it would be most oppressive to the complainants, in that it is particularly destructive of the quiet and comfort of their homes, with large and inevitable diminution in the value of their property rights.

For these reasons, it will be ordered that the injunction pendente lite shall be made permanent until final decree, and that the cause will proceed as usual in equity.

WARD v. WARD et al.

WARD et al. v. SAME.

(Circuit Court, S. D. New York. August 17, 1904.)

1. MORTGAGE-FORECLOSURE SALE-NECESSITY OF CONFIRMATION.

Under the law of New York, the failure to procure an order confirming a referee's report of sale in a foreclosure suit does not invalidate the purchaser's title, where he has paid the consideration and received a deed from the referee.

2. SAME-VALIDITY-FAILURE TO RECord.

The fact that a mortgage covering both personal and real estate was not filed does not invalidate it as between the parties under the law of New York.

3. SAME MORTGAGEABLE INTEREST-ESTATE IN EXPECTANCY.

A testator left his residuary estate in trust, the interest therefrom to be paid to a beneficiary during her life, and the principal at her death to be divided equally between three cousins of the testator; the children of either, should he die before the termination of the trust, to take in his place, and, should either die leaving no children, the estate to be divided between those surviving or their children. Held, that each of the cousins took a contingent estate in expectancy, which, under the New York statute (1 Rev. St. pp. 722-725, pt. 2, art. 1, c. 1, tit. 2), which provides that "expectant estates are descendible, devisable, and alienable in the same manner as estates in possession," was alienable, and could be mortgaged, although from the nature of the contingency attached neither descendible nor devisable.

4. SAME.

One of the cousins mortgaged his interest, which was sold under foreclosure, and bought by another of the cousins, who died intestate before the termination of the trust; the mortgagor, however, surviving. Held, that while the estate in expectancy of the purchaser, under the will, was terminated by his death, the interest acquired by his purchase was not affected thereby, but passed to his heirs, and became vested in them on the termination of the trust during the life of the mortgagor. 5. SAME PRESUMPTION OF VALIDITY.

Where the devisee of a contingent interest in an estate gave a mortgage thereon to the executor, which was foreclosed by regular proceedings, and the interest sold to another devisee, who gave a like mortgage thereon to the executor, it must be presumed, in the absence of evidence to the contrary, that the transaction was bona fide, and divested the first mortgagor of his interest, although no reason for it appears.

6. ESTOPPEL-EXPRESSION OF OPINION.

The expression of an opinion by one of the parties, on a question of law, where both parties have full knowledge of the facts, cannot create an estoppel.

2. See Chattel Mortgages, vol. 9, Cent. Dig. § 152; Mortgages, vol. 35, Cent. Dig. § 199.

7. DOWER-ESTATE IN EXPECTANCY.

Under the law of New York a wife has no dower rights in lands in which her husband has only an estate in remainder expectant upon a life estate.

In Equity.

These actions were tried and argued together. They both relate to the same subject-matter and the main controversy is identical in each. The first action is for a distribution of personal property; the second for a partition of real estate under the will of Henry H. Ward upon the termination of a trust estate created by said will. The defendant Evarts is not personally interested in the controversy and is joined as defendant in the first action because he holds the personalty as trustee or custodian. The city of New York is made a defendant in the second action in order to bar any lien for taxes. The vital question, therefore, is how the property, real and personal, shall be divided between Charles H. Ward and wife, complainants, and Maria E. G. McK. Ward and Caroline C. Ward.

Henry M. Ward, for complainants.

William G. Wilson, for defendants Ward.

Allen W. Evarts, in pro. per.

COXE, Circuit Judge (after stating the facts). Henry H. Ward died August 27, 1872, leaving a will, executed July 31, 1872, whereby, after making certain minor devises and bequests, he left all the rest, residue and remainder of his estate to his executors to hold during the life of his cousin Eliza Ann Partridge in trust, the income to be paid to her during her life. The will then proceeds as follows:

"Upon the termination of such trust by the death of said Eliza Ann Partridge, I give, devise and bequeath the capital of such trust estate, as the same shall then exist, unto my three cousins, William G. Ward, Charles H. Ward and John Ward, sons of my deceased uncle William G. Ward, in equal shares, in fee simple and absolutely, and to their heirs, representatives and assigns forever; if, at such time of the termination of the trust, either of my said three cousins, William, Charles and John, shall be dead leaving issue who shall then be living, such issue shall take in his place, per stirpes and not per capita, absolutely, and in fee simple, the shares of the capital of such trust estate, which he would have taken if living, and if, at the time of such termination of the trust, either of my said cousins, William, Charles and John, shall be dead and there shall be no issue of him at such time surviving, the share of the capital of said trust estate which would have gone to the one so dead, if he had been living, shall pass in equal shares in fee simple and absolutely, to the then survivors or survivor of my said three cousins, William, Charles and John, and to the then surviving issue, if any, of any of them who may have previously died, leaving issue surviving until such period, such issue to take by representation and per stirpes and not per capita, and only the share which their ancestor would have taken if he had survived the termination of the trust; and I give, devise and bequeath the capital of said trust estate, upon the termination of the trust by the death of my said cousin, Eliza Ann Partridge, in accordance with the foregoing provisions."

Miss Partridge died September 19, 1902, John Ward died, intestate, August 9, 1896, without issue, his brothers William and Charles being his only heirs at law and next of kin. He left little available property, hardly enough to pay his debts. William G. Ward, a widower, died, intestate, January 16, 1901, leaving as his sole

¶7. Estates subject to dower, see note to Black v. Elkhorn Min. Co., 3 C. C. A. 316.

surviving issue his two daughters, the defendants, Maria E. G. McK. Ward and Caroline C. Ward. Charles H. Ward, the complainant, was the only survivor of the three cousins of the testator mentioned in the will. When, therefore, the trust terminated September 19, 1902, the persons entitled, under the terms of the will, to the capital of the trust estate were Charles H. Ward and the issue of William G. Ward-Maria E. G. McK. Ward and Caroline C. Ward-half going to the complainant and half to the defendants Ward; one-fourth to Maria E. G. McK. Ward and one-fourth to Caroline C. Ward. Charles E. Butler and the complainant were appointed executors and trustees under the will. Charles E. Butler died May 1, 1897. On September 1, 1897, the complainant having resigned as executor, Prescott Hall Butler was appointed trustee. He died in 1901, and the defendant Allen W. Evarts was appointed sole trustee or custodian of the trust funds.

The defendants insist that the complainant is not entitled to take under the will for the reason that all his interest in the estate, real and personal, was transferred to John Ward and that his sole interest in the estate is as heir at law and next of kin of John Ward. The transfer was accomplished in the following manner: On October 24, 1874, William G. Ward and Charles H. Ward, for the purpose of securing their indebtedness to the estate of Henry H. Ward, executed their bond to Charles E. Butler, as executor, in the sum of $50,000, conditioned for the payment of $25,000 and interest, and as security for the payment of this bond each, severally, gave a mortgage covering all his interest in the estate of Henry Hall Ward "both real and personal of every kind and description whatsoever and wheresoever situated which belonged to the said Henry H. Ward deceased at the time of his death." These mortgages were duly foreclosed and the property was bid in by John Ward for $49,000, who received from the referee a deed covering all the real and personal property "whereof Henry H. Ward died seised or possessed, and which constitutes a part of his residuary estate." This property is specifically described in the deed.

The court has not the slightest doubt that this mortgage was properly and regularly foreclosed after personal service of the summons upon Charles H. Ward and that he had general knowledge, at least, of the foreclosure and sale. To prove this it is only necessary to refer to two pieces of testimony.

First. On July 1, 1887, he wrote a note to the attorneys in the foreclosure suit, informing them that one of the defendants "in the above suit holds a judgment against another Charles H. Ward." This note is entitled in the foreclosure suit and imports knowledge by the writer of the character of the action.

Second. In an account of Charles E. Butler and Charles H. Ward, as executors, appears the following item:

"1888 January 23 Bond and Mortgage of John Ward, secured by premises covered by mortgages made by Charles H. Ward and William G. Ward foreclosed $25,000"

Over his own signature the complainant acknowledged that he had examined this account, found it to be correct and ratified and ap

proved it. The failure to procure an order confirming the referee's report of sale does not invalidate the title of the purchaser at the sale who has paid the consideration and received the referee's deed. Peck v. Knickerbocker Ice Co., 18 Hun, 186; Fort v. Burch, 6 Barb. 76; Fuller v. Van Geesen, 4 Hill, 173. The fact that the mortgage covered both the realty and personalty belonging to the trust and was not filed, does not render it invalid as between the parties. Jones v. Graham, 77 N. Y. 628; Briggs v. Oliver, 68 N. Y. 336. The $49,000 bid at the sale was paid as follows: John Ward executed a bond for $25,000 principal, secured by a mortgage upon the interests which he had just acquired. There was a cash payment of $902.84 and the remainder, being for interest, which under the terms of the will belonged to Miss Partridge, was discharged by her acknowledgment of the receipt from Mr. Butler, as executor and trustee, of the sum of $23,156. On November 13, 1896, after the death of John Ward, William G. Ward conveyed and assigned to the defendants Maria E. G. McK. Ward and Caroline C. Ward "all the share or shares, estate, right, title and interest whatsoever which the said William G. Ward now hath or at any time hereafter shall or may have or in any wise become entitled to have and receive, of, in or to any or all of the estate and property of every name, nature and description whatsoever, and wheresoever situated, which belonged to Henry H. Ward." On the same day William G. Ward executed an assignment to the said defendants of his share in the personal property which belonged to John Ward. William G. Ward was appointed administrator of John's estate and, on April 18, 1898, he, individually, and as administrator, and Charles H. Ward, entered into an agreement with Miss Partridge by which her claim against John, amounting, with interest, to $45,275, was adjusted by conveying to her certain real and personal property previously belonging to John, she releasing his estate and William and Charles Ward from all claims which she had against any of them by reason of the indebtedness of John.

The clause of the will above quoted provides that the gift to William, Charles and John shall take effect upon the termination of such trust by the death of Miss Partridge and that the property to be disposed of shall be the capital of the trust as it exists at the date of such death. If, prior to this date, either William, Charles or John shall die leaving issue, such issue shall take in his place per stirpes. This provision is applicable to the defendants, William, their father, having died before Miss Partridge. So far as they are concerned the situation is precisely as it would have been had the will mentioned. them by name. William could transfer his own interest in the estate, but whether the party receiving the transfer realized anything or not depended upon the contingency of William outliving Miss Partridge. He could not by transferring his interest deprive his daughters of their interest, which vested in them absolutely at the death of Miss Partridge, provided their father had died previously.

The will further provides that if, at the death of Miss Partridge, either William, Charles or John shall be dead, leaving no issue, the share of the deceased shall go to the survivor or survivors. It seems

plain, therefore, that neither of the cousins could touch a dollar of the estate until the trust was terminated by the death of the beneficiary. When that event took place, if all were living, each would take a third; if two were living each would take a half; and if but one survived he would take it all. As before stated, if nothing had occurred to disturb the status of the parties, the estate would have been divided equally; Charles taking one-half and the daughters of William one-half. But until the event occurred which made it possible to dispose of the residuary estate no vested interest was created but only an expectant contingent interest.

Was this interest alienable? The complainant insists that during the lifetime of Miss Partridge the disposition of the estate upon the termination of the trust was wholly conjectural, William, Charles and John having mere possibilities that they would acquire interests if they were living when Miss Partridge died. Their interests, it is said, were neither descendible, divisable nor alienable; they could not be mortgaged and hence no title passed by the foreclosure of the mortgage. The court is unable to accede to this view. There seems to be little controversy as to the proposition that the interests of the three cousins under the will were contingent remainders. By the statutes of New York estates, as respects the time of their enjoyment, are divided into estates in possession and estates in expectancy, the latter being subdivided into future estates and reversions. "A future estate is an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination, by lapse of time or otherwise, of a precedent estate created at the same time." A future estate dependent on a precedent estate, may be transferred by the namɩ remainder. A future estate may be either vested or contingent. It is contingent when the person to whom or the event upon which it is limited to take effect remains uncertain. "Expectant estates are descendible, devisable and alienable, in the same manner as estates in possession." 1 Rev. St. N. Y. pp. 722-725, part 2, art. 1, c. 1, tit. 2. It may well be that the estate in question is not devisable for the reason that the event which makes the will operative-the death of the testator-defeats the estate. For the same reason it is not descendible; it remains an expectant estate only during the life of the beneficiary and, as such an estate, it cannot descend because the death of the intestate, before that of the beneficiary, terminates it. But why may it not be alienated? Such an estate has a tangible present value. It may be sold and property which may be sold may be mortgaged. Can there be any doubt, if the complainant had sold his interest for a valuable consideration, that the vendee would now be entitled to complainant's share? If he had mortgaged or pledged his interest would not the purchaser on foreclosure be entitled to the same right? The trust estate was in esse and the beneficiary was well advanced in years. The only risk the purchaser of such an interest would incur would be the chance that the beneficiary would outlive the remainderman. In the due course of nature this would be an unlikely event. Like a life policy the complainant's interest possessed an actual existing value. To hold that it was incapable of