Tynan agt. Cadenas. Mr. Goodhart, opposed. VAN BRUNT, J.-The fact that in the assignment no provision is made for the preference for the wages or salaries owing to employees may invalidate the assignment, but merely because the assignment is void upon its face affords no reason for the issuance of an attachment (Milliken agt. Dart, 26 Hun, 24). The fact that the assignee does not actually reside in the state does not of itself furnish proof of fraudulent intent. The preference of the notes mentioned in the moving papers does not render the assignment void upon its face. A liability may exist because of those notes, and until it is shown that no liability does in fact exist, no fraud can be assumed. SUPREME COURT. JOHN H. TYNAN, respondent, agt. MANUEL CADENAS and another, appellant. JUAN R. HIGUERA and another, respondent, agt. THE SAME, appellant. Interpleader-Code of Civil Procedure, section 820. Where two claimants each claim the price of certain goods alleged by each of them respectively to have been sold and delivered by him to the purchaser. Held, that (the necessary facts required by section 820 of the Code of Civil Procedure being shown) the purchaser is entitled to interplead them and be discharged from liability to either. Sherman agt. Partridge (4 Duer, 646) and Trigg agt. Hitz (17 Abb. Pr., 436) distinguished. The principle laid down in Baltimore and Ohio R. R. Co. agt. Arthur (90N. Y., 237) followed. First Department, General Term, October, 1885. Before DAVIS, P. J., BRADY and DANIELS, JJ. Tynan agt. Cadenas. APPEAL from an order denying a motion made by the defendants to interplead the plaintiffs. Stephen M. Ostrander, for plaintiff and respondent, Tynan. R. V. W. Du Bois, for plaintiff and respondents, Higuera & Co. Edward M. Shepard, for defendants and appellants. The defendants, Cadenas & Coe., by a transaction had with the plaintiff, Higuera, alone purchased, as they supposed, from the firm of Juan R. Higuera & Company, 4,000 pounds of "Picadura" tobacco. The plaintiff, Tynan, was unknown in the transaction. Before the defendants had paid for the tobacco the plaintiff, Tynan, interposed a demand for its price and commenced an action against them demanding judgment therefor. The complaint in the action alleged "that on or about the 17th day of March, 1885, at said city, this plaintiff sold and delivered to said defendants, Cadenas & Coe., at their request, goods, wares and merchandize, consisting of 4,000 pounds of manufactured Picadura' tobacco, and at their instance and request (made through their authorized agent, one Juan R. Higuera) duly bonded and shipped on board the steamer 'Glenfyne,' Red D. line, on or about said last mentioned date, the aforesaid goods, wares and merchandize." Subsequently an action was commenced against them by the plaintiffs, Juan R. Higuera & Company, demanding a like judgment for the price of the tobacco. The complaint in this action alleged "that on the 17th day of March, 1885, at the city of New York, the plaintiffs sold and delivered to the defendants twenty bales of the net weight of 3,000 pounds of manufactured Picadura' tobacco that on the 18th day of * * * March, 1885, at the city of New York, the plaintiffs sold and delivered to the defendants ten barrels of the net weight of 1,000 pounds of manufactured 'Picadura' tobacco." The defendants thereupon, and before answering in either Tynan agt. Cadenas. case, moved for an order that in each case the plaintiff in the other case be substituted as defendant in place of the defendants Cadenas & Coe. In the affidavits read upon the motion the plaintiff Tynan further alleged that "said Juan R. Higuera and Emanuel Berger have not, nor has either of them, now or heretofore, any right, title or interest in or to said tobacco, or the proceeds of the sale thereof, either as partners or otherwise, and that their pretended claim thereto, as set forth in their said complaint, is without any foundation, and is wholly false and fraudulent." And the plaintiffs Higuera & Company further allege that "John H. Tynan, the plaintiff in the cross suit, never has had any interest whatever in these goods or in the money in question." There was no dispute as to the amount of the debt or that it was due to one or the other of the plaintiffs. The defendants' moving papers also showed that the demand was made in each case without collusion with them. The motion was denied, the court writing the following memorandum: LAWRENCE, J.-"The motions in these cases, why the plaintiffs in the respective actions should not interplead, &c., must be denied, with costs, on the authority of Sherman agt. Partridge (4 Duer, 646), and Trigg agt. Hitz (17 Abb. Pr., 436–9).” From the order entered upon this decision the defendants appealed. PER CURIAM.-Order reversed on the rule stated in Balti more Co. agt. Arthur (90 N. Y., 237-234, and sec. 820 of the Code of Civ. Pro.) Order directed for the interpleader of the plaintiffs in the two suits upon payment by the defendants into court of the sum of $480 with interest, with $10 costs and disbursements of appeal to appellants. Matter of Fernbacher, deceased. SURROGATE'S COURT. In the Matter of the Estate of WOLFE FERNBACHER, deceased. Executors-Code of Civil Procedure, sections 2685, 2686, 2687— When letters of executors may be revoked for misconduct-Conduct which will authorize their removal pending accounting proceedings. In construing a will whose provisions are fully set forth infra; Held, that the testator's widow was given a life estate simply, with power to receive and enjoy only the interest and income of the principal which at her death was to go to the testator's children. Held, also, that under the circumstances here disclosed, the conduct of the executor in turning over the entire estate to the testator's widow for her own use and enjoyment, without exacting from her any security for the protection of the interests of the remainderman, was such wasteful and improvident management of the estate as to demonstrate the unfitness of such executors for the due administration of their trust, and to justify the revocation of their letters. It seems, that although the general practice is to defer the determination of an application for the revocation of testamentary letters pending accounting proceedings, until such proceedings have terminated, yet under certain circumstances executors may be removed during the pendency of such proceedings. New York county, November, 1885. Lauterbach & Spingarn, for executors. Jacob Marks, for contestant. ROLLINS, S-The issues raised by the objections interposed to the accounts of Nathan Fernbacher, executor, and Regina Fernbacher, executrix of this estate, are now on trial before a referee appointed by the surrogate. Pending such trial, the party at whose instance the accounting was ordered seeks the revocation of the testamentary letters heretofore issued to the accounting parties and to Samuel Abraham, their co-execuVOL. III. 11 Matter of Fernbacher, deceased. tor. The ground of this application is the alleged waste and misappropriation by the executors, of the property and assets of the estate and the improvident management of its affairs. The action of her associates in turning over and suffering to be turned over to the executrix individually, and for her own use and enjoyment, the entire estate (after payment of certain legacies bequeathed by the third and fourth clauses of the will, and after certain disbursements specified in the account), and the action of the executrix herself in converting such property to her own use, are the main grounds upon which the petitioner relies in this proceeding. In determining whether those grounds will support the revocation of letters, it is necessary to construe certain provisions in the testator's will. Of the authority of the surrogate in this regard, under such circumstances as the present, I have no doubt. The reasons that justify the exercise of such jurisdiction in proceedings for the judicial settlement of executor's accounts are equally applicable here. Those reasons are set forth in Tappen agt. M. E. Church (3 Dem., 187). The testator's will contains the following provisions: "First. I give and bequeath to my wife, Regina Fernbacher, all my real and personal estate of whatsoever nature and wheresoever situate, for her life, she to have the same power of sale and control over said property as I could have in my own proper person, during her said life estate. "Second. I give and bequeath to my children or their heirs, share and share alike, all the rest, residue and remainder of my real or personal property in fee absolutely and forever which shall remain after the life estate given in the first provision of this my will to my wife Regina Fernbacher. "Third. It is my will and I give and bequeath to my daughter, Pauline Fernbacher, $1,000 of the insurance which is now on my life in addition to that portion of my real and personal property which she shall be entitled to receive under the second provision of this my will. "Fifth. It is my will and I direct that my sons carry on the |