Misc.]

Surrogate's Court, Kings County, May, 1908.

action, claim or counterclaim." It attaches to the "verdict, report, decision, judgment or final order" in the client's favor. It is also indicated that this lien cannot be affected by settlement between the parties before or after judgment or final order.

The lien which is the subject of this language is not a lien upon property of a tangible and chattel nature. It is limited to the cause of action - the abstract controversy. It is distinct from the common-law lien which the lawyer, like the tailor and the wagon maker, has upon the thing which is the subject of his labor or which has come into his hands in the course of his services.

As to the statutory lien, there can be no inquiry or disposition unless there is a proceeding in which is asserted the cause of action upon which the lien is said to be imposed. Even if there be such proceeding, there must obviously be an appearance therein in behalf of the client by the alleged lienor, and, further, no practical test or application of the lien can be made unless the proceeding has reached a result from which the lien may be satisfied or a stage at which the lien is about to be endangered unless discharged or secured. None of these conditions appears. There is no statutory lien. None is asserted. No fact is shown upon which the question of a lien under the statute can arise. Matter of Krakauer, 33 Misc. Rep. 674.

The case of Smith, 111 App. Div. 23, is not an authority for the present petitions. There the lien on books and papers was adjusted only as an adjunct to the act of the court in granting or regulating the substitution of attorneys, and the court, at page 30 of the report, defined the grounds and limits of its action by reference to the General Rules of Practice, under which an attorney may be changed "upon such terms as shall be just by the order of the court or a judge thereof."

The case indicates that the surrogate has no jurisdiction. to ascertain or to enforce a common-law lien upon books and papers, or upon any other property, unless as a possible incident to a substitution of attorneys in a proceeding.

No court has such jurisdiction as a primary and inde

Surrogate's Court, Kings County, May, 1908.

[Vol. 59.

pendent exercise of power unless such jurisdiction is invoked in an action in which the validity or extent of the lien is directly involved. Without an action, no court may attempt the adjustment of the ordinary common-law lien or take from the licnor his qualified property in the chattels concerned. An exception is found in the case of an attorney who retains his client's property under assertion of a lien for the value of his services, and this exception is a feature of the disciplinary jurisdiction of the Supreme Court over attorneys as officers of the court.

The surrogate does not share this jurisdiction, and his decree that the attorneys in this case deliver to the trustee the books and papers upon which the lien is asserted, under common-law rules, would be depriving them of property without due process of law, whether such decree was absolute or was conditioned upon the determination of the lien. by the surrogate.

The motion must be denied.

Motion denied.

Matter of the Judicial Settlement of the Accounts of WILLIAM W. RUTTER, as Executor of JoHN H. PAUL, Deceased.

Wills

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

Interpretation and construction - Designations and descriptions of persons, objects and purposes Rules and implications - Words descriptive of a class - Whether inclusive of members of a class for whom special provision is made.

Where a testator gave two legacies of money to nieces, by name, in separate paragraphs of his will, and in the latter clause gave the residue of his estate to be divided equally among his nieces and nephews, the fact that he added in the paragraph in which one of the legacies was given to a niece the words, "which sum is to be paid to her in addition to her distributive share in my residuary estate as hereinafter set forth," but omitted these words in the paragraph in which the money legacy to the other niece

Misc.]

Surrogate's Court, Kings County, May, 1908.

was given, is not sufficient to warrant a construction by which the niece, the provision for whose legacy did not contain the words quoted, should not share in the residue but should be limited to her specific gift.

PROCEEDING upon the probate of a will.

Edo E. Mercelis, for accountant.

Felix H. Levy, for James H. Hannahs, general guardian of Paul Hannahs.

KETCHAM, S. In the will requiring construction there are two legacies of money to nieces by name, which are contained in separate paragraphs. In one instance there are added to the words of bequest the following: "Which sum is to be paid to her (the legatee) in addition to her distributive share in my residuary estate, as hereinafter set forth." In the case of the other niece, there is a bequest without qualifying expression. Later in the will there is a gift of the residue, to be divided equally among the testator's nieces and nephews, share and share alike.

It is suggested that because, in one case, the specific gift to a niece was expressly declared to be in addition to her share under the residuary provision, the testamentary intent, derivable from the absence of such declaration as to the other niece, is that the second niece should not share in the residue and should be limited to her specific gift.

The residuary gift comprehends all nieces, and the exclusion therefrom of any person within its grammatical description would to that degree be a violation of its express language. Against a construction giving full effect to this gift there is no affirmative provision. There is but the intimation to be deduced from the absence, in the case of one of the specific legatees, of the words which as to the other legatee are used in abundant and unnecessary caution to guard and save her rights.

This inference cannot override the precise direction touching the residue. Were its force much greater than any which can be assigned to it, the gift would still be within the rule,

Surrogate's Court, Oneida County, May, 1908.

[Vol. 59.

which is said to admit of no exception, that "When an interest is given in one clause of a will, it cannot be cut down or taken away by raising a doubt from other clauses, but can only be impaired by express words or by a clear and undoubted implication."

This canon of construction is clearly applicable, whether the language from which it is sought to cut down an express provision precedes or follows the provision in question.

Let the decree provide for distribution of the residue equally among all the nieces and nephews.

Decreed accordingly.

Matter of the Judicial Settlement of the Estate of JUDSON R. WARD, Deceased.

(Surrogate's Court, Oneida County, May, 1908.)

Adoption of children - Mode and sufficiency of adoption -Sufficiency of proceedings - Collateral attack.

In a proceeding for the judicial settlement of administrators' accounts, the Surrogate's Court cannot review an order of adoption made by a county judge which recites all the jurisdictional facts required by the Domestic Relations Law.

PROCEEDING for the judicial settlement of an estate.

S. M. Stevens, for administrators.

R. C. Briggs, special guardian of Russell R. Ward.

McMahon & Larkin, for Winslow A. Ward et al.

M. J. Larkin, special guardian of William B. Ward, an incompetent person.

SEXTON, S. This is a proceeding for a judicial settlement of this estate.

An illegitimate male child was born June 6, 1893, at Ingelside Home, at Buffalo, N. Y., and named Luther B. Roberts. On February 8, 1895, he was delivered to Judson R. Ward and Charlotte E. Ward, his wife, of Rome, N. Y.,

Misc.]

Surrogate's Court, Oneida County, May, 1908.

with a view to ultimate adoption. On May 1, 1900, proceedings were had before the Oneida county judge, resulting in his adoption by said Wards. Since then he has lived in the Ward family under the name of Russell R. Ward.

January 10, 1905, foster-parent Judson R. Ward died intestate, leaving personal property valued at $119,000, of which estate Charlotte E. Ward and one Franklin B. Beers were appointed administrators on January 16, 1905, and are now acting as such. May 7, 1906, they petitioned for a judicial settlement of the Ward estate, and cited the next of kin, nephews and nieces, to attend said settlement. On the return of the citation, the special guardians above named were duly appointed.

June 26, 1906, Winslow A. Ward filed an answer, putting in issue the legality of the adoption of said Russell R. Ward, and challenged his right to inherit from his foster-father as his only next of kin.

On January 2, 1907, Frederick M. Calder was duly appointed referee to determine all questions arising upon the settlement of this estate, which the surrogate had power to determine, and report to the court.

The question of the legality of the adoption of said Russell R. Ward was the only one contested before said referee.

On January 9, 1908, the referee filed his report and opinion, holding and deciding that said Russell R. Ward had been legally adopted, and, under the Statute of Distributions, was entitled to two-thirds of the Ward estate.

Exceptions to the findings and refusals to find were filed, which necessitate an examination of the record by the surrogate.

The order of adoption, dated May 1, 1900, made by the county judge, recites all of the jurisdictional facts required by the Domestic Relations Law of 1896, chapter 272; and I am of the opinion, based on the evidence before me, that the county judge, in the exercise of statutory discretion, upon the facts and evidence before him, made a valid order of adoption, by virtue of which said Russell R. Ward is entitled to his distributive share in this estate as the only next of kin of said deceased.