be asserted. And if an officer levy upon the latter class of property under § 2909, Code Civ. Pro., the debtor must claim the exemption and notify the officer thereof before he can maintain against such officer an action either for conversion or replevin.

APPEAL from a judgment of the Jefferson county court in favor of plaintiff entered upon a verdict directed by the court.

E. C. Emerson, for resp't; George E. Morse, for app'lt.

MARTIN, J.-This is an appeal by the defendant from a judg ment of the Jefferson county court, entered upon the verdict of a jury, rendered under the direction of the court. The judgment. awarded to the plaintiff the possession of a horse and wagon and determined their value at eighty-five dollars. It also awarded to the plaintiff six cents damages and $72.59 costs.

The action was to recover the possession of the horse and wagon in question. They had been levied upon and taken by the defendant as a constable by virtue of a warrant of attachment against the property of the plaintiff issued out of a justice's court. The plaintiff based his right to recover the possession of the property on the ground that it was exempt from levy and sale under execution. It was not exempt under the provisions of § 1390 of the Code of Civil Procedure. If exempt, it was under § 1391, and because it constituted a part of the working tools or team of the plaintiff, who was a householder having a family for which he provided.

The evidence discloses that when the property in question was taken, the plaintiff had property of the description mentioned in § 1391 of the Code, which was of the value of $340, including the property in question. There was no evidence he, before action, claimed this property as exempt, nor that he demanded it of the defendant. On the trial the court held that no such claim or demand was necessary, but that it was the duty of an officer executing a warrant of attachment to determine at his peril that the property taken by him was not and could not be properly claimed as exempt. Upon that ground alone a verdict was directed for the plaintiff. The correctness of that ruling presents the only question necessary to be determined upon this appeal.

This ruling is sought to be sustained upon the ground that it was justified by the provisions of § 2909 of the Code of Civil Procedure, which provides that the constable must execute a warrant of attachment by levying upon the goods and chattels of the defendant "not exempt from levy and sale by virtue of an execution." In determining the effect to be given to this provision, it is necessary to briefly examine the provisions of the Code which relate to property exempt from execution.

Section 1390 provides that certain specified articles of personal property when owned by a householder shall be exempt. Section 1391 provides that "in addition to the exemptions allowed by the last section, necessary household furniture, working tools and team, professional instruments, furniture and library, not exceeding in value $250 * * * are exempt from levy and sale by virtue of an execution when owned by a person being a house

holder, or having a family for which he provides. ***" There are two classes of exemptions provided for by the statute. One relates to certain articles which are specifically enumerated and absolutely exempted. The other is limited to the sum of $250, and there may be claimed under it property of the kind mentioned in § 1391 to that amount, but to that amount only. The latter exemption is limited and indefinite, and where the debtor has property of that character of greater value than $250, it is dependent upon his election as to the particular property that may be retained by him as exempt.

Construing the provisions of $2909 in the light of the provisions of $ 1390 and 1391, the inquiry presents itself whether the provision that a constable must execute an attachment by levying upon the property of the defendant not exempt from levy and sale under execution in effect forbids the officer to levy upon any property that might be exempt under either section, or whether it relates only to the property specifically exempted by § 1390, and such as is claimed by the defendant or known to the officer to be exempt under § 1391. If it were to be held that an officer could not levy upon any property of the description mentioned in 1391 without becoming liable to an action for its recovery when no demand was made nor claim that it was exempt asserted by the owner, it would follow that all property of that character would be practically exempt from levy under an attachment, although it greatly exceeded in value the limit provided by that section. We think no such construction should be given to this

statute.

If property consists of the articles mentioned in § 1390, it is absolutely exempt if the owner is a householder, and the officer has no right to levy upon it. If, however, the property is of the description mentioned in § 1391, the exemption is a qualified one and the debtor must claim it and notify the officer of his claim before he can properly maintain an action either for its conversion or to recover its possession, especially when there is other property to which such exemption might apply.

In Russell v. Dean (30 Hun, 242), where a constable levied upon the only team owned by a debtor who was a householder, and it did not appear what other property he then had, and where he did. not at the time of the levy, or at any other time, claim it as exempt, it was held that he thereby waived any exemption he might have been entitled to under § 1391 of the Code. See, also, Turner v. Borthwick, 20 Hun, 119; Twinam v. Swart, 4 Lans., 263; Seaman v. Luce, 23 Barb., 240; Lockwood v. Younglove, 27 id., 505; Dains v. Prosser, 32 id., 290; Baker v. Brintnall, 52 id., 188.

We find nothing in the cases cited by the respondent in conflict with the views above expressed. In those cases the property was either absolutely exempt or known by the officer to be exempt when the levy was made. In this case the property was neither absolutely exempt nor known by the officer to be so, nor was it in any way claimed as exempt until this action was commenced.

N. Y. STATE REP., VOL. XXXVI.

39

The plaintiff had property of the kind mentioned in § 1391, which was of the value of more than $250 besides that taken by the defendant, as to which he could as well have claimed an exemption under that section. Under these circumstances we think it was error for the court to direct a verdict for the plaintiff, and for that error the judgment should be reversed.

Judgment reversed on the exceptions, and a new trial ordered, with costs to abide the event.

HARDIN, P. J., and MERWIN, J., concur.

In the Matter of the Accounting of FREDERICK EMERSON, as Ex'r etc., of Asahel Read, deceased.

FREDERICK EMERSON, Ex'r, App'lt, v. MARY A. WEBSTER et al.,

Resp❜ts.

(Supreme Court, General Term, Fourth Department, Filed February 20, 1891.) EXECUTORS AND ADMINISTRATORS-ACCOUNTING-CONSTRUCTION OF WILL.

R. gave the residue of his estate, real and personal, to his executor in trust to pay the same to M. A. W. during life, and after her decease devised all his estate to M. R. W., if she was at the time twenty-one years of age; if not, when she should be twenty-one years of age, the said income to be used for her benefit until that time. Held, that the will contemplated a severance of the functions of executor from those of trustee; that the executor was entitled to account finally as executor and to a decree transferring the estate from himself as executor to himself as trustee. (MERWIN, J., dissents.)

APPEAL by Frederick Emerson, as executor of Asahel Read, from a decree of the surrogate of Jefferson county denying his right to a final accounting and discharge as such executor.

On the 11th day of June, 1881, Asahel Read made and executed his last will and testament, whereby, after bequeathing to Asahel Read, son of Hiram C. Read, a certain legacy therein mentioned, he gave, bequeathed and devised "all the rest, residue and remainder of my real and personal estate to my friend, Frederick Emerson, the executor of this my last will and testament hereinafter nominated, in trust for the payment of my just debts and funeral expenses, and then to pay the income from said estate to Mary A. Webster during her natural life, to be used by her for her own support and the care and support of Mary R. Webster, and from and immediately after the decease of the said Mary A. Webster, I give and devise all my said estate to Mary R. Webster, if she at the time be of the age of twenty-one years, if not, when she shall be twenty-one years of age, and the said income to be used for her benefit until that time." He then nominated and appointed Frederick Emerson as sole executor of his will, with full power, if he should deem it necessary, to sell and convey any or all of his real estate upon such terms and at such times as he should think best. The will also provided that if the appellant should die before Mary R. Webster became twenty-one years of age, the surrogate should appoint some proper person to take his place. This will was duly admitted to probate by the surrogate of Jefferson county June 7, 1887. The appellant duly qualified

as such executor and has since acted as such. He made and filed an inventory, as required by law, published the regular notice to creditors, collected the debts due the estate and paid the funeral expenses, debts and legacies. On the 20th day of January, 1890, the executor voluntarily filed his petition for a final accounting as such. This proceeding was commenced by the issuing of a citation, upon the return of which the executor filed an account of his proceedings as such, and asked to be discharged as executor, and that the balance of the estate in his hands as executor should be transferred to him as testamentary trustee under said will.

The surrogate denied his right to a final accounting and discharge as executor, and held that the accounting was but an intermediate one. He also held that the offices of executor and trustee were co-existent and continuous and that the executor should retain the estate in his hands as such until the death of Mary A. Webster or until Mary R. Webster should become twenty-one years of age. He likewise refused to discharge the appellant as executor or to decree the trust fund into his hands as trustee under said will. From this determination of the surrogate an appeal was taken by the executor.

Sam Child, for app'lt; Joseph Atwell, for Mary A. Webster; J. C. McCartin, for Mary R. Webster.

MARTIN, J.-The questions involved on this appeal are dependent for their solution upon the true construction of the testator's will. If the purpose of the testator as shown by the language employed in his will was to blend the functions and duties of the executor and trustee so that they were inseparable and were to run together from the death of the testator until the appellant's final discharge, the decree appealed from was proper and should be affirmed. If, however, the provisions of the will show that the testator contemplated a severance of the functions and duties of the executor from those of the trustee, then it follows that the decree was wrong and should be reversed.

After making certain bequests to Asahel Read, the testator by his will devised and bequeathed to the appellant all the rest and residue of his estate, real and personal, in trust, 1. To pay his debts and funeral expenses; 2. To pay the income from the estate to Mary A. Webster during her natural life; and 3. Upon her decease to pay over to Mary R. Webster the whole of said estate if she should be twenty-one years of age, if not, when she became of age, and to use the income for her benefit until that time.

That the testator intended to appoint the appellant a testamentary trustee to carry out the provisions of his will, as well as to constitute him the sole executor thereof, is manifest. The will conferred upon him the dual character of executor and trus

As executor it was his duty to take possession of the estate, collect the debts due the testator, pay his debts and funeral expenses, pay the legacy given by the will and sell the real estate if he should deem it necessary.

These were his executorial duties. As trustee he was required to keep the residue of the funds belonging to the estate invested and to pay over the income derived therefrom to Mary A. Webster until her death, and if she died before Mary R. Webster became twenty-one years of age, then to appropriate the income thereof to her use until that time. Upon the death of Mary A. Webster and the majority of Mary R. Webster, the trust would end and the appellant would be required, as testamentary trustee, to account to Mary R. Webster for the estate in his hands.

We think the will shows that the functions of the executor and the duties of the trustee were separate. They were not to be executed concurrently and continuously to the end. The duties of the appellant as executor preceded his duties as trustee. The former were to be performed before the latter began. The trust as executor was ended when the appellant had taken possession of the estate, paid the legacies, debts and funeral expenses and rendered an account of his trust as such to the surrogate. He was then entitled to hold the estate as a trustee under the will. As such testamentary trustee, it was his duty to dispose of the income, and ultimately of the corpus of the estate, as directed by the will, and to account to his cestuis que trust as such testamentary trustee. We think the learned surrogate should have stated a final account with the appellant, made a decree discharging him as executor and directing a transfer of the estate in his hands as executor into his hands as trustee, and awarded him such commissions as he would have been entitled to upon such an accounting and decree.

This conclusion is, we think, fully sustained by the following authorities: Laytin v. Davidson, 95 N. Y., 263; Matter of Mason, 98 id., 527, 534; Phænix v. Livingston, 101 id., 451; Matter of Willets, 112 id., 289; 20 N. Y. State Rep., 735; Matter of Crawford, 113 N. Y., 560; 23 N. Y. State Rep., 722; Matter of Babcock, 52 Hun, 510; 23 N. Y. State Rep., 592.

It follows that the decree of the surrogate should be reversed, with costs payable out of the fund.

Decree reversed, with costs to the appellant payable out of the

estate.

HARDIN, P. J., concurs.

MERWIN, J. (dissenting).-Within the rule laid down in Johnson v. Lawrence (95 N. Y., 154), I think this is not a case for the separation of the duties of executor and trustee. From the last clause of the will it is apparent that the testator contemplated that the office of executor should exist till the final distribution. I therefore dissent.

ANDREW J. GAUDIN, App'lt. v. THE VILLAGE OF CARTHAGE, Resp't.

(Supreme Court, General Term, Fourth Department, Filed February 20, 1891.) NEGLIGENCE-VILLAGES-TELEGRAPH POLES.

A horse driven by a mail carrier, who had already lost control of the horse, struck a telegraph pole situated near the walk and between it and