106 N.Y.S. 29 | N.Y. Sup. Ct. | 1907
After providing for the maintenance of his son Thomas, the testator gave a life estate in all his property to his widow, with remainder over to his nine children. They took a vested interest, liable, however, to be divested in the event of their predeceasing their mother. The will expressly declares that in the event of the death of a child before the termination of the life estate the issue of said deceased child shall take the parent’s share. One son, Edward M. Senior, died before his mother’s decease, and his interest and that of those claiming under him thereupon ceased. The rights of judgment creditors, receivers and purchasers at sheriff’s sales, so far as they affected Edward M. Senior, 'became extinguished when he died. When his death occurred the share intended for him passed to his six children, absolutely freed from their father’s liabilities; they did not take as heirs of their father, but as devisees of their grandfather, the testator. The supplementary proceedings instituted upon the Hart judgment recovered against the defendants William A. Senior and Theodore E. Senior were not void. The defects in those proceedings were not jurisdictional, and were waived by the appearance and examination of the judgment debtors and the appointment of' a receiver without objection. Glover v. Gargan, 10 App. Div. 527 But although the appointment of the receiver was valid, his attempted sale of the judgment debtor’s real estate was ineffectual to pass title. A receiver appointed in proceedings supplemental to execution does not acquire any title to the real property of the judgment debtor, nor any power to sell or transfer such real property. His interest is simply a right to take possession of the judgment debtor’s real property for the purpose of satisfying the judgment, and is subject to be terminated by a sale of the real property under execution and the delivery of a deed thereof to the purchaser; it is also subject to be terminated by expiration of the ten years during which the judgment under which the receiver is appointed is a lien upon the premises. Chadeayne v. Gwyer, 83 App. Div. 403; Dawers v. Sternberger,. 52 Misc. Rep. 532; Steenberge v. Low, 46 id. 285. The sheriff’s deed under the
Ordered accordingly.