firmed in that reflection as to the error of his judgment, and immediately on arriving at his office on Monday, April 24, 1913, communicated by telephone with several of the creditors, talked with the representative of one who called upon him, and in reply to letters received on Tuesday morning, April 25, 1916, addressed to the creditors to whom he had written the following letter:

"Gentlemen: Your favor of the 25th inst., regarding [naming the druggist], is at hand. Replying thereto, we regret to inform you that our letter was written you by mistake. We are not handling any claims whatsoever against Mr. nor do we represent him at all. We wish to emphatically state, in justice to him, that we do not know of any fact which could impair his credit. As far as we are informed, Mr. is promptly paying his bills and to all intents and purposes is a thoroughly honest man. We do not think you will be harmed if you extend further credit to Mr. , and we would most strongly urge you to do so. Regretting the unfortunate error in this matter and the trouble we have put you to, we are,

"Yours truly."

He testified that he had made no examination of the druggist's affairs prior to writing the first letter, but that he had believed Grushco's statements, and that he made no investigation prior to writing the second letter. It is therefore conceded that, in the effort to get business, he wrote a letter to the creditors of a business man calculated to seriously injure, if not destroy, his credit, and containing a false statement that he was handling the claims of most of the other creditors against him. Realizing the impropriety of his act, and the serious results which might flow therefrom, and in a panic, he wrote another letter in the attempt to undo whatever wrong he might have committed, which contained other statements of purported facts which he did not know to be true. In attempting to remove the imputation of the druggist's inability to meet his obligations and pay his bills, he gave him a complete bill of health and urged extension of further credit to him. If the druggist had been in the financial straits reported to him, and which reports he said he believed, this letter might have caused serious loss to those placing faith in it. Each of these letters was entirely unjustifiable from a moral, business, or professional standpoint, and the respondent does not attempt to justify them. Before the Grievance Committee he testified with the utmost frankness, admitting the facts, and expressing his deep regret for what he had done.

His attitude before the Grievance Committee and before this court satisfies us that he realizes fully the impropriety of his action, and has learned a lesson in regard to professional conduct and standards which he will never forget. While we cannot overlook this professional misconduct, yet, taking into consideration his frank admissions and apparently sincere regret, his age, and the short time he has been at the bar, we are of the opinion that the ends of justice will be satisfied by the administration of the censure of this court. Settle order on notice. All concur.

MORAN V. MIDVILLE REALTY CO. et al.

(Supreme Court, Special Term, New York County. November 29, 1915.) 1. COSTS 165-TAXATION-ADDITIONAL ALLOWANCE-DISCRETION OF EQUITY COURT.

By Code Civ. Proc. § 3253, an additional allowance of costs in equity actions to foreclose mortgages on real property in difficult cases is a matter for the court's discretion.

[Ed. Note.-For other cases, see Costs, Cent. Dig. § 637; Dec. Dig. 165.1

2. COSTS 42(8)—PERSONS AND PROPERTY LIABLE FORECLOSURE PROCEEDINGS.

An action to foreclose a mortgage was commenced as to the owner of the equity of redemption upon the service of the summons and complaint upon him, before a tender made, entitling the plaintiff to costs, before notice, of trial, against the defendant and the mortgaged premises. [Ed. Note. For other cases, see Costs, Cent. Dig. § 161; Dec. Dig. ~42(8).]

3. COSTS 164(5)-FORECLOSURE PROCEEDING-STATUTORY ALLOWANCE. Under Code Civ. Proc. § 3252, providing for an additional allowance for costs in foreclosure, based upon the judgment, at rates named, and where the action is settled before judgment at one-half those rates, in an action to foreclose a mortgage, where defendant owner of equity of redemption, instead of moving to compel an acceptance of a tender made, filed answers, plaintiff was entitled to one-half the statutory allowance for costs.

[Ed. Note. For other cases, see Costs, Cent. Dig. § 628; Dec. Dig. 164(5).]

Action by one Moran against the Midville Realty Company and others. Judgment for plaintiff.

Guthrie, Bangs & Van Sinderen, of New York City, for plaintiff. Gerard & Smyth, of New York City, for defendants Pinchot and another.

COHALAN, J. Action to foreclose a mortgage for $25,000. The sole issue here is one of costs; the defendant owner of the equity of redemption, Gifford Pinchot, on the 27th day of February, 1915, having paid into court the sum of $25,178.

[1] The respective positions assumed are not too creditable to either party to the dispute. The plaintiff might have made a more reasonable application for costs, independent of the demand of the sum of $100 for an additional allowance, which allowance in an equity action is a matter for the court's discretion. The defendant Pinchot, instead of serving answers, might have promptly disposed of the controversy by moving in the motion part of the court to compel an acceptance of the tender, where the issue of costs might have been readily resolved. Sections 340-342 of the Real Property Law (Consol. Laws, c. 50). It appears that at the time of the tender neither the summons nor the complaint in the action had been served on the defendant Gifford Pinchot, but a copy of the summons, with a notice of the object of the action, had been served on two of the defendants, who were tenants of the mort

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

gaged property. The plaintiff refused the tender on the ground that he was entitled to receive costs in the sum of $188. He wrote the defendant Pinchot as follows:

"As costs and allowances on discontinuance I think I am entitled to costs before notice of trial, $25; allowance by statute, $60; additional allowance, $100-$185; satisfaction, $3-$188."

The correspondence between the parties, beginning on the 11th day of August, 1914, shows that the plaintiff sought a payment of the mortgage without suit, and that the defendant Pinchot received a reasonable. opportunity in which to satisfy it. While in the defendants' letters there may be read a manifest disposition to pay off the mortgage, yet there is also therein a vagueness with regard to the precise time of payment. The plaintiff, therefore, was within his rights in starting foreclosure proceedings on a mortgage which became due on the 31st day of March, 1913. On the 28th day of October, 1914, the defendant Pinchot was notified that the summons and notice had been served on two of the defendant tenants of the mortgaged premises. The tender was not made until November 15, 1914, when a certified check was sent to the plaintiff, which was refused. On December 8, 1914, the summons and complaint were served upon the Midville Realty Company, the mortgagor and the defendant primarily liable, and on December 18, 1914, the summons and complaint were served upon Gifford Pinchot in the City of Washington.

[2, 3] The defendants now contend that the action was not commenced as against the defendant Pinchot until a time subsequent to the tender made, and hence no costs have accrued herein either against the defendant or the mortgaged premises. It is my view that the position. assumed by the defendants is not supported by the authorities. It has been frequently held that an action has been commenced by the service of a summons. Cattaberry v. Knox, 17 App. Div. 372, 45 N. Y. Supp. 272; aff'd, Id., 154 N. Y. 747, 49 N. E. 1094; Eaton v. Wells, 82 N. Y. 576; Kadin v. Samuels, 55 Misc. Rep. 442, 106 N. Y. Supp. 559. In the case of Eaton v. Wells, supra, the court said that:

"The mortgage is a lien upon the land for the debt, and when suit has been properly brought to enforce it, it is also a lien thereon for the costs; but it is for the costs as an incident to the debt, not as part of the debt."

I hold that the plaintiff is entitled to $25 costs before notice of trial and that he is further entitled to one-half of $60 of the statutory allowance, which would be $30; in all $55. Sections 3252, 3253 of the Code of Civil Procedure.

Judgment in this sum in favor of the plaintiff. Decision and judgment to be settled on notice.

In re MYERS et al.

In re TAILER'S WILL.

In re PEARSALL'S WILL.

(Surrogate's Court, New York County. December 4, 1916.)

1. WILLS630(6)-CONSTRUCTION-GENERAL RULES-APPLICATION OF “DIVIDE AND PAY OVER" RULE.

The "divide and pay over" rule, that where a gift is contained merely in words of direction to pay over a futuritive or contingent interest is created, is a rule of construction only, and must be applied in subordination to the intention of the author of the will, as gathered from the language of the clause construed and the general scheme of the will. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 1473; Dec. Dig. 630(6).]

2. WILLS

630(6)-CONSTRUCTION-GENERAL RULE-CONSTRUCTION IN FA

VOR OF VESTED INTEREST.

In no instance will the "divide and pay over" rule ignore the established rule of construction that an estate or interest will be construed to be vested, rather than contingent.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1473; Dec. Dig. 630(6).]

3. WILLS 457-CONSTRUCTION-LANGUAGE-TECHNICAL LANGUAGE. Where a will is drafted by a technical draftsman, the language has its ordinary technical significance, in the absence of an intent to the contrary. [Ed. Note. For other cases, see Wills, Cent. Dig. § 975; Dec. Dig. ~~~~457.]

4. WILLS-523-CONSTRUCTION—OTHER PURPOSES OF INSTRUMENT.

While the context of a will may be used to elucidate a particular clause, which presents difficulties of construction or interpretation, the court is not required to read into a clause granting a remainder share and share alike an intention to change the well-settled meaning of these words merely because in a preceding sentence a gift by substitution was given as a class.

[Ed. Note.-For other cases, see Wills. Cent. Dig. § 1115; Dec. Dig. 523.]

5. WILLS 634(7)-CONSTRUCTION-VESTED REMAINDER.

Where a will gave executors a sum in trust, the income to a nephew during life, and in case the nephew should not survive the testator the principal sum to his issue per stirpes, and not per capita, and that at the death of the life tenant, if he survive the testator, the executors pay the principal sum to his two children by name, share and share alike, in view of other provisions of the will indicating a general scheme to create vested interests, the interests in remainder vested as of the date of the death of the testatrix.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1495; Dec. Dig. 634(7).]

6. WILLS

523-CONSTRUCTION-PERSONS ENTITLED TO REMAINDER-"SHARE

AND SHARE ALIKE."

Although a paragraph in a will provides for a substitutional gift to heirs of a life beneficiary per stirpes, and not per capita, a following provision for a remainder vesting, at the death of testatrix, to the children of the life beneficiary nominatim, "share and share alike," which words impart a tenancy in common, and not a joint tenancy or survivorship, bequeathed to each a moiety of the trust fund, subject to the life of the father, and not as members of a class, so that the heirs of a son of the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

life tenant, who died after the testatrix, but before the life tenant, were entitled to his share, but not to the share of the other remainderman, who predeceased the testatrix, which share lapsed into the residuary clause under the provisions of the will.

[Ed. Note. For other cases, see Wills, Cent. Dig. § 1115; Dec. Dig. 523.

For other definitions, see Words and Phrases, First and Second Series, Share and Share Alike.]

Proceeding for the judicial settlement of the account of Joseph L. Myers and another as executors of Robert W. Tailer, deceased, for the acts of decedent as trustee of the trust for the benefit of James B. Pearsall under the will of Phebe Pearsall, deceased. Will construed.

Beekman, Menken & Griscom, of New York City, for executors. Cravath & Henderson, of New York City, for Augustus B. Field and certain other residuary legatees.

Lannon & Bailey, of New York City (William H. Harris and John David Lannon, both of New York City, of counsel), for administratrices of Thomas Pearsall.

FOWLER, S. In this proceeding for the judicial settlement of the account of the executors of the last will and testament of Robert W. Tailer, deceased, a trustee of the trusts created for the benefit of James B. Pearsall under the will of Phebe Pearsall, deceased, a construction of the said will of Phebe Pearsall, the settlor of the said trusts for the benefit of said James R. Pearsall, seems to be necessary and jurisdictional. The jurisdiction is duly invoked.

Paragraph No. IX of the will of Phebe Pearsall, limiting the trust fund now in controversy, is as follows:

"IX.,I give and bequeath to my executor, or executors, the sum of one hundred thousand dollars, in trust, the income of which is to be applied to the sole use and benefit of my nephew, James B. Pearsall, during his life, and in case he shall not survive me, I give and bequeath the said principal sum of one hundred thousand dollars to his lawful issue, per stirpes, and not per capita. And I further direct that at the death of the said James B. Pearsall, in case he shall survive me, my executor or executors shall pay the said one hundred thousand dollars to his children, Helen Pearsall and Thomas Pearsall, share and share alike."

Phebe Pearsall, the settlor of the trust, died July 9, 1895. James B. Pearsall, the beneficiary of the fund, held in trust for his own life under paragraph IX of the will of Phebe Pearsall, departed this life intestate on January 20, 1916. The Helen Pearsall mentioned in paragraph IX aforesaid predeceased Phebe Pearsall, the settlor. The Thomas Pearsall mentioned in said paragraph IX predeceased the life tenant, his father, James B. Pearsall, but survived Phebe Pearsall. The will of Phebe Pearsall contains a comprehensive residuary clause which embraces all estates and interests of Phebe Pearsall not otherwise disposed of by her will.

The contentions now made are substantially as follows: The legal representatives of Thomas claim, in opposition to the residuary legatees, the entire remainder of the fund bequeathed by said paragraph