goods and chattels, lands, and tenements of the person ordered to pay, in the manner in which judgments or decrees of any superior court obtained in any suit may be enforced." The second cause of action is to recover the amount claimed to be due upon defendants' contractual liability as stockholders of the insolvent bank. After reiterating the first six paragraphs of the first cause of action, the complaint proceeds: "II. Alleges that prior to the 5th day of November, 1906, the defendants, as copartners under the firm name and style of Charles D. Barney & Co., were the owners and holders of fifty (50) shares of the capital stock of said Ontario Bank, of the par value of five thousand dollars ($5,000). "III. That under and pursuant to the provisions of the laws of the Dominion of Canada, the defendants, as shareholders of said bank, in the event of its property and assets being insufficient to pay its debts and liabilities, were and are liable for the deficiency to an amount equal to the par value of the shares held by them, in addition to any amount not paid up on such shares. "IV. That, in the proceedings entitled 'In the Matter of the Ontario Bank and in the Matter of the Winding-Up Act,' and in pursuance of the provisions of said act, an order was duly made in said proceedings on or about the 1st day of November, 1910, establishing the deficiency of the property and assets of said bank as 95 per cent. of the capital stock thereof, and directing a call on the shareholders for that percentage to be made by the plaintiff. "V. That the amount of such deficiency apportionable to the defendants pursuant to said last-mentioned order is four thousand seven hundred and fifty dollars ($4,750)." The demurrer attacks the complaint, and each cause of action, for insufficiency, and also upon the ground that the court has no jurisdiction, and that plaintiff has no legal capacity to sue. [1] The objection urged to the first cause of action is that it is not alleged that the plaintiff ever obtained, in the Canadian action, jurisdiction of the person of the defendants. We are of the opinion that this objection is not well taken. It is alleged that the High Court of Justice, in which the judgment was recovered, is a court of general jurisdiction, and that "due service of notice of application" for said judgment had been made on defendants. These allegations are sufficient to establish prima facie the regularity and validity of the foreign judgment, leaving it to defendant to plead such facts as may tend to show that jurisdiction of the person was never obtained in the Canadian court. [2] As to the second cause of action, it must now be regarded as well settled that a foreign trustee, receiver, or liquidator may, in a proper case, sue in our courts a stockholder resident here for his proportionate liability as such stockholder. Howarth v. Angle, 162 N. Y. 179, 56 Ν. Ε. 489, 47 L. R. A. 725; Shipman v. Treadwell, 200 N. Υ. 472, 93 Ν. Ε. 1104. In both of these cases receivers of insolvent foreign corporations were permitted to sue stockholders resident in this state upon the liability of such stockholder imposed by statute of the foreign state, and assumed by the stockholder when he acquired his stock. The present is a precisely similar case. [3] It is strenuously insisted by defendants that the complaint fails to show any such title in plaintiff as would warrant an award of judgment in its behalf. The allegation is that under its appointment as liquidator "all the property, effects, and choses in action to which the said bank was or appeared to be entitled came into its custody or under its control." This allegation does not differ materially from that contained in Shipman v. Treadwell, supra, as to the right of the plaintiff in that case to maintain a judgment in this state. There the allegation was, as appears by the summary of the complaint in the opinion of the court, that the plaintiff was appointed receiver "to take and hold the assets of the corporation," which means no more than that the assets were placed in his "custody or under his control." The fact that the plaintiff in this case is called "liquidator," and in the case cited was called "receiver," of course, does not determine the right to maintain the action. The real question is not as to the extent or character of plaintiff's title to the assets, but whether or not a payment to it would be so complete an acquittance of defendants' liability that it would stand as a bar to an attempted recovery by any one else. We think that the allegations of the complaint sufficiently show that prima facie it would be such a bar. If for any reason it would not, the facts can be pleaded by way of answer. It follows that the order appealed from must be affirmed, with costs, with leave to defendants to withdraw the demurrer and answer within 20 days, upon payment of all costs. All concur. WEBBER et al. v. AHEARN et al. (Supreme Court, Appellate Division, First Department. February 7, 1913.) 1. MORTGAGES (§ 437*) -FORECLOSURE-NECESSARY PARTIES. An action to foreclose a mortgage could not proceed to judgment until a person, in possession under a contract of sale since a period prior to the filing of the lis pendens, was brought in. [Ed. Note. For other cases, see Mortgages, Cent. Dig. $ 1290; Dec. Dig. § 437.*] 2. MORTGAGES (§ 467*) - FORECLOSURE-RECEIVERS. A receiver of rents and profits should not be appointed, in an action to foreclose a mortgage, until a person, in possession under a contract of sale since a period prior to the filing of the lis pendens, is made a party. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1371-1373; Dec. Dig. § 467.*] Appeal from Special Term, New York County. Action to foreclose mortgage by William Webber and others, as executors of Richard Webber, deceased, against James Ahearn and others. From an order appointing a receiver of rents and profits, Catherine Reisert Ahearn, a person in possession, but not a party to the action, appeals. Reversed. Argued before INGRAHAM, P. J., and McLAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes B. F. Norris, of New York City, for appellant. Maurice Deiches, of New York City, for respondents. SCOTT, J. [1, 2] The appeal is taken by one Catherine R. Ahearn, not a party to the action, who claims to be in possession under a contract of sale, and to have been so since a period prior to the filing of the lis pendens. That she is so in possession is not denied, and it is manifest that the action cannot, under the circumstances, proceed to judgment until she is brought in. Nor should a receiver have been appointed until she was made a party. The order must therefore be reversed, with $10 costs and disbursements, and the motion for the appointment of a receiver denied, with leave to renew after the appellant has been brought in as a party. All concur. (155 App. Div. 228.) In re MERRITT'S ESTATE. (Supreme Court, Appellate Division, First Department. February 7, 1913.) 1. TAXATION (§ 8862*) - INHERITANCE TAX-RATE OF TAXATION-"WIFE""WIDOW." A bequest by a testatrix to her son's wife, who before the death of testatrix obtained an absolute divorce from the son, was not a bequest to either the "wife" or the "widow" of the son, within Tax Law (Consol. Laws 1909, c. 60) § 221, providing a tax of only 1 per cent. on property passing by a will to the wife or widow of a son. [Ed. Note. For other cases, see Taxation, Dec. Dig. § 88612.* For other definitions, see Words and Phrases, vol. 8, pp. 7456-7460.] 2. TAXATION (§ 886%*) - INHERITANCE TAX-RATE OF TAXATION. A testatrix directed her executors to set apart a sum sufficient to buy 5 per cent. railroad bonds amounting to $60,000 and apply the income to the use of her son's divorced wife. She had previous to her death agreed in writing to pay the son's wife $2,800 a year for life or until remarriage. After her death suit was brought by the wife, who claimed to be entitled to the sum provided in the contract, as well as the income of the fund established by the will, but was settled by an agreement that she should receive the amount provided by the contract and $1,000 a year, and should renounce her claim to any greater amount. The executors claim that the provision of the will for her benefit is void. Held, that the settlement agreement recognized the provision of the will as valid to the extent necessary to produce an annuity of $1,000 a year, and to that extent the fund directed to be provided for her benefit did not pass into the residuary estate, which was assessable only at the rate of 1 per cent. and hence was assessable at the rate of 5 per cent. [Ed. Note. For other cases, see Taxation, Dec. Dig. § 8862.*] 3. TAXATION (§ 8861⁄2*) - INHERITANCE TAX-RATE OF TAXATION. Where a legatee renounces a legacy in whole or in part, the part renounced is taxable as if originally given by the will to those who then take it, and not at the rate applicable to a legacy to the original legatee. [Ed. Note. For other cases, see Taxation, Dec. Dig. § 8862.*] Appeal from Order of Surrogate, New York County. Proceeding for the assessment of the transfer tax on the estate of Julia Merritt, deceased. From an order of the surrogate, affirming an order of the appraiser determining the cash value of certain property of the decedent and assessing a tax thereon, the executors and trustees under the will of deceased appeal. Modified. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ. Omri F. Hibbard, of New York City, for appellants. Moses R. Ryttenberg, of New York City, for respondent State Comptroller. LAUGHLIN, J. The decedent left a last will and testament which purports to have been executed on the 29th day of May, 1901, and two codicils thereto, in which it is recited that they were executed on the same day that the will bears date. She died on the 4th day of November, 1904. Prior to her death, but whether prior to the execution of the will does not appear, her son, George W. Merritt, who survived his mother, but has since died, had married, and his wife had obtained a decree of absolute divorce from him in this state. By her will the testatrix directed her executors to divide her residuary estate into eight equal parts, and directed that they should invest two of said parts and apply the net income arising therefrom to the use of her son George W. Merritt during life, with the remainder over to his issue, or to her other children or their issue, with a proviso that out of such income the executors should pay to Augusta Temple Merritt, who was or had been the wife of said George W. Merritt, an annuity or yearly income of $3,000, payable in equal quarterly payments, to be computed from the day of the death of the testatrix during the life of said Augusta Temple Merritt, "or so long as she shall remain unmarried," and said annuity was expressly charged upon that portion of the estate held in trust for said son of the testatrix. By the first codicil she revoked the provision charging the annuity of $3,000 against the income given to her son, and substituted therefor a provision directing her executors to set apart from her estate a sum sufficient to buy, and she authorized them "to buy, $60,000 5% railroad bonds and collect the income and interest thereof and apply the same to the use of Augusta Temple Merritt for her life only, or so long as she shall remain unmarried." No change was made by the second codicil affecting these provisions. It was shown by the affidavit of one of the sons of the testatrix that prior to the execution of the will the testatrix had entered into an agreement in writing with said Augusta Temple Merritt wherein and whereby the testatrix agreed to pay the said Augusta Temple Merritt the sum of $2,800 per annum for life or until remarriage; that after the death of the testatrix said Augusta Temple Merritt sued the estate, claiming both the annuity under said agreement and under the will; that this litigation was settled on the 23d day of May, 1907, and that by the settlement agreement "said Augusta Temple Merritt was to receive the amount of twenty-eight hundred ($2,800) dollars per year as in said contract provided, but in regard to her claim to the entire income of the fund of sixty thousand ($60,000) dollars so established" by the will "she accepted the sum of one thousand ($1,000) dollars per annum, and waived and renounced all claim to any greater amount," and that the settlement on those terms was made in good faith, and as the result of the contention by said Augusta Temple Merritt that she was entitled to both annuities, which was contested by the executors. The present value of the life use of the trust fund of $60,000 given to said Augusta Temple Merritt by the will was determined to be the sum of $38,500, and a tax upon that amount was assessed at the rate of 5 per cent. [1] The appellants contend that a tax of only 1 per cent. should have been imposed upon the fund. One theory upon which this contention is made is that Augusta Temple Merritt was the "wife or widow of a son" of the testatrix, within the fair intent of the statute. Section 221, Tax Law (Consol. Laws 1909, c. 60). Undoubtedly the annuity was given on account of the fact that the beneficiary was then or had been the wife of the son of the testatrix; but having obtained a divorce from him she was no longer his wife, and, he being alive at the time of the death of the testatrix when the will took effect, she was not a widow, and while her inchoate interest in any real estate owned by him at the time she obtained the divorce was preserved (Code of Civil Procedure, § 1759) she would not participate as a widow in the distribution of his personal property should he die intestate. Price v. Price, 124 N. Y. 589, 27 Ν. Ε. 383, 12 L. R. A. 359; Matter of Estate of Ensign, 103 N. Y. 284, 8 Ν. Ε. 544, 57 Am. Rep. 717; Van Cleaf v. Burns et al., 118 N. Y. 549, 23 Ν. Ε. 881, 16 Am. St. Rep. 782; Livingston v. Livingston, 173 N. Y. 377, 381, 66 Ν. Ε. 123, 61 L. R. A. 800, 93 Am. St. Rep. 600. [2] It is further contended that Augusta Temple Merritt takes under the agreement made in settlement of the litigation, and not under the will, and that, therefore, the fund which the executors were directed to invest for her benefit passed into the residuary estate, which concededly was assessable only at the rate of 1 per cent. This claim is based upon the fact that the executors contended that the provision of the will for the benefit of Augusta Temple Merritt was void. The theory upon which that claim was made is not disclosed; but it is not material, because by the settlement agreement the validity of the provision made by the testatrix in the will for the benefit of Augusta Temple Merritt was recognized to the extent necessary to produce an annuity of $1,000 a year for her, and by the very terms of the agreement, as shown by the affidavit, to that extent she takes under the will. [3] The executors further contended that it was error to impose the tax upon the theory that Augusta Temple Merritt took under the will the income from the entire fund of $60,000, when it appears without controversy that before receiving any income under the will she formally renounced her claim to the extent of two-thirds thereof. Of course, if those interested in the residuary estate took the two-thirds interest renounced by Augusta Temple Merritt through her, and not from the testatrix, then it would all be taxable as if taken by her and not relinquished to them (Matter of Cook, 187 N. Y. 253, 79 Ν. Ε. 991; People ex rel. Andrews v. Cameron, 140 App. Div. 76, 124 N. Y. Supp. 949, affirmed 200 N. Y. 585, 94 Ν. Ε. 1097); but it has been authoritatively decided that a legatee may renounce a legacy, and it is |