Moore agt. Taylor and another. the bill; that if the power was not expressly conferred by the charter it was inherent in the city as a municipal corporation within the limits and scope of its corporate powers. The complaint must be dismissed on the merits, with costs. SUPREME COURT. THOMAS MOORE agt. HENRY A. TAYLOR and another. SAME agt. SAME. Code of Supplementary proceedings-When orders for, will be vacated· Where orders were granted for the examination of a judgment debtor on proceedings supplementary to execution, upon affidavits in the usual form made by one of the attorneys who recovered the judgments for the plaintiff. On motion by the judgment debtor to vacate such orders upon the ground that prior to the granting of the orders the title to the judgments had passed to a receiver : Held, that the judgment debtor had the right to make such motion. Held, further, that an attorney must obtain leave of the court before he can institute supplementary proceedings upon a judgment in favor of his own client after the title to that judgment has passed from the client to the receiver, and especially where the proceedings are instituted by an affidavit that says nothing about the lien of the attorney. Monroe Special Term, August, 1885. MOTIONS to vacate orders for the examination of Henry A. Taylor on proceedings supplementary to execution. W. H. Olmsted and T. Bacon, for Taylor. J. Van Voorhis, for plaintiff. ANGLE, J.-These orders were granted upon affidavits in the usual form made by one of the attorneys who recovered the judgments for the plaintiff, and the motion is made upon the ground that prior to the granting of the orders the title Moore agt. Laylor and another. to the judgments had passed to a duly appointed receiver of the plaintiff. The point is made in opposition to the motion, that Taylor has no right to make it; but I think he has such right and must be heard. If he should pay plaintiff these judgments such payments would not be good as against the receiver, and it follows that he has a right to question all attempts to collect the judgment from him by the plaintiff It is also claimed in opposition to the motions, that the plaintiffs attorneys who recovered the judgments have a right to go on with these proceedings in their own interests as lienors upon the judgments against Taylor, under section 66 of the Code, and Pickard agt. Yancer (21 Hun, 403); Wilbur agt. Baker (24 Hun, 24); Frostman agt. Schantling (21 Weekly Dig., 358); and Merchant agt. Sessions (5 Civ. Pro. R., 24), are cited. The last above case is in the New York city court at special term, and the court held that the lien of the attorney may be enforced by supplementary proceedings, and is not affected by the fact that the client had made a general assignment. But in that case the affidavit on which the order was obtained stated (what is not contained in the affidavits in the present cases) that the attorney who recovered the judgment, and who made the affidavits upon which the order was obtained, had "a lien thereon for his costs and fees, of which lien he had given the defendant notice." Other cases on the attorney's lien and rights are collected in Turno agt. Parks (2 How. [N. S.], 35). The case of Stoddard agt. Trenbath (24 IIun, 182), is to seme extent inconsistent with the foregoing cases. Dimmick agt. Cooley (gen. term, 4th dept.; 4 Civ. Pro. R., 141), holds, that before an attorney can proceed with an action after settlement and discontinuance by his client, he must obtain leave of the court. The court say (p. 149): "It would be an unwise and dangerous practice, extremely hazardous to the rights of both parties to allow an attorney to continue the action for the purpose of collecting his costs, without first Ward agt. Ward and others. obtaining consent of the court that he may proceed for that purpose. When such permission is given, it is the duty of the court to direct as to the time and manner, and watch the proceedings so as to fully protect the rights of both parties, and not unnecessarily annoy and embarrass either." A fortiori, it seems to me, he must obtain leave of the court before he can institute supplementary proceedings upon a judgment in favor of his own client after the title to that judgment has passed from the client to a receiver, and where the proceedings are instituted by an affidavit that says nothing about the lien of the attorney. I do not deem it requisite here to discuss other suggestions. made by the counsel for the plaintiff. I have considered them all, and my conclusion is, that the motions must be granted, with ten dollars costs as of one motion. SUPREME COURT. MARY JANE WARD, as executrix, &c., agt. DE WITT CLINTON WARD, as executor, &c., and others. Will-Construction of ― Trust· What necessary to vest in executors a trust estate-When trust will be implied - When no illegal suspension of the power of alienation — Gift of income- Effect of. No express gift to executors is necessary in order to vest them with a trust estate. A trust will be implied when, upon a consideration of the whole will, that clearly appears to have been testator's intention, or when the duties imposed are active and render the legal title in the executors convenient and reasonably necessary, although not essential to accomplish the purposes of the will, and when such implication would not defeat, but would sustain, the dispositions of the will. Testator gave the use and income of all his estate to his widow, and after her death to his two sons, share and share alike, remainder to their heirs, and clothed his executors with such powers and duties as clearly showed that he contemplated their retaining possession of the estate, and the beneficiaries receiving the income from them: Held, the estate vested in the executors in trust for the life of the widow, and after her death for the lives of the two sons respectively. Ward agt. Ward and others. Also, held, there is no illegal suspension of the power of alienation. A gift of income "subject to the necessary expenses" of living and the education of two sons: Held, to create a charge upon the income in the recipient's hands which she was bound to satisfy. * A desire that "such sums from time to time as may be necessary and deemed advisable to be paid to" persons named "that they may not want for the necessaries of life:" Held, to create charges upon the income of the estate which the widow is bound to satisfy, and which the court will enforce in the event of her failure to do so in good faith. Further, held, the court will not pronounce in advance the legal consequences of an event which has not happened and may never occur. Special Term, October, 1885. * * * * * * TESTATOR gives to his wife for life and widowhood "the use and income" of all his estate, "subject to the necessary expenses of living, for my two sons, until they arrive at the age of twenty-one years, if it should be necessary, and the necessary expenses of good schooling and a collegiate education, if either or both should desire it," giving them each on reaching thirty years $10,000, to pay which the executors are authorized to dispose of any part of the estate. The will further provides: "And, further, I desire that such sums from time to time as may be necessary and deemed advisable, be paid to" three persons named, "that they, or either of them, may not want for the necessaries of life; and upon my wife's decease the use and income of all my estate, subject to the above provisions, to my two sons, share and and share alike," remainder to their "heirs." In the event of his wife's remarriage he gives her, "in lieu of all dower," $10,000, to be paid to her by the executors, who for this purpose, and also for purposes of reinvestment, are authorized to dispose of all or any part of his property. He appoints his wife, the plaintiff, and the defendant De Witt Clinton Ward, his executors, and by a codicil to the will appoints them his "trustees" for the purpose of carrying out any of its provisions. Ward agt. Ward and others. B. S. Clark, for plaintiff. De Witt, Lockman & De Witt, for defendant De Witt C. Ward, executor, &c. Thomas Allison, for defendant Brindley. Percy D. Adams, for defendants A. P. Ward et al. James M. Hunt, for defendant D. W. C. Ward (2d). Ilarris & Corwin, for defendant W. E. Ward. - VAN VORST, J.- This is an action for the construction of the will of Mortimer Ward, deceased. The testator died leaving a large estate; it was, however, principally personal. The question which has been chiefly litigated is whether the will creates a trust in the executor and executrix over the residuary estate, and if so the extent of the trust. There is no express gift in words of the estate to the executors in trust; nor is it necessary for the creation of a trust in them that there should have been. It would be enough to work such result if, upon a consideration of the whole will, in the light of the duties to be performed by the executors, it should clearly appear that it was the intention of the testator to vest the title to the property in them, or that it was necessary for the proper discharge of those duties. Where a trustee is necessary to effectuate the valid purposes of a will, and there is language in the instrument sufficient to justify it, a trust will be implied and the court will enforce it. Dominion over an estate, acts to be done and duties to be performed, created and imposed by a testator, may be of such a nature as by a necessary implication to create a trust in the executors for the purposes of the will, to continue until the acts are done and the duties are performed. The testator, by the first clause of his will, gave to his wife "the use and income of all his real and personal estate during her natural life, should she not marry again, subject to" certain charges. From this it is urged by her learned counsel |