which judgment was docketed in the office of the clerk of Saratoga county on the 18th day of December, 1908, at 9:55 o'clock a. m., and thereupon became a judgment of the County Court. An execution upon this judgment was delivered to the sheriff of Saratoga county on December 18, 1908, at 10 o'clock a. m. No actual levy was ever made by virtue of this execution; but at the time it was delivered to the sheriff he had made his levy upon the property of the brick company by virtue of the Wotkyns execution and had the property in his physical possession at that time. Thereafter Doras Francisco recovered a judgment against the same defendant in justice's court, on the 18th day of December, 1908, at 10 o'clock a. m. The justice of the peace thereupon issued an execution, at 10:15 o'clock a. m., which execution was placed in the hands of a constable, who thereupon levied upon the same goods, which were in the physical possession of the sheriff of Saratoga county by virtue of the execution issued in the Wotkyns action. The sheriff, by virtue of the executions in his hands, sold the property levied upon in the Wotkyns action and realized the sum of $202. All of the parties concede that the Wotkyns judgment, being a prior lien, should be first paid; and the sheriff is directed to pay such amount to the attorney for Tom S. Wotkyns & Co., to wit, the sum of $110.84, with interest from December 16, 1908, together with the sheriff's legal fees and poundage.

The question arises as to the disposition of the balance of the fund; that is, whether it should be paid to Doras Francisco by virtue of his execution issued by the justice of the peace, or to the Cohoes-Waterford Home Telephone Company by virtue of its execution issued to the sheriff. Francisco contends that section 1408 of Code Civ. Proc. is applicable and entitles him to a preference. That section reads as follows:

"But an execution, issued out of a court not of record, or a warrant of attachment, granted in an action pending in a court not of record, if actually levied, has preference over another execution, issued out of any court, of record or not of record, which has not been previously levied."

At the time of the issuance of the Francisco execution, the CohoesWaterford Home Telephone Company execution had been issued and had been delivered to the sheriff, but no actual levy had been made. As the sheriff, however, had possession of the property of the brick company by virtue of the Wotkyns & Company execution, I hold that there was a constructive levy which gives the Cohoes-Waterford Home Telephone Company's execution a preference. This precise question was decided by Judge Bockes in the case of Seymour v. Newton, 17 Hun, 30, wherein it was held that, where a sheriff has made a valid levy under an execution and taken the property into his possession, a constable, to whom executions against the same defendant are subsequently issued by a justice of the peace, cannot make any levy on such property, nor can he sell the same subject to the levy made by the sheriff. In the opinion the court held:

"After an execution has been levied by a sheriff, the receipt of a second exe cution by that officer against the same defendant operates as a constructive levy upon the property previously levied upon by him"-citing Birdseye v.

It is further held that in such a case the property is in the custody of the law, being in the physical possession of the sheriff, and that a constable would be without power or authority to take the property from the sheriff by virtue of a levy upon an execution issued by a justice of the peace.

The Seymour Case, supra, has been cited with approval and does not appear to have been distinguished. I hold, therefore, upon the authority of this and kindred decisions, that the property levied upon under the Wotkyns execution was in the physical custody of the sheriff; that the delivery of the telephone company execution operated as a constructive levy by virtue of that execution; that the constable was without power to levy upon the property while it was in the hands of the sheriff, or to take it from him; and that section 1408 of the Code of Civil Procedure is not applicable to the facts in this case, because a constructive levy upon property in custody of the law operates as an actual levy for all intents and purposes and entitles the telephone company to a legal preference.

The order, therefore, is that the sheriff disburse the money as follows: First, that he pay the judgment of the Wotkyns Company in full; second, that he pay the execution of the Cohoes-Waterford Home Telephone Company as far as the money in his hands will allow; and that he apply the surplus, if any there shall be, to Doras Francisco -the sheriff, of course, to deduct his legal fees and poundage.

Application is made by counsel for the sheriff for an allowance for costs; but I find no section of the Code authorizing me to make such direction, and such application is therefore denied. Ordered accordingly.

(62 Misc. Rep. 158.)

In re SPINK'S ESTATE

(Surrogate's Court, Oswego County. January, 1909.)

MARRIAGE (§ 50*)-SUFFICIENCY OF EVIDENCE.

Evidence showing continued cohabitation and birth of a child recognized as legitimate held sufficient to establish a common-law marriage.

[Ed. Note. For other cases, see Marriage, Cent. Dig. §§ 86, 87; Dec. Dig. § 50.*]

In the matter of the estate of Adelbert Spink. Proceedings to revoke letters of administration. Proceedings dismissed.

F. G. Whitney and W. B. Baker, for petitioner.
A. S. Barker and Udelle Bartlett, for respondent.

MILLER, S. This proceeding was instituted by Harvey D. Spink, a son of the deceased, to revoke letters of administration issued by the Surrogate's Court of Oswego county, N. Y., to Ellen R. Spink, on or about the 22d day of June, 1908, upon the ground that she was never the legal wife of deceased. The administratrix concedes that she was never married to deceased by any ceremonial marriage, but contends there was a contract of marriage between her and Spink, and *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

that their intercourse had been in fulfillment of that contract, and was matrimonial in character.

It appears from the evidence that the first wife of deceased died in 1898, leaving her husband and two children her surviving, one of whom is the petitioner in this proceeding, and the other a daughter over 21 years of age. For some little time prior to the death of the first wife of deceased, the said Ellen had been employed from time to time as a domestic in the family of deceased; and there is evidence to show that the conduct of the deceased and Ellen was highly improper, if not illicit, in its nature. A few months after the death of the first wife, the said Ellen went to the home of deceased, and lived and cohabited with him until his death on the 2d day of June, 1908. The family consisted of only deceased and Ellen, until 1903, when a female child was born; and all parties concede the deceased is the father of this child. She is now 5 years of age and upwards, and has always been known in the neighborhood where her father and mother have resided as Marion Spink.

On the hearing petitioner swore a large number of witnesses, who testified that it was the general repute in the neighborhood where the parties resided that they were not married. Petitioner also proved one or two instances that would indicate that Ellen did not claim to be the wife of the deceased. On the other hand, Ellen produced several witnesses who testified that it was the general repute in the neighborhood where the parties resided that they were husband and wife. As Judge Hatch says, in Tracy v. Frey, 95 App. Div. 579, 587, 88 N. Y. Supp. 874, the testimony given by the petitioner's witnesses upon this point is somewhat weakened by the fact that nearly, if not all, testified, upon cross-examination, that they understood that it was essential to a valid marriage that some civil ceremony was necessary, either by a civil magistrate or a clergyman, and that without that ceremony no lawful marriage could exist.

The respondent also shows that upon several different occasions, commencing in 1899 and continuing down to the death of Spink, he referred to her as his "wife," and introduced her to different persons as his wife. Her mother, Chloe Gay, also testified that in 1899 the deceased told her that he and Ellen were married, and that Ellen was going to his house to stay, and that they were to live together as husband and wife; that, in reply to her inquiry if they had been away to be married, Spink replied, "No;" that it was unnecessary; that they had agreed to live together as man and wife. If the validity of this marriage was to stand or fall on this woman's testimony, it would certainly fall. A mother of mature age, that would consent without protest to such an arrangement for a daughter barely out of her teens, is entitled to but little consideration at the hands of this or any other court, and her testimony should be treated accordingly. The petitioner contended on the trial, and still contends, that all evidence of declarations of decedent and all transactions between him and Ellen subsequent to January 1, 1902, when the provisions of chapter 339, p. 933, of the Laws of 1901 took effect, were incompetent and

contract of marriage was made in 1899, and to sustain her contention showed acts and statements of the decedent prior to January 1, 1902, when said act took effect, indicating that her relations with him were matrimonial in character. Therefore I think that acts and declarations of deceased, indicating that relationship subsequent to the act of 1901, were competent and material.

In the case of Caujolle v. Ferrie, 23 N. Y. 90, the relation in its inception was meretricious; and, although there was no proof of any ceremonial marriage or other contract of marriage thereafter, yet, as the parties continued to cohabit together, and declarations were made on the part of the mother that a child born of this marriage was legitimate, it was held that a marriage subsequent to the commencement of the illicit intercourse would be presumed, although there was no direct proof establishing such a contract. Judge Finch lays down practically the same proposition in Badger v. Badger, 88 N. Y. 546, 42 Am. Rep. 263.

Notwithstanding these cases, and subsequent decisions which seem to extend, rather than limit, this presumption, I should hesitate to find a contract of marriage in this case, were it not for the fact that the alleged statements, declarations, and acts of the deceased were followed by the birth of this little girl; and, when she was about to be born, it appears that the deceased requested a neighbor to go for a physician, stating that his wife was about to be confined; that the child bore his name, always addressed him as "papa," and, as long as her father lived, was treated in every way like a legitimate natural child. Under such circumstances, the presumption is very strong that the parents were actually married. Gall v. Gall, 114 N. Y. 109, 119, 21 N. E. 106. Judge Andrews, writing upon this point in Hynes v. McDermott, 91 N. Y. 451, 459, 43 Am. Rep. 677, says:

"The presumption of marriage, from a cohabitation, apparently matrimonial, is one of the strongest presumptions known to the law. This is especially true in a case involving legitimacy. The law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy. Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence."

The decisions are to the same effect in Tracy v. Frey, 95 App. Div. 579, 88 N. Y. Supp. 874, and Matter of Matthews, 153 N. Y. 443, 47 N. E. 901.

A fair application of the principles laid down in these decisions, as well as those cited by the petitioner in his brief, to the facts in this case, leads me to decide, somewhat reluctantly, that there was a contract of marriage between the said Adelbert Spink and said Ellen R. Spink, and that she is his lawful widow, and is entitled to administer his estate.

It follows that the proceeding to revoke her letters must be dismissed, with costs to respondent payable out of the estate. The costs may be adjusted on any term day on five days' written notice to petitioner's attorney.

Proceeding dismissed, with costs.

(Surrogate's Court, Kings County. December, 1908.)

1. WILLS (8 684*)-CONSTRUCTION OF TESTamentary TRUSTS-TIME OF TAKING EFFECT.

Trust provisions for maintenance found in wills are usually construed to intend the application of the income from testator's death.

[Ed. Note. For other cases, see Wills, Cent. Dig. § 1625; Dec. Dig. § 684.*]

2. WILLS (8 684*)-CONSTRUCTION OF TESTAMENTARY TRUSTS.

Testatrix divided her residuary estate equally between her three daughters and two sons, but provided in a codicil that there should be equally deducted from the shares of two of the daughters-and of the sons such a sum as, added to the share of the third daughter, would make it equal $10,000, and that such sum so deducted should be held in trust by testatrix's executors during the life of such daughter, or until she should marry; the income therefrom to be paid her in quarterly payments. Held, that the trust fund should be computed on the net principal of the estate, and that the executors should pay to themselves as trustees such part of the income as bore to the whole income the same proportion as the trust fund bore to the entire net principal; the income so received by the trustees to be paid to the beneficiary.

[Ed. Note. For other cases, see Wills, Dec. Dig. § 684.] 3. EXECUTORS AND ADMINISTRATORS (§ 111*)- ACCOUNTING

CREDITS AND

CHARGES. Where the judgment, in an action by the surviving partners of a firm of which decedent was a member, made the costs payable out of the partnership assets left in the hands of the surviving partners, after de ducting therefrom the sums payable to decedent's estate, a payment by decedent's executors of a part of the costs will be disallowed on a judicial settlement of their acccounts, since such costs were to be borne by those who had the legal ownership of the partnership assets, and the executors had but the right to an account from the surviving partners and to a payment of such sums as should appear due the estate on such account.

[Ed. Note. For other cases, see Executors and Administrators, Dec. Dig. 111.*]

Proceedings for the judicial settlement of the account of Maria Louise Harris and Henry C. Bainbridge, as executrix and executor of the will of Hannah Maria Bainbridge, deceased. Account settled.

Walter R. Davies, for executors and trustees.

Harrison, Elliott & Byrd (William Byrd, of counsel), for Johns C. McKennie, as executor, etc., of Mary J. C. McKennie, deceased. Rollins & Rollins, for Carleton Bainbridge, a legatee. William P. Pickett, special guardian.

KETCHAM, S. The third paragraph of the will is as follows: "Third. All the rest, residue and remainder of my estate, I give, devise and bequeath to my children, Mary Jane C. McKennie, William W. Bainbridge, Maria Louise Harris, Charles Edward Bainbridge and Lucy Anna Bainbridge, to be divided between them equally."

The second codicil provides:

"I direct that from the shares devised and bequeathed by me in and by the third clause of said will to my children, Mary Jane C. McKennie, William