Supreme Court. The action was for trespass in seizing goods of the Plaintiff. The Defendant claimed to justify under a judgment and execution in favor of William F. Howe, against William McClelland and Elizabeth Hasluck, alleging the property seized belonged to one or both of the Defendants in the execution.

The cause was tried at the Kings Circuit, before Mr. Justice Lott, and resulted in a verdict for the Plaintiff of $394.55.

It appeared on the trial that, on the 1st of February, 1860, or prior thereto, Elizabeth Hasluck, a married woman, formed a partnership with William McClelland, in the liquor business, in Brooklyn, and that they conducted it in the firm-name of William McClelland & Co. On the 2d of June, 1860, they were indebted to the Plaintiff, John McClelland, in the sum of $357, for liquor and cigars sold and delivered to the firm.

On that day William McClelland, in the name of the firm, executed an instrument transferring to John McClelland the goods and other property of the firm, upon the trust that he should convert the same into cash, and, after satisfying this debt of $357, with interest, and the charges and expenses incident to the assignment, should pay over the balance of the net proceeds to the firm. Attached to the instrument was the bill, the payment of which it was intended to secure. Some weeks afterward, the bill remaining unpaid, the Plaintiff went to the store, demanded and received possession of the goods, and locked them up. Subsequently, an execution was delivered to the Defendant, who seized the property as that of the assignors. The judgment under which it was issued was confessed by Mrs. Hasluck, and she assumed to confess it for McClelland as well as herself.

Opinions by PORTER and GROVER, JJ.

The judge held that the assignor was not justified, and directed a verdict for the Plaintiff, to which the Defendant excepted.

This decision was sustained at General Term, in the Second Judicial District, and the Defendant appealed to this Court.

N. F. Waring for Appellant.

James Troy for Respondent.

PORTER, J.—It was the right of either member of the firm to secure the Plaintiff, as one of its creditors, by a transfer of partnership property (Mabbett v. White, 2 Kernan, 443; Graser v. Stellwagen, 25 N. Y. 315).

The assignment, in this instance, was in the nature of a mortgage. It did not divest the entire title, but left a residuary interest in the assignors, which could be reached by their other creditors. Its primary purpose was to secure the payment of the debt, and the trust to account for the surplus was purely incidental. Such a trust is not within the condemnation of the statute, and such a reservation is not unlawful (Leitch v. Hollister, 4 Comstock, 211; Curtis v. Leavitt, 15 New York, 141; Dunham v. Whitehead, 21 id. 131.)

The judgment of the Supreme Court should be affirmed.

GROVER, J.-No grounds were stated upon which the motion for nonsuit was made. Hence no question arising upon that motion can be entertained in this Court. Nothing was lost by the omission, as the only possible grounds were, that one partner could not dispose of the entire stock of the firm to secure or pay a debt; and that the transfer to the Plaintiff was fraudulent and void on its face.

The first of these questions was decided by this Court against the Defendant in Mabbett v. White (2 Kern. 443), and the last in Leitch v. Hollister et al. (4 Com. 211).

All the judges concurring.

Judgment affirmed.

JOEL TIFFANY,

State Reporter.

Statement of the Case.

CHARLES FREDERICK RUSSELL, APPELLANT, v. WILLIAM H. RUSSELL AND OTHERS, RESPONDENTS.

Will-Executor-Trustee-Power to sell Real Estate.

Where the testator bequeathed and devised all his estate to his wife during her life, or widowhood, with remainder to his four children, and afterwards by codicil authorized his wife to sell and dispose of his real and personal estate, or any part of it, as she should deem most expedient for the best interest of all his legatees, held, that this did not authorize her to deed certain real estate to one of the children, in payment of a debt due him from the estate.

LABAN RUSSELL, the father of the Plaintiff, and of the Defendants William II. Russell, Mary Ann Jewett, and Laban G. Russell, departed this life in the month of September, 1842, seized and possessed of real estate in the town of Rye, in Westchester county.

He had previously made a will, dated 18th April, 1833, by which he gave all his estate to his wife during her life or widowhood, with remainder to his said children, and, in case of the death of either, to his or her issue, and appointed his wife and his son, William H. Russell, executors.

Subsequently, and on the 6th of September, 1842, he made a codicil to his will, by which he gave the following direction: "I do hereby will and direct that my said beloved wife Mary, my executrix in my said last will and testament named, shall have full power and sole authority, at any and at all times, in her discretion, to sell and dispose of my said real and personal estate, or any part thereof, at public or private sale, as she shall deem most expedient and for the best interest of all my legatees in my said last will and testament named, giving and granting my said executrix full power to convey the same, by deed or otherwise, as she may be advised is most effectual and correct to vest the title to the same in the purchaser or purchasers thereof."

The said will and codicil were proved before the surrogate of Westchester county on the 14th day of November, 1842, and letters testamentary thereon were on the same day granted to Mary

Statement of the Case.

Russell alone, who, thereupon, assumed the execution of said will and codicil.

On the 9th of March, 1843, the said Mary Russell made and executed a deed to her son William H. Russell, who, at that time, although named as executor with her in the will, had not qualified or acted as such, by which she conveyed to him a piece of the land at Rye, of which the testator died seized, containing fifteen acres of land, more or less.

The consideration expressed in the deed was $3,000, and consisted, as found by the Justice who tried the issues in the action, "of moneys to that (and a greater) amount due to the said William H. Russell from the said testator at the time of his decease, which remained unpaid at the time of the execution of the said deed, and the claims for which have not been barred under the Statute of Limitations, and was applied, by mutual consent, in satisfaction of such consideration."

William H. Russell qualified as executor on the 6th day of October, 1862.

The testator left personal property to the amount of $3,800, real estate to the value of $15,000, and no debts except that to William H. Russell, the Defendant.

The said Mary Russell departed this life on the 22d day of April, 1855, and in October, 1857, this action was commenced by the Plaintiff, one of the heirs and devisees of the said Laban G. Russell, for the purpose of setting aside the above-mentioned deed and the subsequent conveyances.

The said William H. Russell and his wife, and the other heirs and devisees of the said Laban G. Russell, together with Joseph Dean, in whom the title to the premises had been vested, and who subsequently reconveyed to the said William H. Russell, who is now the owner thereof, are made parties Defendant.

The Justice at Special Term dismissed the complaint; the Supreme Court, at General Term, affirmed the judgment thereon, and the Plaintiff now appeals to this Court.

Jesse C. Smith for Appellant.

Henry C. Murphy for Respondent.

Opinion by HUNT, J.

HUNT, J.-By his will, executed April 18th, 1833, the testator gave all his real and personal estate to his wife, during her life or widowhood, with remainder to his four children, and named his wife and his son William as executors.

By a codicil of September, 1842, the testator gave power to his wife, Mary Russell, "to sell and dispose of my real estate, or any part thereof, at public or private sale, as she shall deem most expedient, and for the best interest of all my said legatees, in my

said will named."

By the expression "legatees," in the codicil, the testator intended to designate his four children whom he had named in the body of the will as those to whom he "devised and bequeathed" the residue and remainder of his estate, real and personal, after the death of his wife. In the execution of this power of sale the widow had no interest.

It was to be executed as she should deem expedient, not for her own benefit or advantage, but for the best interest of those entitled to the estate after her death, viz. the testator's four children, described by him as his legatees. The income only belonged to her, and the corpus of the estate belonged to the children exclusively.

It was a general power in trust in the widow (1 R. S. 732, S$ 77, 79, 94, 106).

Was the power well executed by the conveyance of a portion of the testator's real estate to one of his sons, in satisfaction of a debt due to him from the testator? The executrix had no power or control over the real estate in her character of executrix.

There was personal property enough for the payment of the testator's debts, without calling upon his real estate, and the real estate was not liable to that purpose until the personal had been exhausted.

It was not liable at any time, except upon the presentation of a petition to the surrogate, alleging the insufficiency of the personal estate, and asking the application of the real estate to that purpose.

Of such an application all parties interested in the real estate