THIRD DEPARTMENT, JUNE TERM, 1903. [Vol. 85. ing, the specification in the notice of appeal of an intention to bring up the intermediate orders for review is not effective for that purpose. (Code Civ. Proc. §§ 1301, 1358.) What has been said concerning the orders to show cause was made necessary by the alleged want of jurisdiction in the court to make the order appealed from. The order should be affirmed, with ten dollars costs and printing disbursements. All concurred. Order affirmed, with ten dollars costs and disbursements. THE PEOPLE OF THE STATE OF NEW YORK ex rel. BROOKLYN UNION ELEVATED RAILROAD COMPANY and Others, Relators, v. WILLIAM J. MORGAN, as Comptroller of the State of New York, Respondent. Redemption from a tax sale a purchaser at a mortgage foreclosure sale is a "holder of any mortgage." The term "holder of any mortgage," used in section 139 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1897, chap. 373), which authorizes the redemption of premises from a tax sale by "the holder of any mortgage which is duly recorded at the time of the sale," includes a purchaser at a mortgage foreclosure sale. CERTIORARI issued out of the Supreme Court and attested on the 21st day of August, 1901, directed to William J. Morgan, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in denying the application of Anson R. Flower and another, relators herein, to redeem lands from a sale by the respondent for unpaid taxes. The relator Flower, in March, 1899, purchased the lands in question upon a sale in foreclosure of a mortgage held by the relator the Central Trust Company. Thereafter the premises were conveyed by several mesne conveyances to the relator the Brooklyn Union Elevated Railroad Company. In November, 1895, the lands App. Div.] were sold by the Comptroller for unpaid taxes for the year 1892, much the larger portion to the State and other smaller portions to various individuals. The mortgage foreclosed was recorded before the assessment of such taxes. In April, 1899, Flower and the Central Trust Company applied by a petition filed with the Comptroller for leave to redeem the lands from such tax sale and offered and tendered to the Comptroller the full amount for which such lands were sold at said tax sale, together with all costs, interest and charges of every kind. The application was denied by the Comptroller on the ground that Flower was not "the 'holder' of a mortgage" within the meaning of the statute authorizing a redemption by "the holder of any mortgage" (Tax Law [Laws of 1896, chap. 908], § 139, as amended by Laws of 1897, chap. 373), and this writ was issued to review that determination. Charles A. Collin and William F. Sheehan, for the relators. John Cunneen, Attorney-General, and William H. Wood, for the respondent. CHESTER, J.: It is conceded that the time for redemption from this tax sale had not expired when the application to redeem and the tender of the full amount of money required for such redemption were made to the Comptroller. The law in force at the time authorized such redemption to be made by "the holder of any mortgage which is duly recorded at the time of the sale." (Tax Law [Laws of 1896, chap. 908], § 139, as amd. by Laws of 1897, chap. 373.) It is, therefore, entirely clear that if the mortgage had not been foreclosed, and the holder of the mortgage, the Central Trust Company, had made the application to redeem, such redemption would have been authorized and would have been within the express letter of the statute. Or if this mortgage had been assigned to Flower, who afterwards became the purchaser on the foreclosure sale, he would have been the holder of the mortgage, and entitled under the law to redeem. While under the letter of the law, and by a strict construction of it, he is not, after a purchase at a sale under a foreclosure of the mortgage, a holder of the mortgage, yet by virtue of such sale he becomes possessed of all of the rights, title and interest of the mortgagee in the premises. He even gets more than THIRD DEPARTMENT, JUNE TERM, 1903. [Vol. 85. this. Section 1632 of the Code of Civil Procedure provides that "a conveyance upon a sale made pursuant to a final judgment in an action to foreclose a mortgage upon real property * is as valid as if it was executed by the mortgagor and mortgagee, and is an entire bar against each of them." The effect of a foreclosure deed is to vest in the purchaser the entire estate of the mortgagor and mortgagee as of the date of the mortgage. (Rector, etc., Christ P. E. Church v. Mack, 93 N. Y. 488.) The equities in this case, it seems to me, are all with the relators. It has been held that a purchaser at a mortgage foreclosure sale, void as against the owner of the equity of redemption, becomes in legal effect assignee of the mortgage. (Townshend v. Thomson, 139 N. Y. 161. See also Green v. Mussey, 76 App. Div. 174.) But assuming that the foreclosure here was complete as to the persons entitled to be made parties to the foreclosure action, I think the purchaser at the sale should be deemed in equity to be the holder of the mortgage for the purposes at least of permitting him as such holder to have the benefit of the right to redeem from this tax sale under the circumstances presented here. This is simply giving to him the right which the mortgagee clearly had before the sale. The mortgagee has joined with him in this application, and I think the statute should not be construed to prevent the purchaser from having this right after the interests of the mortgagee in the mortgaged property have passed to the purchaser. I cannot bring myself to believe that the purpose of putting the words "holder of any mortgage" in the statute was intended by the Legislature to work such an injustice as would be accomplished here if after a foreclosure, when the right to redeem has not expired, the purchaser could not do what the mortgagee could have done in this respect before the foreclosure. The determination of the Comptroller should be reversed, and the Comptroller directed to grant the application of the relators to redeem from the tax sale, with fifty dollars costs and disbursements. All concurred. Determination of the Comptroller reversed, with fifty dollars costs and disbursements, and the Comptroller directed to grant the application of the relators. App. Div.] THIRD DEPARTMENT, JUNE TERM, 1903. In the Matter of the Judicial Settlement of the Accounts of JONATHAN M. COOLIDGE and LOUIS M. BROWN, as Executors of the Last Will and Testament of GEORGE W. LEE, Deceased. SARAH J. SNYDER and Others, Appellants, Respondents; HENRY A. HOWARD, as Administrator, etc., of NANCY HOLLAND, Deceased, Respondent, Appellant. Will-equitable conversion of real into personal property — residuary legatees held to take at the time designated for distribution and not at the time of actual distribution or when it was required by law. George W. Lee died May 7, 1901, leaving an estate valued at $300,000, upwards of $250,000 thereof consisting of personalty. By the 6th clause of his will he devised and bequeathed his residuary estate to trustees in trust to divide the same into four separate trust funds, one for the benefit of each of the following persons, viz., his brother, James Lee; his sister, Sarah Snyder; his sister, Nancy Holland, and his son, Forest T. Lee. The 6th clause also provided that the trust funds created for the benefit of the testator's brother and of his two sisters were to be sufficient in amount to yield each of the beneficiaries an annual income of $300, while the trust fund for the benefit of the son should include the balance of the residuary estate. The 7th clause of the will contained the following provision: "Any surplus net income arising from such trust fund during the life of the beneficiary (my brother or sister) over and above said sum of three hundred dollars ($300) annually shall, when ascertained, be added to the income of the trust fund to be designated for my said son and shall be disposed of in the same manner as is hereinafter provided for the disposition of the income from said trust fund to be designated for my son. Upon the death of the beneficiary (my brother or sister) for whom the trust fund shall have been designated, the principal of said trust fund shall be added to the principal of the trust fund to be designated for my said son, and thereafter shall be held, used and disposed of by the said trustees in the manner hereinafter provided for the disposition of the principal of the said trust fund to be designated for my son." By the 8th clause of the will, the testator directed the executors to apply to` the use of his son, out of the income of the trust fund created for his benefit, a sum not to exceed $1,500 annually. The clause further provides as follows: "Any surplus net income arising during the life of my said son, from the trust fund designated for him, over and above what may be paid to my son, or applied to his use, as provided in this and the next succeeding paragraph, shall be paid over by the said trustees (at least annually, and oftener if they deem it advisable) to my next of kin, exclusive of said Forest T. Lee, to whom in such case I give and bequeath the same, to be divided between them (if more than one) in shares between themselves according to the Statute of Distribution." THIRD DEPARTMENT, JUNE TERM, 1903. [Vol. 85. The 9th clause of the will provided: "I further anthorize and empower the said trustees (in case they shall at any time deem it advisable and for the best interests of my said son to do so) to transfer or pay over to him, at any time, or from time to time, the whole or any portion of the principal of the said trust fund so designated for him; and in such case I give, devise and bequeath to my said son, absolutely, so much of said trust fund as shall be so transferred or paid over to him by said trustees. Upon the death of my said son, the principal of said trust fund so designated for him (or so much thereof as shall not have been transferred to him), together with all income therefrom then in the hands of the said trustees or uncollected, shall be transferred and paid over by the said trustees to my next of kin to be divided between them (if more than one) in shares between themselves according to the Statute of Distribution; and I give, devise and bequeath the same to such next of kin, accordingly. The provisions in this paragraph contained providing for the final disposition of the principal of the trust fund to be designated for my son, shall be construed to apply to and regulate the disposition of the principal of the trust funds to be designated for my brother and sisters, as such last-mentioned trust funds may from time to time be added to the trust fund designated for my son." The 11th and 12th clauses of the will provided as follows: "Eleventh. I direct that the words trust fund' or 'trust funds,' as used in this instrument, shall be construed to include real estate as well as personal property, and that the words 'next of kin,' wherever used in this instrument, shall be construed to mean my lawful descendants or descendant, if any there shall be, to the exclusion of all my collateral relatives. I further direct that no person who shall at the time of my death answer the description of 'my next of kin' or my next of kin, exclusive of my son,' shall be deemed, by reason of that fact, to have acquired any vested right to share in the distribution of any portion of my estate, but the phrases above quoted shall be construed in each case as including only such persons as shall answer the description at the time of making the payment or distribution. "Twelfth. I hereby expressly authorize and empower said executors and trustees to sell and convey and convert into money any and all real estate of which I may die seized or the owner, and to execute and deliver conveyances thereof, subject, however, to the life estate devised by the 'second' paragraph hereof." The testator left no widow, and his son, Forest T. Lee, was his sole heir at law and next of kin. The will was admitted to probate and letters testamentary were issued thereon May 27, 1901. Forest T. Lee died intestate February 16, 1902, leaving no widow or descendants. If Forest T. Lee had predeceased his father the next of kin of the testator at the time of his death would have been the brother and sisters for whom trust funds had been created by the will and the children of three deceased sisters. Nancy Holland, one of the testator's sisters, died intestate March 25, 1902. |