Farnam agt. Barnum.

the same after payment of the debts of the deceased for the benefit of the next of kin, as their interests may appear. The real estate would descend to them according to the law of descent. No part thereof could be adjudged in this action to belong to any one of the persons named. If the object of the action were to obtain an adjudication that the whole or part of the estate belonged to the plaintiff or to the plaintiff and one or more, less than all of the other heirs-at-law or next of kin of the deceased, then it could be successfully maintained that all are necessary parties to the action, for they would have a joint interest in the question involved, but in this case they have only a common interest to have the bequests declared void, and such adjudication would inure to their common benefit. They have a like interest in the question as the judgment creditors of an insolvent debtor who had made a fraudulent assignment, would have in an action to set it aside. and have it declared void. Such creditors would have a common or general interest to have the assignment void, but their interest would not be united within the meaning of section 448 of the Code. One creditor may sue for herself and others similarly situated, to set aside the assignment without joining them as parties to the action (Hammond agt. Hudson River I. and M. Co., 20 Barb., 378; Petrie agt. Lansing, 66 Barb., 557).

When the question is one of a common or general interest of many persons, or when the persons who may be made parties are very numerous, it being impracticable to bring them all before the court, then one may sue for the benefit of all. The word "many" is not used in this section to express the idea of very numerous persons. There are two classes named where one may sue for all. One is where many persons have a common interest, and another where the parties are so numerous that it is impracticable to bring them all before the court. While the word "many" as here used contemplates more than one, it does not necessarily very numerous persons while the word "many" as ordinarily used

Farnam agt. Barnum.

is synonymous in meaning with "numerous " As used in this section in connection with the words "common or general interest of the persons" it means a limited number. It is the character of the interest which controls, rather than the number of persons. The third class mentioned "very numerous" one is allowed to sue for all, as a matter of convenience in the administration of justice by the court. This construction was given to this section in McKenzie agt. L'Amoreaux (11 Barb., 516). This case has been referred to with approval and has not been disturbed by any case to which my attention has been called. Under the practice that existed at the time of the adoption of the Code, this action could be maintained by the plaintiff in its present form (Brown agt. Rickets, 2 Johns. Ch., 553). Actions against administrators, as well as actions against assignees for the benefit of creditors brought to set aside an assignment, are exceptions to the rule that all parties having an equitable interest named by the decree are necessary parties thereto (Moore agt. Hageman, 6 Iun, 290). In Jones agt. Fetch (3 Bosw., 66) the court says: "On a demurrer to a complaint we apprehend that the test of the unity of interest intended by the one hundred and nineteenth (448) section, is that the joint connection with or relation to the subject matter, which by the established practice of the common-law courts will preclude a separate action."

The demurrer should be overruled with costs, with leave to defendants to answer in twenty days from the service of a copy of this order, upon the payment of the costs.

Matter of Karr.

SURROGATE'S COURT.

In the Matter of the Judicial Settlement of the Accounts of JOEL KARR, as Executor of the Will of AMI WHITNEY, deceased.

Will-Rules as to construction of Who entitled to distributive shares of the estate.

Where a will provided as follows: "First. After all my lawful debts are paid and discharged, I give and bequeath to C. M., who is now living with me, his heirs and assigns, all that house, lot, tract and parcel of land where I now reside in the town of Almont, Alleghany county, N. Y., containing about forty acres of land." Immediately following this there are sixteen "items" by which the testator bequeaths to twenty-two persons specific sums of money; each clause of the bequest commences: “I give and devise." The eighteenth clause reads: “I give and devise all the rest, residue and remainder of my real estate and of my personal estate, goods and chattels of every kind whatsoever, if any there shall be after paying my debts and the legacies hereinafter named to the several legatees herein before named, to be divided between them share and share alike." In a codicil to the will the testator slightly changed some of the bequests and at the end of which was this clause: "I have by my last will referred to above, willed that any remainder or residue of my estate real or personal which may remain after paying debts and legacies, be distributed among the several legatees share and share alike. Now, therefore, I do by this my writing, which I hereby declare to be a codicil to my said will and to be taken as a part thereof, order and declare that my will is, that such distribution be made, not share and share alike, to the legatees, but pro rata or in proportion to the several legacies excepting E. L. and H. B. F. who are not to share in such distribution." C. M. is the only devisee, and the real property above mentioned is the only real property devised. The testator died leaving a small parcel of land undisposed of in any way other than by such residuary clause in the will and codicil.

Held, that the devisee C. M. is not entitled to any portion of the residu ary estate, and it should be distributed to the legatees named in the will, in the proportion therein named.

Strictly speaking, real estate given by will is devised, and personal estate is bequeathed. The one receiving real estate is termed a devisee, and the one taking personal property a legatee. One act of giving is a devise, the other a bequest. The person receiving a devise or a bequest is a beneficiary.

Matter of Karr.

A testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a different sense, in which case the sense in which he appears to have used them will be the sense in which they are to be construed.

The ordinary as well as technical meaning of the word "legacy" is a gift of property by will other than real estate; this is its strict and pri mary sense and the one generally accepted. This is the meaning that will be attached to the word by the court, unless it clearly appear from the will itself that the testator has used the word in a different sense.

Allegany county, August, 1885.

Wesley Brown, for legatees.

C. W. Stevens, for devisees.

FARNUM, S.-Is Clinton Moss, a devisee under the will of the testator, entitled to a distributive share of this estate?

The first clause of the will is as follows: "First. After all my lawful debts are paid and discharged, I give and bequeath to Clinton Moss, who is now living with me, his heirs and assigns, all that house, lot, tract and parcel of land where I now reside in the town of Almond, Allegany county, N. Y., containing about forty acres of land."

Immediately following this there are sixteen "items" in his will by which he bequeaths to twenty-two persons specific sums of money; each clause of the bequest commences: “I give and devise."

The eighteenth clause reads: "I give and devise all the rest, residue and remainder of my real estate and of my personal estate, goods and chattels of every kind whatsoever, if any there shall be after paying my debts and the legacies hereinafter named to the several legatees herein before named, to be divided between them share and share alike."

Nine years thereafter the testator made a codicil to said will which was duly admitted to probate with the will, wherein he slightly changed some of the bequests, and which at the end had this clause: "I have by my last will and testament,

Matter of Karr.

referred to above, willed that any remainder or residue of my estate real or personal which may remain after paying debts and legacies, be distributed among the several legatees share and share alike. Now, therefore, I do by this my writing, which I hereby declare to be a codicil to my said will and testament and to be taken as a part thereof, order and declare that my will is, that such distribution be made, not share and share alike, to the legatees, but pro rata or in proportion to the several legacies, excepting Elizabeth Leonard and Hattie Belle Ferry who are not to share in such distribution."

Clinton Moss is the only devisee, and the real property above mentioned is the only real property devised. The testator died leaving a small parcel of land of little value undisposed of in any other way than by such residuary clauses in the will and codicil.

All the beneficiaries under the will other than said Moss claim that they should take the residuum of the estate and that he should be debarred from any portion of it.

The devisee contends that the testator has not used the words "legatees" and "legacies" in the sense in which they are generally understood, and points to the places in the will where he used the word "devise" to give personal estate and "bequeath" to pass real estate, and from that urges that he did not use such words in their technical sense. This argu

ment assumes that because the testator made a misuse of two words he did not understand the meaning of a third. This is not a legitimate inference, and the devisee's contention cannot be upheld on this ground.

Strictly speaking, real estate given by will is devised and personal estate is bequeathed. The one receiving real estate is termed a devisee and the one taking personal property a legatee. One act of giving is a devise, the other a bequest. The person receiving a devise or a bequest is a beneficiary. These distinctions are rarely recognized in wills drawn by those not familiar with legal matters or those careless in the use of words and legal terms. This will presents a familiar