Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924103304782 REPORTS OF CASES ARGUED AND DETERMINED COURT OF CHANCERY STATE OF NEW YORK. ■ BY OLIVER L, BARBOUR, COUNSELLOR AT LAW. SECOND EDITION, ANNOTATED, BY STEWART RAPALJE. VOL. IIL NEW YORK: BANKS & BROTHERS, LAW PUBLISHERS, No. 144 NASSAU STREET. ALBANY: 475 BROADWAY. 1883. Entered according to act of Congress, in the year one thousand eight hundred and forty-nine, Br BANKS, GOULD & CO., in the clerk's ofQce of the district court for the southern district of New York. Entered according to act of Congress, in the year one thousand eight htindred and seventy-seven, Bt banks & BROTHEES, in the office of the Librarian of Congress at Washington. Entered according to act of Congress, in the year one thousand eight hundred and eighty-three, Br BANKS & BE0TB:ERS, in the office of the Librarian of Congress at Washington. CHANCELLOR, VICE CHANCELLORS, ijii ASSISTANT VICE CHANCELLORS, DURING THE TIME OF THE FOLLOWING aEPOBTS. Chancellor. REUBEN H. WAI^WORTH. Vice Gliancellors and Assistant Vice Chancellori. FIRST CIECniT, LEWIS H. SANDPORD, V. C. ANTH'Y L. ROBERTSON, A. V. C. SEOpND CIBCniT, SEWARD BARCULO. THIRD CIRCUIT, AMASA J. PARKER. PODBTH CIRCCIT, JOHN WILLARD. FIFTH CIBOUIT, PHILO GRIDLEY. SIXTH CIRCmT, HIRAM GRAY. SEVENTH 51RCDIT, BOWEN WHITING, EIGB7B CraCOIT, FREDERICK WHITTLESKf, C3) A TABLE OP THE NAMES OF THE CASES REPORTED IN THIS VOLUME. The letter v follows the name of the complainant. A Alaop, Pierce v. 184 Alston T. Jones, 397 American Life Insurance and Trust Co. V. Bayard, 610 American Mutual Insurance Co., Herckenrath V 63 B Bailey, Wakeman v 482 Bank of Utica v. Pinch, 293 V. Mersereau, 528 Bank of Orleans v. Plagg 317 Banks V. Walker, 438 Bard V. Port 632 Barker, Union Bank V 358 Bayard, American Life Insurance and Trust Co. T 610 Bell V. Hunt 391 Bradstreet v. Schuyler, 608 Buloid, Lovett v 137 Bush, Johnson v 207 Butler V. Butler, 304 C Cairnes, Jansen t 350 Childs T.Clarkj 53 Clark, Childs V 52 Collier, Wilberv...., 427 Copland, Rawson v .' 166 Craig T. Craig, 76 Cromer v. Pinokney 466 Croton Ins. Co., Matter of 648 D De Mott V. Starkey, 403 De Ruyter v. Trustees of St. Peters' Church, 119 Dickinson, Graham v. 1 69 Douglass V. White,! 621 Dunham v. Gates 196 Pello-ors V. Harrington, 652 Penton, Peabody v 451 Perguson v. Eimball, '. . 616 Pinch BankofUticav 293 Fisher, Hall v , 637 Pitzhugh, Johnson v 360 Plagg, Bank of Orleans v 317 Port, Bard v 632 Preeland, Livingston v 51 Freeman V. Warren, 635 G Gates, Dunham V 196 GHles, Sackettv 204 Gorham v. Gorham, Hi Graham v. Dickinson, 169 (5) CASES REPORTED. H Hall V. Fisher 637 Harrington, Fellows v 652 Hazleton, Wakeman v 148 Herckenrath v. American Mutual Insurance Co., 63 Hone V. Van Schaick, 488 Howe, Maples v 611 Hoyt V. Mackenzie 320 HuntBellv 391 Jansen v. Caimes 350 Johnson v. Bush, 207 V. Fitzhugh ■ 360 Jones, Alston t 397 K Kimball, Ferguson V 616 Kingsland v. Spalding 341 Eirby V. Schoonmaker, 46 h Lady Superior, &c. v . McNamara, 375 La Grange v. Merrill 625 Lansing v. Russell 325 Lawrence v. Lawrence 71 Livingston v. Frecland 510 ■ — V. Ostiander 416 Longley, Stranse t 650 Lovett v.Buloid, 137 towiy V. Tew, 407 M McGiffert, Nelson v 158 Mackenzie, Hoyt v 320 McNamara, Lady Superior, &c. v. 375 Mallory v. Vanderheyden 9 Mann t. Rice 42 Maples V. Howe, 611 Matter of the Croton Ins. Co. 642 Merrill, La Grange v , . . . . 625 Mersereau, Bank of Utica t 528 Miller, Wright v 382 Montgomery V. Montgomery, 132 Muir V. Trustees of the Leake and Watts Orphan House, 477 N Nelson v. McGiffert, . Newland v. Rogers, . , 158 432 416 o Ostrander v. Livingston, . P Paine, Warner t 630 Parsons v. Mumlbrd, IbJ Peabody v. Fenton 451 Pierce v. Alsop, 184 Pirickney, Cromer v ." 466 Planck V. Schermerhom, 644 R Rawson v. Copland, 166 Rexford v. Widger, 640 Rice, Mann ▼ 43 Rogers, Newland v , . 432 Russell, Lansing v 325 Sackettv. Giles 204 Sanford, Shepherd v 127 Schermerhom, Planck v 644 Schoonmaker, Kirby v 46 Schuyler, Bradstreet v 608 Seaman v. Stoughton, 344 Shepherd v. Sanford 127 Spalding, Kingsland v 341 Spoor V. Wells, 1S9 Starkey, De Mott V 403 Stoughton, Seaman v 344 Strange v. Longley, 650 Sweet V. Van Wyck, 647 T Tew, Lowry V 407 Tripp V. Vincent, 613 Trustees of St. Peter's Chiirch, De Ruyterv 119 Trustees of the Leake and Watts Orphan House, Muir v 477 u Union Bank V. Barker, 358 CASES REPORTED. VII Vandeiheyden, Mallory t 9 Vandervolgen v. Yates, 242 V^n Schaick, Hone v 488 Van Wyck, Sweet V 647 Vincent, Tnpp v 613 w Wakeman V. Bailey, 482 — — V. Harieton 148 Walker^ Sank* v 43H \yandell, Wiswall V 313 Warner V. Paine 630 Warren, Freeman v 635 Wells, Spoor v 199 Widger, Rexford v 640 White, Douglass v 621 Wilberv. cSllier 427 Williams v. Williams 628 Wiswall V. Wandell 313 Wright V. Miller, 383 Tites, Vinderrolgea v SMS CASES IN CHANCERY Mallory and others vs. Vanderheyden. [Reversed, 1 N. T. 452.] The liability of a tiusband, for the debt of his wife, and to be sued jointly with hei in i.n action at law for the recovery of the same, terminates upon his being dis- charged under the bankrupt act. And no suit at law can be maintained against the wife during the life of the husband, without joining her husband with her :n the same suit. The remedy at law is therefore suspended as to the wife, or her estate, during the coverture. But there is nothing in the English bankrupt act, or in our act of 1841, by whichi the discharge of the husband is made a discharge of his wife, or a discharge of hen separate estate, or of her reversionary interest in her real estate after the death of her husband, from liability for debts contracted by the wife before het marriage. Where the wife survives her husband, who has been discharged under the baak- Tupt act, actions at law may be maintained against her for her debts, contracted be- fore her marriage ; in the same manner as if her husband had not been discharged from liis liability. TJpon the death of the husband, debts contracted by the wife before the marriage, and which have not been recovered of her and her husband during heE coverture, survive against her ; and the estate of her husband is not liable therefiir. Where the husband survives the wife, although he is no longer liable for debts con- tracted by her while sole, however much he may have received by the marriage, her separate estate, in the hands of her personal representatives, is liable for those debts. A creditor, whose remedy at law, for the collection of a debt contracted' by a married woman previous to her marriage, is suspended during the lifetime of the husband, by his discharge under the bankrupt act, may file a bill in chancery, against the husband and wife, to reach stocks standing in her name, for her sole and sepa- rate use, and other property held in the same manner, and which belonged to her ' before her coverture ; and may have such separate property applied to the pay- ment of his debt. Where rights exist, and the remedy at law is inadequate to meet the justice and equity of the case, it is a part of the ordinary jurisdiction of the court oif chan- cery to provide for such a case. Vol. III. 2 10 CASES IN CHANCERY. [Fkb 2i Mallory v. Vanderheyden. This was an appeal by the defendants from a decretal order of the vice chancellor of the third circuit, overruling the de- murrer to the bill of the complainants. The object of the bill was to reach certain stocks standing in the name tf Mrs. Van- derheyden, for her sole and separate uge, and otiur property held in the same manner, and which belonged to her before coverture ; and to have it applied to the payment of a debt which she owed to the complainants at the time of her mar- riage ; her husband having been discharged from his debts un- der the bankrupt act. The following opinion was delivered by the vice chancellor : Parker, V. C. The first inquiry in this case is, whether the facts stated in the' bill of complaint and admitted by the demurrer, entitle the cpmplainants to the relief asked for, inde- pendent of the question arising from the husband's discharge in bankruptcy, which I shall afterwards consider. It has long been a well settled rule, in equity, that a feme covert, in regard to her separate property, is considered a feme sole, and may by her contracts bind such separate estate, though she is incapable, even in equity, of binding herself personally. (Doteling v. Maguire, Lloyd ^ Goold's Rep. temp. Plunket, 19. Cdter v. Eveleigh, i= Dessau. Rep. 19. Montgomery v. Eveleigh, 1 McCord's Ch. Rep. 267. 17 John. Rep. 548. 7 Paige, 14, 112.) But there has been much difference of opinion as to the character of the contract necessary to bind her separate prop- erty. One of the leading cases on this subject was that of Hulms V. Tenant, (1 BrowrSs Ch. Rep. 15,) where it was held by Lord Thurlow that a bond of a feme covert, executed jointly with her husband, should bind her separate estate. The cor- rectness of this decision was several times called in question by Lord Eldon, and particularly in Nantes v. Currock, (9 Ves. 181,) and ia Jones v. Harris, {Id. 497 ;) yet it seems fully to be sus- tained by the later decisions. In Bullpin v. Clark, (17 Ves 365,^ a married woman had borrowed money, and having promised verbally to repay it out of her separate property, ehe gave her promissory note. The court of chancery decreed pay- 1848.-1 CASES IN CHANCERY. 1] Mallory v. Yanderheyden. ment of the debt out of the rents and profits of estates settled to her separate use. In the still later case of Murray v. Bar- lee, (4 jSim,. Rep. 82,) the vice chancellor, Sir Launcelot Shad- well, decreed payment of a debt out of the separate property of a feme covert, whera no bond or note had been given, but ■when she had promised by letter to pay the debt ; or had said what was considered equivalent to a promise. The same case came before Lord Chancellor Brougham on appeal, and was affirmed by him, in 1834. (3 Mylne 6r Keene, 209.) The opinion of Chancellor Brougham goes the full length of saying that the wife's separate property is bound, whether the promise is in writing or verbal. It i; conceded in all these cases that the bond, note, or promise is void and inoperative at law ; but it is held, that in equity it shall be considered an appointment of her sole and separate property. The power of appointment is incident to the right to enjoy her separate property. There must appear to be an intention to change her separate estate; otherwise the debt will not affect it. (2 Stori/'s Eq. 628.) All, these decisions proceed upon the ground, that having contracted the debt during cov- iirture, the presumption is that she intended to charge her sep- arate estate. It is said by Judge Story, (2 Story's Eq. 773,) that the decisions have not yet gone the full length of holding, that all her general pecuniary engagements shall be paid out of her separate property, without some particular promise or engagement, operating as an appointment ; but he admits that the tendency of the more recent decisions is certainly in that direction. (2 Story's Eq. 628. 18 Fes. 255.) But it seems to me the court for the correction of errors in this state, in Gard- ner V. Gardner, (22 Weiid. 528,) have gone that length. Mr. Justice Cowen, in giving the leading opinion in that case, says, I think the better opinion is, that separate debts, contracted by her expressly on her own account, shall in all cases be con- sidered an appointment, or appropriation for the benefit of the creditor, as to so much of her separate estate as is sufiicient to pay the debt, if she be not disabled to charge it by the terms of the donation. And I think that such should be the rule, 12 CASES m CHANCERS. L^b"- 21 Mallory v. Vanderheyden. and that nothing short of it will fully cany out the ackiiow ledged doctrine, that in regard to her separate property a feme covert is to be considered a feme sole ; for the property of a feme sole would be liable to all her general creditors. In ad- dition to the case I have referred to, the Bourts of this state, in other decisions, have recognized the rule as fully as it has been laid down by the English court of chancery. (7 Paige, 14. 3 John, a E. 77. 17 John. Rep. 548, 580. Gardner v. Gard- ner, 7 Paige, 112. Shirly v. iShirly, 9 Id. 363.) In this case, however, it is unnecessary to look for a broader rule ; for the intention to charge her separate property appears clearly from the facts set forth. Frjm the admitted allegations i i the bill, it is shown that the goods were sold, and the money ad- vanced to the wife, while sole, upon the credit of her individual property ; and that it was agreed by her that the debt should be paid by applying it on notes which the complainants owed the estate of her former husband. This was equivalent to a direct and express agreement to pay out of her individual prop- erty, and was repeated and assented to at different times, after the marriage, by both defendants ; who continued to evince a desire to have such an arrangement made till February, 1843. But it is urged by the defendants' counsel that the debt not having been contracted during coverture, the presumption that she intended to appropriate her sole and separate property does not apply. I think this objection not available ; because what ever the presumption might be, this case does not rest on pre- sumption. The intention to pay out of her separate property is made to appear affirmatively, both before and after marriage, by the agreement to which I have already adverted. Nothing on that subject is left to inference or presumption. The case of Briscoe v. Kennedy, decided by the master of the rolls and reported in the note to Hulme v. Tenant, (1 Brown's Ch. Rep. 17,) is in point. There the debt of the wife accrued before co- verture : and after marriage the wife conveyed her property foi her separate use ; upon a bill filed by the creditor against the husband and wife, and after proceeding to outlawry against '.he i848.1 CASES IN CHANCERY. 13 Mallory u. Vanderheyden. husband, the court decreed payment of the debt out of the sep. arate estate of the wife. The next question to be considered is, whether the demand of the complainants jvas extinguished by the discharge in bankruptcy of the husband. The only adjudged case bearing on this point is that of Miles v. Williams, (1 Peere Wms. 257.) That was a case in the king's bench. Debt was brought against baron and feme on a bond entered into by the feme ium sola. The defendants pleaded the discharge of the hus- oand in bankruptcy, to which the plaintiff demurred. After several arguments it was held that the discharge was a bar to the action ; although judgment was given for the plaintiff on the demurrer, upon the ground that the plea did not conclude to the contrary. The correctness of this decision, in holding a discharge a bar to an action at law against the husband and his wife, has never been doubted. In the case now before me, pre- viously to filing the bill, a suit at law was brought by the com- plainants against Vanderheyden and wife, to which they pleaded the discharge of the husband ; when the complainants, acquiescing in the settled rule at law, discontinued their suit. In Miles v. Williams, Ch. J. Parker remarked, that as to the wife the bankrupt's certificate would be a discharge, at least a temporary one, viz. during the husband's life ; but though it was not necessary to give an opinion upon that point, he thought it would amount to a perfect release, and that the wife w^ould be discharged forever. This intimation is merely a dictum of the chief justice, the question being in no way in- volved in the case then before the court. And unless on exami- nation it appears to b? founded in principle, it cannot be regarded as authority. Let us see whether it is not in conflict with the well settled rules controlling the rights which grow out of the relations of husband and wife. The husband is liable for the debts of the wife if contracted during coverture. When the coverture is at an end his liability ceases. In case of lier death; he is no longer liable ; and in case of his death, the debts sur- vive against the wife, and may be collected of her separata property, if she has any. And although she may have brought 14 CAS^S IN CHANCER V. [Feb. 2! Mallory v. Vanderheyden, lo her husband thousands of dollars in possession, and tnay have received nothing from her husband's estate at his death, and may have no separate property, still the debt survives a^auist her on the death of the husband, and she is personally liable. The estate of the husband would not in such case bt liable. His liability does not depend upon the amount he re- ceives with his wife. The rule of law that makes him liable during coverture for her debts, contracted dum sola, is in nc way connected with that which entitles him to his wife's prop- erty at marriage. Each is a distinct and independent principle of law. By the discharge in bankruptcy the debt is released so far as the bankrupt is concerned ; that is, his liability to be sued at law, and to be compelled to pay the debt during cover- ture is discharged. All his liability is forever cancelled. The right to collect from his property no longer exists. The debt is fully discharged and extinguished as to him ; as much so as if he had never become liable by his marriage. It can have no greater effect, for it was not his debt. The credit was not given to him ; it was given to the wife dum, sola. The credit- ors might have refused to give credit to him ; and no act of his or hers could bind the complainants so as to transfer the indebtedness from her to him. By his marriage he did not be- come the principal debtor. He only assumed a contingent liability, which might be enforced or might not ; and until the debt was paid it remained her debt. Reeve, in his treatise on domestic relations, says, the debt of a feme sole is not on her marriage considered as transferred to her husband. If it was, he, or his executor, would be liable after the coverture was at an end. In that case it would not, on his death, survive against the wife ; neither would there be any propriety in join^ ing the wife with the husband in a suit to collect the debt of the wife ; which, however, must be done. {Reeve's Dom. Rel. 68.) Nor does it affect this question that the property Vander- heyden received by his wife went to his assignee, or that his assignee was entitled to collect debts due to her while sole ; for the reason I have before mentioned, that, his liability in no re- spect depended on the property he received or was entitled to ;848.J CASES IN CHANCERY. \5 Mallory v. Vanderheyden. ay virtue 6f his marriage. If he had died before his discharge, the same property which went to his assignee would have gone to his personal representatives ; but the complainants would have had no claim on his estate : much less did her indebted- ness depend on the property he received. And the question here is, whether her liability, or the hability of her separate property, which she had at the time of her marriage, is extin- guished. His right to receive from the executors of Bradt's estate the property belonging to her, had passed to his assignee in bankruptcy ; and if the assignee filed a bill to reduce it to possession, he could be compelled to make a suitable provision for the wife and her infant children. ( Van Epps v. VanD^u- sen, 4 Paige, 64. Pierce v. Thomley, 2 Sim. Rep. 167. Honner v. Morton, 3 Russ. 65, 90. Smith v. Kane, 2 Paige, 303.) The wife and children could therefore be provided for, mdependent of the stocks conveyed to her sole and sepa- rate use. The reason urged, that the creditors had the right to prove their debt and receive their dividend in bankruptcy, adds noth- ing to the weight of the defendant's argument. As well might it be urged that in other cases, because the creditors had the right to collect from the husband, they would be compelled to do so, and need not wait to claim it of the wife alone after the death of the husband. In both cases it is optional with the creditor whether he will avail himself of the remedy against the husband, or his assignee ; but in neither case, I apprehend, is the original indebtedness cancelled by a neglect to do so. His death would have cancelled his liability and that of his es- tate ; and I think his discharge could have had no greater effect. The doctrine of the dictum of Chief Justice Parker is reiterated in Reeve's Domestic Relations, on the authority of that decision ; but it is not examined by the author, and ac quires no additional weight by this circumstance. In effect it is more like a quotation than an endorsement. Again ; the doctrine contended for by the defendant is not only at war with well settled rules, but it would be exceedingly unjust and inequitable in practice. It would enable the hud 16 CASES IN CHA NCERY. [Feb. 21, Malloiy V. Vandei aeyden. band to settle upon his wife, for her sole use, such of the prop- erty formerly belonging to her as he possessed, and then by his own act extinguish her debts by merely procuring a discharge in bankruptcy ; thus cancelling demands without payment and without the consent of the creditor. It is provided by the re- vised statutes that where the wife dies, leaving property, the husband is solely entitled to administration, and is entitled to the surplus after paying her debts ; (2 R. S. 75, §§ 29, 30, \st ed. ;) and such was the rule at common law. In this case, therefore, on the death of Mrs. Vanderheyden, if the husband survived, he would be entitled to her separate property, and without having firsj; paid her debts, if these debts are extin- guished by his discharge. The law cannot be chargeable with such injustice. On the whole, I cannot believe that the discharge of Vander- heyden cancelled the debt. The claim still existed ; and Mrs. Vanderheyden might be sued at law after the death of her hus- band. Or a proceeding in equity might sooner be instituted, against her, to reach her separate estate. Any other view of the case would countenance an act which would operate as a gioss fraud upon the creditor. Even in the case of Miles v. Williams, the chief justice remarked that a case might possi- bly be put where a woman, being in debt, might make over all her effects in trust, and then marry a bankrupt ; and by that, discharge all her debts, and yet preserve her estate. But that would be a fraudulent conveyance as against creditors; quoad so much of the estate as would satisfy their debts, and for that they might have a remedy. Even in that view of the case, these complainants would be entitled to the relief they ask for, viz. satisfaction of their debt out of her separate property. For they could not be compelled to resort to their dividend in bank- ruptcy, when the property which ought to pay the debt has been conveyed to her for her sole and separate use, and did not pass to the assignee in bankruptcy. //. Z. Hayner, for the appellants. The complainants did not, while Mrs. Vanderheyden was a feme sole, in any way acquire JBtS.j CASES IN CHANCERY, 17 Mallory v. Vanderheyden. f hen that could be enforced at law or in equity. Slic gave mem no mortgage ; they recovered no judgment against her; and no arrangement was ever made that could have been enforced at law or in equity while she was feme sole. Her be;;oming a feme covert, therefore, did not increase her liability. After the defendant's intermarriage, there Avas nothing said or done by which Mrs. Vanderheyden charged, or intended to charge, the property held for her sole and separate use, with the payment of the complainants' demand. The property which was spoken of as being in Bigelow's hands, was not her separate property at that time. It cannot be inferred that she intended to appropriate the property held for her separate use to the payment of the complainants' debt. AH her property which was not settled to her separate use, became her hus- siand's by the marriage ; and by his bankruptcy his assignee has become entitled to it for the use of the creditors. This id so, whether her property has or has not been reduced to posses- sion by the husband. And the legacies not bequeathed to her sole and separate use take the same direction. So also as to her real estate. ( Va?i Deusen v. Van Deusen, 6 Paige, 366. Van Epps v. Van Deusen, 4 Id. 64, 74. Pierce v. Thomley, 2 Sim. Rep. 167. Honner v. Morton, 3 Russ. 65, 90. Smith V. Kane, 2 Paige, 303. Fitzer v. Fitzer, 2 Atk. 515. Miles V. Williams, 10 Mod. 244. 2 Kenfs Com. 139.) The dis- charge in bankruptcy, of Vanderheyden, of itself discharges and protects his wife from this debt of the complainants during her •overture, if not forever. The debt can be proved against Van- Jerheyden under proceedings in bankruptcy. And it was upon that ground that the complainants abandoned their suit in the supreme court. That there must be some appropriation of the specific proj*- erty,-held for the separate use of the wife, by way of appoin!.' ment m equity, or some act must be shown from which such an intention on her part may be inferred ; otherwise this court will not hold such property liable for the complainants' demand. The wife's intention to make her separate property liable must Vol. III. 3 15 CASES IN CHANCERY. fFss. ni Mallory ». Vanderheyden. be expressed, or be clearly inferrible from the transaction. (2 StoJifS Eq. Jur. 628.) And the fact that the debt has been ;on.tracted during coverture — either as principal for herself, or as surety for her husband, or jointly with him — seems ordina- rily to be sufficient to charge her separate property. {Field v. iSowle, 4 Riiss. 112. Aguilar v. Aguilar, 5 Mad. 418. i2y- land V. Smith, 1 Mj/bie ^ Craig, 53. Lillia v. Airey, 1 Ves. 277, 8. Hulme v. Tenant, 1 Bro. Ch. Rep. 16. S. C. 2 Dickens, 560. Heally v. Thomas, 15 Ves. 596. Bullpin v. Clark, 17 Id. 365. Stuart v. Kirkwall, 3 Mad. 387. 6?effl% V. Noble, Id. 94.) At first the courts seem to have supposed that nothing could affect it but some real charge, as a mortgage, or some instrument, &c. (2 Story's Eq. 629. Roper, H. ^ W. ch. 21, § 3, p. 243. Sperling v. Rochfort, 8 Ves. 175, n. 178. Jones v. Harris, 9 Id. 497, 8. Nantes v. Corrock, Id. 1-82. Nevins v. Langdon, 8 Jc?. 174, w. 1, 2, 3. Whistler v. Newman, 4 Fe*. 129. Francis v. Wigzell, 1 ik?ad. i2ep 258.) Afterwards the wife's intention was more regarded, and the court only required to be satisfied that she intended to deal with her separaite property. {Murray v. Barlee, 3 Myl. &(• K Rep. 209. S. C. 4 Sim,. Rep. 82. 2 /Sifory'* Eq. 628, »i. 1, 629.) The principle of holding a general security, executed by a mar- ried woman, purporting to create only a personal demand, and not referring to her separate property, a charge upon such sep- arate property is a strong case of constructive implication. And Judge Story says the courts have not gone thus far. (2 Sto- ry's Eq. § 1397, n. 5, § 1400, n.\. 2 Roper, H. ^- W. 243 Anon. 18 Ves. R. 258.) The whole doctrine of appointment is founded on the legal disability of the feme covert, and is tlierefore only applicable to a debt contracted during coverture. And there is no allegation in the bill that Mrs. Vanderheyden, by any piomise, ever in- tended to charge her sole and separate property with this debt, {^'ee Fra?icis v. Wigzell, 1 Mad. R. 258.) G. Stow, same side. The agreeme nt of Mrs. Vanderheyden dmn sola created no charge upon her property ; still less a spe 1848.] CASES IN CHANCERS. 19 Mallory v. Vanderheyden. tific lien. By her marriage her property became the propeity of her husband ; and she lost all power over it. The notes ia the 'hands of the executor constituted the fund out of which ths defendants, after their intermarriage, agreed to pay the com- plainants' debt. That fund belonged to Vanderheyden in vii- tue of his marriage ; his wife having no right in it, or power to dispose of it. The separate property of a feme covert is liable in equity only because she contracted, or is supposed to contract, in refer- ence to that separate property. In the present case, Mrs. Van- derheyden, after her marriage, made no agreement in reference to, or for the purpose of, charging her separate property, but merely the property of Vanderheyden ; and therefore, accord- ing to the principle of all the cases, her separate property is not liable. Nor does it appear that she had any separate property when the post-nuptial agreement, that the complainants' claim should be set off against the notes in the executors' hands, was made. If she had no separate property, then the agreement could not of course charge it. If she had, and if that fact is necessary to be established by the complainants, the bill is de- murrable, for having omitted that allegation. The bill is also defective in not alleging that, by the post-nuptial arrangement, Mrs. Vanderheyden agreed to bind her separate estate, or that she intended to do so. In Francis v. Wigzell, (1 Mad. R. 258,) this was decided to be necessary. If it is necessary to allege such a post-nuptial arrangement and intention, then Mrs. Vanderheyden's separate estate in this case is not liable ; be- cause by an arrangement that the complainants' demand should be paid out of a fund belonging legally to the husband, and which passed to the assignee in bankruptcy, she manifested no intention to charge her sole and separate estate. Even if the fund in the hands of the executor could be reached at all, under an? chcumstances, it cannot under the present bill — since neithe: the executor not the assignee in bankrutcy is made a part)'' — and for that reason also the demurrer is well taken. 20 CASES IN CHANCERY, [Feb. 21 Mallory v. Vanderheydcn. Z>. Buel, fcr the respondents. It is the well settled doctrine of the court, that a feme covert in regard to her separate prop- erly is considered a feme sole, and her separate estate is charge- able with her debts, to the same extent that the estate of a feme sole would be chargeable by the principles of the common law ; in other words, her separate estate is liable for the pay- ment of all her equitable debts. (Prater's Law of Hus. and Wife, 109. 2 Story's Eq. §§ 1399, 1400. Hulme v. Tenant, 1 Bro. C. C. 16, 21, note. Lillia v. Airey, 1 Ves. jum 277. Bullpin V. Clark, 17 Ves. 365. Jacques v. Methodist Church, 17 John. 548. North Am. Coal Co. v. Dyett, 7 Paige, 9 ; 20 Wend. 570, S. C. Gardner v. Gardner, 7 Paige, 112; 22 Wend. 526, iS. C.) It is not necessary that she should sign any writing, or make any express appointment, to charge her separate property. [Murray v. Barlee, 4 Shn. 82 ; aS". C. on appeal, 3 Myl. Sf Keene, 209.) The doctrine now established is that her separate debts, contracted expressly on her own account, shall in all cases be considered an appointment, or appropriation for the benefit of the creditor, as to so much of ner separate property as is sufficient to pay the debt ; unless she is specially restrained as to the mode of charging such property by the instrument by which she acquired the same. (Hulme V. Tenant, 1 Bro. C. C. 15. Gardner v. Gardner, 22 Wend. 526, 528; 7 Paige, 112, ^. C.) The facts stated in the bill, and admitted by the demurrer, show that the debt to the complainants was contracted on the credit of property which the wife of Vanderheyden, then a feme sole, held in her own right ; and which she has ever since held, and now holds, to her separate use. And equity requires that this jiroperty should be applied to pay the debt. The fact that the debt was contracted by her dum sola, and that she then iield in her own right, as a feme sole, the property which by , he consent and contrivance of her present husband has been transferred to her separate use, so far from lessening, gives strength to the equity to have that property applied to pay the complainant's debt. (Briscoe v. Kennedy, 1 Bro. C. C. 18, note.) The transfer of the property, upon the credit of which .«48.] CASES IN CHANCER Y". ^ 2l Mallory ti. Vanderheyden, the debt was contracted, especially as the transfer was made on the eve of Vanderheyden's bankruptcy, will be a gross fraud upon the complainants if it cannot be appropriated to pay their debt. {Miles v. Williams, 1 P. Wms. 258.) Some early cases carried the doctrine still farther and subjected not only the separate property but other property to pay debts of a feme covert contracted dum sola. {Freeman V. Goodham, 1 Cas. in Ch. 295. Bull V. Smith, 2 Freeman's Rep. 231.) The effect of the bankrupt discharge of Vanderheyden was to suspend the legal remedy by suit against husband and wife, not to discharge her debt. Nor can it affect the remedy in equity, by a proceeding in rem to subject her separate property to the payment of the debt. It is well settled that upon the death of the husband, his wife surviving him, she would be subject to an action at law for a debt contracted by h(!r dum sola. {Clancei/'s TV. 13. Reeve's Dom. Rel. 68. 2 Kent's Com,. 123, 1st ed. Woodman v. Chappi^ni 1 Camp. Rep. 189, and notes.) So if she should die and the husband should administer, her separate property would be subjected to the payment of her debts contracted before marriage ; or if she left debts which the husband had not collected during coverture, they would be subject to her debts. {Reeve's Dom. R6l. 13, Clancey, 16. 2 R. S. 175, §§ 29, 30. Id. 98, § 79.) The sug- gestion of Ch. J. Parker in Miles v. Williams, (1 P. Wms. 258,) that the debt of the wife would be discharged by the hus- band's bankruptcy, is a mere obiter dictum and is clearly erro- neous. (2 Kent's Com. 123, 1st ed.) The wife's debts contracted dum sola do not become the husband's debts ; for if they did his executors would be chargeable, where he dies before his wife J which clearly they are not. {Reeves Dom. Rel. 68, 69.) The Chancellor. Previous to the marriage of Mrs. Vander- heyden, all her estate was liable for the payment of this debi. . whether it was held as separate estate or otherwise. And the question is whether it is equitable to permit her to hold that estate, in the events which have occurred, and to set hej- cred* 'tors at defiance. 22 CASES IN CHANCERY. [Feb. 21, Mallory v. Vanderheyden, TtiB lubility of the husband, for the debt of the wife, and ta Ire sued jointly with her in an action at law for the recovery of •}.>•: same/is at an end by his discharge under the bankui[)( flct. [Miles V. Williams, 10 Mod. Rep. 160, 243; 1 Peere vVms. Rep. 249, S. C.) And no suit at law can be maintained against the wife, during the life of the husband, without joining him with her in the sdme suit. The remedy at law is therefore suspended as to the wife, or her estate, during the coverture. There is no doubt that the certificate of bankruptcy is an ab- solute discharge of the husband, and his estate, from all furthei liability for the debt of his wife. I think the reasoning of Chief Justice Parker in Miles v. Williams is conclusive on tliat point. He indeed intimates an -opinion that the certificate of the husband will operate as an absolute discharge of the wife, even after the death of her husband. But he admitted there was no such question in the cause which he was considering. Nor was there any thing in the English bankrupt act which, in terms or by implication, made the discharge of the husband a discharge of the debt as to the wife, and her estate. The seventh section of that act declared that the bankrupt should be discharged from all debts which he owed at the time he became a bank- rupt, and that if he should be sued for any such debt, he should and might plead generally that the cause of action accrued be- fore he became bankrupt. But there is not a word in the act as to the discharge of the bankrupt's wife, or her separate estate, or her reversionary interest in her real estate after the death of her husband. Nor is there any thing in our bankrupt act of 1841, which discharges the debts, as against the wife, by the discharge of the liability of the husband. Indeed, it would be manifestly unjust and inequitable to discharge the wife ab- solutely, and permit her to enjoy, or to dispose of for her own use, property which might have been reached by her creditors if her husband had not been discharged upon the surrender of his own property merely, and of that which belonged to him in right of his wife. The remedy by action, therefore, as against the wife, and her estate, is only suspended by the dischargej during coverture. And where she survives her husband, ac« 1848.] CASES IN CHANCERY. Mallory ». Vanderheyden. lions at law jnay be maintained against her for the debt« which she contracted before her marriage ; in the same mannsi as if her husband had not been discharged from his hability. For upon the death. of the husband, the debts contracted by her before the marriage, and which have not been recovered of her and her husband during her coverture, survive against her ; and the estate of her husband is not liable therefor. ( Wood- man V. Chapman, 1 Camp. Rep. 189. Chapline v. Moore, 7 Monr. Rep. 175.) On the other hand, where the husband survives the wife, although he is no longer liable for debts con- tracted by her vyhile sole, however much he may have received by the marriage, her separate estate in the hands of her per- sonal representatives is liable for those debts. {^McKay v. Allen, 6 Yerg. Rep. 44.) The debt in this case still existing as against the wife, and her property which belonged to her before marriage, and which is now holden for her separate use, and the remedy at law being suspended by -the discharge of her husband, I think the vice chancellor is right in supposing the complainants could come into this court to reach her property and have it applied to the payment of their debt. If a precedent were wanting, I should deem it my duty to make one in such a case. For where rights exist, and the remedy at law is inadequate to meet the equity and justice of the case, it is a part of the ordinary jurisdiction of this court to provide for such cases as they occur. But we have a prece- d(!nt in the case of Briscoe v. Kennedy, (1 Bro. C. C. 18 ;) de- cided at the rolls in 1762, during the mastership of Sir Thomas Clark. There the cj'editor had no remedy by action against the husband and wife, because the husband had absconded, and the complainant had proceeded to outlawry against him ; and had seized all his property, without being able to obtain satisfaction of the debt due from the wife. (^See 2 Wils. 127.) The crsditor then filed his bill in chancery to obtain payment of the wife's debt out of her separate estate. The defendant's counsel, in that case, as in this, insisted that the wife's separate estate, during the hfe of her husband, was not liable for the 24 CASES IN CHANCER Y". [Fee. 21, Gorham r. Gorham. dsU cc-atracted by her before marriage. But his honor decided that the effects of the wife, vested in her trustee for her separate use, were to be considered as the property of a feme sole. He tlierefoie ordered the stock belonging to her separate estate to be, appropriated to the payment of the complainant's debt and costs. The husband, in this case, was a necessary and proper party, not only to defend the suit for the wife, but also as the trustee of his wife, whose concurrence in the sale and transfer of the trust property was necessaiy to vest the legal title in the pur' chaser. For, as there was no other .trustee, the legal title was vested in him, for the benefit of the wife, by the transfer of the stock into her name for her separate use. And as he had no beneficial interest in the property, the legal title did not pass to the assignee in bankruptcy. The decretal order appealed from was not erroneous ; and it must be affirmed with costs. Gorham and others, committee, (fee. vs. Gobham. V7here a bill is filed by the committee of a hinatic, to set aside an act done by snch lunatic, upon the ground of his incompetency, it is not necessari/ that the lunatic himself should be made a party ; but he may be joined, as a party, with his com- mittee. In all other cases, the settled practice in Kngland has always been, either to join the committee with the lunatic, in bringing suits in chancery for his benefit, or to file the bill in the name of the lunatic, by his committee. And where the lunatic is not made a party to the bill, or information, in his behalf, it is a good cau^e of de- murrer. The same rules are applicable to suits brought in the courts of equity in this country, for the benefit of lunatics. When it is said, by English writers, that idiots and lunatics must sue by their com- mittees, it is not meant that the suit is to be brought by the committee in theij own names merely describing themselves as the committee of the lunatic : but that the suit is to be brought in the name of the lunatic, stating that he sues by the committee of his estate, naming them, as in the case of an infant suing by hi> next friend ; or that the suit should be prosecuted in the names of he lunatio and of his committee. 1848.1 CASES IN CHANCERY. £5 Gorham v. Gorham. A bill filed by the committee of a lunatic, in their own names, ill whioh they only describe themse! res as his committee, is a bill by the committee alone ; und is not the bill of the lunatic, by his committee. And a decree in favor of the complain*- ants would not be a decree in favor of the lunatic. A bill filed by a committee, in that manner, praying for a partition of lands and for ah account and payment of rents and profits of the share of the land belonging tn the lunatic, is defective in form. And if the objection that the lunatic is not made a party to the suit, with his committee, is set up by the defendant, as a Spe- cial cause of demurrer, no part of the bill can be sustained. The objection that the lunatic himself is not made a party complainant, in a suit brought by his committee in relation to personal estate, may be waived by the defendant's neglecting to set it up by demurrer or answer; and it cannot be raised merely by a general demurrer for want of equity. The court of chancery, during the continuance of the lunacy, by statute, has the whole control of the personal estate and choses in action of the lunatic. And it can transfer the title to the same, by directing a sale by the committee f and it may direct the committee to release any right of action in relation thereto, as may be equitable and just. So that when a matter relating to the personal estate of the lunatic has been fairly litigated by the committee, in that court, and decided against them, the court may protect the defendant against a new suit, by the luna- tic or his representatives, although the lunatic was not a formal party to the suit brought by his committee; by directing the committee to transfer the property which was in litigation, to the defendant, or to release him from any further claim on account thereof. The question whether a suit can be commenced in the name of a committee of a lunatic, for the recovery of real estate, or to establish the title to the same, or whether a suit in partition can be instituted in the name of such committee with- out joining the lunatic as a party, is wholly unaffected by the act of 1845, au- thorizing committees to sue in their own names. A lunatic is a necessary party to a bill, filed by his committee, for the partition of his real estate. For a decree in partition, upon a bill filed by the committee alone, and to which the lunatic is not a party, will not transfer the legal title to his un- divided share of that portion of the premises which is set off to the defendant in severalty. There is no statute, in this state, authorizing the committee of a lunatic, or of an habitual drunkard, to prosecute a suit for partition in their own names alone ; or authorizing another person to prosecute a partition suit against them without making the lunatic, or the habitual drunkard, who is an actual owner of an undi- vided part of the premises, a party to the suit. And the only way in which a legal partition can be made of the real estate of a lunatic, or an habitual drunkard, except by an agreement between the committee and the other tenants in common, with the concurrence of the court, is to make him an actual party to the suit for partition. By making a lunatic, or an habitual drunkard, a party to a suit for partition, his legal title to that portion of the premises which may be set off to the adverse party, ia severalty, will pass, without any conveyance, cither from the lunatic, or the tUt- V^OL. III. 4 £g CASKS IN CHANCERY. [Feb. 2t Gorliam V. Gorham. bitual drurikaid, or from his committee ; under the pro™ions of the revised slat utes relative to the partition of lands. The cases of The Execiitors of Brasher v. Van Cortland, (2 Jokn. Ch. Rep. 242. 400,) and of Beach v. Bradley, (8 Paige's Rep. 146,) commented on and ei plained. This was an appeal from a decretal order of the vice clian cellor of the seventh circuit. The complainants were the com- mittee of the person and estate of an habitual drunkard. And the bill in this cause was filed for the partition of lands, owned by the drunkard and the defendant as tenants in common ; and also for an account and payment of the drunkard's share of the rents and profits of the premises which the defendant had received, including the drunkard's share of the wood and timber which had been taken from the premises by the defen dant. The bill described the complainants as the committee of the person and estate of the drunkard. But it did not pur- port to be the bill of the drunkard himself, by his committee. Nor was he joined with the committee as one of the complain- ants therein. The defendant put in a general demurrer for want of equity ; but without stating as a ground of demurrer, that the drunkard himself was not made a party, or making any other specific objection to the form of the bill. The vice ihancellor overruled the demurrer. And from that decision the defendant appealed. W. Porter, Jim. for the appellant. The bill in this cause is improperly filed in the name of the committee. Tlie habit- ual drunkard should be the complainant. The revised statutes (2 R. S. 242, § 1, 2d ed.) declares who may be parties com- plainants in partition suits. The 80th section of the same title, {Idem, 253,) declares that the same rules as to parties shall apply in chancery as at law. In a case of that kind, the in- tention of the legislature was that the lunatic should be made a partj. {Idem, 256, §§ 96, 97, 98.) The complainants, as the committee of the habitual drunkard, are n ere bailiffs, or re- ceivers, and have no personal or represental've interest in the iJrunkard's property ; and should not be complainants in a case /848.J CASES IJN CHANCERY ^7 Gorham v. Gorham. like this. [Shelf, on Lunacj/fUQ, 180,339,395. I CoUinson on Lunacy, 270. 1 Cas. in Ch. 112, 153. Petre v. Shoemaker; 24 Wend. 85. 3 /Sa/Ar. 300. Lane v. Schermerhorn, 1 jffLV, 97, 98. W/ZiV £(?. PI. 5, woite (m). 1 Fonh. Eq.&T and 68, wofs (n). Story's Eq. PL 67, no^e 1.) The case of Ortley v. Messere, (7 JbAn. CA. iJe/j. 139,) is not hostile to this position, but falls within one of the exceptions mentioned by Fou- blanque. The doctrine of Judge Story, {Story'.s Eq. PI. 65, 67, 68,) as to committees filing bills in their own names, derives its principal strength from the case of Ortley v. Messere; which is aliter so far as the doctrine sought to be established by Judge Story is concerned, and it is in conflict with all previously adjudged cases. There seems to be no necessity for departing from the well established general principle, in equity, which limits parties to those persons who are interested in the proceeding, or whose names are necessary to a decree, by making the >5ase of the committee of a lunatic, (fee. an exception to the rule. Al- lowing such committees to file bills in their own names, as sole complainants, would be increasing the already too great dis- crepancy in the principles and proceedings which prevails be- tween the courts of law and courts of equity ; which should be avoided. But even if it would have been regular, under the permission and in the exercise of discretion of the court, for the committee to file this bill in their own names, such permission or direction surely should appear upon the face of the bill. Otherwise the complainants appear as naked agents ; prosecu- ting in their own names, and having no statutory or judicial authority so to do. The defendant is not liable to his co-tenant for the occupan- cy and enjoyment of all the premises, except-where such occu- pancy has been under a lease from such co-tenant, or in defiance of his, rights. This bill does not allege that there were any rents, issues or profits of the premises during the time the de- fendant is alleged to have occupied the premises ; but simply that the defendant by himself or his tenants occupied and en- joyed all the premises, (fee. Even had the bill alleged that there were rents and profits of the premises and that the defea- 2g CASiiS iS CHANCERY. [Feb. 21, Gorham v. GDrham. dant had received them, this of itself would not lay a founda tion for a suit here, for an account ; without alleging that the- a was some obstacle to a recovery at law, or that there were mu- tual accounts. The charge in the bill that the defendant during the time of his occupying the premises, cut and sold wood and timber growing thereon, and received the pay therefor, amounts to a charge of waste ; for which a bill in chancery cannot be filed. ( Winship v. Pitts, 3 Paige, 259.) • And the charge that the defendant cut and sold the wood and timber on the rail-road land, amounts to nothing more than a conversion by one tenant in common of the joint property ; for which an ac- tion of trover is the proper remedy. When the statute creates a right and at the same time gives the remedy, that remedy must be pursued. ( Durant v. Supervisors of Albany, 26 Wend, 89. 5 John. Rep. 175. 3 Hill, 41. 3 Mass. Rep. 307. 5 Id. 514.) The right of a tenant in common, or of a joint ten- ant to an account against his co-tenant, does not exist at com- mon law, but was first given by the statute of Westminster, which statute has been re-enacted in our own statutes. (1 R. S. 2d ed. Til, § 9.) The only remedy there prescribed is by an action of account, or an action for money had and received. This court may decree an account^ as incidental to a decree Mor partition ; for the reasons stated in Winship v. Pitts, (3 Paige, 259.) But the portion of the bill for partition failing, /or want of proper parties, that portion relating to the account of the rents and profits and for the waste, must fail with it ; it appearing that the complainant has a remedy at law for the rents and profits. The jurisdiction of chancery in partition cases is statutory, and the statutory directions, especially as to parties, must be strictly followed. This bill, therefore, should be dismissed with costs, and proceedings de novo commenced, under the provisions of the revised statutes relative to the partition of lands F. G. Jewett, for the respondents. The practice of the court in this state does not make it necessary that idiots, luna Ucs, or persons who are duly found incafaole of conducting ma.] CASES IN CHANCERY. 29 Gorham V. Gorham. (.heir own affairs in consequence of habitual diunkeiuiess, foi whom a committee has been appointed, should be made parties with their committee, either as complainants or defendants, in any suit or proceeding affecting their estates ; their committed as such may sue and be sued. This point is settled by ad- judged cases in this court. (2 John. Ch. Rep. 242, 400. 7 Id. 139. 3 Paige's Hep. 470. 1 Moulton's Pr. 102.) Judge Story, in his Commentary on Equity and Pleadings, [Story's Eq. PI. § 65,) says that in some of the states in America the courts of equity are entrusted with the authority to appoint committees for idiots and lunatics ; and that in such cases the idiots and lunatics sue by their committees. " Thus, for ex- ample in New- York, by statute, the court of chancery has the care and custody of idiots and lunatics, and entire'jurisdiction over the subject in all its general relations." The case of Ortley and Baker, committee of Sparry, a lunatic, v. Messere and others, (7 John. Ch. Rep. 139,) is full to show that a lunatic is not a necessary party, as a complainant, with his committee. The same objection was made in the case of The Attorney General on behalf of Smith, a lunatic, v. Parkhurst, (1 Chan- cery Cas. 112,) and was overruled. In another case, [Kidder V. Kidder, 1 Equity Cas. Abr. 279,) the bill was by the lunatic and his committee, to set aside a settlement made by him while a lunatic. And there was a demurrer because the lunatic was a party ; but the demurrer was overruled. It should seem, as Chancellor Kent says, to be immaterial and but matter of form. The lunatic may be joined with the committee or omit- ted, according to the cases. (7 Joh7i. Ch. R- 140.) He says, " There was a distinction suggested in the case of The Attorney Gene- ral on behalf of Woolrich v. Woolrich, (1 Ch. Cas. 153,J between the case of a bill to set aside an act done while the party was insane, and a bill to set aside an act done before he was a lunatic ; but that distinction is not to be found in the two cases which have been cited. The general practice how- ever IS, to unite the lunatic with tlie committee, as was done in 2 Vernon, 678. But there does not appear to be any necessity for it; as the committee have the exdusive custcdy and ;on 30 CASES IN CHANCERV. [Feb 21, Goiham ». Gorham. trol of tbe estate and right of the lunatic. The lunatic may be considered as a party by his committee, and like trustees of an insolvent debtor, the committee hold the estate in trust under ihe direction of the court." In the case of 2'eal v. Woodworth, (3 Paiges Rep. 470,) the chancellor cited tha case of Brashefs executors v. Yan Cortland, (2 John. Ch. ' Rep. 242,) with approbation. Although the drunkard may be a proper party, it does not follow that he is a necessary party. And if not a necessary party, the demurrer is not well taken. For in all such cases it is at the election of the party to unite the lunatic or drunkard with his committee or not. (2 Paige, 278.) The statute has given the court of chancery exclusive jurisdiction over the estate of idiots, lunatics and habitual drunkards, except in a few cases when concurrent jurisdiction, in case of drunkards, is given to the court of common pleas. (1 R. S. 2d ed. 813. 3 Paige, 199.) This court therefore will not permit any action to be brought or sustained against a person whose estate is under the care and management of a committee ; and if an action at law is brought for the recovery of a debt against such person, this court will restrain the proceeding by injunction, and will compel the party to come to this court for justice, by bill or petition. (2 John. Ch. Rep. 242. 3 Paige, 199.) The general practice in England, is to unite the lunatic with his committee, as the complainants, in a suit affecting his estate. Although formerly it was a rule that the lunatic should not join with his committee in a suit, to be relieved against an act done during his lunacy. (2 Barb. Ch. Prac. 223. Story''s Eq. PI. 65, 66. Hoff. Pr. 61.) Mr. Barbour says, " Bills on behalf of a lunatic are usually instituted in the name of the lunatic ; but as he is a person incapable in law of taking any steps on his own account, he sues by his committee.!' It will be seen on reference to the Matter of Congdon, (2 Paige's Rep. 566,) to which he refers, that it was an application by tte gen- eral guardian of an infant tenant in common, by petition, praying, for in order for leave to sell the infant's undivided siiare of lands to the adult owners of the other shares. And 1«48.J CASES IN CHANCERS. gj Gorham e. Gorham. Mr. Hoffman- refers to the same English cases, to which Barbotir refers, to show that lunatics generally sue by the committees of their estates. All these cases agree that, it is not necessary to make a lunatic a party to a bill to avoid acts done by him while under mental incapacity. The bill piay be filed by the committee alone ; but if the lunatic is joined with his committee, it is not demurrable. It is as necessary, by the English chancery practice, that a lunatic should be made a party defendant with his committee, as it is that he should be made a party complainant with his committee. [Story's Eq. PI. 70. Mitford's PI. 103. 1 Dick. Rep. 233. Cooper's PI. 31, 32.) But the practice of the court in this state does not require that the lunatic should be made a party, either complainant or defendant, with his con.uiittee, unless the com- mittee of the lunatic has a personal interest in the controversy, and when such interest may ..r necessarily must conflict with that of the lunatic. In such cases the lunatic should be made a party ; so that the court may assign him a guardian to ap- jiear and protect his rights as against the committee. (2 John. Ch. 242, 400. 7 Id..l39. 3 Paige's Rep. 470.) The Chancellor. In some of the earlier decisions in the court of chancery, in England, it was settled that where a bill or information was filed to set aside an act done by a lunatic, upon the ground of his incompetency, it was not necessary that the lunatic himself should be made a party. The case of At- torney General v. Parkhurst, (1 Ch. Ca. 112.) which is one of the cases alluded to, was settled iipon great consideration ; being first decided by Mr. Justice Tirrell, sitting for the lord keeper, and afterwards affirmed, upon a rehearing, by Sir Or- lando Bridgman, assisted by some of the judges. The decision was probably based upon the principle that the lunatic should not be compelled to stultify himself. And I am not avr?.'e that it has ever been overruled. It was therefore properly followed by Chancellor Kent, in the case of Otley Sf Baker v. Mejiere. (7 John. Ch. Rep. 139,) where a bill was filed by the commit- tee of the lunatic to set aside acts done by the lunatic when is 32 CASES IN CHANCERY. LP'"- 21 Guiham v. Gorham. was incompetent. It was not intended, however, in the case ot '.he Attorney General v. Parkhurst, to decide that the at- torney general or the committee could file an information cr a bill for the benefit of a lunatic, in all cases, without joining the lunati; hitiEelf as a party. For in the case ti Palmer, attor- ney general, v. Woolrich, (1 Ch. Cos. 153,) which was decided ■he next 3'ear by the same lord keeper, Sir Orlando Bridgman, he allowed a demurrer to a bill filed by the attorney general, for the benefit of a lunatic, upon the ground that the lunatic was rot a party ; the bill in that case not being brought for the purpcLe of avoiding any act done by the lunatic after the loss of his reason. And this decision was in conformity with the note at the end of the report of the case of Fuller v. Lance, (1 Ch. Cas. 19,) which was decided six years previous to that time. In accordance with this decision, the bills in the cases of Clark V. Clark, (2 Tern. 412.) and Addison v. Dawson, {Idem, 678,) which came before the court in 1700, and 1711, appear to have been filed in the name of the lunatic, by his committee ; in the same manner that an infant files a bill by his next friend. In 1729, the question came before Lord Chancellor King, in the cace of Midler v. Ridler, (1 Eq. Ca. Abr. 279,) whether the lu- natic waG at liberty to join with his committee in a bill filed to set aside a deed of settlement obtained from him after he be- came a lunatic ; the defendant having objected by demurrer that it was against the maxim of law to permit a party to stul- -ify himself. And his lordship decided that the lunatic might be a party to iLe bill, for that purpose, with the committee. The result of ta-ize several decisions was, that where the object of the bill wac to set aside the act or deed of the lunatic upon the groiuid of i'ii) mental incapacity at the time the act was done, or tr e detii was executed, the bill might be filed by the com- mittee, cr the attorney general alone; or by joining the lunatic with the committee, or with the attorney general when '.Here was no committee, or when the interest of the committee was adverse to that of the lunatic. And the practice in Eng- .and, ever since that time, appears to have been either to join the committee with the lunatic, in brmging suits for his bene- 1848.J CASES IN CHANCERY. S3 Gorhaiu v. Gorham. fit, or to file tlip. bill in the name of the lunatic, by Jiis comniit- tee. Thus in a case before Lord Thurlow, in 1791, (2 Dick. Rep. 74S.) where a bill was filed against the committee, by the attorney general in behalf of the lunatic, it appears to have been filed by him on the relation of the lunatic, and by the lunatic liimself as an informant and plaintiflF also. In the Practical Register it is also stated that lunatics must generally sue and answer by their committees ; and if the lunatic is not named a party in the bill, or in an information by the attorney general, it is commonly a good cause of demurrer. But an ex- ception is made in the case where the object of the suit is to relieve the lunatic against some act done by himself during the lunacy. ( Wyat^s P i?. 272.) Lord Redesdale also says, idiots and lunatics sue b}- the committees of their estates ; and where their interests clash with those of their committees, the attorney general files an information in their behalf; but in that case a proper relator must be named who will be responsi- ble for tlie costs. In the unreported case, referred to by him to show that the attorney general is the proper person to institute a suit for one who has been found a lunatic and where no com- mittee has been appointed, the information appears to have been filed by the attorney general on behalf of tlie lunatic Ma- ria Lapine, on the relation of a third person ; and the lunatic herself was also joined in the suit ais a complainant. {Jlit. PI. ifh Lond. ed. 29.) And this was in conformity to the decision of Lord Keeper Bridgman in the case of Pcdiner, attorney general, r. WoolricJi, before referred to. and the subsequent decisions of Sir Thomas Sewel and of Lord Northington, that some third person must be named as a relator who would be responsible for the defendant's costs if the suit was not sustained. {See Attorney General v. Tyler, IDkk.STS; 2 Eden, 23(1, (S". C.) Cooper, Lube, and Welford, in their several treatises on equitv pleading, say. that idiots and limatics must exhibit their bUls by the committees of their estates ; and the last men- tioned writer says, where the committee sues for any thing, the jonunittee as well as the lunatic is made a party. (Coop. 31. Lid>\ 22. Welf. 22.) And Willis gives the form of the com- Vol III. 5 S4 CASES IN CHANCERY. |Keb. 21 Gorham v. Gorham. mencement ol a bill where the committee and the lunatic both join as comu ainants, instead of filing a bill in the name of the lunatic by his committee. ( Willis' Eq. PI. 5.) Shelford also says, that idiots and lunatics must sue in courts of equity by the committees of their estates, and in such suits the cominiHee as well as the lunatic should be parties ; and if a lunatic is not named a party in a bill or information in his behalf, it is a good cause of demurrer. {Shelf, on Lun. 415. See also Stock's Law of Non Com. Ment. 33, and Calv. on Parties, 303.) The late Judge Story, after stating the principles of the English law on the subject, and the authority of the great seal to ap- point committees of idiots and lunatics, lays down the same rules as applicable to courts of equity in this country. {Story's Eq. PI. § 65.) When it is said, by these writers, that idiots and lunatics must sue by their committees, it is not meant that the suit is to be brought by the committee in his own name, merely de- scribing himself as the committee of the lunatic, as has been erroneously supposed by the court of one of our sister states. But they mean that the suit should be brought in the name of ihe lunaiic, stating that he sues by the committee of his estate naming them ; as in the case of an infant suing by his next friend. Or that the suit should be prosecuted in the names of the lunatic and of his committee, as in the precedent in Willih' I'leadings, before referred to. In the case under consideration, the bill is filed by the coni- j^nittee in their own names, and they only desciibe themselves .IS the committee of'the habitual drunkard. This, therefore, is a bill by the committee alone ; and is not the bill of the habit- ual drunkard by his committee. And a decree in favor of the complainants, in this suit, would not be a decree in favor of the habitual drunkard. {See Southerland v. Gaff, 5 Port. Alab. Rep. 508.) I think, therefore, the bill was defective in farm, even as far as it sought an account and payment of rents and profits which had become a part of the habitual drunkard's personal estate, aX tae commencement of this suit. And if the objection tliaj biS.] CASES IN CHAxNCERY. 35 Gorham v. Gorham. lie was not made a party to the suit with his committee, had been stated as a special cause of demurrer, I thin!; the demurrer to the whole bill ought to have been sustained on that ground But the statements in the bill as to the rights of the habitual drunkard, and the prayers for relief, except the general prayer, are in the proper form to enable the court to make a final decree for the payment of the habitual drunkard's share of the rents and profits of the premises to his committee, for his use and benefit ; so as to protect the defendant from a second recovery for the same matter, in case the habitual drunkard should die or be restored to the possession and control of his property. For that reason, a general demurrer to the whole bill, for want of equity, was not well taken ; as the objection was merely formal as to the part of the bill which sought for an account and paj'- ment of rents and profits. And the habitual drunkard, by his committee, had a right to file a bill in this court against the defendant, as his co-tenant in common, for such account and payment, independent of the claim for a partition of the premises. The reason why the lunatic himself should be a party to -a suit for the recovery of property claimed to belong to him is, that, in case the defendant should succeed in his defence, he may not be subjected to a second litigation for the same matter, by, the lunatic, should he be restored to the possession and con- trol of his property ; or by the representatives of the lunatic after his death. For a suit prosecuted in the name of the committee alone, who are the mere bailiffs of the crown in England, and of the court of chancery in this state, would not estop tlie luna- tic, or his legal representatives, fi'om litigating the same mattei over again, after his restoration to his reason, or upon his death. That is a right which the defendant may waive, by neglecting to make the objection by demurrer, or answer, that the lunatic himself is not made a party complainant in the suit. Again ; in this state the court of chancery, during the con- tinuance of the lunacy, has, by the statute, the whole control of the per.sonal estate and choses in action of the lunatic. And it can transfer the title to the same, by directing 9 sale hv tha 3S CASES IN CHANCERY. rf'tu 21 Gochana t>. Gorham. committei3 ; and may direct the committee to release any nght of action in relation thereto, as may be equitable and just. Sc 'hat when a matter relating to the personal estate of the lunatic, nas been fairly litigated by the committee in this court, and decided against them, the court may protect the defendant against a new suit, by the lunatic or his representatives, although the lunatic is not a formal party to the suit brought by his committee ; by directing the committee to transfer the property which was in litigation, to the defendant, or to release the de- fendant from any further claim on account thereof. The ob- jection of the non-joinder of the lunatic, as a party complainant, with his committee in such a suit, appears, therefore, to be a matter of form and not of substance. And it is not such an objection as can avail the defendant upon a general demurrer for want of equity only. For if the objection which is urged upon this appeal, had been stated in the demurrer, it might have been obviated by a slight amendment of the bill. An objection for want of necessary parties might have been made ore tenus, upon payment of the costs of the demurrer upon the record ; but that does not appear to have been done in this case. And it is now wholly immaterial to the defen- 'lunt whether the suit is prosecuted in the name of the habitual 3iunkard, by his committee, or by the committee of his estate 'n their own names only, so far as the rents and profits of the piemises are concerned. For, since this appeal the legislature has authorized the committee of a lunatic or an habitual drunkard to sue in their own names, for finy debt, claim, or demand, transferred to them, or to the possession and control of which they are entitled as such committee. [Laws of 1845, pp. 91, 92.) But the question whether a suit can be com- menced in the name of the committee alone for the recovery of real estate, or to establish the title to the same, or whether a suit in partition can be instituted in the name of such com- mittee, without joining the lunatic or habitual drunkard as a part)', is wholly unaffected by the act of 1845. If the committee have no such right, the objection that the habitual drunkard is not made a party, is a matter of substance, in thf 1848.^ CASE3 IN CtlANCERy. 37 Gorham v. Gorhaic present case ; so far as the bill see^cs a partitioil of the real estate owned by him, and by the defendant, as tenants in com- mon. Apd, upon a careful examination of the law, as it existed previous to the revolution, and the various statutory provisions on the subject of idiots, lunatics, &o. in this state, I am satisfied that a decree in partition, to which the habitual drunkard is not a party, will not transfer the legal title to his undivided share of that portion of the premises which may be set off to the defendant ia severalty. In England, the care and custody of idiots and lunatics and their estates, by the common law as well as by the statutes, (17 Edw. 2, ch. 9, 10,) belonged to the king as parens patria. {Beverly^s case, 4 Coke, 127.) And the power of the crown in this respect was exercised by the keeper of the great seal, under special warrants from the crown from time to time, and did not belong to the court of chancery as such. But the stat- ute I7th Edward 2, ch. 10, did not authorize the sale of the lands or tenements of a lunatic. On the contrary, it directed that the same should be safely^ kept, and not aliened. (1 Evans' Stat. 473. Ex parte Dikes, 8 Ves. Rep. 79.) In the case of a lunatic, therefore, the great seal, acting as the rep- resentative of the crown, under the sign manual, could only grant the care and custody of the lunatic and his estate during pleasure. And upon the restoration of the lunatic l» his reason, he was entitled to have his lands restored to him with an un- impaired title. Or, if he died before the restoration of his reason, such lands went immediately to his heir, unaffected by any leases made in the meantime. Even in the case of idiots, although the king had a beneficial interest in the surplus rents and profits of the real estate, during the hfe of the idiot, beyond what was necessary for his support, the statute 17 Edward 2, ch. 9, did not allow the ahenation of the estate beyond the life of the idiot ; but expressly directed that after his death the esiate should be surrendered to his heirs ; so that they should not be disinherited. Such was the state of the English law in regard to the real estate of idiots and lunatics at the time of the settlement of this country ; and it became a part of *h9 38 CASES IN CHANCERY. [Feb. 21 Gorham v. Gorham. common law of the colony of New- York. Seveial statutes were subsequently passed in relation lb the surrender and re- newal of leases of the estates of lunatics, during the reigns of George the second and his successor. But if they were ever in tbrce here, they were repealed, after the close of the revolution, y:y the general law on that subject. Our statute of February, 1788, (2 Greenl. Ldws,25,) substi tuted the chancellor for the crown in relation to the persons and estates of idiots and lunatics ; and expressly prohibited the alienation of the lands or tenements of either. In the revision of 1801 tlie language of the act was somewhat varied; for the committee was directed, in case the personal estate of the idiot or lunatic was not sufficient to pay his debts, or where such personal estate and the income of the real was not sufficient for his maintenance and that of his family, to apply to the chancellor, by petition, for a sale of so much of the real estate as should be necessary for that purpose. The chancellor was also authorized to decree a specific performance of contracts made by lunatics before their lunacy, and to authorize the committee of an idiot or lunatic to agree to a partition of lands held in common with other persons. But the sixth section of tlie revised act of March, 1801, (1 R. L. of 1813, p. 148,) ex- pressly provided that the real estate of an idiot or lunatic should not be ahened or disposed of, otherwise than as directed by that act. The same provisions, in substance, are contained in the it!e of the revised statutes relative to the custody and disposi- tion of the estates of idiots, lunatics, persons of unsound mind, and drunkards. (2 J?. ^S. 52.) The twentj'-third section of that title prohibits the leasing of the real estate for mo'e than five years ; and declares that it shall not be mortgaged, aliened, or disposed of, otherwise than as directed in that title. It was under the revised act of 1801 that the case of The Executors of Brasher v. Van Cortlaiidt, (2 John. Ch. Rep. 242, 400,) arose and was decided by the late Clioncellor Kent. "When the case first came before him, I tliink he very correctly decided that it was not necessary to make the lunatic a party to a suit against his committee to compel them to sell ]»is real 184S.] CASES IN CHANCEKY. 39 Gorham v. Gorham. estate for the payment of the debt due from the lunatic to the complaiaant. The court had no power to decree a convey- ance by the lunatic for that purpose, even if he waB a party to the suit. Nor was tliere any statute, or any principle of the common law, which would have enabled the court to transfer the legal title of the lunatic's land, to a purchaser, merely by the deed of a master, executed in pursuance of a decree of the court. But the statute had made it the duty of the committee of the lunatic to apply to the court for a sale of the real estate for the payment of debts, where the personal estate was not sufficient for that purpose. The court, therefore, had the rigiit, upon an application of a creditor, to compel the Commit- tee to comply with the provision of the statute, in that respect, by a summary proceeding in the matter of the lunacy. Or if the debt was unliquidated, or the right of the creditor Vv^as dis- puted, it miglit be a proper case to file a bill, by the permission of the court, for the purpose of settling the right to the debt, and tc compel the committee to make the proper application, and obtain an order authorizing a sale, &c. ; and in suc^i a suit I do not see any valid ground of objection, on the part of the committee, that tlie lunatic himself was not made a party defendant. For the whole burthen of the defence of the suit must necessarily rest upon the committee, even if the lunatic himself was a party. And his presence as a party was not necessary to enable them to apply and obtain the authority of the court to sell and convey the property, in the manner authorized by the statute. The complainants, it is true, might have an interest in making the lunatic a party, so that the decree establishing their debt would be final and conclusive against liini and his representatives, in case he sliouid be restored to his reason, or should die before an actual sale of his property by the conunittee under the au- thority of the court. It was upon tliat ground that I decided, ui tlie case of Beach v. Bradley, (S Paigds Rep. 146,) that the lunatic might be a proper party, though not a necessary partj'^; to sue!) a bill filed against his committee. When the cise of The Executors of Brasher v. Van Cortlaudt, came tne second time before Chancellor Kent, he, luiquestionably, meant 40 CASES IN UHAINCKRV. [Fbu 21. Gorham v. Gorham. to decide that the title of the lunatic to real estate might be sold and conveyed for the payment of his debts, without the presenting of a formal petition, by the committee, provided the other formalities required by the statute on the subject were substantially complied with. But, I do not understand my learned predecessor as deciding, or even intimating an opinion, that there was any other way in which the legal title could be transferred to the purchaser, under the sale which he directed to be made, than by a deed duly executed by the committee of the lunatic, pursuant to the provision of the statute making it their duty to sell and convey the real estate of the lunatic for the payment of his debts. How that case was ultimately disposed of does not appear ; as the decree for a sale required such sale to be reported to the court, for further directions, be- fore any conveyance should be made to the purchaser. Al- though the act of March, 1801, authorized the chancellor, in his discretion, to join one or more persons with the committee in making a sale for tljfe payment of debts, 2 CAS30 IN CHANCiihr. IKsb. 2. Childs vs. Clark & Couch. An assignment by the lessor, of the rent of leasehold premises, creates such a priT> ity of estate between the assignee and the lessee, that the former may maintain a suit in his own name for the rent which accrues and becomes payable, while such privity of estate exists. Where a deed of premises is given, subject to a lease thereof for a term of years, previously given by the grantor, and subject to the rights of a person to whom the lessor has assigned his interest in the rents reserved in and by such lease, for* a portion of the term — the rights of such assignee appearing upon the face of the deed — such deed is constructive notice to the purchaser of the premises, and also to his assigns, of the righls of the assignee of the rent for such portion of ;!.e term ; although the assignment of the rent has not been recorded. And the grantees of such purchaser will take their several interests in the priujise* as assignees, in law, of the lessee, during that portion of the term; and subjuc. to the rights of the assignee of that portion of the rent ; and subject to the pay- ment of the rent, or of their respective portions thereof, which accrues or becoaies payable during the times they hold and enjoy the premises as such assignees. If the conveyance to each purchaser, of a portion of the premises, was for the whole term, the right of action against them, for rent, exists, as to a portion of the rent at least, although some of them are only assignees of undivided interests in tha . premises. The privity of estate exists between the landlord and the assignee of the lessee, pro tanto, where the lessee only assigns a part of the premises, if such assignment is of his whole interest and estate in that part of the premises. The distinction between an assignment and an under tenancy depends solely upon the quantity of interest which passes by the assignment, and net u^jn the extent of the premises transferred thereby. The assignee of a lease is only liable, as such assignee, for the rent which accrued or became payable, or for other covenants broken, while he was such assignee. And he may discharge himself from all further liability, by assigning his Interest in the premises to a stranger, even if the assignee is a beggar ; provided he actu- ally relinquishes the possession of the premises, and all interest therein, so that the assignment is not merely colorable, or fraudulent. There being no privity of contract between the lessor and the assignee cf the lease, the latter is personally liable only in respect to his privity of estate m the land, or in respect to covenants running with the land, for the rent which accrued and became payable after such privity of estate commenced, and before it terminated ; or while he enjoyed, or had the right to enjoy, the premises or some part thereof, as an assignee of the lease. A mere mortgagee of the term, who has not entered under his mortgage, is not per. sonally liable, as an assignee of the interest of the lessee in the premises. Whether the assignees of the lessee's interest in undivided portions of the leasehold premises should be sued jointly for the whole rent, or separately for their respecfr ive Dortions thereof 1 QvtBre, 1843., CASES IN CHANCERY. 53 Childs V. Clark. Whether the assignee of a part only of the leasehold premi>es, but of the whole of the lessee's interest in that part, is liable in law for the whole rent, or for the whole damage for the breach of any of the covenants in the lease which extend to the whole premises '! Qiuere, This was an appeal from a decretal order of the vice chan- cellor of the eighth circuit, overruling the several demurrers of the appellants to the complainant's bill. The facts of the case, as stated in the bill, were substantially as follows : On the first of November, 1831, Oshea Wildfer and his wife held certain lands in the county of Monroe, in trust for the benefit of Mrs. Wilder, and their children, under the will of S. Shaw, deceased ; but the nature of the trust, the powers of the trustees, and the time when the trust was created, or when it was to determine, were not stated in the bill. On the day before mentioned, however. Wilder and wife, as such trustees, leased those lands to E. Griifin, for the term of twenty jj'ears, from the first of April, 1832, at the yearly rent of f 250, pay- able semi-annually in advance, to the lessors, their heirs and assigns. This lease was duly acknowledged and recorded in May, 1836. Prior to the first of April, 1833, the lessors assign- ed to the complainant the rents which should accrue, and ail their claim to any benefit under the lease, for seven years, com- mencing on the last mentioned day ; which assignment the bill stated to have been lost. In March, 1836, a law was passed authorizing Wilder and wife to sell and convey the premises, as their own property, and to invest the proceeds thereof in lands in Michigan, upon the same trusts. Under this statute, in July, 1836, Wilder and wife sold and conveyed the premises described in the lease, to W. W. Campbell ; excepting from the operation of that conveyance the interest which Griflin had ac • quired under the lease to him, and also all the estate and interest which T. Childs, the complainant, had acquired by the assign- ment of the rent to him for seven years from the first of April, 1833. On the first of Novembei. 1836, Campbell conveyed one undi- vided half of the premises to J. Cleveland ; and on the sama day Campbell and Cleveland conveyed an undivided quartei thereof to B. Meade, and another undivided quarter to W. /,4 CASES IN CHANCEIIY. IFeb. 21 Childs V. Clark. Couch, one of the defendants in this cause. On the first of May, 1837, Cleveland mortgaged his undivided one fourth of •he premises to Couch, to secure the payment of $4000 ; and on the 18th of the same month Campbell conveyed his undi- vided fourth thereof to Cleveland. In -November, 1838, Couch conveyed his undivided fourth of the premises to Camp- bell, and took back a mortgage thereon to secure the payment of $3420. All of these deeds, assignments, and mortgages, ex- cept the assignment to the complainant for the seven years' rent, were duly recorded. And in June, 1839, Campbell, Cleve land and Meade, conveyed all their interests in the premises to G. R. Clark, one of the defendants in this cause. At the time of this last conveyance, the rent, which became payable in ad- vance on the first ^lays of April and November, 1839, was unpaid, and remained due at the time of the filing of the bill- in this cause. And the half year's rent, which became due on the first of November, after that conveyance, also remained due and unpaid. At the time of the filing of the complainant's bill, Griffin, the original lessee, was insolvent, and Campbell had also become insolvent, and had been discharged fi'om his debts under the bankrupt act of 1841. But no reason was stated for not making Cleveland and Meade, who were the assignees or grantees, under Campbell, of undivided portions of the }>rem- ises at the time when a part of the rent assigned to the .'.om- plainant accrued, parties to this suit. The defendeints put in their several demurrers to the bill, for want of equity ; for multifariousness ; and for want of parties, because Cleveland and Meade, and Campbell, or his assignee in bankruptcy, were not made defendants. The vice chancellor, though with considerable hesilatioi, arrived at the conclusion that the complainant had an equil-i- ble lien upon the land for the two years' rent which was stiU due to him, and that Clark, the then owner of the land, and Couch, who held the mortgages upon two undivided fourths of the land, were properly joined as defendants, and were the only necessaiy parties. He therefore overruled the denurrers, end diiected the defendants to answer the bill within thirty daya I*k46.1 CASES IN CIIANCEUVi. 55 Chllds V. Clark. The following opinion was delivered by the vice chancellor , F. Whittlesey, V. C. This case is not without its em- biirrassmeats, as to the legal questions presented. The com- plainant, uy his assignment from Wilder and wife, acquired no estate in the premises, or inteiest in the reversion, but meiely au assignment of the rents, for a certain time which had not yet acciued. As the lease itself was not assigned, it would seem that the complainant would have had no right to distrain in his own name. (iSlocum v. Clark, 2 Hill, 475.) It would appear, however, that he might sue in his own name, as the rent as- signed was not then due ; and that he could thus sue either the lessee or his assignee in possession — the covenant to pay rent running with the land. {Demurest v. Willard, 8 Cowen, 206. Willard v. Tillman, 2 Hill, 274.) He could not, however, sue J. mortgagee not in possession. {Aslor v. Miller, 2 Paige, 68 ; iS. C. i'l error, 5 Wend. 603. Walton v. Cronli/'s adnir, 14 lu. 6o.'! OpjTipbell, when he took the assignment of the lease from firitfin, bscame an assignee liable to pay rent to the complain- ant. The case states that he had notice of the complainant's lights ; and the assignment to him is expressly to hold under the yearly rents and covenants in the lease mentioned. He was, therefore, not only liable to pay the rent, but liable to pay it to the complainant, by virtue of his iinowledge of the assign- ment to the complainant. When Wilder and wife conveyed k Campbell, such conveyance being of the reversion, would have entitled the grantee to receive the accruing rents upon the out- standing lease. But this very conveyance informed him thai the complainant had a right to receive such rents for a part of the time — and the object of this exception, so far as the com- plainant is concerned, probably was to secure his right to re- ceive the rents for the period mentioned, and to inform the grantee that the complainant was so entitled to receive them to liis exclusion as grantee of the reversion. Rent is an ordinary incident to the reversion, but it may be separated from the reversion — and this instrument may perhaps 56 CASES IN CHANCERY. rB'^s SI, Childs V. Clark. be considered as making such a separation. Bui in '.his ccse, the grantee of the reversion was also the owner of the term — a fact which, from the tenor of the deed, I should infer ihat the grantor did not know. No one can be both landlord and ten- ant of the same premises in the same right, thcgh, pcssijjiy, Campbell, while he remained in possession, might be considered as tenant of the complainant because of the lease which he took by assignment from Griffin, and because of the recognition of the complainant's right contained in the grant of the reversion. It is doubtful, however, whether the complainant could have sued Campbell for rent after the latter had received the deed of the reversion. If he could, it would be because he was as- signee of the lessee, and because the rent had, in a certain sense, been separated from the reversion. If Campbell was liable to be sued for rent as assignee of the lessee, the grantees fioni Campbell did not, by reason of such grants, become assignees. The merger of the terra in the reversion would, I think, (ben bi complete upon the grants from Campbell, if not befoi'e. and the effect of such merger would be tp impair, and indeed destroy, the right of the complainant to collect the rent due to him from the land, or any occupant of the land. ( Webb v. Rus^ll, 3 T. JR. 393.) In such an aspect of the case, Campbell rtould have done an act to destroy the complainant's rights, with fi'll knowledge of those rights. He would by his own acts have brought about a merger, cutting off the complainant from a remedy, and which the latter could not prevent. He took the grant of the reversion subject to the rights of the com- plainant. Those rights were to collect the rent from the Hnd, the lessee and his assignee. They were in a certain sense chargeable upon the land, and as the means of enforcing them, as assignee of the rent, has been taken away or rendered very doubtful by Campbell, the charge should be continued upon the land, and the title go to Campbell and pass to his grantees with this burden. I am not free from doubts as to this conclusion ; but it seems to me to be one which meets the equity and sub stantial justice of the case as it is now presented. I can pei ceive no ground for objection that the bill is multifarious, or pji 'Sia., CASES IN CHANCERY". 57 Childa V. Clark. a want of paities. If the bill is merely to enforce a lien, all the necessary parties are before the court. The demurrers are overruled with costs, with liberty to the defendants to answer in thirty days, or in default, that the bill be taken as confessed. D. Cady, for the appellants. The case made iii the com plainant's bill does not entitle him to any relief against the de- fendants. There is no privity of estate or contract between him and them.. The rents which accrued in 1838 and in 1839 are not a lien on the land ; and if not, the defendants are improperly joined ia the cause. If the complainant has a remedy against the persons who had possession of the premises in the years 1838 and 1839, his remedy is not against them jointly, but against each, for tiie proportion of the rent which accrued on the part of the premises possessed by each. The defendant, George R. Clark, had no interest in or to the premises on the 1st of April, 1838, or on the 1st of April, 1839, when the rent ■;f those years •became due : and Couch, the other defendant, ■Tas, on the 1st of April, 1838, the owner of only one-fourth of the premises ; and on the 1st of April, 1839, he owned no part of the premises, but was a mortgagee of one-fourth. F. M. Haight, for the respondent. By the assignment from Griffin, and the deed from Wilder and wife, Campbell took the estate charged with .the payment of the rent due to the com- plainant. The conveyance by Wilder and wife to Campbell extinguished the covenants in the lease, and left to the com- plainant an equitable lien for the amount due him. The de- fendants took the estate with full notice of the claim of the complainant, and must hold in subordination to it. The com- plainant, as assignee, is entitled to come into a court of equity; his remedy at law in the name of his assignor having been taken away, or rendered doubtful, by the conveyances between ihe parties. \or,. III. 58 CASES IN CHAIN CEHY^. [lr distribution. The decree appealed from is not erroneous ; and it must D \ affirmed with costs. Craig and Strong, executors, «fcc. vs. Craig and others. [Followed, 26 Hun 95. DisUnguished, 14 Vr. (N. J.) 47.] Where a testator, desiring to make a certain provision for his son, which wouIJ give him a sure and aaiple support during his life, by his will directed his execu- tors to invest in bonds and mortgages, and in New- York state stocks, a sum of money sufficient to produce, in legal interest, at least $500 per annum, to be held by such executors in trust for the legatee, and such income to be used by them, in his support and maintenance ; such investment to be made, as near as conve- niently might be, in equal sums, in bonds and mortgages, and in New- York state stocks ; Held that the investment should be so made, by the executors, as to raise the full sum ofSSOO annually ; that the testator did not intend that his executors should invest a capital which, at seven per cent interest, would produce $500 an- nually, but an amount sufficient to produce at least $500, in legal interest or in- come, at the rates at which such capital could be kept invested during the proba> ble continuance of the life of his son ; and that in making the investments upon bonds and mortgages the executors were authorized to invest' such a sum as would, at six per cent, produce $250 annually. Held also, that as to the other half of the investment, directed to be made in public stocks of the state, the executors had no discretion, so long as there were any such stocks to be purchased at par, whatever might be the annual income there- from; and that in making the first investment, the executors were authorized ta purchase, above par, five per cent stock enough to produce an income of $250, annually, if they could not get it at par. But that alter having once made such investment in stocks, the executors would not be authorized to diminish the capi- tal of the fund invested, by purchasing other stock at a rate beyond its par valu% m case the first stock should be paid off. Trusts for accumulation, being prohibited by statute, except for the benefit of mi- nors, a trust to accumulate the rents and profits of real estate, or the interest ot income of personal estate, cannot be created fpr the benefit of a lunatic who is not a minor. But where an annuity is given absolutely to a lunatic, a court of equity may direct the surplus, beyond what is necessa-y for his support, to be paid over to his committee, and invested for his use. Where the income of a lunatic is more than can be properly expended forh> usi> U must, as a n atter of necessity, be accun)ulated for him, or for those whi m&] 184S.J CASES IN CHANCERY. 77 Craig V. Craig. eTcntUally be entitled to his property, as his next of kin. But that is not a trust for accumulation which is prohibited by the statute. Where there is a limitation over, not only of the capital of a fund directed to bii invested for the purpose of pitying an annuity for life, but of so much of the pro- ceeds thereof as shall remain at the decease of the annuitant, there is an implied direction to accumulate the surplus income of the capital, by the executors, in trust for adults, or for persons not in esse at the time the accumulation is directed to commence ; which direction to accumulate is void by the provisions of the re- vised statutes. Where there is a devise of the income and avails of property to ~ person, for life, without any devise or bequest to the executors as trustees of such property, the legatee will take a legal estate in such property, if there is nothing else in the will to show that the testator intended to create a valid trust of the estate for his benefit. For a devise of the rents and profits of land for life, without any thing more, is but another mode of making a devise of the land itself, during the same period. But where the will clearly shows that the testator intended a legatee should receive ' the rents and profits of the real estate embraced in one share of his property, as well as the income of the personal estate included therein, through the medium of his executors, the executors take the legal title to that share of the real estate during the continuance of the beneficial interest of the legatee therein, as trus- tees, by implication ; to enable them to rent the premises, and to receive the rents and profits thereof, and pay them over to the legatee, or apply them to his use. Where a testator, by his will, gives no authority to his executors to sell his real estate, the executors cannot sell any portion thereof, either for the purposes of division or otherwise. ; But where an express power in trust is given to executors to divide a specified part of the real and personal estate of the testator into four equal parts, and to invest two of the shares for the benefit of two of his children, this is a valid and imper- ative power in trust, under the. provisions of the revised statutes, to divide such real estate into four equal paits, by a valid and legal instrument setting oS the share of each devisee in severalty, under the will. Where a portion of the trusts of a will can be so far severed from the general trust committed to the executors, as to be capable of being vested in different persons, the court, upon sufGcient cause shown, and on the giving of proper security to protect the rights of the cestuis que trust, may accept the resignation of the trus- tees appointed by the will, as to those particular trusts, and appoint others in their places. A residuary devise of real or personal estate, carries with it not only the property of the testator in which no interest is devised or bequeathed by other parts of thn will, but also all reversionary and contingant interests in the properly, whic!., in events contemplated by the testator, are not otherwise disposed of. Where tr-jstees under a will have accepted the trust and have received a legacf given upon the condition that they should execute such trust, the court will not iiiacliarge them from the trust without good and sufficient cause be shown. 78 CASES IN CHANCERY. [Fbb. 21, Craig V. Craig. Wliere an annuity is given by a will, and there is no direction as to the time when it shall commence, it commences at the testator's death. W^here stocks are conveyed to the husband and his wife jointly, and she oulhves ho: husband, who dies without having disposed of the stocks, the wife takes the who ' by survivorship. An absolute delivery, and a continued change of possession, are essential requisite! of a good donatio mortis causa. The promissory note of the donor is not a good gift inter vivos; and the donor, or his representatives, may impeach such a note for want of consideration. The promissory note of the donor is not a valid gifl mmrtis causa. But it seems that the draft of the donor, in favor of another, may operate as an ap- pointment, or appropriation, of the fund upon which it is drawn, to the use of th* donee. Wright v. Wright, (1 Omen, 598,) commented upon, and overruled. The case ot James v. James, (4 Paige, 117,) commented on, and explained. The bill in this cause was filed by the executors of Archibald Craig, deceased, to obtain a judicial construction of the will of their testator, in various particulars ; and for directions as to the manner of investing and distributing his estate, under the provisions of the will. The testator made his will in June, 1845, and died about a year afterwards, leaving a second wife surviving him. He also left one daughter by his first wife, and three sons and one daughter by his last wife, his only heirs. At the time of making the will, and at his death, his oldest son and his two daughters were married, and his second son was a lunatic. He owned a large estate, consisting of real and per- sonal property ; and there was also stock standing in the joint names of himself and wife, which she claimed as her separate property, and she had also real estate which had been conveyed to a trustee for her use. By his will, after making provision for the payment of his debts, and giving some small legacies to collateral relatives, the testator disposed of the residue of his estate as follows : " Fifth. It being my desire that a'certain provision be made for my son John (the lunatic,) which will give him a sure and ample support during his life, I therefore order and direct that my executors, before any distribution of my estate be made, invest in bonds and mortgages, and in New-York state stocks, a sum of money sufficient to produce, t?j legal interest, at leas.* ISiai CASES IN CHANCERY. 79 Craig ». Craig. five hundred dollars per annum, to be held by my executors in trust for my said son John ; which income, or so much thereof as may be necessary, I direct to be used by my executors, and the survivor or survivors of them, in his support and mainte- nance. Such investment I direct to be made, as near as con- veniently may be, in equal sums, in bonds and mortgages and in New-York state stocks ; the bonds and mortgages to be taken on unincumbered productive real estate within this state, worth, exclusive of buildings thereon, at least double the sum so in- vested. The principal so invested, or so much thereof and of the proceeds thereof as may remain, at the decease of my said son, unexpended, I give, devise and bequeath to the legal issue of my said son ; and in case he leaves no issue, then I give, de- vise and bequeath the same to my four children, James R. Craig, La Rue Craig, Elizabeth C. wife of Julius Rhoades, and Gertrude, wife of John T. Hudson, and to their respective heirj and assigns forever, share and share alike. Sixth. I give, devise and bequeath to my wife, Anna Maria Craig, the use and occupation of my present dwelling house, lot and premises connected therewith, in the city of Schenec- tady, together with all and singular the out-buildings and ap- purtenances thereunto belonging, during her natural life. I also give to her an annuity of $1600 per year, to be paid to her in semi-annual payments ; the principal of such annuity to be in- vested in such manner as she may reasonably require. I also give to her my family coach or carriage, my two-horse pleasure sleigh, and such carriage horses, harness, and other carriage appendages as I may die possessed of, and all my household fu'/.iture. The several devises and bequests unto my said wife ait ^iven for her use, in lieu of any right of dower and other claim wb -ch she may have upon any part of my estate, and to take effect upon her executing to my executors a release of her right of dower or other claim, when requested so to do by the persons interested therein. Seventh. My son James R. Craig, having for several years p3 jt occupied and improved that portion of my real estate whioh IS situated at and near the aqueduct, contain'ng between tJtree 80 CASES IN CHANCERY. I Feb 21 Craig V. Craig: and four hundred acres of land, and being desirous that he should receive the title to those lands upon terms which 1 deem reasonable and just, I hereby give, devise and bequeath jnto him in fee the lands aforesaid, upon condition, however, that he shall pay, in consideration thereof, to my executors, for the same, $6000, within five years after my decease, without interest; which sum, when paid, to be regarded as part of my estate, and to be equally divided between my children, Eliza- beth, Gertrude, James R. and La Rue, or to their legal repre- sentatives. It being expressly understood that my said son James is to make no charge against me or my estate, for any services rendered or any expenditure made on the said lands ; nor is he to be charged any rent for the use and occupation. of the same. Eighth. I order and direct that my executors, in taking an inventory of the rest and residue of my estate real and personal, not herein before devised, bequeathed and disposed of, shall charge my son James R. with the sum of $9000, my daughter Elizabeth with the sum of $8000, my daughter Gertrude with $6000, and my son La Rue with the sum of $6000, each being the amounts, as nearly as I can ascertain the same, which I have aheady advanced to them respectively ; and that the ag- gregate of such real and personal property be divided into four equal shares. Ninth. I give, devise, and bequeath one of those equal shares or parts lastly above mentioned to my son James R. Craig, and to his heirs and assigns forever ; but the sum of $9000, ad- vanced to him, is first to be deducted from his said share or part, before any payment is made to him, and my estate cred- ited for that sum. Tenth. I give, devise, and bequeath one other of those equal shares or parts to my son La Rue Craig, in fee ; but the sum of $6000, advanced to him, is first to be deducted from his said share, before any payment is made to him, and my estate cj-ed- ited with that sum. Eleventh. I give and bequeath to my daugliter Gertrude^ wife of John T. Hudson, the income and avails of one olhei 1848.1 CASES IN CHANCERY. SJ Craig V. Craig. of the said equal shaves or parts before mentioned ; the said avails and, income to be paid to her, by my executors, annualku during her natural life ; and upon her death, I give, devise, and bequeath such equal share or part to the heirs at law of the said Gertrude, and to their heirs and assigns forever ; but the $6000, so advanced to her, is to be deducted from such share, before any payments are made thereon, and my estate credited with that sum. Twelfth. I give, devise, and bequeath to my daughter Eliza- beth, wife of J. Rhoades, the remaining equal sha're or part be- fore mentioned ; the avails and income to be paid to the said Elizabeth, by my executors, during her natural life ; and upon her death, I give, devise, and bequeath such equal share or part to the heirs at law of the said Elizabeth, and to their heirs and assigns forever; but the $8000, so advanced to her, is to be deducted from such share, before any payments are made thereon, and my estate credited with that sum. Thirteenth. It is my wish, and I so order and direct, that the portion of my estate mentioned in the eighth article of this instrument be divided as soon as the same conveniently can be, and the shares of my sons James and La Rue be delivered to them respectively, and the shares of my daughters be invested for their benefit respectively, by my executors ; but before ef- fecting this division, it is my desire that my executors sell my lot of ground, situate on the corner of Main and T upper-streets in the city of BufTalo, and also the lot called the Mill pasture- and canal stable in the city of Schenectady ; and for that pur- pose, they are hereby empowered to execute the necessary tide deeds to convey the same to purchasers. Fourteenth. It is my wish, and I so order and direct, that my four children, James R., La Rue, Elizabeth and Gertrude, and their respective heirs, shall at all times share equally in the division of all the property which I own in my own rightj as well as the property the fee and title of which is in my wife ; but being advised, that in case my said wife, at her decease, should leave the property, the fee of which is in her, undisposed of, that the title to the same would pass to her children, exclu Vol. hi. H g2 CASES IN CHANCERY. [FEB.ai Craig o. Craig. ding my daughter Elizabeth : with the view, therefore, of equalizing such property, in every contingency, among my foul children, James R., I,a Rue, Elizabeth and Gertrude ; and in case my said wife, in her lifetime, shall fail to give, devise, or divide such property, the title of which is in her, in equal shares or portions to and among such four children, then, and in s uch case, I give, devise and bequeath the real estate before devised for life to my said wife, and also the principal of the said annu- ity of $1600 so invested for my said wife, to my executors, in trust, for the benefit of my said children or child as may not receive an equal share of said estate of my wife, so far as to make such child or children equal to the largest share that may be received by either of them from the estate of my said wife ; and that the residue, after such equalization, be divided equally between such four children and their legal representatives, share and share alike ; it being the express intention of this instru- ment to make the shares of the said Elizabeth, James, La Rue and Gertrude, in the estate left by me, and in the property so owned by my said wife, in all respects equal. Fifteenth. It being my wish and desire that my son John Craig should be amply provided for, I hereby order and direct, that in case my said son should recover, and become of sound mind and capable of taking care of himself, my other children shall each pay over to him, out of the shares of my property bequeathed to them respectively in and by this instrument, the sum of $2000, making $8000 in all ; this sum to be given to him in addition to the annuity of $500 herein before bequeathed to him." The testator appointed his wife executrix, and the complain- ants James R. Craig and John Strong the executors of his will and gave to Strong a legacy of $500, in addition to legal com- missions, upon condition that he accepted and executed the rust of executor. The executrix renounced the trust ; but the executors proved the will, and took out letters testamentary thereon. And the widow elected to take the provision made for her by the will, in lieu of dower and other claims upon the estate of the testator, and released her right of dower, in cou- t^48.] CASES IN CHANCERY. 83 Craig V. Craig. formjty with the diiections of the will on that subject. At the time of Mmg the complainants' bill, Mia. Rhoades had two children and Mrs. Hudson one, who were made defendants ; and who, being minors, appeared and put in answers by their guardians ad litem. John Craig, the lunatic, also appeared by his guardian ad litem, and put in a general answer. The cause was heard upon bill a;nd answer as to the adult defendants,,; and upon the bill, answer and master's report, as to the minors. And at the hearing, J. Rhoades and wife, John T. Hudson and wife, James R. Graig and La Rue Craig entered into a written stipulation, authorizing the executors to retain $2000 from tlie share of each of the children of the testator, exoept John, before a division between them under the eighth and ninth claused of the will, and to invest the same in such manner as the court should from time to time direct, to provide for the contingency of the recovery of John Craig as contemplated by the testator in the fifteenth clause of his will. A. C Pai^e, far the complainants, the executors, for Mi». Craig the widow of the testator, and for La Rue Craig. The complainants ask for a judicial construction and decision upon the parts and particulars of the ■will of the testator, specified in their bill of complaint ; and also upon such other parts of said will as may appear to be doubtful or obscure ; and they ask for such directions in respect to the execution of the said will, and particularly in reference to the doubtful, obscure, or ambiguous parts thereof, as may be necessary to guide and protect them in the discharge of their duty. The com- plainants also ask for a decision of the question whether the acts of the testator, stated in the bill, constituted a reduction to possession of the stocks and personal property of Mrs. Craig, so as to make the saine parts of the testator's personal estate. The complainants ask especially for the decision of the ques tions stated in the seventh particular of the bill, and particu- larlj' whether they can make a division of the residue of the testator's real and personal estate, as directed by the 8th and 13th clauses of the will, as executors or as trustees ; or whetliei 84 CASES IN CHANCERY. [Feb aI Craig t). Craig. the same can be made before Mrs. Craig shall have given ol devised her property among the four children of the testator ; or if made before, whether such division will be absolute or contingent on Mrs. Craig's compliance with the 14th clause of the will ; and if such division will be contingent, whether tlio income of the shares of Mrs. Hudson and of Mrs. Rhoades is to be applied as directed in the 11th and 12th clauses of the will, until it be ascertained whether the disposition specified in the 14th clause has been made. The complainants especially submit the question, for the decision of the chancellor, whether a valid trust is created by the will to receive the income of two fourths of the residue of the real and personal estate of the tes- tator, and to apply the same to the use of Mrs. Rhoades and of Mrs. Hudson respectively during their lives. And if no valid trust is created by said will, and if there is a failure to dispose of the two-fourth parts of the residue of said estate, intended for Mrs. Rhoades and Mrs. Hudson, how such failure affects the other provisions of the will. The complainants also especially ask for the decision of the question, whether they are authorized to sell any part of the real estate, other than that mentioned in the 13th clause of the will, for the purpose of dividing the pro- ceeds of the sale between the four children ; or whether they are authorized to lease such real estate, or to receive the rents thereof and to pay the same over to the said four children. The complainants also ask the chancellor to decide whether they are appointed trustees, by said will, of the shares of the tes- tator's estate devised to Mrs. Rhoades and to Mrs. Hudson, and to their heirs. And if it shall be decided that they are trus- tees of such shares, then they ask permission to resign such trust. The complainants also ask for a decision whether they are authorized by the will, in making the division directed by the will, to divide any part of the real estate among the four children. And they ask for all necessaiy directions as to the division of the said residue of the real and personal estate among the devisees and legatees, or as to the sale of the same, or of any part thereof, and the division of the proceeds thereof among such devisees and legatees; and generally, that all 184S.J CASES IN CHANCERY. fi5 Craig V. Craig. Buch Other directions may be given as the circumstances of this case may require ; and that the accounts of the complainr ants as executors may at all proper times be taken and passed nnder the order of this court. J. C. Spencer, for J. Rhoades and wife, and for J. T. Hud- son and wife. It was the intent of the testator that five hun- dred dollars absolutely, should be raised annually for the support of his son John. The executors should invest in five per cent state =tock, enough to produce two hundred and fifty dollars annually. The devisees are not bound to supply any deficiency in the fund, if there should be any. The executors may reserve the surplus of one year for the accidents of another, and are to invest it. No part of any excess during a year should be dis- tributed during the life of John. The principal sum invested to produce the annuity for John, is disposed of by the 5th clause of the will, and is not subject to division under the 8th clause, and is not affected by the 11th and 12th clauses. We suppose all the land which the testator had used as premises connected with .the lot, passed to Mrs. Craig, and all the out- buildings Mrs. Craig is to direct in what securities the invest- ment for ^jer is to be made ; and the fund will be at her risk. The shaR s of the $6000 to be paid by James R. Craig, are given absolutely to the four children of the testator, and form no part of ' the residue" referred to in the 8th clause, and are not subject to the 11th and 12th clauses, but should be paid over at once to all the legatees. The remainder in fee in the premises devised to Mrs. Craig for life, and in the principal sum invested for her annuity, is devised by the 8th clause to the four children. The property is to be divided by the executors as such. This is a mere power. All the property, excepting the principal of John's annuity, the $6000 to be paid by James R. Craig, and that devised to Mrs. Craig, or invested for her, is to be immediatelj/ divided. The property devised to Mrs. Craig, and invested for her, is to be divided upon her death, by the executors, according to the 14lh clause. By the devise of the avails and income of one fourth of 'he real estate to Mrs 86 CASES IN CHANCERY. r*"E». '-«' Craig V. Craig. Rhoades and Mrs. Hudson, ao absolute estate is vested in them foi- life, in the lands. The income of the personal estate is to be paid over to Mrs. Rhoades and Mrs. Hudson by the execu- tors, as such ; and they have no estate as trtistees. In case of death, resignation, (fee. the duty is to be performed by the administrator with the wiU annexed ; and the personal estate is to be invested by them as executors. The avails and in- come thus devised, are not separate estates for the wives, but interests which the husbands may reduce to possession. But the husbands oflfer and agree that the decree be entered to pay over on the receipts of the wives. Mrs. Rhoades and Mrs. Hudson take only life interests. The fee is expressly devised over. The executors have no power to sell the real estate, un- less it is necessary for the purpose of division. The charge of $2000, in the event of John's recovery, is upon the devisees personally, and not upon the real estate devised. No deduc- tion should be made in the division of it on that account; nor should any thing be retained by the executors for the puiposa of paying that charge. No security is necessary or required by the will tq be given by the devisees. But if John should ba in the same situation when the tenants for life die, the court will probably direct sufficient to be retained by the executors ; instead of paying it to the devisees in fee. A. L. Linn, for John Craig, the lunatic legatee. The two clauses in the will of the testator which regard the defendant John Craig, to wit, the fifth and fifteenth, are founded upon the express wish of the testator, not only to "give him a sure and ample support during his life," but with the mani- fest intention of making provision for him in. the event of his having legal issue, or becoming of sound mind. And. as the only reason appearing on the face of the will, why the testatoj! withheld from this son his full share of the estate is hisutisound liens of mind, and as the provisions made for him in any event fall far short of his. full share, they ought not to be burthened with limitations and restrictions, but should be benignly and liberally construed in his behalf. The provision made for thia 184&I CASES IN CHAKCERY. 87 Crai^ 0. Cridg. (Jefend^at, by the 5th clause of the will, entitles him to have invested, befoi'e any distribution of the estate of the testator, a sum sufficient to produce in legal interest at least $500 per an- num. This defendant i» entitled to have this investment made, in the language of the will, " as near as conveniently vnay be in equal sums in bonds and mortgages and in New- York state stocks f that both as it respects the^ security of the investment and the interest therein, to which his legal issue, should he have any, will be entitled, this direction of the will should be observed so far as practicable. The trust created in favor of this defendant by the 5th clause of the will was intended, by the testator, to secure to the use of this defendant not only the annual sum of $500, but such annual sum to grow out of the particular funds specified* And no obscurity occurs from the use of the words legal interest ; nor can they in any event re- duce the annual income of $500, to which this defendant is entitled. These words^eg'a^ interest regard the rate of interest, which both the state stocks and bonds and mortgages, procured for the purposes of such investment, shall legally bear — the stocks by the law of the state which created them— the bonds and mortgages by the contract between the executore and mort- gagor. The trust created in faVor of this defendant, by the 5tli clause of the will, was intended to secure to him absolutely the annual sum of $500 ; whether such sum be necessary for his support and maintenance or not. And the principai' out of which such annuity is to grow, as well as all increases in value of such principal, and surpluses of the income thereof, and the accumulations thereof arising from the investment of such sur- pluses, if any, is a fund' sacred to the uses of this defendant and his legal issue, if any, who shall him survive. It will become the duty of the executors, as the trustees of the fund directed, to be created for this defendant, to invest from time to time such portion of the annual proceeds thereof as shall not be ap- plied to the support and' maintenance of this defendant. As to the mode in which the provision made for the defendant by the 15th clause of the will, whereby, in the event of his becoming of sound mind, the sum of $8000 is to be paid to him by the S8 CASES IN CHANCERY. [Feb. 21 Oraig u. Craig. Other children of the testator, shall be secured, his guardian submits to the direction of the cotirt. It is insisted, however, that whatever may be the construction given to the bequest, made in the will, to the complainant James R. Craig and the defendant La Rue Craig, or to the trusts created for the benefit of the defendants Elizabeth C. Rhoades and Gertrude Hudson, the sum directed to be paid to this defendant by the 15th clause should either be withheld from division and distribution, among those entitled in case the event contemplated in said clause shall not happen, or before such division and distribution it should be properly secured to this defendant. J. v. L. Pruyn, for the children of Mrs. Rhoades, and of Mrs. Hudson, The will creates, if not in terms, then clearly by impli- cation, a valid trust estate in one of the shares of the testator's residuary estate, for the benefit of his daughter Mrs. Rhoades, and her heirs at law. The intention of the testator to preserve the capital of this part of his estate and to give to Mrs. Rhoades the benefit of the income only, with remainder to her heirs at law, is distinctly declared in the 12th and 13th sections of the will. And no ambiguous or doubtful language used in other parts thereof, will be permitted to overrule the testator's clearly ex- pressed views on this point. It is manifestly to be implied from the will, that the executors are to act as trustees for the fund. They are, at any rate, to act as such so far as the personal estate is concerned. Under the 8th section, they have power to divide the estate. In the 12th section, they are directed to pay the income and avails of the share to Mrs. Rhoades, and by the 13th section they are to invest the share. But if the court should be of opinion that the executors were not con- stituted trustees by the testator, it will not permit his intentions to fail, but will appoint trustees to execute the trust. If, how- ever, the share of the estate referred to was not devised in trust, then a -valid power in trust is vested in the executors, under the will, in favor of the heirs at law of Mrs. Rhoades, which tliia oourt will require them to execute. Or, if no such power exists J848.I CASES IN CHANCERY. 89 Craig V. Craig. under the will, then its provisions, in regard to the said share, contain valid directions for the disposition of the same, which the court will require the executors to carry into effect on their part. By these directions, if they are such, a life estate vests in Mrs. Rhoades in one of the residuary shares, with remainder to her heirs at law. In case the court shall be of opinion that under the will Mrs. Rhoades took an absolute estate in the one fourth part of the testator's residuary estate, then, under the offer in the answer of Mr. and Mrs. Rhoades, a proper settle- ment of her share of the estate should be made, under the di ■ rection of the court, so as to protect and preserve the capital thereof for the benefit of her children and heirs at law, as ori ginally contemplated by the testator. The capital of the fund which may be set apart to secure the annuity to John Craig and the amount of $6000 to be paid by Jarnes R. Craig under the 6th section of the will, and also the amount to be set apart to secure the annuity to Mrs. Craig, and the house and lot in Schenectady devised to her for life, subject to the execution of the power as to the two latter, contained in the 14th clause of the will, on the happening of the contingency therein mentioned, form part of the residuary estate of the testator disposed of in the 8th section of the will, and the one fourth part of which was devised in trust as aforesaid, for the benefit of Mrs. Rhoades and her heirs at law. The Chancellor. The first question upon which the court is asked to give a judicial construction of the will in this case, is as to the investment for the purpose of raising an in- come for the support of the lunatic son of the testator. In this question the children of Mrs. Rhoades and Mrs. Hudson, as well as their parents and the lunatic, have an interest. For the capital of this investment is carved out of the general resid uary estate of the testator, in which residuary estate the inter- ests of the parties will be different from what they are in the capital of the fund thus carved out of the same. For in the general residuary estate Mrs. Rhoades and Mrs. Hudson have but Hfe interests ; and the remainder in fee is limited to their Vol. m. 12 yQ. CASES IN CHANCERY. [Feb. 2i Craig V. Craia. heirs at law. But the capital of the faad which is to produce the annuity for the support of the lunatic, is given absolutely- his brotliers and sistei-s,ia case he dies: without leaving issue, and the heirs at law of Mrs. Rhoades and Mrs. Hudson have no interest therein as remaindermen. The investment must therefore be made so that no inj:ustice shall be done as between the ultimate owners of the general residuary estate or interests therein and the ultimate owners of the capital of this particular fund. But the rights of the lunatic, under the will, must at the same time be piieserved. And I think his guardian ad litem is right in supposing that the investment must be so made as to raise the full sum of $500, annually. The testator, as a man of business, well knew that state stocks bearing an interest of seven per cent and having any considerable time to run, could not be purchased at par. He also knew that permanent invest- ments upon bonds and mortgages, on such property as he di- rected these investments to be made in, could not be made to produce a clear and permanent interest of seven per cent. And yet he uses language, not only in the fifth but also in the fif- teenth clauses of his will, showing clearly his intent to leave an undiminished income of $500, annually, for the support of his unfortunate child. He did not, therefore, intend that his exec- >ators should invest a capital which, at seven per cent interest, would produce $500 annually ; but an amount sufficient to produce at least $500 in legal interest orincome, at the rates at which such capital could be kept invested during the proba- ble continuance of the life of his son. The expression "at least $500," shows that he intended to allow his executors a proper discretion in this respect ; so that the income of $500 should not be diminished in any probarble contingency which might happen. In making the investments upon bonds and mortgages, therefore, the executors are to be authorized to in- vest such a sum as will, at six per cent, produce $250 annually. That is the rate fixed by the rules of the court, in the compu- tation of the value of life annuities, and is as much income as can safely be calculated on from such an investment, which is to be made from time to time for life. As the tcsiator has di- 1S48,] CASES IN CHANCERY. §1 Craig l^. Craig. rectied the othra: half of the investment to be made in public stocks of the state, the executors have no discretion upon that subject so long as there are any such stocks to be purchased at par, whatever may be the amount of the annual income of such stocks.' And in making the first investment the executors are authorized to purchase above par, stock enough to produce an income of $250, annually, if they Cannot get it at par. After that, however, they will not be authorized to diminish the cap- ital of the fund by purchasing stock at a rate beyond its par value ; and they ought not then to diminish the income by pur- chasing stock bearing a low rate of interest. And if the rights of both parties cannot be protected in continuing the investment in stock, the executors may then invest that half of the fund in such bonds and mortgages as the testator has mentioned in his will. Under the provisions of the new constitution limiting the powers to contract state debts, and state stocks being wanted' for the purposes of the general banking law, it is hardly proba- ble that state stocks can be obtained at par or under, at a rate of interest above five per cent. The executors are therefore to be authorized to invest in five per cents which have the longest time to run, suflicient to raise an annual income of $250, for the support of the lunatic ; and to keep the capital invested in stocks at the same rate of interest, if they can be procured, during his life. As the capital of the gener'ali residuary estate is to be distrib- uted immediately, no provision can be made to supply any defi- ciency either in this fund or in< that provided for raising the annuity of $1600 for the use of the widow. In making botli of these investments, therefore, the executors must see that a sufiicient sum is invested to raise the annuity, and to reinvest the capital from time to time without diminishing the capital or the income thereof. In relation to both, the executors, as trustees of those who- may ultimately be entitled to the capital of the fund, must see that it is safely invested. But in relation to the last mentioned fund, the widow also, by the terms of tha will, has a right to be consulted as to the mode of investment, BO as to render it safe for her. She has no right, however, to 92 CASES IN CHANCERY. [Feb. 21 Craig V. Craig. direct a mode of investment which will render the capital un safe for tiiose to whom it may ultimately belong. The better course for all parties, probably, is to invest upon bond and mortgage a sufficient amount of capital to produce $1600 annually, at the rate of six per cent ; as it cannot prob- ably be made to produce more than at that rate during the whole period of the widow's life. In case it should produce more, the surplus will belong to the four children of the testator among whom the residuary estate is to be divided ; as the persons who are now presumptively entitled to the next eventual estate in the capital of that special fund. The executors, with the as- sent of Mrs. Craig, are therefore to be authorized to invest the capital necessary to raise her annuity of f 1600 in that manner. And if there should be any income from the investment, by reason of a temporary investment at a higher rate of interest than six per cent, the executors are to distribute the same among those who are then presurnptively entitled to the next eventual estate in the capital of the fund. The executors are only authorized to use so much of the annual sum of .$500 as may be necessary for the support and jnaintenance of the lunatic. And the court is called upon to decide what is to be done with the surplus, if the annuity is more than sufficient for his support. Trusts for accumulation are prohibited, except for the benefit of minors. (1 R. S. 726, §§ 36, 37. Idem, 773, §§ 3, 4.) A trust to accumulate the rents and profits of real estate, or the interest or income of per- sonal estate cannot, therefore, be created for the benefit of a lunatic. But if this annuity had been given absolutely to the lunatic, the court might have directed the surplus, beyond what was necessary for his support, to be paid over to his committee, and to be invested for his use. For where the income of a lu- natic is more than can be properly expended for his use, it must, as a matter of nece.ssity, be accumulated for him, or those who may be entitled to his property eventually, as his next of kin. That, however, is not a trust for accumulation prohibited by the statute. If this annuity was given absolutely to the luna- tic, therefore, the court would give the f roper directions to soma I848.J CASES IN CHANCERY. 93 Craig V. Craig. one to invest the surplus for his benefit. It is evident, however; that the testator did not intead to give to the lunatic any mora of the annual income of the fund invested than was necessary for his support and maintenance. For there is a limitation over, not only of the capital of the fund invested, but of so much of the proceeds thereof as shall remain at the decease of the lu- natic. This is an implied direction to accumulate the surplus income of this capital, by the executors, in trust for adults, or for persons not in esse at the time the accumulation is directed to commence ; and is void by the provisions of the revised stat- utes. There is, therefore, a suspense of the absolute ownership of the capital of the fund, for the life of the lunatic, during which time this part of the income of that fund, not wanted for his support, is undisposed of. And lio valid direction for its ac- cumulation being given, it belongs to the brothers and sisters of the lunatic, under the provisions of the revised statutes on that subject, as the persons who are presumptively entitled to the next eventual estate in the capital of the fund. (1 R. S. ♦526, § 40. Idem, 773, § 2.) A mere temporary surplus for a single year, owing to some peculiar circumstances, which may be all expended, in addition to the whole annuity, the succeeding year, would not be deemed an accumulj-tion within the mean- ing of the statute. But if there is a permanent surplus, or if any surplus is likely to remain permanently on hand because it is not wanted for the support of the lunatic, it must be di-^tribu- ted among those who were presumptively entitled to the capi- tal of the fund out of which such surplus income arose, when the same accrued. In reference to the third question raised by the bill, it is only ne^ cessary to say there is no trust as to the shares of Mrs. Rhoades and Mrs. Hudson in the annuity fund of their brother, after the death of the lunatic without issue ; but upon the happening of tliat event, they will be entitled to their shares of the fund abso- lutely, and the executors may pay it over to their husbands with safety. Their interests in the $6000 which tlieir brother James R. is to pay for the farm, arc also absolute interests. And upon the facts stated in the bill, and admitted in the answers of the adult 04 OASES IN tMANCKRY. [Feb. 21 Craig c. Craig. defendants, no one can doubt that the devise of the homesfr'^ad to the widow for life, and the limitations in fee in the samt proj)- e;rty after her death, embrace not only the dwelling hou>-e, but also the whole of the three lots described in the bill, wi b the warehouse, office, and other out-buildings thereon ; as the same lots were occupied together by the testator, in his lifetime The next question which I shall consider, is, whether ralid trusts to receive the rents, profits, and income of the sha/ es of Mrs. Rhoades and Mrs. Hudson, for life, are created ty the eleventh and twelfth clauses of the will, so far as relates to the real and personal estate embraced in the eighth clause, t^rst, as to the devise and bequest to Mrs. Hudson : If there had been a direct devise and bequest to the executors, of the real and pereonal estate embraced in that share, in trust to receive the rents and profits and income, during her life, and apply the same to hei use, with a limitation over of the capital of the estate to her heirs after- her death, there could be no doubt that a valid ti-ust would have been created, vesting the legal title in the executors du- ring the continuance of her life ; under the third subdivision of the fifty-fifth section of the article of the revised statutes rela- tive to uses and trusts. (1 R. S. 728.) And in the case of Gott V. Cook, (7 Paige's Rep. 521,) this court decided that a trust to receive the rents, profits and income of property, and to apply them to the use of the cestui que trust, by paying the same over to him in money after they had accrued and been received by the trustee, was applying such rents, profits and income to the use of the cestui que trust, within the intent and meaning of the provision of the revised statutes on this subject. It is said, however, that there is no devise or bequest to the ex- ecutors, as trustees of this share of the estate ; and therefore that Mrs. Hudson takes the legal estate therein, by a devise to her of the income and avails of her share of the property. This would undoubtedly have been so, as to the real estate, if there had been nothing else in the will to show that the testator intended to create a valid trust of the estate for her benefit during her Ufc. For a devise of the rents and profits of land for Hfe, without any thing more, is but a different mode of expression to create 1848. 1 CASES IN CHANCER i. 'Qfl Craig V. Craig. a devise of the land itself during the same period. (1 Rob. on Wills, 3d Land, ed 404.)' Here, however, the testator clearly shows that he intends that his daughter Gertrude shall receive the rents and profits of the real estate embraced in that share, as well as the income of the personal estate included therein, through the medium of th* executors. The executors there- fore take the legal title to her share of the real estate, as trus- tees, by implication, to enable them to rent the premises, and receive the rents and profits thereof, and pay them over to her, or apply them to her use. The same question arose, in England, about one hundred and fifty years since, and, as I understand the different reports of the case, was decided the same way, in South v. Allen, {Comb. Rep. 375 ; 5 Mod. Rep. 98, and 1 Salk. 228, S. C.) Salkeld, it is true, states the case as having been decided against the executrix, contrary to the opinion of Holt, C. J. But it will be seen by a reference to the record, which is set out at length in the report in 5 Modern, that Mrs. Birch and her hus- band were the lessors of the plaintiff in that case ; and claimed the legal estate in the premises under a clause in the will of her brother, substantially the same as in the present case, de- vising the rents and pi'ofits of the land to her for life, to be paid to her by the executors. Salkeld's report of the case is -very short, and states that C. J. Holt seemed strongly to incline to the opinion that the executors were trustees for the wife. But he says the defendant had judgment by the opinion of Rokeby and Eyre against C. J. Holt. Comberbach's report, which is also very short, states what the question was, and that Holt, C. J. at first said, it is a devise to the executoi's by implication of law, else the will cannot be performed, and the other justices agreed with him ; but Holt afterwards said the devise of the rents and profits is a devise of the land to the wife, and theu the subsequent words were void and could not exclude the hus- band. The other judges, however, retained the contrary opm- ion ; and said that a devise of the rents and profits was not always a devise of the land. For this they referred to the case of Griffith v. Smith, {Moor's Rep. 753,) in which case it was 96 CASES IN CHANCERY. [Feb. 21 Craijt V. Craig. resolved by all tlie judges, in the exchequer chamber, that though a devise of the profits is a devise of the land itself, if there are no other circumstances in the case, yet as the executor was to lease tlie term and pay over the rent to the testator's poor kin- dred, to whom such profits were devisedj the title to the term was in the executor, as trustee. The case is twice reported in the 5lh of Modern Reports, first at page 63, under the name oi Bush V. Allen, and afterwards at page 98, under the same name as in Coniberbach and Salkeld. In the report of the case at page 63, C. J. Holt gives a very sensible reason for holding that the legal title was not in the wife, but in the executors as trustees for her. For he says " to be paid by the executors to her, shows the testator's intent that the husband should have nothing to do witli it. Why should not this be a devise to the executor for her life, upon trust to pay the profits to her? And this is fully to i)erform the will ; the intent of which was to ex- clude the husband wholly." He however changed his opinion at the next term. But his associates on the bench adhered to his original common sense exposition of the language of the will, in opposition to the mere technicality upon which his change of opinion was founded. And they accordingly, gave judgment for the defendants ; thereby sustaining the devise to the executors, by implication, in trust to receive the rents and profits of the premises and pay them over to her. I am not aware of any decision, either in England or else- where, conflicting with tlie judgment in that case. It is true Cruise says the doctrine laid down by C. J. Holt in that case was fully established in the subsequent case of Say &(• Sele v. Jones, (I Cm. Dig. tit. 12, ch. \, § 21.) But he has evidently made a mistake in supposing, from the report of the case of South V. Allen by Salkeld, that the majority of the judges in that case liad decided against the trust, and held that the legal estate was in tlie wife. It may also be proper to remark that the author of tlie Abridgment of Equity Cases has made tha same mistake, in supposing that the decision in South v. Allen was against tlie vesting of the legal estate in the executors, and that Holt's final opinion was in favor of the tiust. (/Set 1 .848.1 CASES IN (/HANCERY. 07 Craig X. Craig. Eq. Ca. Ab}\ 383.) In the case under consideration tlieie can be no doubt as to the, intention of the testator to constitute the executors trustees, to receive the rents, profits and income of Mrs. Hudson's share of tliat part of his real and personal estate embraced in the eighth clause of the will, for her use during her life, and 'to pay them over -to her annually. And as that intention can be carried into effect without violating any rule of law, it is the duty of the court to sustain the trust which the testator intended to create. For, by the express direction of the legislature, in the construction of every instrument creating, or conveying, or authorizing the creation or conveyance of any estate or interest in lands, it is the dut}' of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law. (1 R. iS. 748, § 2.) Here the executors are of necessity the trustees of the personal estate and of the proceeds of the real estate which they are directed to sell. For they cannot preserve the capital of the fund for the remainder- men in fee, who are to take it after the death of Mrs. Hudson, in any other way than by keeping the capital in their own hands, and putting it out so as to produce an income for the owner of the life estate therein. And there is no reason to suppose the testator could have intended to create a different interest in the real estate, which he has by his will united with the personalty in the division directed by the eighth clause of the will. The language of the devise and bequest of Mrs. Rhoades' share is a little different. But the express direction to the ex- ecutors to pay the avails and income of that share to her during her natural hfe, clearly shows that the testator intended that the executors should take the legal estate therein in the mean time, to enable them to lease the real estate and put out the personal estate, and receive the rents and interest, so as to be able to pay them to her. The decree must therefore declare the construction of the will accordingly. There is no authority given by the will to sell any cf the real estate of the testator, except that which is expressly given Vol. III. 13 98 CASES IN CHANCERY. [Fm.2i Craig V. Craig. as to two lots, by the thirteenth clause of the will. The tius tecs therefore cannot sell any of the real estate, except those iwo lots, either for the purposes of division or otherwise. But there is an express power in trust giyen to the executors, by the thirteenth clause of the will, to divide the real estate as well as the personal estate embraced in the eighth article, into four equal parts ; and to invest the shares of Elizabeth and Ger- trude for their benefit. And (his is a valid and imperative power in trust, under the provisions of the revised statutes, to divide the lands embraced in the eighth clause of the will, other than the two lots directed to be sold, into four equal parts, by a valid legal instrument, setting off the share of each in sever- alty, under the will. As James R. Ciaig, one of the executors and trustees, is alsc one of the parties interested in the division-, the proper course is to divide the real estate embraced in the eighth clause, exclu- sive of the homestead, devised "to the widow for life, into four equal shares, as nearly as practicable, and then by lot to de- termine to whom each share therein shall belong, unless the four children interested therein, after the division thereof into four parcels, shall agree among themselves which parcel shall oe set off to each of them. The decree must therefore direct a partition of those lands accordingly ; and that the executore execute, acknowledge and put upon record a proper instrument, to be approved by a master, or by one of the justices of the supreme court organized under the new constitution, evidencing the making of the said division or partition, under the power ill' trust for that purpose contained in the will. And the execu- tors, in making investments of the capital of the shares of Mrs. Rhoades and Mrs. Hudson respectively, of the personal estate, and of the proceeds of the two lots directed to be sold, must take them in their own names, as executors and trustees under the will ; specifying in the securities or certificates to be taken as tne evidences uf such investments for each, the trusts upon which they are held, and the name of tlie person who is enti- tled to the income thereof for hfe; so that the same may b« 1848.] OASES IN CHANCERY 99 Craig V, Craigj Kept separate and distinct ficnn all other funds belonging l« the estate. The parties by their stipulation have made proA'ision ior the security of the $8000 for their lunatic brother, in case of his restoration to reason. It is only necessary, therefore, to direct as to the investment of this fund, so as to protect the rights of ail parties therein. And the safer way to do it is, to invest it jpon bonds and mortgages or in stocks, in the name of the clerk of the court of appeals, and to make the income thereof payable to those who are presumptively entitled to the fund. The executors may therefore pay over to .T. R. Craig his $2000, upon his giving his bond and mortgage upon unincumbered real estate, of double the value, to be approved' of by his co-execu- tor, to the clerk of the court of appeals, conditioned to pay the $2000 to John Craig upon his restoration to reason, to be cer- tified in the manner directed in the will. Or he may procure a good bond and mortgage of a third person, of the same char- acter, to the clerk of the court of appeals, for the $2000, with a condition to pay the interest to J. R. Craig until the restoration of John to his reason, and to pay the principal to the clerk of the court of appeals, for John, upon the happening of that contin- gency, and to pay the capital to James R. Craig upon the death of John without having been restored to his reason. Or he may have the $2000 invested in the public stocks of this state or of the United States, at par, and may receive the divi- dends thereon until it is ascertained who is to be entitled to the capital of the fund. La Rue Craig's, Mrs. Rhoades' and Mrs, Hudson's $2000 may be secured in the same manner ; except that in reference to the capital of the fund of the shares of the two latter it must be payable to the clerk of the court of ap- peals for the benefit of John if he should be restored to his reason, and for the use of the heirs at law of Mrs. RhOades or Mrs. Hudson, after the termination of their lifeestates therein. And the interest or dividends, in the mean time, must be paid tc Mrs. Rhoades and Mrs. Hudson, respectively, for their sepa- rate use. Mr. Rhoades and Mr. Hudson, respectively, are al liberty to give their ovi-n bonds and mortgages to llie c'lerk of 100 CASES IN CHAINCKRY. LKeb. 3V Craig V. Craig. the court of appeals, with the proper condition to secure the rights of all parties in the $2000 belonging to the shares of their wives, respectively, and to receive that share of the fund from the executors. If either of the four children does not fur- nish the requisite security within three months after the entry of the decree hereon, the executors themselves may invest the $2000 belonging to his or her share, in the name of the clerk of the court of appeals ; or, may pay the same over to him to be invested, in the manner above specified. In making the investment of the residue of the shares of Mrs. Rhoades and Mrs. Hudson respectively, the executors should invest them upon bond and mortgage on unincumbered real property in this state, of double the value of such invest- ments, or in stocks of this state or of the United States, in such manner as to produce the best income to the owners of the life estates in the fund, and without endangering or diminishing the amount of the capital, by such investments. And in making such investments from time to time, it will be proper for the ex- ecutors, whenever it is practicable, to consult with each cestui que trust, or her husband ; so that the investment may be made in a manner which will be most beneficial to her, without en- dangering the capital. The executors having accepted the trusts under this will, and one of them having received a legacy of $500, in addition to his share of the commissions, upon condition of executing the trust, it would be improper to accept their resignation and cast the burthen upon others, without some good and sulficient cause. The trusts, as to Mrs. Hudson's and Mrs. Rhoades' shares, however, after the division shall have been made ac- cording to the provisions of the will of the testator, will be so far severed from the general trust committed to the executors, as to be capable of being vested in different persons ; according to the recent decision of this court in the Matter of Wads- worth, (2 Barb. Ch. Rep. 381.) Then, upon sufficient cause shown, and upon procuring proper and responsible persons to accept and execute these' particular trusts for the usual com- missions, or upon receiving a proportionate part of the foOU 1848.1 CASES IN CHANCEUy. JQl Craig V. Craig. legacy, the court having jurisdiction of the case would pioba. bly accept the resignation of the present trustees as to these particular trusts, and appoint others in their places, upon the giving of proper security to protect the rights of the cestuis que trust. Upon the happening of the contingency of Mrs. Craig's di- viding the property which she owned at the death of the testa- tor equally between Mrs. Rhoades, Mrs. Hudson, James R. Craig, and La Rue Craig, the ultimate remainder in fee in the homestead, which is devised to the widow for life, and the capital of the fund appropriated to raise her life annuity of $1600, are only disposed of as a part of the testator's residuary estate, embraced in the eighth clause of his will. If she should so divide her property, therefore, either during her lifetime or at her death, the remainder in fee in the homestead, and th6 capital appropriated to raise the annuity of $1600, are wholly unaffected by the provisions of the fourteenth clause of the will. In that event this part of the testator's property forms a part of the rest and residue of the real and personal estate, mentioned in the eighth clause of the will as not therein before devised, bequeathed and disposed of. And the same is, upon the hap- pening of the contingency contemplated, to be divided into four shares and disposed of according to the ninth, tenth, eleventh and twelfth clauses of the will: That is, one-fourth thereof will belong to James, and one-fourth to La Rue ; absolutely. And the executors will take one-fourth thereof in trust for Mrs. Rhoades for life, with remainder in fee to her heirs ; and the remaining fourth as trustees for Mrs. Hudson for life, with re- mainder to her heirs. Vov a residuary devise of real or per sonal estate carries with it not only the property of the testator in which no interest is devised or bequeathed by other parts of the will, but also all reversionary and contingent interests in property which, in the events contemplated by the testator, are not otherwise disposed of. {Hopewell v. Acklaiid, 1 Salk. Rep. 239. Brigham v. Shattuck, 10 Pick. Rep. 309. Goodtitle v. Knott, Cowp. Rep. 43. Willows v. Lydcot, 2 Vent, 285. Ri- dout V. Pain, 3 Atk. 485, Doe v. Weatherhy, 11 Easfs Rep, J 02 CASES IN CHANCERY. [Fkb. 21 Craig V. Craig. • 322.) It was not the intention of the chancellor to question the correctness of this rule by the decision in James v. James, (4 Paige's Rep. 117,) referred to by the counsel on the argu- ment. That case turned upon the particular language of the Tesiduary clause ; which, it was held, expressly excluded the house and lot which the testator had previously devised to his wife for hfe in lieu of dower, with power in trust to dispose of the same by will, to her children by the testator, at her death. I have since, however, had some reason to doubt the correct- ness of that decision, upon the ground that the testator must have contemplated the possibility that his wife might refuse to accept her devise of the house and lot and the power to appoint the same after her death, as a provision for her in lieu of her dower. In the case under consideration it is plain, fi'om the language of the will, that the testator did contemplate the con- tingency of his wife's dividing her property equally among the four children. In that event, therefore, the ultimate fee of the homestead, and' the capital appropriated for the raising of the $1600 annuity, was not disposed of by any provision of the will previous to the eighth clause; nor by any subsequent pro- vision which was inconsistent with the disposition made of the residuary estate by the eighth clause of the will. It is impossible, however, to bring the remainder in fee in the homestead, and the capital of the fund appropriated to raise the $1600 annuity, within the eighth clause of the will, in the event of the widow's making no disposition of her property in her lifetime, or by will, so that Mrs. Rhoades. who is in.i one of her heirs or next of kin, will get no part thereof as an heir or distributee ; or in the event of her making an unequal distri- bution between Mrs. Rhoades and the other children of the testator except John. In either of those events the testator has, by the fourteenth clause of the will, made a valid and effectual disposition of the remainder in that portion of his propeity. The title to the real estate will not pass to the executors aa a trust, although they will, as executors, have the personal fond in their hands to be disposed of, as directed by this clause of t^e will, in equalizing the shares of the four children, in referet i lS4aj CASES IN CI^A^•C■ERY. JQS Craig V. Craig. to the interests which some of them may have received in thfl property of the widow. But this clause of the will gives to th(i executors a valid power in trust, even as to the real estate, so to divide and apportion the same, in the division thereof whieli they are directed to make, as to produce perfect equality between the four children in reference to what they get of the estate which Mrs. Craig owned at the death of the testator, and what ihey shall receive of this part of the estate of their father. The fifty-eighth section of the article of the re^ii(|M-^atutes relative to uses and trusts, (1 R. S. 729,) provides that where an express trust shall be created for any purpose not enume- rated in the preceding sections of that article, no estate shall vest in the trustees; but the trust, if directing or authorizing the performance of any act which may lawfully be performed under a power, shall be valid as a power in trust ; subject to the provisions of the next article. relative to powers. The substance and effect of the fourteenth clause of the will, therefore, is, that if there shall be an unequal distribution of the estate of the widow among the four children of the testator, named in that clause as entitled to share in the remainder in fee in the home- stead and in the capital of the fund appropriated to raise the annuity, the amount which shall have been received by any of them, from the estate of the widow, shall be brought into hotch- pot in disti-ibulion. And the executors, under the power in trust given to them by this clause of the will, and by the section of the revised statutes referred to, must make distribution accordingl}'^, so as to pioduce equality. The revised statutes require advancements to children to be brought into hotchpot in the division of real as well as of per- sonal estate not disposed of by will. (I R. iS. 754, §§ 23, 24, 25.) And there is no more difficulty in making distribution upon tha-t principle here, than there would be in a case arising under these provisions of the revised statutes. The value of the prop- erty which Mrs. Craig had at the death of her husband musit first be ascertained. And if she makes an unequal distribution Bf the property, or of the proceeds thereof, estimating such value as the capital to be distributed, or if she suffers it to go to heJ 104 OASES IN CHANCERY. [Feb. 2) Craig V. Craig. own children as her heirs or distributees, so much pf such cap- ital of her estate as each child receives, at its then value, must be brought into the account in distribution of the part of the testator's estate wiiich is to be divided and apportioned by the executors under this fourteenth clause of the will. But in the apportionment and disposition which is thus to be made, Mrs. Khoades and Mrs. Hudson will take absolute interests in their respective shares of the property thus distributed. . For, in the events contemplated, this part of the estate is disposed of by the fourteenth clause of the will among the four children, or their representatives, equally. It, therefore, does not come into the residuary estate embraced in the eighth clause of the will, in which Mrs. Rhoades and Mrs. Hudson are only entitled to life estates. The words legal representatives, mentioned in the four- teenth clause of the will, mean those who represent the cliildren who may have died before the distribution of this part of the tes- tator's estate : that is, their personal representatives so far aa their distributive shares of the fund consist of personal propert}', and their heirs at law as respects the part of it which is real estate. The decree must therefore declare the construction of the will in relation to this part of the testator's property, and tlie rights and interests of his children therein, accordingly. But as the deatli of some of the children during the life of Mrs. Cra'g, and before she shall have disposed of her property to any of the children of the testator, may render a further application to the court necessary, the right must be reserved to any of the parties to this suit interested in this part of the testator's prop- erty, or any persons who may hereafter become interested therein, to apply for such farther directions as may be necessary, upon the death of Mrs. Craig. The stock standing in the name of Mrs. Craig, or in the joint names of herself and her husband, at the time of his death, belongs to her ; and is a part of her estate to which the testator refers in the fourteenth clause of his will. But that clause of the will does not in any way control or interfere with her riglit fo use and dispose of her property in any manner she ma)- think j«-oper. It only provides that in case she thinks proper to give 1848.J CASES IN CHANCERY. 105 Craig i>. Craig. it in unequal proportions to any of the testator's children except John, the child to whom it is given, or is left by her, shall biing it into hotchpot in the distribution which is to be made of the testator's property under this clause of his will. The annuities for the widbw and for the support of the tes- tator's son John are to commence from the testator's deJith ; ?o as to give her the $1600 in semi-annual payments from that time, and to raise $500 for the support of John for the first year. ( Gibson V. Bolt, 7 Ves. 96. Fearnes v. Young, 9 Idem, 553. Rebecca Owings' case, 1 Bland's Ch. J^ep. 296.) The widow is entitled to the arrears of rents due for lands held in trust as her separate estate ; and to the unclaimed dividends upon stocks which formed a part of her separate estate. But the unclaimed dividends, if any there were, upon stocks which stood in the names of the testator and his wife jointly, belong to his estate; although she is entitled to the stock by survivorship, in analogy to a similar interest in lands conveyed to the husband aad wife jointly. The executors are also enti- tled to the moneys refunded for the erroneous assessment upon her lands in the city of Albany ; as the legal presumption is that the testator paid the assessment out of his own funds, in the absence of proof that his wife furnished him the funds to pay it out of her separate estate. The executors are to be at liberty to apply from time to time, if necessary, to pass their accounts in relation to the various trusts. But from the nature of the trusts it does not appear to be necessary to pass their accounts annually ; and it would subject the estate to a useless expense. They may be permit- ted, however, to pass their accounts annually in relation to the shares of Mrs. Rhoades and Mrs. Hudson, with the assent of those cestuis que trust respectively. And either of those cestuis que trust may apply from time to time, to compel the trustees to pass their accounts and pay over the balances, if anj\ in their hands, during the continuance of the trust. The costs of all parties in this suit are to be paid out of the general personal estate of the testator in, the hands of the ex Vol. hi. 14 106 CASES IN CHANCERY. [Feb. 21. Craig V. Craig. editors. But the costs of any future applicaticiis to the courl are to be disposed of herea'ter. A reference having been made to a master, in the progi-ess of this cause, to state the accounts of the complainants as ex- ecutors of the estate of Archibald Craig deceased, J. R. Craig was authbrized by the order, on such reference, to present his claim, against the esjp.te, for the amount of a note of $4000, dated the 31st of January, 1846, payable on demand, and purporting to be given by the testator to J. R. Craig his son; so that the master might take testimony and report as to the validity of the claim ; with liberty to the master to make a separate report on that subject. The master reported in favor of the validity of the claim, against the estate of the testator, in a separate report. Exceptions to the report were taken by most of the other parties who were interested in the estate of the testator. A. C. Paige, for James R. Craig. The note is a valid note »n the hands of James R. Craig, as a donatio mortis causa. )X was executed by the testator and delivered by him to David Toinlinson, in his, the testator's, last sickness, for the use of James R. Craig, and to be delivered and paid to him at the decease of the testator. This transaction has all the charac- teristics of a valid donatio mortis causa. The gift of the note was made in tlie last sickness of the donor, and in contempla- tion of death. It was to take effect on the donor's death by his existing disorder, or in his existing illness. It was actually delivered to a third person, (Tomlinson,) for the use of the donee, James R. Craig, and to be given to him on the testator's death. {Story's Eq. Juris. § 607, a., and cases cited in notes, last ed. Toller''s Executors, 233. 2 Kent's Com. 444. 1 Wil- liams on Ex'rs, 499.) Promissory notes may be subjects -of a donatio mortis causa. (1 Paige's Ch Rep. 316. 1 Cowen's Rep. 598. jSiori/'s fJf 1848.] OASES IN CHANCERS. |07 Craig ». Craig. Juris. ^ 607, a. 3 Bin. 366. Diiffield v. £/we5, 1 JSW^A'a New P. i?. 497.) The only question which can aiise on ihia part of the case is, wliether the gift was made in the donor's last ilhiess. It cannot be denied that it was made in contem- plation of death ; that it was to, take effect on the donor's death ; and that it was actually dehvered to a third person for the use of the donee. Was then the gift made in the donor's last ill- ness? We insist that it was. Doctor Vedder says that there was no recovery from his attack in January, 1846, (during which attack the note was given,) and that the same sickness continued until his death. And he says that the constant ap- prehension and danger of his death continued from January until he died, in July, 1846; To make a gift mortis causa void, the donor must recovei from his sickness. (2 Kent's Com. 444. Swinb. 18. 1 P. Wms. 404. 1 Ves. Jr. 546. 3 Bin. 366.) There was no re- covery here. The donor came to his death by his existing dis- order, and in his existing illness. {Story's Eq. Juris. § 607, a, la^t ed. 1 Williams on Ex'rs, 499, 500.) To make a gift valid as a donatio mortis causa, it is not necessary that it should be made in the last extremity. It is sufficient if it be made in the last sickness of the donor; the sickness immediately preceding his death, without reference to any precise period of the disease ; especially if there be a constant apprehension of death, (as there was here.) (1 Williams on Ex'rs, 499, 500. Blount v. Bar- rovj, 1 Ves. Jr. 546. 4 Brown, C. C 81. Miller v. Miller, 3 p. Wms. 356. 1 Idem, 404, 441. 2 Ves. Jr. 111.) And the apprehension of death may arise from infirmity, or old age, or from external and anticipated danger. (2 Kent's Com. 444.) It is not necessary that the donor should be surprised by a sud- den and violent sickness, leaving him no opportunity to make a will. But even if the delivery of the note, on the 31st January, 1846, to Tomlinson, for the use of James R, Craig, was too long previous to the death of the testator to make it a valid donatio mortis causa ; this objection is obviated by the tes- tator's confirmation, very shortly previous to his death, of tha 108 CASES IN CHANCERY. [Fkb. ?;i Craig V. Craig. execution and delivery of the note, as a donatio mvrtis causa. This confirmation is equivalent to an original donatio mortis causa of the note, made at the time of the confirmation. It was a renewal of the gift ; a revival of it, if the former dona- tion had ceased to be operative. A donatio mortis causa has some of the characteristics of a legacy. It is like a bequest of the testator. {Story's Eq. Juris. § 607, a.) It is a disposition of his property to take effect after his death ; and being such, the intention of the donor, or testator, should not be defeated. The gift should be allowed to take effect unless the law peremp- torily forbids it. The gift should be favored. The testator intended that James R. Craig should have this note over and above the devises and bequests made in his favor in the will. Again; this note may be sustained, in the hands of Jamesi R. Craig, as a note given upon a sufficient consideration. If so, it is a legal claim, in his hands, against the estate of A. Craig, deceased. I J. C. Spencer ^ M. T. Reynolds, for J. Rhoades and wile, and for J. T. Hudson and wife. The statements in the mas- ter's report as to the consideration and motives of the testator in giving the note, are not sustained by the evidence. Judge Tomlinson and Mr. Gibson are the only witnesses who are competent to testify to the transaction, as it occurred in their presence. Subsequent loose remarks are entitled to no weight against their statements ; and least of all, to supply material facts which they do not state. We contend that it is evident from the whole testimony, (particularly the fact stated by Mr. Gibson, that the testator was satisfied with the assurance Mr. Gibson had given him that James R. Craig's services and ex- penses would be a proper charge against the testator's estate,) that there was no pecuniary consideration in the mind of the testator, but that the note was intended as an alteration of liia will, and a mere gift. The same requisites are necessary to constitute a valid gift inter vivos, and a donatio causa mortis: and the, only difference between them is that the latter is re- voked by the fact of the recovery of the t/>stator from tiie sick- 1848.J CASES IN CHANCERY. ]09 Craig V. Craig. ness m which the donation was made ; while, if the former bo once completed and executed, it is not revocable by any act of the donor. Walter v. Hodge, (2 Swans. 97,) contains the exact rule on this subject, as above stated. In Irgns v. Small- pijsce, 2 Barn. ^ Aid. 552,) Ch. Justice Abbott says,i "It, (a gift,) differs from a donatio causa mortis, only in this respecl, that the latter is subject to this condition, that if the dorioi lives, the thing shall be restored to him. In James Smit/fv. George Sm,ith, (7 Carr. ^ Payne, 401,) the gift of a watcli, by a father to his son, completed by delivery, was held to be irrevocable, and that the father could not reclaim it. In Gra- ver v. Grover, (24 Pick. 261,) it was held that the principle of revocation does not apply to a gift inter vivos. An essential requisite to the validity of a dojiatimi, or gift, is, delivery of the thing given, or such an instrument of con- veyance as transfers the right to immediate possession. In Irons v. Smallpiece, (2 Barn.(^ Aid. 552,) Ch. Justice Abbott says, " By the law of England, in order to transfer property by gift, there must be either a deed or instrument of gift, or there must be an a;ctual delivery of the thing to the donee." In Hooper v. Goodwin, (1 Swans. 486,) the master of the rolls says : " A gift at law or in equity supposes some act to pass the property, if the subject is capable of delivery ; if a chose in ac tion, a release or other equivalent instrument ; in either case a transfer of the property is required." A promissory note of the donor is not such an instrument as transfers the property in the amount of money specified, oi- a right to the possession of it. In former times it was held that no chose in action, neither the promissory note of a third person, nor a sealed obligation, could be the subject of a gift. [See Miller v. Miller, 3 P. Wms. 356 ; Ward v. Turner, 2 Ves. sen. 442.) But this doctrine is now repudiated, and a bond is capable of gift by mere delivery, {Blount v. Blount, 1 Ves. jun. 546, Gardner v. Parker-, 3 Mad. 184.) So as to lottery ticKets, {Grangiac v. Arden, 10 John. 293;) or, a promissory note of a third person. [Cotitant v. Schuyler, 1 Pai^e, 318 Grover v. Grover, 24 Pick. 261.) But all these, being execu- no CASES IN CHANCERY. [Feb. 21, Craig V. Craig. tad instruments, and having value in themselves, stand upon a footing entirely different from the promissoiy note of the donor It is true, there are some cases where such a promissory note has been held a valid instmment of gift. {Bowers v. Hurd, 10 Mass. Rep. 428. Wright v. Wright, 1 Cowen, 59S. Wood- bridge V. Spooner, 1 Chit. Rep. 661. Seton v. Seton, 2 Bro. Ch. Ca. 610.) But these cases are met and overwhelmed by such a torrent of authority that they cannot be maintained. And the principle on which they are assailed is so vital, so uni- versal, that these cases must be abandoned, or the law must be torn up from its foundation. The principle is correctly stated by Blackstone, (2 Comm. ch. 30, p. 445,) " a consideration of some sort or other is so absolutely necessary to the forming of a contract, that a nudum pactum — or agreement to do or pay any thing on one side, without any compensation on the other — is totally void in law, and a man cannot be compelled to per- form it." It is true, he afterwards says : " For if a man enters into a voluntary bond, or gives a promissory note, he shall not be allowed to aver the want of consideration, in order to evade the payment ; for every note, from the subscription of the draw- er, carries with it an internal evidence of good consideration." That this remark should have been confined to the case of an endorsee, is conclusively shown by Mr. Fonblanque in his note (a) at page 355, vol. 1st of his treatise. There is literally no end to the cases which have decided that a promissory note cannot be enforced against the maker by the payee, when it appears that there was no pecuniary consideration. (BuUer's N. P- 274. Rami v. Hughes, 7 T. R. 350.) In Massachu- setts the question underwent a thorough discussion in the case of Parish v. Stone; (14 Pick. 198 ;) and most of the authorities are collected in that case. It is entirely decisive of the law, then, that a promissory note of the donor cannot be the sub- ject of a donatio causa mortis, or of any gift. This case dis- poses of Bowers v. Hurd, (10 Mass. Rep, 427,) in which a contrary principle was intimated. 6 New Hampshire Rep. 388, settles the law in that state, in the same way. 10 Conn. Rep. 4S5, is equally decisive of the law in that state, in tha .848.J CASES IN CHANCERY. l\\ Craig V. Craig. same way. 5 Gill ^' John. 54, shows the same law in Mary land. In England, the last reported case, directly on ihiS pointj IS Halliday V. Atkinson, (5 Barn. 6^ Cress. 501,) which is alsc a direct decision that a promissory note cannot be the subjec. of a gift. In the state of New- York — with the exception of Wrigfd V. Wright, before quoted, and a case in the superior court of New- York — the decisions have been uniform and un- interrupted. Noble V. Smith, (2 John. 52,) was a very full and deliberate examination and discussion of the question. Pear- son V. Pearson, (7 John. 2G,) was an affirmance of the same doctrine : and it was again repeated directly and distinctly in Fink V. Cox, (18 John. 147.) There are other cases sustain ing the same principle. ( Thorn v. Deas, 4 John. 84. Schoon- rnaker v. Roosa, 17 Id. 301.) And wfiat is remarkable is, that none of these cases, were carried to the court for the correction of errors, although some of them, obviously, were severely con- tested. Does not this furnish satisfactory evidence of the gen- eral professional opinion on the subject 1 We might have cited an array of cases and given extracts from all the elementary wri- ters, who,, without a single exception, as far as known to us, concur in the view here taken — ^that to render valid and action- able an executory undertaking, there must be a valuable con- sideration. But the cases already quoted are so decisive, and as they contain references to most of the others, we deem it super- fluous to accumulate them. The case in the superior court of New- York, {Parkef v. Emerson, 9 Law Rep. 76,) is confes- sedly founded upon the binding authority of Wright v. Wright ^ and upon a mistaken view of Coutant v. Schuyler, (1 Paige. 316,) in which Judge Vanderpool supposes that the chancellor held that the promissory note of the testator was a valid sub ject of a gift. The case shows that it was the note of David Marsh, and the chancellor expressly states the question to be, whether the note of a third person is a proper subject of a gift. Although a delivery of a promissory note would not, according to our view, render it valid as between payee and maker, or hia representatives, yet in this case even that circumstance is want- ing. From the testimony, it is evident that this ne'e, although 112 CASES IN CHANCERY. [Feb. 21 Craig V. Craig. in the hands of Mr. Tomlinson, was there as a mere deposit: and subject at all times to be recalled by the testator., Tho case of Biinn v. Mark/mm, (7 Taunt. 224,) is a very strong case to show that the delivery must be absolute, and the prop erty put so completely out of the control of the donor that he cannot reclaim it. The judges remark upon the fact that the property was to be delivered upon the decease of the testator, as being evidence that there was no delivery by him. Burrough, .T. says, the son liad no authority to deliver the things to his mother, and it therefore was not a donatio. He must mean that there was no authority to deliver to the mother during the life of the testator — for there was an express direction to deliver after his decease. It is evident from the testimony here, that the note was not to be delivered until after the testator's death. It is true, that in Coutant v. Schuyler, (1 Paige, 316,) the chancellor recognized the decision in Wells v. Tucker, (3 Bin. 366,) that a gift to a third person, for the use of the intended donee, was a valid gift. But it is submitted that the question is still open for consideration, and that upon principle, the gift should be in such a condition that the donee may at once re- duce it into his own possession. J. V. L. Pruyn 6^ D. C. Smith, for the infant defendants. On the part of the infant defendants, we adopt the argument of the counsel for Mr. and Mrs. Rhoades, and for J. T. Hudson and wife, who have preceded us ; and we also submit the following views in addition. It is essential to the validity of a gift, as well as of a will, that the testator should be of sound mind at the time, and capable of discrimination and the exercise of a proper judg- ment. In making a will, the term disposing has been used as mdicating this state of mind. We say that the testator must be of sound and disposing mind. The revised statutes have used the wurd competent, which embraces both. It is evident that the trstator, Archibald Craig, was in a feeble state of body and mind at the time the note in question was given ; although he rallieu afterwards, and lived for several months. In the monlii (.f April previously, Mr. Gibson, wheti advised as to al I848.J CASES IN CHANCERY. HJ Craig V, Cfaig. tering the testator's will, said it could not be done, as he did not consider hiin in a state of mind competent to do a legal act. At the tiine the note was given, Mr. Gibson again advised against making a codicil to the will, for the reason that its va iidiiy might be drawn in question on account of the testatoi'3 situation. There is, also, intrinsic evidence in the transaction that the testator could not have been in the full possession of his faculties at the time. lie was a clear headed business man, admittedly shrewd in money matters. Now what is the case before us '} He had charged his soii $6000. payable at the end of five years, without interestj for a farm of 3U0 acres, which Mr. Linn testifies is worth $60 per acre, or $18,000. He says he would give $50 per aero for it. Deducting simple interest for five years, it would give James the farm for somewhat less than $4500, at the time of his father's death ; or, by compound ing the interest, which for so long a period Would be the true mode, it would be about $4200. In other words, $4200 invest- ed at the time of his father's death and accumulated to the end of five years, would amount to the $6000. This last mention- ed sum .Fames was then to pay ; and in the mean time he would have had the enjoyment and income of a farm worth from $15,000 to $18,000. Now what did the testator wish to do ? He spoke of the $6000 as a large sum for James to pay, although he was to have five years in which to pay it ; with -this valuable farm and a very considerable estate in liand for the purpose, and was in fact to pay but three-fourths of it ; he bemg entitled to the one-fourth himself This circumstance alone would be evidence of great prostration of the testator's mental faculties. But he went farther — he desired to relieve him to some extent, as Mr. Gibson says he expressed it, against thi? charge. He thought he had charged him too much for the farm; and directed the note in question to be prepared ; which note, if valid, would give James $4000 at once, upon the testa- tor's death, to pay $4200 or $4400, according to the mode of computing interest. Call it the larger sum, and it would leave $400 only as the difference. But as this $4000 would be a charge on the whole estate, before iti= division, James woula Vol. 10. 15 1 14 CASES IN CHANCERY. L^bb- ^ Craig V. Craig. receive |4000 to pay three-fourths of |4400 to the three other children ; that is $4000 to pay $3300 ; in truth, giving him the farm for nothing, and $700 besides, before any part of the tes- tator's estate was to be divided among his children. Is it pos- sible that the testator could have iniendefl ihis ? Is it not in direct conflict with his declared intentions 1 3 the persons pres- ent at the time ? They evidently did not go into any calcula- tions on this subject. Both Mr. Tomlinson and Mr. Gibson concur in showing that the testator named the amount, and that the subject was not discussed. That he did not mean to give James Craig the amount at once is evident, as he refused to give him stocks or property as was suggested by Mr. Gibson to the testator that he should do instead of executing the note. The whole transaction evidently shows that the testator, in the weakness of his mind, had forgotten what his will was ; and, as Mr. Gibson rightly supposed, he was in a state of mind in which a question would necessarily have arisen as to his testamentary capacity if he had altered his will. The inevita- ble result of his attempted action, if the note should be sus- tained, would be to defeat his own declared views. He evidently intended that James should give at least some considerable part of the $6000 for the farm. How this intention would be carried out by sustaining the validity of the note in any shape, has already. been seen. It has been said that the note might be sustained as a gift to James R. Craig for sei-vices. The attempt to prove services to any extent utteily failed. Certainly none were shown which c-uld have induced the testator to give James $4000 in addi- tion to what he had already done for him. But it is a conclu- ,5ive answer to this branch of the case to say, that the testatot declared his reasons to be of an entirely different character and such as were stated to Mr. Gibson and Mr. Tomlinson and have been already adverted to. The attempt to show other declarations of the testator, by the examination of Judg Tomlinson, before the master, ei tirely failed. 16i8.J CASES LN CHANCERY. Hi Craig V. Craig. The Chancellor. The master is cleaily wrong in sup- posing that there was any consideration for the note in ques- tion. It is true the complainant had performed some services for his father, both before and after the date of the note. But from the testimony before the master it is evident those services, if they were not paid for by the testator, did not enter into the consideration of this note. I have also great doubts whether the testator, at the time the note was given, was in a situation to make a disposition of his estate, to this extent, with judgment and understanding. He had made his will with great care only six or seven months before, as Mr. Gibson, who drew the will, testifies. The will itself also declares upon its face that it is the intention of the testator that his four children and their descendants shall share equally, not only in the property which ' he holds in his own right, but also in that which is vested in his wife and subject to her disposition. And the testator made a very special provision to carry that intention into effect, xa far as it was possible for him to do so in a testamentary dispo- sition of his property. He had, from the spring of 1844, had Feveral attacks of apoplexy, which affected his nervous system to a considerable exteiit. But in the latter part of January, 1846, he had a much more serious attack than he had ever before had, which entirely prostrated him ; so that his attend- ing physicians gave it as their opinion that he could not survive. It was while he was lying in this situation, as I understand the testimony, that Mr. Gibson, who had prepared the will with so much care, under the testator's special directions and dictation, was sent for to alter the disposition which the testator had previously made of his property in case of his death. And it is not pretended that any thing had occurred, either in his family or in the situation of his property, to induce a change in the will. Under such circumstances, I think both Judge Tomlinson and Mr. Gibson very wisely urged him not to alter his will at that time. For if he had attempted to alter it under those circumstances, in favor of the children who were then ironnd him, the probabililj' is that the testamentary disposition then made would have been declared invalid. The testimony 116 CASES IN CHANCERY. LFeb. 21 Craig V. Craig. II relation to the value of the farm devised to James R. Craig, in reference to the amount charged for the same in the will, shows that the inequahty in the will was in his favor and not against him. After it was found that the testator was cot in a situation to alter his will with safety, some one, whois'noi named in the testimony, suggested the giving of a note for the four thousand dollars. And then the note in question was drawn by Mr. Gibson, and signed by the testator, and placed in the envelope with his will, and delivered to Judge Tomlinson. The testimony also shows that they were to be kept together, and not to be delivered to any one without the testator's assent, until his death. It is perfectly evident from the testimony of Judge Tomlin- son, that the testator never intended to place this note beyond his own control during his lifetime, any more than he did hia will ; but that it was to be kept with his will, as forming a part of the testamentary disposition of his property. If TomUnsoa was the mere agent of the maker of the note, to keep it for him — with his will and subject to his control — and not merely as the trustee of the son to hold it for the use of the latter, in case the disease under which the donor was then laboring should termi- nate fatally, so as to place it beyond the reach of the maker of the note unless he should recover — it wanted one of the essen- tial requisites of a good donatio mortis causa • an absolute de- livery, and continued change of possession. [Bunii v. Markham, 7 Taunt. Rep. 224.) Again ; the weight of authority appears to be against the principle that the donor's own note, merely creating a debt against himself, can be the proper subject of a gift mortis causa. Most of the cases referred to for the purpose of showing that such a gift is valid, were cases of gifts inter vivos. For until within about thirty years, it was supposed to be the law, that a prom- issory note was not only prima facie evidence of value, but that it could not be contradicted by parol evidence to show that the maker had actually intended to give a void note, for which !ie knew there was no consideration whatever ; and that it was only open to him to impeach the note by showing a failure of 1848.J 3ASES IN CHANCERY 117 Craig o. Craig. the consideration upon which it was given or intended to be given, or that the consideration was illegal. Thus, in the case of Seton V. Seton, (2 Bro. Ch. Rep. 610,) where the mother gave her promissory note to a third person, as a trustee of a child of which she was then enciente, Lord Thuilow overruled a demurrer to a bill in behalf of the child, considering it a valid gift to the child. That, however, was not a gift causa mortis, for the bill was filed against the mother herself; and in Tate V. Hubert, (2 Ves.jun. 112,) which came before Lord Rosslyn four years afterwards, although he held that the note given iti that case was not a gift mortis causa, and that the complain- ant had no right to come into equity for it, he intimated a de- cided opinion that the payee of the note could recover it at law as a valid gift inter vivos. He indeed says it would be no ob- jection to an action on the note that the payee had given no value for it; and the bill was dismissed without prejudice, that the decision might not be deemed a decision of the court against the right to bring such an action. And in Woodbridge v. Spooner, (1 Chit. Rep. 661,) whicii came before the court of king's bench in England in 1819, that court directly decided that such a note was valid as a gift inter vivos ; and that the personal representatives of the maker were not at liberty to avail themselves of the want of consideration. A similar decis- ion was made by the supreme court of Massachusetts in 1813, in the case of Bowers v. Hurd, (10 Mass. Rep. 4:27.) In both of those cases, however, it was admitted by the court that the promissory-note of the donor could not be supported as a dona- tio mortis causa. It has since, however, been decided in Mas- sachusetts and in England, as well as in this state, that the promissory note of the donor is not a good gift inter vivos ; and that the donor, or his representatives, may impeach such a note for want of consideration. {Parish v. Stone, 14 Pick. Rep. 198. Halliday v. Atkinson, 5 Barn. ^ Cress. 501. Fink v. Cox', IS John. Rep. 145.) It was at a very early day decided in England that a draft, by the donor upon his banker, payable after his deatii, for mourning, accompanied by an actual delivery of the draft ta 118 CASES IN CHANCERY. LFeb. 2i Craig V. Craig. the donee, in the last sickness of the donor, and intended tc take effect after his death, was valid as a donatio mortis cmisa; such draft being accompanied by a written declaration showing that it was only intended to operate in case of the death of the donor. And Sir Joseph Jekyl decreed that it should operate as an appointment, or an appropriation of the amount of the fund for which it was drawn, to the use of the donee. (Lawson v. Lawson, 1 P. Wms. 141.) I am not aware that that decision has ever been overruled. Indeed, Lord Rosslyn, in the case of Tate v. Hilbert, before referred to, after examining the re- gister's books, said that decision was right ; upon the ground ^hat it appeared by the written meoiorandum that it was not mtended to operate immediately. And as that was the law in England previous to our separation from the mother country, it may still be the law here. In the case of Wright y. Wright, (1 Cowen's Hep. 598,) the late supreme court of this state de- cided that the donor's own note was a good gift mortis causa , and that a suit was properly brought against the representa- tives of the donor upon the note itself. That decision has re- cently been overruled by a bianch of the new supreme court, in the case of Harris v. Clark, (2 Barb. Svp. Court Rep. 94;) where it was held that an action at law could not be main- tained by the donee of a draft against the personal representa- tives of the drawer. That decision, however, as I understand it, is not in conflict with the decision of Sir Joseph Jekyl in the case of Lawson v. Lawson, that the draft may operate as an ap- pointment of the fund upon which it is drawn. The opinions of the judges in the cases of Woodbridge v. Spooner, and of Bowers V. Hurd, before referred to, are in conflict with the decision in Wright v. Wright, that the promissory note of the donor is a good gift mortis causa. In addition to this, the courts of three or more of our sister states have decided that such a note is not valid. {Parish v. Stone, 14 Pick. Rep. 198. Raymond v. ■Sellick, 10 Conn. Rep. 480. Copp v. Sawyer, 6 N. Hamp. Rep. 386.) As I said before, therefore, the weight of authority is against Jie validity of the donor's promissory note as a gift mortu 1848.J CASES IN CHANCER v. UQ l)e Ruytcr v. The Trustees of St. Peter's Church. causa. And when it is seen how easy it is for those who are surrounding the bedside of a dying man to obtaih from him, by importunity, gifts of that character, the safer rule is to hold % note of that kind invalid. The exceptions to the master's report must be allowed ; and the claim for the amount of the $4000 note, must be rejected as illegal or unfounded. But this is not a case to charge the claimant personally with costs. The costs of tiie parties upon the exceptions to the report and upon the reference, as to this claim, must therefore be paid by the executors out of the per- sonal estate of the decedent. De Ruyter vs. The Trustees of St. Peter's Church and others. tAffirmed, 3 N. Y. 838.] By the English common law, corporations aggregate, including religious corporations, and some corporations sole, had the same right as natural persons to alien real estate, which they had the capacity to take and hold ; and for the same purposes and objects. (t is a natural presumption, and therefore adopted as a rule of law, that on the settle- ment of a new territory by a colony from another country, and where the colonists continue subject to the government of the mother country, they carry with them the general laws of that country, so far as those laws are applicable te the colo- nists in their new situation ; which thus become the unwritten law of the colony until altered by common consent, or legislative enactment. A corporation has the right to make an assignment in trust for its creditors ; and may exercise it to the same extent, and in the same manner, as a natural person; un- less restrained by its charter, or by some statutory provision. The trustees of a religious corporation have the power, with the consent of the court of chancery, and under the sanction of its order to make an assignment of the real estate of the corporation, to trustees, in trust for the payment of all the creditors of the corporation ratably. And their deed of such real estate, under the corporate Mai, will vest in the grantees the legal title of the corporation in such real estate and in the equity of redemption in mortgaged premises. This was an appeal from an order of the vice chancellor of the first circuit, upon exceptions to a master's report as to tlie 120 CASES IN CHANCERY. ZFeb. 21 De Ruyter v. Tl)e Trustees of St. Peter's Cliurc h. light to tlie surplus moneys, on a foreclosure and sale of mort- gaged premises. The premises, at the time of the execution of the complainant's mortgage, and at the time of the convey- ance to Power and Pise, as hereafter mentioned, belonged to The Trustees of St. Peter's Church in the city of New- York, a religious corporation created by a special act of the legislature, in April, 1817. On the 7th of Septen--ber, 1844, the corporation being insolvent and owing about $142,000, including the mort- gages upon its real estate, resolved to convey all its property, real and personal, to the appellants, as trustees for the payment of all the debts ratably ; except the debts already secured by mortgages thereon. A petition was thereupon presented to the vice chancellor of the first circuit, for an order permitting the corporation to sell and convey its property to Power and Pise in trust as aforesaid ; and an order was made by the vice chan- cellor, according to the prayer of the petition, on the i3th of Septembei', 1844. On the same day, the corporation made a conveyance accordingly, under its corporate seal, wliich was accepted by the appellants as such trustees ; and was duly re- corded as a conveyance of real estate on the 14th of the same month. Two days after the recording of this conveyance iu trust, Alice Lalor and others, as the personal representatives of J. A. Neil deceased, recovered a judgment against the corpora- tion for a debt of about $3000. And at the same time, Eliza Gallagher recovered another judgment for a debt, due to her, of about $2000. Three other judgments were afterwards re- covered against the corporation, in the latter part of the same month. All these judgments were duly docketed, so as to become liens upon any real estate which belonged to the corporation ai the times when they were respectively recovered. The mortgaged premises were afterwards sold, under the decree of foreclosure and sale in this cause, and produced a surplus of about $2500 only. And on the 16th of January, 1S45, the asiial order of reference was made to the master, upor the ap- plication of Power and Pise, the trustees, to ascertain and report who was entitled to the surplus moneys, and the priorities of the several liens thereon. On the 18th of the same month* ,..i£ 1848.] CASES IN CHANCERY, J21 De Ruytcr v. The Trustees of St. Peter's Church. Alice Lalor and others, the plaintiffs in the first judgment, ap- plied' to the vice chancellor to vacate the order allowing the corporation to convey its property in trust for the payment of Its debts. Their motion was denied, and they thereupon ap- pealed from that decision. The chancellor, upon the argument of the appeal, was of opinion that the vice chancellor had not authority, under the act relative to religious corpoiations, to authorize the trustees of the corporation to assign all its prop erty to other trustees for the payment of its debts, and that no title passed to the new trustees by the conveyance from the corporation. But he decided that the appellants, not being piU'tie^ to the order authorizing such sale, had no right to apply to set it aside, they having no interest in the question. He therefore dismissed the appeal on that ground, without consid- ering the question whether parties who had no lien upon the njal estate at the time of entering the order authorizing a sale, could apply to set it aside if it was merely erroneous. The master, upon the reference directed to him, reported that all the judgments were vahd liens upon the equity of redemp- t on in the mortgaged premises at the time of the sale under t le decree of foreclosure ; and that the two first judgments be- ing docketed at the same time, must be paid ratably out of the surplus moneys, and that the conveyance to Power and Pise, in trust for all the creditors of the corporation, was void and gave to the trustees no interest in the surplus moneys. Power and Pise excepted to the report, and the vice chancellor, upon the hearing before him, overruled the exceptions and confirmed the master's report. From this decision of the vice chancellor, Power and Pise, the trustees, appealed, J. Blunt, for the appellants. L. Livingston, for the" respondents. The Chancellor. Upon a former occasion, on the argu- ment of an appeal, I came to the conclusion that the authority given to the chancellor, to authorize a religiouy corporation to Vol. III. K) < 122 CASES IN CHAXCERY. I^-zb. 81 De Ruyter ». 1 he Trustees of St. Peter's Church. Bell its real estate did not extend to tbe case of a conveyance of the estate of such a corporation to trustees for the payment of All its debts ratably, and that the oi-der of the vice chancello could not affect the rights of the appellant in the case which was then before me. That appeal, however, was properly dis- missed upon another ground. For, as the order was made while the appellants were mere creditors at large, and when the corporation might have produced the same effect by con- fessing a judgment to a trustee to secure the payment of all its creditors ratably, the appellants had no right to interfere with that order, if it was not void, but merely erroneous. The ques- tion as to the power of the court to make such an order, au'l the right of the corporation to make a general assignment for the benefit of all its creditors ratably, with the sanction of the court, has been more fully argued upon this appeal. I have also examined the question with great care, and have come to the conclusion that the opinion which I formerly expressed was wrong. By the English common law, corporations aggregate, inclu- ding religious corporations, and some corporations sole, had the same right to alien real estate which they had the capacity to 'ake and hold, and for the same purposes and objects, as natu- ral persons. {Smith v. Clifford, 1 Sid. Rep. 162. Covent. Coke Lit. 44, 300. Com. Dig. Franchise, F. 18. 1 Ves. ^ Beame, 244. 2 Kenfs Com. 281.) Several statutes, however, were passed in the reign of Elizabeth, and one in the first year of her successor, restraining alienations of church property by religious corporations ; and restricting the power of leasing the Bame, for a longer period than twenty-one years, or three lives, or below the accustomed rents. {See 1 Evans' Stat. 381 to 390.) These statutes, forming a part of tbe law of England at the time of the settlement of tliis state by colonists from England, under the charter to the Duke of York, were probably brought hither by those emigrants, and became a part of the laws of the colony; although they were not afterwards re-enacted here. For it is a natural presumption, and therefore adopted as a rule ef law, that on the settlemea of a new territory by a colony 1848.] CASES IN CHANCERY. 12,1 Do Riiyter v. The Trustees of St. Peter's Church. from another country, and where the colonists continue subject to the government of the mother country, they carry with them the general laws of that country, so far as those laws are appli cable to the colonists in their new situation ; which thus become the unwritten law of the colony, until altered by common con- sent or legislative enactment. (5 Wend. Rep. 445, 17 Idem, 584.) That there was a common law existing in this state, re- straining religious corporations from alienating church property, is evident from the fact that in March, 1806, the legislature thought it necessary to pass a special statute, authorizing the chancellor, upon the petition of the corporation, to make an order for such sale, and for the application of the proceeds there- of to such uses as the corporation, with his assent, should con- ceive to be most for the interests of the society to which the property so sold did previously belong. (4 TV. ^' iS. Laws, 360.) And this is the provision which the revisers, in 1813, embodied in the general act for the incorporation of religious societies. (3 R. iS. 298, § 11.) The trustees of this particular corporation, by the first section of the act creating it, (Laws of 1817, p. 240,) are expressly authorized to give, grant, demise, lease, or otherwise dispose of the real as well as the personal estate of such corporation, aa shall appear to them to be just, for the use, benefit and advan- tage of the church and congregation, with the- concurrence of the chancellor, to be first had and obtained, in the manner specified in the eleventh section of the act for the incorporation of religious societies. And the revised statutes conferred upon the vice chancellor concurrent jurisdiction with the chancellor, within the first circuit, of all causes and matters of which the cognizance was vested in the chancellor by statute. It was a matter of discretion, therefore, with the vice chancellor, whether he would make an order allowing the trustees to dispose of the real estate of the corporation, in the manner specified in their petition, for the payment of all the creditors of the corporation ratably. And their deed under the corporate seal, vested the equity of redemption in the appellants, for the purposes specified' io that deed ; unless there is some rule of law which deprivcil 124 CASES IN CHA^XERY. [Fkb, 21 De Ruyter v. The Trustees of St, Peter's Church a corporation of the power to convey its property an 1 effects to trustees, to sell the same for the benefit of its creditors, in the same manner as if the corporation was a natural person. No person can suppose that a corporation which, by its char- ter, is to exercise its franchises and carry on its ordinary busi- ness by officers and agents, elected or appointed in a particular manner, can transfer all its franchises and business to oilier persons, to be exercised by them as general trustees. Hence the question has frequently arisen and been discussed, whether a corporation can make an assignment of its property to a trus- tee to sell the same and apply the proceeds to the payment of its debts ; or whether the directors or trustees of the corporation must themselves sell the property and distribute the proceeds, or transfer the property directly to the creditors in payment of their debts. And it appears to be settled by a weight of author- ity which is irresistible, that a corporation has the right to make an assignment in trust for its creditors ; and may exercise that right to the same extent, and in the same manner, as a natural person, unless restricted by its charter, or by some statutory provision. This question was involved in the decision of the supreme court of the United States in Lenox mid others v. Roberts, (3 Wheat. Rep. 373,) in which the assignees of the first Bank of the United States were perinitted, in equity, to recover a de- mand which had been transferred to them by the coiporatiou before its dissolution, under a general assignment of all the propeity of the corporation, in trust, to pay its creditors and to distribute the residue among the stockholders, upon the expira- tion of its charter. Iq Haxtun v. Bishop, (3 Wend, Rep. 13,) which came before the supreme court of this state, in 1829, an insolvent bank made a general assignment of all its property, in trust to sell the same, and apply the proceeds to the payment of all the creditors of the bank ratably. And Chief Justice Savage held that the assignment was valid. The same que-- tion came before the supreme court of Alabama in 1830, in tJie case of Pope v. Brandon, (2 Stew. Rep. 401,) where an incor- porated bank, a few days before the expiration of its charter itiiSJ CASES IN CHANCERY. \2.^ De Ruyter v. The Trustees of St. Peter's Church. made a general assignment of all its pi'opevty and effects tc trustees to convert the same into money and pay the debts of the corporation ratably, and to distribute the surplus, if any, among the stockholders. And the assignment was held valid. The like decision was made by the court of appeals of Mary- land, in 1834, in the case of 7%e State v. The Bank of Mary- land, (6 Gill 6f John. Rep. 205 ;) where an insolvent corpora- tion made a general assignment to trustees to pay all its debts ratably. In 1839, a like decision was made by the supreme court of Vermont, in the case of Warner v. Mower, (11 Yerm. Rep. 385,) upon an assignment of the property of a manufac- turing corporation iu trust for its creditors, but giving preferen- ces. Redfield, J., who dehvered the opinion of the court in that case, says there can be no question that corporations of this character, as well as natural persons, may assign their property for the benefit of their creditors. And if they may do this, it follows of course that they can give such preferences as any other debtors may. tn Flint v. The Clinton Company, (12 New Hamp. Rep. 431,) which came before the supreme court of New H'lmpshire in 1841, the court decided that a gen- eral assignment, by a corporation, in trust for the payment of all its debts ratably, was valid. In 1842, the same question was brought before the supreme court of Arkansas upon a gen- eral assignment made by the Real Estate Bank of Arkansas to a majority of its directors, as trustees for its creditors. And after a most elaborate argument by counsel, and a thorough examination of the case by the court, the assignment was held to be valid. {Conway Ex parte, 4. Ark. Rep. ^QL) A similar deuision was made in 1843, by the supreme court of Tennessee in the case of Hopkins v. The Gallatin Turnpike Company, (4 Humph.. Rep. 403;) upon an assignment by an indorporated turnpike company of all its property and effects for the benefit of creditors. It is not necessary to sa)^ whether the form of the assignments in the two last cases, and. the particular manner in which the trusts were to be e.xecuted, were not infringements of the principle that a corporation cannot assign its powers and franchises to others, to be exercised by them -is trustees, or oth- 126 CASES IN CHANCERY. [Feb. 21 De Ruyter t>. The Trustees of St. Peter's Church. erwise. In the recent case of The Susquehanna Canal CoWf pany v. Bonham, (9 Watts ^ Serg. Rep. 27,) the supreme court of Pennsylvania decided that the franchises of a canal company incorporated for the benefit of the public, and the corporate rights of the company, could not be alienated by, or sold upon execution against it. And I cite the cases from Ar- kansas and Tennessee merely for the purpose of showing the recognition of the general principle by the courts of those states that a corporation may make a general assignment of its ef- fects, which are capable of being sold by the corporation, to trustees in trust for the payment of its debts. The last case to which I shall refer on this point is that of Dana v. The Bank of the United States, (5 Watts 4* Serg. Rep. 223,) which came before the supreme court of Pennsylvania in 1843. There the late Bank of the United States, incorporated by the state of Pennsylvania, had made an assignment of a large amount of its real and personal estate to trustees in trust for the payment of preferred creditors ; and the assignment was held to be valid, after a very full and elaborate argument of the case by some of the ablest counsel in the union. Whether it is expedient that a corporation which has so con- ducted its afl^airs as to become insolvent, should have the power, by a general assignment, to appoint its own administrators, oi whether an insolvent individual ought to have power to appoint his own assignee, and to give preferences, are questions which belong to the legislature and not to the courts to determine. But as the Jaw now stands, I must hold that this religious cor- poration, under the sanction of the order of the vice chancellor, had the power to make the assignment in question ; and thai such assignment conveyed the legal title of the corporation lo the equity of redemption, in'the mortgaged premises, to the ap- pellants. None of the judgments mentioned in the master's report, therefore, were liens upon that equity of redemption at the time of the sale under the decree of foreclosure. The order of the vice chancellor must be reversed, and the exceptions to the report allowed. And an order must be entered declaring that tlie whole of the surplus moneys belong to the JU48. CASES IN CHANCERY. ]27 Shepanl v. Sanford. appellants as trustees for the creditors ; and directitj^ the same to be paid to them accordingly. But as the respondents were misled by the opinion expressed on the former appeal, to which 1 have referred, they are not to be charged with costs either upon the reference, or on the argument of the exceptions be- fore the vice chancellor, or with costs upon this appeal. SiiEPARD vs. Sanford and others. A court of equity will not entertain jurisdiction of a case for the mere purpose of giving a compensation in damages, for an injury sustained by a false representa- tion ; where the remedy at law, by an action on the case, is clear and perfect, and where no discovery is asked for, from the defendant. This was an appeal fiotn a decretal order of the vice chan- cellor of the fourth circuit, allowing the demurrer of the defen- dant A. Clark, and dismissing the bill as to him ; but with leave to the complainant to amend. The substance of the charge iu the bill was that Sanford and Clark, two of the de- fendants, agreed to represent the defendant Campbell, whom they knew to be insolvent, as a responsible person, and as a creditor of theirs to the amount of $5000 ; to enable him tc defraud the complainant in the purchase of a small farm and a lot of standing wood and timber, on a credit; and that the compianiant was in fact defrauded, in the sale of the farm and of the standing wood and timber, by such false representations made by Sanford and Clark. The following opinion was de- I.vered by the vice chancellor. WiLLARD, Y. C. The gravamen of the bill in this cause ia that the defendants conspired together to cheat the complainant, as follows: that Sanford and Clark should represent Cairpbeil to be a man of pecuniary responsibihty, and a creditor of their£ to the amount of $5000, besides owning other property; tha', ^28 CASES IN CHANCERY. f Atr 1^ Shepard v. SanforJ. Campbell, upcn the strength of the representation, should pui chase of the complamant, on a credit, 18 acres of standing wood on the complainant's farm in Amsterdam ; that he sliould also purchase of the complainant, on a credit, another farm of 30 acres; that Campbell should withhold payment, whereby the complainant would be the less able to pay a mortgage of $3000 held against him by another person ; that Sanford and Clark would buy in the mortgage and sell the complainant's farm at a forced sale, and buy it in for a small sum, and the three defendants sliould share in the speculation. In connec- tion with this, Sanford and Clark induced the complainant to trade at their store, on Campbell's account, and the complain ant's sons were also induced to trade with them, upon the liks terms. The bill alleged that the complainant, confiding in the a ;- fjuiances of the defendants as to Campbell's responsibility, sold him the 18 acres of wood, on a credit, and also the 30 acres of land to a person appointed by him, and took a bond and mort- gage ; that the complainant and his sons traded with Sanford and Claik to a large amount, on Campbell's credit ; that San^ ford and Clark refused to turn the store account with Campbell, but compelled the complainant and his sons to pay them for the same, which they have done ; that Campbell was and ia insolvent, and that his insolvency was known, at the time, by Sanford and Clark ; that the complainant has foreclosed the mortgage on the 30 acres, and bid in the property for abouv one half the sum for which he sold it, and the balance remains due ; and that he has recovered a judgment against Campbell for the wood, and an execution has been returned nulla bona, (fcc. The bill prayed that the defendants, Sanford and Clark, might be decreed to pay the judgment and the sum which should remain due after the foreclosure of the mortgage on the 30 acre lot. This bill cannot be sustained as a creditor's bill for want of the averments required by the 189th rule. ((S'ee 3 Paige, 505, and S. C. 9 Wend. 548.) It is nowhere averred that Camp- bell has any equitable interests in the hands of Sanford and <:iark, or tliat they are indebted to him. There may be otliei 3848.]' CASES IN CHANCERY. 129 Shcpard v.< Sanford. averments necessary in a creditor's bill which hav'c been oniit- ted. The bill 'is not, brought for a discover}'; as an answer on oath is waived. It is for relief only. The whole subject matter was exclusively cognizable at law. The complainant and his sons, by paying up their accounts to Sanford and Clark, have destroyed their remedy either at law or equity for that part of their claim. Had they refused to pay, the bill might have been so drawn as to apply those debts upon their judg- ment against Campbell. They also had a good defence at law to those accounts. The fraudulent representation as to the pecuniary responsi- bility of Campbell, is of legal cognizance purely ; unless it is shown that the property fraudulently received came to the hands of Sanford and Clark. In that case they may be treated as trustees of Campbell for the complainant's benefit. The bill indeed alleges that the avails of the wood came to the hands of Sanford and Clark. But it is not set up in such a way as to dispense with the averment required by the 189th rule. The demurrer must be allowed and the bill dismissed as to the defendant Clark, with costs ; unless the complainant, with- in 60 days, elects to pay costs and amend his bill. H. Fish, for the appellant. The demurrer, in this case, is to the whole bill. The bill must therefore be taken as true ; and the whole case of fraud stated therein is admitted. And if there is any part, either to the relief or to the discovery, to which the defendant ought to have put in an answer, the demurrer, being entire, must be overruled. {Mitf. PI. 172, 174. 1 Barb. Ch. Pr. 106, 111. 3 John. Ch. Rep. 467. 5 Id. 184. 1 Ves. jun. 289. 1 John. Cas. 429. 2 Cai. Cas. in Err. 344.) There is but one general right claimed in the bill, to wit : ilie right of being relieved against the combined frauds of the defendants. And although several matters are set forth in the bill, all tend- ing to show the combination of fraud, yet in such case a de- murrer will not hold, though the defendants have separate and distinct rights. {Mitf. PI. 147, 148. Cooper's Eq. PL 184.) The ground upon which the vice chancellor based his opinion YOL. Ill 130 CASES IN CHANCERr. M** » Shepard v. San ford. in favor of sustaining the demurrer, was, that the complainant had a remedy at law. No such point was taken before him upon the argument, nor was that point raised by the demurrer. Consequently that question cannot now be raised in this court on appeal. {Mitf. PI. 174, 176. 1 Barb. Ch. Pr. 106. Bar- ton's Eq. 108. 2 Yes. 83. 4 Paige, 127. 4 Cowen's Rep. 727. 2 John. Ch. Rep. 369.) A court of equity has concur- rent jurisdiction with courts of law in all cases of fraud. And its jurisdiction in thjs case, from the matters set forth in the bill, should have been sustained. (6 Ves. 174, 182. 13 Id. 131. 10 Id. 470. 7 Id. 19. 9 /rf. 464. 5 Id. 794. 2 Id. 122. 2Ves.jun. 295. 1 Ves. sen. 98. l.Atk. 126. 2 P. Wrns. 156. 1 Mad. Rep. 23. 3 Bra. Ch. Rep. 218. 1 Burr. 396. 1 Mad. Ch. 257. 17 John. Rep. 388. 1 John. Cas. 493. 2 Cai. Cos. ill Err. 39. 4 Cowen's Rep. 727. 7 John. Ch. Rep. 201. i Paige, 94:. 7 Id. 560. 10 Jd. 340. 1 Litt. iSeL Ca. 164. 2 Harris 6r John. 487.) D. P. Corey, for the respondent. The complainant should, but does not, make out a case within the equitable jurisdiction of this court. {I Barb. Pr. 2Q. Mitf. Eq. PI. ^5. /Story's Eq. PL 8.) He shows that his remedy, if he has any, against the alleged fraudulent representations, is ample at law. The i)ill is not for discovery ; as an answer on oath is waived,' but is solely for relief against supposed fraud. And the alleged information and belief that the defendants associated them- selves together to defraud the complainant, does not require an answer, even so fai as to deny the combinations, &c. {Potts V. Durant, 4 Gwlll. 1351. 1 Vern. 416, 'note 1.) Nor can. this bill be sustained as a creditor's bill. It has not the neces- sary and indispensable averments required by rule 189. (3 Paige, 505. S. C. 9 Wend. 548, and 2 Barb. Pr. p. 163 to 165.) The bill does not show that the defendant Clark has an int3i-est in the subject of the bill ; nor is he liable to the plain- tiff's demand as an original debtpr. {Cooper's Eq. 178, 9. 1 Vorn. 180.) He is a mere witness, and might be called to iprove what the bill alleges, as mere belief, took place in hia i843.] CASES IN CHANCERY. 13] Shepard v. Sanfonl, Dresence. The bill states nothing expressly ag'amst the defen- dant CiM'k; but all is upon information or belief, 01' both. This is not sufficient to charge him on the ground of fraud, or other- wise, in this suit. {Cooper's Eq. 179 to 181, and. cases there sited.) Stating circumstances upon information and belief, and then claiming a right to an account and relief against the defendants, or some of them, is insufficient and bad on demur- rer. {Id. ib. 8 Yes. 395, 404, 405.) Alleging that the defen- dants, Sanford and Clark, or one of them, without stating which, had said or done this, that, or something else, does not entitle the complainant to either discovery or relief against either. [Id. ib^ 8 Ves. 405.) The bill, as to the defendant Clark, is too loose and uncertain to authorize the complainant to call upon him to answer, or to entitle the complainant to any discovery or relief. {Coop. Eq. 181.) The bill is multi- farious; it contains several matters of distinct or different na- tures against the defendants severally, as to which there is no privity alleged. (6 Paige's Rep. 22 to 28. 5 Id. 65. 2 Ves. 323 to 328, 487. 1 Barb. Pr. 40.) For the above reasons the bill was properly dismissed as to Clark, with costs, and the decree of the vice chancellor should be affirmed with costs. The Chancellor. I think the vice chancellor decided correctly that there was no equity in the complainant's bill as against the defendant Clark ; and that his remedy, for the damage sustained by Clark's false representations, was in an action at law. It is true Lord Erskine, in the case of Clifford v. Brooke, (13 Ves. Rep. 133,) says that such a fraudulent misrepresenta- tion is the subject of an action, or of a bill in equity. But he immediately qualifies the expression by adding, " where it is necessary and fit that equity should interpose its concurrent jurisdiction." It may also be remarked that nothing satisfac- tory upon this question can be extracted from the opinion of Lord Eldon in the case of Evans v. Bicknell, (6 Ves. 174 ;) which was cited by the appellant's counsel upon the argument. Upon principle, however, a court of equity ought not to enter- tain juiisdiction of a case for the mere purpose of givmg a com 232 CASES liN CHANCERY. L^at I, Montgomery v. Montgomery. pensation in damages, for an injury sustained by a false repre* sentation ; where the remedy at law, by an action on the case, is clear and perfect ; and where no discovery is asked for from the defendant. The decree appealed from must therefore be affirmed, with costs. Montgomery vs. Montgomery. If the defendant, in a suit by the husband, to annul a marriage on the ground of fraud, is an idiot, the complainant must procure the appointment of a guardian ad litem to appear and defend the suit for the wife. Where no guardian ad litem is appointed for the defendant, in such a case, the com- plainant will derive no benefit from the tacit admission of the fraud charged in the bill, arising from the wife's suffering such bill to be taken as confessed against her. A court of equity will not annul a marriage contract as having been fraudulent, upon the mere admission, by the defendant, of the facts charged in the bill. A suit to annul a marriage, on the ground that the consent of one of the paritet thereto was obtained by fraud, must be brought within six years after the discov- ery, by the aggrieved party, of the facts constituting the fraud. The meaning of the provision of the statute relative to suits of that nature, which declares that a marriage may be annulled on account of force or fraud, during tJte lifetime nf the parties, or one of them, is not that the suit can be brought at any distance of time after the right to institute it occurred, provided either of the parties is still living, but that the suit can only be brought during the lifetime of the par- ties, or during the life of one of them, and not afterwards. The legal presumption is that a child born subsequent to the marriage of its mother, although begotten before that time, is the child of the husband. And the admis- sion by a third person that the child was begotten by him, and not by the subse- quent husband of the mother, is not evidence to rebut such legal presumption ; in a suit to annul the marriage upon the ground that the consent of the husband to the marriage contract was obtained by fraud. This case came before the chancellor upon a bill filed by the husband, against his wife, to annul the marriage contract be tween them, on the ground of fraud. The bih was filed in April, 1S46, and stated in substance, that in October, 1834, the complainant, being then nineteen years of age, went to reside 184S.] CASES IN CHANCERY. 133 Montgomery v. Montgoipery. with his maternal uncle, Ephiaim Jones of Johnstown, and continued to live with him until March, 1836 ; that the defen- dant, who was the sister of Jones' wife, was residing in the family and continued to reside there during the same time ■ that about the first of January, 1836, his uncle persuaded him to marry her, by representing to him that she was virtuous and industrious and would make him a good wife, and by conceal- ing froirj him the fact that she was then enciente ; that a short time after the marriage the defendant admitted she was with child by the uncle of the complainant, and that they had con- spired together to bring about the marriage, to shield them from the disgrace of a discovery of their adult^iy ; that the complain- ant immediatelj'' ceased to cohabit with her ; and that in March, 1836, she was delivered of a child, which was living at the time of the filing of the bill in this cause ; that he never had sexual intercourse witli her previous to their marriage, but that she was at the time of such marriage pregnant by his uncle, and that she well linew the fact and concealed it from the com ■ plainant. The defendant, who was proved by one of the witnesses to be in a state of apparent idiocy, suffered the bill to be taken as confessed against her ; and it was referred to a master to take proof as to the facts and circumstances stated in the bill, and to report the testimony to the court, with his opinion thereon Jones, the uncle of the complainant, was examined as a witness before the master, and testified that he suggested to his nephew that he had better marry the defendant, and advised him that it was the best thing he could do ; that her brother would probably get them a lot of land out west, and that if they got along well together, he, the witness, would see about their hav- iiig such a lot of land ; tliat she was industrious, and so far as the witness knew, was virtuous and would make him a good wife ; that the complainant said he would talk with her on the subject ; that afterwards, in pursuance of the advice of the wit- ness and of the inducements which the witness held out to hinio ihe complainant married the defendant ; that she was pregnant at the time of such narriage, and was delivered of a child in ^4 CASES IN CHANCERY. [M vT Montgomery v. Montgomery. the month of March thereafter ; that after the birth of the t Iiild the complainant-insisted that it was not his, and left the house of the witness, leaving the defendant and her child there ; and mat he had never lived with her afterwards. A brother-in-law of the last witness testified that the child bore a strong resemblance to him, and that he had charged him with being its father, and with having procured the mar- riage for the purpose of concealing the fact ; that Jones made no denial, but said it could not now be helped if the public did charge him with it. The mother of the complainant also testified that the parties Jiad not lived together since their separation in March, 1836. The master reported that in his opinion the allegations in tlic complainant's bill were proved ; that his assent to the marriage was procured by the fraudulent connivance of the defendanl and Jones, the uncle of the complainant ; and that the child mentioned in the bill was not the child of the complainant, but was illegitimate. J. A. Spencer, for the complainant, then moved for a decree annulling the marriage, and declaring the child illegitimate. The Chancellor. There are several objections in thia case to the granting of the relief asked for by the complainant. His solicitor, who saw the defendant about two years previous to the time of his examination as a witness before the master, tcs'.ified that she was then in a state of apparent idiocy. If that was the case, he should have procured the appointment of a guardian ad htem to appear and defend this suit for her ; and the complainant cannot obtain the benefit of a tacit ad missions of the fraud charged against her in the bill. Again ; the court does not annul a marriage contract upon the mere admission by the defendant of the facts charged in the bill. And I think the master erred in this case in supposing that the material allegations in the bill were established by the testimony before him. The only facts of importance that ar» proved are that the defendant Was encienle at the time of hei .S48.] CASES IN CITANCERY. 135 Montgomery v. Montgomery, marriage, late in the fall of 1836, and that she was delivered of a living child in the March following ; that the complainant was probably induced to marry her upon the recommendation of his uncle; and that he left her immediately after the birth of the child. That uncle does indeed leave it to be inferred that he had not only been guilty of adultery with his sister-in- law, but that he had also been so base and unnatural as to per- suade his nephew to marry her, by falsely representing her to be a virtuous woman, when he knew she was with child by himself. But to implicate the defendant in the conspiracy charged in the bill, the witness should have sworn to the facts charged. For, in the absence of any proof to the contrary, the legal presump- tion is that the child of which the defendant was subsequently delivered was the child of the complainant, although the testi- mony shows it must have been begotten before the marriage. And as the complainant and defendant had lived in the same family, for more than a year previous to their marriage, there IS nothing to rebut the legal presumption on that subject but the tacit admission of Jones ; which admissions, not being upon oath, are not evidence of any thing, as between these parties. Nor can the court safely act upbn such admissions. For the necessary result of receiving such evidence to annul a mar- riage, would be to produce collusion between parties, both of whom were willing to be released from the matrimonial tie. In this case, if the facts are as stated in the complainant's bill, it would have been much more creditable to Jones had he come out at once and done what was in his power to repair the wrong, by swearing to the whole truth, than to leave it as matter of suspicion only. And if this were the only difficulty in the case, I should refer it back to the master to take further testimony ; so as to give this witness another opportunity to swear to the truth of the allegations made in the bill, if they are in fact true. It appears, however, from the complainant's own showing, that his right to relief w^as barred by lapse of time when this suit was commenced. The statute under which this bill is filed declares that a marriage may be annulled, on the ground that the consent of one of the parties was obtained by force oi 136 CASES IN CHANCERY. [May 1, Montgomery u. Montgomerj. fraud, during the lifetime of the -parties or one of them. (2 jR. S. 143, § 30.) The meaning of that provision, however, is that the suit can only be brought by the party whose consent has been obtained by force or fraud, or by some person who has an interest in contesting the validity of trhe marriage, during the lifetime of the parties to the marriage, or during the life of one of those parties, and not afterwards ; not that the suit may be brought at any distance of time after the right to institute it occurred, provided either party is still living. The suit to annul a marriage, upon the ground that the consent of one of the par- ties thereto was obtained by fraud, must therefore be brought within the time limited by law for the commencement of suits in this court. -And the fifty-first section of the article of the revised statutes relative to the time of commencing suits in equity, provides that, bills for relief on the ground of fraud shall be filed within six years after the discovery, by the aggrieved party, of the facts constituting such fraud, and not after that time. (2 R. S. 301.) The complainant was of full age as early as October, 1836 ; for he was nineteen at the time be came to re- side v?ith his uncle, two years previous to that time. And he states in his bill that the defendant admitted the facts consti- tuting the fraud, as charged in the bill, soon after the marriage and previous to his leaving her in the spring of 1836. The six years allowed by law for bringing a suit to annul the marriage^ on the ground of the alleged fraud, had expired several years before the filing of his bill. His right is therefore barred by the lapse of time ; and his bill must be dismissed on that ground, even if the alleged fraud was now fully established by the proof. It would for that reason be a useless expense to refer the case back to the master to take Airther testimonj ia reference to the fraud charged in the bill. 1848.- CASES IN CHANCERY. 137 LovETT, executor, &c. vs. Buloid and others, [Followed, 86 N. Y. 301.] Where a testator, by the residuary clause of his will, gave, devised, and bequeathed to his wife, and to his child or children, all the rest and residue of his estate, share and share alike, and to the heirs of such child or children who might die leaving lawful issue ; and in case either his wife or children should die without leaving lawful issue, then the share of such one dying to go and be divided amongst the survivor or survivors of them ; Held that the limitation over to the siurvivors of the class was sufficient to show that an indefinite failure of issue was not intended by the testator, but a failure of issue at the death of the first taker ; and that the lim- itation over to the surviving legatees was therefore Valid. Held also, that the bequest to the widow, as well as to the children, was absolute in its terms, subject only to the contingency of the death of the legatee without leav. ing issue surviving. And two of the testator's daughters having died leaving issue, and leaving their hus- bands surviving them, Held further, that they were entitled to an absolute estate and interest in their respective parts of the testator's residuary property ; and that after their deaths, respectively, the same belonged to their husbands; under the provisions of the revised statutes relative to the distribution of intestates' estates. Where a remainder, after the termination of a particular estate, is limited to certain specified individuals, or to the survivors of them, the court will refer the survivor- ship to the death of the testator, and not to the termination of the particular es- tate, where it is necessary to give effect to the probable intention of the testator in providing for the surviving issue of such of the objects of his bounty as may hap- pen to die during the continuance of the particular estate. But it seems this rule of construction will not be applied to a case where the partic- ular estate is given to a class, with remainder to the survivors upon the death of some of the class without leaving issue. Where the residuary estate of the testator is given to a class of persons, with re- mainder in the shares of such of them as die without issue, to the survivors, there is no benefit of survivorship, among the surviving' hiembers of the class, as to the share of the one of the class who has died without issue; but the surviving mem- bers of the class take their respective portions of that share absolutely. This was an appeal from a decree of the late assistant vice chancellor of the first circuit. The bill was filed by the survi- ving executor of R. M. Steele, for a judicial construction of cer- tain provisions of the will of the testator. The will was made in 1812, and the property of the testator consisted of personal estate, entirely. After providing for the payment of his debts, tind giving to his wife certain specific legacies and the guard "Vol. III. 18 138 CASES IN CHANCERY. L^*ay i Lovett V. Buloid. tanship of his children, he bequeathed his residuary properly U his executors and to the survivor of them, as Uustees, in irusi to convert it into money and invest it upon bonds and mortga- ges, or in stocks ; and to change such stocks and securities as often as they should deem it beneficial to his estate, and to rein vest the money in similar securities or stocks. The testator then disposed of this residuary fund as follows : " And I do hereby give, devise and bequeath to my said wife Isabella, and to my child or children, all the rest and residue of my said es- tate, share and share alike, and to the heirs of such child or children who may die leaving lawful issue. And in case eithei my wife or children should die without leaving lawful issue, then the share of such one dying to go and be divided amongst the survivor or survivors of them." He then appointed his wife, and the complainant, and P. Grim, the executrix and exectitors of his will. In February, 1813, the testator sailed from New- York for Bordeaux, as master of the schooner Rob. But nei- ther he nor the vessel arrived at their port of destination, nor was eithov of them ever afterwards heard of. In February, 1814, the executrix and executors, assuming that the testator had been lost at sea, proved the will, and took out letters testa- mentary thereon, from the surrogate of New- York. The tes- tator, at the time of his supposed death, left four daughters sur- viving him ; all of whom were then infants. Grim, one of the executors and trustees, afterwards died ; and in 1826, the wid- ow of the testator intermarried with R. Buloid. Isabella, one of the daughters of ^he testator, married E. Field. Caroline L., another daughter, married W. Walker. Eliza M., the third, married L. Corning ; and Emily, the other daughter, married H. W. Olcott. In March, 1838, Mrs. Corning died, leaving her husband and one child, Mary W. Corning, her mother and her three sisters all sin-viving her. Mrs. Buloid died a few months afterwards, without having reduced her share of the capital of her first husband's estate into possession, and without leaving any issue ex;cept the descendants of her first husband ; and leaving her second husband surviving her. In 1810, Mrs. Field died, without issue ; leaving her husband, hei two sisters, 1848.J CASES IN CHANCERY. 135 Lovett V. Buloid. and her niece Mary W. Cornirjg, the daughter of her deceased sister, surviving her. L. Corning, after the death of his first wife, married again, and died subsequent to August, 1844, By his will, which recited that his daughter Mary W. Corning was sufficiently provided for out of her grandfather's estate, he made his wife his residuary legatee. But it being afterwards suggested that he was probably under a mistake in supposing that his daughter was entitled to the share of the estate of her grandfather R. M. Steele,^ which would have belonged to her mother if living, the widow of L. Corning, for the purpose of rectifying that mistake, executed to Mary W. Corning a release and assignment of all right and claim to the share to which the mother of the latter, if living, would have been entitled in the estate of R. M. Steele, her deceased father. The residuary estate of R. M. Steele, invested by the com- plainant as the acting executor and trustee, and which remain- ed in his hands at the time of the fihng of the bill in this cause, was about $47,000. During the lives of all the daughters of the testator, the annual income of the fund was distributed equally among the four daughters and their mother. But after the death of Mrs. Corning and her mother,.and previous to the death of Mrs. Field, the income was divided into four equal shares, with the assent of Mr. Buloid, three of which shares were paid to the three surviving daughters of the testator, and the other share to the father or guardian of Mary W. Corning, for her use. And subsequent to the death of Mrs. Field, such income was divided into three equal shares ; two of which were paid to the two surviving daughters of the testator, and the other to the father, or guardian, of Mary W. Corning, for her use. The bill in this cause was filed in 1845, and the two surviving daughters of the testator with their husbands, and R. Buloid, E. Field, Mary W. Corning, and the executors of her father, were made defendants therein. The complainant, in his bill, after setting forth the facts, as before stated, alleged that vari- ous questions had arisen in relation to the construction of the H'ill of the testator, in reference to the disposition of his residu 140 CASES [N CHANCERY. May 1. Lo^ett V. Buloid, aiy estate, in the contingent events which had occurred, which rendered it unsafe for him to proceed to the distribution of the fund without the direction of the court. Among other ques- tions which had arisen, were the following : First, whether upon the death of Mrs. Buloid, her surviving husband, upon taking out letters of administration upon her estate, was eati tied to receive her share of the residuary estate for his own benefit? Second, whether Mrs. Field, who died without issuCj had a life intercist only, or had an absolute title to one fifth of the residuary estate ; which devolved upbn her surviving hus- band as her personal representative? Third, whether, upon the death of Mrs. Corning, her share of the estate belonged to her surviving husband, so as to authorize his executors to re- ceive it ; and if not, whether it could be transferred to the guardian of her infant daughter ? Fourth, whether the two surviving daughters of the testator were entitled only to the income of their shares for life, or to the possession of the capi- tal, or of any part thereof? Fifth, whether Mrs. Buloid's and Mrs. Field's shares, or either of them, fell into the residuary es- tate upon their respective deaths, and subject to the limitations and provisions of the will relative to the residuary estate ; or was vested absolutely in thesurvivinglegatees? (Sia^^A, whether Mary W. Corning was to be considered as one of the suiTiving lega- tees, and entitled to stand in her mother's place in the distribu tion of the lapsed shares of Mrs. Buloid and Mrs. Field, if their shares, or either of them, were lapsed ? The bill further stated that each of the surviving daughters of the testator had four children ; all of whom, except one, were under fourteen years of age. And the complainant prayed that the rights of the several parties to the residuary estate might be settled, and that he might be permitted to" account and pay over the fund in his hands, and be discharged from his trust; he being advanced in life, and having had charge of the estate for more than thirty years. All the defendants, except Mary W. Corning, who was a minor, suffered the bill to be taken as confesfed against ihem. She put in an answer, by her guardian ad litem. And tU8 1843., CASES IN CHANCERY, ]4 Lovett V. Buloid. cause V'"as heard upon pleadings and proofs as to her, and upon the bill taken as confessed as to the other defendants. The assistant vice chancellor decided that the words, " in case either my wife or children should die without leaving law- ful issue," in the residuary clause of the will, referred to the death of the testator, and not to a subsequent dying without issue. He therefore declared and decreed that the widow and the four daughters of the testator having survived him, the re- siduary estate became vested in them absolutely, in equal shares ; that upon the death of Mrs. Buloid her husband be came absolutely entitled to one fifth of such residuary estate ; that upon the death of Mrs. Field, her husband became enti- tled to another fifth of the residuary estate, and was entitled lo one fifth of the income accrued subsequent to that time ; that upon the death of Mrs. Corning, her husband became entitled to her fifth of the residuary estate, and to the income thereof subsequent to her death ; that by his will and the assignment and release of his widow, his daughter, Mary W. Corning be- came entitled to that fifth, and to the income thereof both before and after such assignment and release ; and that the two sur viving daughters, and their husbands in the right of their re- spective wives, were absolutely entitled to the remaining two fifths of the residuary estate, and to the income thereof from the death of the testator. A reference was directed to a master to take and state the accounts of the complainant upon these principles ; and the costs of the complainant and of the guard- ian ad litem of the infant defendant, were directed to be paid out of the estate. The defendant Mary W. Corning appealed from so much of the decree as declared that the residuary estate became ves- ted in the widow and the four children of the testator abso- lutely, upon his death ; and from so much thereof as declared that upon the death of Mrs. Field, her surviving husband be- came entitled to the share of the estate bequeathed to his wife, and to the income thereof subsequent to her death ; and from BO muih thereof as declared and decreed that the several parties were entitled as in the decree was mentioned. 142 CASES IN CHANCERY. [Mat Lovett V. Buloid. C. Edwards, for the appellant. The appellant, Mary Win- elow Corning, is entitled to a whole fifth part of the residuary estate of the testator; being the original share of her motlier, the late Mrs. Eliza M. Corning. The dying without issue, in the testator's will, had reference to the time of the decease of a child of the testator, not having any issue living. The infant defendant, Mary Winslow Corning, is also entitled to partici- pate in the share of Mrs. Field, who died without issue. That share should be divided into three parts, and be distributed, one third to Mrs. Walker, one third to Mrs. Olcott, and one thn-d to the defendant, Mary W. Corning. She is thus entitled on the ground of this third being an accruing share ; and not sub- ject to survivorship. She would be thus entitled if the court were reduced to a construction of the words of the will. The decree should accordingly give her a full fifth, and one third of Mrs. Steele's fifth. The complainant, as surviving executor, should be directed to account for the same, and its accumula- tions since the last pay/nent, and he should be directed to hold the same subject to the application of the guardian of the estate of the appellant. Geo. T. Strong, for the respondent. The bill was properly filed by the complainant to obtain the direction of the court ; as there were various doubtful questions arising on the will. 1. Is the gift over on the death of any of the residuary legatees without issue valid, or is it void ? [Patterson v. Ellis' EsPrs. 11 Wend. 259. Cutter v. Doughty, 23 Wend. 513.) 2. Did the gift over, on the death of Mrs. Buloid leaving no other issue than those by the testator, take effect, or did her share, upon that event, vest absolutely in her representative 1 (1 Pow. on Dev. by Jarman, 178, n. 6. Wehh v. Heaving, Cro. Jac. 416. Preston v. Eagle, Wines' Rep. 164. Hearn v. Allen, Cro. Car. 57.) 3. If it did not take effect is Mr. Buloid erstop- ped by his acts or declarations from claiming that share? If not so estopped, aa fav as the principal is concerned, is he estop ped as refjards the income which has been distributed ? If iioi so estopped as to the income, is it to be refunded to him out of 848.J CASES IN CHANCERY. 143 Lovett V. Buloid. the estate? 4. If the gift over on the death of Mrs. Buloid tools effect, was Mary W. Corning entitled to a share of it ; or did it go exclusively to those M'ho were literally the surAving children of the testator? 5. A similar question arises as to the share which accrued on the death of Mrs. Field. 6. Did the shares which accrued on the death of Mr. Buloid and Mrs. Field, or either of these shares, vest alTsolutely in the survivors, or will they or either of thein, upon the death of any such sur- vivor without issue, go over to the then survivors, in like man- ner as the original shares ? ( Ward on Leg. 144, 232, 233. Moore v. Godfrey, 2 Vern. Rep. 620. Feltham v. Faulkner, 2 P. Wms. 271. Taylor's Free, of Wills, 428, n.) 7. If these shares vested absolutely in the survivors, has Mr. Field, upon taking out letters of administration on the estate of his wife, a right to that part of the estate, which devolved to her upon the death of Mrs. Buloid absolutely? [Clancy, Husb. and Wife. 12 Co. Litt. 351, note 304. Squib v. Wyne, 1 P. Wm.i. 378. 2 R. S. 75, sub. 29. Jenkyns v. Fryer, 4 Paige, 47. 2 Pow. on Dev., by Jarman,'2l2.) 8. Did Mary W. Corning take by implication, under the will of her father, the share which belonged to her mother under the will of Mr. Steele? (1 Pow. on Dev., by Jarman, 334, 335, and n. 1, 523, 524. Ward on Leg. 2, 10. 1 Ves. sen. 34.) If not, is it ves- ted in her by the release or assignment of Mrs. Corning? Or is it vested in the executor of Mr. Corning? 9. Are Mrs. Walker and Mrs. Olcott each entitled to the income only of one fifth of the testator's estate during their natural lives ? If so, how is the principal to be invested during that time ? Or, are they severally entitled to the possession of the principal; and, if so, is any, and what security to be exacted of them for its repayment, if they should die without issue? (Coven- hovin V. Shuler, 2 Paige, 132, 133. Clarke v. Clarke, 8 Id^ 160. Fawker v. Gray, 18 Fes. 131.) Is it necessary th<' tany trustee should be appointed, upon the discharge of the com- plamant ? The complainant was entitled to have an account taken and to he discharged full}' and finally upon paying over, under the 144 CASES IN CHANCERY. LRIay i Jliovett V. Buloul. direction of the court, the money in his hands. The bill hav- ing been filed properly, and in good faitli, the complainant was entitled to his costs out of the estate ; (2 Barb. Gh. Prac.^ 328 ;) including a counsel fee. {Brymer v. Nickolls, 2 Hill's Ch. Rep. 121. Warden v. Burts, 2 McCord's Ch. Rep 76.) And the assistant vice chancellor having made the proper de- cree in the cause, the decree appealed from should be aflBrmed with costs. The Chancellor. I think the assistant vice chancellor erred in supposing that the dying without issue, in the residu: ary clause of this will, referred to the death of any of the leg atees without issue previous to the dea,th of the testator; and that the testator intended to give to his widow, and to each of his children who survived him, an absolute estate in an undi- vided share of the residuary fund. Such a construction is wholly inconsistent with other provisions of the will. And if each of the legatees was to take an absolute interest in the share of the fund immediately upon the death of the testator, the special bequest of the residuary fund to the executors, in trust, to invest the same upon bonds and mortgages or in stocks, and to change such stocks and securities, and reinvest the moneys in similar stocks and securities as often as they should deem proper, would be entirely nugatory. For each of the legatees, or the widow of the testator as the testamentary guardian of the minor children, would, upon the assistant vice chancellor's construction of the will, be entitled to demand their several shares of the estate immediately upon the death of the testator ; or as soon as the property could be sold and converted into money. On the other hand, if the testator contemplated the contingency of some of the legatees dying without lawful issue subsequent to his death, and only intended to give them a life estate in their shares of the residuary fund in that event, then the trust to invest the residuary fund, so as to secure the capital of the shares of the legatees who might die without issue, for the benefit of the survivors, was not only propel ()n( aosolutely necessary. 1848.1 CASES IN CHANCERY. Mfi Lovett V. Buloid. Again ; the limitation of the residuary fund is to the widow and children, and to the heirs of the child or children who may die leaving issue. And though the word heirs, in this case, at the time of the making of this will, was a word of limitation only, and oould not give an interest to the heirs of the children, as purchasers, it still is of some importance, to show that the tes- tator did not intend to give an absolute title to such of the leg- atees as should die without issue. The limitation over to the survivors of the class, upon the death of any of the legatees without leaving issue, was not restricted to a dying without issue in the lifetime of the testator. Nor was the remainder limited upon an indefinite failure of issue ; so as to give the legatee who died without having had any issue, an absolute estate in his share. For the limitation over, to the survivors of the class, is, according to the decision of the court for the correction of errors, in the case of Anderson v. Jackson, (16 John. Rep. 383,) sufficient to show that an indefinite failure of issue, was not intended by the testator; but only a failure of issue at the death of the first taker. The limitation over to the surviving legatees was therefore valid ; and that part of the decree appealed from, which declares that the residuary estate of the testator was vested absolutely in the five legatees, upon the death of the testator, and that the surviving husband of Mrs. Field became entitled to her share and to the income thereof subsequent to her death, is erroneous, and must be reversed. Where a remainder, after the teimination of a particular estate, is limited to certain specified individuals, or to the sur- •"ivors of them, the court will refer the survivorship to the death of the testator, and not to the termination of the particular es tate, where such a construction is necessary to give effect to the probable intention of the testator in providing for the sur- viving issue of such of the objects of his bounty as may happen to die during the contmuance of the particular estate. (Dray- ton V. Drayton, 1 Dessaus. Rep. 324. Stringer v. Phillips, I Eq. Ca. Abr. 293. Moore v. Lyons, 25 Wend. Rep. 119.) l! is doubtful, however, whether this rule of construction can Vol. Ill 19 146 CASES IN CHANCEIir, [Mav I Lovett V. Buloid. De applied to a case whefe the particular estate is given to a class, with remainder to the survivors upon the death of some of the class without leaving issue. For such a construction, although it might give to the issue of one of the class who had previously died leaving issue, a part of the share of another of the class who died without leaving issue, would also give to the collateral heirs, or the personal representatives, of one who had previously died without issue, a part of the share of another who should subsequently die without issue. Thus, in the case under consideration, such a construction would give to the child of Mrs. Corning, and to the husband of Mrs. Buloid, two-fourths of the share of Mrs. Field, who died in 1840, without issue. And if either of the surviving daughters should hereafter die without issue, the same con- struction would also give to the husband of Mrs. Field, as her representative, one-fourth of that share. It is evident, therefore, that such a construction would be wholly inconsistent with the intention of the testator. I have no doubt that if the testator had contemplated the event of one of his children dying without issue, subsequent to the death of another child who had left issue, he would have provided for that case, by giving such issue a share with the surviving children. But there is no probability that he would, intentionally, have inserted a provision in his will, the effect of which would be to give to the second husband of his widow, after her death, a part of the share of one of the children who had sur- vived her. The language of the will, however, has not given any portion of Mrs. Field's share to the issue of her deceased sister. It must therefore be distributed equally between the two surviving sisters of Mrs. Field. And there is no benefit of survivorship as to that part of the fund, even if one of those sisters should hereafter die without leaving any issue surviving her. They therefore became absolutely entitled to that portion of the trust fund, immediately upon the death of Mrs. Field ; under the hmitation in the will to the survivors. It is difficult to say what the testator could have intended bj (uniting over the share of his wife to the survivors of the class, iSISl CASES IN CHANCERV 147 Lovett V. Buloid. in case she should die. without leaving issue. For, wheUiRf. she died before or after the testator, she could not die without leaving issufe, if either of the testator's children, or any of their descendants, survived her ; unless the testator had some chiU dren by a former marriage, at the time of making his will, who are now dead. The bequest to the widow, as well as to the children, is absolute in its terms ; subject only to the contin- gency of the death of the legatee without leaving issue surviv- ing. And there is nothing in the will restricting either of the legatees to a mere life estate in their respective shares of the residuary property of the testator, except upon the happening of svjch a contingency. In the events which have occurred, there- fore, Mrs. Buloid and Mrs. Corning, both of whom died leaving issue, were entitled to the whole estate and interest in their re- spective fifth parts of the testator's residuary property. And upon their deaths respectively, the same belonged to their hus- bands ; under the provisions of the revised statutes relative to the distribution of intestate estates. The appellant, therefore, under the assignment from the residuary legatee of her fathei, is entitled to one fifth of the residuary estate of her grandfather : s.nd to the income thereof, except the income which had been paid over to her father, or to her mother during the lifetime of the latter. And the complainant, by the decree, must be directed to pay over that fifth of the estate to her, or to her general guardian, if she is .still a minor, and the income thereof which has not already been paid to her father or guardian. Although the defendant, R. Buloid, makes no claim to his late wife's one fifth of the residuary estate of the testator, he is legally entitled to it, and to the income which' has not been paid over by the complainant, to the other legatees, with his as- sent. And if he does not wish to receive and retain it on his own account, he still may dispose of his interest therein between the two surviving daughters of the testator and the daughter of Mrs. Corning, so as to make their respective shares in the estate equal ; as the testator himself probably would have done if he had contemplated the events which have occurred. The shares of Mrs. Walker and Mrs. Olcott are still subjecJ 148 CASES IN CHANCERY. [Mat ! Wakeman v. Hazleton. to the right of survivorship between themselves, if eithei of them should hereafter die without leaving issue surviving her. Bui that contingency is very remote, as each of them has foui children. And the chances of survivorship being equal, they and their husbands can give a valid consent that the complain- ant may pay to each her share of the estate ; so that such com- plainant may be discharged from his'trust. The decree of the assistant vice chancellor must be reversed and modified in the parts appealed from, in conformity with this decision ; and must declare the rights of the parties ac- cordingly. And the costs, both of the appellant and the re- spondent, upon this appeal, must be paid out of the estate of the testator in the hands of the complainant. Wakeman and Skinner, eiecutors, dtc. vs. Hazleton and wife. Where a bill was filed to foreclose a mortgage, which was a valid lien upon premii e* worth the whole amount due on such mortgage, including costs of foreclosuic, but owing to the ignorance or carelessness of the person employed to foreclose the mortgage, a subsequent purchaser, of the mortgaged premises, from the mortgagor, was not made a party, and the bill having been taken as confessed against the mort- gagor, a deciee of foreclosure and sale was entered, and the premises were sold, for less than nnethird of theamount due upon the mortgage, to a person who transferred his bid to the owner of the equity of redemption ; Held that the decree for a foreclo- sure and sale was a mere nullity, so far as the rights of the owner of the equity of redemption were concerned ; and that it was a proper case for setting aside such decree, and the sale under it, and for granting leave to amend the bill, upon the application of the complainants, on terms. A'^herc executors employ a person not authorized to practice, to foreclose a mortgage due to the estate of their testator, and he forecloses the same in the name of another person, as solicitor, but fiom the ignorance of the person so employed by the executors, the mortgage is irregularly foreclosed, so that a part of the debt ii lost, such executors are answerable to the legatees for the amount of such loss. It seems that if a person not legally authorized to practice law is employed to conduct judicial proceedings, he is not legally responsible to his employer fur any loss th« latter may sustain in consequence of the ignorance of the person so employed, in respect to legal proceedings. .."48.] '^ASES IN CHANCERY. \ {^ Wakeman v. Hazleton. This was aa appeal from an order of the late vice chancellor of the seventh circuit, denying an application of the complain- ants for a resale of mortgaged premises, and for other relief. James Skinner, deceased, appointed the complainants his lex- ecutors, and authorized them to sell his residuary estate and to divide the proceeds thereof among his legatees. They sold a farm in Seneca county, which belonged to their testator's estate. to the defendant E. Hazelton, and took back from hirri a bond and mortgage for a part of the purchase money. Hazleton afterwards became insolvent and conveyed the mortgaged prem- ises to W. Clark, his father-in-law. The mortgage not being paid, the complainants employed M. S. Hunting, who was not authorized to practice in chancery, to foreclose the same. He filed the bill in this cause, in the name of a solicitor residing in an adjoining county, to foreclose the mortgage. And, either through ignorance, or for some other cause which is not ex- plained, he neglected to make Clark a party to the suit ; although at the time of the filing of the bill, or within a few days there- after, he was informed that the mortgagor had conveyed all his interest in the premises about a year before, and that Clark was the sole owner of the equity of redemption at the time of the commencement of the foreclosure suit. Hazelton made no objec- tion to the suit upon that ground, but suffered the bill to be taken as confessed ; and the usual decree of foreclosure and sale was entered, in the same manner as if he was still the owner of the premises. At the time of the master's sale there was about $1800 due upon the bond and mortgage, and the mortgaged premisea were worth considerably more than the, amount of the debt and costs. Hazelton and Clark allowed the premises to be struck off to the husband of one of the legatees, for $600. Clark immedi- ately afterwards insisted upon his right to redeem the premises, upon payment of the amount of the bid, on the ground that he had not been made a party to the suit ; and he induced the purchaser to relinquish the purchase to him for that sum. The complainants thereupon applied to the vice chancelloi to set aside the sale, and for leave to amend their bill by ma- king Clark, the owner of the equity of redemption, a party U; 150 CASES IN CHANCERY. [Mat 1 Wakeman r. Hazlcton. tne suit ; and for such other relief as might be proper under the circumstances of the case. The vice chancellor denied the motion with costs. He however directed Clark to pay to Ruth Smith, one of the legatees, who was an infant at the time of the master's sale, such a sum as would be equal to her share of the amount which was due upon the bond and mortgage. But he made no provision for the payment of what was due to the other legatees, out of the moneys secured by the bond and mortgage ; or for indemnifying the complainants against their liability to those legatees for the loss which would be sustained by the negligence of such complainants as executors, in case the sale was permitted to stand. A. Gibbs, for the appellants. E. F. Smith, for the respondent. The Chancellor. It is very evident in this -case that if aiiy thing is lost upon the bond and mortgage given to the ex- ecutors, it will have been occasioned by their negligence in em- ploying a man to foreclose the mortgage, in chancery, who was not authorized to practice, and who suffered the premises to be sold under a decree which was a mere nullity, so far a.j the rights of the owner of the equity of redemption were concerned. For under such a foreclosure there is no presumption that the mortgaged premises were sold for their value. Nor were the lega- tees who were adults bound to attend and bid upon the premises, upon a sale under such a decree, for the purpose of preventing a sacrifice of the property. There being no valid foreclosure, the legal effect of the proceeding is the same as if the executorb had assigned this bond and mortgage to Clark for $600 ; when the mortgage was a valid lien upon premises which were worth the whole amount due, including the necessary costs of a propel foreclosure. I do not see any thing, therefore, to protect the executors from personal liability to the legatees in case this sale is permuted to stand. And as Hunting was not an officer of this court, authorized to foreclose the bond and mortgage hevu 'S48,] CASES IN CHANCERY. J51 Wakemaii v. Hazleton. it is move than doubtful whether the complainants could recovei against him for his gross neglect in failing to have the mort- gage properly foreclosed. I think also, from the facts stated m the papers which were before the vice chancellor, that Hazel- ton, and Clark his father-in-law, must have been aware of the legal defects in the foreclosure of the mortgage ; and tha> they intentionally suffered the premises to be struck off to Smith, for a small sum, for the purpose of obtaining the property without paying the amount justly due upon the bond and mort- gage. The complainants, on the other hand, even if they were .iware of the fapt that Clark had not been made a party to the foreclosure suit, could not have understood the legal effect of the proceeding, or they would not have allowed the property to be sold under the decree for less than one third of the amount actually due. I think, therefore, that justice to all parties re- quired that the vice xhancellor should grant relief; where it could have been done without any injury whatever to Clark, the owner of the equity of redemption in the mortgaged prem- ises. The sale, as well as the imperfect decree under which it was made, should have been set aside upon terms ; unless Clark thought proper to pay the balance due upon the decree. The order appealed from must therefore be reversed. And unless Clark thinks proper, within sixty daj's after the entry and service of the decretal order upon this appeal, to pay the complainants the balance due upon the decree, after deducting therefrom the amount which he has already paid to Ruth Smith for her share, with the interest thereon, the master's sale and the decree under which it was made, and all proceedings in the suit subsequent to the taking of the bill as confessed against the defendants, areto be set aside ; upon the complain- ant's refunding to Clark the $600, and the amount paid to Ruth Smith, with interest on those two sums ft-om the times they were paid. And the bill in that case must be amended by ma- king the owner of the equity of redemption a party to the suit. If Clark does not pay the balance due upon the decree withui the time above specified, the complainants are, within sixty days thereafter, to pay the amount of the bid at the master's 152 CASES m CHANCERY. [May 1. Parsons e. Mumford. sale and the money paid to Ruth Smith under the vice cJian- celloi's Older. And if they neglect to pay or to tender il to C\ai-k or to liis solicitor, within the sixty days, their motion is to be denied with costs. Neither party is to have costs as against the other upon this appeal. Parsons vs. Mumford and others. M. being the owner of a fann, in Jannaiy, 1838, moitga^nl the same fo R tu seeare the payment of S6000 and interest. In June thereafter he again mortgaged it to P. the complainant, to secure the payment of $7000 and interest. In Maicb, 1842, he gave to P. an absolute deed of the premi.scs, and at the same time assigned to him his interest in two previous mortgages thereon ; and took back from P. an instrument, not under seal, certifying that he had received such conveyance anJ assignment, and was to sell and dt'^pose of the farm in such lots, tracts, or parcels, and fui such price, and upon such terms, as he might deem expedient ; and was to apply the proceeds of such sales, &c. to the payment of M.'s bond and mortgage lo himself, and to the payment of the prior bond and mortgage to R. ; and pay the surplus, if any, to M. And if it should be necessary or e:ipedient, to fore- close either of the two la.st mentioned mortgages, to perfect the title to the prem- ises, the costs of the foreclosure were to be paid, as part of the necessary ex- penses of the execution of the trust. Subsequently P. filed a bill to foreclose the mortgage given to him by M. and obtained the usual decree for foreclosure and sale, with a decree over against M. for the deficiency, if any. At the master's sale, the premises were bid in by P. for the sum of S200, subject to the prioj mortgage to R. ; leaving a deficiency, due upon the decree, of $9355,59 f for which amount the decree was docketed against M. the mortgagor. P. went into possession of the premises and received the income thereof, kept down the interest upon the prior mortgage, and paid the taxes ; but the income was insufSeient for that purpose. On a bill filed by P., praying that the balance due to him upon his own bond ai 1 mortgage, and the interest which he bad paid upon the prior bond and mortgage beyond the income of the premises might be ascertained ; that the premises might be sold ; that he might be permitted to bid at the sale, for th< protecticn of his rights, &c. ; and might be permitted to enforce his fonwr deert» for the deficiency ; Held that this was a case in which the complamant was en- titled to relief; and a demurrer to the bill was overruled. Utld also, that taking the whole transaction together — the conveyance from JSi. to ' P., and thf written defeasance, arid the subsetjuent pare ha sing in of the premi&i» by 1348,] CASES IN UHANCERY. 15;j Parsons v. Mumford. P., at Ihe master's sale — it must be considered merely as a farther security of the debt due to P., and that the interest of P. in the premises was in the nature of a mortgage merely. Held further, that P.'s interest in the premises was subject to an equity of redemption in M., and was net strictly a trust which could enable F. to convey a good title to a purchaser who was acquainted With the facts of the case. This was an appeal from a decree of the vice cliancellor of the eighth circuit, allowing a demurrer of the defendant W. W. Mumford, and dismissing the complainant's bill as to him. W. W. Mumford, being the owner of a farm in the county of Mon- roe, mortgaged it to Robert Ray, in January, 1838, to secure the payment of S6000 and interest. And in June of the same year, he again mortgaged it to E. M. Parsons, the complainant, to secure the payment of $7000 and interest. On the 22d of March, 1842, Mumford gave to the complainant an absolute deed of the premises ; and at the same time assigned to him his interest in two previous mortgages upon the premises, and took back from him an instrument, not under seal, certifying that he had received such conveyance and assignment from Mumford, to sell and dispose of the farm in such lots, tracts or parcels, and for such price, and upon such terms, as to pay- ment, as Parsons might deem expedient; and to apply the proceeds of such sales, and the moneys to be received upon the assigned bonds and mortgages, to the payment of the bond and mortgage given by Mumford to him, upon the premises, and to the payment of the prior bond and mortgage to Robert Ray ; and to pay the surplus, if any, to Mumford. The instrument given oack to Mumford, by the complainant, also stated that if it should be nece.ssary or expedient to foreclose either of the two last mentioned mortgages, to perfect the title to the prem- ises, the costs of such foreclosure were to be paid, as part of the necessary expenses of the execution of the trust. A few days after the receipt of this conveyance by Parsoud, and the giving of such written instrument by him. he filed a bill to foreclose the mortgage given to him, upon tne premisca, by Mumford, in June, 1838, and making the mortgagor one of the defendants therein ; in which foreclosure suit the usual dccrea Vol. III. 20 154 CASES IN CHANOERY". TVIay 1 Parsons v. Mumford. for the foreclosure and sale of the premises was obtained ; will a decree over agS-inst Mumford for the deficiency in case the premises should not sell for enough to pay the debt and costs. Upon the master's sale, in December, 1842, the premises wei e hid in by the complainant for the sum of $200, subject to the prior mortgage to R. Ray ; leaving a deficiency due to the com- plainant of $8355,59, as reported by the master. And upon the confirmation of the master's report, a decree was docketed against Mumford for that amount. The complainant vcent into possession of the premises and received the income thereof, kept down the interest to Ray, the prior mortgagee, and paid the taxes ; but the income was wholly insufficient for that pur- pose. He had also advertised the premises for sale, and had endeavored to sell the same without success. He thereupon filed his bill in this cause stating these facts, and praying that the balance due to him upon his own bond and mortgage, and the interest which he had paid upon the prior bond and mortgage, beyond the income of the premises, might be ascertained, and that the premises might be sold by a master, under the direction of the court ; and that he might be permitted to bid at the sale, for the protection of his rights, (fee. and be permitted to enforce his former decree for the defi- ciency, for the balance which might be found due. The fol- lowing opinion was delivered by the vice chancellor. F. Whittlesey, V. 0. The complainant, before he com- menced his proceedings to foreclose his mortgage, received a deed of the mortgaged premises from the mortgagor. It would seem that this deed was executed in pursuance of an agreement between the parties, by which the mortgagee was to have power lo sell the premises at his discretion as to quantity, price, and terms of paymeiit, and to apply the proceeds to the payment of the two mortgages. This conveyance gave the complainant, as against the mortgagor, full control and power over the mort- gaged premises, to dispose of the same. The only object of the foreclosure was to perfect the title as against others. And the master's deed onlv added strength to the conn lainant's title, 1846] OASES IN CHANCERY. 15^ Parsons v. Mamford. which was still subordinate to the agreement. The title was in fact acquired by the complainant under an agreement, with the mortgagor, by which, it may be remarked, the complainant received other securities than the mortgaged premises. Under this agreement, the complainant could not sell any of the mort- gaged premises and become himself the purchaser, freed from the operation of the trust. The scope and effect of the agree- ment was that the complainant should not become an absolute purchaser. The whole scope of the present bill is to release the complainant from this operation of the agreement, and en- able him to purchase absolutely for himself, under a decree of sale which he asks to have made. This is, in other words, to ask the court to vary the agreement made by the parties them- selves, and relieve one party from a part of the agreement which is onerous to himself, or deemed to be so ; and this after he had derived certain advantages from the agreement. The complainant has, without any authority of this court, and by virtue of the agreement, the right to sell the premises in such parcels and upon such terms as to price and payment as he thinks proper. Indeed, he can do all under the agreement that the court could by decree authorize him to do, except to become the absolute purchaser himself, at any sale to be made. This he asks, by his bill, to be authorized to do, upon the allegation that after advertising he cannot find purchasers. The court certainly cannot find him purchasers ; and a master's adver- tisement of sale for cash would hardly be so likely to draw pur- chasers at fair prices as the trustee's advertisement of sale upon favorable terms of credit. If the complainant was suffered to purchase, at any such sale, he would still have the property ; his debt would not be paid in cash, and he would have to sell the property to realize his debt in cash. But in such a case,, if he sold it at an advance from his bid, he would be entitled to the increased price himself. This, it would seem, it was the object of the agreement to prevent, and the bill cannot be sus- tained. The demurrer is allowed, and the bill dismissed with costs. 156 CASES IN CHANCERY. [Mt.li 1 Parsons v. Mumford. E. Ch-iffin, for the appellant. The complainant had a right to file his bill in chancery, asking to have the trust property Bold under the direction of this court. {Mitf. PI. 134, 6. 1 Ch. Ca. 249. 1 Sim. <^ Stu. 255.) The complainant, as such trustee, may be permitted to bid, at the sale of the premises, unless the court is satisfied that the cestui que trust will be in- jured. (3 Paige, 179. 2 John. Ch. 261.) W. W. Mumford, for the respondent. The proceedings in the prior foreclosure suit are a bar to this action. The com- plainant has mistaken his remedy, if any he has. He should have presented his petition in the former suit, instead of filirig a new bill. There is no equity in the complainant's bill, be- cause, (1.) The complainant is clearly a trustee. He accepted the trust voluntarily; and cannot be released from the duties and responsibiUties of a trustee without the consent of the cestui que trust. (2.) He has now full and absolute control ovei' the subject matter of this suit ; and can sell and dispose of the property (as he is legally and equitably bound to do) without the interference or aid of this court. (3.) He asks this court to set aside a solemn contract between these parties, which has been already executed on the part of the defendant, and to make a new contract for them, without the assent, and against the interests, of the defendant. (4.) The bill clearly shows an original and Qontinued breach of good faith and of legal obli- gation on the part of the complainant, injurious to the rights, and destructive of the interests of this defendant, in the premi- ses : 1. By causing a decree to be entered for a deficiency, when non constat, thsLt. there would be any deficiency: and 2. In delaying sales of the property, or of some part or portion there- of, whilst he was at the same time wasting the profits and ac- cumulating interest and expenses against it. The Chancellor. I think this was a case in which the complainant was entitled to relief, and that the demurrer should have been overruled. If (he agreemeni of the complain- ant of the 22d of March, 1842, had not showi thai both parties 184S.I CASES IN CHANCERY. 157 Parsons v. Mumford. contemplated a nominal foreclosure of the complainant's mort gage, for the purpose of vesting the title absolutely in Parsons, • to enable him to sell and pay himself and the prior mortgagee, that foreclosure would have been conclusive between the par- ties ; so as to vest the title to the premises absolutely in the complainant, for his own benefit, subject only to the prior mort- gage from Mumford to R. Ray. But when that foreclosure is taken in connection with the agreement, it would be unjust to Mumford to consider all his equity of redemption and interest in the premises as cut off by such foreclosure and sale. And it would be equally unjust and unconscientious, to permit Mumford to consider his debt to the complainant as extin- guished by the sale, so that the complainant could get no pay- ment except what he might obtain by a sale of the premises. It is evident, therefore, that in the situation in which the prem- ises are, they cannot be sold in parcels, as contemplated by the parties; as no prudent man would purchase a part of the farm subject to the payment of the large mortgage thereon to Ray. Taking the who'e transaction together — the conveyance and written defeasance of March, 1842, not under seal, and the sub- sequent purchasing in of the premises at the master's sale — it must be considered merely as a further security of the debt due to the complainant; and that the interest of Parsons in the premises is now in the nature of a mortgage merely. The com- plainant's interest in the premises, therefore, is subject to an equity of redemption, in Mumford, and is not strictly a trust which will enable the complainant to convey a good title to a purchaser acquainted with the facts of the case. The amount justly due to the complainant should be ascer- tained, and a decree of foreclosure and sale of the premises should be made, containing the usual authority to any of the parties in the suit to bid at the sale, &c. The decree of the vice chancellor must therefore be reversed ; and the demurrei must be overruled, with costs. And the respondent must pay those costs, and put in his answer, within twenty days after ser- vice of a copy of the taxed bill of costs, or the complainant's bill in this cause must be taken as confessed as against the respondent 158 CASES IN OHAINUERV, [May 1 NiLsoNand others, appellants, vs. McGiffert, respondent. [Approved, 56 How. 120.] Where one of the subscribing witnesses to a will swears that ai? the formalities re- quired by the statute were complied with, on the execution thereof, the will may be admitted to probate ; notwithstanding the other subscribing witnesses may not be able to recollect the fact. Where the attestation clause of a will states that the will was signed, sealed, and published by the testator, as his last will and testament, in the presence of the attesting witnesses ; who, at Ms request, and in his presence, subscribed their names as witnesses thereto, this, after a considerable lapse of time, and when it may reasonably be supposed that the particular circumstances attending the exe- cution of the will have escaped the recollection of the attesting witnesses, is a circumstance from which the court, or a jury, may infer that these requisites of the statute were complied with. In the execution of wills, the statute does not require any particular form of words to be used by the testator, either in the admission of his signature, in the publica- tion of the instrument as his will, or in the communication to the witnesses of his request or desire that they should subscribe their names to the will as attest- ing witnesses to the fact of its due execution by him. It is sufficient if the for- malities required by the statute are complied with in substance. A declaration by a testator, made five years after the execution of a will by him, and when he was about to execute Elnolher will, that he had been influenced to make a former will in which he had not done justice toliis grandchildren, is not sufficient to authorize the court to reject the probate of the former will, which was duly executed, when the testator was in the possession of his mental facul- ties, and entirely free from restraint. Upon the proving of a will, before the surrogate, he has jurisdiction and power to receive proof that such will was revoked by a subsequent will of the testator; and that such subsequent will has been fraudulently destroyed, or that it was destroyed by the testator when his mind had become so far impaired that he was incompetent to perform a testamentary act. But the chancellor alone has the power to take proof of the will, which was thus destroyed, for the purpose of establishing it as a testamentary disposition of the property of the decedent. In resisting the probate of an instrument propounded as the last will and testamen» of a decedent, his heirs and next of kin ha-'e the right to introduce any testimony which will be sufficient to satisfy the surrogate that the instrument propounded was not in force, as a valid will, at the death of the testator named therein. A subsequent will does not revoke a former one, unless it contains a clause of revo- cation, or is inconsistent with it. And where it is inconsistent with the formel will, in some of its provisions merely, it is only a revocation pro tanto. Where a subsequent will has been made, and there is no evidence thai it containet. any clause revoking a former will, as in cases where the contents of the last will cannot be ascertained, it is not a revocation of the former v iU. 1948. 1 CASES IN CHANCERY. 159 Nelson I). McGiffert. This case came before the chancellor upor an appeal from the decision of the circuit judge of the third circuit, made upon an appeal to him from the sentence and decree of the surrogate of the county of Columbia, establishing an instrument pro- pounded as the last will and testament of James Nelson, de- ceased, as a valid will of the real ?ind personal estate of the decedent. The will was made in July, 1832, when the testa- tor was between seventy and eighty years of age. And it was propounded for probate in October, 1840, a few weeks after the testator's death, by his son-in-law, J. McGiffert, one of the ex- ecutors named therein, and whose wife was the principal legatee and devisee. The instrument propounded contained an attestation clause, stating the execution and publication of the instrument by the testator, as his last will and testament, in the presence of the subscribing witnesses, who, in the presence of the testator, and at his request, and in the presence of each other, subscribed their names thereto as witnesses. It was attested by three witnesses, all of whom were produced, and examined before the surrogate. Upon their direct exami- /lations all the subscribing witnesses testified to the execution (ind publication of the will by the testator, and that he was of sound mind, and that all the witnesses attested the instrument in the presence of the testator and at his request. The first witness, M. Hoyt, upon his cross-examination, stated that the testator and McGiffert, his son-in-law, came to the witness, and when the other subscribing witnesses were present, but he could not distinctly recollect whether the testator or McGiffert, the son-in-law, requested him to witness the will, or whether either of them requested the other two gentlemen to do so. This witness, however, had a vague recollection of being asked by McGiffert to witness the will ; and there seemed to be a per- fect understanding between the testator and McGiffert upon the subject. Voorhees, the next subscribing witness, stated upon his cross-examination, that he could not say positively whether it was the testator or McGiffert who asked him to witness thi instrument, or whether it was either of them ; but he had an impression that it was McGiffert who called him in, as he was 160 CASES IN CHANCERY, [Mah 1, Nelson v. McGiffert. passing the store of Hoyt, and requested him to be present a( the execution of the will. Lyon, the other subscribing witness, said notliing on his cross-examination to weaken the force of his testimony on his direct examination ; but he testified that he and the other subscribing witnesses signed their names as witnesses at the request of the testator, and in his presence. The last mentioned witness further stated that after the will had been executed, witnessed, and published, the testator took It and carried it home with him. The parties opposing the will then introduced evidence for the purpose of showing that the instrument propounded had been revoked by a subsequent will of the testator, made in May, 1837. No such will was found at the death of the testator, or produced before the surrogate ; and the counsel for McGif- fert insisted that the surrogate had no authority to receive evi- dence of the making of a subsequent will, which was not produced ; for the purpose of showing a revocation of the former will. But the surrogate decided that the testimony was prop.sr. General Bogardus, the attorney who drew the will of 1837, then " testified to the due execution of such a will, and that it was witnessed by himself and by another competent witness, who;se name he did not recollect, though he was acquainted with him when he witnessed the will ; and that all the forms required by the law were complied with. The other subscribing wit- ness to the will of 1837 was also called and examined, and he likewise proved the due execution thereof. Neither of the well- nesses, however, stated the provisions of that will, nor whether it contained a clause revoking all former wills. The will of 1837 was enclosed in an envelope by the testator and sealed up ; and was placed in a trunk containing deeds and other papers of the testator, and was delivered by him to J. Tait to be kept for him. And in 1838 the trunk containing the will of 1837, and other papers, was delivered to McGiffert, the son- in-law, upon an order signed by the testator, and upon a receipt given by McGiffert to Tait for the trunk and papers thus de- livered to him. McGiffert then produced in evidence the receipt of the testator, stating that he had received the trunk 1848.1 CASKS IN UllAlNCKRY'. ]6l Nelson V, McGiflert. and papers from McGiffert, with the will and codicil, &.o which had been deposited with Tait. That receipt concluded as follows : " The will and codicil above refened to I have thia day destroyed ; and my intention in so doing is to revive and give effect to my first will, which I made in 1832, and depos^ ited with my son-in-law, Jas. McGiffert, one of the executora therein named. Jas. Nelson." The smTogate decided in favor of the validity of the will of 1832, and allowed it to be recorded as a valid will of real and personal estate ; and the circuit judge affirmed the decision, upon an appeal to him. The parties contesting the will there- upon appealed to the chancellor. II. Ketchum, for the appellants. The writing admitted to proof by the surrogate, as a will, was not sufficiently proved ; be- cause the attesting witnesses did not sign their names at the re- quest of the testator. The testator was under undue influence when he executed the will. The writing admitted to proof, was not the last will and testament of the testator, because a subse- quent will was made ; and there was no legal proof that the last will was destroyed, so as to give effect to the first will. (2 R. iS. 66, § 53. 2 Id. 64, § 54.) H. Hogeboom, for the respondent. The will of 1832 is a legal and valid will, and has been duly proved. The testator's declaration that he had been mfluenced to make a former will is improper evidence ; is indefinite ; does not imply restraint, and is overruled by the other testimony. The will of 1836 did not revoke or cancel the will of 1832. All evidence to show the execution of the will of 1836, without producing it or proving its loss, absence or destruction, was premature and improper at any rate until the introduction of the paper of April 23, 1838. (9 Cowcn, 208. 4 Id. 483.) The evidence as to the will of 1836, admitting its absence to be accounted for, was incom])e- tent and improper ; because it was not shown to have been in existence at the death of the testator, nor fraudulently destroyed in his lifetime. ; nor were its provisions proved by two witnesses Vol. III. 21 162 CASES IN CHANCERY. * [Mav,! Nelson v. McGiiTeit. (2 R. S. 12, i 74.) It is only in such cases that a will can ba proved as a lost or deslloyed will, and then only in the court of chancery. (2 R. S. 12, § 70.) The execution of the will of 1836, in the manner required by the revised statutes, was not fully established. (2 R. S. 7.) The execution of a second will is not of itself, and necessarily, a revocation of a former one. (3 Stark. Ev. 1713. 2 Phil. Ev. 195. Braiit v. Wilson, 8 Cowen, 56.) There is no evi- dence that the will of 1836 contained a clause revoking former wills, or that its provisions were inconsistent with those of the will of 1832. (3 Stark. Ev. 1712. 1 R. L. 365, § 3. 2 R. S. 8, § 42. Id. §§ 47, 48.) If. the will of 1832 was revoked; by the will of 1836, it was subsequently revived and re-estab- lished. The destruction of a will is a revocation thereof. The fact of a revocation may rest in parol as well as in writingi (4 Kent's Com. 532. 2 R. S. 9, § 53.) The Chancellor. The execution of the will of July, 1832, was sufficiently proved, to entitle it to be recorded as a valid will of real and personal estate. It is true, the subscrib- ing witnesses, after the lapse of eight years, did not all recollect whether they attested the execution of the will at the request of the testator, or at the request of McGiffert, the son-in-law, who was present at the same time. And one of them had a vague impression that it was McGiffert that requested them to subscribe the will as witnesses. One of the attesting witnesses, however, swore positively that they all attested the execution of the will at the request of the testator, and in his piesence. And there was nothing drawn from that witness, on his cross- examination, to induce a behef that he entertained any doubt as to the facts which he swore to, on his direct examination. And where one of the subscribing witnesses to a will swears that all the formalities required by the statute were complied with, the will may be admitted to probate, notwithstanding the other subscribing witnesses may not be able to recollect the fact. CJauncey v. Thorn, 2 Barb. Ch. Rep. 41.) Again ; the attestation clause stated that the will was signed, sealed, and CASES IN CHANCERY. 163 I^elson r. McGiffert. published by the testator as his last will and testament, in the presence of the attesting witnesses ; who, at his request, and in his presence,* subscribed their names as witnesses thereto. This, after a considerable lapse of time, and when it may rea- sonably be supposed that the particular circumstances, attend* mg the execution of the will, have escaped the recollection of the attesting witnesses, is a circumstance from which the court or a jury may infer that these requisites of the statute were complied with. In this case, too, all the witnesses testify to facts from winch it may fairly be inferred that they attested the execution of the will in conformity to the wishes of the testator. For he went with his son-in-law to the store of one of the sub- scribing witnesses, with the will already prepared and ready for execution ; apparently for the sole purpose of having it exe- cuted in the presence of such witness, and in the presence of pthers who were acquainted with the testator. And there is na pretence, that the testator was not perfectly competent to make a valid will, and to understand the nature of the act he was about to perform. Not only the witnesses, but the testator himself, must therefore have understood that they were witness- ing the execution of the will,' in conformity to his desire and wish; although he may not have said in terms, "I request you and each of you to subscribe' your names as witnesses to this my wiU." If such a formal request was necessary to be proved, in all cases, and the witnesses were required to recollect the fact, so as to be able to swear to it after any considerable lapse of time, not one will in ten would be adjudged to be valid. In the execution of wills the statute does not require any par- ticular form of words to be used, by the testator, either in the admission of his signature, in the publication of the instrument a.s his will, or in the communication to the witnesses of his re- quest or desire that they should subscribe their names to the will as attesting witnesses to the ^act of its due execution by him. But it is sufficient if the formalities required by the stat- ute are complied witli in substance.(rt) There is nothing in the testimony in this case whicli could (a) See Seguine v. Segjiine, (2 Barb. SiLp. Cmirl Rep. 385. S. P.) 164 CASES IN CHANCERY. [Mav 1 Nelson v. McGiffcrt. justify the court in rejecting the will of 1832, upon the ground *.hat the testator had been induced to execute it by fraud or undue influence. The evidence reUed on to prove that the will was obtained by undue influence, is the testator's declara- tion, made about five years afterwards, and when he was about to execute another will, that he had been influenced to make a former will, in which he had not done justice to his gra:nd- children. Such a declaration is wholly insufficient to author- ize the court to reject the probate of a will duly executed, when the testator was in the possession of bis mental faculties and entirely free from restraint. The only remaining questions are as to the due execution of the subsequent will of 1837, and its effect upon the will of 1832. There is no doubt as to the jurisdiction and power of the surrogate to receive proof that the will of 1832 was revoked by a subsequent will of the testator, and that such subsequent will had been fraudulently destroyed ; or that it was destroyed by the testator when his mind had become so impaired that he was incompetent to perform a testamentary act. The chan- cello^• alone had the power to take proof of such a will for the purpose of establishing it as a testamentary disposition of the property of the decedent. But in resisting the probate of the instrument propounded by McGiffiert as the last will and testa- ment of the decedent, the heirs and next of kin had the right to introduce any testimony which would be sufficient to satisfy the surrogate that the instrument propounded was not in force IS a valid will at the death of the testator named therein. The evidence of the witnesses on the part of the appellants, in this case, fully established the fact of the due execution of a testamentary paper by the decedent in 1837. But the appel lants entirely failed in showing that it was a revocation of the will of July, 1832, or that it was inconsistent with that will, in any respect. Neither of the witnesses says any thing as to the contents of the testamentary paper of 1837 ; or that it contained any clause revoking the will of 1832, or any part thereof. A subsequent will does not revoke a former one, unless it con tains a clause of revocation, or is inconsistent with it. And 1818.] CASES IN CH ANGER V. 165 Nelson o. McGiffert. wlieie it is inconsistent with the former will in some of its pro- visions merely, it is only a revocation pro tanto. [Brant v. Wilson, 8 Cowen's Rep. 56.) Where a subsequent will is made, and there is no proof that it contained any clause revo- king a former will, as in cases where the contents of the last will cannot be ascertained, it is not a revocation of the former will. This was decided by the court of king's bench, in Eng- land, more than one hundred and fifty years since, in the case of Hutchins, lessee of Nosworthy, v. Bassett, [Comb. Rep. 90; 3 Mod. 203, (S. C.) And that decision was subsequently af- firmed, upon a writ of error, in the house of lords. [iSee Hun- gerford and Hill v. Nosworthy, Show. Cases in Pari. 146.) In the subsequent case of Harwood v. Goodright, [Cowp. Rep. 87,) which came before the court of king's bench in 1774, it was held that a former will was not revoked by a subsequent one, the contents of which could not be ascertained ; although it was found by a special verdict that the disposition which the testator made of his property, by the last will, was different from that made by the first will, but in what particulars the jurors could not ascertain. This case was also carried to the house of lords upon a writ of error ; and the judgment of the court of king's bench was aflirmed. As these two decisions, of the court of dernier resort in England were previous to the reV' olution, they conclusively settle the law on the subject here. It is unnecessary, therefore, to examine the question as to the effect of the written declaration, which McGiffert obtained from the testator, stating that he had destroyed the last will for the purpose of reviving and giving effect to the first ; or as to the capacity of the testator to do a testamentary act at the time when tha* written declaration was signed by him. The decision of the circuit judge affirming the decree of the Burrogate, must therefore be affirmed, with costs. |gg CASES IN CHANCERY fMi* «, Rawson, administratrix, &c. vs. Copland. [Disapproved, 13 Hun S14. Limited; 59 jST. Y. 574, S31.] B. bought four lots of land, and gave back mortgages thereon, to the vendor,- for thi purchase money. B. afterwards sold and conveyed two of the lots to C, subject to the payment of one half of the, mortgages, which C. agreed to pay, as part of the purchase money. The latter then conveyed tlie same lots to R., subject to the payment of the same amount ; which R. in the same manner agreed to pay, as a pait of the consideration of his purchase. After R.'s death tne mortgages were foreclosed, the lots were sold, and the, proceeds of the sale being insufficient to pay the demands, there were decrees over against B., the mortgagor, for the deficiency ; which he was compelled to pay to the mortgagee. He then called on C. for the payment of his share of such deficiency, and received from him his bond and mort- gage as security therefor. On a bill; by the administratrix of R., to foreclose a mort- gage given by C toil. ; Held that the amount of the deficiency, was a demand exist- ing against- R. in his lifetime, which C. might set olT against the amount secured by the mortgage to R. which the executors sought to foreclose. To entitle a defendant to an offset, against an executor or administrator, it is not necessary that the defendant's debt should have been actually due, or really liqui- dated, at the death of the testator or intestate. But it is sufficient if it has become due and payable at the time tl^o suit is brought against him by the exequtor or administrator; so that if the decedent had lived, and had brought a suit against the defendant, at that tijne, the demand of the latter would have been a proper subject of ofiset. This was an appeal, by the complainant, from a decree of the assistant vice, chancellor of the first circuit. . Ir» September, 1,835, J. Biennem bought of A. Prince four lots of land in Brook; lyn, and gave back a bond and mortgage upon two of those lota for $1900 ; payable in five years, with semi-annual interest. He also gave back a similar bond and mortgage upon the other two lots for the like sum, and payable at the same time. Benr nem subsequently sold one of the lots embraced in each of thosa mortgages, to the defendant E. Copland, subject to the payment of one half the amount secured by the mortgage thereon; which Copland agreed to pay as part of the purchase money, Copland subsequently conveyed the same lots to E. B. Rawson, subject to the payment of the same amount ; which Rawson, m the same manner, agreed to pay as a part of the considera- tion of his purchase. In January, 1840, Rawson died. And his heirs and his administratrix having nejflected to pay the 1848.] CASES IN CHANCERY Jg? Rawson v. Copland. amount which he had assumed the payment of, the mortgages were foieclosed. The proceeds of the sale being insufficient to pay the demands, there were decrees over against Bennem, the. mortgagor, for the deficiency ; which he was compelled to pay. He therefore called upon the defendant Copland for the pay- ment of his share of such deficiency, and received from him a bond and mortgage as security therefor. The bill in this cause was «ubse<.[uently filed to foreclose a mortgage given, by Cop- land, to Rawson in his lifetime ; and the defendant, by his an- swer, claimed to offset the amount which he had thus been obliged to pay, on account of the debts which Rawson had as- sumed the payment of, against the amount due upon his bond and mortgage to Rawson. The vice chancellor decided in favor of the set-off, and made a decree accordingly. (See 2 Sandf. Ck. Rep. 251, iS. C.) From that decree the complain- ant appealed to the chancellor. E. Paine, for the appellaitt. The set-off claimed is not al- lowable, because the debt we sue for was due to the intestate before his death \ whilst the claim attempted to be set off was not a demand existing against the intestate, and belonging to the defendant at the time of his death. Rawson, the intestate, by buying the land subject to the mortgages given by Bennem, and assuming their payment, became thereby merely an in- demnitor to Copland, who was also liable to pay them, and Copland had no demand against Rawson until he had himself paid the deficiency after it was ascertained by the sale of the laud. And not having paid any thing until Rawson's death, it was not a demand existing or belonging to him at the time of Rawson's death. If there is any claim of set-off it rests on the ground that the defendant has paid the deficiency due on the morf^gage which the intestate was to have paid. But the act set up as payment was not a payment which can beset '^ff. It was not a payment of money, or what is equivalent to money. It was the mere giving "of the defendant's own bond, secured by his own mortgage on property, for aught that appdars, o)f do value. 168 CASES IN CHANCERY. [May 1 Rawson t'. Copland. E. Sandford, for the respondent. The defendant is entitled to set off the amount paid by him for the deficiency on th* foieclosure of the mortgages, the payment of which had been assumed by E. J. Rawson, deceased ; (1.) As part of the pur- chase, money remaining unpaid, foi which, the defendant had conveyed two lots of land to Rawson ; and (2.) As for money paid, laid out and expended for said Rawson, or his estate ; or (3.) For money which it was the duty of the complainant to pay, but which, in consequence of her omission and neglect, the defendant has been legally compelled to pay. The defendant having been at all times ready and willing 'to pay the balance due to the complainant upon a fair account- ing with him, for the money so paid by him, as averred in his answer, this suit was unnecessarily and improperly commenced. A lid the payment of costs in this court, being a matter to be directed by the court, in the exercise of its discretion, upon equitable principles, the defendant should not only be excused from the payment of the complainant's costs, but should recover his costs of the complainant, to be deducted from the amount to be found due on the bond and mortgage mentioned in the bill of complaint. The Chancellor. The decision of the assistant vice chancellor was unquestionably correct. The revised statutes provide that in suits brought by executore and administrators, demands existing against their testators or intestates, and be- ' mging to the defendant at the time of their deaths, may be set off, by the defendant, in the same manner as if the action had been brought by, and in the name of, the deceased. (2 R. S. 355, §§ 23, 37, of 2d ed.) To entitle the defendant to an offset against the executor or administrator, it is not neces- saiy that the defendant's debt should have been actually due. or really liquidatad, at the death of the testator or intestate. But it is-sufficient if it has become due and payable at the time the iuit is brought against him by the executor or administra- tor; so that if the decedent had lived, and had brought a suit agauist the defendant, at that time, the demand of the defen 1848.1 CASES IN CHA/NCERr Jgg Graham c. Dickinson. dant would have been a proper subject of offset, ^nd in this case, if Rawson, the intestate, had been Hving, and had filec' this bill in his own name, to obtain satisfaction of the bond and mortgage due to him from the defendant, it is evident that the latter would have had the right to the set-off claimed in tills case. It is true, the decedent was not bound to pay the principal of the debts, which he assumed the payment of, before they became due and payable by the terms of the bonds and mort- gages to A. Prince. But the contract of the decedent with this defendant was broken when the heirs and personal represen- tatives neglected to pay the bonds and mortgages at the time they became due, in September, 1840. And the defendant hav- ing paid the amount to Bennem, or secured it by his boiid and mortgage, which is the same thing in substance, the defendant's right of offset was complete at the time of the filing of ti.e bill in this cause. The assistant vice chancellor has fully exam- ined the several cases which have a bearing upon this question, and has taken the right view of them. It is not necessary, therefore, that I should examine them particularly. It is suffi- cient to say that the law corresponds with the manifest equity and justice of the case, as it appears from the pleadings and proofs. The decree appealed from must, therefore, lo affii'med, with 'osts. Graham, administrator, &c. vs. Dickinsoj and others. Where a testator charged his personal estate with the payment of his debts, but it being insufficient for that purpose, his executors applied to the surrogate for, and oh'mfied, an order for the sale of his real estate in the possession of his devisees, iriiicn was scld accordingly, and the proceeds applied to the payment of the debli of the testator ; and subsequently the commissioners under the treaty 'vilh Franc* awarded to the executors a sum of money, upon a claim which their testator hail Vol. III. 22 170 CASES IN CHANCERY. [May I Graham t). Dickinson. against the French government at the time of his death : which fund tliey receim) for the benefit of the estate ; Held that the sum of money thus received upon the French claim was in equity to be considered a substitute for the real estate , sold for the payment of debts primarily chargeable upon the testator's personal property, and that it belonged to those who were the devisees, or the owners, of the land thus sold, at the time of the sale. v> tleld also, that such devisees, or owners, were exclusively entitled to the spes recur perandi, or the hope of obtaining satisfaction from the French government, for the claim against it, the moment their property was sold under the order of the surro- gate. That they were entitled to the proceeds of that claim, not as real estate,' but as a fund to which they had an equitable right to resort, to remunerate them for the loss of their lands. Where the real estate of a married woman has been converted into personalty by operation of law, during her lifetime, it will be disposed of by the court, after her death, in the same manner as if she had herself converted it into personal property, previous to her death. As between heirs and devisees, by the common laWj lands undisposed of by the will are first to be applied to the payment of the debts of the testator; where the personal estate is not sufficient for that purpose. The case of Flanagan v. Flanagan, (1 Bro. C. C. 500,) commented upon, and over- ruled. This case came before the chancellor upon an appeal from a decree of the assistant vice chancellor of the first circuit, upon the following state of facts. Isaac Clason died in March 1815, seised of real estate in the county of Westchester and in the state of New Jersey, and of a large real estate in the cjty of New- York. By his will he gave to his daughter Eliza Cooper a demand which stood charged against her upon his books, and an annuity of $1000, charged upon his real estate so long as she was separated from her then husband ; in full satisfaction of all further provision out of his estate. And he declared that neither she nor any of her children by her then husband should be considered as the legal representatives of any of his other children, or inherit any portion of his estate as their heirs. He then devised his real estate in Westchester to his three sons, with the right of survivorship between them if either should die without issue before the time appointed by him for the di- vision of that property between thein. His real estate in the city of New- York he devised to his three sons, William J., Isaac S. and Augustus W., and to his other four daughters, Catharine 1848.J CASES IN CHANCERY. 17 Graham v. Dickinson. Ann, Cornelia, Julia Ann, and Emily, in fee ; but not to be divided until 1820, and the lenls and profits in the meantime to be equally divided between them and the representatives of those who should die previous to 1820. The.residue of his per- gonal property he gave to his three sons, charged with the pay- ment of legacies of $3570 to each of his four last mentioned daughters, upon their respective marriages. The real estate of the testator in the state of New Jersey was not disposed of by the will of the testator. Catharine Ann Clason, one of the daughters of the testator, afterwards in termarried with John H. Graham, the complainant ; but whether before or after the sale of a portion of the testator'? real estate in the city of New- York, under the orders of the surrogate, as hereafter mentioned, did not appear by the plead- ings or proofs in this cause. At the time of the death of the testator he had a claim against the French government, for vessels captured and condemned by the authority of that gov- ernment ; the payment of which claim, or a part thereof, was afterwards provided for by the treaty with France. But at the death of the testator this claim was considered of no value, and the executors being ignorant of its existence, it was not inven- toried ; nor was it taken into consideration by the surrogate in making the orders for the sale of real estate to pay the debts of the testator. The personal estate of the testator being insuffi- cient to pay his debts, his executors applied for and obtained an order for the sale of the real estate in New Jersey ; and the proceeds of that sale were applied to the payment of such debts. But that being insufficient, they applied to the surrogate of New- York, in February, 1816, and obtained an order for the sale of a part of the real estate of the testator in that city ; and in Jan. 1817, they obtained a further order for the sale of other portions of the real estate in the city of New- York. Under the two last mentioned orders a large amount of the real estate was sold by the executors ; and the proceeds of the sales, so far as was necessary, were applied to the payment of tlie debts. The residue was equally divided among the devisees of the lands sold ; after deducting from the shares of the three sons of 172 CASES IN CHANCERY^. [May I Giaham v. Dickinson. the testator so much as the executors supposed they ought ta contribute towards the payment of the debts, in reference to the value of the lands in Westchester county devised to the three sons exclusively. Catharine Ann Clason, the wife of the complainant, died in May, 1831, without having had any issue ; and her surviving husband afterwards took out letters of administration upon her estate. The commissioners under the French treaty subse quently awarded to the executors of Isaac Clason a large amount, for the claim which their testator had against the "r'rench government at the time of his death, and they received thereupon between sixteen and seventeen thousand dollars for the benefit of his estate. The complainant claimed one-seventh of the fund, recovered by the executors under the French treaty, as the personal representative of his wife, upon the ground that it was in equity a substitute for a part of the real estate, in the city of New- York, which had been sold for the payment of debts primarily chargeable upon the testator's personal estate. The executors resisted this claim, upon the ground that the fund was to be considered as real estate at the time of the death of the complainant's wife ; and that it belonged tc her heirs at law, and not to her personal representative. The complainant thereupon filed his bill in this cause against the surviving executors of Isaac Clason, and against his devisees who stfll survived, and against the heirs and repre- sentatives of those who were dead, to recover his share of the fund in conti'oversy. The assistant vice chancelloi" decided that the complainant was entitled to one-seventh of the net proceeds of the fund received by the executors under the French treaty. And he made a decree for an account; and for the payment of that share of the fund to him by the surviving executors, upon the coining in and confirmation of the master's report. The fo .lowing opinion was dehvered by him. M. Hoffman, A. V. C. In September, 1810, Isaac Clason made his last will and testament, giving one-seventh of his ISiS.] CASES IN CHANCERY. 173 Graham v. Dickinson. real estate in the city of New- York to Cathariae, tlie late wife of the complainant. In December, 1815, an application was made to the surrogate for an order for the sale of certain real estate of the testator, upon the alleged deficiency of the per- sonalty; The order was granted, and real estate to the amount of over $60,000 was sold, and applied in payment of debts. On the 24th of May, 1831, the wife of the complainant, one of the children and devisees of Isaac Clason, died without leaving issue. On the 4th of July, 1831, the French treaty was made, and under it the defendants, the executors of Clason, have received at different times about $16,000. The question is between the complainant, as administrator of his wife, a daughter and devisee of Isaac Clason, and the heirs at law of such daughter, as to the right to this sura, or part of it. As favor- able a light for the heirs at law as any in which the case can be presented is this, that the real estate had been to a great extent unnecessarily sold under a judicial sentence, and that there was a surplus. Or to put the case closer to the actual facts, suppose after the sale, and deeds delivered, but before distribu- tion among the creditors, assets had unexpectedly come in from personal property, and to the amount in question. The cred- itors then would be paid out of personal estate. What becomes of the surplus proceeds? No doubt the devisee of the real estate, the wife of the complainant, ■yvould take. It is in effect a charge by the law upon real estate ; precisely as a charge by the will of a testator, for payment of debts, with directions to sell. In such a case, undeniably, the surplus would go to the heir as against a mere general residuary legatee. (Robinson V. Taylor, 2 Bro. C: 589. Halliday v. Hudson, 3 Ves. 310.) So when a mortgage deed contains a power of sale, the surpUw money to be paid to the mortgagor, his executors and admin- istrators, if the sale takes place in the lifetime of the mortgagor, ihe surplus is personal'estate ; but if after his death, the equity of redemption descending to the heir, he takes the surplus. ( Wright V. Rose, 2 Sim. ^ Stw- 323. Moses v. Murgatroyd, 1 John. Ch. Rep. 130.) The wife of the complamant plainly, therefore, in> the case supposed would have taken tlie si'rpluB 174 CASES IN CHANCERY. [May I Graham v. Dickinson, proceeds of the real estate in her capacity of devisee. But she would have taken such surplus as money, not as land. And the devolution from her would be altered accordingly. {Dixon V. Dawson, 2 Sim. ^ Stu. 327. Smith v. Claxton, 4 Mad. Rep. 484.) " I adhere," says Sir John Leach, " to the principle which I stated in the case of Smith v. Cla.Tton, that where the land is properly sold by trustees, and there is only a partial distribution of the produce of sale, there the surplus belongs to the heir as money, not as land." The testator devised real estate in trust to sell, and out of the proceeds to pay various charges and legacies. The sale was made in the lifetime of her heir at law, and there was a surplus. He was held entitled, as against a residuary legatee. But he died before the trusts of the will were completed. And the surplus was held to have vested in him as money, and to belong to his personal repre- sentative. The case of Flanagan v. Flanagan, before Lord Camden, {Leigh S^ Dalzcll, 164, 1 Bro. C. Rep. 500,) goes upon a similar principle. The surplus proceeds were decreed to go, and of course must have gone, to the devisees of the real estate. But although they would have the character of realty, so as to let in all his real charges, such as judgments, yet it so vested in him as upon his death to go to his personal represen- tatives. And this distinction meets and reconciles the case of Banks v. Scott, (5 Mad. Rep. 493,) so much relied upon. The avails of the estates sold after the bankrupt's death, went to his heir at law, being unnecessarily sold, as it turned out. The decision was, placed upon the ground that the property descended, subject to the charge of the bankrupt laws. Tl\e heir was living. The question would have been very different if that heir had been dead, and the contest had arisen between his heirs and personal representatives. Then the cases I have referred to would have applied. The complainant is entitled to his share of the fund. John Anthon, for the appellants. In all cases the intention of the testator must be lespected, and technical rules of tha court of equity cannot be allowed to control it. It was clearlj 1848.1 CASES IN CHANCERY. J 75 Graham v. Dickinson. the intention of the testator, in this case, that his real estate should remain in his own faniih', and descend, accoi-ding ic law, in his own line ; in the event of intestacy in any of his children to whom he devised it The wife of the complainant having died intestate, and there being no issue of the marriage, her portion of the real estate descended to her heirs at law, free from all claim on the part of the complainant, and such waa the intention of the testator. The personal estate was charged with the payment of the testatoi-'s debts, and was suflBcient for that purpose. The lands were only temporarily resorted to until the proper fund was realized. The proper fund for pay- ment of debts, under the will, having now come into the hands of the executors, it must be treated in equity as having always been in their hands ; and thus the intentions of the testator in his will can be carried out. The real estate having been un- necessarily converted into personalty, or temporarily only, when the necessity ceased and the proper fund came into the hands of the executoi-s, they held that fund as real estate, in trust for the devisee and her heirs. If the fund in question is to be deemed fiom the time of the sale, part of the personal estate of the testator, then it goes, under the will, to the residuary legatee. The conversion here, was the result of a mistake in fact ; and this cannot, on any principle of equity, be allowed to change the rights of the heir. And in this particular the case under consideration differs from all the cfises cited ; in which the conversion was the result of hostile decrees, or judgments, unimpeached. Under all these circumstances, this fund represents real estate under the will, and is real estate in equit}^ ; and must descend to the heirs at law of the devisee. To allow the husband of the devisee to lake it, in preference to her heire. would be a clear and palpable violation of the testator's intention, and of the plain rights of the beirs at law. If this sum is not the entire sum for which the real estate of Mrs. Gcahaoi was sold, but a surplus after payment of the debts, it stands upon grounds equally conclu- sive. The pui-poses of the conversion being answered, the surplus IS real estate, and goes to the heir. Such would have J 76 CASES IN CHANCERY. [MayI, Graham v. Dickinson. been the rule of equity, had the testator directed the sale; a fortiori it, must be so when the occurrence of unforeseen cir- cumstances has so far affected the will of the testator. On every ground therefore the fund in question belongs to the heirs. H. P. Edwards ^* Geo. Wood, for the respondent. The real estate in the city of New- York, though liable to the pay- ment of the testator's debts, under the will, was not made the primary fund for that purpose. The real estate having been taken and applied to the payment of such debts, the devisees thereof are entitled to claim the personal estate since recovered, and a portion of which is claimed in this suit, in exoneration of the real estate thus disposed of, and applied to the payment of the said debts. In this construction of the law as applicable to this branch of the case, all parties agree ; and, in pursuance of this construction, the executors have distributed the money received by them under the French treaty amongst the devi sees, with two exceptions. That the devisees of the real estate sold to pay debts, are entitled to the money, is not disputed j and the only question is, whether on the death of Catharine Ann Graham, one of the devisees, before the distribution of the money by the executors, the same goes to her heirs at law, or to her personal representatives. The property claimed in this suit being personal estate, and claimed as such in equity, the complainant, on the death of his wife, is entitled to it as her administrator. If this personal estate were even to be consid- ered in the light of the proceeds of the real estate, sold under the order of the court for the payment of debts, the conversion into personalty being made by the court, in a course of law, without fraud, the proceeds would be considered as personal estate, and as such pass to the personal representative. The rule is universal, that when real estate has been converted into money, either in pursuance of a power contained in the will of the testator, or under the 6rder of a court having authority lo make such order, and where there is no fraud, such proceeds of real estate are considered in equity as personal estate, and follow the order of distribution of personal estate. This is 1848.1 CASES IN CHANCERY. 477 Graham v, Dickinson. abundantly sustained by authority. In Smith v. Claxton, (l Mad. Ch. Rep. 484,) the principle is laid down as applicable to wills ; and in that case it was decided that where real estate is directed to be sold, and the proceeds divided between A. & B., and A. dies in the hfetime of the deviscfr, the heir is substituted in his place, and takes the share of A. But he takes it as mo- ney, and not as land. In Dixon v. Dawsan, (2 Sim. Sf Stew. 327, 339,) the same principle is established ; and it was decided that the freehold estate having been properly sold under the directions of the will, in the heir's lifetime, the heir at law was entitled to the surplus ; but that such surplus, being money, it was part of his personal estate, and the heir being dead it be- longed to his personal representatives. Banks et.al. v. Scott, (5 Mad. 500,) was a case of the sale of real estate under pro- eeediugs against a bankrupt. There was a surplus of the pro- ceeds of the real estate of the bankrupt, after the payment of all his debts. It was decided that the surplus of the proceeds of the real estate sold, oi; contracted to be sold, in the lifetime of the bankrupt, must, at his death, be considered as converted into personalty, and would go to his personal representatives. But that proceeds of real estate sold after his death would go to his heir at law. And that it made no difference, in principle, whether such conversion of the real estate was made in pursu- ance of the provisions of the law, or the provisions of the party. This case was relied upon by the defendants' counsel, in tlie argument before the vice chancellor, to show that the money, received by the executors of Isaac Clason, should go to the heirs at law of Catharine Ann Graham. Instead of sustaining the position taken by the defendants' counsel, it proves directly the reverse ; for it estabhshes the general proposition that when real estate has been converted intoOTow^y, in due course of law, such money is not considered as real estate but personal estate; and upon this principle that portion of the bankrupt's real estate which was sold in his hfetime, went to his next of kin. For as to the part which was sold after the bankrupt's death, al- though the surplus went to his heir at law, still it went to hiin as monej'; and if the heir at law had died before it came intc Vol.. TIL 23 178 CASES IN CHANCERTt. FMay 1, Graham v. Dickinson. nis possession, it would have gone to his next of kin, and not to his heir at law ; which is the very principle we contend for in this case. [See Dixon v. Dawson, 2 Sim. ^ Stu. 339 ) But the case of Flanagan v. Flanagan, cited in Leigh ^ Dalzel on Equitable Conversion, 164, 5, (5 Law Lib. 82, 83.) is a case precisely analogous to the present, and sustains every principle for which we contend. In that case, a decree was made for the sale of the real estate, to supply the deficiency of the personal estate for the payment of debts. A sale was made in pursuance of such decree, and although there was a surplus, the court decided that the sale could not be considered as im- properly made, there being no fraud, and that such surplus was money^ and as such should go to the personal representative of the devisee of the real estate thus sold ; such devisee having died after the sale of the. real estate ; and that the heir at law of such devisee had no I'ight to receive any portion of such sur- plus. The personal estate in question is claimed by the owners of the proceeds of the real estate, sold and converted as afore:- said, on the ground that it ought to be substituted in the place of such proceeds. And as appears from the cases cited, the pro- ceeds are in equity deemed, as they are in fact, personal estate. But the defendant's counsel says, in his argument, that " this case differs from all the cases cited, and that in those cases the conversion was the result of hostile decrees, or judgments, unim- peached." That is a mistake ; for the conversion in this case was made in pursuance of a decree of the surrogate of the county of New- York, which has been acquiesced in by all par- ties; and, as an evidence of such acquiesence, the executors of Isaac Clason have paid over the moneys received by them from the French government to five of the devisees of the real estate sold as aforesaid, amongst which said devisees was the wife of one of the defendants, John F. Delaplaine. The defendants' counsel says that to allow the complainant in this suit to re- ceive the share of Catharine Ann Graham in pre'ierence to hei heirs, would be a clear and palpable violation ol the testator's intention, and of the plain rights of the heirs at law. The cases abov^ cited show that it would not be a violation of the 1S4S.1 CASES IN CHANCERY. 179 Graham v. Dickinson. rights of the heirs at law. It would not be in violation of the intention of the testator ; for the devise of the real estate is ab- solute, and without any condition or limitation. Of course, then, it was the intention of the testator that in case one of the devisees should die, the share of such devisee should go to the person whom the law pointed out as his or her legal represen- tative; which in this case is the administrator of the deceased devisee. If the testator had any such intention as the counsel assumes that he had, it is not declared in his will. There is a provision in the will of Isaac Clason that no division shall be mide of the real estate until 1820, " and if any of my children shall die before such division of my said real estate shall be made, the legal representatives of those who shall die, shall be entitled to such portion," &c. The only intention, then, which the testator has expressed in his will applies to the decease of one of the devisees before 1820. He expresses no intention in case of the decease of any of the devisees after 1820. And, even in case of the death of one of the devisees before 1820, the only expression of the testator's intention is, that the share of such devisee shall go to his legal representatives; which is all we contend for in this case. J. Anthon, in reply. So far as authority is concerned, there is no case in point against us. The cases cited by the counsel for the respondents travel around the question. But no chan- cellor has yet undertaken to meet this precise case in the teeth, and to declare, that an accidental occurrence, like the one in this case, shall in effect, by the application of arbitrary genpral rules, make a will for a testator obviously different from his expressed intentions. The case of Flanagan v. Flanagan is the only one in the books which really approaches this case ; and that wants the peculiar feature which distinguishes the present from all the reported cases. Its effect was not to take the real estate of the wife out of the course of its strict legal descent and give it to the husband, out of the testator's line and against the manifest intention expressed in his will. All the other cases cited are more or less applications of the lule of conversion 180 CASES IN CHANCERY. [Miiirl Graham v. Dickinson. consistently, according to legal inference, with the testators in- tention, but certainly never against it. Flanagan v. Plana- , gan is then, in tiuth, the only case on which the respondent can hang his hopes ; and this, as I have already observed, ia by no means parallel. It is a case also of questionable author- ity, even so far as it goes. It is nowhere reported at length. The counsel for the respondent appear to have the insuperable difficulty cast in their way, by the testator's intention declared ill his will, in direct opposition to the rule he seeks to establish; and hence, after referring to insufficiertt cases, they look to the will and endeavor to show that it is not inconsistent with the testator's views that the property in question should go to alien families. Now on this head the court will perceive that the will is a very severe one, deahng out a modicum to one of his own blood, Mrs. Cooper, who had offended him by her mar- riage, and in effect disinheriting her issue, and then parceling out to each of his children with great strictness his or her par- ticular share. There is no overflowing of affection for the hu- man race, and no intention that his labors shall go to enrich persons of whose very existence he was ignorant. The coun- sel for the respondent, on this branch of the case, rely on a particular section of the will as manifesting either an indiffer- ence on this point, on the part of the testator, or a willingness and intention that the property devised should pass to legal representatives in a different sense from heirs. In both, I think they are quite unfortunate. In the clause thus referred to there is f marked distinction in the language, strongly evi- dencing toe testator's intention to keep the lands devised in his own line : thus, " All my real estate in the city and county of New- York, I give and devise to my daughter Cornelia, &c. and to their heirs and assigns forever, to be equally divided, (fcc, but no division shall be made &c. until 1820." Until such division, the will provides "that the rents and profits shall be equally divided ;" and then follows the clause on w hich the respondent relies ; " and if any of my said children shall die before such division is made, the legal representatives of those "vho shall die, shall be entitled Cnot to the share of the dece ISIS.] CASES IN CHANCERS. [yj Qraham v. Dickinson. dent in the lands, but) to such portion of the said rents, issues and profits as the person they shall represent woufld have been entitled to if living." If this clause announces any thing in relation to the testator's intention, it clearly announces this : that he intended that the lands should always descend to the heirs at law of the devisees, but that the rents and profits might, in the event of the death of the devisee, go to the ex- ecutor of such devisee, while the lands descended to the heirs. I think the force of this position, drawn from the will, was be- fore the mind of my learned opponent, while framing this part of his argument. I cannot otherwise account for his careful omission of the words rents, issues and profits, after the word portio7i ; words which so decidedly limit its meaning. In con- clusion, all that the appellants insist upon in this case, is that the will of the testator be observed, and that such will be not defeated by any perverted application of arbitrary rules, adopted by the court of chancery for a very diflferent purpose, viz. to reach the intent and not to defeat it. The Chancellor. There can be no doubt that the fund in controversy, in equity, must be considered as a substitute for the land in the city of New- York ; and that it belongs to those to whom the land was devised, or to those who now represent their rights, exclusively. It is suggested in some of the answers that the real estate in New- Jersey, which was not disposed of by the will of the testator, was also sold for the payment of the debts ; that such land descended to all the children of the de- cedent, and that by the laws of New- Jersey which were then in force, the sons took by descent, from their father, shares which , were twice as large as those of the daughters ; and that they, or their representatives, are entitled to a part of the fund in con- troversy, on account of the sale of those lands. The answer to that claim is that the value of the lands which were sold in New- York, far exceeded the amount recovered under the French treaty ; and that, by the common law, as between heirs and devisees, the land which is undisposed of by the will of the tes- tator is primarily liaWe for the •.^f'ymcnt of the debts of the de lj^2 CASES IN CHANCER V. [May » Graham v. Dickinson. cedent, and must first be resorted to for that purpose. Here. the whole personal estate of the testator, including the amount subsequently recovered under the French treaty, and the pro- ceeds of the whole real estate undisposed of by the will, were insufficient to pay the debts of the testator. The devisees of the real estate, in the city of New- York, which was sold to pay debts, exclusively were entitled to the spes recuperandi, or hape of obtaining satisfaction from the French government, for the testator's vessels which had been illegally captured and con- demned. For if this fund had been received and applied to the payment of the debts, immediately after the death of the 'testa- tor, the real estate in New Jersey, not disposed of by the will, must still have been sold for the same purpose. Not so, however, as to a portion of the real estate in the city of New- York, which was devised to seven of the testator's children in equal propor- tions. For if the part of the personal estate which then con- sisted in the mere hope of obtaining an indemnity from the French government, could have been realized at Ihat time, a part of the real estate in the city of New- York, which was sub- sequently sold under the surrogate's order, would have been saved to the devisees. This brings me to the main question in controversy in this cause. Was the hope or chance of obtain- ing remuneration from the French government, to which the devisees of the city property were equitably entitled the moment their property was sold under the surrogate's order, real or per- sonal estate, before the money was actually received by the executors, unde>' the treaty ? \\ either of the devisees had died before the actual sale of the property under the surrogate's order, even after the order for sale had been made, that land would have descended to the heirs at law of the decedent. And upon a sale of such land they would have been subrogated to the rights of the creditors, as to this French claim, which was a part of the personal estate of Isaac Clason. For in that case the real estate of the heirs of the original devisee, and hot the real estate of such devisee, would have been sold for the payment of the debt which was chargeable primarily upon the personal estate of the devisOT ; 1S4S.J CASES IN CHANCERY. jg^ Graham v. Dickinson. and ihe heirs of the devisee would of course be subrogated to the rights of the creditors as to the personal estate, which was primarily liable. So, if a judgment debtor should die leav- ing personal property sufficient to pay his debts, and the sher- KF, having advertised the real estate of the decedent for sale previous to his death, should afterwards proceed and sell the same, afterit had become the real estate of the heirs at law, the heirs would be entitled to be subrogated to the rights of the judgment creditor, as against the personal estate which was primarily liable for the payment of such judgment. This be- ing so, the decision of Lord Camden, in Flanagan v. Flana- gan, referred to by the counsel of the appellants and by the assistant vice chancellor, was clearly wrong ; if the facts of that case are correctly stated by Sir Thomas Sewell in Fletch- er V. Ashburner, (1 Bro. C. C. 500.) For, from that statement it appears that the land whicli was sold under the decree by mistake, was not sold until after the legal title had been cast upon the grandson, as heir ; the grandfather, to whom that half of the estate belonged, having died subsequent to the de- cree, but before the sale. It was the property of the grandson, therefore, which was erroneously sold in that case. Conse- quently he was not only equitably but legally entitled to the proceeds of the erroneous sale. [Smith v. Kearney, 2 Barb. Ch. Rep. 551.) And the same should not have been decreed to the personal representatives of the grandfather, as they properly would have been had the land been actually converted into personal estate by a sale previous to his death. ~In the case under consideration, the real estate had actually been converted into personalty, by the sale, fourteen years be fore the death of JArs. Graham ; although the substituted fun\l was not really received by the executors until some time aftei her death. The moment the land was sold, the devisees be- came entitled to tlie proceeds of the French claim ; not as real estate, but as a personal fund to which they had an equitable right to resort to remunerate thein for the loss of the 'and. The right of Mrs. Graham to one-seventh of the French claim was an interest in personal estate whicii she had at the time of 134 CASES IN CHANCERY. [Mat 1 Fieice v. AIsop. her death. And her real and her personal representatives be- ing' equally volunteers, there is nothing to take this case out of the general rule that they must take their estate of the intes- tate as they find it. It is true, if the real estate of the devisee had not been>sold under the order of the surrogate, and she had continued to ow^n it until the time of her death, it would have descended to her heirs at law, and her husband would have been excluded. But there is no legal presumption that a feme covert who is the owner of real estate will not join with her husband in sell- ing it, for the puipose of converting it into personalty. And the real estate in this case having been converted into person- alty, by operation of law, during her lifetime, it must now be disposed of in the same manner as if she had herself converted it into personal property. The cases referred to in the opinion of the assistant vice chancellor fully sustain his decision in this case ; and 1 do not see how he could have come to a different conclusion without disturbing principles which have been long settled. The de- cree appealed from must therefore be affirmed, with costs. Pierce vs. Alsop. Where, subsequent to the death of a person vfho died intestate,, without leaving sufficient personal estate to pay his debts, his heir at law conveyed to a creditor of the decedent a portion of the real estate which descended to him as heir at law, in part payment of the debt owijng to the grantee by the decedent ; Held thai such conveyance was not entitled, even in equity, to a preference over the legal lien of a judgment previously obtained by another person, against the heir at law ; it not appearing that there was no other real estate to pay the debts t>f the testa- tor, after applying the personal property for that purpose. To entitle a creditor of a deceased debtoj to a legal preference over a judgment cred- itor of the heir at law of the debtor, he must himself proceed to a judgment, ol decree, against the heir at law, for the debt due from the latter, in respect to th« lands descended from the deceased debtor. Or he must .-ipiJy to tl'.c surrogate, 1848.J 'CASES IN ClIAJNcdlRV. jys Pierce v. Alsop. for a sale of the land, to satisfy the debts of the decedent wluch tfie personal calaU is insufficient to pay. A person has no right to apply to the court to set aside an execution for irregularity, so far as it affects his rights, in a suit to which he is not a party. The issuing of an execution, after the lapse of two years, without reviving the judg- ment by scire facias, where all the parties to the judgment are alive, is an irregu- larity merely ; and does not render a sale under it void. This was an appeal from a decree of the late vice chancellor of the third circuit, allowing a demurrer, and dismissing the bill of the complainant, with costs. Gilbert Devoe died in Septem- ber, 1834, intestate, leaving his father C. Devoe his heir at law ; to whom all the real estate of the decedent descended, subject to the payment of his debts. The decedent was indebted to C. & I. T. Storms more than $20,000, they being his principal creditors ; and his personal property was wholly insufficient to pay his debts. In January, 1837, the defendant J. W. Alsop jr. recovered a judgment against C. Devoe and J. H. Devoe, for a debt due from them personally; which judgment was duly docketed, and became a lien upon the real estate which came to C. Devoe as the heir at law of his son G. Devoe, deceased. In March, 1839, 0. Devoe, the heir at law, for the purpose of satisfj'ing a part of the debt due to G. & I. T. Storms, from his deceased son, conveyed to C. Storms a lot of land in the city of Albany, which had descended to him as such heir at law. The portion of the debt for which this lot was received in payment was $11,000; which was more than the actual value of the lot at the time of such conveyance. And at the time when the lot was thus received in part payment of the debt due from G. Devoe, deceased, to C. & J. T. Storms, they were ignorant of the existence of the previous judgment recov- ered against C. Devoe, the heir at law, and J. H. Devoe, in favor of Alsop. In February, 1842, C. Storms conveyed the Albany lot which had been deeded to him by the heir at law of his deceased debtor, to the complainant H. Pierce. In November, 1842, Alsop caused an execution to be issued upon his judgment against C. Devoe and J. H. Devoe ; undei which execution the sheriff levied upon the Albany lot, and in the month of February, 1843, sold it at public vendue, to satisfy Vol. III. 24 1S6 CASES IN CHANCExiV. [M/v 1, Pierce v. Alsop. the amount due upon tlie judgment. The c( mplainant's at- torney attended at the sheriff's sale, and gave notice to the bidders of his claim to the lot, and the circumstances before stated, which he insisted would be sufficient to defeat the title of the purchaser at the sheriff's sale. The defendant, however, by his agent, bid off the premises at the sheriff's sale, under his judgment and execution, and received the usual certificate therefor. But the sheriff had not executed a deed of the prem- ises at the time of the filing of the bill in this cause ; although tne time of redemption had expired a few days before. The complainant's bill, after stating these facts, and that the defendant refused to relinquish his claim under the sale, and that he intended to take a deed from the sheriff which would be a cloud upon the complainant's title, prayed for a decree de- claring that the judgment of Alsop was not a lien upon the land, as against the complainant's title under the conveyances mentioned in the bill, and that the complainant's title was perfect ; and that the defendant Alsop might be perpetually enjoined from taking a deed from the sheriff, or from com- mencing any ejectment suit' for the recovery of the premises, or from disturbing the complainant in the peaceable enjoyment thereof To this bill the defendant put in a general demurrer for want of equity ; which demurrer was allowed by the vice chancellor, and the bill dismissed. The following opinion was delivered by the vice chancellor. A. J. Pakker, V. 0. By the death of Gilbert Devoe, on the 6th of Sept. 1834, the premises in controversy became the prop- erty of Christopher Devoe, his father, and heir at law. His title to the land was absolute, subject only to be defeated by proceedmgs that mighj, be instituted by the personal represen- tatives or creditors of Gilbert Devoe, to charge upon it the payment of his debts, if his personal property should prove in- sufficient for that purpose. This could be done within three years after the granting of letters testamentary or of adminis- tration ; on application to the surrogate by the personal repre- sentatives, to sell the real estate for the payment of the debts 1848"' CASES IN CHAKCERY. ]87 Pierce v. Alsop. of the deceased. (2 R. S. 2d ed. p. 39, § 1.) Or on the appli- cation of a creditor, after the rendering of an account by an executor or administrator. [Sess. Laws of 1838, /;. 536, § 72.) And it was provided by the revised statutes that if such appU cation should not be made within three years from the time of granting letters testamentary, or of administration, a bill in equity might be filed by the creditor against the heir, at the expiration of that time, to collect the debt due by the ancestor out of lands descended to the heir. (2 R. S. 46, § 53. Id. 370, § 42.) And by the act of 1837, {Laws of 1837, p. 537, § 73,) a suit at law*" may now be brought for the same purpose. By these modes, and by these only, could the title of the heir be defeated, and the land that had descended to him be charged with the payment of the debts of the ancestor. Neither of these proceedings has been instituted by the creditors, whom the complainant claims to represent in this case ; but the com- plainant contends that by. the deed of Christopher Devoe to Charles Storms and Isaac T. Storms, the creditors of Gilbert Devoe, deceased, in part satisfaction of their demand, on the 28th of March, 1839, and by the subsequent conv'eyance from them to the complainant on the 21st of February, 1842, he has acquired a title superior to that obtained by the defen- dant under his prior judgment, recovered against Christopher Devoe, for his own pei^sonal indebtedness on the 7th of January, 1837. It is clear that the defendant has the legal estate ; and if the complainant has any equitable right, that is to prevad over the legal title. It rests upon the circumstance that the consideration of the deed to his grantors was the indebtedness of the deceased. ' By 2 R. S. 371, § 48, it is provided that a bill filed against the heir, to enforce the collection of the debt due from the an cestor, " the final decree rendered in such suit shall have pref- erence, as a lien on the real estate described, to any judgment or decree obtained against such heir personally, for any debt or demand in his own right." And it is certain from the facta alleged in the bill of complairit in this cause, and admitted by the demurrer, that such a decree might have been obtained bj 188 CASES IN CHANCERY. [May 1 Pierce i. Alsop. the Messrs. Storms, that would have overreached the f/reviously docketed judgment of the defendant. Under an execution sale by virtue of such a decree, a legal title would have been ob- tained, superior to the title obtained by the defendant. But this bill is not filed for the purpose of obtaining any such de- cree ; nor could it be, by the complainant, for he was not a creditor of Gilbert Devoe. The bill of complaint in this case is filed for the mere purpose of protecting a legal title pre- viously acquired ; and in my opiaion, the complainant cannot go back of his legal title, to avail himself of any equitable iw- terests which were vested in, and might have been enfojced by, others from whom he derives title. I do not see that the com plainant's title to the land is at all strengthened by the fact that his grantors applied in payment of their purchase a portion of their demands against Gilbert Devoe. The creditor can only secure a preference by a careful compliance with the pro- visions of the statute. And- that requires a solemn adjudication of a court of justice, declaring by its judgment or decree the existence and extent of a debt against the ancestor, and its priority as a hen over the previously acquired judgment, ob- tained against the heir. The heir cannot, by executing a deed to the creditor of his ancestor, cut off the lien of a judgment recovered by his own creditor. It ^s the right of his creditor that the requirements of the statute shall be strictly pursued. If the Messrs. Storms had proceeded to obtain a judgment or decree, and to sell the premises under execution, the defendant might have exercised the right of redeeming or acquiring tha title under the statute, as a junior judgment creditor. (2 R. S. 294.) If the taking of a deed from the heir is equivalent to a purchase under an execution szAe, then it is a successful eva- fiion of the statute, depriving the defendant of his chance of ac- quiring the title by redemption. It is no answer to this position to say, that the Messrs. Storms were cieditors of Gilbert Devoe for a much larger amount thar the value of the land. Tha aile must be applicable to all cases, and the right of the defen- dant to redeem, if he shall think proper to do so, cannot be cut off by a ny collusion between the heir and the creditor. Supposa -.848.1 ' CASES IN CHANCERY. jgQ Flense v. Alsop. the Messrs. Storms had obtained a judgment against the heir for a demand, due by the heir personally, before the judgment was recovered against him by the defendant, and after tlie ilocketing of defendant's judgment, the heir had released or conveyed to the Messrs. Storms ; they would haVe lost their pri- ority, and their legcd title Avould have been subordinate to that obtained by the defendant under his judgment and execution. And on a bill filed to quiet that title, and to restrain the defen- dant from interfering with it, it could not avail them that the consideration for their deed was their prior unsatisfied judg ment. The only course by which to avoid the effect of the subsequent judgment of the defendant, would be to sell under the prior judgment. In no other way could a title be obtained that would avail either at law or equity. I do not find that the question I have examined has ever been expressly decided in the courts of this state, since the pro- visions of the revised statutes, prescribing the mode in which the creditors of the ancestor might obtain a preference, were enacted. But in Morris v. Mowatt, (2 Paige, 586, 592,) Chancellor Walworth says, " probably to give the purchaser a perfect legal title, sufficient in a court of law to protect him against a sale under a previous judgment against the heir ot devisee, it may be necessary to issue an execution on the de- cree, and to have the property sold by the sheriff, in the usual manner. On this point, however, I do not mean' to be under- stood as expressing any definitive opinion." See also Butts v. Genung, (5 Paige, 264,) where the chancellor has considered the. effect of the provisions of the revised statutes regulating proceedings against next of kin, devisees and heirs. The counsel for the complainant cites Lewin on Trusts, 209 ; 4, Fes. 368, to show that it is a rule in equity, "that what is compellable by suit is equally valid if done by a trustee without suit." This is undoubtedly a well settled principle ; but it can have no application in this case. Neither the complainant, nor those from whom he derives title, stands in the relation of trus> tee, to any other person interested in the question. And it wil/ never do to saj^, that >n a struggle between creditors for tba ] 90 CASES IN CHANCERY. [May i Fierce v. Alsop. preference, the complainant is to iiave all the advantages that his grantors migiit have secured by vigilance, but which, by their negligence, they have failed to obtain. Nor does it at all affect the decision of this case, that the Messrs. Storms had not actual notice of the existence of the defendant's judgment. It was enough for the defendant to docket his judgment, and it then became a lien of which all were bound to take notice. It is also insisted hi the bill of complaint, that the sale under the defendant's execution was void ; more than two years hav- ing elapsed, after the docketing of the judgment, before execu- tion was issued, and the judgment not having been revived bv scire facias. It is not alleged in the bill that such execution was issued without the consent of Christopher- Devoe ; but whether such consent was given or not, no ene but the defen- dant in an execution can take advantage of such an irregu- larity. {Jones V. Cook, 1 Cowen, 309. Ross v. Luther, 4 Id. 158. Ontario Bank v. Hallett, 8 Id. 192. 5 Wend. 170. 6 Id. 367. 8 Id. 545. 12 Id. 96.) I come, therefore, to the conclusion, in this case, that the equitable claim of the creditor of the ancestor can only be en- forced against lands descended to the heir, by a strict conform- ity to the provisions of the statute, and that the creditor, on a bill filed to protect his legal title, cannot avail himself of any equitable interests existing in his grantors, and which they might have enforced. This opinion being upon the merits of the complainant's claim, is decisive of the cause, and it will be unuecssary to examine the other questions discussed by counsel at the hearmg. S. H. Hammond, foi the appellant. The bill must be taken ds true ; and the facts charged must be taken in their strongest sense against the defendant demurring. Hence, although the bill charges that Gilbert Devoe died possessed of little or no personal property, it will be understood as charging that Gil- bert Devoe died possessed of no personal property. And hence also, it will be understood that the Storms were the only cred- itors of Gilbert Devoe, at the time of his death. This being 1848.J CASES IN CHANCERS. 19 1 Pierce v. Alsop. understood then, viz. that G. Devoe left no personal esti te, and that the Storms were his only creditors, the questions are, (1.) Did Christopher Devoe take the property in question sub ject to the hen of the debt of Storms? and (2.) Could he dis- pose of the property for the payment of that hen or debt, without the interference of* the courts, or the necessity of a lawsuit? In Morris v. Mowatt, (2 Paige's Ch. Rep. 590,) the chanceUor says, "in the case under consideration the debts due from the testator to these complainants and others were equitable liens upon the estate devised to his sons, which liens are prior in pc'int of time to the judgments against the sons for their own private debts," (fcc. The debt of the ancestor was an equitable specific lien upon this property in the hands of the "lieir ; and the heir not having aliened the land, \a judgment or decree for the debt of the ancestor could not have been enforced against the heir personally. It could only be satisfied b}' a sale of the property descending to him. (9 Paige, 28, et seq. 2 R. & 369, 370, 371.) At the time when the Storms took the conveyance from Christopher Devoe, they had a right to proceed against him to compel a sale of the real estate to pay their debt. And on the facts of this case this court would have decreed a sale, and that decree would have had a preference as a lien over the defendant's judgment ; and the purchaser at the sale would have acquired a better title than the purchaser under the defendant's judgment. He would have taken it dis- charged of any hen under the defendant's judgment. (2 R. iS. 371 § 48. 2 Paige, 493. 9 Id. 28.) I assume, then, that the debt of Storms was an equitable specific hen on the premises in question older and better in reference to priority, than the lien of the dcfen dant's judgment. It was also a lien twice as large as the value of the property. The debt was over $20,000, and the premises worth less than $11,000. Christopher Devoe, then, took this property subject to an incumbrance, (a specific one,) of twice its value ; an incumbrance which could not be enforced against him personally. Subsequently a judgment was obtained against him for his personal debt. This became a lien. On what? The land itself ; or on his interest after discharg'ng 192 CASES IN CHANCERY. [Mav I Pierce v. Alsop. Ihe debt of the ancestor ? I suppose only on his interest b.;- yond the prior specific lien. But that prior specific lien was twice the value of the property. As to the second question — could Christopher Devoe dispose of the property for the payment of the debt of the ancestor ; or in discharge of the equitable specific lien upon it? Or must he or the creditor encounter the expense of a lawsuit, where there is no possible dispute about the facts, and no questions about equities? That the Storms, when they took the deed, could have divested Christopher Devoe of the title by a decree of this court, no man can doubt; and that too free of the lien of the defendant's judgment. Now, it is a well settled principle that equity will sanction, if voluntarily done, whatever it would by its decree have required to be done. In other words ; equity will regard as valid what is done without suit, if the doing of it is compellable by suit. {Lewin on Trusts, 209. 4 Yes. 368.) Applying this principle ; the heir, regarding the land as less in value than the debt of the ancestor, chose to avoid a litigation by doing voluntarily what this court, by a decree, would have done for him, viz. to sell the land for the payment of the an- cestor's debt. Equity will sanction the act. But it is said the Storms must resort to a bill in chancery. For what ? To compel a sale of the land ? The person hold- ing the legal title was willing to sell without suit. To obtain payment of their debt? The debtor was willing to pay to the extent of his liability, without a suit. Must they file their bill to prevent collusion and to save their property from sacrifice? It is admitted that they gave more for it than it was worth ; and the court will not presume that it might bring more than its value. I take it for granted that the court will never- re- quire parties to go into an expensive litigation where there is no dispute about facts ; where all parties admit the liability, and its extent ; and where no one can be possibly injured by an amicable adjustment; especially where that adjustment is precisely wnat the court would have done by its decree, if the litigation had been had. Suppose this bill should be dismissed and we proceed, as the defendant contends we should have »848.] GASES IN CHANCERY. 193 Pierce v. Alsop.' done, against Cliristopher Devoe, to collect the debt due fi-oim Gilbert Devoe ; what will the issue be? Why that this prop- erty in dispute will be sold to pay our debt as far as it will go. We shall become the purchaser ; or, what is the same thing, receive the avails of the sale ; thus arriving, by an expensive and tortuous course, precisely where we are if our deed be held valid. Now who would be benefited by this? Not the defen- dant ; for he would be entitled only to the surplus, after paying all the debt of Gilbert to the Storms. That would be nothins, i)ecause the property is worth less than $'11,000, and our debt is $20,000 ; and when we bought we gave more than it was worth. Not the other creditors of Gilbert Devoe, because there are none. The court will see that the only persons benefited by the litigation would be the lawyers Virho should conduct it. H. Harris, for the respondent. Upon the death of Gilbert Devoe, the title to the real estate in question descended to, and vested in, Christopher Devoe his father and heir at law, subject to be defeated by a sale made under an order of the surrogate, upon the application of the executor or administrator, or of a creditor of the deceased. (2 R. iS. 100, § 1. Id. 108, § 48. Id. 109, § 53.) The judgment recovered by the defendant against Christopher Devoe, on the 7th day of January, 1837, (the title to the real estate being then vested in him,) became a lien upon the real estate which had descended to him from Gilbert Devoe, which could only be defeated by a sale under an order of the surrogate, upon application made to him for that purpose, within three years from the time of granting letters testamen- tary or of administration, or by the operation of some other lien- having the preference. It does not appear whether letters tes tamentary or of administration upon the estate of Gilbert De- voe have been granted or not. If such letters have not been granted, then Clu'istopher Devoe's title has not, at any time since the death of Gilbeit Devoe, been liable to be defeated by any creditor of Gilbert Devoe. If such letters have been grant- ed, and no application nas been made to the surrogate for an order of sale, "and three years have elapsed since such letters Vol. III. 25 194 CASES IN CHANCERY. |Mav Fierce v. AIsod. were granted, then the title of Christopher Devoe can only be defeated by a creditor of Gilbert Devoe, obtaining a decree against him as heir, pursuant to the provisions of law, and caus- ing the land to be sold under such' decree. (2 JR. S. 4f>2, §§ 32, 38, 42, 46, 47, 48.) A decree against the heir at law, in favor of a creditor of the estate, is not a charge upon the land descended, if before the commencement of the suit in which such decree is obtained the land is aliened by the heir. (2 R. S. 454, .§ 49. Id. 455, § 51.) In this case, Christopher Devoe having aliened by his conveyance to Charles Storms, a creditor of Gilbert Devoe, before the commencement of any suit against him as heir of Gilbert Devoe, Storms acquired by such convey- ance an absolute title to the land, subject to the lien of the de- fendant's judgment which had been recovered prior to the conveyance. If the conveyance of Christopher Devoe to Storms was not such an alienation as would prevent Storms, or any other creditor, from commencing a suit and obtaining a decree for the sale of the land, yet the sale by the sheriff, under the execution in favor of the defendant, is such an alienation as would prevent any decree obtained against Christopher Devoe as heir at law, in a suit commenced subsequent to the sheriff's sale, from becoming a lien. (4 Kent's, Com. 431.) If neither the conveyance to Storms nor the sheriff's sale is such an alien- ation as would preveht a decree in favor of a creditor of Gilbert Devoe from becoming a lien upon the land descended in pre- feience to any lien in favor of a creditor of Christopher Devoe, still the lien of the latter can only be defeated by obtaining such decree ; and even then his right of redemption would re- main. If the defendant's lien by virtue of his judgment, or his title by virtue of the sheriff's sale, is to be defeated at all, it can only be done by a creditor of Gilbert Devoe, and by a pro- ceeding in conformity with the statute. No such proceeding having been had, and the time for redemption under the sher- iff's sale having expired, the defendant's title has become abso- lute. The complainant in this suit is not a creditor of Gilbert Devoe, nor has he succeeded to the ri^ts of a creditor. He U a mere purchaser of the interest of Storms, acquired ander iiia 1848.1 CASES IN CHANCERY. 195 Pierce v. Alsop, conveyance from Christopher Devoe, and without covenants of warranty. His only title is under the deed from Christopher Devoe to Storms. He cannot therefore avail himself of Storms' debt against the estate of Gilbert Devoe to perfect his title. / The Chancellor. The decision of the vice chancellor in this case is unquestionably right. And if the complainant, or those through whom he derLved his title to the premises in question, have any remedy, it must be in the character of creditor of G. Devoe, the intestate, and by means of an order of sale to be made by the' surrogate. Only about one half of the debt of C. & J. T. Storms was extinguished by the conveyance to C. Storms ; and if there was no other property belonging to the intestate, to satisfy the residue of the debt, the surrogate probably has the power to direct a sale of the lot in question to satisfy that indebtedness. There is no allegation in this bill, however, that G. Devoe did not have other real estate sufficient to pay all his debts. Nor does it appear what became of the personal property, which belonged to the intestate at the time of his death. The whole of this bill is based upon the mere fact that the decedent had not sufficient personal property to pay all his debts, and that this portion of his real estate was conveyed by the heir at law in part payment of a debt due by the intestate, and at a price not below its actual value. This was not sufficient, even in equity, to entitle that conveyance to a preference over the previous legal lien of Alsop's judgment upon the premises in the hands of the heir at law. To entitle the creditor of the decedent to a legal preference over the judg- ment creditors of the heir at law, he must himself proceed to a judgment, ot decree, against the heir at law for the debt due from the latter in respect to the lands descended from the intes- tate. Or he must apply to the surrogate for a sale of the land, to satisfy the debts of the intestatCj which the personal estate is insufficient to pay. The allegation in the bill that the Storms were ignorant of the existence of the judgment of Alsop at the time of the con- »e)'ance of the premises to C. Storms in part, payment of theii igg CASES IN CHANCERY. [Jdp.£ 3 Dunham v. Gates. debt, did not alter their legal or equitable rights. For the judgment was duly docketed ; and it is not pretended that Al- sop, the judgment creditor, did any thing to deceive or mislead the Storms in relation to his lien upon the lands which had descended to one of his judgment debtors as heir at law of the decedent. The bill does not distinctly show that there was any irregu- larity in the issuing of the defendant's execution. But even if it was irregularly issued, the remedy of the complainant is not in this court, but by a summary application to the court of law to set aside the execution for irregularity, so far as it affects his rights ; if he has a remedy any where to correct an irregu- larity in a suit, against another person, to which he is not a party. The vice chancellor refers to several authorities to show that he has no such right, so far as relates to a question of regularity merely. And the issuing of an execution after the lapse of two years, without reviving the judgment by a scire facias, where all the parties to the judgment are in full life, is an iriegularity merely, and does not render a sale under it void. The decree appealed from is not erroneous, and it must be affirmed with costs. Dunham vs. Gates and others. •_pon a bill to set aside a bond and mortgage alleged to have been given by an in- solvent debtor, to the mortgagee, to defraud the creditors of the mortgagor, if the assigness of the mortgage deny any knovfledge of the alleged fraud, by a separate answer, the ansvfer of the assignor cannot be used as evidence against them to establish such fraud. But if they join with him in an answer and admit their belief thair what he stales in the answer is true, if his admissions in such answer establish the fraud, it is sufficient to entitle the complainant to a decree against the assignees of tho mortgage. And where the assignees of the mortgage put in a joint answer with the assignor, what is stated by him in such answer, responsive to the charges or interrogatoiieJ in the bill, will be evidence in favor of the assignees, to the same extent that it it evidence in favor of the assignor. '843.] CASES IN CHANCERY. I97 Dunham v. Gates. This was an appeal from a decree of the assistant vice chancellor of the first circuit, dismissing the complainant's bill without costs to either party. In April, 1826, C. Gates gave to his brother, Gerrit Gates, one of the defendants in this cause, a bond and mortgage, to secure the payment of $2878, in one year, with interest ; which mortgage was shortly afterwards assigned to the respondents, W. W. Chester and T. L. Chester, in part payment of a much larger debt due to tl^em from the mortgagee. The complain- ant afterwards recovered a judgment against the mortgagor for a debt contracted before the giving of the mortgage ; and under an execution upon that judgment the interest of C. Gates, the mortgagor, was sold by the sheriff, and the complainant be- came the purchaser thereof He thereupon filed the bill in this cause against the mortgagor and mortgagee, and against the two Chesters, as the assignees and owners of the bond and mortgage, as fraudulent. C. Gates, the mortgagor, was an ab- sentee, and was not sewed with process ; and the bill was taken as confessed against him for want of an appearance. The de- fendants, Gerrit Gates, the mortgagor, and the two Chesters, put in a joint and several answer, denying tlie alleged fraud and want of consideration for the bond and mortgage ; the for- mer positively, and the latter upon their information and be- lief A replication was filed, but no testimony was taken in relation to the alleged fraud or want of consideration for the bond and mortgage. R. Manning, for the appellant. O. Bushnell for the respondents. The Chancellor. The bond and mortgage being prima facie evidence of a good consideration, the onus of showing that they were given without consideration, or for the purpose of defrauding the complainant, rests upon him; and if he has not established it by the answer of the defendants, he must of course fail in the suit. If the Chesters had not joined in the answer with Gerrit Gates, Vvho had no interest in the bond and 198 CASES IN CHANCERY. [June 5 Dunham s. G^tes. mortgage at the time of the commencement of the suit, no ad mission in his answer would have affected their rights. . And the only way in which the facts stated by him could have been made available against the Chesters, in favor of the complain- ant, would have been to dismiss the bill as against Gerrit Gates, and examine him as a witness. But by joining with him, in their answer, and swearing that what lie states as mat- ters within his own knowledge they believe to be true, they have entitled the complainant to the benefit of the discovery if the answer makes out a case of fraud in the giving of the bond and mortgage. On the other hand, if the answer does not es- tablish the fraud charged by the complainant, the respondents are entitled to the benefit of all the facts sworn to by the de- fendant Gerrit Gates, responsive to the charge of fraud and want of consideration, to the same extent that Gates could avail himself of them as evidence in his own favor. The only question therefore is, whether the answer shows a case of fraud in the giving of this bond and mortgage ? For if it does not, the complainant has failed in establishing the charge made in his bill. And I think the assistant vice chan- cellor came to the correct conclusion in deciding that the fraud was not established by the admissions in this answer; the whole of which answer, so far as related to the consideration of the bond and mortgage, the circumstances under which they were given, and the reasons for giving them, was directly res- ponsive to the bill, and was also called for by the special inter- rogatories contained therein. The fact that no administration had been taken out upon the estate of the father of G. and C. Gates was wholly immaterial, so far as the complainant was con- cerned, if the amount due and coming to the other members of the family who consented to the arrangement, out of the indebted- ness of C. Gates to the estate, was as stated in the answer. Al- though the answer does not leave the case entirely clear from suspicion, it certainly contains nothing which could justify any court in saying that a clear case of fraud is made out by the admission in this answer. The decree appealed from must therefore be affirmed with co«l9, IS4S_ CASES IN CHANCERY ]99 Spoor and others vs. Wells. Where the husband had a contract for the purchase of land upon, which he made a mere nominal payment,/and he afterwards died without leaving any rneana of paying for such lands, leaving a wife and several infant children surviving him, and the wife subsequently paid for the land and took a deed thereof in her own name, and afterwards conveyed the same with warranty ; and her children »fter they became of age waited from nine to fifteen years, and until their mother had become insolvent, before they attempted to assert their claim, in equity, to the land ; Held, that their bill was properly dismissed by the vice chancellor on ac- count of their delay in instituting the suiL An equiti^ble c(aim, upon which a bill in chancery could have been filed previous to the first of January, 1830, and where the complainant was under no legal dis- ability, is barred, by the provisions of the revised statutes, at the expiration of ten years after the revised statutes went into operation. i The old statute of limitations is only applicable to suits in equity for claims as to which the right to sue existed previous to January, 1830, where there is a concur- rent jurisdiction, at law and in equity, in reference to the subject of the suit ; but U does not apply to cases which are exclusively of equitable cognizance. This was an appeal from a decree of the vice chancellor of the eighth circuit, dismissing the bill of the complainants, under the following circumstances. In May, 1808, Theodore Sedgwick contracted with Derick Spoor to convey to him a lot of land in the county of Ontario, for the price or consideration of $200. Which sum Spoor cove- nanted to pay as follows : $100 on the first of January, 1809, $50 on the first of January, 1810, and $50 on the first of January, 1811, with interest on the whole annually from the 12th of September, 1807. It was also stipulated in the con- tract that if Spoor should fail in the performance of any of his covenants to make the payments, Sedgwick should be dis- charged from his covenants to make the conveyance. Spoor paid $3 upon the contract at the time it was made, and being then in possession of a squatter's right, he continued in po^ Bession until the time of his death, on the first of November, 1810 ; making some slight improvements upon the lot, bu* without paying any thing beyond the $3, either for principal or interest on the contract. At the time of his death DeiicJr 200 CASES IN CHANCERY. [Jv:*^ 5 Spoor V. Wells. Spoor left a widow and three children survi^ing him ; the eldest of which children, A. Spoor, was about five or six years of age, and the youngest. Gerrit Spoor, was but a few weeks old. Derick Spoor left some personal property at the time of his death, worth from $150 to $200, including a span of horses which he had bought partly in exchange for a yoke of oxen, either lent to him by his father-in-law, or purchased of the •liter and not paid for. Without taking out administration on the estate of the decedent, the father of the widow disposed of the personal property, and paid the small amount of debts which his son-in-law owed. And after the death of her father which took place in 1811, the widow, with the proceeds of this personal estate and with about $200 which came to her from her father's estate, paid the amount due on the contract, partly in 1812 and partly in 1814 ; and then took a deed for the 40 acres of land in her own name, in the month of January, 1814. The widow of Derick Spoor, in 1815, intermarried with J. Russell, but she and her husband continued to reside on the forty acre lot, and to support the three children of her first husband, until the fall of 1819, when Russell died. In the meantime she and her husband had mortgaged the lot to the defendant, for $250. In January, 1821, she sold and conveyed the lot to the defendant, for the consideration of $600, including the amount due upon the mortgage, with covenants of seisin and warranty ; that being the full value of the lot, including the improvements made thereon both before and after the death of Derick Spoor. The notes of the defendant were taken for the balance of the purchase money, and were turned out by Mrs. Russell towards the purchase of another lot of 30 acres, for which she paid $360 and took a deed in the names of her son Garret Spoor and of Chauncey Hinman, the husband of her daughter. Her oldest son, Abraham Spoor, arrived at the age of twenty- one in 1825 or 1826, and died a few weeks before the filing «f the bill in this cause in June, 1840, without having instituted any proceedings against the defendant, or otherwise, in relation to the lot ; leaving Cecilia Spoor one of the complainants, an 1848.] CASES IN CHANCERY. £01 Spoor V.' Wells. infant, who was six weeks old at the time of the commence- ment of this suit, his only child and heir. Mrs. Hinman, the daughter of Deride Spoor, became of age in 1828 or 1829, and Garret Spoor in 1831. F. Mattheios h 5, Sackett s. Giles. the complainant and her husband. And the parties Avere still living together as husband and wife when the defendant Thompson redeemed and took the title to the premises in May 1.844 ; without any notice that Sackett had ever treated hi- wife unkindly, or that there was any equity on her part which could affect the interest he was to acquire by the payment of the money which had been bid upon the sale under the prior judgment. The right of the husband to redeem the premises from the sale was. at an end at the expiration of twelve months. It was therefore wholly immaterial to the wife whether the original purchaser, or the redemption creditor, obtained the legal title at the end of three months thereafter. For in neither care would she have the right to redeem the premises upon paying the amount of the original bid and interest. Again ; I think the complainant failed to show such a case of cruelty, on the part of the husband, previous to the decree in bankruptcy, as would have justified this court in decreeing a separation. No person was present at the time of the alleged blow i/ 1834, and the husband and wife differed as to the facts whici/ jccurred., If his statement was true, she was the ag- gre* jr; and his conduct, although not justifiable, was excusa- bli. And no court having a due regard to the sanctity of the m riage relation, would decree a separation for that cause. It is .rue, the husband suffered the bill to be taken as confessed. I It as the cohiplainant waived the right to a sworn answer, tj inference can arise, to the prejudice of third parties, by the neglect of the husband to make a defence. I think, therefore, that the complainant showed no right to interfere with the legal title to the husband's life estate in the part of the premises which Thompson acquired under the sheriff's deed in May, 1844 ; or in the residue of the premises, the legal title to which became vested in the defendant Waddell, as assignee under the decree in bankruptcy. For these reasons the suit must have wholly failed as against the defendants Thompson and Waddell, in case the husband of the complainant had lived, and if she had succeeded in obtammii K decree of separation from him, on account of his cruelty to hei. 1848.1 GASES IN CHANCER «■. £07 Johnson v. Buish. subseqiieni to the decree in bankruptcy. The complainant'a bill, as to. each of those defendants, must therefore be dismissed, with costs to be paid by the complainant. JoHNSoiN and others vs. Bush and wife. [Distinguislied, 87 Han 203.] The date of the incorporation of a company, ander the provision of the revised stai utes declaring that if any corporation created by the legislature shall not organize and commence the transaction of its hasiness within one year from the date of its incorporation its corporate powers shall cease, is the time when the act creating the corporation takes effect as a law. The fair construction of the act of April 14, 1838, amending the act to incorporate the Globe Fire Insurance Company, by which the directors named in the original act were continued in office until the 2d Tuesday of May, 1839, and were au- thorized to open the books of subscription again, and to receive subscriptions for the purpo.se of filling up the capital stock of the company, is that it extended tho time for the organization of the company, and for the commencement of its busi- ness, one year; although that act does not in terms extend the time for the com- mencement of the business of the company. An assignment, by the officers of a corporation, of a bond and mortgage exceeding one thousand dollars and constituting a part of its capital stock, is void ; unless made in pursuance of a previous resolution of the board of directors authorizing such assignment. But it seems that the proof by the subscribing witness to such an assignment, before the commissioner of deed.s, that the corporate seal was affixed to the same by the authority of the corporation, is prima facie evidence that the assignment was au- thorized by the board of directors. If an assignment of that nature is duly authenticated for the purpose of authorizing it to be recorded, it may be received in evidence, without further proof; subject, however, to tlie right of the adverse party to show that it was not duly exe- cuted by the corporation, because no resolution of the directors had authorized the person entrusted with the corporate seal to affix the same to such an assignment. Where, by statute, a resolution of ihc board of directors of a corporation is necessary to authorize an assignment of corporate property by the officers of such corpora- tion, a certi>fica,tc of proof before the acknowledging officer that the corporate seai was affixed by the officer entrusted with such seal by the corporation, is not alone sufficient to. authorize such assignment to be recorded, or to be read in evidence without further proof. A corporation 1 as no legal p^wer to take a surrender of a part of its capi'al stork 208 CASES IN CHANCERY. TJone * Johnson v. Bush. not for the purpose of issuing new scrip therefor to other persons, upon being pai(5 or secured the amount of the same from them, but as an extinguishment of a pari of the capital of the company, and to give up the property or effects of the compa- ny in exchange for the same^. And the assignment of a bond and mortgage, held by a corporation, in pursua;nce of such an arrangement, being in direct violation of the provisions of the statute, the assignee will acquire no legal or equitable right to such bond and mortgage by such an assignment. Where a corporation took from one of its stockholders a surrender of twenty shares of its capital stock, held by him, and endorsed the amount of the par value thereof upon a bond and mortgage which it held against him, and then assigned the res- idue of the debt secured by that bond and mortgage, to certain other stockholders, upon the surrender of the stock held by them ; Held that both transactions we>-e in direct violation of the provisions of the statute prohibiting the directors of any moneyed corporation from dividing, withdrawing, or in any manner paying to the stockholders any part of the capital stock of the corporation, without the consent of the legislature. ' A deed executed by an attorney may be recorded, upon his acknowledgment before the proper officer, or upon due proof that such deed was executed by him ; without proving the power under which the attorney acted in executing such deed. This case came before the chancellor upon an appeal, by the complainants, from a decree of the vice chancellor of the eighth circuit, dismissing the bill of the appellants, with costs. The bill was filed to foreclose a mortgage given by Bush and wife to the Globe Fire Insurance Conipany, in 1839, to secure the payment of $7000, being the amount of the purchase of seventy shares of the capital stock of the company, and for which scrip was issued to Bush and to others at his request, oi by his direction. The act for the incorporation of the Globe Insurance Company was passed on the 2d of May, 1837, and became a law on the 22d of the same month, under the provis- ion of the revised statutes on that subject. The first directors were named in the act of incorporation, and were to continue in office until the 2d Tuesday of May, 1838 ; when directors were to be chosen by the stockholders of the company. The stock of the company not having been subscribed and paid or secured, so as to authorize the corporation to organize and commence the transaction of its busiaess, on the, 14th of April, 1838,. an amendatory act was passed continuing the directors, named in the original act of incorporation, in office until the 8d Tuesday of May, 1839. And the directors were authorized 1848. ' CASES IN CHANCER\ . jjg ^ Johnson o. Bush, to open the books of subscription again, and to receive subscrip- tions from time to time, for the purpose of filling up the capita) Block of the company, upon the like notice of each time of opening the books of the company as was required by the ori- ginal act. The deposition, required by the act of incorporation, that the whole capital stock had been paid in or secured to be paid, waa made and filed the forepart of April, 1839 ; and the company . thereupon immediately organized and commenced the transac- tion of the business for which it was incorporated. To enable the officers of the company to make the necessary affidavit, however, some of the stockholders had to subscribe for, a further number of shares of the stock, amounting in the aggregate to $160,000 ; the whole of which stock was paid for, or secured to the company, in conformity with the provisions of the charter. But as some had subscribed for portions of the stock, who had neglected to furnish their securities therefor in time, and it was expected that others would desire to take a part of this stock as soon as the company was in operation, it was understood be- tween the directors of the company and. the respective subscri- bers of this last $160,000 of the stock, that the other applicants should be permitted to become the owners of such stock upon paying the amount thereof, or on giving approved security therefor ; to be substituted in the place of the securities given by the original subscribers for that part of the stock. The stock for which the bond and mortgage of Bush and wife were sub- sequently taken. Was a part of this $160,000 ; which had been subscribed for originally by D. E. Tylee. And the security of Bush and' wife havmg been approved of, in August, 1839, by the counsel to the board, it was received in full of the stock, ex- cept as to 12 shares which were assigned to trustees, for the security of the company, until Bush should have made certam contemplated improvements upon the mortgaged premises whe jby the value thereof would be enhanced. Of the other 58 s'nares, the scrip for eight shares was issued to Bush, and the scrip for the residue was given to the complainants at Vol. III. 27 210 CASES IN CHANCERY. [Jine Sj Johnson v. Bush. Bush's request ; and for which they credited the amount to the firm of which he was a member, at its nominal or par value. About the commencement of 1840, the company, having met with considerable losses, resolved to wind up their affairs^ and call in their stock, by receiving surrenders of the stock and giv- ing up the securities of the holders thereof; takffig the bonda of the stockholders for ten per cent of the amoflnt, to cover any losses which had occurred upon the stock- Under this arrange- ment, the eight shares of the stock issued to Bush, and the twelve issued to the trustees for him, were surrendered to the company, and the amount of the par value thereof was endorsed upon the bond and mortgage. Tiie complainants also surren- dered their fifty shares to the company, and, with the assent of Bush, the company assigned to them the mortgage of Bush and wife ; the complainants giving their bond to the company for ten per cent on the whole peventy shares to meet anticipa- ted losses. The assignment of the bond and mortgage to the complainants, upon the surrender of the seventy shares of stock, ' was under the corporate seal of the company, and was signed by the president and witnessed by the secretary thereof And the assignment was proved before a commissioner of deeds, and was duly recorded. Upon proving it before the commissioner,, the attesting witness, the secretary of the company, swore that the seal affixed to the assignment was the corporate seal of the company, and was affixed thereto by its authority. But no reso- lution of the board of directors, authorizing the assignment of the bond and mortgage to the complainants, was given in evi- dence ; nor was the secretary of the company, who was exam- ined as a witness in the cause, asked by either party whether such a resolution was ever adopted, or how he knew that the corporate seal was affixed to the instrument by the authority of the corporation ; at the time he proved the execution of the .assignment before the commissioner. The vice chancellor decided that the assignment of the bond and mortgage to the complainants was illegal and void, because it constituted a part of an arrangement to surrender a portion •of tlie- •-apital of the company, in exchange for it, in violation .848.J CASES IN CHANCERY. gi) Johnson v. Bush, of the statute on that subject. He therefore dismissed the com- plainant's bill. The following opinion was delivered by the vice chancellor. F. Whittlesey, V. C. The defendants insist that the charter of the Globe Fire Insurance Company had ceased to exisf before it attempted to go into operation. The act incor- porating it viras passed May 2, 1837. It made the corporation subject to the provisions of chapter 18, part 1, of the revised statutes, so far as applicable. The 29th, 30th and 31st sections of that chapter, provide that the officers of such corporation, before it commences business, shall make and file in the office of the county clerk an affidavit that the vi'hble capital stock has been paid or secured. And if such affidavit is not made and filed within one year from the time when the charter is granted, then the cliarter to be void. (1 R. S. 595.) This chartei then, in effect, required the capital to be paid in or secured within one year from the date of the grant. The amendment passed April 14, 1838, does not, in terms, give a longer time. It provides for continuing the directors named in the former act ifl office until May, 1839, and for opening the books of subscrip- tion in pursuance of the sixth section of the former act. And in case thefuU stock is not subscribed for upon opening, to ap- point other times and places for filHng the stock. {Laivs of 1838, 191.) It is urged that there are no precise words extend- ing the time for filling the stock beyond a year ; nor any lan- guage in the amended act which, by any necessary implication, would so extend the time, even if it could be deemed to bo ex- tended by any implication. The amendment became a law before the year from the passage of the first act had expired, and it is claimed that all its provisions are entirely consistent with the original limitation of one year. And that as the com- pany was not organized until long after the lapse of the first year, the charter is void. And that any contract assumed to he made with a corporation which had no existence is void also. This is a ouestion in which the company and its stock- holders are deeply interested, and is of vital importance tu 212 CASES IN CHANCERY. [Jcne S Johnson v. Bush. them ; and it would not be desirable to decide it in a collateia way between litigants who are strangers to the company, un less there was an absolute necessity for it. That necessity does not exist in this case as it is now presented. The present case can be disposed of upon more satisfiactory grounds ; and for that reason the question will be left open. The defendants contend, further, that if the time for filling the stock was extended by the amended act, it was not filled within the additional year, from the passage of that act. For they claim that the subscription by Graham and others of $160,000 was not bona fide, or, if bc«ia fide in a certain sense, that the withdrawal of the securities paid for it, and the subst tution of the mortgage of the defendants and others, was a withdrawal of capital ; which was illegal and void. Upon th a point I understand from the testimony that Graham and otheis subscribed for $160,000, to fill the capital and enable the com- pany to go into operation ; that they either paid or secured this subscription in the same manner as the other subscribers, and to the satisfaction of the directors ; as indeed they must have done, before the officers could make the afiidavit required by the revised statues preliminary to commencing operations. While these subscribers were legally bound to pay for this stock, or rather bound to pay the securities which they had given for it, and they had a legal right to claim- this stock as their own property, there was yet an understanding, not legally binding upon any one, that if other stockholders should apply, who could give approved securities, such applicants should be supplied from this special stock, and should pay or secure the company, and that the securities of Graham and others should be diminished to that amount. Bush was supplied out of tnis reserved stock ; and I can see nothing in all this transac- tion, so far as it appears from the testimony, which was im- proper, or in violation of any law. We must assume, in tiie absence of positive proof to the contrary, that the subscription for the $160,000 was made bo7ia fide and was fairly secured; and it is not urged that the mortgage substituted by Bush was a weak security given in lieu of a valuable one withdrawn. II 1848. j CASES iN CHANCERY. glS Johnson v. Bash. indeed available securities for the capital stock were withdrawa and nominal securities subs'tituted, it would be a fraud upon the other stocljholders, and bring it within ithe case of Nathan V. Whitlock, (9 Paige, 152.) But I do not deem such to be the case in this instance ; and I see no reason to question the Validity of the mode of proceeding which was adopted. Another objection taken by the defendants is as to tlie valid- ity of the assignment from the company to the complainants. One of the provisions of the revised statutes as to moneyed cor- porations isj that no conveyance, assignment or transfer, not authorized by a previous resolution of the board of directors, shall be made by a corporation, of any of the real estate, or any of its effects exceeding, the value of one thousand dollars. (I R. iS. 691.) This assignment is executed by the president and secretary of the company and the corporate seal affixed, and is proved before a commissioner of deeds, to enable it to be recorded. The secretary, by whose oath it is proved for that purpose, swears that he affixed the seal by authority of the corporation. The instrument itself, thus proved, is all the proof of the assignment which is offered. No previous resolution of the board of directors authorizing the execution of this instru- ment is produced. I am of the opinion that the proof thus offered of the conveyance of the interest of the company in thia mortgage to the complainants is insufficient. But this defect in proof might possibly be cured if the facts enabled the com- plainants to do so at the expense of some costs. (6 Paige, 54. contra.) There are however more serious objections to this assign'- ment. The complainants were the owners of fifty shares of the capital stock of this company; and the bond and mort- gage executed by the defendants were so executed in pay- ment of seventy shares of the capital stock of the same com- pany. The consideration for the assignment of this bond and mortgage, was the surrender, cancellation and destruction of those fifty shares of capital stock. The bond and mortgage represented so much of the capital of the company; and its cancellation to the extent of $2000, and its assignment for /he 214 CASES IN CHANCERY. [June 3. Johnson v. Bush. remainder, was in effect a witiidrawal of so much capital of the company, witiiout legislative authority or judicial direction. This court held, in the case of Pettibone v. Hawkins, that tha ilirectors of a banking association had no power to contract to pive up securities held by thera in payment for subscriptions to ilieir own stock, upon the surrender and cancellation of such stock. And in another case, [Mather v. Bates,) it was decided that the directors had no power to make such a contract, even by the du'ection of a majority of the associates at their annual meeting. This was decided in relation to associations which were considered not to be subject to the provisions of the revised statutes in relation to moneyed corporations ; but it was so held upon general principles. Insurance companies and moneyed corporations are subject, expressly, to the provisions of the re- vised statutes. Among those provisions is the' following : "It shall not be lawful for the directors of any moneyed corporation to divide, withdraw, or in any manner pay to the stockholders or any of them, any part of the capital stock of the corporation, or to reduce such capital stock, without the consent of the legis- lature, or to receive any shares of capital stock in payment or satisfaction of any debt due the corporation," with certain ey- ceptions. This bond and mortgage was a debt due to the cor- poration; it was a part of its capital stock. The company received from the complainants fifty shares of its own stock for this debt ; and by the assignment of the debt, so much of the capital stock was withdrawn. This whole transaction seema to come within the plain prohibitions of the statute ; and shows an attempt on the part of this corporation to withdraw and re- duce its capital stock, and so far to wind up its concerns without the authority of the legislature, or the sanction of a judicial tribunal. This is clearly forbidden. ( Ward v. The Sea Insurance Co. 7 Paige, 294. Nathan v. Whitlock, 9 Id. 152.) And from the' ordinary consequences of such acta forbidden by statute the assignment must be held to be void. The complainants thus fail to maintain the title to the bond and mortgage, which they. have set up in their bill. And coa- 18-13.1 CAS iS IN CHANCERY. £15 Johnson v. Bush. sequeiidy their bill should be dismissed. It is aecordingly dii» missed with costs. Geo. Wood, for the appellant. I propose, in the first place, to answer the grounds on which the court below reposes, in sup- port of the decree appealed from. The first point decided by the vice chancellor is, that it does not appear that the assign- ment of the bond and mortgage in question was made to the complainants, under a resolution of the board of directors, accord- ing to the provision of the revised statutes. The seal of the corporation is affixed to the assignment, with the signature of the president and secretary ; all which is proved and recorded. It was not necessary to produce the original resolution, or to produce and prove a copy. The seal, with the correspondent attestation, being proved, is sufficient. This was so held by the chancellor in Lovett v. The Steam Saw Mill Association, (6 Paige, 54.) It is a well settled principle that the proof of the seal is evidence, />er se, that the previous authorization was complied with. The fallacy in the views of the vice chancel- lor results from his mistaking the object of the statute. The object of the act was to prevent officers of corporations from disposing of the real estate and effects, under mere general agencies ; and to require that they should have a specific reso- lution of the board to that effect. The act did not design to change the rule of evidence. An authority to affix the seal was just as necessary before the passing of the act as since ; and if affixed without authority it was void. If before the act, an in- strument with the corporate seal affixed had been produced in court, it might have been read in evidence upon showing it was sealed wilh the seal of the corporation. But it would have been competent for the othei party to show that the seal was put there without authority, by a person not authorized. The same course of proceeding will taJce place now. The party alleging the want of authority must show it now, after the proof of the seal, as before the passing of the act. The same sor.' ol circumstantial evidence will be allowable to him in provinf» a negative act, viz. the want of authority. In making out thi\9 Johnson v. Bush. le^es may be implied in an act conferring a franchise, as Wei' as in any otlier statute. Does the amended charter, then, war- rant such an implication? If not, why does it continue the original directors another year ? Why provide for opening the books, pursuant to the sixth section of the original charter, and for appointing other times for opening them ? Surely all this was not done to enable them to fill up the subscriptions and pay for the stock within the first year. That was already pro- vided for in the original act. These various provisions in the amended act are all senseless and absurd, unleSs the legislature meant thereby to extend the time, for subscribing and paying, beyond the first year. And if they did mean so to extend it, they manifestly meant to continue it thus the second year, du- ring which the original directors were to continue in office. The object of so continuing them in office for the second year was to enable the subscriptions and payments to be made ; and the time for doing so must of course be held to be co-exten- sive with the continuance of the directors for that purpose. Another point raised in the court below was, that the arrange- ment under which the bond and mortgage were assigned to the complainants, was infected with usury. To this 1 answer that there was no loan, direct or indirect. On the contrary, the as- signment was made under an arrangement which did not at all partake of the character of a loan. The whole transaction shows (his. To constitute usury there must be a loan. [Comyn on Usury, 22, 59. Ord on Usury, 29.) ■ The agreement for the assignment in this case was complete at the date of the assignment. The rights of the respective parties to the prop- erty to be transferred, were mutually recognized by both parties at that time. The delay occurred foi' the convenience of the parties in carrying out ■ their arrangements. If any profits or dividends accrued upon the stock in the meantime, they enured to the benefit of the company. Arrangements of this kind, where there has been some delay in carrying them out, and tliey'are referred back to the time the contract was considered as complete by the parties, ought not to be considered usurious, where it appears from the whole complexion of the case to b« 220 CASES IN CHANCERY, [Jdne & Johnson v. Bush. bona fide, and not a cover for usury. {Dowdnll's ex'rs v. Lenox, 2 Edw. Ch. Rep. 272.) Usury, in this case, was noi properly pleaded. Both at law and in equity the usurious agreement must be specifically set forth. [Comyn on Usury ^ 203. 8 Paige, 452.) The usurious agreement in this case ia not set out with the particularity required by the rules of law. And surely there is nothing in the defence, in this casej wliich entitles it to any extraordinary indulgence. S. Mathews, for the respondents. The bond and mortgage, which are the subject of this suit, are not valid, because the Globe Fire Insurance Company, the mortgagee named in the mortgage, was not a legally constituted corporation, and was not therefore capable of taking the bond and mortgage in question. By the revised statutes, (vol. 1, p. 600, § 7,) it is provided that if any corporation thereafter created by the legislature, shall not organize and commence the transaction of its business within one year from the date of its incorporation, its corporate power shall cease. The act incorporating the Globe Insurance Company was passed May 2, 1837. {Laws of 1837, p. 328.) It is in proof that the company did not organize nor commence business until some time in April, 1839 ; nearly two years after its incorporation : so that unless the complainants can show some other act of the legislature repealing the above 7th sec- tion of the revised statutes, or exempting that company from its operation, it is clear that it was not a corporation, at the time the mortgage was executed. The complainants contend that the act of April 14, 1838, {Laws of 1838, p. 191,) has the efl!ect of a re-enactment of the act of 1837, or of re-incorpora- ting the company as of the date of the last act. It will be ne- cessary to examine the provisions of the act to see whether i* will bear such a construction. The act is entitled an act to amend, &c. the act of 2d May, 1837. The first section is in these words, " The persons named in the first sectirn of t'.ie act entitled, &c. to which this is an addition, shall continue in office, as the first directors of such corporation until the second Tuesday of May 1839." The second section provides that Jia 1848.J CASES IN .CHANCERY. £2 Johnson v. Bush. books of subscription may be opened a second time and oftener if the whole capital shall not be subscribed at tiie time firsJ appointed ; and refers to the 6th section of the act of 1837, for the mode of receiving subscriptions and giving notice. Now there is nothiiig in this act of 1838, which conflicts with the 7th section of the revised statutes. The language of that sec- tion is clear and explicit. The charter of this company was received by the corporators upon the condition there imposed, and there is nothing in the act of 1838 to release them from it. Continuing the directors named in the first act in office for an- other year, is no evidence that the legislature intended to re lease the condition ; because directors are frequently continued in office beyond the year, by original acts of incorporation, Indeed this was done by the charter of this same company. By the 2d section of the charter, the first directors were to hold their office until the second Tuesday of May, 1838, a week at least, and perhaps longer, after the expiration of the year within which the company was required to organize, or' in default thereof to forfeit their corporate powers. The only opei'ation of the act of 1838, was to amend the act of 1837, in the two particulars of continuing the directors in office for two years, instead of one, and of allowing the books of subscription to be opened a second time, after a failure to fill up the capital stock on the first opening ; and the two acts taken together must receive the same construction as if the whole had been contained in the first enactment. It is said, on the other side, that the provisions of the act of 1838 are senseless and absurd, unless it was the intention of the legislature to extend the time to fill up the capital stock. But it will be seen that there was at least eighteen days after the passage of the last act within which the company might have filled up the stock, and have gone into operation. There was therefore ample time for that purpose. If the company had done so, the provision enlaiginff the term of office of the directors would have harmonized per- fectly with the other provisions of the charter, and with tiie revised statutes. The counsel asks, why provide for opening the looks pursuant to the 6th section of the original charier 222 CASES IN CHANCERY. [Jose £ Johnson v. Bush. and for appointing o.tlier times for opening them 1 I answer that the original charter did not appoint " other times," and for that reason an amendment was necessary. It is possible, indeed I may say it is highly probable, that the directors had, be- fore the passage of the last act, opened the books and had failed to obtain the subscriptions required ; and they needed this amendment, therefore, to enable them to appoint another time. If I am right in a previous suggestion, this amendment had the effect of enlarging the powers, as conferred by the 6th section of the original charter, by authorizing the directors to appoint a second time for receiving subscriptions, after the first had failed. The original charter was certainly defective in that particular, and needed amendment. This is not a case where it can be said that the legislature had waived the forfeit- ure ; because there was no forfeiture when the amended act of 1838 was passed, nor was a forfeiture at that time inevitable. Where, the legislature intend to renew an act of incorporation, the language is explicit ; and is remarkably uniform in all the cases which I have examined. {See Laws of 1837, ch. 393, 398, 405, 464; Laws of 1838, ch. 283, 303, 311, 322, 147, 167, 168.) The capital stock of the company was never fully subscribed and secured, so that although the affidavit required by law to be filed, was made and filed, yet^ the testimony shows that this was a fraud upon the law. It appears from the testimony of Allen and Martin, the president and secretary of the company, that subscriptions were made by some of tne directors to the amount of $160,000, to enable the company to go into opera- tion ; and that it was agreed between the board of directors and those gentlemon, that other subscriptions and other securities might afterwards be substituted. The act doubtless contem- plated a bona fide subscription to the capital stock, and a bona fide payment or security of the amount subscribed. But the subscription in this case was qualified and conditional. The subscribers had a right, by thei'- agreement with the directors, to withdraw their subscriptions and substitute others. The object of the law might, in that way, b6 wholly defeated. Th« fe4S.J CASES IN CHANCERY. 223 Johnson v. Busfa. president and secretary might make the required af. davit, and then other subscriptions and securities might be substituted; of a quahty far below the standard prescribed by the law. If the principle be once admitted that a proceeding of this kind is lawful, it opens a door for the greatest frauds. It appears, by the evidence, that the agreement between the directors and the subscribers of the $160,000 was carried out ; for these subscrip- tions were afterwards actually given up, and others substituted. Bush's subscription of $7000 was one of the substituted sub- scriptions ; and the application was made to the directors di- rectly, and the stock was issued to him. This^shows most clearly that the subscriptions of $160,000 were not real or bona fide. It was a mere temporary expedient, and the whole arrange- ment was intended to give a fictitious existence to the corpora- tion. We say it was a fraud upon the law. The law contem- plates a bona fide subscription, and so as to give to the public, and those dealing with the corporation, the security of a real and substantial capital. If, therefore, the subscriptions werea fraud upon the law, the company had no existence when the mortgage of Bush was given; and the mortgage is accord- ingly void. But if the subscriptions of Graham and others were vahd and the securities given by them were also vahd, those securi- ties formed a part of the capital of the company, and could not be v/ithdrawn. The mortgage of Bush and wife having been given on the withdrawal of so much of the securities of Graham and others, and being substituted therefor, the transaction waa illegal ; and the bond and mortgage in question were without lawful consideration and were void. The bond and mortgage were not actually consummated until the 27th of August, 1839 ; though they purport to bear date in April previous. August was the time of the actual deUvery, and when they first had an available legal existence. This corporation is i moneyed' cor poration, as defined by tne revised statutes, and could not com raence its business until the officers made and filed an afiidavit that the whole capital had been paid in, or secured, according to ih'J terms of the charter. This affidavit must have been filed 224 CASES IN CHANCERY. lJt'!»E i Johnson v. Bus}). in April, 1839 ; before the bond and mortgage of Bush and wiia was given. If then the $160,000 subscribed by Graham and others, and the securities given therefor, formed a part of the capital subscribed and secured, and on which the affidavit of the officers was predicated, neither the subscriptions nor the securi ties could be given up and others substituted, without the con- sent of the legislature. The revised statutes (1 R. S. 591) ex- pressly prohibit it. [See also Nathan v. Whitlock, 9 Paige's Rep. 152.) The effect of this transaction was to surrender $7000 of the original securities taken by the company, and substitifte others in their stead. The original subscription too, to that extent, was can-celled, as must be inferred, and th'j subscription of another person substituted. If this should be allowed, why may not the whole object of that provision of the revised statutes be defeated ? What security have the public, from the making and filing the affidavit, if the next day the di rectors may surrender all the securities on which it was predi- cated and substitute others? The charter requires that the mortgages taken for the capital stock shall be upon real estate worth fitly per cent more than the amount charged thereon. What security then have the public that the new securities will be of that character? If the corporation had been le- gally constituted and the whole capital had been subscribed, the company could not issue any more stock. The issue of $7000 of stock to Bush, therefore, was an excess, beyond the capital, which the company had no power to issue ; and the se curity given for it was without consideration and void. Again ; the assignment of the bond and mortgage to the com- plainants by the Globe Insurance Company is void. There was no resolution of the board of directors authorizing the as- signment. And the assignment having been made on a sur- render of the stock of the company, it was a withdrawal of so much of tlie capital of the corporation, and was contrary to law and void. The revised statutes (1 R. & 593, § 8) declare that no conveyance, assignment or transfer, not aulliorized by a pre- vious resolution of the board of directors, sjiall be made by any luoaeyed corporation, of any of its real estate, or of any- of its 1848. J CASES IN CHANCERY. 22/5 Johnson v. Bush. effects, exceeding the value of f 1000. There is no proof in this case, that the assignment of the bond and mortgage to the complainants was authorized by a previous resolution of the board. The certificate of the commissioner is no evidence of the fact, even if it certified so much ; because it is not the kind of proof required. It is not the mode of proving such a fact, iu this court. That might do in the case of an ordinary corpo- ration to which the statute did not apply ; because in such cases a resolution of the board of directors or trustees is always, or generally, implied, when the instrument is executed by the proper officers under the corporate seal. But in the case of moneyed corporations, the legislature evidently intended to im- pose a special and salutary restraint, upon the assignment and transfer of their effects by the officers of such corporations. The counsel for the appellants has attempted to show that it was unnecessary to prove this resolution, and he cites, as an author- ity in support of this position, the case of Lovett v. Steam Saw, Mill Association, (6 Paiges Rep. 54.) But that was a case of an ordinary corporation, and to which the statute did not apply. The evidence in such cases is governed by the rules of the common law. And while at the common law a resolution is necessary to authorize a grant or conveyance, yet the courts, in giving effect to conveyances of corporations, aiw'ays presume a resolution when the seal is affixed, with a proper attestation. The statute has changed the ru?e in respect to moneyed corpo- rations, and the legislature did not mean to leave it to mere implication. The resolution in such cases forms an essential and indispensable part of the assignee's title. It is a condition precedent, and should be firoved. The resolution should have been stated and set forth in the bill. It is a well settled rule of pleading, in this court, that the complainant must set forth in his bill his interest in the subject matter of the suit, or a right ir the thing demanded, and a proper title to institute a suit concerning it. [Mitf. Plead. 154. Story on Plead. 214, i 257. 1 Mylne ^ Keene, 61. 1 Molloy, 603.) In the last rase, the rule as above laid down is recognized, but the words " duly authorized'^ were held to be sufficient in the bill. The Vol. III. 29 226 CASES IN CHANCERY. [JistusS Johnson s. Bush. bill in this case does not set forth, nor refer to, thu resolution It merely states that the company assigned the bond and mort- gage. The resolution therefore is not put in issue. And will the court imply its existence when it has neither been put in issue nor proved ? I think not ; and I therefore insist that not only is there no proof of the resolution, but that the bill is de- fective, and 80 much so, that no proof could supply it. Tlie appellants' counsel seems to suppose that the object of the stat- ute was to prevent officere and agents of corporations from dis- posing of the real estate and effects under mere general agen- cies. I think the object and policy of the statute was to protect the stockholders from the loose practice which had obtained, of', making transfers and conveyances by the officers of corpora- tions, without the deliberate sanction' of the boaixl of directors. It ie notorious that such a practice had prevailed in many of our banks and insurance companies, to the great injury of the stockholders and of the public. The legislature intended to correct the evil, and to prevent, as far as this enactment would do it, the officers of corporations from wasting the funds of their institutions. They are now requued to have the sanction of the boai-d of directors to all transfers of real estate and othei effects of the value of $1000. But whatever may have beep the intention of the legislature, or whatever may be the policy of the enactment, the letter of the law is plain and positive, and cannot be disregarded. The assignment having been made on a surrender of tl»e stock of the company, it was a withdi'awal of so much of the capital of the corporation, and was therefoie contrary to law and void. I have before shown that the company were pro- hibited by law from withdrawing any part of their capital stock, without the consent of the legislature. Indeed, the statute on this subject is so plain and unequivocal that no argun ent in support of the position is necessary. The only question under this point is, whether the circumstances under which the as- signment of the bond and mortgage, and the surrender of the Slock by the complainants were made, amount to a withdrawal of the capital. Assuming, for the purpose of this part of the 1848.1 CASES IN CHANCERY. £27 Jobason v. Busii. argument, that the bood and mortgage was a valid security in the hands of the company, it then formed a part of the capital of the corporation. It was given, as the appellants insist, foi the stock of the company. It was, as they say, an original se- curity for so much subscribed to the capital stock. It was as- signed to them on a surrender of the stock for which it was given. The amount of the bond was in the first place reduced by an endorsemeat of $2000 on a sura'ender of that amount of stock by Bush, and the balance of the security was assigned to the appellants. Now here was a clear withdrawal of so much o( the company's capital. The funds and assets of the corpo- raJion were diminished by the operation to the amount of |7000, and thus $7000 formed a part of the capital. The security of the creditors of the corporation was lessened just so much. It is the very case to which the statute was intended to apply. The counsel of the appellants seeks to avoid the eflfect of this argument in two ways. He insists, in the first place, that if the contract was illegal, and the assignment therefore void, yet, as the company and the assignees, were in pari delicto, the company cannot for that reason question the validity of the assignment, nor rescind the contract ; so that the defendants would be perfectly protected in the payment to the complain- ants. And he seems to suppose that this is all that the defen- dants can require. It is by no means certain that the title of the appellants cannot be defeated. I admit that one party to an illegal contract, as a general rule, cannot set aside or rescind an illegal contract as against a particeps criminis. But what should hinder the stockholders or creditors of this defunct and perhaps insolvent corporation, fi°om setting aside this contract and reclaiming this bond and mortgage 1 Most certainly, if our position is correct, that the effect of the assignment -was to withdraw so much of the capital of the corporation, the appel- lants would not be protected by their assignment, against the claims of a receiver appointed on the application of the stock- holders or creditors. {Nathan v. Whitlock, 9 Paige, 152.) The rule to which the counsel refers has no application to tlia piesent case. The ground of the objection is, that beca»'se the 228 CASES IN CHANCERY. , [Jose 5 Johnson v. Bush. assignment to the complainants in the present case was maile m violation of law, it cannot be set up by them to support their title to the bond and mortgage. The rule is that, as between the parties to an illegal contract, the court will not aid either, in enforcing it, if not executed, nor allow either to rescind if executed. (2 Pothier by Eva)is, App. No. 1. Holman v. Johnson, Cowp. Rep. 343. Perkins v. Saioyer, 15 Wendi 412. Nellis v. Clark, 20 Id. 24. Bolt v. Rogers, 3 Paige, 154.) The parties are in pari delicto, and the court will not lend its aid to either. But the real question here is, whether the appellants, being parties to the original illegal contract, on which the assignment was predicated, can claim any thing un- der that assignment. They doubtless would, as against theii assignor, be left in possession of the security ; because the court would not interpose to set it aside for his benefit. But the as- signees claim to set it up, and to make title to the bond and mortgage through it. Their right to sue in this court depends upon their showing a valid title to the bond and mortgage from the Globe Insurance Company. If the contract on which the assignment was predicated was unlawful, they have no valid title to the bond and mortgage. [Bank of U. States v. Davis, 2 Hill, 451, 458, and the cases before cited.) Judge Story slates the rule upon the subject with much clearness, in a note to his work on Agency. {Story on Agency, 360.) Another ground taken by the appellants' counsel is that the defendants not having been parties to the original illegal contract cannot object to its illegality. It might be argued, if it was necessary so to do, that Bush was in fact a party to the illegal contract and particejis criminis. Because, from the evidence, it ap- pears tliat the bond and mortgage was originally for $7000 ; that Bush surrendered $2000 of the stock, which he had never agreed to transfer, and which was endorsed as payment on the bond and mortgage, and the appellants surrendered the other $5000 which Bush had transferred to them; and upon this the assignment was made. Now this was all one transaction. It was all done at one time, and by a mutual agreement between the company, the appellants, and Bush. It wiU be seen, from 184S.J CASES IN CHANCERY. 229 Johnson v. Bush. this evidence, that Bush negotiated the transfer of the bond and mortgage, and was in fact a party to the contract. {Story on Agency, 356, § 347.) Again ; a third party may object to an illegal contract. It is so in the case of usury ; and there is no reason why it may not be done in every case of illegal agree- ments. {Post V. Dart, 8 Paige, 639.) I differ with the coun- sel when he says there is no analogy between cases of this kind and usurious contracts. I do not understand the object of usury laws to be the protection of the borrower alone. I had supposed that these, laws were founded in public policy, and that for that reason courts would not enforce usurious contracts, even against third persons, unless it was shown that -th» usury had been waived by the borrower. In this last feature, usuri- ous contracts differ from other illegal agreements. But whether this is so or not, the position before taken, that the appellants cannot recover without setting up and making title through the illegal contract, is a sufficient answer to the counsel's argu- ment. In the case of Bank of U. States v. Davis, the party objecting to the illegal contract was not a party to the contract, and yet his right to make the defence was conceded. The mortgaged premises, in this ease, being of the separate property of Mrs. Bush, she stands in the relation of surety for her husband. There was a diversion of the mortgage from the object for which it was made and executed by Mrs. Bush, and the appellants cannot therefore have a decree except for a sale of the life estate of Bush. The testimony shows that tha property mortgaged was (he separate property of Mrs. Bush It was a part of her inheritance from her father Isaac W. Stone. She was therefore a mere surety for her husband. {Hawiey v. Bradford, 9 Paiges Rep. 200.) There was a diversion of the mortgage. The mortgage was given to enable Bush to procure stock from the Globe Fire Insurance Company, wnicli was to be applied to the making of improvements upon hei properly. The stock was to have been issued to Bush. But instead of this being done, it was actually issued to the appel lants, in satisfaction of a debt of the firm of Kempshall & Bush The effect of the transaction was to make the mortgage pav i 230 CASES IN CHANCKRY [Jt'SE 9 Jobneon v. Busii. debt of Kempsball & Bush, instead of giving to Bush the pos- session of the stock. The rule on this subject is, that if by any agreement between the debtor and creditor, the situation of the surety is in any way changed, be is discharged. It is not necessary that the surety should show actual damage. It is sufficient that he may sustain damage. (2 Ves.jun. 540. 3 Mad. 226. 1 iStory's Eq. 321, 10 John. 597. 7 Paige, 459, 614.) The object jn obtaining the stock, as before re- marked, was to enable Bush to improve the property of his wife. This the company well knew. Mrs. Bush bad a right, therefore, to require that the stock should be issued to her husband, so that he might have the means of making the improvements. Her property would by that means be in- creased, and his life estate, in that event, might have been sufficient to pay the mortgage. Besides, if the stock bad been issued to him, as between Mrs. Bush and the creditors of hev husband, equity would have compelled the application of the stock to the making of the improvements, or failing in that, to the payment of the mortgage. In whatever aspect this case ia viewed, Mrs. Bu.sh has peculiar claims to the favorable con- sideration of a court of equity. In all tlie transactions of these parties her rigiits have been wholly disregarded. By a series of illegal acts her patrimony, which was pledged for a specific puipose, has, without her consent, been diverted to another; and if the appellants succeed in this suit, will be squandered in tlie jjayment of debts of an insolvent firm. If this could have been foreseen, or even suspected, her consent to such a pledge as siie has given, would never have been obtained ; and if tliere is any rule or principle of equity which can afford her relief, siie is certainly entitled to it. Geo. Wood, in reply. It is said the bond and mortgage are not valid, because the company is not a legally constituted corporation. It must be admitted, on all hands, that the com- pany was organized under the chartei, though its organization was defective in point of time. Assuming such defect to exist, the com])any did not in fact cease to exist as a corporation, but 1848.] CASES IN CHANCERY 231 ' Johnson v. Bush. went on acting, performing business to a vast amount, in which great numbers of persons are involved. According to the old fashioned rules of construction, it would be held, in such a case, that although it was the duty of the persons composing the company, to cease acting when they failed to become com- pletely organized within the year, yet, inasmuch as they went on, completed their organization, and transacted business from year to year, as a corporation, they were de facto a corporation, under a colorable organization, and their various acts and transactions with the public would be sustained until the cor- poration should be dissolved on quo warranto. This would be not only consistent with the rules of law, but would be a whole- some conservative course of procedure. I might here rest the ase in regard to this point, were it not that prejudice against corporate institutions is the order of the day. The second an- swer to this argument is, that the statute of 1838 continued the period for organization for another year. It is said on the other hand, that it only continued the directors in office for another year. Why continue them in office? Why provide for open- ing the books once and oftener ? Can it be seriously pretended that the legislature meant that these, books should be opened on public notice, once, or oftener, and all within the space of eighteen days ? The construction contended for does too much violence to the common sense of the legislature. It is said the first charter did not authorize the appointment of a second time for opening the subscription books, and therefore the amended charter was necessary. But as the first year had nearly lun out, it was equally necessary to extend the time ; and there can be no doubt in the mind of any person that the object of the legislature in continuing the directors, for the second year, was to give them a further time to complete their subscriptions and organization. Powers and rights may be implied ; and the implication in this case is fair and reasonable. It is said in the next place, that the affidavit that the capital stock was actually paid or secured, called for by the 31st section of the statute, was a fraud upon the law, because it was not actually in good Eaith paid or secured. It is not denied that the subscription* 232 • CASES I-N CHANCERY. [June 5 Johnson v. Bueh. were jVt/acf made, and the amount actually pait. or secured, what then is the objection 7 Why tliat there was some under- standing that the subscribers might get others to come in in their place ; not men of straw, but good, efficient persons. I contend that there was nothing improper or illegal in this trans- action. There was, in the first place, an actual subscription ; liability, payment, and security. Such being the case, there could be no objection to their getting others to^ come in and step in their shoes, if the payments and securities were continued. Had the first subscription been fictitious, and not followed with an actual liability, there might have been some ground of ob- jection to the regularity of the proceeding. A. attends a sher- iff's sale ; lands are struck off to him ; he sigr)s the articles pays the deposit, and complies in all things with the require ments of the law and the arrangements of the sale ; but before the deed is given, B. steps in and assumes the purchase, pays the principal money, and takes the deed. Can it be pretended that this was not a valid sheriff's sale, whether B. came in under a previous or a subsequent understanding ? If there had been a secret understanding that these directors subscribing were not to be liable at all, the affidavit would have been false, and a fraud upon the law ; but that is not pretended. Assum- ing, however, that this substitution of a new bona fide subscript tion in the place of an antecedent subscription designed to be effected, was irregular, is it such an, irregularity as would ipso facte annul the corporation ? I think not. The affidavit was taken in good faith ; there was a liability in the first subscrij)- tion, and a colorable organization. It is said, that supposing the subscriptions of Graham and others to be valid, the securities given by them became the securities of the corporation, and could not be withdrawn with- out violating some section of page 591 of the revised statutes, not named. I am aware of no section of the revised statutes which prohibits the withdrawing of the securities yf a corpora- tion and substituting others in their place, if the latter be gouu, where the thing is done in good faith, and without prejudice to the corporation. It is not alleged or proved that the substituted 1848.] CASES IN CHANCER\. £33 Johnson v. Bush, securities were not good, or that they were designed in anj way to injure or prejudice the corporation, as was the case in Nathan v. Whitlock. The counsel asks, what security have tlie public from making and filing the affidavit if the directors may the next day surrender up the securities and substitute others? To this I answer, their security is complete if the sub stitution is fair, just and equal ; otherwise not. It turns upon that question. If the substituted securities are defective, inad- equate, or false, it is a fraud upon the corporation or upon the stockholders and creditors ; and the original subscribers will be held responsible. But it cannot be claimed that the substi- tuted securities do not belong to the corporation. If, however, there be any irregularity in these pioceedings, affecting the or- ganization of the corporation, the remedy must be by quo war^ ranto; especially after a long course of action under such organization, involving in the shape of contracts and otherwise, the rights and interests of thousands. It is also objected that the certificate of the acknowledging officer is not evidence of the complete execution of the assignment of the bond^and mortgage, but that the resolution of the board of directors ought to have been produced and proved. The general principle is not disputed, that proof of the seal is evidence that it was cor- rectly affixed. Before the provision of the revised statutes, an authority to aifix the seal was just as essential as afterwards, The only difference is, that formerly the authority might be general ; now it is specific. But the statute has not changed the rule of evidence. The seal is prima facie evidence of the authority to affix it to the deed ; as before. This prima facie evidence formerly could be overcome by showing, either directly or circumstantially, that there was no authority, either general or specific, express or implied. Now it may be overcome by showing that there was no such resolution of the board. This satisfies the whole requirement of the statute. Such has been the practice under this act in proving and recording of convey- ances, of corporations, and it would be productive of infinite mischief to give the statute a different construction. The re- eolution may be essential, but the mode of proof is not altered. Vol. III. 30 234 OASES IN CHANCERS ("June 5 Johnson v. Bush. The counsel ('.links it is not sufficient in pleading to allege the execution of an instrument, but that tlie particulars sliould be set out. This would not be required even in a common law declaration. When the legislature intend to introduce a new rule of evidence, they express their intention in clear terms. The object of the statute is satisfied by leaving the seal to be prima facie evidence as before, to be overcome by counteract- ing proof in reference to the resolution of the board. It is next objected that this arrangement for delivering up stock to the corporation in consideration of the transfer, and on which arrangement the transfer was made, was illegal, and that the complainants therefore have not shown any title by virtue of the transfer to the bond and mortgage. We have a regular transfer, which is good per se to pass the title, and it must stand, unless it is impeached. They seek to impeach it on the other side. They do this by going behind the transfer and show- ing that the contract which induced it was illegal. But is that sufficient ? To this we answer, that the illegal contract has been consummated. The parties are in pari delicto; and that a consummated illegal contract, in respect to which the parties are in pari delicto, cannot be impeached. Therefore you can- not impeach the transfer by thus going behind it, in such a contract so consummated. If A. should sell to B. a horse upon some illegal contract, of which A. had received the fruits, and the horse was actually delivered, and the whole consummated, ,thc title of B. to the horse would be full and complete. A. en- ters into an illegal contract with B. to convey him a tract of land upon some consideration which is illegal, but which is actually received, and the land conveyed by a deed valid on its face, the title cannot be impeached by going back to the illegal con- tract, if that illegal contract be consummated, and the jiarties are in pari delicto. All this doctiine has been too long settled to admit of a question. Shall a third person then impeach the title ? Clearly not. Suppose the land to be conveyed should be subject to a tenancy, the rent passing by the conveyance. Can the tenant, in a suit against him for the rent, impeach the title of the grantee, when the grajitor himself cannot go behind IS48.] CASES IN CHANCERY. £35 Johnson v. Bush. the conveyance to impeach it ? The absurdity of allowing it would be too glaring. Suppose the assignor should sell, lie could show no title against bis own assignment. He could not impeach the transfer by going behind it to his illegal, consum- mated contract, in respect to which he is in pari delicto. But it is said that all this doctrine cannot apply to contracts and transfers or conveyances by corporations, because a receiver may afterwards be appointed, the corporation may become in- solvent, and such receiver representing such creditors can rip up such illegal contracts. The corporation is the entire owner of the property. All the right and interest therein centre in the body politic, both at law and in equity. In suits in equity respecting mere pure equitable rights, as against third parties, the corporation represents the entire interest, and is the only party requisite to be brought before the court. A contract be- tween the corporation and an individual is consummated when fully performed by the parties, as fully as in the case of indi viduals. All the rules and consequences applicable to and flowing from the consummation of illegal contracts between individuals are. to be carried out and applied to such consum- mated contracts when made between a corporation and indi- viduals. It is no answer to say that stockholders or creditors or receivers may in certain cases come in and object to such contracts. So in the case of individuals, the creditors of the individual may under certain circumstances come in and object, in courts of equity. But the equity in all these cases is collat- eral and contingent. It does not overturn the ordinary rule. If it did, it would be impossible to predicate consummation of any illegal contiact. They, (the creditors, receivers, ,ent and obvious intention cannot be carried into effect in the precise manner the parties intended, nevertheless, if the terms of the deed permit the intention to be carried into effect, con- sistently with the rules of law, in some other manner, the court will construe the deed in that manner. As in the case of a lease and release which could not operate as such, but which contained a grant and assignment, by which the estate intended to be released could pass, the court held it to pass the estate as a grant and assignment. Again ; the vice chancellor erred in his application of the case of Roe v. Tanucr, and Lord Mansfield's remarks in that case. The case of Roe v. Tanner, (2 Wilson, 77,) does not sanction any bending of the rigid rules of verbal construction, to carry into effect what is seen to be the manifest intent of the parties. There was no bending of any rule in that case. To give the legal effect to the language employed was all the court did. I. Kirby had made a lease to Christopher Kirby for one year, and then released as follows : " Doth grant, release and confirm unto Christopher Kirby after the death of the said Thomas Kirby, (fcc. with remainder to Wilkinson [the lessor of the plaintiff j in fee tail ;" with a covenant that the lessee [Chr. Kirby] should have the use, &c. And there was a considera- tion of £100 expressed in the release. The question was merely Q2 CASES IN CHANCERY. fJi-'fi 5 Vander Volgen v. Yates. whetht.r tl e releasee could take the release arjd grant, it being of an estate tail to commence in futuro. It was clear that he could not take by a release or grant an estate of that descrip- tion to commence on the determination of a contingency. And it was contended by the plaintiff's counsel that the release sh/ould be sustained as a covenant to stand seised to uses j be- cause 1. There was a proper consideration, £100 actually paid ; 2. A deed ; 3. The covenantor, the releasor, was seised in fee ; 4. There were apt words ; and 5. There was a manifest and plain intent. Willes, C. J. said, " We are all of opinion it shall take effect as a covenant to stand seised." Secondly, here are apt words,, viz. a covenant that the grantor has power to grant, and a covenant that all fines, recoveries, &c. of the lands shall enure to the uses in the deed. Fourthly, there appears a most plain intent that Wilkinson (the lessor ) should have the lands in case Christopher Kirby died, in fee, and lastly consideration of blood. Lastly, he said the whole court were of opinion that a man could covenant to stand seised to use of another after the covenantor's death. He said the strongest cases for the defendant were in 1 Sid. 25, and 2 Vent. 318 ; that he did not understand them, and had he sat in judgment he should have been of a different opinion in both. Now here the case was a very plain one. It was manifest that the grantor wished to give an estate tail to commence in futuro. Why 1 Because he released and granted an estate in that form. But the re- leasee could not take by that form of conveyance such an estate. And the grantor foresavy that that might be held to he the law, and he therefore inserted a covenant to stand seised after hia death to the use of the lessee and remainderman. The court simply held that this last provision was conformable to law, and therefore decided, that though the deed could not operate in the way intended by the parties, yet as it was possible for it to operate in another way, it so construed it ; and regarded it as a covenant to stand seised, because it had all the rnquisites of one; instead of a relea se or grant. The cast oi Cholmondeley V. Clinton, (7 Petersd. Abr. ^87,) also referred to by the vica vhancellor, affords no example of any bending of the rules of 1848. CASES IN CHANCERY. 2^3 VaiiJer Volgen v. Vatea. law to effectuate the intention of the grantor. The ease of Gregory v. Henderson, (4 Taunt, 772, 774,) also leferred to by the vice chancellor in support of his views, is simply a case turning on the distinction between an use. executed by the Btatute and an executory trust. Neither of these cases appear in the slightest degree to support the vice chancellor's views. No rule of law was bent to carry out the supposed intention of the grantor. In the case of Roe v. Tanner, the deed, besides being a release and grant, was a covenant to stand seised. And the court merely held that that covenant should be carried into effect, while the other parts of the deed were inoperative. In Cholmondeley v. Clinton, no rule of law was bent, even by the two judicial officers who held that the deed should be con- strued to uphold the declared intention, as they took into view an element not considered by the others. And yet in that case three judges held that the declared intention could not be ca.Y- ried into effect. In Gregory v. Henderson, the courts merely decided u[/on the rule which, in all the cases, distinguishes be^ tween executory trusts and uses executed by the statute, to wit, if there is any thing for the trustees to do, the trust is executory, and the cestui does not take a legal estate. If otherwise, tlie statute executes the possession to the use. The vice chancellor also err«d in his general conclusion that the construction contended for by the complainants would defeat the intention of the parlies to the deed, and be in hostility to its provisions and covenants. He errs in assuming that the intention of the parties to the release was to pass all the estate out of the releasor, and that that intention must be effectu- ated by the court. Now there is nothing in the release to indicate such an hitention. It is worthy of remark that the instrument was one 0{>erating by the common law and statute of uses combined, and was such an one as was in common use in this state, at the time, to convey legal estates ; and that it was the accustomed method of conveying legal estates up lo within two years of its date,, (4 Kenfs Com. 494, erf. of 1832.) By such a deed it was well understood that the only estate which passed out of the releasor was the use expressed, which 264 CASES IN CHANCERS. [JtWE 5, Vander Volgen v. Yates. by virtue of the statute was executed in tlie cestuis, a lega^ estate, of the same extent, and that the releasees took nothing, ((5*66 1 Saunders, 119.) There is then no evidence, on the face of the deed, of an intention to pass any greater estate lut of the grantor than the uses express6d, arid the releasor ex- pressly declares and provides in the release, that the releasees shall hold the premises to and for no other use, intent and pur- pose whatsoever than the uses expressed. Again •, the inten- tion of a party to a deed is to be gathered by the court solely from the terms he employs. If he employs technical terms, he is supposed to know their force and meaning, even in the case of a will. (6 Cruises Dig. tit. 38 Devises, ck. 9, § 6.) If he omits terms which are necessary to pass a fee, it is presumed that it was not his intention to pass a fee. If he conveys to two, one capable and the other incapable, it is presumed that it was his intention to give to the one capable. This is a familiar principle. (4 Cruisers Dig. Title Deed, ch. 19, § 3. Co. Litt. 271, b, note 231, by Buller.) The principle is com- mon to both courts of law and courts of equity. The same rules of interpretation and construction apply, to conveyances of land, in both courts. A court of equity may correct mistakes in a deed, when properly applied to for the purpose ; but in the construction of the terms and words of a deed, it is govern- ed by the same rules as courts of law. It determines what is the legal effect of the instrument, and nothing more.. (1 Mad. Ch. Pr. 452, 552, 574.) The vice chancellor erred in this po- sition, that the release on its face conveyed the premises in question to the grantees and their heirs forever, together with the reversion, &c. and all the right, title, interest, &c. of the grantor in the same, to have and to hold to the grantees and their heirs forever. By a strange mistake, the vice chancellor overlooks the remainder of the sentence in the habendum. In the release it is as follows, "to have and to hold to the parlies of the second part, their heirs and assignf forever, upon trust nevertheless to the only proper use, benefit, and l. Yates. pla'uv impciit of, the deed is, " I convey to you in trust that you may give a lease, for life to the cestui que use, but for uo othei purpose, and I give you no more than just enough to convey Such a life estate." There was no conveyance of any rever- sionary use. He also erred in his irlference drawn from hist jbservation that the conveyance was to Van Dyck and others, and those who were, (fcc. their survivors and successors forever. He places stress upon the word forever. Now this term was never held in a deed to create a fee simple. It is a most com- mon doctrine that a deed to a man to hold to him forever only gives him a hfe estate. Nor does the word successors help the matter, or aid to create a fee simple, as I have already shown. Suppose the use had' simply been to Cornelius Van Dyck and the other cestuis named forever, could they, on any principle, take more than a life estate ? Now the effect of the deed is th? same as if it had been so, for the words, members of St, George's Lodge, added to their names, were only words of description, and they could have no successors. The vice chancellor also erred in the conclusions he draw? from the cases put by him byway of illustration. He says: " Suppose the clause in-the deed providing for the use express- ed only the persons named, without any words of perpetuity, where would be the legal estate ; the residue after the cestuis' life estate ? Would it be in the grantor as a resulting use 1 Why should it result? Because the whole estate was not granted? No!" By the doctrine every where laid down in relation to conveyances operating by the statute of uses, thq legal estate, the residue after the cestuis' life estate, would be in the grantor as a resulting use executed by the statute. And the reason why it should result would be that the u=e of only a life estate was ever disposed of And I have shown that the releasees took nothing by the release. The releasees' estate foi; one year was merely enlarged to uphold the uses, ar. i for no other purpose, and the use expressed exhausted the considera- tion in the release, as has been shown. The residue of the use, for all the reasons given under the third point, resulted to the releasor, and was, by operation of the statute, vested in him ea 1848.] CASES IN CHANCERY. 267 Vandet Volgen v. Yates. tnstanti as a legal estate. The vice chancellor continuea— '• Because there was no person to take ? No ! for the grant was to the grantees and their heirs forever, and for a full con sideration !" The answer is an obvious one. The grant was to the grantees and their heirs, for the particular purpose of up- holding the use ; and it w^as expressly declared that it was to and for no other use, intent and purpose whatsoever. They look nothing at all by the release, and had no interest in the estate. (1 Sound, on Uses, 119.) As to the estate of the grantee. It is obvious that as the statute has made the estate of cestuis que use legal instead of equitable, and entirely divested feoffees, releasees, &c. of all estate whatever, most of the incidents which attended the use in its fiduciary state are now at an end. With respect to the feoffee, he has no interest at all in the land. It could never have been intended that the releasees should lake any thing by the release. It was only meant that they should be the conduit through which to pass a legal estate to the cestuis,' of the same nature and extent as the use declared. The vice chancellor erred in the following conclusions from his train of reasoning : That there was no necessity, according lo any rules applicable to cases of resulting uses, that the estate should revert, in opposition lo the expressed intent of the parties ; and that it was a purchase by the grantees of the whole estate for adequate consideration, with a provision in the deed reserv- ing a life estate to a third person, and belonging, in law and equity, to the grantees and their heirs after the termination of the life estate. In the first place, there is no expressed intent of the parties that the use should not result. The 'only ex- pressed intention in the release is that the releasees should take aufijcient seisin to uphold the use lo the cestuis, and that they should not take any estate in the premises for any other use, intent, and purpose whatsoever. In the second place, I have shown by the note on Coke Littleton, above referred to, that if there had been an intention to grant the cestuis an estate in fee, that cannot be made to ride over the legal effect of the terms employed, or supply the omission of terms absolutely ne- cessary to pass a fe& simple. The inflexible rule of inlerpreta 268 CASES IN CHANCERY. [Juke !\ Vander Volgen v, Yates. tion as to ;,lie estate granted, befoi-e shown, is followed as well by courts of equity as those of law. [Bagshaw v. iSpencer, 2 Atk. 574. 1 Mad. Ch. Pr. 452, 558.) As to the vice chan- cellor's second conclusion, that by the force of the conveyance the releasees took the whole estate subject to the life estate to the cestuis, it is at war with the whole doctrine of uses created for less than the whole estate, and the doctrine of resulting uses. There is not a ca,se in the books to uphold the notion, that a deed which conveys to grantees an estate in fee on trust to a certain use for life, and with the express provision that it is intended for no other use, intent, or purpose than such de- clared use, ever did, since the statute of uses, convey any estate to the grantees, or that the use of the inheritance did not result to the grantor. There is no analogy between such a deed and a deed containing a reservation or exception. As has been shown, since the statute, the grantees take nothing in the land. ' Mr. Saunders thinks they may possibly be entitled to the deed, as the statute only draws the legal estate to the use, and says nothing of the muniments of title. (1 Saund. on Uses, 119.1 The vice chancellor's reference to Cornish on Uses, (p. 69,) does not sustain his position. The passage referred to is a full examination of the doctrine of resulting uses, and the broad principle of all the other writers is laid down as fundamental, that " so much of the use as the grantor does not dispose of remains in him.'' The vice chancellor erred in the position that if the estate passed through the grantees and vested in the cestuis, they took it in trust for themselves and the future members of the lodge, and they dying, the chancellor will supply trustees. If the only estate which was carved out by the expressed use of the releasor, was an estate for life to the cestuis who were suf- ficiently named, then on their death the estate is ended, and the inheritance reverts to the representatives of the releasor. No instance is to be found in the history of conveyances ope- rating either at common law or by the statute of uses, where, when an estate or use was conveyed to two persons, one capa- ble and one incapable, tjie capable should be held lo tale la 1848.] CASES IN CHANCERY. 269 Vander Volgen v. Yates. trust for himself and the non-capable. The rule in such case* as above stated is inflexible. The authorities there cited show this. ( Touchstone, 82, 237. 1 Saund. on Uses, 135. Cruise, Deed, ch. 20, § 8. Vinei-'s Ahr. Grants, 133, pi. 6.) There is a class of cases where, since the statute, an use upon an use which cannot be upheld as such, is upheld as a chancery trust. As where A. bargains and sells to B. to the use of C. ; or where A. covenants to stand seised to the use of B. for the use of C, Now at common law, before the statute, the second use Avould have been void as an use upon an use. And so the courts still hold. For the only seisin which B. would have to uphold the use to C. would be the use given him executed by the statute. So they hold that the statute executes the use which was good at common law, and that the void use is still void. Neverthe- less the court of chancery, by a practice which has been a good deal complained of, but which has become thoroughly estab- lished as law, have got round the dilBculty by regarding the second use as an executory tiust, and thus by subpcsna com- pelling the first cestui whose estate had been rendered a legal one by the operation of the statute, to hold as a trustee for the second use, [See 2 Black. Com. 335, Chitty's note 60, and the eases there referred to.) This is the only case where a cestui que use is held to be a trustee. No case can be found where, in a grant to two grantees, one capable and one incapable, the capable takes in trust for himself and his incapable co-grantee. In the present case the release is to the use of twelve capable persons, and sundry others who might or might not be in ex- istence — who were unknown to the law — a,nd were incapable to take as they were described in the release. The capables therefore took all the use expressed. Again ; the use expressed was so expressed that no estate of inheritance pissed. It was therefore an use for life only, as has been already shown. I have remarked that the release in this case was such an one as, at the time it was made, was in common i:se to convey legal estates. (4 Kent's Com. 494, ed. of 1832.) And it ap- pears b}' the statute for the prevention of frauds, passed in 1787, ll GreenlcaJ 's Laws of N. Y. 385, § 3,) that the doctrine of ^70 CASES IN CHANCERY. [Jt'»E 5^ Vander Volgen o. Yates. resulting uses was recognized and preserved. That was bu ' ihree years prior to the date of the release. It must therefore oe presumed that the conveyancer drew the release for the pur- pose of transferring a legal estate. Most certainly the notion mat there is any thing in this conveyance to take it out of iSe ordinary class of deeds operating by force of the common law combined with that of the statute of uses — well understood at ihe time the conveyance was made — and to render it the Instru- ment of creating a new and anomalous trust is without a sem- blance of authority or analogy. The vice chancellor erred in his construction of the rule that the question whether parties shall take a trust estate, or an use executed by the statute, will depend on intention, and in ascer- taining the intention courts have looked to what was contem- plated to be done, &c. ; and also in its application. The inten- tion which courts look into the deed to ascertain, in order to determine whether an executory trust is created, or an use is executed by the statute, is confined to this point — What did the grantor contemplate was to be done by the grantee with the premises? It is the legal effect of the terms employed. If the instrument simply gives the estate to A. in trust for B., without any further provisions ; or to A., in confidence that he should hold it for B. ; in these and all such cases, where nothing is to be done with the premises by A. but to hold it for B., the statute executes the possession to the use, and creates the legal estate in B. If it convey to A. with directions to manage or dispose of the estate, or the rents, for the benefit of B. in such a manner as to require A. to do any thing in order to carry into effect the direction in the trust clause, there the statute does not operate, and the estate is in A., as a chancery or executory trust. And the reason is given by all the writers, that in this case it is ne- cessary that the legal estate should rexAin m him, to enable him to perform his duty under the trust. The broad distinction is this : If there is any thing for the trustees to do, requiring them to have the power of controlling or exercising acts con- nected with the possession of the legal estate, then it is a chan- cery truit. If there is nothing for the trustee to do, if is an U9« 1848.1 CASES IN CHANCERY. 271 Vander Vrilsen v. Yates. executed by the statute. (1 Mad. Ch. Pr. 448 lo 430. Ccke lAt. 290, Butler's note 249, § 504.) It is sometimes doubtful whether an estate be legal or equitable. The resuu of the '•ases seems to be, 1st. That a devise to A. and his heirs in trust for B. and his heii-s, without any ulterior words, is an use executed by the statute in B., and so also would be a devise to A. and his heirs in trust to permit B. and his heirs to receive the rents and profits. 2d. That a devise to A. and his heirs with direc- tions to dispose of the estate, or of the rents, in such a manner as necessarily requires the legal estate should reside in him, will of course vest the legal estate in him. [Id. 2 Bl. Coot. 335, Chitty's note 60. Id. 2,'i&, Christian's note 62. 21 Wend.UT.) By the felease in this case there was nothing for the releasees to do. The intention was simply that they should be the conduit of an estate to the cestuis. The conveyance was expressly, and in terms, upon trust to the use of the cestuis, and to and for no other use, whatsoever. And it would have made no differ- ence, in its effect, if it had, by any other form of words, expressed that the releasees should hold it for the cestuis named ; so long as there was nothing for them to do as trustees. For the statute of uses executes the use in all such cases. Its language is, " Where any person or persons stand or be seised, &c. to the use, confi- dence or trust of any other person or persons," &c. And be- sides these particular words, use, confidence and trust, the word intent will raise an use to be executed ; as a feoffment in fee, eo conditione, that a third person should have, &c. (1 Saund. Uses, 98.) And all such rses, confidences and trusts were ex- ecuted by the statute, and becoming thus legal estates, the inci- dents necessary in the conveyance of legal estates aie all necessary in the transmission of uses. (1 Saund. Uses, 122 Touch. 509. 2 Hill. Abr. 341, § 51. 1 Id. 196, § 9. 1 Cruise, tit. 12 Trust, ch. 1, § 86. Broughton v. Langley, 2 Ld. Raym 877.) In no case where there is a technical artificial conveyance of ^n estate, employing terms of as having a fixed, certain and well known legal effect, will the court speculate and guess ou* an uitention adverse to or inconsistent with he legal effect of 272 CASES IN CHANCERy. f Jckb O.r VanJer Volgen ». Yates. the deed. (1 Mad. Ch. Pr. 5oi.) As to the releasor's Intention nere : When he declares in his deed that he had by bargain and sale conveyed an estate for one year, and that by virtue ol the operation of the statute of uses that had become converted into a legal estate for that term, and when he goes oh and by the strictest technical language conveys another use to the ces- tuis, is it possible that all parties did not intend that the statute should operate upon that use and convert that also into a legal estate? There is nothing, as the vice chancellor supposes, to show the use was intended for St. George's Lodge. The words members of St. George's Lodge following the names of the cestuis named, were merely descriptive of their persons. It was never heard that a conveyance to A., B. and C, members of a particular church, or society or corporation, was a grant to the society, or corporation. A grant to fifty persons, naming each, with the words being all the members of a particular society named, would be a grant to them as individuals. There is no- thing in our release to indicate that the use was for the benefit of the lodge in any event. The courts have no power to bend a conveyance from the obvious and well settled legal effect ot the language emplo3red. (1 Cruise, tit. 12 Trust, ch. 2,^ 2. 1 Mad. Ch. Pr. 452. Com. Dig. Uses, 992.) , It may indeed be, in some cases, a hardship that the churchwardens of Dale, the inhabitants of Otsego county, or the inhabitants of the town of Rochester cannot take by those names. But the law intend- ed for the benefit of the greatest number is so ; and it was never heard that a new sort of trusts should be framed to get around it. Nor can the court guess at an intention, other than such as the legal construction of the instrument warrants. The in- tention is the legal interpretation of the terms employed. ( Toth. 153.) The vice chancellor erred in the conclusion that the covenant for further assurance placed the complainants, as represeata-. lives of tne releasor, under obligation to make conveyances of tiie fee simple to the releasees, or the cestuis, or to the lodge. The covenant in question is, in terms, to make new and further conveyances when necessary, for the further, better and more .348.! CASES IN CHANCERY. £73 Vander Volgen v. Yates. perfect granting, conveying and assuring of all and singular the said premises above mentioned, vvith the appurtenances, unto the said party of the second part, their heirs and assigns, to and for the uses and purposes hereinbefore specified and more particularly mentioned. The covenant of warranty has the same qualification. And the estate released was qualified in the same way. The covenants, then, were merely to make further conveyances to uphold the use, and to warrant the use, and nothing- more. And the covenants, in no manner, deter- mine what that estate was. They refer to the habendum, the use declared, exclusively ; and without that, their extent can- not be ascertained. If the use was for years, the covenants are to make assurances to uphold and warrant such an estate. If for life, an estate for life. But they are not to make deeds to convey a fee when the gse was of a less estate. Again, cov- enants in a deed do not enlarge an estate, nor in any- manner affect its extent. ( Touc/isione, 106, 182, 197.) If, as the vico chancellor proposes, the cestuis que use should demand further conveyances under the covenant, the answer would be, no con- veyances are now necessary to uphold the use expressed. You have enjoyed that, and it is now ended ; we only covenanted to secure that to you. If the releasees should demand further conveyances, the reply is, the land was only conveyed to you in terms to the use expressed ; you were the mere conduits of the title, and never had any interest in it. You have had all the title necessary to uphold the uses expressed. If either should, as the vice chancellor proposes, tell us, you had a full consideration paid vou for the premises, and professed to con vey the whole, the reply is, the only consideration paid was for .he use expressed. This is the legal, and tlie only legal pre- sumption. And it is a mistake to suppose the conveyance pro- %sed to convey the whole. It expressly limited the estate •conveyed to the use expressed. The vice chancellor then refers to the case of Jackson on law conveyance, or as the cestuis que use in a conveyance under the statute of uses, not being a corporation, or persons certain ; but they could by that description take a beneficial interest in a trust estate. {Jackson v. Corey, 8 John. 30L) A tiust is a use not exe- cuted by the statute of uses ; but it is what a use was before the statute of uses. (4 Kent's Com. 303, § 61. Cruise, tit. 12 Trust, ch. 1, § 2. 1 Hit. Ab. 201, § 3. Fisher v. Fields, 10 John. 495.) Such uses as were not provided for by the statute of uses were left to their former operation. The provisioni of the statute 276 CASES IN CHANCERY. FJuke S Vander Volgen o. Yale«. were nol deemed co-extensive with the various modes of cre- ating uses. {Cruise, tit. 12 Trust, ch. 1,^2.) Uses not abol- ished by the statute of uses, continued to exist under the name of trusts ; and were takeu notice of and supported by the court of chancery under that name. {Id. § 1.) A cestui que use in esse is necessary to the execution of a use by the statute. If, therefore, a use is limited to a person not in esse, or uncertain, the statute has no operation. {Cruise, tit. 11 Use, ch. 3, § 29.) Contingent uses could be limited before as well as after, the statute of uses. (4 Kenfs Com. 298, 290 to 301, § 61.) Thus a contingent remainder might be limited by way of use, to a person not ascertained, or not in esse ; as, to the use of A. for life, remainder to his first and other sons in tail, A. at the time haying no sons, (or remainder to the right heirs of J. S.; J. S. being living,) the contingent uses to the first and other sons of A. could not be executed, because the sons Were not in esse. When A. had a son, a use vested in him, and the statute then transferred the legal estate to the use. Until such uses were execvited they remained as they were before the statute. The possibility of entry in the feoffees to uses, was deemed sufficient to support the contingent uses when they came in esse. {Cruise, tit. Remainder, ch. 5, §§ 1 to 6. Id. ih. ch. 1, § 16. Id. tit. Use, ch. 4, § 3. Coke Lit. H. ^ B. Notes, n. 2, 31. Child- leigKs case, 1 Coke R. 100, 133. Kent's Com. 2, 41, § 59. Shep. Touch. 505, C. 1 Atk. 593.) The counsel for the appellants contends that the grantor, by the conveyance in question, con- veyed nothing but a hfe estate, to endure no longer than the life of the Icist survivor of the cestuis que use named in the deed ; and that on his death the estate reverted to the devisees of the grantor. And he contends that the cestuis que use spe- cially named, were alone able to take the use expressed; that the use was only for their lives, no terms having been employed to pass the inheritance to them ; that the statute immediately executed the use; and that the remainder of the use resulted to the grantor, and by operation of the statute vested in him the revers.on in fee, after the determination of the life .estate of the cestuis que use. The fallacy of this argument consists it as- I34a] CASES IN CHANCERY. 277 Vander Volgen v, Yates. suniiiig itiat the use declared was only for life, And was con- fined to the cestuis que use specially named, and was executed by the statute of uses ; and that the members of the lodge, other than those specially named in the deed, were incapable of taking any estate, legal or equitable, under the deed, for want of being described with sufficient certaintj' ; whereas, we say, that the use declared in favor of the members of St. George's Lodge, was not a statute use, but a valid chancery trust, created in favor of all the then present members and the future members of the lodge, not executed by the statute ; or, if executed, only executed as to the members of St. George's Lodge, as they from time to time came to be in esse. The question whether parties take a trust estate, or a use executed by. the statute, depends on intention. (4 Taunt. 774. Co. Lit. 290, b, n. 249, sub. 6.) The intent here was indispu- tably to give the use of these premises to the members of St. George's Lodge, in perpetuity. That could only be done by creating a trust in their favor. A conveyance to the members as such, would have been void for uncertainty. If to St. Gecwge's Lodge, it would have been void, because the lodge was not a corporation. To hold that the use declared by the convey- ance was only for the life of the cestuis que use specially named, and that the statute executed the use, would defeat the intent of the parties, and the whole object of the purchase. Such a construction would depijve the purchasers of an estate of inher- itance for which they paid a full consideration, and of the use and enjoyment of the premises before the dis.solution of the lodge ; until which time, at least, it was intended that the estate should continue in the members of the lodge. The general in- tsntion of the parties to the conveyance, being that the estate eonveyed should belong to the members of St. George's Lodge in perpetuity, or as long as the lodge remained in existence. *uch a construction will be put upon the deed as will carry into effect this general intent. [Jackson v. Beach, 1 John. C. 399. Jackson v. Myers, 3 John. 388.) In Gregory v. Henderson, (4 Taunt. 772,) Gibbs, J. says : Where there is a devise to A. and his heirs, to the use of B. and his heirs, the court will noi 278 CASES IN CHANCERY. [Juke i Vander Volgen o. Yates. hold it use executed, unless it appears by the whole will tha'i such was the testator's intent. (1 Hil. Ab. 203, §§ 12 ,o 14. 16 19, 21, 22, 12 Pick. 152. 16 Id. 330, 327. 7 T. R. 552.) If a deed cannot operate in the manner intended by the parties, it will be construed to operate in some other manner. (Cruise^ tit. Deed, ch. 23, §§ 17 to 23. Goodtitle v. Bailey, Cowp. 597, per Lord Mansfield. Roe v. Tarmer, 2 Will. 77, per Willes, Ch. J.) By intent, is not meant the intent of parties to pass the land by this or that particular kind of deed, &c. but an in- tent that the lands.shall pass at all events, one way or the other. This case shows how far courts carry the doctrine of bending the rigid I'ules of verbal construction, to carry into effect the manifest intent of the parties. (7 Petersd. Ab. 687, Deeds, con- struction of, 692. Cholmondeley v. Clinton, 2 B. iSf A. 625. 2 M. 4* S. 363. Jackson v. Myers, 3 John. 395. Jackson v. Beach, 1 John. Ca. 399. Troop v. Blodgett, 16 John. 172. Cholmondeley v. Clinton, 2 Jac. 4* Walk. 70, 79, 80, 81, 91 to 98, 100, 101, per Sir Thomas Plumer, Master of Rolls. Parkhurst v. Smith, Willes, 332, per Lord Ch. J. Willes.) The intent here was to pass the equitable estate to the mem- bers of St. George's Lodge, in perpetuity. This intent can only be carried into effect by construing the estate created as being a chancery trust in the members of St. George's Lodge, and not a statute use. And under the authority of the above cases, the court will therefore hold it a chancery trust. The following rules of construction of deeds seem to require that the estate shall be deemed a trust, viz. The intention of the parties is to prevail ; the construction is to be made on the entire deed ; stress is not to be laid on the strict meaning of words ; the construction is to be most strongly against grantor ; if the deed will bear two constructions, the one favorable to law and justice is to be adopted ; to effectuate the intent of the parties, mistakes will be corrected, and omissions supplied ; and where a deed may enure in different ways, the grantee shall elect which way to take it. {Cruise, tit. Deed, ch. 23, §§ 1 to 25.) See the cases stated in 7 Petersd. Ab. pp. 687 to 690, 692, showing how far courts go to give effect to the intent of the parties. 1848.1 CASES IN CHANCERY. £79 Vander Volgen v. Yates. (1 Inst. 183, a. Id. 42, a. Id. 273, 6.) It may be made a question, whether upon a bargain and sale for one year, and a release, (as in this case,) a statute use could be limited to any person other than the bargainee and releasee ; and whether, upon such a conveyance, the legal estate does not vest in the grantee named therein, the lease and release being a single conveyance ; (4 Kenfs Com. 494 ;) upon the ground that be- ing deemed a bargain and sale, the statute executes the use in the bargainee, and therefore cannot execute a second use in the cestuis que use named. And whether the interest of the cestuia que use in such a conveyance can be supported in any other way than as a chancery trust. This is the rule applied to a deed of bargain and sale. (2 Bl. Com. 335, 6, 7.) It was al- so applied in Jackson v. Cary, (16 John. 302,) to a bargain and sale for one year and a release The only distinction between that case and this, is that there the habendum clause stated that the premises were to be held to the use of the grantees or bargainees, in trust, «kc. But the court, in their opinion in that case, relied upon no such distinction. If this rule applies to this case, then the legal estate vested in the grantees, one of whom (J. C. Yates,) was alive when the original bill was filed ; and no use in the cestuis que use was executed, and no use resulted to the grantor. Many adjudged cases can be referred to, to show that the con- veyance of N. Vander Volgen created a valid chancery trust, in perpetuity, in favor of all the members of St. George's Lodge, present and future ; and that the members of St. George's I lodge were capable, by that description, of taking an equitable estate, and that the legal estate was conveyed to, and vested in, the releasees as trustees, and was not, by the statute of uses, transferred to any use in the cestuis que use specially named, or to any supposed resulting use in the grantor. The use lim- ited to the members of St. George's Lodge, is not void on the ground of uncertainty. For before and since the statute ot uses, uses could be limited to persons not in esse, and uncerta in. {ChudleigKs case, 1 Coke's Rep. 100 to 131.) The uses s>c limited, remained contingent until the cestuis que use came m 280 CASES IN CHANCERS . tJoae b Vander Volgeii v. Yatra. esse, and then were executed ; oivlhey were sustained as trasta {Id. 133.) In the conveyance in questionj there is no grealei uncertainty of description of the cestuis que use, than in tha ordinary cases where the use was hniited to the sons of A., (A. at time having no sons.) or to the eight heirs of I. S. (I. S. b& ing hving.) In such cases the uses are vaUd. {Cruise, tit. Remainder, ch. 5, §§ 1 to 6. Id. ch. \, § 16. Crttise, tit. Use, c/i. 4, § 3. Co. Lit. H. 3r B. n. 231. 4 Kent's Com. 237 ta 242, S 59. Cornish on Uses, 69, §§ 3, 132. 3 Vol. Law Lib. Shep. Touch. 505, 6.) In Jackson v. Sisson, (2 John. Cos. 321,) there was a patent of certain lands to A., B. &- C, for them- selves and their associates, being a settlement of Friends on the west side of Seneca lake ; to have and to hold the same to A., B. &, C, as tenants in common, for themselves and their asso- ciates, in fee. Kent, J. held that the associates, by this descrip- tion, had an interest in equity, and that A., B. &. C. were tins- tees for the association. In Jackson v. Brooks, (8 Wend. 426,) patent to R. and four others, in behalf of inhabitants of town cf S., their associates, heirs, successors and assigns ; and deed of confirmation to grantees in trust for themselves and the other inhabitants and freeholders of the town of S., their heirs and assigns forever. Savage, Ch. J. {p. 452,) regards the inhabit- ants, by this description, as having a valid triist estate in tha lands. And the case necessarily adjudges it a valid trust, as it decides that the act of the legislature, transferring the trust es- tate to ihe city of Schenectady, passed the title both legal and equitable. {S. C. decision affirmed in court of errors, 15 Wend. 111.) In Reformed Dutch Church, Sfc. v. Veeder, (4 Id. 494,) where a grant was made to individuals for the use of a church, which at the time was not incorporated as such, held that the persons to whom the grant was made, stood seised to the use ; and when the church afterwards acquired legal capacity to take and hold real estate, the statute executed the possession to the use, and the estate vested. In this case, Ch. J. Savage says : The patentees of the town of Schenectady held in trust for the town of Schenectady. That they held the legal estate. He thus affirms the validity of that trust ; also, the validity of 1S4S.] CASES IN CHANCERY. 281 Vander Volgen v. Yates. thetiust for the church of Scheaectady, a body unincoipbratetl, and not capable of taking or holding the legal estate in real property. This case is, in principle, precisely like the present one. A limitation to the use of the poor of a parish, was held good as a trust, though not as a use. (2 Vern. R. 387. Gilb. on Uses, 44. Attorney General v. Clark, Amb. 422. Jones v. Williams, Id. 651. 1 Coke's Rep. 25; and cases cited as re- ported by Benlowe.) Feoffment i^y lord of manor to trustees in trust that inhabitants of A. might forever have a school and site of school house, was held valid as a trust. {^Attorney General v. Hewer, 2 Vern. Rep. 387.) Grant by dean and chapter, &c. of a piece of ground to parishioners of St. Marga- ret, &c. who afterwards erected a chapel thei'eon, held valid as a trust. {^Herbert v. Dean ^ Chapter of Westminster, 1 Peere Wms. 773.) Grant to wife of J. S. (J. S. at the time having no wife,) or to his first son, or second son, or to all his sons, or ia right heirs of J. S., (J. S. being living,) was held good by way of contingent remainder, or contingent use. [Shep. Touch. 236. Wells V. Fenton, Cro. Eliz. 826.) Devise of a messu- age to testator's wife and her heirs, on condition to convey same in convenient lime, &.c. for establishment of a grammar school forever ; held that the condition was good as a charitable use ; and that for a breach, the heir might enter. {^Porter's, case, 1 Coke's R. 22, b.) In conveyances to uses, future limitations, where no particular estate has been created, may be supported either in the shape of remainders or springing uses. (1 Saund. on Uses Sr Trusts, 136, 7. 1 Atk. 586. 2 Salk. 675.) If A. make, a feoffment in fee to the use of B. and his wife that shall be, though the whole estate vest in B. at first, yet on his mar- riage, his wife shall take jointly with him. (1 Saund. on Uses S)- Trusts, 135, 6, and cases there cited, viz. Dyer, 274, 276. 1 Coke, 101, a. 13 Id. 57. Mood. 64. 2 Bro. Ch. Cas. 233. Wells V, Fejiton, Cro. Eliz. 826. Woodliff v. Drury, Id. 439.) A use to a person uncertain, is not void in the first limitation, but it is not executed until the person be in esse. (22 Viner's Ab. tit. Uses, 247, 8, E. § 7.) If a use is limited to two jointly, nt in esse, and one conies to be ir esse, he shall take the en- VoL. HI. 36 fe.. 2R2 CASES IN CHANCERY. L^umb i Vander Volgen ». Yates. tire use ; yet if the other afterwards comes in esse, he sha 1 take jointly with the former, {Id. 256, § 2.) In recommendatoiy trusts, in respect to certainty in description of objects or per^zons, it is not indispensable that the persons should be described by their names; but more general descriptions will amount to a sufficient designation of the person to take, as sons, children family relations, if the context fixes the particular persons who are to take, clearly and definitely. ' (2 Store's Eq. § 1071 2 Bro. Ch. 38. 3 Meriv. 437. 1 Pow. on Dev. hyJarman, 274, n. 7. Id. 200, n. 3. Jeremy's Eq. Jur. B. 1, ch. 1, § 2, p. 100, 101. 17 Ves. 255 ; S. C. 19 Id. 301. 8 Id. 604. 9 Id. 319. 2 Story's Eq. § 1065.) In Stubbs v. Largon, (2 Keene, 255,) before Lord Langdale, in 1837, the testatrix gave certain leasehold premises to trustees in trust, fifter the decease of B. S., to dis- pose of and divide the same unto and among'st her partners, who should be in copartnership with her at the time of her de- cease, or to whom she might have disposed of her business, in such shares and proportions as her trustees should think fit ; held that this was a good devise to the persons, to whom it was ascertained that the testatrix had disposed of her business in her lifetime. Counsel for defendant objected that the devise was void for uncertainty ; the objects of the devise not beins; sufficiently defined. The master of the rolls says : "If the de- scription be such as to distinguish the devisee from every other person, it is sufficient." His decision was afterwards affirmed by Lord Cotienham. ' (3 Mylne <^ Craig,. 509.) The Lord Chancellor says : " Devisees may be ascertained not only by future natural events and contingencies, but by acts of third persons." (See cdso Sandford v. Raikes, 1 Meri. 653. Clap- ton V. Buhner, 5 Mylue ^- Craig, 108 ; S. C. 10 Sim. 426.) Where the lord of the manor grants- certain parcels of com- mon to trustees for lire benefit of themselves and the rest of the tenants of the manor, in lieu of their claims of connnon in the rest of the common lands in the manor, the whole interest passes from the lord, and there is no resulting trust for heirs as to tiie ownership of the soil. [Irwin v. i'impsori, 7 Bro. P. C. 306. Grovenor v. Hallnm, Ainb. 643.) ] >evise of messuage J8-ia] CASES IN CHANCER r. 283 Vander Volgen v. Yates. subject to annual payment of forty shillings to church wardena of two diflferent parishes- forever, to be laid out in repairing the testator's family vaults in each parish ; held, that although church wardens could not take, yet the devise was good, and the heir at law was trustee. In Attorney General v. Cook, {2 Ves. sen. 273,) a devise of an annuity to a Baptist minister and .lis successor in office, was held valid. {^Attorney General v. DoivningjAmb. 550,571. 1 Dickens, Ali.) Devise to trustees, of an estate, upon trust with the rents to establish a college, and after the foundation and incorporation of tlie college, in trust for the collegiate body and their successors forever, held valid. A similar devise for building a hospital, &c. held valid by Lord Hardwicke, in Addington v. Cann, (3 Atk. 141.) Devise by testator, after death of his wife, to the principal, fellows and scholars of Jesus College, Oxford, and their successors, to find a scholar of his blood from time to time ; held good in equity. {Floyd's case, Id. 6. Hob. 136.) Doe v. Copestake, (6 East, 328, 1805.) Devise of land to trustees, their heirs or successors, in trust, to be applied by them and the officiating ministers, for the time being, of a Methodist congregation, as they shall, from time to time, think fit to apply the same ; held not a devise to charitable uses within the act of 9 Geo. 2, c. 36, and that the trustees were entitled to recover the premises at law. {Morice V. Bishop of Durham, 1 Ves. jun. N. S. 399.) Inglis v. Trus- tees of Sailors' Snug Harbor, (3 Peters, 1 13.) Devise to chan- cellor of state of New- York, and recorder of city of New- York, «fcc. and their successors in office, in trust to erect an asylum for the purpose of maintaining aged and decrepit sailors, insti- tutiou 10 be perpetual ; held a valid devise to divest the heir of his legal estate, or at all events to affect the lands in his handa with the trust. If, in Baptist Association v. Hart's Ex'rs, (4 Wheat: 27,) the devise had been to a trustee capable of taking tlie legal estate, upon the same trusts, the devise would have been held valid. (3 Pet. 113.) Coggeshal v. Pelton, (7 John Ch. 291.) Legacy of a sum of money to town of Rochelle (not a corporation) for the purpose of erecting a town house foi transacting town business, held val:'d as a charitable bequest 284 CASES IN CHANCERY. LJ^'^e 5 Vander Volgen v. Yates. Potter V. Chapin, (6 Paige, 649.) Held by the cl ancellor th:it chancery will sustain a gift, bequest or dedicatio/i of property to public or charitable uses, for the benefit of a community not incorporated ; provided the same is consistent with local laws and public policy ; artd where the object of the gift or dedication is specific, and capable of being carried into effect, according to the intention of the donor. In Witman v. Lex, (17 Serg. S^ Rawle, 88,) held that a bequest to St. Michael and Zion churches in Philadelphia, the interest to be laid out in bread annually for ten years, for the poor of the Lutheran.congregation, was a valid bequest. See Com. Dig. 269, tit. Charitable Uses, as to ap- pointments to charitable uses. Some of the above English equity cases are bequests for charitable purposes. But I deem them applicable ; because the court of chancery in England liad original jurisdiction over bequests to charitable uses upon the doctrine of the common law, independent of the statute of 43 Eliz. called the statute of charitable uses. And the court of chancery in this state has the same jurisdiction, although the English statute of charitable uses has not been re-enacted here. (4 Kent's Com. 507, 8, § 68. 2 Id. 287, 288, and note d, § 33. McCartee v. Orphan Asylum, Society, 9 Cowen, 464, 474, 475, 488, per Chan. Jones.) We have no statute hke 9 Geo. 2, ch. 36, prohibiting or restricting devises to charitable uses, nor any statutes of mortmain. (9 Cowera, 451, 2.) Devises to charita- ble uses generally, b}' interposing a competent trustee, were valid at the common law. And the court of chancery, in analogy to other cases of trusts, held the feoffees to such uses, accountable in equity for the due execution of them. (2 Story's Eq. §§ 1145, 1 146. Anon. 1 Ch. Cas. 207. Attorney Gen. v. Tancred, 1 W. Black. 90.) The court of chancery exercises jurisdiction over charities, because they come under the head of trusts. (I Story's Eq. § 1136.) If it were necessary, we could insist that the grant in this case to the members of St. George's Lodge was for a charitable purpose. The principal object of the order of freemasonry being, as appears fiom its history, the affording relief and assistance to the irdiger members of the fratern'ty, and their families. IStS.] CASES IN CHANCERY. 2S5 Vander Volgen v. Yates. The validitjr of grants and devises to charitable use ^, waa only questioned at common law, where no trustee, capable of taking the legal estate at law, was interposed ; as a grant oi devise directly to a non-existing corporation, or to an unincor- porated society. If the grant or devise was to a person having snflScient capacity to take as grantee, or devisee, in trust for, or to the use of, an unincorporated community, for a charitable purpose, or otherwise, consistent with local laws or public poli- cy, such grant or devise was valid. (2 Kent's Com. 287, 8, and notes, § 33, 2d ed. 2 Story's Eq. §§ 1145, 6, 3rf ed. 4 Kent's Com. 507, 8, 2d ed. § 68. 9 Cowen, 488, opinion of Chan. Jones,) This opinion was undisturbed by the decision in the court of errors. (2 Ketit's Com. 288, note a. Trustees of Baptist Asso. V. Smith, 3 Peters, App. 484 ; opinion of Story, J. p. 497. 6 East, 328.) This principle was conceded on the argument in Coggeshall v. Pelton, 7 John. Ch. 293. 3 Peters, 113.) In the present case the grantees were persons capable of taking the legal estate. The conveyance in question conveyed to all the members of St. George's Lodge, present and futme, an equitable estate in perpetuity, by means of the terms, and other members of St. George's Lodge, and all others who then were, or thereafter should become members of the same, their survivors and suc- cessors forever. The use limited to the members of St. George's Lodge, not being a use executed by the statute, but a chancery trust, it is not subject to the rules which, before the statute, were applicable to conveyances of real estate ; but being what a use was before the statute of uses, the same rules apply to it which were applied to uses before the statute. And chancery, in exercising its jurisdiction over trusts, is not bound by the technical rules of law, but may take a wider range in favor of the intent of the parties. Thus a trustee, or cestui que trust, will take a fee without the word ' heirs,' when a less estate will not satisfy the object of the trust. And chancery will, in such case, decree an execution of the trust in fee. [Fisher v. Fields, 10 John. 495, and cases there cited. Id. 505, 6,7. Jackson V Myers, 3 Id. 388, 396, 22 Vin. Abr. tit. Uses, O, (-S.) § 3, a^ 286 CASES IN CHANCERY. [Jdne 5, Vander Volgen v. Yates. note to § 3. Gilb. Law of Uses, 17, 18. Cruise, til. 11, Use^ oh. 2, § 26. 1 Rep. 87, b, 100, b. 1 Hil. Abr. 193, k 19. 4 Kenfs Com. 303, 4, \ 61. £ac. ^6r. /i^. Uses and Trusts, D. 4, 5, nofe. 1 fii7. 46r. 204, § 25.) No use or trust resulted to the grantor. But the whole legal estate passed to, and vested in the releasees in fee, in trust for the members of St. George's Lodge. And if the trust ever ceases, by the extinction of the lodge or otherwise, the premises will not revert to the heirs or devisees of the grantor. No trust can result to the grantor, against tiie intention of the parties, (2 Paiges Ch. Rep. 217 ;) nor in opposition to the express terms of the conveyance ; especially where the conveyance is with warranty, as in this case ; (1 Id. 494 ;) nor in opposition to the written agreement of the parties. (2Id.265. 6 John. Ch. 111. 5 Paige, 114. Hawkins v. Chappel, 1 Atk. 621.) The office of a resulting trust is to carry into effect the intention of the parties, not to defeat it. (2 Paige 265.) When the whole legal estate devised away, no trust will result to the grantor or to hia neir. [Hawkins v. Chappel, 1 Atk. 521. 9 Cowen, 502, pe? Chan. Jones.) In the present case the whole legal estate was conveyed ; and if a trust results, it will defe_at the manifest in- tention of the parties. Where the whole legal interest is given for a particular purpose, with an intention to give to the devisee of the legal estate, the beneficial interest ; if the whole is not exhausted by that particular purpose, the surplus goes to the devisee, and does not result. {King v. Denison, 1 Ves. Sf B. 272, 3. Cruise, tit. Trust, ch. 1, j 41. Hill v. Bishop of London, I Atk.&lS.) Here the 'intent was to give the whole beneficial interest to the members of the lodge. Where there is apy circumstance to show the intent of the parties to have been that the use should not result, it will remain in the per- sons in whom the legal estate is vested. (1 Cruise, tit. Use, ch- 4, § 38. Dyer, 166, a.) Where the contract is for the pur- chase of the absolute fee simple, the consideration extends to the entire use ; and the payment of the consideration divests the grantor of any beneficial interest; and if any part of the use remains unlimited, it will vest in the purchaser. (1 Sawul, 1818.J CASES IN CHANCERY. £87 Vander Voken v. Yates. ore Uses and Trusts, 105. Pelly v. Madden, 21 Vin. Abr, 498, pi. 15. 22 M 215, Uses, O. {S.) § 3 and note.) Here the absolute fee simple was purchased, and a money consideration paid therefor. If A. limits the whole fee simple of use out of land, and part thereof to a person uncertain, it shall never re- turn to the feoffor by way of fi-action of a use; (22 Vin Ahf. Uses, 279, § 10. Bal. Read, on Stat, of Uses, 350. Cuok v. Hutchinson, 1 Keen, 43, before Lord Langdale.) When father conveyed to son, and declared the trusts, as to part, in favor of his wife and daughters, but not as to surplus ; held that the surplus did not result to the grantor, but belonged to the son. The master of the rolls says that " to determine whether there ia a resulting trust to the grantor, it is necessary to look carefully to the language of the deed, and to the circumstances of the particular case. A resulting trust cannot take effect, where a contrary intention, to be collected from the whole instrument, is indicated by the grantor." The intention of the grantor as indicated by him, in the conveyance in this case, was to con- vey an absolute fee simple to the grantees, in trust for the members of St. George's Lodge forever. He received a full consideration. He conveyed with warranty. He covenanted to make further conveyances to perfect the title;. He parted with all his interest. The object of the conveyance was to furnish a site for a building, for the purposes of the lodge. The language of the deed, and the circumstances of the case, show that it was not the intent that any use or trust should result to' the grantor. If a trust is held to result, it will defeat the intention of the parties, and the whole object of the purchase. And as the whole legal estate in fee was granted by the grantor for a full money consideration, if the trust ceases, the estate will, under the decisions in the fore- going cases, remain in fee in the grantees, or in the cestuis que use named in the deed, or in those who shall have come in esse. If the estate passed through the grantees, and vested in the cestuis que use specially named, they took for themselves, and in trust for the other present and future members of tlia lodge. And in that event the trust did not fail by the deatb 288 CASES IN CHANCERY. [IcnE b, Vander Volgen v. Yates. of the trustee ; and chancery will appoint a trustee to uphold the trust. This being a chancery trust, the court will so construe the conveyance creating it, or will so model it, as to carry into effect' the manifest intent of the parties. Chancery, in exercising its jurisdiction over executory trusts, is not bound by the technical rules of law, but may take a wider range in favor of the intent cf the parties. {Fisher v. Fields, 10 John. 495. 1 Fonb. Eq. 396, note. Hopkins v. Same, 1 Atk. 593. Roe v. Tanner, 2 Wils. 77. 1 Saund. Uses ^- Trusts, 122, 3. 1 Coke, 100. b. i Kenfs Com. 303, § 61. Cholmondeley v. Clinton, 2 Meri. 173, 358. 2 Jac. Sj- Walk. S. C. pp. 70, 79, 80, 81, 91 to 98, 100, 101, per Sir Thomas Plumer, master of rolls.) Uses executed, and mere trusts, stand on different foundations. (1 Atk. 593. Shep. Touch. 106, note. 2 Story's Eq. 1066.) Jhancery can mould the terms of a deed or will creating a trust, so as to carry into effect the intention of the parties. {2 Jac. ^ Walk., pages above referred to.) Intention prevails against the legal import of words. {Id. 95.) Technical meaning and inference is controlled by the manifestation of a contrary intent. ^(Id. 101.) Courts of equity will supply omission of word 'heirs, when intention so requires. (2 Hil. Abr. 3, § 12. 2 Jac. Sf Wal. 274. Vin. tit. Grants, 99, R. 12. Cary's Rep. 23, 29, pi. a) Where the words "shall stand and be seised" were omitted in a deed of settlement, chancery granted relief. {Chan. R. 162. Thin V. Thin, Vin. Abr. tit. Grants, 99, %11, 12.) Hard- wicke, Ld. Chan, said. All trusts are executory, and the court must decree a conveyance, when asked at the proper time. [Hopkins v. Same, 1 Atk. 593^.) They are construed liberally. (1 Hil. Abr. 202, §§ 6, 7. Cruise, tit. Trust, ch. 1, § 72.) A trust executed is now a legal estate. {Id. per Ld. Hardwicke.) Executory trusts in equity are susceptible of various modifica- tions and constructions, not applicable to executed trusts. (1 Story's Eq. §§ 64 to 66. 1 Fonb. Eq. B. 1, ch. 3, § \,p. 147, note C.) In executory trusts, the court must follow the intent tion of the parties, so far as the rules of law will admit, howso- ever improperly or imperfectly the will or deed may be ponned I848.J CASES IN CHANCERY. 289 Vander Volgen ». Yates. (1 Atk.5)3. 2 Men. 173, 358; S. C. 2 Jac. cj- Walkei , pp. 70, 79, 80, 81, 91 to 98, 100, 101, per Sir Thomas Plumer.) It does not follow, as contended by the complainant's counsel, that a use must be executed by the statute, where the trustee has no power of management or disposition. Whether the trustee, or cestui que trust shall take the legal estate, de peads upon the intention of the parties, or of the testator. (1 Hil. Abr. 203, §§ 12, 13, 14. 12 Pick. 152. 16 Id. 330.) The law vests the legal estate in the trustee, and gives the ces- tui que trust an equitable interest, where this will best effect the object in view ; as where provision is made for the separate benefit of a married woman. (1 Hil. Abr. 203, §§ 16, 18, 19. Cruise, ch. 1, §§ 19 to 22.) In such cases, the estate 's held a trust, and not an executed use. (1 Id. §§ 21, 22. 16 Pick. 327. 7 Term Rep. 652.) Contracts of purchase create a tiiist, although the trustee has no power of management. So a pur- chase in the name of a stranger. In these cases the legal estate remains in the trustee. So when the cestui que use is not in esse, the legal estate continues in the trustee. (^Cruise, tit. Trust, ch. 1, §§ 30, 31. 4 Kenfs Com. 241, § 59. 1 Saund. Uses and Trusts, 328.) So expressl}"^ held in Reformed Dutch Church V. Veeder, (4 Wend. 497.) The covenant for further assurance, in the conveyance in question, estops the devisees of the grantor from claiming a re- suiting trust in the premises, or that the same have reverted to them. This covenant was inserted to remedy any possible defect in the conveyance. And a specific performance of it by the representatives of the grantor may be compelled. (3 Law Lib. Piatt oil Gov. 340, § 5, and p. 353.) The complainants are obligated in equity to make such further conveyances on request, as are necessary to perfect the title in the members of St. George's Lodge, in accordance with the original intent of the parties. The interest claimed in the premises by the com- plainants, did not pass to them under the wills of Nicholas Van- der Volgen and Peter Vander Volgen. The testator was not seised at the time of making his will, and did not die seised. {Cruise, tit. 38, ch. 3, § 27.) The will does not operate <. Yates. for the use of these thirteen members, and other persons who were then members of the lodge, as well as for the use of those who should thereafter become such members, it may legally be presumed that there were, at the time of the conveyance, other members of the lodge besides the thirteen persons whose names were mentioned in the deed. In determining the question whether the deed operated merely as a conveyance of the legal title of the lot, to the thirteen persons named in the conveyance, as being members, and to the survivors of them for life, only, as an executed use for their individual benefit merely, it must be remembered that the deed of the 27th of April, 1790, waa not a mere common law release, of the reversion, to the lessees of the premises. But it was upon its face a deed of bargain and sale to the eight persons named therein as grantees and lessees in fee, and upon a consideration purporting to have been paid by them. Taking the whole conveyance together it is perfectly evident that it could not have been, the intention of the parties thereto to vest either the whole legal title, or the whole beneficial inter- est in the premises, in the thirteen persons therein specifically named as members of the lodge, during the terms of their res- pective lives, for their benefit and the benefit of the survivor of them, exclusively. On the contrary, the deed shows that it must have been the intention of the parties thereto that it should operate as a conveyance of the legal title of the whole fee of the lot, not for the sole benefit of the thuteen individuals named, for life, with a resulting use to the grantor, but for the benefit of the aggregate body of the members who then constitu- ted, and who should thereafter constitute, the lodge or society of freemasons in Schenectady, called St. George's Lodge It is true, they could not, in that character, take the legal estate in the premises, as an executed use under the statute of uses ; ftut they could take a beneficial interest in the property, as a charitable use. It was not the intention of the framers of the statute of uses, to defeat and destroy the beneficial interest of the cestui que use, but only to change his mere equitable interest, in the usa 292 CASES IN CHANCERY. [Jcnr b VaHder Volgen v. Yatca. of the property, into a legal estate, in the property itself, of the same quality and duration. Where the beneficial use, there- fore, cannot take effect as a legal estate in the cestui que use, it will take effect as a trust, in the same manner as if the stat ute had not been passed ; where it can take effect as a trust consistently with the rules of law. The authorities referred to by the vice chancellor; and by the counsel for the respondent, fully sustain this principle. In the case ynder consideration, to give the whole title and beneficial interest in the premises to the t.hirteen members of the lodge specifically named in the deed, even for life, to the exclusion of other.s who then were, and thote who might there- after become members, would deprive such other members of the beneficial interests which the parties to the deed intended they should have, in the property, in common with the thirteen members named, or the survivors of them. And to limit the continuance of the legal title conveyed, by the lives of those thirteen persons, would not only deprive the surviving members of the lodge, and their successors, of the continu.'ng benefit which the parties to the deed intended to secure to them, but would be wholly inconsistent with the previous grant in fee tc Lawrence Vrooman, one of the thirteen, for a full consideration paid by him and the other seven grantees. The statute of uses, therefore, instead of vesting the legal esta.'e in the ihirtcer. .for life, with remainder to the grantor as a resuhing use, eithei vested the whole legal estate in fee in L. Vrorimah and his heirs, in trust for himself and his associates, who ihen weie oi might thereafter become members of the lodge ; or vested it in him and the other persons to whom the bargain a.vd sale was made, and from whom, as the deed states, the coarikleration proceeded, and to the survivor of them, as trustees, in trust foi tiie use and benefit of those wiio then were, and those Wiio miglil tliereafter become members of the lodge ; as a cliaritabl", use. This last construction of the conveyance appears to be most consistent with tiie mtention of tiie parties to the deed, 5.ml with tlie rules of law. And if the legal title to the premises in fee vested in the seven grantees, and the survivor of thenij upon 1843.J CASES IN CHANCERY £93 The Bank of Utica v. Finch. Buch a tnist, that legal title was in Jtseph C Yates, tlie sur- viving trustee, at tlie time of the commencement of tliis suit. The complainants, therefore, were not entitled to the fund in the hands of the respondent, as his executrix; and the bill was properly dismissed by the vice chancellor. Even if there was any technical defect in the deed, so that it would not carry into effect the intention of the parties, the vice chancellor ia unquestionably right in supposing the complainants could be compelled to supply such defect, by a further conveyance or as- surance of the property. The decree appealed from must be affirmed with costs. As the cestuis que trust were not parties to the suit, the vice chancellor could not properly make any order in this suit dis- posing of the fund in the hands of the respondent. But as the surviving trustee died subsequent to the revised statutes, the trust devolved upon the court of chancery. The new supreme court, therefore, is authorized to appoint a new trustee of the fund, which has now become a substitute for the land, so that it may be properly invested and applied for the use of those who may from time to time be the members of the lodge ; ai contemplated by the parties to the deed of April, 1790. The Bank op Utica vs. Finch and others. Where a bond and morfgage arc actually given to secure a particular dcht men- tioned therein, the mortgagee cannot, as against subsequent purchasers orincun>' brancers, hold the mortgage as a lien for an entirely distinct and separate debt, upon parol proof that it was intended to caver that debt also. But where the mortgage is given to secure a particular debt with a condition to bo void upon the payment of that debt, the mortgagee does not lose his security by the mere extension of the time of payment; although that extensio.i is in the form of a renewal of the note which was given as a collateral security for tha payment of^the same debt ; where it was not the intention of either party to discharge the mortgage security by such renewal of the note. &■ mortgage, or a judgment, may be given to secure future advances ; or as a gen- 294 CASES IN CHANCERY. Jcm t The Bank of Utica v. Finch. era] security for balances which shall be due, from time to time, from the mortg* gor, or judgment debtor. And this security ibr future advances may be taken in the form of a mortgage, oi judgment, for a specific sum of money, sufficiently large to cover the amount of the floating debt intended to be secured thereby. Where an appeal, by the defendants in a foreclosure suit, has prevented the com- j>Iainants from obtaining the master's report, and a final decree, for a long time, during which time the respondents have been kept out of the possession of the mortgaged premises, and of the rents and profits thereof, the appellants may be directed to pay to the respondents the rents and profits of the mortgaged premises during the time for which the proceedings have been stayed, by the appeal, or so much of them as may be necessary to pay the deficiency ; as the damages of the respondents for the delay and vexation which they have sustained by the appeal, if upon the foreclosure and sale of the premises, under the decree - which is finally entered in the suit, it shall turn out that the proceeds of the mortgaged premises are not sufificient to pay the amount due to the complainants, with interest and costs. And if necessary, a reference may be directed, to ascer- *.a.*- secured ; and it ccnclurted as follows : " This grant is intended to secure the payment of $30,000 paid to the partiea of the first part by the party of the second part. And in case default shall be made in the payment of the principal sum hereby intended to be secured, or in payment of the interest thereof, or any part of the said principal or interest, it shall be lawful for the parties of the second part, or their successors, at any time thereafter, to sell the premises hereby granted, or any part thereof, in the manner prescribed by law," &c. The paper of Finch, held by the bank at the time of the giving of the mortgage, was renewed or exchanged from time to time, till November, 1841. The average indebtedness for which the mortgage was holden as a security was about $30,000 during the time ; renewals being made and new paper being discounted from time to time, by the bank, upon the security of the mort- gage. But of the old paper held by the bank, at the date of the mortgage, only about $8000 remained unpaid or unre- newed. In December, 1841, Finch made an assignment of his interest in the mortgaged premises to Dixon and Young, in trust for the payment of his debts. In January, 1842, the Bank of Rochester recovered a judgment against H. Finch, the mortgagor, for an amount exceeding $10,000. But as he had previously assigned all his interest in the mortgaged premises, that judgment did not become a lien thereon. On the first of August, 1842, the complainants filed their bill in this cause, to foreclose the mortgage, making Finch and wife, the assignees of the mortgaged premises, and some other persons, parties thereto ; but the Bank of Rochester was not made a party. A notice of the pendency of the suit and of the object thereof was filed with the clerk of the county of Monroe on the 8th of September thereafter. The Bank of Rochester, upon a petition stating the recovery of its judgment against Finch, but without stating that he had assigned the equity of redemption in the mortgaged premises, before the recovery of that judgment, obtained an order that the complainants should make the petitioners parties to the suit, and they were made parues accoic'ingly. After the Bank of Rochester was made a 296 CASES IN CHANCERY. (June 5 The Bank of Ufca o. Finch. •'arty to the suit, and after the bill as amended had been taken as confessed against the defendants Finch and his assig'nees, such assignees caused the equity of redemption in the mort- gaged premises to be sold, and the BaYik of Rochester became the purchaser of such equit}^ of redemption. But as the com- jrlainants subsequently amended their bill, the order taking the bill as confessed was thereby opened, and the purchasers thereupon put in their answer denying the validity of the mortgage as a lien upon the premises. A replication to the answer was filed, and the cause was subsequently heard upon pleadings and proofs as to the Bank of Rochester, and upon the bill taken as confessed as to the other defendants. The vice chancellor decided and decreed that the mortgage was a valid lien upon the premises, (except a small portion released from the mortgage, and not the subject of controversy in this suit,) for the amount of the several debts stated io the com- plainants' amended bill, as due and unpaid ; all of which debts were contracted before the assignment of the mortgaged prem- ises to Dixon and Young for the benefit of creditors. He therefore directed a reference- to a master to compute the amount due; and authorized the complainants to apply for a decree of foreclosure and sale of the mortgaged premises upon the coming in of the master's report. The vice chancellor delivered the following opinion : F. Whittlesey, V. C. The defence in this case rests principally upon the language of the condition of this mort- gage. The defendant's counsel insists that this instrumen:_ upon its face, shows that it was executed to secure money be- fore that iime paid to the mortgagor, and that it applies only to the paper then held by the complainants, whiih when paid was a payment to that extent upon the mortgage ;• that it does not cover new paper, discounted after the making of the mort- gage ; and that parol evidence is not admissible to show for what paper the mortgage was executed, or upon what cfinli- dence the subsequent discounts were made, or to explain in xny manner '.he written instrument itself. If this view of the cas* 1848.J CASES IN CHANCERY 297 The Bank of Utica v. Finch. is sustained, it would reduce the lien of the mortgage, aa against the Bank of Rochester, to that portion of the original indebtedness of Finch which has continued from the making of the mortgage down to the present time, by successive and di- rect renewals. This part of the original indebtedness only amounts to $8000 ; and from that sum, in tliis aspect of tlie- case, should be deducted the $3500 received by the complain- ants upon the release of the portion of the mortgaged piemises which was sold. A mortgage may unquestionably be taken and held as a se- curity for future advances and responsibihties ; and such future advances will be covered by the lien, to the extent of the sum mentioned in the mortgage, in preference to any claim under a junior incumbrance with notice. (4 Kenfs Com. 175. Ken- drick V. Robinson, 2 John. CIi. Rej). 309. Brinkerhoff v. Mar- vin, 5 Id. 326. Janes v. Johnson, 6 Id. 420.) This general principle is conceded ; but it is contended that it is only appli- cable when the mortgage upon its face provides for security for future advances and responsibilities. This mortgage is taken to secure $30,000, stated tlierein to have been paid by tlie mortgagee to the mortgagor ; and it is recorded for that sum, which is all that the record expresses. If there had been no money actually paid, would tlie mortgagor be prohibited, by his signature to the instrument, from showing that fact liy parol? If the mortgagee had not advanced the money until three months after the execution of the mortgage, would he be prohibited from showing this fact by parol? Parol evidence must, it is apparent, in many such cases, be admitted, not to contradict the written instrument, but to show the purpose and intent for which it was executed. Such evidence is admissible even, to show that a deed absolute upon its face was intended as a security for money merely, ( Van Btiren v. Olmstead, 5 Paige, 9,) and other similar facts. I am, tlierefore, of opinion tliat the parol evidence objected to was admissible, not for the purpose of explaining the written instrument, but for the pur- iio.ve of establishing the fact that credit had been given to Finch, upon the several discounts for him on the faith of tiie Vol. III. 3S 298 -CASES IN CHANCERY. [JcsBk The Bank of Utica » Finch. mortgage, and that it was treated by the comj lainants a& a continuing security; so that if it was entitled to that charac- ter the complainant may have the benefit of it. [Douglas v. Riyiwlds, 7 Peters, 113.) It will be conceded that the doc trine of ta^cking does not prevail in this court, and it is not upon that ground, as I understand it, that the complainant rests the claim. Here is a mortgage, the record of which is notice 10 all of an incumbrance to the extent of $30,000. And I suppose the holder of that mortgage may advance upon it up to that amount, and may be secure in his lien' to the extent of his advances, within that amount ; such having been the agree- ment between himself and the mortgagor ; unless indeed this lien should be affected by the equities of subsequent incum- brancers, or grantees, attaching previous to any advance. But here there wa-s no right or pretended right of any grantee or incumbrancer attaching at all until after the advances were made. Whether the holder could safely make further advances after such subsequent incumbrance had attached or grant made, unless notice thereof had been given to the holder, is not a question here presented. It has been held that a judgment confessed for $2000 where there was but $1000 due at the time, would cover a future advance made under an agreement between the parties ; and thS.t an execution might issue for the whole. (Livitigstoti v. McKinley, 16 John. Rep. 165) A doctrine very similar, and one which seems to me to cover thia case, has been held in relation to mortgages. {^Shlrras v. Cray, 7 CrancKs Rep. 34.) But in no case, of course, can the holde." of a mortgage enlarge his demand, by reason of it, to an amount beyond that which appears upon the record. {St. An- dreid's Church v. Tompkins, 7 John. Ch. Rep. 14.) But up to that amount I suppose he may advance, by agreement with the mortgagor, and hold the mortgage as security for such ad- vances ; except as against subsequent incumbrancers or gran- tees who have given notice of their tncumbrances or gi'ants, prior to the advance. In this case the Bank of Rochester acquired no lien, by vir- tue of its judgments, upon the mortgaged premises. Finch hail »4a,j CASES IN CHANCERY. 299 The Bank of Utica v. Finch. convej'ed to his trustees, before the judgments wore obtained. All the ti le the bank has is by virtue of its purchase from the assignees of Finch ; by which the bank acquired the same tiile to redeem which the mortgagor would have had. This pur chase too was made pendente lite, and was affected with notice of the complainant's claim. All the complainant's advances had been made before the conveyance by Finch to his assignees. There is a point made between these parties as to the mill stones, bolts, carding machines, and other things, called and claimed as fixtures, which it seems hardly proper to pass upon in this stage of the case. The mortgage to the complainants was general, including the mortgaged premises and appurten- ances. The conveyance from Finch, to his assignees was the same, except that it mentioned fixtures, machinery and imple- ments. The deed from the assignees to the Bank of Roches- ter was general, and referred to the trust deed. It does not purport to convey any personal property, describing it as such, or any thing but real estate. The doctrine as to fixtures varies in different cases, and is drawn from very numerous decisions. As between heir and executor, landlord and tenant, mortgagee and execution creditor, vendor and purchaser, different rules prevail. The doctrine as between vendor and purchaser is the most liberal, in making fixtures real estate, and having them pass with the land. And the same doctrine is applicable as between the mortgagor and m9rtgagee. ( Union Bank v. Emerson, 15 Mass. Rep. 159. Robinson v. Preswick, 3 Ed- wards^ Ch. Rep. 246.) And mill stones, bolts, and other ma- chinery in a flouring mill were held to go with the lien and not to the executor. [House v. House, in Chancery, March 7, 1843.) Whatever may be the rigrhts of these complainants as against an execution creditor of Finch, I am now iiichned to think that tliey take as much by their mortgage as the Bank of Roches-^-er can by their deeds. But this question can be de- cided upon an application for a decree of sale. The mortgage of the complainants must be held to be a lien for all the aa- Tances they have made to Finch upon the several notes ana drafts set forth in their bill, and which yet remain unpaid ; bul 3, 3 CASES m CHANCERY. fJoNE 5, The Bank of Utica u. Finch. not btrond the amount specified in the mortgage. A; .d it must be referred to a master to compute the amount due upon such drafts and notes, with interest, excUiding the costs of the suita It law, (7 Paige, 437,) upon such notes or drafts, deducting from the aggregate thereof the amount of deposit to the credit of Finch, and the -amount received upon the release of portions of the mortgaged piemises ; as set forth in the pleadings. All further questions are reserved until the coming in of such re- port. The complainant is to be at liberty to bring the cause to a hearing upon such report at any general or special term of this court, on due notice. A. Taber ff M. T. Reynolds., for the appellants. The com- plainants' mortgage being a specialty, cannot be enlarged or va- ried by parol evidence ; there being no issue in the case upon any allegation of fraud, mistake, or accident. The complain- ants' rights and interesty cannot rest partly in deed and partly in parol. An equitable mortgage, being created by parol, may, by the same means, be extended to cover future advances. But a legal mortgage, applicable in its terms to a subsisting indebt- edness, cannot, by an oral agreement, be thus extended, in thia or any other court. The sum of $3500 received of the Stan- leys should be applied to extinguish so much of the original in- debtedness, if any remains, covered by the mortgage. The Bank of Rochester, as a subsequent incumbrancer and purcha- ser of the equity of redemption of Finch, is entitled to redeem, on paying any balance due of the original consideration of the mortgage. A. Warden, for the respondents. The Bank of Rochester has no lien upon the mortgaged premises by reason of its judg- ments against Finch ; those judgments having been obtained after the assignment to Dixon and Young. Whatever tights that bank has, are under the deed from Dixon and Young, ex- ecuted subsequently to the commencen'ent of this suit. It is, tlierefore, a mala fide purchase, pendente lite; and the complain- ants, as against the Bank of Rochester, ire entitled to the same 1848., CASES IN CPIANCEIIY gQj The Bank of Ulica v. Finch. decree as tliey would be upon the bill taken as confessed hy Dixon and Young. (7 Paige, 291. Slory's Eq. PI. 1,50, 5 15G. 1 Slnn/s Eq. 393, § 406. Murray v. Finnislcr, 2 John. Ch. lie]), loo. Hedtley v. The Same, Id. 158.) The bill charges, and the evidence sliows, that the niorlgagn was given to secure an existing liability from Finch to tlie Hank of Utica, at its execution ; and sucli future. indebtedness as he might thereafter be under, to the bank, on notes and bills dis- counted by such bank. A mortgage for these purposes was valid ; and parol evidence is admissible to skow the piuposes for wliich it was given, and the amount secured by it. (5 Paige^s Rep. 10. 1 Id. 77. 2 John. Ch. Rep. 309. 6 John. Rep. 417. 5 John. Ch. Rep. 326. 2 Coicen, 292. 7 Cranch, 40. 16 John. 165. 14 Ves. 606. 2 Fes. ^- Beame, 79, 83. 4 John. Ch. Rep. 373.) There is no question here between the com- plainants and bona fide purchasers or incumbrancers, arising under the recording act, or otherwise. The Bank of Rochester is not a bona fide purchaser, and can claim nothing as such It has not averred, m its answer, that it is a bona fide purcha ser without notice ; which it should have done, to avail itself of the rights of sucli purchaser. {Beame^s Eq. PL 246, 247. 1 John. Ch. Rep. 566. 2 Id. 155, 158. 3 Id. 345.) The mortgage is for the specific sum of $30,000, and upon the principle for which the appellants contend, it must stand for that amouiit, between the parties. But the nature and ex- leiU of the interest of a mortgagee is not required, by the stat- ute of frauds, to be in writing. The mortgage being executed according to the requirement of the statute, the object and in- tent of the parties, and the extent and application of the secu- rity, may be ascertained by parol ; upon the same principle that •parol evidence may be resorted to to show the mortgage debt has been paid, or assigned. ( U. S. v. Sturges, 1 Paine, C. C. 530. 7 Cowen, 18, 19. 1 John. Ch. Rep. 128. Hughes \. Edwards, 9 Wheat. 495. 1 Paw. on Mort. Rand^s ed. 143, 144. 14 Fes. 606. 17 Id. 227- E.t imrte Ke7vnnglo7i,2 Ves. SfBea. 79, 83.) Under -the circumstances, and the agreement jpon which the mortgage was executed, this court may, and 302 CASES IN CUANCERY. [Jdne 5 The Bank of Utica v. Finch. SO the authorities seem to require, regard the debt now due from Pinch as existing at the date of the mortgage. (4 John, Ch. Rep. 371, 373. 5 Paige, 10.) The notes, to the amount of $8000, were renewals of similar ones held when the mort- gage was executed. And upon the most rigid rule they arfl secured by the mortgage. The drafts on Carey are substan-' tially continuations of liabilities, against Finch, existing at the date of the mortgage. (15 John. Rep. 567, 568. 9 Mass. Rep. 247.) The proof showing th Ed the notes and bills were discounted on the security of the mortgage, was proper, and perhaps necessary. (7 Peters, 119.) The recent decision of the court for the correction of errors, that parol proof is not admissible, at law, to show a deed to be a mortgage, has no application. The Chancellor. The appellants having purchased the equity of redemption from the assignees after the bill had been taken as confessed against the latter, would have been preclu- ded from setting up any defence which was inconsistent with the admission thus made, by their grantors, of the facts charged in the bill, had not the complainants, by amending their bill, waived their order taking the bill as confessed against the as- signees of Finch. But upon the merits of the case, the decision of the vice chancellor vvas technically correct. Where a bond and mortgage are actually given to secure a particular debt mentioned therein, the mortgagee cannot, aa against subsequent purchasers or incumbrancers, hold it as d lien for an entirely distinct and different debt, upon parol proof that it was intended to cover that debt also. But where the mortgage is given to secure a particular debt, with a- condition to be void upon the payment of that debt, the mortgagee does, not lose his security by the mere extension of the time of pay- ment, although that extension is in the form of a renewal of the note which is held as a collateral security for the payment of the same debt; where it was not the intention of either parly t:) disv^harge the mortgage security. {^Heard v. Evans df Ishnm, 1 Frcem. Ch. Rep. Miss. 70.) And in this case there 1848.T CASES IN CHANCERY. 393 The Bank of TJtica v. Finch. was no defeasance of the conveyance, upon the payment of any particular debt, which could technically operate as a discharge of the mortgage lien by a change of the collateral security re- ferred to in the rnortgage. There was in fact no such sum as $30,000 for money paid, as was mentioned in the mortgage, The mortgage, it is true, was given for the nominal sum of ^30,000, but in fact to secure the floating balances, or amount of the notes and bills, which the bank might hold from time to time against the mortgagor. There are numerous cases in our own courts showing that a mortgage, or a judgment, may be given to secure future advan- ces ; or as a general security for balances which may be due, from time to time, from the mortgagor or judgment debtor. And this security may be taken in the form of a mortgage or judgment for a specific sum of money, sufficiently large to cover the amount of the floating debt intended to be secured thereby. The same principle was recognized and acted upon by the su- preme court of the United States in the case of Shirras and others v. Cray ^ Mitchell, (7 Cranch, 50,) cited by the respon- dent's counsel on the argument. Here there was not in fact any debt of $30,000, for moneys advanced to Finch and wife, which was due and payable as mentioned in the mortgage. There is a large sum due, however, for notes and securities which were then running to the bank, and for other securities subsequently given ; all of which securities, or so much as should become due and be payable thereon at the final close of the business of renewing and discounting notes and securities, or advancing moneys by the bank, not exceeding the $30,000, were intended to be secured by this mortgage. The decree appealed from, therefore, was not erroneous, and it must be affirmed with costs. And as the appeal has prevent- ed the respondents from obtaining the master's report, and the final decree, for a long time, during which time the appellants have been entitled to the possession of the mortgaged premises, and to the enjoyment of the rents and profits thereof, if upon the foreclosure and sale of the premises under the decree which may be entered in this suit, it should turn out that the proceeds 304 CASES IN CHANCERY. [June 5. Butler V. Butler. of the moTtgaged premises are insufficient to pay the amount due to the complainants, with interest and costs, the appellants must pay to the respondents the rents and profits of the mort- gaged premises during the time foi» which the proceedings have been stayed by this appeal, or so much of such rents and prol its as may be necessary to pay such deficiency ; as the dama ges of the respondents for the delay and vexation which they have sustained by this appeal. And a reference is to be here- after directed to ascertain the amount of such rents and profits, if it shall be necessary to do so to carry this part of the decree of affirmance into effect. The master designated in the decree to compute the amount due upon the mortgage, having died since the decree, it may be referred to any other master to ascertain and report the amount. In case the reference shall not have been executed before the first of July next, the complainants are to be at liberty to apply to any justice of the supreme court, either at chambers or at a special term, to designate a referee to execute the reference. Sarah M. Butler vs. L. M. H. Butler and others. A testator, by the fourth codicil to his will, revoked a certain part of the third corlicil, and instead thereof he directed his executors to pay S500 out of one share, or the fourth part of his estate, to the widow of his deceased son, and to pay over the remainder of that share to H., in trust, to invest the same and to pay over to hia granddaughter S. the income thereof semi-annually until her eldest child should ar- rive at the age of twenty-one years ; and at tnat period to divide the fund, as it might then exist, into as many shares as there might then be children of S., and to pay over to each child his or her share, upon their arriving at the age of twenty- one years, respectively. The testator's property consisted of personal estate entirely. On a bill by S. against her husband, and her children who were then living, and against the substituted trustee, claiming that the fourth codicil was void, so far as it limited the remainder in one of the shares to her children ; Held that the fair construction of the fourth codicil was that the testator referred to the eldest child of S. at the time of making such codicil, as the child upon whosi arrival at the age of twenty one, S.'s estate in the income of that fourth of the 1848.] CASES IN CHANCERY. yo Butler V. Butler. testat-T'' property should terminate; and not to the eldest of her children who should attain the age of twenty-one. Held also, that the fourth codicil should be construed as if the testator had directed the trustee to pay the income of the fund to S. until her oldest child, then in ex- istence, 01 who might be in existence at the testator's death, sliould arrive at tha age of twenty-one years ; or until the time when such child would have arrived at the age of twenty-one years if it had lived to attain its majority. And in case such eldest child should live to attain its majority, then thai such one-fourth of the estate should be divided into as many shares as there were children of S. then living, and that one share should belong to each child, and should be payable when they re- spectively arrived at the age of twettv-one; jhc income in the meantime to bo £u cumulated for the benefit of such of them as were minors. Held fiirl/ier that this contingent remainder to the children of S. was so limited that it must vest in interest, if ever, during the continuance of one life'in being at tha time of the death of the testator ; which time, in a will, is to be deemed the time of the creation of the estate. And the eldest child of S. who was in esse at the death of the testator, having lived to attain the age of twenty-one years, HcU that the contingency contemplated by the testator then occurred ; and that the children of S. who were then living thereupon became the absolute owners of the whole of the fund in controversy. In the construction of wills, if the language of the testator is such that it may be construed in two different senses, one of which would render the disposition made of his property illegal and void, and the other would render it valid, the court should give that construction to his language which will make the disposition of his property effectual. A contingent remainder may be limited on a term of years ; provided the nature of the contingency upon which it is limited is such that the remainder must vest in interest, if ever, during the continuance of not more than two lives in being at the time of the creation of such remainder, or upon the termination of not more than two lives then in being. This was an appeal froiTi a decree of the vice chancellor o£ the second circuit, dismissing the complainant's bill. Tiie ob- ject of the bill was to obtain a judicial construction of the will of Thomas Arden deceased ; particularly in reference to the third and fourth codicils. By the third codicil the testator di- rected his executors to pay to the complainant, his grand- daughter S. M. Butlej-, the daughter of his deceased son Tho's Arden, $1000 annually, in quarterly payments, for the term of seven years after the decease of the testator, and on the division of his estate, at the end of that time, to pay over to her one- fourth of his estate as it might then exist, and the other three- foaiths to Piiilip Verplanck, Eliza A. Verplanck, and Sally A. Vol.. III. 39 306 CASES IN CHANCERY. fJonE ^ Butler s. Butler. Mille.*, equally. On the 2d of April, 1834, the testator made a fourth codicil, by which he revoked so much of the third codicil as directed that upon the division of his estate one-fourth part thereof should be given to the complainant. And instead there- of, he directed his executors to pay $500 of that share to tho widow of his said deceased son, and to pay over the remainder thereof to S. A. Halsey, in trust for the following pui-poses : " to invest the same in a manner deemed the most secure by him, and to pay over to S. Mary Butler the income of the same semi-annually until her eldest child shall arrive at the age of twenty-one years ; and at that period to divide the same, as it may exist, into as many shares as there may then exist children of the said S. M. Butler, and to pay over to each child his or her share on arriving at the lawful age of twenty-one years." The testatoi- died in 1834, leaving a large property, consist- ing entirely of personal estate ; and leaving the complainant and the three other persons named as legatees in the third codi- cil, who were the children of his deceased daughter, his only next of kin. At the death of the testator the complainant had four children ; the eldest of whom was born in May, 1825. The sum set off for the share of the complainant and her children, and placed in the hands of the trustee and invested according to the direction contained in the fourth codicil, was about $43,000. In November, 1843, the complainant filed her bill in this cause against her husband and her six children who were then living, and against the New- York Life Insurance and Trust iJompany, the substituted trustee of the fund ; claiming that the fourth codicil was void so far as it limited the remainder in that share to her children. Her husband was insolvent. The bill was taken as confessed against the husband and the trus tees, and the infants appeared and put in answers by their guai dians ad litem. The vice chancellor decided that the limitation over to the children of the complainant who should be in esse when ihe eldest arrived at the age of twenty-one, was valid in case that event should happen ; bit that if the eldest child should die under the age of twenty-one, the hmitation orer would fail. 1818. 1 CASES IN CHANCERY. 307 Butler 0. Butler. He decided, however, that even if the limitation over was in- valid, or should fail by the death of the eldest child under the age of twenty-one, the third codicil, which gave the one-fourth of the estate of the testator to the complainant, at the end of seven years from his death, was effectually revoked by the fourth codicil, and that the bill must therefore be dismissed as to the children of the complainant. He made a decree accord- ingly, and the complainant appealed from that decree to the chancellor. The following opinion was delivered by the vice chancellor : , C H. RuGGLfes, V. C. The intention of the testator in the fourth codicil of his will, is perfectly apparent. It is as plain as language can make it. Whether it might not have been better to give the fund, or the income of it, to Mrs. Butler during her life, than to give it directly to the children, is a question with which the court has nothing to do. It cannot make a will for the testator. It is bound to carry the testator's intention into effect, if it can be done without violating the rules of law. As • suming that the legacy to the children of Mrs. Butler is contin- gent and not vested — and so I think it undoubtedly is — the only question is, whether the absolute ownership of the fund was illegally suspended, by that clause in the codicil which postpones the division and payment to the legatees until the eldest child of Mrs. Butler shall arrive at the age of twenty-one years. This is alleged to be a suspension of the power of alien- ation for an absolute term of twelve years or thereabouts ; the oldest child of Mrs. Butler being at the death of the testator about nine years of age. The complainant alleges that the suspension of the absolute ownership of the fund is illegal ac- cording to the cases of Coster v. Lorillard, (14 Wend. 265 ;) Hawley v. James, (16 Id. 61,) and Honeys Ex'rs v. Van Schaick, (20 Id. 566.) The soundness of the complainant's argument depends, I think, on another and previous question, to wit, whether the absolute ownership is suspended during tha entire terra of twelve years without regard to the life of Eliza, •lie oldest child of Mrs. Bi'tler ; or whether it does not depend 308 CASES IN CHANCERY. fJ^Ni Butler r. Butler. on ber life. What will become of the ownership in case Eliza should die under the age of twenty-one ? The complainanff counsel insist that the period of the division of the fund among the children of Mrs. Butler is postponed until the second oi some younger child shall have attained that age. But that i? not the language of the will. Eliza was the oldest child, and was living at the time the will was made. It is to be presumed that the testator knew her, because she was his grandchild, and one of the objects of his bounty ; and in describing her as the oldest child of Mrs. Butler she is designated with as much cer- tainty as if she had been named in the will. The testator meant that the fund should be divided when she came to be of full age. And if she should die before she arrives at that age, the case of Batsford v. Kebbell, (2 Yes.jun. 362,) is a strong authority to show that the legacy to all the children must fail ; not because the absolute ownership of the fund ia illegally sus- pended, but because the contingency upon which their title de oends can never happen. There is no gift to the children of Mrs. Butler, except in the direction to divide and pay over t them ; and the division and payment is to be made only whep Eliza becomes twenty-one years of age, and among the children only who may then be living. This, in my opinion, being the true construction of the will, the absolute ownership depends on Eliza's life. If she lives until she attains full age, the legacy will vest in her and the other children then existing, and there will be no longer any suspension of ownership. If she dies under that age, the legacy to the children must fail ; and in that event the ownership becomes absolute. It is njt necessary to determine, on this bill,, who will, in that case, bec( me entitled. But I do not perceive how Mrs. Butler, the complainant, can take it by force of the third codicil. The bequest to her which is contained therein is expressly revoked by the fourth codicil. Part of the fund bequeathed to Mrs. Butler by the third codicil, by the fourth is given to Mrs. Aiden, and the income of the residue is given to Mrs. Butler until her oldest child becomes of age. The legacy to the children, by the fourth codicil, is only a part of what was given to thei/ 18481 CASES IN CHANCERY". 399 Butler V. Butler. mother by the third. And I do not perceive how the faihire of that legacy can revive the bequest contained in tlie third codi cil; which was expressly revoked by the fourth. H. W. Warner, for the appellant. The limitation to the childi-en by the fourth codicil is contingent. And the contin- gencj" of the eldest child' coming of age, is not to be restricted to El'za, but may be satisfied by that event happening to any child -vith in the terms of the description. There is. therefore a possible suspension of the ownership during the continuance of more Uves than the statute allows. And the fourth codicil fail- ing for illegalit}'-, its revocation of the third codicil is a nullity. W. H. Bell, for the respondents. The fourth codicil doea not bring the case within the statute prohibiting perpetuities. (2 R. S. 718, §§ 13 to 16. Id. 761, kh 1, 2. Balkley v. De- peyster, 26 Wend. 2a. Pattersons. Ellis, ex'r, 11 Idem, 259, 265. Kane v. Gott, 24 Id. 661, 2, 3.) For the devise to the children vested in the children who were in esse at the death of the testator ; distribution being only postponed until the old- est child then living should have arrived at the age of twenty- one years. {Hayward v. Whitty, 1 Burr. 228, 232, 233, 234.) Where an absolute property is given, and a particular interest given in the mean time, as until the devisee shall arrive of age, &c. " and when &.c." " then to him, «fcc." the rule is that it shall not operate as a condition precedent ; but as a description of the ,time when the remainderman is to take possession. (Moore v Lyons, 25 Wend. 134. Edwards v. Symons, 6 Taunt. 213. Hone's e.v'rs v. Van Sckaick, 20 Wend. 567. Bogert v. Her tell, 4 Hill, 500, 603.) The Chancellor. The fair construction of the fourth codicil is, that the testator referred, therein, to the eldest child of the complainant at the time of making such codicil, as the one upon whose arrival at the age of twenty-one, the com- plainant's estate or income in the profits of that fourth of the testator's property should terminate ; and not the eldest child 310 OASES IN CHANCERY. [Jons 5 Butler V. Sutler. which she might have who should attain the age of twenty-one. For in the last case the power of alienation might be suspend- ed for more than two lives in being at the death of the testa tor, before the contingency would happen by which the estate in remainder would vest in interest. And in the construction of wills, if the language of the testator is such that it may be construed in two different senses, one of which would rendei the disposition made of his property illegal and void, and the other would render it valid, the court should give that construc- tion to his language which will make the disposition. of his property effectual.(a) In this case, therefore, the fourth codicil should be construed as if the testator had directed the trustee to pay the income of the fund to the complainant until h^i oldest child then in existence, or who should be in existence at his death, should arrive at the age of twenty-one years, or until the time when such child would arrive at the age of twenty-one years, if she lived to attain her majority ; and in case such eldest child lived to attain her majority, then that this one- fourth of the estate should be divided into as many shares aa there were children of the complainant then living, and that one share should belong to each, payable when they respectively arrived at the age of twenty-one ; the income in the meantime to be accumulated for the benefit of such of them as were minors. This would give to each child living when the oldest, in existence at the death of the, testator, arrived at the age of twenty-one, an absolute interest in his or her share ; and would be perfectly consistent with the language w.hich the testator has actually used in his will. It is true the remainder to the children is a contingent re- mainder, and is limited on a term of years. For the estate of the mother in the income of the fund, which is to endure until the time when her eldest child Eliza Butler will attain the age of twenty-one, if she lives so long, is an estate in the fund for a term of years ; that is, for the term of twelve years, or a little Jess, from the death of the testator. But a contingent remain (a"> Mason v. Jvnes, 3 Barb. Sup. Ctnirt Hep. 244. 1S48.J CASEd IN CHANCERY. Butler V. Butler. del may be limited upon a term of years, provided the nature of the contingency on which it is limited is such tliat tiie remainder must vest in interest, if ever, during the continuance of not more than two lives in being at the tim" of the creation of such remainder, or at the lermination of not more tlian two hves thus in being. (1 R. S. 724, § 20.) Here the contingent remainder is so limited that it must vest in interest, if ever, during the continuance of one hfe in being at the death of the testator ; which, in a will, is to be deemed the time of the creation of the estate. For the contingent remainder, to the eldest child of Mrs. Butler at the death of the testator, and to the other children who are to share in the ultimate remainder in fee of this fourth of the testator's estate upon the happening of the contingency contemplated by him in his will, is so limited, that it must take effect, if ever, during the continuance of the life of such eldest child. The absolute ownership of the fund, therefore, could not be suspended by this contingent limitation, beyond the continuance of two lives in being at the death of the testator. For, if the giving of the rents and profits to the complainant until her eldest child should attain the age of twenty-one years, would have the effect to suspend the abso- lute ownership of the property beyond her own life and the life of the eldest child, in case such eldest child died before arriving at the age of twenty-one years, the limitation to the complain- ant, instead of the contingent hmitation to her children, would be the void hmitation. It is understood that Eliza, the eldest child of the complain- ant who was in esse at the death of the testator, actually lived to attain the age of twenty-one years ia May, 1846. If so, the contingency contemplated by the testator then occurred ; and the children of the complainant who were then living became the absolute owners of the whole of the fund in controversy, upon the happening of that event. It is theiefore unnecessary to inquire who v^ould have been entitled if Eliza Butler had died under the age of twenty-one. It is sufficient to say, none of the respondents in this case had any interest in that ques- tion when the bill in this cause was filed. Nor were the propei 312 CASEb nV CHANCERY. [Jome 5 Wiswall V. Wandell. parties before the court to authorize a decree giving a coiv struction of the will in reference to such a contingency. There was, therefore, no error in the decree of tlie vice chan cellor ; and it must be affirmed, with costs. Wiswall and others vs. Wandell. W otice of an application to the court for a license to establish a ferry, need not bd given to all who claim a right to the ferry ; nor even to all those who have obiainul a license from another court for a ferry at the same place. All that is required, where the applicant is not the owner of the land through which the highway ad- joining to the ferry runs, is that the person applying for a license shall give notice of the application, to the owners of such land. Where a bill was filed, by persons claiming the exclusive right to a ferry, to obtain a decree restraining the defendant from keeping a ferry at the same place, and such bill alleged that the defendant had established a ferry there, in violation of the rights of the complainants ; and that he was. using the same in pursuance of a pre- tended license from some court or person, but that if any license had been granted to the defendant, the same was granted in fraud of the complainants' rights, and, withmt any legal notice to t/iem ; but such bill contained no allegation that the complainants were the owners of the land through which the road adjoining tha ferry ran ; Held that the averment, as to the want of notice to the complainant'^ was not material for any of the purposes of the suit ; and that the defendant wa< not bound to answer it. This case came before tne chancellor upon an appeal from an order of the vice chancellor of the third circuit, overruling the defendant's exception to the master's report, upon an excep- tion to the answer for insufficiency. The bill was filed to ob- tain a decree restraining the defendant from using a skiff ferry for the conveyance of passengers across the Hudson river at Troy. The bill alleged, in substance, that on the 10th of May, 1796, Jacob D. Vanderheyden was the owner of all the lands on the east bank of the Hudson river between the south bounds of Division-street, on the south, and the north bounds of Grand Division-street, on the north, and bounded west by tli". ri/et ; I8*8.J CASES IN CHANCERY. , 3 13 Wiawall V. Wandell. that, as appurtenant to such lands or otherwise, he was the owner of and enjoyed the exclusive right of ferriage, across the river, opposite such lands ; that on the day last mentioned, ho conveyed to the trustees of the then village of Troy certain por- tions of those lands for streets running to the east bank of the river, upon condition that the trustees should not erect, estab- lish, or carry on, any ferry from Troy to the o])posite bank of the river ; and reserving to him and his heirs and assigns the privilege of using and erecting a ferry on such lands, in as full and ample a manner as if that conveyance had not been made ; that the right of ferriage so reserved became vested in the com- plainants, by divers devises, descents, and conveyances, from and under Jacob D. Vanderheyden, together with lot No. 8, south of and adjoining Ferry-street; that in April, 1843, one of the complainants, for the joint benefit of himself and the others, obtained a license, from the court of common pleas of the county of Albany, to keep a ferry between the foot of Ferry- street and the village of West Troy, and a skiff ferry from tlie foot of State-street to the same village, for three years. The bill, which was filed the last of October, 1845, then charged, that the defendant had established a skiff ferry and had commenced the ferriage of passengers, across the river, from the foot of State- street, in the city of Troy, to the opposite side of the river, in violation of the right of the complainants ; that he pretended he had procured a license, from some court or person, to estabUsh and keep a ferry there ; whereas the complainants charged that if any license had been granted to him by any court, the same was granted to and procured by him in fraud of the Complainants' rights, aad without any legal notice to them or either of them, and in violation of the statute on that subject ; and that such license was illegal and void. The defendant, by his answer, denied that Jacob D. Vander- heyden, by virtue of his ownership of the lands or otherwise, was entitled to the exclusive right of ferriage claimed by him, or that the complainants had derived any such right from him. The defendant also denied that the skiff feriy established by the complainants, and for which they had a license from tha Vol. III. 40 314 CASES IN CHANCERY [Jukb 5 Wiswall D. Wandoll. roiirt of common pleas of the county of Albany, was from the foot of State-stieefln Troy. He also stated, in his answer, thalf on the 3d of October, 1845, he was duly licensed by the court of common pleas, of the county of Rensselaer, to keep a ski/T •erry, for the transportation of foot passengers, from the foot nf State-street in the city of Troy to the opposite bank of the riv- er, for the term of one year ; setting out the recognizan.;* entered into by him, and the rates of ferriage which he wiu authorized to receive. He further stated that State-street was a public highway, and that the owners of all the land adjoui ing the same, where his skiff ferry was established, wereunwill ing to apply for a license to run any ferry therefrom, and weie willing and desirous that he should run his ferry therefrom in pursuance of his license. But the answer neither admitted nor denied the charge in the bill, thai the license was obtained without giving to the complainants of either of them, any notice of the application' to the court for such license. And the com- plainants excepted to the answer, for insufficiency, on that account. The master allowed the exception ; and the defen- dant having excepted to the report, the vice chancellor sustain- ed the decision of the master and overruled the exception to the report. J. D. Willard, for the appellants. S. Stevens, for the respondents. The Chancellor. It is admitted that the defendant has not answered the allegation, in. the bill, that the license to the defendant, for the skiflT ferry, was granted and procured without any notice to either of the complainants. The only question fo.- consideration, therefore, is whether there is any thing in the bill showing that allegation to be material for any of the pur- poses of the euit. For if notice of the application was not ne- cessary to be given, to the complainants, to render thegianting of the license valid, the allegation that it was granted in fiaud jg4S.j CASES m chancery 315 Wiswall 1;. Wandell. »nd derogation of , their riglits, is sufficiently denied ."n the answer. The title of the revised statutes for the regulation of ferries, does not require a notice of the application for a license to be given to all who claim a right to the ferry, nor even to all those who have obtained a license from another court, for a ferry at the same place. All that is required, where the applicant is not the owner of the land through which the highway adjoining to the ferry runs, is that the applicant shall give notice of the applica- tion to the owner of such land. Here there is no allegation in the bill that the complainants were the owners of the lands through which the road adjoining the skiff ferry runs, or any part of Buch lands. The grant from Lansing, to Cushman and Wis- wall, in connection with the north half of lot No. 8, was of the exclusive right which the grantor claimed to keep a ferry. But he did not grant to tliem the right to go over any other of his lands, for the purpose of enabling them to establish a ferry opposite to such lands. If the complainants are right in charging that they have the prescriptive and exclusive right to the ferry, independent of their hcense from the court of common pleas of Albany couniy, then the license to the defendant is good for nothing ; and it is wholly immaterial whether the complainants had or had not no- tice of the appHcation for it. But if their right depends upon their license exclusively, then they were only entitled to the notice in case they were owners of the lands through which the road to the skiff ferry runs. And I find nothing in this bill from which it can be inferred that the complainants were such own- ers, at the time the license to the defendant was granted. The statute requiring notice, of the application for a feny license, to be given to the owner of the lands through which the highway adjoining the ferry runs, is probably based upon the supposition that such owner is in fact the owner of the fee of the land over which the highway is laid out. And such is the legal prfsumo- tion in the present case, in the absence uf any evidence that the land over which State-street is laid out belongs to the ooiu- plaiuants, or to the city of Troy, 316 CASES IN CHANCERY, fJifjpS The Bank of Orleans s. Flagg The charge in the bill, of a want of notice to the ccnrplaiii ants, not appearing to be material for any purpose of the suit, the master erred in allowing the exception to the answer fot insufficiency, and the exception to his report was well taker! The order appealed from was therefore erroneous, and must ha reversed, with costs. And an order must be entered allowing the exception to the master's report, and overruling the excep- tion to the answer ; with costs, to the defendant, upon the ref- erence, and also on the exception to the report, and on the hearing before the vice chancellor. The Bank of Orleans vs. Fiagg and others. [Critici8ed, 23 Hun 137.] Where a person executes a mortgage upon premises which he has previously con* tractcd to sell to another, and the mortgagees file a bill to foreclose such mortgage, making the purchaser a party thereto, if they mean to insist that they are entitled to a prcfeircnce over such purchaser, as bona fide mortgagees without notice, the bill should state that such purchaser claims an interest under a contract,' or a pre- tended contract, to purchase, piior to the mortgage; and it should also allege thai if he had any such interest the complainants had no notice thereof at the time they took their mortgage. And the bill should show the other facts which are ne- cessary to entitle the complainants to protection as bona fide purchasers. Where a purchaser of premises is in the actual possession thereof, by his tenant, at the time of the giving a mortgage thereon to others, by the vendor, su..h pos- eessjon is constructive notice to the mortgagees, of the equitable rights of such purchaser; and they are not entitled to protection as bona fide mortgagees with- out notice of his rights. This was an appeal by N. A. Graves, one of the defendants in this cause, from a decree of the vice chancellor of the eighth circuit. The fact's of the case, as they appeared upon the pleadings and proofs, were as follows ; James M. Flagg was the owner of a house and lot iu the village of Albion, Oiiear.a county, which he had leased to N.. Bedell for a year, to com inencc on the first of May, 1812. On the 18th of April, l&i2, Flagg entered into an agreement, in v riling, to sell the prrm- 1848. ■ CASES IN CHANCERY 3)7 The Bank of Orleans v. Flagg. ises to Graves for $1150; of which $100 was paid at the exe- cution of the agreement, and the residue was to be paid in quarter-yearly instalments, of $50 each, with annual inter- est. The first two quarterly payments were to be secured by notes, upon the execution of the deed, and the other instalments by a mortgage upon the premises. On the same day that the agreement was executed, Flagg assigned to Graves the lease ■ or rather, the counter agreement of Bedell, the lessee, for the payment of the rent of the premises. And on the 22d of April Bedell went into possession, under Graves, and was in posses- sion as his tenant from that day, and at the time of the giving of the mortgage, to the complainants, hereafter mentioned. On the 3d of May, 1842, Flagg mortgaged the premises to "the Bank of Orleans, to secure the payment of his note of the same date, for $1100, payable in three months, and such note or notes as might be given in renewal thereof. This note not having been paid at the time it became payable, the complain- ants filed their bill against James M. Flagg and wife in August, 1842, and making Graves and Bedell also defendants in the suit ; the bill merely stating in reference to their interest in the premises, that they had, or claimed some interest in the mort- gaged property, or in some part thereof, as purchasers, mort- gagees, or otherwise, which interests, if any, had accrued sub- sequent to the lien of the complainants' mortgage, and were subject thereto. The bill was taken as confessed against Flagg and wife and Bedell. Graves put in his answer, denying that he claimed an interest in the premises subsequent to the lien of the mortgage, or subject thereto, but setting up his agree- ment with Flagg for the purchase of the property, the payment of a part of the consideration money, the assignment of the in- terest of Flagg under the lease, and the possession of the prem- ises by Bedell, as Graves' tenant, at the time of the execution of tne complainants' mortgage. The cause was heard upon pleadings and proofs, as to Graves, and upon the bill taken as confessed against the other defendants ; and upon the master's report as to the amount due on the mortgage, the amount then due upon the contract of sale and purchase between Flagg and Jg CASES IN CHANCERY. TJunE 5 The Bank of Orleans v. Flagg. Graves, of the 18th of April, 1842, and the amounts which would subsequently become due thereon. The vice chancellor made a decree for the sale of the mort- gaged premises, and for the paynien-t of the who'e of the com- plainant's debt and cost? out of the proceeds of the sale. Bui such decree contained a provision that if the defendant, Graves, should pay the amount which had already become due upon his contract before the sale, and should thereafter pay the instal- ments as they became due, then the premises sh uld not ba sold, but the complainants should pay the costs of Graves. A. Tdber, for the appellant. H. R. Selden, for the respondent. The Chancellor. The bill in this cause was not proper ly framed to enable the complainants to litigate the questioi' whether they were entitled to a preference over the contract of Graves., as bona fide mortgagees, without notice of his rights. To enable them to litigate that question, instead of alleging, falsely, that he had or claimed some interest in the premises, which had accrued subsequent to their mortgage, the bill should have stated that he claimed an interest under a contract or a pretended contract to purchase, prior to the mortgage. And then the complainants should have alleged that if he had any such interest they had no notice thereof at the time they took their mortgage, and they should also have stated the necessary facts to entitle them to protection as bona fide purchasers. The bill, therefore, ought to have been dismissed as to Graves, even if the complainants had made the necessary proofs to show that they were bona fide mortgagees without notice. But in this case they were not entitled to protection as bona fide mortgagees without notice. For the evidence clearly shows that at the time of the giving of the mortgage. Graves was in possession of the premises by his tenant ; who had been put in actual possession of the house and lot, by Graves, prior to the date of the mortgage. This, in equity, was constructive notic« 1!J48.J CASES iN CHANCERY. g^g The Bank of Orleans v. Flagg, of the rights of Graves ; and if the officers of the bank had made the proper inquiries of the tenant in possession, they would, necessarily, have been led to the knovi?ledge of the fact that Graves had, or claimed, some interest in the premises. The decree is clearly erroneous as to the appellant, as it com pels him to make the payments under his contract, without get- ting the title to the premises which he contracted for, or to lose, not only his costs of defending this suit, but all interest under the contract. After he shall have made all the payments under the contract, he may be subjected to great trouble and expense, and perhaps of a chancery suit with an insolvent, to obtain title to the premises. By the terms of. the contract Graves was entitled to a warranty deed of the premises, free from incumbrances, before he was bound to pay, or secure the payment of the residue of the purchase money of the prem- ises. The proper course for the complainants, instead of making Graves a defendant, and making a false charge against him as having acquired an interest in the premises subsequent to their mortgage, would have been to give him notice of their rights, as mortgagees, to the unpaid purchase money upon the contract, so that he might not pay it to Flagg ; and then, to file his bill against Flagg and his wife, alone, to foreclose the mortgage. The purchaser, upon a sale under the decree in such a suit, would have acquired the legal title to the land, and all the right which Flagg before had to the unpaid pur- chase money. Such purchaser under the decree would then have been in a situation to give a good title to the premises, and could have compelled Graves specifically to perform the contract which he had made with Flagg. Or he might have ejected Graves from the premises, if he refused to comply with the terms of the contract on his part. The same decree, in substance, could ana ought to have been made, upon this bill ; so as to protect the legal and equita ble rights of both parties. The decree appealed from mv.s! therefore be reversed, with costs, so far as it afiects the rights of Graves under his contract; and the bill must be dismissed, as to him, with costs. The decree must direct a foreclosiui 320 CASES IN CHANCERY [June 23 Hoyt V. Mackenzie. and sale of all the interest of the other defendants who bava suffered the bill to be taken as confessed; with the usual de- cree over against Flagg for the deficiency, if any. The decree must also declare that the dismissal of the bill shall be without prejudice to the rights of the complamanls, or the purchase! under the decree, as against the other defendants, to demand and compel a specific performance of the contract of the 18th of April, 1842, by the defendant Graves, or any person claim ing the premises under him ; or to bring any suit, either at law or equity, or under the code of procedure, for relief, upon giving or offering to give to him a good and unuicumbered title to the premises, with covenants of warranty, as specified in such contract. HoYT vs. Mackenzie and others. [Criticised, 4 Duer 879, 389.] At common law, the author ol° a book, or other literary prodiiction, whether in th* shape of letters or otherwise, has a right of property therein, until it has been pub- lished with his assent; and he may maintain an action for his damages arising from a surreptitious publication thereof. And a court of equity will, by injunction, restrain the publication of letters written by the complainant, if they are of any value to him as literary productions; or if his right to multiply copies thereof is of any value to him. t Miter, however, in relation to letters written to the complainant by other persons, without any authority, express or implied, being given to him to publish them, A letter cannot be considered of value to the author, for the purpose of publication, which he would not willingly consent to have published. A court of equity cannot properly exercise the power to restrain the publication of private letters, on the ground of protecting literary property, where they possess no attribute of literary composition. A court of equity has no jurisdiction to restrain or punish crime, oi to enforce the performance of a moral duty, except so far as the same is connected with the rights of property. Although it may be evident that the publication of private lette is with the view of wounding the feelings of individuals, or of gratifying a perverted public taste, a court of equity has no jurisdiction to restrain their publication, when they are cS. no value as literary property. Welmorc v. Scovel, (3 Edw. Ch. Rep. 515,) approved o£ IS48.1 CASES IN CHANCERY. 32 1 Hoyt V. Ma^ckenzie. This was an appeal from an order of the vice chancellor of the first circuit, denying the application of W. Taylor, one oi the defendants in this cause, to dissolve an injunction. '^I'he Dill stated, among other things, that the complainant, in May, 1844, was in possession of, as his own property, certain letters composed by him and addressed to other persons named in the bill, copies of which letters were contained in a printed pamphlet annexed to the bill as a schedule ; that at the same time he was ■ in possession of other letters addressed to him in the way of pri- vate correspondence, by certain individuals named, and by other penSons, copies of portions of which letters were also contained in the printed pamphlet; which last mentioned letters were the com- positions of the several persons by whom they purported to have been written ; that the writers of the letters, respectively, had the soleand exclusive right of making and multiplying copies thereof, and of printing and publishing the same ; that the complainant aad the right to the possession of such letters and their contents, and had a special property therein as the bailee of the writers there- of respectively ; tliat the defendants W. L. Mackenzie and C. S. Bogardus, or one of them, surreptitiously and fraudulently ob- tained possession of such letters, by breaking open a chest in the custom house in which the complainant had deposited them for safe keeping, under lock and key, as the complainant believed and charged ; that having so possessed themselves of the letters, they used them for the purpose of making up the pamphlet an- nexed to the bill in this suit, and procured the pamphlet to be stereotyped, printed and published, and numerous copies thereof to be sold ; and that they and the other defendants, some of whom were their associates and others wei'e their agents, had other printed copies on hand for sale, and that they intended to print and publish copies thereof to an indefinite extent, and to sell the same ; that the defendants also intended to print and publish and offer for sale others of the letters so purloined or surreptitiously obtained ; that some of the defendants, and par- licuhrly W. Taylor, the appellant, a vendor of books in New- York, had sold several copies of the pamphlet, as the agent of, and on commission for, Mackenzie, and others of the defen- VoL. III. '41 322 CASES IN CHANCERY. [June 23 Hoyt V. Mackenzie. dants, as the publishers, and had received and still held larpra sums of money as the proceeds of such sales. The complain- ant also alleged, in his bill, that the letters surreptitiously ob- tained from him and printed in the pamphlet constituted its chief value, and that the several portions of the pamphlet exclusive of the letters had no literary or other value than as connect- ing the letters together. And he insisted that the publication of the letters composed and written by him, was in violation of his right of property therein as author, and of his exclusivie right to print and publish the same and to make and multiply copies thereof; and that the publication of the letters addressed to, and received by him, was in violation of the right of property of the writers of such letters, as the authors, who had the exclu- sive right to make and multiply copies thereof; and was also a violation of his special property in such letters as the bailee of the writers and authors ; and that he was entitled to the aid •of the court to restrain the further publication o,f all the letters contained in the pamphlet, and the pubHcation of those not ■contained therein, aiid to call for an account of the profits and proceeds of the publication and sale already made. The prayer of the bill was therefore framed accordingly. Upon the filing of the bill an ex parte injunction was ob- tained, restraining the defendants, and their agents, from print- ing or publishing, or in any manner disseminating, or parting with, the original letters, or copies thereof, or printing, publish- ing, selling, or ofTering for sale, or disposing of, the pamphlet, or the stereotype plates of the same, or parting with or paying over any part of the proceeds of the sale of the pamphlet, other than to the complainant M. G. Harrington, for the appellant. W. M. Evarls, for the respondent. The Chancellor. I have no doubt tnat by the principles 3f the common law the author of a book or othet literary pro- duction, whether in the shape of letters or otherwise, has a rigli* frtS.] CASKS IN CHAxNCERY. 323 Hoyt V. Mackenzie. of property therein ; at least until it has beea published wita his assent. The case of Webb v. Rose, decided by Sir Peter Jekyll ia 1732, where the clerk of a deceased conveyancei' was re- strained from printing the decedent's drafts, was based upon that principle. This was followed by the decision of Lord Hardwicke, in the case of Pope v. Curl, (2 Atlc. Rep. 342,) in 1741, where the defendant was restrained by injunction from publishing Pope's letters to Dean Swift ; and by the decision in the case of Forrester v. Waller, a- few days previous, where the defendant was restrained from pubhshing the complainant's notes which had been surreptitiously obtained. Lord Northing- ton also, in the case of The Duke of Queeiisbury v. Shebbeare, (2 Eden's Rep. 329,) which came before the court of chancery in England in 1758, refused to dissolve an injunction which restrained the printing of an unpublished manuscript history of the reign of Charles the second, by Lord Clarendon ; a copy of which manuscript had been taken by permission of the personal representative of the author, and which the person receiving the same had sold to the defendant for publication, without authority. Indeed it appears to have been conceded by the counsel, as well as by all the judges, in the case of Millar v. Taylor, (4 Burr, Rep. 2303,) that by the common law an author- was entitled to the exclusive right to print his own literary productions, until they had been once printed and published by his authority ; and could maintain an action for the damages which he might sustain by their being surreptitiously printed by others. And Mr. Justice Yates only differed in opinion with Lord Mansfield and the other judges of the court of king's bench, in that case, upon the question whether an author did not lose his exclusive right, by printing and publishing his work himself; except so far as his right to the copy was protected by the statute on that sub- iect. It is true, when the question as to the rights of an author afterwards came before the house of lords, one of the twelve judges of England thought the author had no exclusive right In his unpublished work, at the common law ; and two othera thought he could not maintain an action at the common law against any person who printed and published his literary pro 324 CASES IN CHANCERY". TJume 23 Hoyt e. Mackenzie. duction w ithout jiis consent, unless such person obtained th« copy by fraud or violence. The decisions to which I have referred settle the law on the subject in England. And as they were all made before the separation of the colonies from the mother country, I consider tliem as binding upon this court. I should therefore affirm the decision of the vice chancellor, so far as relates to the three letters written by the complainant himself, if those letters were in fact of any value to him as literary productions, or if his right to multiply copies thereof was worth any thing to him. In re- lation to the letters written to him by other persons, however, if those letters were of any value to the authors, as literary productions, or for publication, the cases of Pope v. Curl, be- fore referred to, and of Thompson v. Stanhope, [Amh. Rep. 737,) show that the right belonged to them, and not to the com- plainant ; who received their letters without any authority ex- press or implied to publish them. It is evident, however, in relation to all of these letters, that the complainant never could have considered them as of any value whatever as literary productions. For a letter cannot be consid- ered of value to the author, for the purpose of publication, which, he never would consent to have published ; either with or without the privilege of copy right. It would therefore be a perversion of a correct legal principle, to attempt to restrain the publication of these letters, upon the ground that the writers thereof had an interest in them as literary property. No one, it is true, whose moral sense is not depraved, can justify the purloining of private letters, and publishing them for the purpose of wound- ing the feelings of individuals, or of gratifying a perverted public taste. And it is hardly possible that any one who has been connected with the publication and sale of the pamphlet annexed to the complainant's bill, could for a moment have supposed that (hese letters v.'ere honestly obtained, for publication ; or that they were published with the approbation of the writers thereof, or of the complainant to whom most of them were directed. But this court has no jurisdiction to restrain and punish crime, or to enforce the performance of moral duties, except so far aa IS48.| CASES IN CHANCERY. 325 Lansing v, Russell. they are connected with the rights of property, The vico chancellor, ill the case of Wetmore v. Scovel, (3 Edw Ch. Rep. 515,) very correctly decided that the court of chancery could not properly exercise a power to restrain the publication of f livato letters, on the ground of protecting literary property, where they possessed no attribute of literary composition. And upon that principle the application of the appellant should have been granted in this case. The order appealed from must therefora be reversed ; and the injunction so far as it affects thp rights of the appellant, must be dissolved. Lansing and others vs. Russell and others. The certificate of the clerk of a court is not evidence of the existence of a judgment, except in those cases where it is made evidence by statute. Independent of any statutory provision, the proper way to prove the existence of a Judgment is by the production of the record itself, or of an exemplification thereof, or of a sworn copy of such record. \a what cases the testimony of experts is proper, upon the trial of an issue as to the genuineness of the grantor's signature to a deed ; and what credit such testimony is entitled to. Where the verdict of the jury, upon the trial of issues sent to a court of law to be tried, is against the weight of evidence, a new trial will be granted by the court directing the trial. Issues were awarded, to try the question as to the genuineness of a grantor's signa- ture to two deeds, one to his daughter and another to his son-in-law, and as to the competency of the grantor to execute such deeds ; and the jury having found in favor of the validity of both deeds, a motion was made for anew trial; upon which motion it appeared that it was the grantor's intention to make the shares of all his children in his estate equal. And the deed to his daughter professing to have been given with the view of putting her upon an equality with his other children, and the court being satisfied, from the evidence, that the grantor could not have under- stood the effect of that deed upon the division of bis property, and the granteea having failed to prove that equality among the grantor's children would be pro» duced by allowing both deeds to stand, a new trial of the issues was ordered, so fat as they related to the deed to the grantor's daughter. t%e testimony of experts, who have lieen in the habit of examining the marks an;p in pleading, as an estoppel, the party who wishes to avail himself of it must plead it in bar of tho further litigation of the same matter. But in those cases where the form of pro- ceeding does not allow of special pleading, it may be given in evidence ; and in conclusive upon the parties, the court, and the jury. Whether a regular default will be set aside to let in the defendant to set up his dis< charge under the bankrupt act ? Qfuere. This was an application, on the part of the defendant, to open an order referring this cause to a vice chancellor for de- cision, and the order to close the proofs in the cause, both of 342 CASES IN CHANCERY. [jLUBliS Kingsland v. Spalding. '.vliicli orders had been regularly entered ; and to let the defen daiit in to set up a discharge under the bankrupt act, as a defence to the suit. The defendant was a judgment debtor of the com- plainants, on a judgment which they had recovered for money had and received by him, to their use, by virtue of a judgment given to him, by confession, and under an assignment to him, by John Cronkhite, of certain property, in trust to pay the com- plainants and other creditors of Cronkhite ; for the payment of whose debts Spalding stood in the situation of a surety. The judgment was recovered prior to the alleged discharge of the defendant under the bankrupt act ; and an execution thereon was issued and returned unsatisfied. The complainants there- upon filed their bill to reach the property of the defendant, which was in his possession or under his control at the time of the commencement of this suit. The bill set out the facts in rela- tion to the recovery of the judgment, and the pretence of the defendant that his personal liabihty, for the payment of the judgment, had been discharged under the bankrupt act . and insisted that he was estopped, by the recovery of the judgment, from alleging that tlie debt for which such judgment was ob . lained was not a fiduciary debt. JV. Hill, Jun. ^ &'. Steven^, for the complainants. A. Taher 4* L. Birdseye, for the defendant. The Chancellor. The proceedings on the part of Jie complainants to close the proofs, and the reference of the cause to the vice chancellor for decision, were perfectly regular ; and I have great doubts whether this court ought to let the defen- dant in to set up the technical defence of a discharge under the voluntary provisions of the late bankrupt act, even if there was a reasonable probability that the debt was discharged by the proceedings in bankruptcy. It is not necessary, however, to put my decision of this application upon that groinid ; foi 1 am satisfied that this judgment was not discharged by the pro ceedings in bankruptcy. j948 cases IJN CHANCERY, 343 Kingsland v. Spalding. The moneys and other property received by the defendant, under and through the assignment of Cronkhite, and the judg- ment confessed by him to Spalding, constituted, in equity, a trust fund, in the hands of the latter, for the payment of the romplainant's debt. And the judgment under which this creditor's bill has been filed having, as the affidavits show, been recovered upon the ground that Spalding had received moneys to the use of the complainants, to the amount of the recovery in that case, under the assignment and the judgment against Cronkhite, the defendant is estopped from litigating the matter again, in this suit, either as to the fact of its being a fiduciary debt, or as to the amount which the defendant had received in his fiduciary character, for the use of the complain- ants as the equitable owners of the trust fund. The rule on this subject is, that a decree, sentence, or judg- ment, of a court of competent jurisdiction, is conclusive upon the parties, in any future litigation of the same question between the parties to such decree, sentence, or judgment, or those claiming under them ; whether the question arises directly or collate- rally in such subsequent litigation : provided the question of estoppel is brought before the court in the proper form. Where the former decision of the same matter can be set up in plead- ing, as an estoppel, the party who wishes to avail himself of it must plead it in bar of the future litigation of the same matter. But in those cases where the forms of proceeding do not allow of special pleading, it may be given in evidence ; and is con- clusive upon the parties, the court and jury. ( Wright v. Butler, 6 Wend. Rep. 284. Young v. Beach, 7 Crunches Rep. .565. Estell V. Taul, 2 ITerg. 467.) And it makes no diflference, in ihis respect, that the object of the first suit was entirely differ- ent from that of the second. Tl\us, in the case of Betts v. Starr, (5 Conn. Rep. 550,) where a mortgage was given to secure the amount due upon a promissory note ; an ejectment suit was af-eiwards brought, upon the moi-tgage, to recover the possession of the mortgaged premises, and the defendant attempted to go into proof to show that the mortgage was usurious, as a de- fence to the suit. The plaintiff, however, produced the record 344 CASES IN CHANCERY. IJuNEpf, Seaman v. Stoughton. of a judgment in his favor upon the note, given with the mort gage, and proved that under the plea of the general issue the defendant in the former suit attempted to set up the defence of usury, but failed. And the court thereupon decided that the verdict and judgment in the suit upon the note were conclusive of the fact that the mortgage, which was given at the same time with the note, and to secure the same debt, was not usu- rious. The cases of Preston v. Harvey, (2 Heji. ^ Munf. Rep. 55.) in the court of appeals in Virginia, and of Rice v. King, (7 John. Rep. 20,) in the supreme court of this state, are to the same effect. The motion must therefore be denied, with costs. Seaman vs. Stoughton and Kimball. Where to a bill, by a creditor, against his debtor and the assignee of the latter, un- der an assignment for the benefit of creditors, praying for an account of the as- signed property, and for the payment of the complainant's debt, and other debts provided for in the assignment, the assignee pleaded that the assignor, aflel making the assignment, presented his petition to the district court, praying that he might be declared a bankrupt pursuant to the act of congress on the subject; and that such court made a decree appointing an assignee of his estate and effects; whereby all the property assign'ed by the debtor to the defendant became vested in the assignee in bankruptcy ; Held that the plea did not contain the necessary averments to show that the debtor was legally declared a bankrupt, so as to vest his property in the assignee in bankruptcy. To show that the court had jurisdiction to proceed, upon the petition of a debtor, under the voluntary provisions of the bankrupt act, the plea setting up a discharge in bankruptcy, or a right acquired under the decree therein, should state that the petition set forth a list of the petitioner's creditors and an inventory of his property, and tliat such petition was duly verified. It should also distinctly appear that the bankrupt owed debts which had not been created inconsequence of a defalcation as a public officer, or as an executor, administrator, guardian, or trustee, or while acting in any other fiduciary capacity. An assignment made by a debtor, of his property, in contemplation of bankruptcy and for the purpose of givlnfr preferences, is not absolutely ' old, for all purpose* ■ .348,] CASES IN CHANCERY. 345 Seaman v. Stoughton. to as to leave the title to the assigned property in the assigncir, as if no a jsignmeiii had been made. But it is only void as against an assignee properly appointed under the bankrupt act. This case came before the chancellor upon an appeal by the defendant Stoiighton from a decretal order of the vice chan- cellor of the first circuit, overruling a plea to the complainant's bill. The complainant was a creditor of the defendant Kim- ball in March, 1842, and his debt v^bls provided for, either wholly or in part, by an assignment of the property of his debtor, to Stoughton, in trust for the payment of debts. The bill in this Ciiiise was filed by the complainant in behalf of himself and all the other creditors provided for in the assignment, for an ac- count of the assigned property, and for the payment ol their respective debts out of the same, in the manner provided for in the assignment. Kimball resided in New- York at the time of the assignment ; and such assignment, which was made in March, 1842, and embraced all his property and effects, showed upon its face that at the time it was made the assignor contemplated bis bankruptcy, and that his property was then insufiicient to pay all his debts. The defendant Stoughton pleaded in bar of the whole dis- covery and relief sought by the bill, that at the time of the as- signment, in March, 1842, Kimball was hopelessly insolvent; and that such assignment was executed for the purpose of giving to certain of his creditors a preference over hisgeneral creditors; that the assignor immediately removed to the state of Massachu- setts, and in August, 1842, presented his petition to the district court of that state, praying to be declared a bankrupt, pursuant to the act of congress on that subject; and that in pursuance of such petition the district court, on the 19th of October thereaf- ter, made a decree appointing C. C. Paine of Boston assignee of the estate of Kimball ; whereby, as the defendant was ad- vised by his counsel, all the property assigned by Kimball, to the defendant Stoughton, became vested in Paine, as such assignee in bankruptcy. ■ Vol. III. 44 346 CASES IN CHANCERY'. fJi-NE 23^ Seainaa v. Stoughton. F. H. Upton, for the appellant. The assignment set forth in ihe bill of complamt, from Alvah Kimball to the defendant Stoughton, constituting the basis of the claim of the complain- ant, was utterly void under the bankrupt law of the United States; (1.) Because it was made while, that law was in ope- ration ; (2.) Because it was made in contemplation of bank:- ruptcy ; and (3.) Because it was made for the purpose of giving to certain of the creditors of Kimball a preference and priority over his general creditors. The plea distinctly alleges these facts, and is therefore a good plea in bar to the bill of the complain- ant. (Ba?ikr. Law of U. S.k 2. Owen on Bankruptcy, app. In the matter of Lucius Eames, 5 Law 'Rep. 117. Ex parte Rufus Hoyt, 1 N. Y. Legal Obs.^ 132. Barton v. Tower, 5 Law Rep. 214. Gasset v. Morse, 3 N. Y. Legal Obs. 353.) The assignment, under which the complainant claims, being declared by the act of congress to be utterly void, it can have no validity whatever under the state law; which ceased to ex- ist upon the passage of the general bankrupt law. (Sturgis v. Crowrdnshield, 4 Wheat, 122. Ogdcn v. Saunders, 12 Id. 263. Barton v. Tower, 5 Law Rep. 214.) The assignment is not merely voidable. It is as if it had never existed ; and is without force or validity for any purpose, or between any par- ties. It is a mere nullity. The grantee took no property by virtue of it ; and therefore cannot be compelled to answer a bill calling upon him to account for the execution of a truri which was never created. Hence the plea is a,good plea in bar of this suit ; and the vice chancellor erred in overrulmg ii. {Hone V. Woolsey, 2 Edw. 289. Henriques v. Hone, Id. 120. Mills V. Hooker, 6 Paige, 577. Mackie v. Cairns, 5 Cowen, 564. Grover v. Wakema7i, 11 Wend. 189.) S. D. Van Schaack, for the respondent. The plea adrnits all the facts stated in the bHl which are not denied by such plea. [Bogardus v. Trinity Church, 4 Paige, 178. 1 Barb. Prac. 120.) These facts thus admitted are, the indebtedness by Kim- ball, and the assignment to Stoughton ; (he sale of groceries, and the receipt of several thousand dollr rs therefor, and also mS.] CASES IN CHANCERY. 347 Seaman t). Stoughton. the collection of f 2000 of the debts by Stoughlon ; that the assigned property produced more than enoiagh to pay the pre- ferred debts ; that Stoughton has paid dividends to the amount of $450 ; and that he has applied the funds and property to his own use. These facts being admitted, the defendant Stough- ton pleads that the creditors provided for by the assignment have no right to call him to an account. The plea sets up a mere decree for the appointment of an assignee in bankruptcy, but fails to show any accounting with that assignee ; or any decree of a competent court declaring the assignment void, or otherwise invalidating it. An assignment may be void for cer- tain purposes, and still valid as between the cestui que trust and the assignee, so as to permit the cestui que trust to enforce it in equity. {Mills ^ Hooker v. Ars;all, 6 Paige, 577. Dodge V. Sheldon, 6 Hill, 9.) Although an assignment is void at law \vhea executed, if the proceeds have been paid over to the cred- itors provided for therein they cannot be reached. ( Wakeman v. Grover, 4 Paiges Rep. 24. Ames v. Blunt, 5 Id. 13.) So that if the prayer of this bill be granted, Stoughton cannot be afterwards called to account by the assignee in baniiruptcy for the effects paid over to us under the decree. This assignment is void only as to persoas claiming in virtue of proceedings un- der the bankrupt act. {Dodge v. Sheldon, 6 Hill, 9.) The assignment is still valid between the parties to this bill, and has never been impeached, by creditors or otherwise. The assignee has received large sums of money which he has applied to hia own use. He does not show, b) his plea, any accounting with the assignee in bankruptcy, nor any proceeding to compel him to account. There is nothing, therefore, in this plea, that should deprive the complainant of his right to discovery and relief. The plea is also defective in not stating the necessary facts to give the United States cou;* iuiisdiction to make a de- eiee declaring the petitioner a bankrupt. The Chancellor. The plea in this case does not con- tarn (he necessary averments to "show that the defendant, A. KimlwU_ was legally declared a bankrupt, so as to vest the as-. 348 CASES IN CHANCERY. [Jume 2^ Seaman v. Stoughton. signed property in C. C. Paitie, tlie official asmgnee appointed by the district court. Tiie plea merely states that the sup- posed bankrupt resided in the state of Massachusetts, ana that he presented a petition praying that he might be declared a bankrupt, pursuant to the act. To show that the court had jurisdiction to proceed upon his petition, under the voluntary provisions of the bankrupt act, he should have staled, in the plea, that his petition feet out a list of his creditors, and an inventory of his property, and that it was duly verified. It should also distinctly appear that he owed debts which had not been created in consequence of a defalcation as a public officer, or as an executor, administrator, guardian, cr trustee, or while acting in any other fiduciary capacity ; so as to bring him with- in the description of persons who were authorized, by the first section of the bankrupt act, to apply for the benefit of that act as voluntary bankrupts. (Sackett v. Andross, 6 Hill's Rep. 327. Sailers v. Tobias, 3 Paige's Rep. 338.) The plea be ing insufficient to show that Kimball was ever legally declared a bankrupt, so as to vest any of his property in the official as- signee, the question arises, whether the assignment to the appel- lant, for the benefit of the creditors, was absolutely void for all purposes, so as to leave the whole title to the property in the assignor, as if no assignment had ever been made ; or whether it was only void as against an assignee properly appointed un- der the bankrupt act. This assignment, upon its face, shows that it was made in contemplation of bankruptcy. And, as against an assignee duly appointed under the bankrupt act, or those who should claim under him, it would unquestionably be void ; as a fraud upon the rights of creditors who should come in and prove their debts under the decree in bankruptcy. And as congress has the power to establish an uniform system of bankruptcy throughout the United States, I am not prepared to say it has not authority, by the constitution, to prohibit any person, who has become a bankrupt, from assigning his property for the pur- pose of giving a preference to one class of creditors over anothei; ttliere he has not the means of paying the whole ; so as to leava .848.J CASES IN CHANCERY. 349 Seaman v. Stouahton. all his creditors to a fair race of diligence, in obtaining a pri- ority of payment, by due course of law. Such, however, does not seem to have been the intention of the framers of the re- cent bankrupt law. Although the act declares all payments, assignments, securities, conveyances, and transfers of property^ made or given in contemplation of bankruptcy, for the purpose of giving pre.ferences, utterly void, the residue of the sentenca shows that they are only void in reference to proceedings un- der the bankrupt law ; instituted by the petition of the bankrupt himself, or by an application of some of his creditors. For it declares such assignments a fraud upon the act ; and autho- rizes the assignee in bankruptcy to claim, sue for, and recover the property, as a part of the assets of the bankrupt. And it prohibits the discharge of the bankrupt wlio has been guilty of such a fraud in reference to the contemplated proceedings under the act. This question was presented directly to the supreme court of this state for decision, in October, 1843, in the case of Dodge ^ McChtre v. Sheldon, (6 HilVs Rep. 9 ;) and that court held that the assignment not being void by the state laws, and it not appearing that any proceedings had been instituted under the bankrupt act, while it was in existence, the assigned prop- erty was improperly seized by the sheriff, as belonging to the bankrupt, upon an execution against him. Indeed, it would be contrary to every principle of equity to permit a trustee, who has received the property of a debtor in trust to apply it to the payment of creditors, to set up the defence of fraud, in making and receiving the transfer for the benefit of such creditors, as a defence to a suit brought by them to compel a performance of the trust ; without showing that the fund had been recovered from him by the parties intended to be defrauded, or even that they had ever made any claim to it. The order appealed from must therefore be affirmed with costs. And the appellant must pay the costs of the appeal and the costs awarded by the vice chancellor, and answer the com- plainant's bill within the forty days allowed by the order ap- pealed from, after service of notice of the final decree, or tha bill must be taken as confessed against him. 350 CASES IN CHANCERY. [June 23 JANSiN and others vs. Cairnes and wife, and others. S. testator, by his will, devised and bequeathed to his wife all the income of his rea- and personal estate for life. And after her death he gave certain portions of hie estate to the children of her brother. He then gave the residue of his estate, after the death of his wife, to A. E. T. during her life, subject to certain charges. By the fourth clause of his will he gave to the children or issue of A. E. T. $10,000, after her death, and to the children of W. P. T. and A. J. S. $30,000 ; one half to the children of each. By the fifth clause he gave to W. P. T., A. J. S. and E. S., as the same was possessed by his wife and A. E. T., if they outlived the latter, for life. By the sixth clause the testator gave the residue of his estate, real and personal, to E. S., to her and her children forever, to them and their heirs. And he left her, when she arrived at age, $50,000, any t/dng in Ms will contained to the contrary notwithstanding. By the ninth clause the testator provided that in case E. S. should die without leaving issue, in that case, and no other, the whole of his estate that might then remain should go to his paternal and maternal cousins, &c. On a bill by a part of the paternal heirs and next of kin of the testator, for the purpose of obtaining their shares of his estate, upon the ground that the several dispositions of the property made by his will, except the life estate therein to his wife, were invalid ; and to have the $50,000 legacy to E. S. declared void — Held that the absolute ownership of the $50,000 of the testator's personal estate was not suspended for more than two lives in being at the death of the testator, by the contingent legacy to E. S. and her issue ; and that her right must vest in inter- est and in possession, if ever, during the continuance of one life in being at the death of the testator. That although the first and third clauses of the will gave successive life estates in the income of the real and personal property, gene- rally, to the widow and to A. E. T., yet that those general devises and bequests must be taken in connection with other provisions of the will ; and must be con- strued, if possible, so as to be consistent therewith. Held, also, that the legal effect of the will, so far as related to the interests of the widow and A. E. T. and E. S., in the amount of the $50,000 legacy, was the same as if the testator had ordered $50,000 of his personal estate to be set apart andin- \'ested, so as to produce an income,, and that the capital of the fund should be paid to E. S. when she arrived at twenty-one, if she lived to attain that age; and had limited successive estates in the income of the $50,000 for the lives of the widow and A. E. T. respectively, unless the contingency sooner happened by which tht capital bef ame payable to E. S, Uddfurfin, that upon the arrival of E. S. at the age of twenty-one, she would be entitled to the payment of the capital of the $50,000, as her absolute property. Whether the life estate of A. E. T. in the income of the amount of the $50,000 leg- acy was not invalid ; on the ground that it might suspend the absolute ownership of that part of the fund for a longer period than two lives in being at the death of the testator % Q,u(sre. .848..1 CASES IN CHANCERY, 35 Jansen t>. C&irnes, This case came before the chancellor upon an application ay the complainants, for an injunction and receiver. George Rapelye of the city of New- York, died in May, 1835, without lawful issue, leaving a large real and personal estate. By his will, executed in due form of law, he devised and be- queathed to his wife all the income of his real and personal estate for life ; and appointed her the executrix of his will, during her life. After her death he gave certain portions of his estate to the children of her brother. He then gave the residue of his estate, after the death of his wife, to A. E. Taylor, who after- wards married the defendant W. Cairnes, Jan. during her natu- ra-l life, charged with the education and support of W. P. Taylor, Anne J. Smith, and Ellen Eliza Smith. By the fourth clause of his will he gave to the children or issue of A. E. Tay lor $10,000, after her death, and to the children of W. P. Taylor and Anne J. Smith $20,000 ; one half to the children of each. By the fifth clause he gave his estate to W. P. Taylor, A. J. Smith, and Ellen E. Smith, as the same was possessed by his wife and A.. E. Taylor, if they outlived the latter ; to hold the same as joint tenants for and during their natural lives, and no longer. The sixth clause of the will was as follows : " I give, devise and bequeath the rest, residue and remainder of the whole of my estate, real and personal, unto the before named Ellen E. Sraithj who I here consider and make my principal heir to my estate, that is, to her and her children, if she should have any, forever to them and their heirs ; and I leave her when "she arrives at age, fifty thousand dollars, anj/ thing herein contain- ed to the contrary notwithstanding. And I hereby nominate and appoint her third executrix to carry the provisions of this my last \v,ll into effect, with full power to execute the same." The seventh clause "of the will protected the property devised and bequeathed to females, from the power or control of their hiisbands in case of marriage ; and the eighth appointed A. E. Taylor, (now Mrs. Cairnes,) second executrix, to exe- cute his will after the death of his wife ; and appointed her guardian for W. P. Taylor, Anne J. Smith and Ellen Eliza Smith, to have the entire management of then: during her life- 352 CASES IN CHANCERY. [Jine 23^ Jansen v. Cairnes. time, and also of the property before devised for their benefi' and advantage, to manage as she might deem most proper. And by the ninth clause of his will the testator provided that in case Ellen Eliza Smith should die without leaving issue, in that case and in no other, the whole of his estate tha-t might then remain should go to his paternal and maternal cousins, and their children and descendants, in the manner in that clause of the will particularly specified. At the death of the testator he left his wife, who had died before the filing of the bill in this cause, and A. E. Taylor, now Mrs. Cairnes, W. P. Taylor, Anne J. Smith and Ellen Eliza Smith — the latter of whom was about nine years of age — sui- viving him. After the death of Mrs. Rapelye, the widow, Cairnes and wife took out letters testamentary upon the estate; and this bill was filed by the complainants, who claimed to be a part of the paternal heirs and next of kin of the testator, for the purpose of obtaining their shares of the estate, upon the ground that the several dispositions of the property made by his will subsequent to the death of Mrs. Cairnes were invalid, and that the $50,000 legacy given to Eliza Ellen Smith was also void TV. C. Noyes, for the complainants. The will contains a scheme for the disposition of the testator's real and personal es- tate ; the general design of which is in violation of the revised statutes concerning trusts. Some of its provisions are plainly unauthorized and void. These provisions embrace some of the most important parts of the will ; and the residue being com- paratively insignificant portions of the same scheme, ought not to be permitted to stand. The remainder for life to Wm. Paul Taylor, Ann Janette Smith, and Ellen Eliza Smith, and the re- mainder in fee to Ellen Eliza Smith are void, under the provisions of the revised statutes; because they suspend the power of alien- ation for a longer period than during the continuance of any two hves in being at the creation of the estate. The power of alienation is suspended for more than two lives in being at the creation of the estate, because two prior life estates are given ; which, with these three, make five in all. The ultimate re- 1848.] OASES IN CHANCERY. 5553 Jansen v. Cairnes. inainder in fee, which is a contingent one, is to Ellen Eliza Smith, and her children ; the latter not in being, and who could not of course convey an absolute fee in possession. The re- mainder in fee to Ellen Eliza Smith is a contingent one, and is not made in conformity with section 20 of the article of the revised statutes concerning trusts ; so that the remainder must vest in interest during the continuance of not more than two lives in being at the creation of such remainder, or at the ter- mination thereof. The remainder to the children of Ellen Eliza Smith is also void upon common law principles, in regard to contingent remainders, as well as under the revised statutes. (1 R. R 723, §§ 14, 15, 16. 14 Wend. 265. 16 Id. 61.) The remainder devised by the ninth clause of the will, to the maternal and paternal cousins of the testator, being a contin- gent remainder in fee, created upon a prior remainder in fee, is void by the 16th section of the article of the revised statutes concerning trusts ; inasmuch as the same is not 'imited to take effect in the event that the persons to whom the first remainder is limited, should die under the age of twenty-one years, nor upon any other contingency by which the estate of such per- sons might be determined before they attain their full age. In reference to the personal property, this part of the will, and those parts creating remainders to Wm. P. Taylor, Ann J. and Ellen Eliza Smith, are in violation of that section of the revised statutes which declares that the absolute ownership of personal property shall not be suspended, by any limitation or condition whatever, for a longer period than during the continuance and until the termination of two hves in being at the death of the testator. (1 R. S. 773, § 1.) But whether this is so or not, is not material, as the complainants are paternal cousins, and as such w ould be entitled to take if this clause of the will was valid. The legacy of $50,000 to Ellen Eliza Smith is also void. And the several legacies given by the fourth clause of the will are likewise void. It results from the preceding views, that almost the entire structure which the testator attempted to rear, is opposed to the wholesome policy ol our laws. And it is submitted hat the •Vol. hi. 45 354 CASES IN CHANCERY. ''Jdh* 23, Jansen v. Cairnes. remaining life estate, now claimed by Mis. Cairnes, slioulid not be permitted to stand. It can only be sustained by applpng the cy pres doctrine ; which it is believed is entitled to no par- ticidar favor, and is in fact not applicable to the present pro- vision. This doctrine was intended to prevent a violation of the intention of the testator, v\rhere the lauguAge of the will was ambiguous, and where an estate was eiideavored to be raised contrary to law, though the apparent intention was a lawful one ; but at the same time to carry iiito effect this gen- eral valid intention in favor of the objects of his bounty, and to raise the estate according to law, so as not to violate any legal provision. {Fearne on Rem. ed. 1826, 6y Butler, p. 203 m,d note.) In Brndnell v. Ellis, (7 Ves. 390,) Loid Eldon safd that the doctrine was not to be carried beyond the adjudged cases. And Mr. Butler observes that it should not be acted on without great consideration. The devise to Mrs. Cairnes was ntended as a part of the provision for William Paul Taylor; 4.nn Janette Smith, and Ellen Eliza Smith ; for the income is given to her with a charge for their support and maintenance. Why should this provision for their benefit remain valid when the devise directly to them is confessedly void 1 It was not the testator's intention to give her the estate, or to enable her tc bestow it in marriage, or otherwise. The children were the objects of the testator's bounty ; and her claim in their behalf is greatly diminished by the death of one of them. To sustain this provision will be giving her the property practically for her own use; which the testator never intended. Nor did he inean to give it to her disconnected from the other provisions of the will. His scheme was an entirety ; to give them the whole income of the estate for life, by giving it to their mother for their use during her life, and to them after her death ; and then over to Ellen Eliza Smith and her children, or to his paternal and maternal cousins, as provided in the last clause of the will. It is quite clear from these considerations either that the com- plainants and the other heirs at law of the testator, have the entire and present right to all the real and personal estate, or that they took a present i.-iterestin his real and personal estate 1848.J OASES IN CHANCERY. 355 Jansen v. Cairncs. in remainder after the termination of the life estates of iiia widow and Mrs. Cairnes, conceding those two life estates to be valid. In either event, they have such an interest in the real and personal estate as authorizes them to file this bill. Charles O'Conor, for the defendants, insisted that there had been no misapplication of the funds ; that the $50,000 legacy was vahd ; and that there were no sufficient grounds for the granting of an injunction, or for the appointment of a receiver, in the present state of the suit. The . Chancellor. The decree in the suit instituted by John Emmons being appealed from, and it now appearing that he was not interested in the personal estate, as one of the next of kin who were authorized to take under the statute of distri- butions, that decree cannot affect the rights of any of the par- ties in this suit ; so far as the personal- estate is concerned. The question now before me must therefore be disposed of as if that decree had never been made. The papers read in opposition to this application, so far disprove the allegations in the bjU in re- lation to the irresponsibility, and the alleged misconduct charged in the bill, against Cairnes and wife, in respect to the manage- ment of the estate, that there is no reason for putting the es- tate under the management and control of a receiver. The only question necessary to be examined, then, is as to the validity of the $50,000 legacy, to Ellen Eliza Smith, given by the sixth clause of the will. For, if that legacy is void, Cairnes and wife should be enjoined from paying it over to her, in case the complainants have any' interest whatever in the testator's personal estate, as a part of his next of kin. But upon a carefuPinvestigation of the various provisions of this will, I have arrived at the conclusion that the assistant vice chancellor was wrong in supposing that the absolute own- ership of that part of the testator's personal estate was suspend- ed for more than two lives in being at the death of the testator by the contingent legacy of $50,000, or that it can by any possibility be thus suspended. It is true the first and third 356 CASES IN CHANCERY. [Jcne 23 Jansen v. Cairnes. clauses of the will give successive life estates, in the income of the real and personal property, generally, to the widow of the tes- tator and to A. E. Taylor. But those general devises and be- ciuests of the income must be taken in connection with othpr provisions of the will ; and must be construed, if possible, so as to be consistent therewith. For instance, the devise of a life estate to A. E. Taylor, in the whole income of all the testator's real and personal property, immediately after the death of his wife, must not be taken to include the income of that part of the property which- is given to the children of B. P. Provost after the death of the widow. Nor can it properly be held to give A. E. Taylor the income of the $50,000 legacy for life, which by the terms of the will is payable immediately upon the arrival of Ellen Eliza Smith at the age of twenty-one. The language of the will in relation to that legacy is pecu- liar. It is, "I leave her, when she arrives at age, in her own right and disposal, $50,000; any thing herein contained to the contrary notwithstanding." If this legacy, therefore, de- pends upon the contingency of her arrival at the age of twen ty-one, it is payable immediately after her arrival at that age, even if the widow of the testator, and A. E. Taylor should both be living at that time ; the other provisions of the will, giving them successive life estates in the income of the testator's pi'operty, to the contrary notwithstanding. The moment she arrived at the age of twenty-one, this $50,000 was to be caiTed out of the testator's estate, and given to Ellen E. Smith, absolutely in full property ; to be disposed of as she might deem proper. The giving of this legacy to her, therefore, could by no possibility suspend the absolute ownership of that part of the testator's property beyond her life, which was in being at the death of the testator. For if she arrived at the age of twenty-one it ivas to be paid immediately. And in case she died under that age, if the life estate of A. E. Taylor in that part of the testa- tor's property, after that time, might have the effect to suspend the absolute ownership of the $50,000 beyond the time allowed by law, the gift of the income of that part of the testator's per- sonal property, to A. E. Taylor, after the death of the widow of 1848.J CASES IN CHANCERY. 357 Jansen v. Cairnes. the testator, would be void ; and not the contingent legacy to Ellen Eliza Smith, which must vest in absolute piopeity, if ever, during the continuance of one life in being at the death of the testator. The legal effect of the will, so far as relates to the interests of the widow, and of E. A. Taylor and Ellen Eliza Smith in the amount of the $50,000 legacy, is the same as if the testator had ordered $50,000 of his personal estate to be set apart and invested, so as to produce an income, and that the capital of the fund should be paid to Ellen Eliza Smith when she arrived at twenty-one, if she lived to attain that age ; and had limited successive estates in the income of the $50,000, for the lives of tl)e widow and A. E. Taylor, respectively, unless the contin- gency sooner happened by which the capital would become payable to Ellen Eliza Smith. Had the will been in this form it would have been perfectly evident that the contingent limi- tation to the legatee, of such capital, could not by any possibility suspend the absolute ownership beyond the hfe of such legatee, whether she did or did not live to attain the age of twenty-one ; and that if the absolute ownership was suspended after her death, under the age of twenty-one, it must be by the limita- tion of the two successive life estates in the income of that part of the testator's personal property, after the happening of that event. Therefore if the Ufe estate in the income, after the death of Ellen Eliza Smith, which is limited to A. E. Taylor, suspends the absolute ownership, or might by possibility suspend the abso- lute ownership in the $50,000, that limitation, and that only, is void ; under the provisions of the revised statutes. (1 R. iS. 773, § 1.) Upon the arrival of Ellen Eliza Smith at the age of twenty- one, therefore, she will be entitled to the payment of the capital of the $50,000, as her absolute property. The applica- tion for an injunction, and for the appointment of a receiver inust be denied with costs. 358 CASES IN CHANCKKV'. [Jcse Jti' The Lxion Bank vs. Barker and others. It ia well settled, independent of any statutory provisioo on the subject, that a de' fendant, in a bill in chancery, is nut bound to make a discovery as to any charge of felony against him, or as to any criminal offence involving moral turpitude. The language of the act of January 30, 1833, providing that a defendant shall ba compelled to answer any bill in chancery charging him with being = party to any conveyance, or assignment, made or created with intent to defraud prior or subsequent purchasers, or to hinder or defraud creditors or other persons, or where the defendant shall be charged with any fraud whatever, affecting tbo rights or property of others, but that no such answer shall he received as evidence against any party thereto, on any complaint, or on the trial of any indictment for the fraud charged in the bill, is broad enough to embrace a fraud committed by the defendant by means of his own forgery. Bat it was not the intention of the legislature, by that act, to compel a defendant, in a bill in chancery, to answer such a charge upon his oath. The act of 1833 was intended to embrace a class of frauds, affecting the rights of property, which were not punishable by the common law, but which, by the stat- utes of this state, are now made criminal ; so that the eOect of the several statutory provisions, subjecting persons guilty of such frauds to criminal prosecutions there- for, should not deprive the parties injured, of the discovery and relief to which they were formerly entitled in the court of chancery. Heldj accordingly, that defendants were not bound to answer a charge of having entered into a conspiracy to defraud the complainants and others by means of forgeries ; and of having actually obtained several sums of money by means of forged drafts and checks. This was an appeal by the complainants from an order of the vice chancellor of the first circuit. The bill in this case charged, in substance, that the defendants, J. Barker and T. Canouse, entered into a conspiracy to defraud the complain- ants and others by means of forgeries : that they obtained from the complainants several sums of money by means of forged drafts and checks, which were pArticularly specified in the bill ; and that some of the proceeds of such forged drafts and checks, or of the moneys obtained thereon, were in the possession of the respondents, and some in the hands of the police, &c. The complainants therefore prayed for an injunction, to restrain the respondents from parting with the proceeds of the forged drafts and checks, &,c. and for general relief.' Barker and Canouse demurred to so much of the discovery sought by the I84S.] CASES IN CHANCERY. 359 The Union Bank v. Barker. bill as required them to answer as to the alleged conspiiacy, and the obtaining of the funds of the complainants by means of the forgeries mentioned in the bill. iS. A. Foote, for the appellants. J. M. Smith, for the respondents. The Chancellor. It is perfectly well settled, independent of any statutory provision on the subject, that a defendant in a bill in chancery is not bound to make a discovery as to any charge of felony against him, or as to any criminal offence in- volving moral turpitude. The only question for consideration in this case, therefore, is whether the act of the 30th of January, 1833, (2 R. S. 103, § 46 of 2d ed.) extends to this case. The first section of that act provides that a defendant shall be com- pelled to answer any bill in chancery, where by law a bill may now be filed, charging the defendant with being a party to any conveyance or assignment of any estate or interest in lands, goods, or things in action, or of any rents or profits arising therefrom, or to any charge on any such estate, interest, rents, or profits, made or created with intent to defraud prior or sub- sequent purchasers, or to hinder or defraud creditors, or other persons, or where the defendant shall be charged with any fraud whatever, aflfecting the right or property of others. And the second section declares that no such answer shall be received as evidence against any party thereto, on any complaint, or on the trial of any indictment, for the fraud charged in the bill. The language of this statute is probably broad enough to em- brace a fraud committed by the defendant by means of his own forgery ; an oflTence involving the highest degree of moral tur- pitude, which, by the common law, subjected the offender to the disgraceful punishment of the pillory, and which has long since been made a felony by our statutes. But it certainly could not have been the intention of the legislature, by the act of January, 1833, to compel a defendant in a bill in chancery to answer such a charge upon his oath. There is another class 360 CASES IN CHANCERY. [June 2% Johnson v. Fitzhugh. of frauds, however, afTecling the rights of property, wliich were not punishable at all by the' common law, but which by the statutes of this state are now made criminal. And it was thia class of frauds which the act referred to was intended to em- brace ; so that the effect of the several' statutory provisions, sub- jecting persons guilty of such frauds to criminal prosecutions therefor, should not deprive the parties injured of the discovery and relief to which they were formerly entitled in this court. The vice chancellor was right in supposing that the respon dents were not bound to answer upon oath as to the charges of felonious forgery, covered by the demurrer to the discovery sought in this case. The order appealed from must therefore be affirmed with costs. Johnson and Clark vs. Fitzhugh and others. [Not followed, 6 Fea. Eep. 61.] Where a decree is actually made by the court of chancery, before the discharge of a defendant under the bankrupt act, for the payment of a debt which was contracted before the proceedings in bankruptcy were instituted, such debt may be proved under the decree in bankruptcy. And the discharge of the defendant is a bar la any suit, or other proceeding upon the decree, to charge the defendant personally with the debt ; unless such discharge can be successfully impeached for some of the causes specified in the bankrupt act. Where a bill is filed against husband and wife, to foreclose a mortgage executed by them, but before a decree is obtained in that suit, the husband is declared a bank- rupt, by the decree of the district court, the effect of that decree is to vest in the assignee in bankruptcy, the whole interest of both defendants in the mortgaged premises, except the inchoate right of dower of the wife in the equity of redemp- tion. And unless the assignee in bankruptcy is made a party to the suit, after the decree in bankruptcy, a decree of foreclosure, subsequently obtained, will be a nullity, as to him ; and will not foreclose his equity of redemption in the mort- gaged premises. The proper course for the complainant, in such a case, after the decree :m bank ruptcy has been obtained, is to file a supplemental bill, in the nature oft bill of revivor; to revive and continue the proceedings against the assignee in bank.uplcy as the party upon whom the equity of redemption has been cast by operation o< uw. 1848.1 CASES L^ CHANCERY. gg Johnson v. Fitzhugh. In ordinary cases, although a judgment technically changes the nature of the debt, it is still in fact the same debt which was due at the commencement of the suit ; and if contracted previous to the institution of proceedings in bankruptcy against the debtor it will be barred by his discharge, where such discharge is obtained subsequently to 'the entry of the judgment. Since the act of May, 1840, concerning costs and fees in courts of law, &c. it is not necessary for the registers or clerks of the court of chancery, or the clerks of the supreme court, to docket decrees or judgments in the books of their own offices; and if done, it will not affect the rights of either of the parties to the decree or judgment, or cast a cloud upon the title of the defendant in such suit to his real estate. Where a decree in chancery is entered against a defeidant, subsequent to the insti- tution of proceedings in bankruptcy by him, and he afterwards obtains his dis- charge, and is then sued in an action at law, upon the decree in chancery, his proper course is to plead his discharge, in bar of the suit at law ; inserting in his plea the proper averments to show that the debt for the payment of which the decree was made was contracted prior to the presenting of his petition in bank- ruptcy ; so as to be provable under the proceedings in bankruptcy, and to have been affected by the discharge. The dictum of Bronson, J. in Tkompson v. Hewitt, (6 Hill, 254,) that the original debt was merged and extinguished by the judgment, limited to the case which he then had under consideration. This was an appeal by Fitzhugh, one of the defendants, from an order of the vice chancellor of the fifth circuit, denying the application of the defendant Fitzhugh, to set aside the docket of a decree, in the books of the clerk of this court, made on the 12th of June, 1843. The bill in this cause was filed to foreclose a mortgage, given by Fitzhugh and wife, and to ob- tain satisfaction of a debt which was also secured by the per- sonal bond of Fitzhugh, dated in 1836. In January, 1843, Fitzhugh presented his petition for a discharge under the vol- imtary provisions of the bankrupt act, and was decreed a bank- rupt on the 20th of February thereafter ; and he obtained his discharge on the 5th of June in the same year. Oh the 3d of ■February, 1843, the complainants filed their bill against Fitz- hugh and wife, to foreclose the mortgage ; and in April, 18 13, the usual decree of foreclosure and sale, and a decree over against Fitzhugh for the deficiency, was entered. The mort- gaged premises were sold in May, 1843, leaving a deficiency of about $5000, The clerk of the court of chancery entered Vol. III. 40 5P2 CASES L\ CHANCERy. fJunE 23 Johnson v. Fitzhugh, the usual docket of the decree in his books ; but no transcrijil was filed with the clerk of any county, so as to make the decree a lien upon the real estate of the defendant Fitzhugh. lii April, 1846, the complainants commenced a suit in the supreme court against Fitzhugh, on the decrfee, for the deficiency which was the first notice the defendant had that the clerk jl this court had entered the decree upon his docket. The \ice chancellor refused to set aside the docket of the judgment, but allowed the defendant Fitzhugh, if he should elect to do so, to come in and file a supplemental bill for the purpose of setting up his discharge, under the bankrupt act, as a bar to a personal decree against him for the deficiency ; upon payment of costs, including the costs of the complainants in the supreme court. The following opinion was delivered by the vice chancellor. P. Gridley, y. C The defendants' counsel has strenu- ously insisted that the decree for the balance of the complain- ants' debt, which remained unsatisfied after the sale of the premises, was irregular, or at least that it was entered in bad faith ; and in either case that it should be set aside or cancelled. [ have been unable to discover any solid foundation for this argument. A bill filed to foreclose a mortgage against one who has given a personal obligation to pay the mortgage debt, should be regarded, since the provision of the revised statutes authorizing a decree for the deficiency, in a two fold aspect ; as a proceeding in rem, until the premises are exhausted, and in personam,, for the satisfaction of any remaining balance which may be due. And a defendant in such a suit, who has been personally served with a subpoena, as in this case, is just as much bound to take notice of the proceedings in the cause to charge him by a decree for the balance, as a defendant in an action at common law is bound to notice the rendition of a judg- ment which is regularly recorded against him after due service of process. In this case it is not denied that the complainants regularly pursued all the customary steps, in the cause, to the entering and perfecting of this decree for the balance ; without tlie interposition of any defence, or any notice that any existed. 1848.J CASES IN CHANCERY. 353 Johnson v. Fitzhugh. Where then was the irregularity in the decree ? Most clearly there was none. But it is argued that after the sale of the mortgaged prem- ises, the defendant was discharged as a bankrupt ; and that the complainants' debt being thus extinguished, the docketing of the decree afterwards was in bad faith. If a suit for the re- covery of a personal demand had been pending against the defendant, and the demand had been paid or released to the plaintiff, the entering of a judgment afterwards would have been in bad faith ; but is this a parallel case ? In the first place there is no pretence that the complainants had any knowledge of this discharge before the docketing of the decree, on the 12th of June, 1843. Suppose, however, they had re- ceived a notice of filing the defendant's petition, it by no means follows that they knew, or that they were to take notice, at what particular time a discharge was granted, or whether it was granted at all. On the contrary, it is the business of the defendant, who intends to rely on his discharge as a defence, to watch the proceeding in any suit that is pending against him ; so as to enable' him to plead it puis darrein continuance, or otherwise. Or if it be too late for that, to move for leave to open a default, and to do so ore tenus. [Scott v. Grant, 10 Paige's Rep. 485. 1 Cowen, 42, 165. 3 Id. 13. 15 John. Rep. 152. 18 Idem, 54. 1 John. Cases, 105.) Otherwise the judgment is not barred by the discharge. {Rees v. Gilbert, 2 Maule 6r Selw. 70. 14 East, 197.) Several of the author- ities show that this rule is rigorously enforced in cases where any objection is set up, in the opposing papers, to the validity of the discharge. {Baker v. Taylor, 1 Cowen, 165. 10 Paige's Rep. 485. Bangs v. Strong, 1 Denio, 619.) In this case the opposing afiidavit suggests the existence of facts having a tendency to prove the discharge fraudulent. And as to a part 3f the demand embraced in the decree for the balance, they set up a promise to pay , which, in Thompson v. Hewitt, (6 Hill, 255,) wa^ held to be a bai to any relief on motion. The counsel for ill''! defendant, however, relies on the remarks of the chancellor in the case of Alcott v. Avery, (1 Barb. Chan, Rep. 347.) I do OASES IN CHANCERY [June 23 Johnson v. Fitzhugh not think that the principle of that case conflicts ic any degree" with the conclusion to which I have arrived in this. The facts there differed most widely from those in this case, in two v'ery important particulars. In that case the complainant was attempting to enforce his decree in the court of chancery — not so here. The complainants have issued no process on their decree, but have brought an action on it, in the supreme court ; where the defendant may plead his discharge in bar of the de- cree. And unless the dictum in Thompson v. Hewitt, (6 Hill, 255,) that the judgment, or decree, is a new debt, and not af- fected by the discharge, be good law, the validity of the charge may as well be settled in that^ourt as in this. In the case of Alcott V. Avery also, the petition of the bankrupt was filed and his discharge obtained after the decree was perfected. No op- portunity therefore existed, in that case, to set up the discharge. In this case, however, after the sale of the premises, and before the filing of the report of sale and of the unsatisfied balance, there was abundant opportunity to set up the discharge, by a cross-bill. {Mitf. PI. 82, Zd ed. of 1833. 10 C. 4- P. 85.) And if it had been necessary, to enable the defendant to do this, he might have moved to open so much of the decretal order of sale as declared the personal liability of the defendant for any deficiency that might be reported by the master. For these reasons I am of the opinion that the complainants were chargeable with no irregularity, or bad faith, in docketing the decree for the balance reported by the master. But as the dictum in Thompson v. Hewitt, before referred to, may render it doubtful whether the discharge can be safely relied on, as a defence to the action on the decree, in the suit at law ; and in- asmuch as the defendant swears to his ignorance not only of the decree for the deficiency, but of the fact that a personal de- cree could be obtained in such a suit, he may be relieved, so fat as to open the proceedings, and enable him to set up his discharge in a cross-bill or otherwise. This, however, must be upon payment of the costs of the proceedings thus set aside, the costa of llie suit in tlie supieme court and of opposing this motion. .StS.J CASES IN CHANCERY 3^5 Johnson 11. Fitzhujih. I think also the decree ought to stand as a security in tlie meantime. (1 Cowen, 165. 1 Denio, 619.) W. F. Allen, for the appellant. The debt for which this decree was rendered was discharged and satisfied by the pro- ceedings and certificate in bankruptcy. It was due and owing at the time of the presentation of "the petition of the defendant to be decreed a bankrupt ; M^as provable as. a debt under the bankrupt act ; and it was not contracted by the defendant while acting as executor, administrator, or in any other fiduciary char- acter. {Bank, act 0/1841, § 4.) The only limitation or re striction upon the effect of the discharge is in the last proviso to the second section of the act ; which protects certain rights and liens, by mortgages and otherwise. The fourth section of the act provides that the discharge and certificate, when duly grant- ed, shall in all courts of justice be deemed a full and complete discharge of all debts, contracts and other engagements of the bankrupt, which are provable under the act. I can see no reason why this debt was not provable under the act. It was a debt existing at the time of the first proceedings of the defen- dant under the act. The defendant was decreed a bankrupt in February, 1843. At that time the complainants had taken no proceedings in their suit except to file a bill ; which they filed after the defendant had filed his petition for the benefit of the act. The complainants were then in a situation to prove their original debt. For it had not then been changed in form. It is true they would have had to discontinue their proceedings as against the defendant personally, but probably not against the property mortgaged. That they did not prove their debt cannot affect the defendant's rights. It is enough for him that they might have proved it. The entry of the final decree in the suit, in April, 1843, two months before the defendant was discharged from his debts, did not so far alter or change the debt as to prevent the operation of the discharge and certificate, as a bar to any personal claim against him. The filing the bill of foreclosure, after the com- mencement of the proceedings in bankruptcy, and proceeding 366 CASES IN CHANCERY. [Jine23 Johnson o. Fitzhugh. to a decree ihereon, before the certificate of discharge, were acts of the complainants which ought not injuriously to affect (he rights of the defendant. ■ At the time the decree was grant • ed he had nothing to allege either in bar, or even in delay, of the proceedings. The debt was not changed, but remained the ■same debt. If we admit the dictum of the supreme court, in Thompson v. Hewitt, (6 Hill's Rep. 254,) to be law, it by no means follows that the principle would apply to this case. There the defendant, by a voluntary confession of a judgment, renewed his liability to pay the debt. The judgment therefore was not the sole act of the plaintiff and of the court, but was rendered upon the confession of the bankrupt himself, after the presentment of his petition in bankruptcy. Not so in this case. Again ; a decree in chancery is different in form, and in the remedy which it gives, from a judgment at law. The decree in this case is founded on, and refers to, the mortgage, and in all its mandates and directions refers to the mortgage, and the debt due upon it, as the thing of substance. Not so a judgment at law. Can there be a doubt that even after a sale of the mortgaged premises the complainants could have proved, for the deficiency, under the bankrupt act ? {Eden on Bankrupt Law, 104, 107.) Could the defendant, or the other creditors, or the assignee in bankruptcy, object that the claim for the deficiency was not the debt due on the mortgage, but a new debt created after the commencement of the proceedings in baftkruptcy ? If they could not, then the complainants cannot now object that the debt is not barred by the decree and certificate ; for the rights and liabihties of the parlies must be mutual. {Phillips V. Brown, 6 T. R. 282. Ex parte Hill, 11 Ves. 646. Warna v. Constant, 5 John. R. 135.) If the debt and claim of the complainants was provable undei the bankrupt act, and was discharged by the certificate of the defendant, then he was entitled to an order perpetually stay ing proceedings upon the decree, as against him personally. His discharge was as effectual, to discharge the debt, as a dis- charge under the two-thirds act of this state would have been; and as effectual as a release by, or payment to, the complain- 184S.J CASES IN CHANCERY. Qgy Johnson r. fitzhnsh. ants. {JDeyo v. Van Yalkenhurgh, 5 Hlirs Rep. -142.) If after the entry of tlie decree of foreclosure, and the sale of the premises, the defendant had paid the deficiency or it had been released to him, the court would, if necessary, have stayed all proceedings upon such decree. And we suppose a payment of the mortgage, or a release of the defendant from personal lia- bility on his bond, would have been equally effectual. The decree was entered before the discharge was obtained ; and of course the defendant had no opportunity to set up his discharge in opposition to the entry of the decree. And the decree, when entered, was final. (1 Barb. Ch. Pr. 330.) In such a case, where the defendant has had no day in court to plead his dis- charge, the court will relieve him on motion. {Palmer v. Hutchins, 1 Cowetis Rep. 42. Thomas v. Striker, 3 Johfi. Cos. 90. Billings v. Shute, 1 Id. 105. Graham v. Pearson. 6 HUFs Rep. 247.) The opinion of the chancellor in the ca.se of Alcott V. Avery, (1 Barb. Ch. Rep. 347.) recognizes the principle for which we contend ; and that this defendant is en- titled to the relief he asks. The court of chancery having jurisdiction of the subject mat- ter, and of the parties, by the proceedings in the suit, will exer- cise that power, which is sometimes exercised by the supreme court in the exercise of its equitable jurisdiction, by perpetually staying the proceedings of a party upon a decree of the court, when such party undertakes, or is about to enforce, or in any way make use of such decree, in a manner illegal, oppressive, or unjust ; and will not drive the party to a bill for an injunc- tion, unnecessarily. The aflSdavit of Johnson does not bring this case within the decision in Scott v. Grant, (10 Paige, 485.) His affidavit is adroitly drawn, for effect. In the suit brought in the supreme court the discharge is pleaded, and the plaintiffs set up no fraud ; but they rely entirely on the doctrine of a no- vation of the debt, by the decree. In order to bring themselves within the decision in Scott v. Grant, the complainants should have slated, on oath, their intention to contest the validity of the discharge ; and then the vice chancellor might have direct- ed an issue, or in some waj^ have disposed of the matter The 368 CASES IN CHANCERY. [Jcne 23, Johnrion v, Fitzhugh. decree is prima facie discharged by the certificate. And if the complainants desire to enforce it, why may they not be the ac- tors by a proceeding in this court, founded on the decree ; ag by a petition for leave to issue execution, notwithstanding the discharge ? The vice chancellor erred in imposing the payment of costs of entering the decree, the costs of the suit in the supreme court, and the costs of opposing the motion made by the defendant, as a condition of granting relief. If we are right as to the effect of the discharge, the defendant was entitled to relief, or rather to the protection afforded him by his discharge, as a matter of right, and not as a favor. Even if we were wrong, still it was not a case for the imposition of costs, in the exercise of a proper discretion. The defendant could hardly be said to be in default for not knowing that the complainants would attempt to enforce a decree legally and equitably barred by his certificate. The complainants were irregular, also, in docketing their decree ; and costs should have been granted against them. The debt was barred by the certificate. No further action of the court could be had in the premises. The docketing of the decree, like the issuing of an execution, was the irregular act of the party. ■ The defendant could not be heard against it ; and he therefore moved to set it aside, as soon as he had notice of it. The docketing of the decree was an injury to the defendant, even if there was no further action thereon by the complainant. Why make the defendant pay the costs of any proceedings in the' suit ? He does not seek to avoid any thing done prior to the decree, or to disturb the decree, or the proceedings under it. He only asks that the complainants may nOt now proceed far- iher upon it against him personally. Why make him pay the costs of the suit in the supreme court ? That suit was unne- cessary. If the decree was valid, an execution could have been issued upon it in this court. The only object of that suit was costs, or the hope that the defendant might be entrapped in some way. We therefore insist that the motion of the defen- dant to vacate the docket of the decree with costs should have been granted by the vice chancellor ; whether any other or dif- .648.J CASES IN CHANCER!. ^(Hj Johnson v. Fitzhugu. fereat relief was granted or not. And we also contend, in aclffi- tion to this, that the complainants should have been perpetually stayed from proceeding in this court, or in any other couit, against the defendant personally, upon the decree Or if thn court understood, from the affidavit of Johnson, that the com- plainants intended or desired to contest the validity of the dis- charge, as to which there is no pretence, then the motion might have been denied, unless the defendant at once consented to a feigned issue to try the question as to the validity of the dis- charge. And in case an issue was awarded, the question of costs should have been reserved until the result was known. Or if the complainants declined an issue, then the motion should have been granted, with costs. L. Johnson, for the respondents. I believe this is the first tune that a party has had the hardihood to ask for a favor of a court, and at the same time to ask that the party at whose expense the favor is to be granted, should pay the costs of the application. But the pretence here is, that every creditor of a bankrupt is to be presumed to have certain knowledge that the bankrupt has obtained his discharge, and when he obtained it ; and that it is to be also presumed that such discharge is free from all fraud, or any thing which can impeach its validity. And that in equity and good conscience the obtaining such discharge is to be considered as honestly and fairly paying such debt in gold or silver coin. Now is such the effect of a bankrupt's dis- charge ? It is admitted that a discharge regularly and fairly obtained, under the bankrupt law, and properly interposed as a defence, either by plea or otherwise, so that those to be affected thereby may have an opportunity to test its validity, may be as available to the bankrupt as a payment o' the debt. But even then it is not considered as a payment. There still remains a moral obligation to pay, which is a sufficient consideration to support a new promise. (Scouton v. Eislord, 7 John. Hep. 86. Erwin v. Saunders, 1 Cowen's Rep. 249.) Such also is the case with a debt barred -by the statute of limitations. There can therefore be no moral or legal wrong in the party who se jks Vol. III. 47 310 CASES IN CHANCERY. rJonBgl Johnson v. Fitzhugh, to colleit what is it fact as honestly due to him as though no such defence existed. The cases are numerous where a plain- tiff seeking to collect such a debt has been allowed, upon the bankrupt's pleading his discharge, to discontinue without pay- ing costs. (Hall V. Gordon, 1 How. Pr. Rep. 99.) And this rule is without exception, even although the party thus seeking to collect his debt had the most perfect knowledge of the appli- cation for such discharge before he commenced his suit. So, even also where the defendant offered to stipulate, not to plead the discharge. But no case, I beheve,. can be found, in which a party seeking to recover a debt which had not been fully paid, has the defendant been relieved from the payment of costs. The rule and course of practice in the supreme court, where relief is granted in cases somewhat analogous to this, is for the defendant to move to open the judgment, and for leave to come in and plead his discharge ; and if the case be a proper one, and no laches imputable, the court will grant leave, &c. on the defendant's paying costs of entering the Judgment, and of oppo- sing the motion. ( Wolfe v. Wynkoop, 1 How. Pr. Rep. 56.) Whether the defendant shall be let in to plead his bankrupt discharge, is a matter of discretion with the court, {^Hunter v. Schuyler, Id. 96.) But the defendant must move foi leave to jEilead his discharge at the first opportunity. {Hall v. Gordon, Id. 99.) In all these cases, the bankrupt was relieved on the ground, either that the judgment was obtained against him be- fore the presenting of his petition, and the judgment was sought to be enfoi'ced by execution ; so that he had no opportunity to have (he validity of his discharge tested by a trial ; or some step had been taken during the pending of the suit and before the (Msciiarge was granted. But I cannot find any case where the judgment or decree was actually rendered before the dis- charge, as in this case, in which relief has been granted at all. So that I think the vice chancellor went even further in giving relief .to this defendant, than any of the cases warranted. .This appeal was probably brought upon the remarks of the chancel- lor in the case of Alcott v. Avery, (1 Ba^b. Ch. Rep. 347,) tha; it is irregular lo issue execution upon a judgment or decree 1848.T CASES IN CHANCERY. 371 Johnson c. Fitzhugh. which prima facie is no longer in existence, as against the defen- dant or his property, without previous application to the court, «fcc. But it seems to me that this is sufficiently answered by the vice chancellor in his opinion in this case. Besides, the bringing of a suit on the judgment or decree, as in this case where the defendant has an opportunity to set up his discharge as a defence and have the validity of it fully tested, may be considered as the previous application to the court upon notice ; as mentioned by the chancellor in Alcptt v. Avery. For if the debt or decree for the deficiency was fully discharged and sat- isfied by the bankrupt's discharge, so that the complainants have no right to recover in the suit at law, then there could be no occasion for this motion. For the defendant might safely plead the discharge at law, and defeat the recovery there. The Chancellor. The decree in this case was undoubt- edly irregular, as the assignee in bankruptcy was not brought before the court. And if the defendant was personally liable for the deficiency after his discharge subsequent to that decree, and if he had applied within a reasonable time after he had no- tice of the en try of a decree for the sale of the mortgaged premises, he would have been entitkd^to have such decree set aside. As I understand the case, the title to the equity of redemption in the mortgaged premises, w"as in Fitzhugh at the time of the filing of the bill in this cause, and he and his wife alone were made parties to the suit ; but before the decree, and even be- fore the bill was takeri pro confesso against them, Fitzhugh was declared a bankrupt, by a decree of the district court. The effect of that decree was to vest in the assignee in bank- ruptcy the whole interest, of both defendants, in the mortgaged premises, except the inchoate right of dower of Mrs. Fitzhugh in the equity of redemption. And as the assignee in bankruptcy had not been made a party to the suit, as he should have been after the decree in bankruptcy had been entered, the decree of foreclosure and sale was a mere nullity as to him ; and it could not foreclose his equity of redemption in the mortgaged premises Tue effect of such an erroneous proceeding would necessarilj; 872 CAhji-a li\ UHANCERV. [Jcne 23 Johnson v. Fitzhagb. DC to prevent bidding at the sale made by the master. For a pur- chaser v/ould not get a perfect title to the mortgaged premises under such a decree. The proper course for the complainants, after the decree in bankruptcy, which vested the title to the equity of redemption in the official assignee, was to file a sup- plemental bill in the nature of a bill of revivor, to revive and continue the proceedings against such assignee, as the party upon whom the title to the equity of redemption had been cast by ope- ration of law. Had that been done, the mortgaged premises could properly have been sold under the decree, so as to give a perfect title to the purchaser ; and the bankrupt would have been right- fully charged with the deficiency if he should not succeed in obr taining his discharge, so as lo exempt him from personal liability. I am satisfied, however, that the defendant Fitzhugh has no interest in this question ; if his afiidavit is true, that he has been fairly and legally discharged from his debts, subsequent *,o the entry of the -decree in this cause. Where a decree is ac- tually made before the discharge of the defendant, under the bankrupt act, for the payment of a debt which was contracted before the proceedings in bankruptcy were instituted, such debt may be proved under the proceedings in bankruptcy. And the discharge of the defendant is a complete and perfect bar to any suit, or other proceeding, upon the decree, to charge the de- fendant personally with the debt ; unless the discharge can be successfully impeached, for some of the causes specified in the l>ankrupt act. The language of Mr. Justice Bronson, in the case o*" Thompson v. Hewitt, (6 JEEll, 254,) that the original debt was Lierged and extinguished by thejudgment,must be confined to the case then under consideration. There the debt and costs for which the judgment was entered did not exist at the time of the pre- senting of the petition in bankruptcy. The plaintiff was claim- mg a debt, the existence of which was disputed by the defen- dant. And, as a compromise, it was agreed between the parties that a cognovit should be given, for a certain specified sum, up- on which the plaintiff might enter up his judgment ; and with an express understanding that any discharge which the defen- dant might thereafter obtain, under the proceedings in bankruptry 1848.] CASES IN CHANCERS. 373 Johnson v. Fitzhugh. wiiich liad previously been instituted, should no( affect the judgment for the new debt thus created by the compromise. In ordinary cases however, although a judgment technically changes the nature of the debt, it is still in fact the same debt which was due at the commencement of the suit; and if con tracted previous to the institution of the proceedings in bank- ruptcy it will be barred by the discharge, where such discharge is obtained subsequent to the entry of the judgment. The mere entry of the decree in this case in the docket of the clerkcould not affect the rights of thedefendant, in any way. Pre- vious to the adoption of the revised statutes, a rule of this court required the register and assistant register to docket all enrolled decrees, in the manner in which judgments were dock- eted in the supreme court ; not for the purpo.se of making the de- cree a lien upon the real estate of the party, but as a matter of reference, to facilitate searches. The revised statutes authorized the docketing of all enrolled decrees directing the payment of any debt, damages, costs, or other sum of money ; and made such decree, when docketed in the manner prescribed by the statute, a lien upon real estate. But in addition to the docket which had formerly been kept, pursuant to the rule of the 5tb of May, 1825, the revised statutes required a transcript thereof to be sent by the register, or the assistant register, or clerk, with whom the decree was enrolled, to each of the clerks of the su- preme court ; to be entered in the docket of judgments in their offices respectively. (2 R. iS. 182, } 95.) The statute having rendered tlie rule of May, 1825, unnecessary, it was left out on the revision of the rules which went into operation on the first of January, 1830, and in subsequent revisions. The act of May, 1840, concerning costs and fees in courts of law and for other purposes, (Laws of 1840, p. 334,) afterwards dispensed with the necessity of docketing judgments or decrees, either in the offices of the registers and clerks of this court, or with the clerks of the supreme court; and only required them to be docketed in the offices of the clerks of the counties where the premises were situated, in order to make them liens upon real estate. But as It was most convenient, for the purpose of giving the transcr'p< 3-4 AbES IN CHANCERY. [^''^23 Johnson v. Fitzhugh required by the act of May, ] 840, to enter the docket of the judgment or decree in their own books in the first place, it has, I believe, been the practice of the officers of this court, as wel. as of the supreme court, since that time, to docket the judg- ment or decree in the books of their own offices in the first instance : although it is no longer necessary to do so, and does jiot affect the rights of either of the parties to the judgment oi decree. As this entry of the substance of the decree in the docket of the clerk of this court, therefore, was merely for the conveni- ence of the clerk, to enable him to make a transcript of the de- cree to be docketed if such transcript should thereafter be required, and could not cast a cloud upon the title of Fitzhugh to real property any more than the enrolled decree itself could, he had no right to apply to have it set aside. His proper course is to plead his discharge in bar of the suit at law upon the decree ; inserting in his plea the proper aver- ments to show that the debt, for the payment of vvhich that decree was made, had been contracted before the presenting of his petition in bankruptcy, so as to be provable under the pro- ceedings in bankruptcy, and affected by the discharge which was granted subsequent to that decree. The order appealed from does nm deprive the appellant of the right to make this defence in the suit at law, upon the decree, but merely gives him the right to litigate the question of the validity of his dis- chai'ge upon a supplemental bill in this court, if he elects to pro- ceed in that manner. The complainants, perhaps, might have appealed from the order, upon the ground that the applicant had no right to any relief in this court ; and that they had the right to a jury trial, in a court of law, upon the question of the supposed fraud in obtaining the discharge. , But the order ij not erroneous as to the appellant. It must therefore be affirm ed, with costs. /848.1 CASES IN CHANCERY. 375 The Lady Superior of the Congregational Nunnert? OF Montreal vs. McNamara and others. A deed may be delivered to a stranger, for the grantee named therein, without any special authority from the grantee to recei\e it for him. And if the grantea assents to it, afterwards, the deed is valid from the time of the original delivery. Such assent will be presumed, from the beneficial interest of the grantee in the deed, unless a dissent is proved. "Where the payee of a bond and mortgage, given for the benefit of a third person, has consented, beforehand, to take such bond and mortgage for the purpose of assigning them to the person whose debt is intended to be secured thereby, it' is not necessary that any particular formality should be observed in delivering the instruments and obtaining his assignment thereof. Placing them before him, for his signature to the assignment, is a good delivery ; and his executirig such as- signment is an absolute acceptance by him of the bond and mortgage. The delivery of the assignment to the mortgagor, for the benefit of the assignee, is also a good delivery of the assignment, to the latter, by the mortgagee. And the bringing of a suit by the assignee to foreclose the mortgage, as such assignee thereof, is an assent to the assignment; and relates back to the time when such assignment was delivered to the mortgagor for the benefit of the real party for whose security the mortgage was given. It is not a valid objection to an assignment of a bond and mortgage, especially in ik court of equity, that the assignee is not described therein by name. It is suffi- cient if the assignment is made to a person in a particular character sustained by him; provided the description identifies the assignee with as much certainty as if ' he had been described by name. Where a deed is delivered to a third person, without any authority from the grantee, who refuses to accept or ratify the deed, such delivery is invalid. This case came before the chancellor upon an appeal, by E. Woli;ott, one of the defendants, from a decree of the late vice chancellor of the eighth circuit. The bill was filed by the Sister Frances Huot, also called, or named, St. Gertrude, the Lady Superior of the Congregational Nuns at Montreal, in Can- ada East, to foreclose a mortgage ; and the facts in the case, as they appeared by the pleadings and proofs, were substantially as follows : P. J. McNamara of Rochester, in the county of Monroe, being indebted to the ladies of the Congregational Nunnery in Mont- real, for the board and education of his daughters, and having received a letter from their agent at Montreal, urging him ti 376 CASES IN CHANCERY. [Juke 23 The Lady Superior, &c. v. McNamara. pay or secure the debt without delay, called upoQ P. G.Buchan to draw a bond and mortgage, upon certain real estate of Mc- Namara in Rochester, to be given to them. Buchan suggested that if the bond and mortgage were given directly to the ladies of the nunnery there might be a difficulty in obtaining an ac- knowledgment of satisfaction so as to have the mortgage can- celled on the records, after it should have been paid. He therefore proposed that McNamara should get some person in whom the ladies of the nunnery would have confidence, to take the mortgage in his own name, for their benefit, and then to assign it to the lady superior of the nunnery, by an assignment which should not be recorded ; so that the nominal mortgagee cjuld acknowledge satisfaction of the mortgage when tlie debt should have been paid. McNamara accordingly called upon J. Allen of Rochester, who consented to take the bond and mortgage in his own name, and to make an assignment thereof to the lady superior of the nunnery; in conformity with that suggestion. The bond and mortgage were accordingly execu- ted by McNamara and wife, and duly acknowledged and re- corded, on the 27th of July, 1840. And Allen, on the same day, whether before or after the recording of the mortgage did not appear, upon the same being presented to him, executed an assignment thereof under his hand and seal, and endorsed upon the mortgage, assigning the bond and mortgage to the com- plainant, and immediately delivered the papers to McNamara for the assignee. Buchan also wrote a letter to the agent of the ladies of the nunnery at Montreal, and delivered it to Mc- Namara to be forwarded to him with the papers, explaining the reason why the papers were executed in that form ; stating also that the property mortgaged was ample security for the debt, and that Allen was a gentleman of wealth an ■] integrity. There was no direct evidence of the time when toe bond and mort- gage and assignment were sent to the ladies of the nunnery, oi ilieir agent at Montreal. But after they became due and pay- able, they were sent by mail from the lady superior at Montrea. to the Rev. B. O'Riley, at Rochester, to be delivered to a lawyer tliere for collection ; with a formal power of attorney, from her •848.J <:ASES in chancery. 377 The Lady Superior, &<;, v. McNamara. ■ 1 ■ to such attorney, to collect the amount due, &c. and acknowl- edged before the mayor of Montreal. Soon after the giving of the bond and mortgage, the appellant E. Wolcott recovered a judgment against the mortgagor. And in March, 1841, the mortgaged premises were sold by the sheriff, under an execution upon that judgment, and were purchased by the defendant Wolcott, who received the sheriff's deed there- for in June, 1842. The bill was taken as confessed againsi McNamara and his wife ; but E. Wolcott put in an answer alleging that there was no such person in existence as the complainant, and that the bond and mortgage were given to Allen to defraud Wolcott as a creditor. But no evidence was adduced to establish the alleged fraud. Wolcott's solicitor also stipulated to admit, upon the hearing, that at thedate of the mort- gage, and ever since, the complainant was a real person. And that at the time of the date of the bond and mortgage and of the assignment thereof she was, and ever since had been, the lady superior of the Congregational Nunnery at Montreal, and as such authorized by the laws of Canada to sue for, collect, and receive debts due to the nunnery ; but that the complainant was not a citizen of the United States, but an alien. The vice chancellor made the usual decree for the foreclosure of the mortgage and the sale of the mortgaged premises, for the payment of the amount due to the complainant upon the bond and mortgage. S. Boughton, for the appellant. C. M. Lee, for the respondent. The Chancellor. The execution of the bond and mui gage to Allen, Under the circumstances disclosed in this case, constituted him a trustee for the ladies of the nunnery whose debt was mtended to be secured thereby ; so that if he had neg- lected tO' execute the assignment pursuant to the arrangement, 0." if, for any reason, ihe assignment executed by him was tech- nically invalid, such bond and mortgage would still have r.r» Vol. 111. 4H ,i78 CASES IN CHANCERY. [June 23, The Lady Superior, &c. t>. McNamara. flted a l'P,n upon the mortgaged premises from the time of the recrrding of the mortgage. And a court of equity would have compelled Allen either to execute a valid assignment of such bond and mortgage, or would have decreed a foreclosure thereof for the benefit of those whose debt was intended to be secured thereby. The delivery of the bond and mortgage to Allen, the nominal mortgagee, to enable him to execute the assignment endorsed upon the mortgage, was a sufficient delivery to, and an acceptance thereof by Allen, to give effect to those instruments ; especially when the mortgage was acknowledged by the mort- gagor and put upon record for the purpose of giving effect to it as a vahd security. A deed may be delivered to a stranger, for the grantee named therein, without any special authority from the grantee to receive it for him. And if the grantee assents to it afterwards, the deed is valid from the time of the original delivery. Omnia ratihahitio retro trahitur et mandato seu licentia eqidparatur. ( Wing. Max. 485.) It is upon this prin- ciple that it has frequently been held that a dehvery of a deed to the proper recording officer to be recorded, if intended to vest the title immediately or absolutely in the grantee, either as a trustee or otherwise, is a valid delivery ; if not afterwards dis sented from by the grantee. ( Tompkins v. Wheeler, 16 Peter^ Rep. 106. Ingram v. Porter, 4 McCord's Pep. 198. Daw- son V. Dawson, Pice'.f Eq. Rep. 244.) Here the nominal mort- gagee, Allen, had consented beforehand to take the bond and mortgage for the purpose of assigning them to the complainant. It was not necessary,, therefore, in consummating the arrange- ment, that any particular formality should be observed at the time the bond and mortgage were presented to him to obtain his assignment thereof For the placing them before him to obtain his signature to the assignment was a good delivery, and his signature to the assignment was an absolute acceptance by him. The delivery of the assignment to McNamara, for the benefit of the complainant, was also a good delivery of tlie as- signment to her, unless she dissented ; of which there is no pre- tence in this case. And the act of bringing this suit to fore- close the bond and mortgage, as the assignee ihereofj.was of itself 1848.) CASES IN CHANCERY. 379 The Lady Superior, &c. v. McNamara. an assent to the assignment to her ; and relates back to the timfl when such assignnoent was delivered to McNamara for her ben efit. Besides, there is in this case evidence from which it may fairly be inferred that the bond and mortgage, with the assign- mbnt, were transmitted to the agent of the ladies of the nun- nery at Montreal, and received by the complainant immediately after their execution. But even if the complainant had never heard of this bond and mortgage and assignment until after the recovery of the appellant's judgment against McNamara, it would not have al- tered her legal and equitable rights in this case. For the ab- solute delivery of the bond and mortgage to Allen, in trust to assign the same to her, and the delivery of the assignment to McNamara for her use, vested the title thereof in her immedi- ately on such delivery of' the assignment, although it was de- livered to the mortgagor. For if he had afterwards refused to deliver this assignment to her she might have compelled its delivery by suit. The cases of Doe, ex dem. Garnous, v. Knight, (5 Bain. 6c Cress. 671,) and of Chwch v. Gillman, (15 Wend, Rep. 656,) are directly in point to show that a deed absolutely delivered to a third person, for the use of the grantee, is a pres- ent deed and takes effect from the time of such delivery, although such third person was not authorized by the grantee to receive it ; if such grantee afterwards assents to it. Such assent will also be presumed from the beneficial interest of the grantee or obhgee in the deed, unless a dissent is proved. Some of the earlier cases on this subject went even so far as to declare that the delivery of the deed to a stranger, for the use of the grantee, made it a good deed in presenti, although the grantee refused to accept it when offered to him by such third person. ( Taw, executrix, v. Bury, Anderson! s Rep. 4 ; 2 Dyer, 167, 6, aS. C) But it was afterwards held, that where a deed was delivered to a stranger who had no authority to receive it for the grantee, and such grantee refused to receive it, the de-^ livery was invalid, and the deed lost its force, {See Butlet and Baker's case, 3 Coke's Rep: 26, b ; Whelpdak's cast, 5 Idem, 119, b; and per Holt, C. J., 1 Salk. 307.) 380 CASKS JN CHANCERY. liv^s 33 The Lady Superior, &C. v. McNamarn. It is no valid objection to this assignment, especially in thu court, that the complainant was not described therein by name. It is admitted that at the time of the execution of the bond and mortgage, and the assignment, she was the lady superior of the Congregational Nunnery of Montreal, and authorized by the laws of Canada to receive and collect the debts due to the ladies of that institution. An assignment to her by that de- scription identified the assignee with as much certainty as if she had been described by her name. In the case of Shaw and others v. Loud, (12 Mass. Rep. 447,) where a bond and mort- gage had been given to the plaintiffs by the description of the heirs at law of John Tyrrel, without mentioning any of theii names, he being dead at the time of giving such bond and mortgage, the court held the securities to be valid. And Chief Justice Parker, who delivered the opinion of the court, says a deed made to the heirs at law, of a deceased person, is good ; because the persons who are to take can be ascertained by extrinsic testimony.' In the case of Stromour v. Rotten- hury, (4 Dess. Rep. 268.) the court of chancery in South Car- olina held that a deed of slaves, to the grantees therein, by no other name than that of the grandchildren of the grantor by his daughter Catherina, was valid, and conveyed the property to her children who were in esse at the time of the execution of the deed. And a similar decision was made in the case of Hagg and wife v. Odom, {Dudley's Geo. Rep. 185;) where the grantees were not named by the grantor, but were described as the children of Nancy Jones. But a grant to an individual named, and his associates, appears to be too uncertain and in definite to convey any thing to others than the individual named in the deed. {Duncan v. Beard, 2 Nott ^ McCord^s Rep. 400.) There is no foundation for the suggestion that McNamara in- tentionally gave the bond and mortgage for more than was actu- ally due, for the purpose of defrauding his creditors. The admission of the indebtedness by McNamara, at the time of the giving of the bond and mortgage, as the same was stated in the letter to him from the agent of the ladies of the nunnery at Montreal, and the execution of those securities for that amount lS4a] CASES IN CHAlVfCERY. 29> The Lady Superior, &c. v. McNamara. was sufl5cient evidence of the indebtedness, not only against the mortgagor but also as against the appellant who claimed ■mder him, through the subsequent judgment. The stipulation of the appellant to admit that a certain sum was due, was not an admission on the part of the respondent that the whole amoui t mentioned in the bond and mortgage was not actually due. Her counsel, therefore, if he had thought proper, might have claimed the whole sum secured by the bond and mort- gage, with interest thereon. But as the complainant only asked for a decree for the smaller sum mentioned in the stipulation given by the adverse party, the probabihty is that some mistake had occurred in stating the account, or in reducing the Canada currency, in which the account was stated in the letter of the agent, into dollars and cents. Such an error, however, if it oc- curred, would not render the deed fraudulent. There is therefore no error in the decree appealed from, and it must be affirmed with costs. And if the proceeds of the mort- gaged premises, upon a sale thereof under the decree, should not be sufficient to pay the amount due upon such decree and the costs, together with the expenses of the sale, the appellant must pay to the respondent the value of the rents and profits of the mortgaged premises during the time the sale has been suspended by this appeal, or so much of the value of such rents and profits as may be necessary to pay the deficiency ; as the respondent's damages for the delay and vexation caused by Buch appeal. And the respondent is to be at liberty to apply for a • refereuLe to a&ccriain the amount of such damages, if necessary. 382 CASES IN CHANCERY. . June 23 Wright and others vs. E. W. Miller and others. H. Miller vs. Wright and Miller. A decree setting aside proceedings, by w?iich the real estate of a feme covert had been transferred from the trustee of the estate and vested in her husband, as being fraudulent and void as against the children of the feme covert'; directing a refer- ence to a master to ascertain the value of those portions of the trust estate which have been sold by the husband to bona fide purchasers, and vrhat sum, if any, should be paid by him to reimburse the trust estate, and to report a proper person and appoint him as trustee ; and giving all the consequential directions, so ai finally to dispose of the whole case upon the coming in and confirmation of the master's report, by a common order in the clerk's office, without the necessity of bringing the cause again before the court for any other decree, or further direc- tions, and which also disposes of the question of costs, is a final decree. Serving notice of an af^eal from such a decree, and giving the ordinary appeal bood, in the penalty of S250, for the costs and damages of the respondent upon the ap- peal, will operate as a stay of all the proceedings upon the decree appealed from, except the proceedings for the costs, directed to be paid by the appellant. Except as to the costs, such a decree is not a decree for the payment of money, with- in the intent and meaning of the 83d section of the article of the revised statutes relative to appeals ; so as to make it necessary for the appellant to give security tc pay K'ae amount decreed, before the coming in and confirmation of the master's re- port showing that money is to be paid. The case is different where the decree directs the payment of costs, but which have not been taxed, or directs the payment of the amount due upon a bond and mort- gage, which is a matter of mere computation, upon the coming in and confirma- tion of the report as lo such amount. Where a final decree directs the appointment of a new trustee, and a conveyance to such new trustee when appointed, if the decree is not appealed from until after ■uch trustee has been actually appointed, the appellant must comply with the pro- visions of the 83d and 84th sections of the article of the revised statutes relative to appeals, if he wishes to make his appeal a stay of proceedings. This was an appeal, by E. W. Miller, one of the defendants, Arom an order of the late vice chancellor of the first circuit, di- recting the master to proceed in the decree which had been made in these causes. By the original decree, certain' proceed- ings, by which the real estate of Mrs. Miller, which, previous to her marriage, had been conveyed to a trustee for her separate use during coverture with remainder in trust for her children, had been transferred from the trustee and vested in E. W. Mil lSi8.J CASES IN CHANCERY. 333 Wright V. Miller. lei the husband, absolutely, were set aside as fraudulent and vo d, as against the children of Mrs. Miller; and a new trustee WES directed to be appointed. The decree also directed a refer- ence to a master to ascertain the value of those portions of the trust estate which had been sold by E. W. Miller to bona fide purchasers, and what sum should be paid by him to reimburse the trust estate ; and to report a proper person and appoint him as the new trustee. The decree further directed that E. W. Miller should convey to such trustee the part of the trust prop- erty mentioned in such decree; and that upon the coming in and confirmation of the master's report E. W. Miller. should pay the amount which should be reported to be necessary to reim- burse and make good the trust estate. The substance of the decree is more fully stated in the report of the case before the assistant vice chancellor. (1 Sand. Ch. Rep. 103.) E. W. Miller appealed from the decree, and gave the usual appeal bond, in the penalty of $250, for the costs and damages of the respondents upon the appeal ; and served notices of such appeal upon the clerk of the court, and upon the solicitors of the adverse parties. But he gave no other security, and took no other steps to make the appeal a stay of the proceedings upon the decree appealed from. In June, 1845, the respondents car- ried the decree into the master's office, and obtained a summons to E. W. Miller to appear before him, to proceed upon the ref- erence. The appellant attended, upon the return day of the summons, and objected that the appeal stayed all proceedings upon the decree appealed from ; and the master decided that the objection was well taken, and 'declined to proceed. The respondents subsequently* applied to the vice chancellor and ob- tained the order, which was now appealed from, directing the master to proceed to the appointment of a new trustee, &c. B. TF. ^o/iwej/, for the appellant. The 116th rule of this court prescribes, that on appeals from a vice chancellor to the chancellor, the bond shall be the same as on appeals to tht court of errors, and that the provisions of sections 80 to 89 of title 3, chapter 9 oart 3. of the revised statutes shall be appli- 38-1 ' OASES IN CHANCERY. [June 23 Wright V. Miller. cable. {See 2 R. S. 605, 4'c. ; 2d ed. p. 502 ; Zd ed. p. 696.) By section 80, it is provided, that an appeal shall not be effect- ual for any purpose until a bond for costs has been given, or a deposite of $250 made. And by section 81, that no deposite shall be required when a bond is given. In this case a bond for costs has been duly executed, approved and filed, and no objection is made to it, Section 82 provides, that if the decree direct the payment of money, the appeal shall not stay the issu- ing of execution or other process to enforce the decree, (fee. un- less a bond be given in the penalty of at least double the sum decreed to .be paid, conditioned, . 605. § 85.) (3.) Because it is in the discretion of the court, to allow an account to be taken before an appeal is disposea ol\ "Vol. III. <14 5S6 CASES IN CHANCERY. [June 23 Wright V. Miller. on requiring sufficient security to save the appellant harmless in case he succeeds in reversing or modifying the decree. (Mc Geoch V. Bullions. 2 Barb. Ch. Rep. 34.) (4.) The " issuing and execution of procsss to enforce the decree," includes process by summons in a master's office, where such process is a neces- sai-y means to execute the decree. When in this case, there- fore, the master shall have appointed a trustee, which he may do, without requiring the defendant Miller first to account, the complainants will have a right to require the execution of the conveyances and delivery of the possession to the trustee. The' decree has not been stayed in any particular. It is an insuf- ficient excuse for the appellant to say he could' not find a gran- tee to whom he might convey and deliver possession. It was in his power, at any moment, to compel the complainants to have the trustee appointed and a grantee named, so as to ena- ble him to perfect his appeal within the requisite period, and obtain a stay of further proceedings by complying with the pro- visions of the statute, in executing the conveyances, and giving the proper bonds. {Burr v. Burr, 10 Paige, 167, 170. Quack- ^enbush v. Leonard, 10 Id. 133, 137.) If these points be well taken, the court will not, at this stage of the case, aid the ap- pellant in staying the execution of the decree, until the trustee is appointed and the conveyances of the property made. For the complainants have a right to elect to take a deed of the farm at Flushing, and if they do so, bonds must be given for the rents of that farm also. As to the allegation that there is .no special necessity for proceeding in this case, for the reasons ■advanced by the appellant; the complainant shows in his affi- davit that the rents are in danger. It does not appear, even from his own showing, that the appellant is a creditor of the 'estate, for he is held to account for the present value of the original trust estate ; and expenses for its permanent improve- ment, included in his account, are supposed to have been com- pensated by its increased income. In any event, it cannot be that in all cases of trust estates, where from there being no trustee in esse, there is no person to receive the conveyance and possession of real estate as decreed, except through the intei 1&45.] CASES IN CHANCERY. 35 Wright V. Miller. vention and appointment of a master, that an appellant can escape the requisitions of the statute, and continue in the enjoy- ment and possession of the property declared to belong to others, merely by bringing his appeal and filing the ordinary bond for costs. The Chancellor. The only question which it appears to be necessary to consider is, whether the notice of the appeal, and the giving of the bond of $250 for the costs and damages upon the appeal, operated as a stay of the proceedings upon the decree appealed from. For if it did not, this does not ap- pear to be a proper case in which to proceed and take the ac- counts, directed by the decree, pending the appeal, and before a new trustee has been appointed. Had this been an interlocutory decree, the second clause of the 116th rule of this court would have applied to the case, and the proceedings would have been stayed by the appeal, without a special order of the appellate court, or the giving of a further bond. ( WUliamson v. Field, 2 Barb. Ch. Rep. 281.) But it is clearly a final decree, according to the decisions. For it gives all the consequential directions, so as finally to dispose of the whole case upon the coming in and confirmation of the mas- ter's report, by a common order in the clerk's office ; without the necessity of bringing the cause again before the court for any other decree or further directions. And it also disposes of the questions of costs. {Coithe v. Crane, 1 Barb. Ch. Rep. 21. Johnson v. Everitt, 9 Paige's Rep. 639. Mills v. Hoag, 7 Id. 19.) The first clause of the 116th rule of the court, there- fore, leaves the question as to the stay of proceedings pending the appeal to depend upon the provisions of the sections of the revised statutes referred to in that rule ; except as to the justi- fication of the sureties in the appeal bond, as provided for ex- pressly in the rule itself. The decree appealed from not only sets aside the fraudulent contrivances by whit;h the legal title of the trustee in the trust estate was divested, and such legal title transferred to this appellant, but it directs tlie appointment of a new trustee, and 388 CASES IN CHANCER y [Jv^e 23 Wright V. Miller. a transfer of the legal title to him, as well as the delivery of the possession. And if the part of the decree which directs the appointment of a new trustee had not been appealed from, o' if such new trustee had been actually appointed before this ap- peal was perfected, the appellant would unquestionably have been compelled to comply with the provisions of the 84th and 85lh sections of the article of the revised statutes relative to ap- peals from the court of chancery, to have stayed the proceedings to compel the execution of the deed to the trustee, and the de- livery of the possession to him. (2 R. S. 606.) Even in that case, however, the conveyance of the Flushing farm, and the delivery of the possession thereof, could not have been xjom- pelled until after the taking of the account directed by the de- cree. For until such account had been taken it could not be known whether that farm was to be conveyed to the new trus- tee, and the possession thereof delivered to him, or whether he was to have a mere lien thereon, for the amount due to the trust estate, if any sum should be found necessary to reimburse the trust estate, for the losses it might have sustained by the wrong- ful act of the appellant. But as no trustee has been appointed, and E. W. Miller ap- peals from the part of the decree directing a new trustee to be appointed, there is no person to whom the appellant can exe- cute the deed and deposite it with the clerk, to abide the evenl of the appeal, as required by the 84th section of the statute. It is true the appellant might have waited until a new trustee was appointed. But that he was not bound to do. For it might, and probably would, vest the legal title, to a part of the trust property, at least, in such new trustee, under the provis- ions of the revised statutes ; and thus enable the latter to re- cover the possession of the property at law, notwithstanding the appeal. The appellant could unquestionably have given the security to the adverse party, that no waste should be committed upon the premises pending the appeal, and that he would pay the value of the use and occupation of the premises in the mean ti.'xiR to the new trustee when appointed, in case the appea 1S48 , CASES IN CHANCERY. 3^9 Wright V. Miller. was uusuccessful. But his neglect to comply with the provis- ion of the revised statutes on that subject, does not prevent the appeal froni staying the appointment of a new trustee. And there is no way, therefore, in which the respondents can enforce a compUance with that part of the decree pending the appeal ; although the appellant neglects to give the security required. The respondents were entitled to security for the costs award- ed to them, in order to stay the collection of the costs which the appellant was directed to pay. {City Bank v. Bangs, 4. Paige's Rep. 285.) But the neglect of the appellant to give security for the payment of the costs awarded by the assistant vice chancellor would not prevent the appeal from operating aa a stay of the proceedings as to other parts of the decree appeal- ed from. And as a matter of expediency it may not be advi- sable for' the respondents to tax their costs, and attempt to col- lect them, in this stage of the proceedings. For as there cannot be separate taxations, and separate executions, for different por- tions of the same bill of costs, where the decree makes no pro- vision therefor, the taxation and collection of the costs which have accrued up to this time would probably deprive the solici- tor of the complainants, in the first of the above causes, of the costs upon the reference. Except as to the costs, this is not a decree for the payment of money, within the intent and meaning of the 82d section of the statute, so as to make it necessary to give security to pay the amount decreed, before the coming in and confirmation of the master's report showing that some money is to be paid. It ia not a decree directing the payment of money absolutely ; and merely referring it to the master to compute the amount due. For if the value of the trust property which remains, in specie, with the permanent improvements made thereon by the appel- lant, is equal to, or greater than what the present value of the whole trust property would have been, at this time, if the fraudu- lent destruction of the trust had not taken place, including that part of the rents and profits which ought to have been accumu- lated for the children, then no money whatever is directed to ba paid to (he master for the new trustee. Or if the loss which the 390 CASES IN CHANCERY". June 23 Wright V. Miller. trust estate has sustained is just equal to tlie value of the Fluah- iug farm, and the respondents elect to have that farm conveyed to the new trustee to make up such loss, then there is nothino to be paid by this appellant except tl»e costs of the complain ants in the first suit; including' the costs of the reference and the proceedings subsequent to the decree. It was therefore im possible to ascertaiir, at the time of appealing, whether any, or if any, how much money would be payable under the de- cree. And to require the appellant to give security in double tlie amount that upon a certain contingency might become pay- able under this final decree, to make the appeal a stay of the proceedings, would be to deprive him of the possibility of stay- ing the proceedings. The case is different where the decree directs the payment of costs which have not been taxed, or the payment of the amount due upon a bond and mortgage, which is a matter of mere computation. {Coithe v. Crane, 1 Barb. Ch. Rep. 21.) For these reasons, I think this is a case in which the giving of the ordinary appeal bond stayed all pro- ceedings upon the decree appealed from, except the proceedings for the costs which the appellant was directed to pay ; and that the master was right in declining to proceed with the reference- before the appeal was disposed of by the appellate court. There are many cases in which the revised statutes author- ize appeals without any adequate security for the eventual per- formance of the decree appealed from, if it shall not be found to have been erroheous, or for the payment of the damages raused by the appeal ; the necessary effect of which is that ap- peals are often brought for the mere purpose of delay and vex- ation. And the rule of this court relative to the security to be given upon appeals from decrees of vice chancellors, has not required any security in such a case as this, other ihan the or- dinary appeal bond in the penalty of $250. If the appellant is really insolvent, therefore, the remedy of the respondent is by an application for the appointment of a receiver of the rents and profits of the trust property pending the appeal, and fcr an in- junction to restrain the appellant from receiving such rents. Bui .848.] CASES IN CHANCERY. 39] Bell V. Hunt. upon the papers before me the respondents liave not made out a case entithng them to such rehef. The order appealed from must be reversed, and the applica- tion to direct the master to proceed in the reference, denied ; but without costs to either party. Bell and McLachlan vs. Hunt and others. A bill of interpleader may be filed whenever it is a matter of doubt to which of th« defendants the fund in the comjilainant's hands actually belongs, so that he can- not safely pay it to either. Who are proper parties to a bill of interpleader. Where the holder and owner of a bill of exchange is declared a bankrupt, and it is a matter of doubt whether such bill was not within the jurisdiction so as to pass to the assignee in bankruptcy, except as to bona fide holders thereof without notice, the drawer of the bill, who is liable to pay the same to the rightful holder and owner, may file a bill of interpleader against the different claimants of such hill to compel them to settle the right to the same between themselves. This was an appeal, by J. H. Hazard and John Speer, from an order of the late vice chancellor of the first circuit, overruling their several demurrers to the bill of complaint in this cause. Robert C. Bell, a British subject and a merchant, then domi- ciled at Quebec, a few days previous to the 21st of November, 1844, committed an act of bankruptcy and fled to the United States, bringing with him something more than £500 sterling, in the oills of different Canada banks ; most of which were the bills of the Bank of British North America at Montreal. He applied to the complainants, at their counting room at New- York, under a fictitious name, and sold them the Canada bills, and took from them, in part payment, their bill of exchange upon a banking house in London for £500 sterling ; which bill was made payable to the defendant J. Speer, of Belfast in Ire- -and, a brotner-in-law of R. C. Bell ; and was sent to him for collection. Soon after the making of the bill of exchange, an agent of the Bank of British North America arrived at New 392 CASES IN CHANCERY. [Iune 23, Bell V. Hunt York, claiming tliat the Canada bills which R. C. Bell, undei aa assumed name, had sold to the complainants, had been fraudulently obtained, and that they belonged to the said bank ; iind giving notice to the complainants not to pay the bill of ixchange, or the price thereof, to R. C Belt. The complain- ants thereupon wrote to the banking house in London upon whom the bill of exchange was drawn, not to accept or pay the same ; and acceptance was consequently refused. In the mean time a commission of bankruptcy was issued against R. C. Bell in Canada, dated the 10th of December, 1844, for an act of bankruptcy committed before he left Canada and previous to the purchase of the bill of exchange. And on the 31st of the same month the defendant Weston Hunt, residing at Q,uebec, was appointed the assignee in bankruptcy of all the estate and property of R. C. Bell. He thereupon gave notice to the com- plainant of the proceedings in bankruptcy and of his appoint- ment as assignee ; that he claimed that the bill of exchange, at the time of such appointment, was the property of R. C. Bell, and was in the hands of the latter, or of his agents, in some part of the united kingdom of Great Britain and Ireland, and that the title to the same became thereby vested in Hunt, as such assignee, by virtue of the proceedings in bankruptc}'. Payment of the bill was afterwards demanded of the complain- ants, by an individual who claimed to hold it as the agent of Bell, who was then said to reside in the state of Indiana. And a suit was subsequently brought against them by the defendant J. H. Hazard in his own name, but as he alleged as the agent of, or for the benefit of, the defendant Speer, the original payee of the bill of exchange. The complainants thereupon filed their bill of interpleader in this suit, against Hunt, the assignee in bankruptcy, Hazard, the plaintiff in the suit at law upon the bill, Speer, the payee of the bill, and Bell, who claimed title to it by his agent, to compel them to interplead and settle their rights as to such bill of exchange between themselves. A. Taber, for the appellants. As a bill of interpleai'er this niU cannot be maintained ; because it does not show a title to J548.^ CASES IN CHANUEUr 393 Bell V. Hunt. the bill of exchange in two distinct claimants, each of whom is capable of interpleading-. (2 Story's Eq. 118, § 812. Story's Eq. PI. 239, §§ 294, 297.) The bill shows that the claimant Hunt is assignee only by force of a foreign bankrupt law, and can have no title to the bill, which is property within the state of New- York, beyond the reach of English laws. {Abraham V. Plestoro, 3 Wend. 538. 5 Crancfi, 289. Story's Conf. of Laws, 346.) A foreign assignee cannot interplead in our courls. (23 We?id. 90. 11 John. 488.) The bill also shows that this assignee claims without right ; for that the fund belongs to the British and North American Bank of Montreal, and is claimed by an agent of that bank. Nor will a court of equity, under the circumstances of this case, turn this property into a general fund for the benefit of general creditors. The bill also prays for a discovery from these defendants ; but it shows no such interest in the complainants in relation to the subject to which this discovery relates, as entitles them to call on these defendants for a discovery. [Mitf. PI. 187. 8 Ves. 398. 13 Id. 240. Crane v. Deming, 7 Day, 387.) M. Hoffman, for the respondents. A case is prima facie made out for a bill of interpleader. Two parties demand the fund in the hands of a stakeholder. One has sued at law, the other persists in a claim. {Badeau v. Rogers, 2 Paige, 209.) It is sufficient to sustain the bill, that there is a fair doubt as to the rights of the conflicting claimants. The court does not put -the uninterested stakeholder in the situatioii that at his peril he must decide upon intricate matters of fact, or nice points of law. The rule is that it cannot be sustained, "where it ap- pears from the bill itself that the debt or duty unquestionably belongs to one of the parties, and that the complainant is not ignorant of their rights." (4 Paige, 392.) It cannot be said that the case of Abraham v. Plestoro, (3 Wend. 538,) inevita- bly applies, to and will govern, the present case. As nearly all the judicial talent of the court was against the decision, it may be assumed that distinction will be allowed, and the case al- lowed to go no further than to rule one of exactly the same cir- VoL. III. 50 394 CASES IN CHANCERY. [June 23 Bell «. Hunt. cumstances. Again, it was held in that case that if the property had been on board a British vessel on the high seas at the time of the commission in bankruptcy, it would have passed by the assignment. Now Bell took the bill with him to England, and proof may be given under the present bill that he went in a British steamer. Again ; Senator Oliver's opinion (one of the majority) seems almost of itself to warrant the present suit. The attention of the court is called to the distinction he takes between a perfected commission in bankruptcy not objected to or questioned by the bankrupt, and the case before him of a provisional assignee, the bankrupt contesting its legality and denying knowledge of it. It is said we have shown by our bill that neither party claiming is entitled, but a third party, viz. the Bank of British North America at Montreal. Examining the bill strictly, it will be seen that the averment of fact is, that the representations of the agent sent to New-York were true, viz. that Bell had absconded, and got by criminal acts a con- siderable amount of money in his possession. But as to the bank notes, in question the allegation is only that they, the complainants, received notice of the criminal acts, and that such notes were not the property of Bell, but part of the funds fraudulently procured by him. There is no averment that thi? is true, that such notes were part of such funds. A point was made below, that the discovery asked for was improper ; and the second branch of the demurrer applies to this. The answer is, that some of the discovery prayed is clearly proper ; for ex- ample, whether the suit is not prosecuted for account of Bell by Hazard, with a view to parties if nothing else. The de- murrer is to the whole discovery, and must therefore be over- ruled, even if a limited demurrer would have been good. The Chancellor. This appears to be a proper case for a bill of interpleader. For, upon the case stated in the complain- ant's bill, it is a matter of doubt to which of the defenda its tha bill of exchange in question actually belongs. The con/plain- itiits therefore cannot safely pay it to either. The case of Abraham v. Plestoro, (3 Wend. Rep. 538,) in 1848.-! CASES IN CHANCERY. 39{, Bell V. Hunt. deed decided that an assignment under the English bankriipt laws could not have the effect to transfer property whicn was not within the territorial jurisdiction of the English governmenl at the time of such assignment, even as against the bankrupt himself; where the assignment had not been executed by him. But that was only in accordance with a previous de- cision of the supreme court of the United States, and of several decisions of different state courts, that foreign bankrupt laws have no extra territorial force to transfer property which was not within the jurisdiction of the government under whose laws such transfer was claimed, at the time of the alleged transfer. And the only difference between this court, and the majority of the members of the court for the correction of errors, in the caso of Abraham v. Plestoro, was upon the question whether the property in controversy was constructively within the jurisdic- tion of the EngUsh government at the time the proceedings in bankruptcy were instituted and the provisional assignee ap- pointed. For Senators Stebbins and Maynard, who delivered opinions in favor of the reversal of the order of the chancellor in that case, conceded the point that if the property had been within the operation of the English bankrupt laws, even con- structively by being on board of a British vessel upon the high seas, the title to it would have passed under the operation of those laws. Here the assignee in bankruptcy claims the property in this bill of exchange, upon the ground, as he alleges, that at the time of the issuing of the commission of bankruptcy, and at the time of his appointment as assignee, it was in fact within the British dominions, in the hands of the bankrupt himself or of his agent. If this claim is well founded in fact, I cannot say that the assignee in bankruptcy is not entitled, in equity at least, to recover the amount due upon this bill of exchange, in preference to the bankrupt himself, or any other person except a bona fide holder of the same for a valuable consideration and without notice of the rights of the assignee. For the legal pre- sumption is that the bill was drawn upon funds in the hands of the drawees, who were in London ; so that the bill itself, aa 396 CASES IN CHANCERY. [Jcne 23 Bell V. Hunt, well as the fund appropriated for its payment, were both within the operation of the bankiupt law. On the other hand, if the bill of exchange as well as the bankrupt himself were within the United States at the time of tlie issuing of the commission of bankruptcy, and at the time of the appointment of the assignee, I do not see any thing that can protect the complainant from a recovery against them in a suit instituted here, either by the bankrupt himself, or by any other person to whom he has transferred it either with or with- out consideration. So if it actually belonged to the defendant Speer, at that time, in whose name it was drawn, and not to Bell the bankrupt, Speer may recover the amount thereof from the complainants, either by a suit in his own name, or in the name of Hazard as his endorsee, for his use ; if he has thought proper to transfer it to Hazard, for that purpose. And a suit having been brought in the name of the defendant Hazard, he is also a proper party to this bill of interpleader ; whether such suit is brought for his own benefit, or for the benefit of Speer as he alleges, or for the benefit of the bankrupt himself, as ia probably the fact. The counsel for the appellants is in an error in supposing that the complainant's bill shows upon its face that the bill of exchange in question belonged to the Bank of British North America in Montreal, upon the ground that it was purchased with funds fraudulently and criminally obtained from that bank by R. C. Bell. The fact that it was purchased with funds thus obtained is not charged in the complainants' bill of com- plaint. They merely state that an agent of that bank arrived at New- York and gave them notice to that effect, and that they must not pay the bill of exchange, or the price thereof, to R. C. Bell; in consequence of which notice they were induced to write to the drawees not to accept or pay such bill. The order appealed from is not erroneous ; and it must there- fore be affirmed with costs. The appellants must pay the costs, and put in their respective answers, within the time allowed foi that purpose by the order, or the complainants' bill is to be taken as confessed against them. 84S.1 OASES IN CUaNCERV 397 Alston and wife vs. Jones and others, A bill to set aside a will, which secures to a married woman and her issue, a shars of the property of the testator, for her separate use during coverture, is improperly filed by the husband in the names of himself and his wife ; the interests Of tha cnmplainaints being in conflict. In such a case, the wife, instead of being joined with her husband as a complainant, should be made a defendant. Persons having adverse or conflicting interests in the subject of the litigation should not be joined as complainants in the suit. Where a particular allegation is inserted in a bill, for the purppse of transferring the jurisdiction from a court of law to a court of equity, the bill, or rather that par- ticular allegation in the bill, must be verified by the oath of the complainant, or by the oath of some other person, on his behalf, who knows the fact. And where such allegation covers the whole equity of the bill, the defendant need not demur specially to that allegation, on the ground that is is not verified, but may demur generally ; stating for cause of demurrer that the bill is not verified by oath. This case came before the chancellor upon a demurrer of G. A. Jones, one of the defendants, to the complainants' bill of complaint. John Mason, late of the city of New-York, died, seised and possessed of a large real and personal estate. And the bill in this cause was filed by J. Alston, in the names of himself and his wife, who was a daughter of the decedent, to set aside a testamentary paper which had been propounded by the execu- tors and trustees named therein, and admitted to probate by the surrogate, as the last will and testament of the decedent. And the other six children of the decedent, and his grandchildren, the issue of a deceased child, and the executors and trustees named in the alleged will, were made defendants in the suit ; together with some of the other grandchildren of the decedent who were interested in sustaining the will as a valid testament- ary disposition of his property. By the terms of the will in controversy, the one-eighth of tl-e real and personal estate of the decedent to which Mrs. Alston would have been entitled in case of an intestacy, or to which she and her husband would have been entitled, in her right, was de- vised and bequeathed to trustees in conneci'^n with the otliei 398 CASES IN CHANCERY. fJcWE 23 Alston V. Jones. seven-eighths of his property, in trust, out of the income thereof to pay her an annuity of $3000 for her separate use and benefit, during the joint lives of herself and her husband, with power to the trustees to increase the annuity during her life, and to accu- mulate the residues of such income for the benefit of her issue ; giv- ing to her the whole capital of that eighth of the estate in case she survived her husband. But if shediedin the lifetime of her husband, leaving issue, the capital as well as the surplus income thereof was devised and bequeathed to such issue, subject to an annuity of $3000 to her surviving husband, during his life. The bill alleged, among other things, that the decedent was of unsound mind, and was in a dying state, and wholly incom- petent to make a valid testamentary disposition of his property, at the time of making the alleged will, which had been admit- ted to probate by the surrogate. The complainants also insisted that the will was invahd, even if the decedent was competent 10 execute the same, on account of the illegality of its various provisions. And for the purpose of showing that the complain- ants had not a perfect remedy at law, to recover the possession of Mrs. Alston's one-eighth of the real estate of which her fa- ther died seised, the bill alleged that the decedent, in his life- time, had leased and demised to divers persons, large portions of his real estate for terms of years; which terms of years, at thvj time of the filing of the bill in this cause, were still unex- pired. But the bill was not verified by the oath of the com- plainants, or of any other person in their behalf. The defendant George A. Jones, who was one of the granJ- children of the decedent, and a devisee and legatee of a portion of one-eighth of the estate and of other interests therein, demur- red to the bill for want of equity. And he staled, as a special ground of demurrer, that the bill was improperly filed by the husband in the joint names of himself and his wife, instead of making her a party defendant, to set aside a will creating a trust in her favor, and for her separate use. This defendant also stated, as a ground of demurrer, that the bill was not ver ified by oath. 1848.] CASES IN CHANCERY. 399 Alston V. JonfB. C O^ Conor, for the complainants. The object of tl e bill of complaint is to set aside the alleged trust, and to establish the title of Mrs. Alston as heiress at law, by descent. This is a higher and better title in her than that offered to her by the alleged will. She has a right to prefer the former, and on electing so to do, is a proper complainant, and as such must join with her husband. The defendants cannot, by their unlawful procurement of this will, absolutely deprive Mrs. Alston of the power to file a bill as complainant to set it aside. She is not bound to appear in support of it. If the circumstance that Mrs. Alston has an interest to support the-will, as well as an interest against it, whilst her husband's interest is altogether against it, requires that she should appear separately from him, still it is not necessary that she should be a defendant. She may be a co-complainant, and the court can by order appoint an indiffer- ent person as her next friend, to appear for her and see that her interests suffer no prejudice. A decree in a suit so conducted would bind her. If the course above suggested is pi-oper, the demurrer on the record should be overruled with costs, and this amendment of the proceedings should be allowed without costs. {Robinson v. Smith, 3 Paige, 233.) M. S. Bidwell, for the defendant. Mrs. Alston should have been made a party defendant. The object of the bill is, to set aside the will of John Mason. This will secures to Mrs. Alston an income to her separate use, and contingently, an estate in which her husband has no interest. Her interest, therefore, is adverse to that of her husband. {Grants. Van Schoonhoven, 9 Paige, 255. Ston/s Eq. PI. § 63, n. 4.) The demun-er is, for this reason, well taken. The bill shows no equity, and nothing to give this court ju- risdiction ; unless it be that there are outstanding leases by the testator of some part of his real estate. And, with regard thereto, as the bill seeks to transfer to this court a subject mat- ter properly cognizable at law, there should have been an affi- davit; and the want of it is a ground of demurrer. [Lynch 7. IVillard, 6 John. Ch Rep. 346. Whitchurch v. Golding, e;s> UN chanc|;ry. 4(^5 De Molt V. Starkev. the complaiuant's rights; and after the note of the latter had been formally demanded of himself as well as of Staikey, ac- companied by an offer to endorse or receipt the. amount thereof upon the bond and mortgaige which had been assigned to the ccmplainant. The bill was filed in April, 1842, to foreclose Starkey's bond and mortgage; he never having paid any thing thereon except the $700 for which his note was given. Semans was made a party; and the bill, after stating these facts, prayed that Semans might deliver up the $700 note of the complainant, to be can- celled, and that the amount thereof might be allowed upon the bond and mortgage, and for a foreclosure and sale for the pay- ment of the residue of the debt. The assistant vice chancellor made a decree accordingly. And the defendant Semans ap- pealed, from that part of the decree which directed the surren- der of the note and the allowance of the amount thereof uport Starkey's bond and mortgage; and from so much of the decree as directed Starkey and Semans to pay the extra costs occa- sioned by the litigation in this matter, beyond the ordinary ex • oense of a foreclosure suit where there is no defence. A' Thompson, for the appellant. E. Sandford, for the respondent. The Chancellor. The assistant vice chancellor arrived I . a correct conclusion in this case, not only as to the matters of 1 it, but also as to the legal and equitable rights of the parties. 'J 'he evidence fully establishes the fact that the $700 note in controversy was not given upon a loan made to De Mott ; but was merely a security for the return of the amount, with interest, iu case the arrangement should not be consummated so as to h&ve the $700 applied as a payment on Starkey's bond and mortgage, upon its beina: assigned to the complainant in pay- ment 01 Montgomerj''s prior mortgage, Starkey having gone into tbe actual possession of the farm, and occupied it for two seaa- J » without paying any part of his purchase money, and 406 CASf & IN CHANCERY. fJ'iNE 23 De Mott V. Starkey. the farm being then of less value than the principal and inter- est clue upon his bond and mortgage, the selling of the $700 note to a third person, so as to secure the repayment of that amount to himself, instead of having it applied upon the bond and mortgage according to his agreement, was an attempt to defraud De Mott out of that amount. And Semans, the appel- lant, was not authorized to hold and collect the note, as against the right of the maker thereof to have it applied upon the bond and mortgage, according to the agreement of Starkey, unless he could establish a state of facts entitling him to the character of a bona fide purchaser and holder of the note for a valuable con- sideration, and without notice of the complainant's rights. And the appellant wholly failed to establish such a defence in this case. It is now the settled law, both here and in England, that the purchaser of a negotiable note or bill of exchange, not payable upon demand but at a specified time, is not in a situation to sus- tain the character of a bona fide holder thereof without notice, if he became such purchaser after the bill or note had become due and was dishonored. In other words, the purchaser of a bill or note which has become due and payable, according to the terms thereof, takes it subject to all equities, or legal or equi- table defences, which existed against it in the hands of the per- son from whom he received it. [Bayly on Bills, 2d Am. ed. 134, 544. Chitty on Bills, Barb. ed. 244. 5 John. Rep. 118. 8 Idem, 454.) Here, by the terms of the note, it had been due and payable more than twelve months before Semans became the purchaser thereof. He should therefore have inquired and ascertained from De Mott whether it was actually due, and was to be paid by him ; before he purchased it of Starkey. And having neglected to do so, he took it subject to the right of De Mott to have the amount applied in part payment of the bond and mortgage of Starkey in case he should cancel his own bond and mortgage and take an assignment of Starkey's bond and mortgage to Montgomerj', in lieu thereof. Again ; to entitle a party to the character of a bona fide pnr- Qhaser without notice of a prior right or equity, such party must 1848.] CASES IN CHANCERY. 40? Lowry V. Tew. -»■ ' — not only have- obtained the legal title to the property, or the negotiable security, but he must have paid the purchase money, or some part thereof at least, or have parted with something of value upon the faith of such purchase, before he had notice of such prior right or equity. And Semans, long before he made any payment to Starkey on account of the purchase of this ^700 note, not only had notice of De Mott's rights under the agreement with Starkey, but had been formally called on to surrender up the note to De Mott's agent, and to have th amount thereof endorsed upon the bond and .mortgage. The payment of any part of the purchase money of the note, after what had then taken place, was a payment in his own wrong ; and was an attempt to assist Starkey in defrauding the com- plainant. The assistant vice chancellor, therefore, properly charged the appellant, as well as Starkey, with the extra costs occasioned by their unconscientious defence in this case. No part of the decree appealed from was erroneous, and It must be aflBrmed with costs. LowRY vs. Tew. The pnnciple upon which courts of equity hold that a part performance of a parol agreement respecting land is sufficient to take a case out of the statute of frauds. is that a party who has permitted another to perform acts on the faith of such an agreement, shall not be allowed to insist that the agreement was invalid because it was not in writing, and that he is entitled to treat those acts as if the agreement in compliance with which they were performed had not been made. Taking possession of land under a parol agreement, and in compliance with the pro- visions of such agreement, accompanied by other acts which cannot be recalled so as to place the party taking possession in the same situation that he was in before, has always been held to take such agreement out of the operation of the statute of frauds. Although a party who has gone into possession of premises under an agreement to purchase the same is, at law, a tenant at will to the holder of the legal title, yet if he IS in under a written agreement, made by the owner, '<• sell ^nJ convey tho preiu- 408 CASES IN CHANCERY. Juke 23 Lowry v. Tew, -r- iscs to him, or under a parol agreement which has hcen so farccnsummated as t< entitle him to a specific performance, he is in equity considered the owner of thai title for which he contracted, and which the vendor is able to give him. And it that title is an equity of redemption, be has the same claim to redeem, except &» against bona fide purchasers without notice of his equitable rights., as if the equity of redemption had been conveyed to him at the time when his equitable righll accrued under the contract. i, is a general rule of equity pleading that a defendant who claims protection as a bona fide purchaser without notice, must deny such notice although it is not dis- tinctly charged in the bill. This was an appeal from a decretal order of the vice chan- cellor of the eighth circuit, overruUng a demurrer to the corn- plainant's bill. The object of the bill was to redeem a farm, of about 203 acres of land in the county of Chautauque, from a mortgage, and from a foreclosure and sale under the same. The bill stated, in substance, that in June, 1833, J. Sherman, being the owner of the farm in question, mortgaged it to The New-York Life Insurance and Trust Company, to secure the payment of $1000 and interest. Three judgments were after wards recovered against Slierman, which became liens upon his equity of redemption in the farm; one in favor of A. Varney of about $250, which was the oldest lien upon the farm, and two others, amounting together to about $1000, both of which belonged to the complainant N. A. Lowry, on and previous to the first of March, 1843. In January, 1843, the farm was sold upon an execution issued on the oldest judgment, and was pur- chased by Varney, the plaintiff in that judgment. And in March, 1843, Sherman, for a valuable consideration, bargained and sold to the complainant all his right, title and interest in the farm subject to the mortgage. and judgments, &c. and his equity and right of redemption, and surrendered the possession thereof to him, with the exception of a portion of the farm house. There was no written agreement, but Sherman agreed to give the complainant a deed of the premises, '.o carry into effect the verbal agreement. And on the 14th of the same month the complainant rented the premises to a tenant, upon shares; who mjved into the farm house on that day, and continued in pos- session until after the sale upon the decree of foreclosure a* 1848.J CASES IN CHANCERY. 409 Lowry V. Tew. hereafter mentioned. But the deed from Sherman for the farm, in pursuance of such agreement, was not made outand executed until about the last of May, 1843, when it was duly acknow ledged and recorded. ^ In April, 1843, The New- York Life Insurance and Trust Company filed a bill in chancery to foreclose the mortgage to the company ; making the mortgagor and his wife, and Varney who had bid off the equity of redemption at the sheriff's sale under his judgment, the only defendants in the suit ; and a notice of the lis pendens was duly filed on the 25th of the same month. A final decree of foreclosure and sale was entered in that suit, and the premises were sold by the master, under such decree, in September, 1843, and were purchased by W. H. Tew, the defendant in this suit, for the price or sum of ^2034,50, The master conveyed the premises to the purchaser, and brought the surplus moneys, amounting to $842, into court. Out of such surplus moneys Varney was paid the amount due to him upon his purchase at the sheriff's sale ; and the complainant applied for and received the balance, as a judgment creditor having liens upon the equity of redemption. The bill also charged, that at the time of the master's sale. Tew, the defendant in this suit, knew that Lowry, the com- plainant, was in possession of the mortgaged premises, by his tenant, And the complainant had offered to redeem the promises, by paying the defendant the amount of his bid at the muster's sale, and interest thereon, and his expenses, upon being indemnified against a mortgage given to The New-York Life Insurance and Trust Company upon the premises for a part of the purchase money on the master's sale ; or to take the premises, subject to the payment of that mortgage, and to pay the defendant the balance of his purchase money and interest. But the defendant refused to permit him to redeem the premises. S. Matthews, for the appellant. The parol contract '(ix-hich the complainant sets up created no interest in the land. (2 II, S. 69, § 6.) This section declares in express terms that "no a.itate or interest in "land shall be created," (fcc. except in th« Vol. III. 52 410 CASES IN CHANgERY. [Jdse 23 Lowry v. Tew. manner specified in that section. Section 8 declares the parol contract to be void. In the revisers' notes to the 6th section the person making a parol contract, and taking possession un- der it, is called a tenant at will. This was the necessary con- sequence. Lowry then had no interest in the land, but was a mere tenant at will. It will not be pretended that a tenant at will has a right to redeem. The tenancy at will terminated whsn Lowry took a deed, 29th May, 1S43, more than 30 days after filing notice of lis pendens. There was no such change of possession as would be notice to the complainants in the foreclosure suit. The mortgagor still remained in the house on the premises. Lowry's cattle and sheep were on the prem- ises before the parol agreement. The only pretence of a change of possession was, that the son of the mortgagor went into the house on the farm, with his father, and worked the farm or shares. The mortgagor still living on the place, the presump- tion arising from the appearances would be, that the son was occupying under his father. Lowry's cattle and sheep being on the premises was no change, for they were there before the parol contract. The defendant was an innocent purchaser at the sale, and Lowry was present at the sale and did not give any notice of his intention to redeem, or that he had any rights that were not foreclosed. All the notice that the defendant had is set forth between folio 23 and 24 of the bill. The fact that Lowry was in possession, by his tenant and cattle and sheep, on the day of sale, and that the defendant knew it, amounts to nothing. Suppose he did know that Lowry was in possession by virtue of his purchase, that could only relate to the legal purchase when he took his deed. He was informed by the record of the deed. Lowry does not say that he told him or notified him, but that " he was informed." No particular kind or mode of information being expressed, the presumption is that It was the legal information obtained from the record, and this mformation notified the defendant that Lowry had no right to redeem; his deed being subsequent to the filing of the notice of lis pendens. Lowry stood by and saw the defendant pur- chase the land, and did not set up any right or claim different 848. 1 CASES IN CHANCERY. ^j] / Lowry v. Tew. from what the record showed. This state of facts, as detailed in the bill, makes out against Lowry an estoppel in pais, and forever precludes him from redeeming, if he before had the right. (Cowen (Sr HiWs Notes to Phil. Ev. vol. 1, p. 207 to 209. De- zell V. Odell, 3 Hill, 215.) It was no part of the parol agree- ment that Lowry was to have possession. After making the parol contract he says the mortgagor surrendered up to him the possession. The power reserved to the court of chancery by the 10th section of the statute of frauds, does not affect the operation of the 6th section, so as to make a parol agreement create a present interest in the land. The statute is positive and unequivocal in its terms, and prevents the creation of any interest whatever, either legal or equitable. There is no more foundation for saying that it created an equitable interest, than a. legal iatevest. It excludes aiij/ interest. The vice chancellor oases his decision upon a remark of Chancellor Kent. (4 Kent's Com. 162.) The words there used are, " Every person who has an interest in, or a legal or equitable lien upon, the lands," has the right to redeem. This is not disputed, and it seems a little Gtrange that he should cite an authority so exactly against his position, as the only foundation to rest it upon. Chancelloi Kent does not say a legal or equitable interest. It is not pre- tended that Lowry's claim was a legal or equitable lien. I know of no authority allowing the pwner of a mere equitable interest in land to redeem. It is not, however, conceded that Lowry had even an equitable interest in the land. An execu- tory contract in wliting; does not create any interest in lands. The 6th section of the statute declares that nothing short of a conveyance creates an interest in land. In this view of the case, if Lowry's parol contract had been reduced to writing, it would not have authorized him to redeem, for the reason that such a contract does not convey an interest inpresenti. {Jack- son V. Moncrief, 3 Wend. 26.) The object of the 10th section of (he statute of frauds was to permit the court of chancery to compel a specific performance of agreements where there had been part performance ; but no power is there given to tha court to say that a parol or written contract creates an interest 412 CASES IN CHANCERY. [Joke 23, Lowry v. Tew. in land, when the statute has expressly declared that it shall not create any interest in land. The complainant's bill does flot show such a contract as the court of chancery would en- force specifically. The giving possession formed no part of the contract. The complainant's bill does not show that any part of the contract was performed prior to the giving of the deed. When the deed was given, it put an end to all power of the court of chancery to enforce performance, if it had before existed, so that the 10th section of the statute becomes entirely nuga^ tory, so far as this case is concerned. The complainant ae-- quired no right. to the crops on the ground at the time of the master's sale, nor to the use of the premises after the sale. Suppose he had a right to redeem, that gave him no right to the use of the land until he perfected his redemption. He made no attempt to redeem until a year after the sale. ' A. Taber, for the respondent. The complainant has a right to redeem as a purchaser of the equity of redemption previous to the filing of the bill to foreclose ; and he is not barred by the decree foreclosing the equity of the mortgagor, as he was not a party to that suit. The complainant purchased the premises of the mortgagor, by parol, previous to the commencement of the foreclosure suit, and this purchase was subsequently con^ summated by a deed of conveyance from the mortgagor to the Complainant. This purchase by parol, or contract of purchase, would be decreed to be specifically performed by the raorlgagor, (the vendor,) as it was made upon '* a good 'and valuable con- sideration," and was immediately followed by part performance, which takes the case out of the statute of frauds. The com' plainant entered into possession of the premises immediately after his parol purchase, and was in possession by his tenant when the foreclosure suit was commenced. The complainant's cattle, sheep, and stock were on the premises when he pur- chased, and his tenant went to work, (fee. Possession has al- ways been held a part performance which will take a cascj out of the statute. The complainant was in possessioi at the time she foreclosure suit was commenced, and this wa? aoticeto tha T84S.1 CASES IN CHANCERY. 4iq Lowry v. Tew. moitgageep, the complainants in that suit, and they sliould have made the complainant in this suit a party, in order to bat his equity. The complainant has a right to- redeem simply to protect his interest in the crops raised by him and his tenant, and to protect himself from the claim made for the value of the crops. The Chancellor. Upon the facts stated in this bill it must be presumed that Lowry, the complainant, was in the open and notorious possession of the mortgaged preniises, by his tenant, at the time the proceedings to foreclose the mortgage were instituted. I think also, upon the face of this bill, it ap- pears thai the verbal agreement for the sale of the premises had been so far consummated, by a part performance, at the time of the institution of the foreclosure suit, as to give to Lowry an equitable right to redeem the premises from the mortgage as well as from the sheriff's sale. For he had not only taken possession of the premises, in conformity to the terms of the agreement, but had actually rented them for a year upon the faith of that verbal contract of purchase. So that if the vendor had resiled from his contract, instead of giv- ing the deed in conformity with the terms of that contract, it was not in his power to place tlie purchaser in the same situa- tion in which he was previous to the taking possession under the agreement. The principle upon which courts of equity hold that a part performance of a parol agreement is sufficient to take a case out of the statute of frauds, is that a party who has permitted another to perform acts on the faith of an agreement, shall not be allowed to insist that the agreement is invalid, because it was not in writing, and that he is entitled to treat those acts as if the agreement, in compliance with which they were performed, had not been made. In other words, upon the ground of fraud in refusing to execute the parol agreement after a part perform- ance thereof by the other party, and where he caimot be placed in the same situation that he was in before such part perform- ance by him. Taking possession under a parol agreement 414 CASES IN CHANOERY. [June 23 Lowry V. Tew. and in compliance with the provisions of such agreement, ac- companied with other acts which cannot be recalled so as to place the party taking possession in the same situation that he was in. before, has always been held to take such agreement out of the operation of the statute of frauds. {See 2 Story's Eq. § 761, and the cases there referred to ; Keats v. Rector, 1 Pike's Ark. Rep. 419.) It is true a party who has gone into possession of premises under an agreement to purchase the same, is at law a tenant at will to the holder of the legal title. But if he is in under a wiitlen agreement, made by the owner, to sell and convey the premises to him, or under a parol agreement which has been so far consummated as to entitle him to a specific performance, he is in equity considered as the owner of that title for which ha contracted, and which the vendor is able to give him. And if that i^ an equity of redemption, he has the same claim to re- deem, except as against bona fide purchasers without notice of his equitable rights, as if the equity of redemption had been conveyed to him at the time his equitable rights accrued under the contract. This complainant, therefore, should have been made a party to the foreclosure suit, in order to cut ofT his equity of redemption in the mortgaged premises. And if the com- plainants in the foreclosure suit, at the time of the commence- ment of such suit, had either actual or constructive notice of his rights, and if the defendant Tew, at the time of his purchase of the premises under the decree, had such notice of those rights, the equity of redemption was not foreclosed as against Lowry. The deed from Sherman to Lowry, and which was long sub- sequent to the commencement of the foreclosure suit, was suf- ficient to account for the possession of the latter at the time of the master's sale. Such possession at that time, therefore, was not constructive notice to the purchaser of the complainant's equity. But it is a general rule of equity pleading that a de- fendant who claims protection as a bona fide purchaser without notice, must deny such notice, although it is not distinctly charged in the bill. A plea or answer, therefore, denying such 1348 ■ CASES IN CHANCEKY. 4 15 liOwry V. Tew. notice, appears to be necessary in order to protect the defendant as a bona fide purchaser at the master's sale. It is alleged by the defendant's counsel that the complainant was present at the master's sale, and concealed from the bid- ders at such sale the fact that he claimed that the foreclosure was invalid, as against him, because he had an equitable right to the premises, subject to the incumbrances thereon, and was in possession, by his tenant, at the time the foreclosure suit was commenced. That fact, however, if it is a fact, does not ap- pear in the bill. Bui; if set up and insisted on in the defend- ant's answer, and established by the proofs, in connection with the fact that Lowry subsequently claimed and received the sur- plus moneys as a judgment creditor of the owner of the equity of redemption, I should not hesitate to declare such silence a fraud upon the bidders at the master's sale, and intended to in- crease such surplus for his own benefit ; and that he had no equitable claim to relief as against the purchaser at such sale. This is a question, however, which does not properly arise upon the demurrer, but must be brought before the court by an- swer to the bill. The order of the vice chancellor overruling the demurrer was therefore right, and must be affirmed with costs. It appears by the bill that the defendant had given a mort- gage to The North American Trust and Banking Company for a part of the amount due them out of the proceeds of the sale. And I am inclined to think they should have been made parties to this bill, to redeem the premises on the ground that the fore- closure and sale were invahd as against him. But es that ob- jection was neither specified in the demurrer, nor urged ore . teiius upon the argument before the vice chancellor it canniot benefit the defendant on this appeal. 416 CASES IN CHANCERY. .FJuneS? OsTRANDER VS. LiviNGSTON and Wife. .0 May, 1825, L. and wife leased to H. a, piece of land, in the city of New- York, for the term of 21 years. The lease contained a covenant that at the end of tha term the premises, and the improvements thereon, should be separately valued and appraised, by sworn appraisers; and that incase the lessors should not, within ten days after the appraisement, elect to take the improvements at their appraised value, then the lessors would sell and convey the premises to the lessee, or his assigns, at the price the same should be appraised or valued &t. H. assigned this lease to H. and M. ; who afterwards assigned the same to The Sterling Co. In January, 1827, an agreement was made between the lessors and The Sterling Co. by which the former covenanted with the latter that in case The Sterling Co. should underlet or assign any lot or lots upon which no building had already been erected, such lots respectively to be 25 feet in front and 100 feet in depth, and if the under lessee or assignee of such lots respectively should actually build, or cause to be built, on each of the lots so assigned, a two story dwelling house or tenement, with a brick front, then and in such ease each and every lot so under- let or assigned, and which should have such dwelling house or tenement erected thereon, should be chargeable with the annual rent of $60 only, as its proportion of the rent reserved in the original lease ; and that such under lessee or assignee, at the termination of the loriginal lease, should, in respect to the improvements on such lot, be entitled to the like appraisement and provisions as were in that behalf specified in the original lease. The Sterling Co. subsequently divided the land into lots of 25 feet in front and ^car, and 100 feet in depth, and leased two of those lots to B. for the residue of the term, by separate leases; B. covenantin|! with The Sterling Co. to pay the rent, and the taxes and assessments, and to build upon each of the lots a house of at least two stories in height, with a brick front. And The Sterling Co. covenanted with 6. that, at the end of the term, he should, in respect to the improvements on those lots, be entitled to the like privileges, &c. as were specified in the original lease. The Sterling Co. subsequently re-assigned the original lease to H. & M. ; and by divers mesne assignments the same came to, and was vested in, V. at the expiration of the term. B., the lessee of the two lots, instead of building a two story house with a brick front on each lot, divided the two lots into five ; each lot or subdivision being 20 feet in front by 50 feet deep, and fronting on another street. Upon the corner lot there was erected by B. or His assigns, a two story house with a brick front. Frame buildings were erected upon three of the other lots, and a feed-store nf brick upon the fourth lot. These leases to B. afterwards came by assignment to O the complainant. Shortly before the termination of the original lea3e,^L. and wife agreed with V., the then owneJ thereof, to pay him for the buildings upon the demised premises, and procured from him an assignment of all his interest in the lease and leasehold premises to their son M. L. Upon the expiration of the lease L. and wife claimed that the complainant was not entitled to pay for the buildings so erected on the five sub- divisions of the two lots leased by The Sterling Co. to B., because they were not 1S48.1 CASES IN CHANCERY. 417 Ostrander v, Livingston, made in pursuance of the agreement with the Sterling Co. ; and refused to join in the appointment of appraisers of those two lots and the buildings thereon, Uii a bill filed by the assignee of B. against L. and wife, to restrain the prosecution of suits at law brought against him and his tenants, to recover the possession of lhntem- plated. Held ahflj that the rights of the complainant, in reference to improvements, were no greater than they vtould have been had the agreement of Jan. 1827, not been made. And that under the covenant in the original lease, the value of the whole leasehold premises, and the value of the whole improvements, were to be separately estimated ; that the covenant giving the lessors the privilege of taking all the buildings or improvements at such valuation, or of conveying the whole of the premises demised, upon being paid the price at which the whole premises, excli- sive of the improvements, were valued, at their election, was in its nature indivisi- ble. And that if the entire interest of the lessee in distinct parcels of the demised premises had been assigned to different individuals, all who were interested in the performance of the covenants, or in the different parcels of the demised premises, must unite in the appraisal ; and in the purchase of the whole premises, if the les- sors elected to convey the same at the appraisal. Held fwrtlier, that the effect of the agreement of January, ^827, was the same as if the particular lots which were leased or assigned, and built upon in conformity to the terms of that agreement, had formed no part of the premises originally demised toH. And the bill showing that several other lots of 25 feet by 100 feet, into which the demised premises were subdivided, were sublet to different persons, but not stating who such persons were, or whether any buildings were erected on their respective -lots, and if so, whether they were erected in conformity to the provisions of the agreement of 1827, also Held that no.relief could be granted upon the bill of the complainant, as framed, even if he had made out a case entitling him to equitable relief in other respects. And that M. L., *he assignee of the lease and of a part of the premises originally demised, so far as related to that covenant, was a nepessary party to any hill for a specific performance thereof by the lessors ; even though the consideration of the assignment of the/ lease to him was in fact paid by L. and wifo, the original, lessors. Vol III. 53 418 CASES IN CHANCERY IJum: 22 Ostrander v. Livingston, Where the consideration of an assignment is paid by one peison and the assign- ment is made to another, the whole legal and equitable title to the assigned prum* ises is vested in the latter, except as to creditors of the former. This was an appeal from a decree of the vice chancellor of the first circuit, allowing a demurrer and dismissing the com plainant's bill, with costs. In May, 1825, the defendants, Maturin Livingston and wife, leased to William C. HoUey a piece of land on the south side of Stanton-street, between Suffolk and Clinton streets, in the city of New- York, two hundred feet in width and three hundred feet in depth ; also three lots upon Rivingtbn-street, each twenty-one feet by one hundred, and seven lots between Stan- ton and Rivington streets extending from Clinton to Attorney- street, each being twenty-five feet by one hundred feet, for the terra of twenty-one years from the first of May in the j^ear 1825, at a yearly rent of $2040, payable quarter-yearly. The lease, among other things, contained the following covenant : " It is mutually agreed by and between the parties to these presents, for themselves and their representatives, that at the end of the term hereby demised, the said premises and lots of ground before mentioned and described, and the improvements thereon, shall be separately valued and appraised, under the oath of two reputable disinterested freeholders of the city of New- York, to be appointed by the parties aforesaid, each party choosing one of the said appraisers, and in ca^e they cannot agree, the said appraisers to choose a third, who shall also be a freeholder of the said city and under oath in making the ap- praisement aforesaid. And in case the said parties of the first part, their heirs, executors, administrators or assigns, shall not •within ten days after the said appraiserhent, elect to take the said improvements at the sum which the same shall be ap- praised at, and pay the same to the said party of the second part, his heirs, executors, administrators or assigns, then and in such case the parties of the first part covenant and agree for themselves, their heirs, executors, administrators and assigns, to sell to the said party of the second part, his heirs, executors, administrators or assigns, the said premises ai)d lots hereby de 1848.J CASES IN CHANCERY. 419 Ostrander v. livinsston. mised, at tha price the same shall as aforesaid be appraised 01 valued at, and on the consideration money being paid, fortli- wilh execute and deliver a good and sufficient deed of convey- ance therefor, in fee simple." HoUey assigned this lease to Hinton and Moore, who afler- «'ards assigned the same to The SterHng Company. In Jan- uary, 1827, while that company were the owners of the lease, an agreement was made between them and Livingston and wife, the lessors, under their respective seals, and duly acknow- ledged and recorded. That agreement recited the making of the lease, and the substance of its provisions, and the assign- ments thereof, and that The Sterling Company, the assignees, were desirous of having the privilege of underletting or assign- ing parts of the premises so that the same should remain charged only with a just proportion of the rent reserved in the original lease, and that the lessors had assented to the same in the manner therein mentioned. Livingston and wife thereupon covenanted with The Sterling Company, and th«ir successors and assigns, that in case that company, or their successors or assigns, should underlet or assign for a term or time not beyond the duration of the original lease, any lot or lots upon which no building had already been erected, such lots respectively to be twenty-five feet in front and one hundred in depth, and the under lessee or assignee of such lots respectively should actually build, or cause to be built, on each of the lots so assigned, a two story dwelling house or tenement, with a brick front, then and in such case each and every lot so underlet or assigned, and which should have such dwelling house or tenement erected thereon, should, while the same remained thereon, be chargea- ble with the annual rent of $60 only, payable in quarter-yearly payments, as its proportion of the rent reserved in the original leatse, and with the taxes and assessments upon such lot ; and that upon the punctual payment to the original lessees, or their heirs or assigns, of such proportion of the rent, and keeping down the taxes and assessments, such lot should not be liable t.0 forfeiture by re-entry or distress liy reason of tlie non-payment of the residue of the rent reserved in th' - ^ius.' Vase, or tha 420 CASES IN CHANCERY. [Jjxii33. Ostrander v. Livingston, non-payment of taxes or assessments upon the resid le of tha premises ; and that such under lessee or assignee of' such .ot, or his assigns, at the termination of the original lease, should, in respect to the improvements; on such lot, be entitled to the like appraisement and provisions aa were in that behalf speci- fied in the original lease. The agreement then contained a provision that nothing therein contained should impair the right of the original lessors, or their heirs or assigns, to recover the whole rent from The Sterling Company, or their successors or assigns, and in case of non-payment thereof, or the breach of any other covenant in the release, to re-enter or to distrain upon all the residue of the demised premises in the same man- ner as if that agreement had not been made. And The Ster- ling Company covenanted and agreed for themselves, their successors and assigns, to pay the yearly rent reserved in the original lease and perform all the covenants therein contained on the part of the lessee. The Sterling Company thereupon divided the parcel of land first described in the lease into twenty-four lots, 25 feet in front and rear, and lOOieet in depth ; eight of which lots fronted on Stanton-street, eight on Suffolk-street, and eight on Clinton- street. In April, 1827, The Sterling Company leased two of those lots, fronting on Stanton-street, being the corner lot bounded upon Suffolk-street and the adjoining lot, on the east, by separate leases, to J. N. Brower, for nineteen years from the first of May then next, the whole residue of the term remaining of the original lease, at the yearly rent of $60 for each lot, pay- able quarterly to The Sterling Company or their assigns, but with liberty to the lessee to pay the rent to Livingston and wife, the original lessors, or their assigns ; reserving the light to re- enter for the non-payment of rent, or for a breach of any of the covenants on the part of the lessee. And the lessee covenant- ed with The Sterling Company, and their successors and as- signs, to pay the rent and the taxes and assessments, and to build upon the demised premises a house of at least two stories in height, Xvith a brick front, and to surrender up the premises HO underlet, to the lessors or their assigns, at the end of tha 1848 CASES IN CHANCERY". 42] Ustraoder v. Livingston. term. The Sterling Company covenanted with the lessee foi the quiet enjoyment of the premises; and to indemnify and save him harmless against any forfeiture, re-entry, or distress on ac- count of any of the covenants, conditions, or agreements in the original lease from Livingston and wife, and that the lessee or his assigns at the end of the term should, in respect to the im- provements on the lot so demised to him, be entitled to the like privileges, and upon the like appraisement and provisions, as were in that behalf specified in the original lease. These leases to Brower also recited the giving of the original lease, and its provisions, and the subsequent agreement between the original lessors and The Sterling Company, as the assignees of that lease, the division of the first mentioned parcel of the premises into twenty-four lots, and that The Sterling Company had agreed to underlet the one of those lots described in the ne^^ leases respectively to Brower. The Sterling Company also under-let divers other of the lots to different persons ; but before the lots had all been under-let they reassigned the original lease and all their estate and in terest in the demised premises, to Hinton and Moore ; and by iivers mesne assignments the same came to and was vested in W. Vernon. Brower, the lessee of the two lots at the corner of Stanton and Suffolk streets, and fronting on the former, in- stead of building a two story house with a brick front on each lot, as he covenanted to do in his leases, divided the two lots into five, each being twenty feet wide on Suffolk street and extending east parallel to Stanton-street fifty feet. Upon the corner lot of these subdivisions there was erected by Brower, or his assigns, a two story house with a brick front upon Suffolk- street, and extending back on Stanton-street 34 feet. Frame buildings were erected upon three of the other lots of such sub- division, and a feed store of brick upon the fourth. Brower died in 1828, and his executors assigned his leases for the two lots to Susan Brower, who in Marcii,. 1829, assigned them separately to I. Ostrander, the complainant in this cause. Shortly before the termination of the original lease, Living- ston and wife agreed with Vernon, the assignee thereof, to pay 422 CASES IN CHANCERY. [June 2S Ostrander v. Livingston. liiiii for the buildings upon the demised premises, and .procured from him an assignment of all his interest in the lease and leasehold premises to one of their sons, M. Livingston, junior. Upon the expiration of the lease, Liviwgston and his wif»? claimed tliat the complainant was not entitled to pay for the buildings erected on these five subdivisions of the two lots, be- cause they were not made in pursuance of the agreement with The Sterling Company, and with the covenants in the leases from that company to Brpwer ; and refused to join in the ap pointment of appraisers of those two lots and the buildings thereon. They however offered to pay him what they consid ered the value of the buildings after deducting what they claimed as damages, because the buildings were not such as were contemplated in the agreement with The Sterling Cora pany, and such as Brower in his leases covenanted to build. Suits having been commenced against Ostrander and hiF tenants, to recover the possession of the two lots leased U Brower, the bill in this cause was filed to restrain the prosecu- tion of those suits, and for a specific performance. J. M. Mason ^ B. F. Butler, for the appellant. The com- plainant, on the case stated and the offers made in his bill, is entitled to the specific relief therein prayed for. He is assignee of the lessee in the original lease granted by the defendants to HoUey, so far as relates to the two lots held by him as men- tioned in the bill of complaint. As assignee of the lessee, for part of the demised premises, he has the same remedies upon the covenantF contained in the original lease that an' assignee of the lessee for the whole premises would have. The cove nant contained in the original lease with regard to the im provements, or the sale of the lots at the expiration of the lease, is divisible in its nature ; and can be performed in regard to a portion of the demised premises as well as to fhe whole. The covenant is binding on the lessor, in favor of the assignee of the lessee for part .of the land. The agreement between the lessors and The Sterling Company did not take away any of ttie rights of the subsequent assignees from the company 1848.J CASES IN CHANCERY. 423 Ostrander v. Livingston. Neither did the lease, and the acceptance thereof, from Tl)e Sterling Company, have that effect. In case the defendants refuse to appoint an appraiser of the improvements and lands, this court has the power to appoint an appraiser for them ; or to have the improvements and lands valued under the direction of a master. The contract on the part of the lessee or his assigns having been performed by the payment of rent, arid the buildings having been erected on the faith of the lessor's covenants in that behalf, the court will interfere to do justice t)etween the parties, on the ground of part performance. If the court should refuse a specific performance of the cove- nant with regard to the improvements and the lands, the complainant is nevertheless entitled to compensation for the improvements, and the bill should be retained to ascertain his damages. 6r. Wood ^ A. Schell, for the respondents. The complain- ant holds under a sub-lease executed by The Sterling Company under the agreement entered into between the company and the defendants, and not by assignment of the original lease. The covenants in the original lease in regard to buildings or improvements to be put upon the premises are not in reference to their subject matter inherent in or annexed to the premises as demised, and therefore are personal covenants not per se lunning with the land. But inasmucli as they appertain to the land, and relate to acts to be performed on the land, and are made expressly with the assigns, they are covenants with the assignees while they continue assignees, and in that respect run with the land. [Spencer's case, 5 Coke's Rep. 18. Bally V. Wells, 3 Wils. Rep. 25. Gai/ v. Cuthbertson, 2 Chit. Rep. 482.) Such covenants are allowable though the assignees as parties thereto, were not ascertained when the covenants were made, but arise in future ; and covenants may shift in respect to the parties thereto, from time to time. (Spencer's case, 5 Coke, 18. Willard v. Tillman, 2 Hill, 276. Norman v. Wells, 17 Wend. 145, 159. Fellows v. Gillman, 4 Id. 414.) Such personal covenants are not per se divisible in respect 424 CASES IN CHANCERY. {J jnb 43 Ostrander v. Livingston, to ll.e subject matter thereof. (9 Cowen^s Rep. 753, 754. 7 Id. 313.) There is nothing in the contract or subject matier of the original covenants in the lease to vary the construction in this respect and to render them partible. Because, (1.) Although the original lease and covenants contemplate the future erection of several buildings on several lots, yet they do not provide for such buildings being erected by different assignees of separate parts of the premises. (2.) The supplemental agreement which was designed to provide for that case, shows it was not contem- plated in the original covenants. The covenants in the original lease, (if they are still in full force,) do not warrant the complainant in seeking the relief prayed for in the bill, the de- fendants being entitled under those covenants to one entire appraisement and performance. The agreement between The Sterling Company and the defendants was mutual, and binding upon both parties, and the company therein covenanted on behalf of themselves and their assigns that all buildings that might be erected on said premises should be placed on lots 25 feet by 100, and be of the character therein desci'ibed. {Barton v, McLane, 5 Hill, 256. Masterton v. Smith, 7 Id. 61.) That agreement, though perso^nal and in a separate instrument from the lease, was made with the assigns also, and was binding upon them as a covenant shifting and applying to them when their interest as such assignees accrued, and the assignees so understood it ; as is evinced by the recitals in the subleases. ( Willard v. Silli' man, 2 Hill 276. 8 Cowen, 206.) These covenants modified the covenants in the original lease, and either restricted or en- tirely superseded them so far forth as they weie incompatible. The appeal should be dismissed with costs; the complainants, who violated their supplemental agreement in every particular, having no equity, or law in their case. The Chancellor. It is perfectly evident that no such building has been erected, upon either of the lots leased to Brewer, as was contemplated in the agreEment between the 1S48J CASES IN CHAJNCERY. 425 Ostrander v. Livingston, defendants and The Sterling Company, or as Brewer cove nanted to build on each of those lots. True it was not required that the two story dwelling house with a brick front should cover the whole front of the lot of twenty-five feet in width. But the erection of such a house as is described in the agree- ment, if built partly on one lot and partly on the other, was not a compliance with the terms of that agreement, or with the . covenants in the sub-leases, as to either of the lots. The com- plainant as the assignee of the interest of Brower, therefore, was not entitled to any benefit whatever under the agreement of January, 1827. For the covenant in that agreement in favor of the sub-lessees or assignees of particular lots, giving tq them (he right to an independent appraisal in reference to tlieir improvements, was limited to such lots as should have been improved by such sub-lessees, or assignees, or those claiming under them, in the manner which was contemplated in that agreement. The rights of the complainant, therefore, in reference to im- provements, are no greater than they would have been if the agreement of January, 1827, had never been made. And the vice chancellor was right in supposing that under the covenant in the original lease the value of the whole leasehold premises, and the value of the whole of the improvements, were to be separately estimated ; and that the lessors had the privilege of taking all the buildings at such valuation, or of conveying the whole of the premises demised, upon being paid the price at which the whole premises exclusive of improvements were val- ued ; at their election. That covenant in the original lease, therefore, was in its nature indivisible. And if the entire inter- est of the lessee in distinct parcels of the demised premises had been assigned to different individuals, all who were interested in the performance of the covenant, or in the different parcels of the demised premises, must have united in the appraisal ; and in the purchase *of the whole premises, if the lessors elected to convey the same at such appraisal. This covenant, however, was so far modified, in favor of the sub-lessees or assignees of particular lots who should complj Vol, III. 54 426 CASES I.N CHA^CERY. [Joke 23 Ostrander v. Livingston. with the terms of the subsequent agreement, as to exempt the lots, underlet or assigned to them respectively, from this general appraisal. The effect of the subsecjuent agreement, therefore, was the same as if the particular lots which were leased or as- signed, and built upon in conformity to the terms of the agree- ment, had formed no part of the premises originally demised to Holley. The bill shows that several other of the lots, of 25 feet by lOt) feet, into which the first parcel of the demised prem- ises was subdivided by The Sterling Company, were sublet to different persons. But who such persons were, whether any buildings were erected on their respective lots, and if so, whether they were erected in conformity to the provisions of the agree- ment of January, 1827, does not appear. No relief, therefore, could be granted upon this bill, even if the complainant had made out a case entitling him to equitable relief in other re- spects. M. Livingston, jun., who is the legal assignee of a part at least of the premises originally demised, so far as relates to this covenant for appraisal, &c. appears to be a necessary party to any bill for a specific performance of that covenant by the les- Bors. It is true, the bill alleges that the consideration of Ver- non's assignment of the lease to him was in fact paid by tha lessors. But that did not prevent the vesting of all Vernon's interest under the lease in him, iii equity as well as at law ; as there could be no resulting trust in favor of the original les- sors, upon the facts disclosed. (See 1 R. S. 728, § 51.) The decree of the vice chancellor allowing the demurrer, and dismissing the bill, must therefore be affirmed, with costs ; but it must be without prejudice to the rights of the complainaal, if lie has any, in any future litigation. I848.J CASES IN CHANCERY. 427 Wilder and others vs. Collier and others. Where a judgment debtor dies before the judgment creditor has oblained an equi- table lien S. 108, § 48. Mem, 111, § 66.) The creditors by judgment or otherwise, may also reach an equitable interest in real estate, which their deceased debtoi 1648.] CASES IN CHANCERY. 431 Wilber v. Collier. held under a contract to purchase, by a suit against his heirs to whom it has descended. But before they can do this, in addi- tion to exhausting their remedy against the personal representa- tives of the decedent, or showing by their bill that there was no personal estate to pay their debts, they must wait until the ex- piration of three years from the time of granting letters testa- mentary or of administration. (2 R. S. 109, § 53.) The revised statutes having changed the whole course of the proceedings in this court by creditors, against heirs and devisees, to reach the real estate, or an equitable interest in real estate, of their de- ceased debtor, in the hands of his heirs or devisees, decisions upon cases of that kind previous to January 1830, are not ap- plicable to cases which have arisen since that time. This bill was so defective that it was impossible to give any relief to the complainants therein as against the respondents. But as they succeeded in showing that they had rights which might be made available not only as against Howell but also against the heirs iit law of their deceased debtor, at sOme future time, if thfey were not able to obtain satisfaction of their debts out of the personal estate of the decedent by a proper proceeding, the bill should not have been dismissed absolutely; but the decree dis- missing the bill with costs, as to the respondents, should have been without prejudice to the rights of the complainants in any future litigation. The decree appealed from must thertfore be corrected in this respect. And with this slight modificj tion it must be affirmed with costs. 432 CASES IN CHANCERY. [jLaeSl Newland vs. Rogers. Multifariousntss, properly speaking, is where difierent matters, having no connec- tion with each other, are joined in a bill against several defendants, a part of whom have no interest in, or connection with, some of the distinct matters foi which the suit is brought j so that such defendants are put to the unnecessary trouble and expense of answering and litigating matters stated in the bill, in which they are not interested, and with which they have no connection. A simple misjoinder of different causes of complaint, between the same parties, and which causes cannot conveniently and properly be litigated together, is sometimes called multifariousness ; but the ground of objection, in such cases, depends upon an entirely different principle from multifariousness, properly so called, and is a mere question of convenience. The court of chancery abhors a useless multiplication of' suits between the sam* parties, and endeavors to prevent it, as far as practicable. Hence it will not allow separate bills to be filed for different parts of the same account, between the sam« parties ; although the account relates to transactions which are not necessaril) connected with each other. Accordingly, to sustain the objection that several distinct matters and causes of complaint between the same parties, are improperly joined in the same bill, such matters must be of such different natures, or the forms of proceeding in relation to such several matters must be so different, that it would be improper, or very inconvenient, to litigate the same in one suit. There is no general principle, of the court of chancery, that distinct matters, betwe en the same parties, who sue or are sued in the same right or capacity, cannot be united in the same bill. On the contrary, it is settled that matters of the same nature, between the same parties, although arising out of distinct transactions, may piopcrly be joined in the same suit. This was an appeal from a decretal order of the late vica chancellor of the third circuit, overruling the demurrer of ihs defendant to the bill of complaint in this case. The bill stated that in 1836 the complainant and the defen- dant commenced the business of buying and seUing spars, ship timber, and other lumber for the New- York and other markets, on joint account, and to share equally in the profits and loss. Several quantities of lumber were purchased and sold, on some cf which there was a profit and on some a loss, and that some- thing was lost by bad debts ; that in 1837 the parties had a settlement of this lumber transaction, in which three important errors occurred, against the complainant, which were particu- tS48.1 CASES IN CHANCERY. 433 Newland v. Rogers. .arly slated in his bill, and that other errors occurred in that settlement. The bill also stated that in 1836 the complainant and the defendant also were engaged in the business of pur- chasing standing timber and timber lands in the state of Pennsylvania, and in buying timber to be taken down the Susquehannah river, which business was carried on for them by an agent, and that the titles to most of the standing timber and timber lands were taken in the name of the defendant alone, cr had been transferred to him by the agent in whose name the same were originally taken, but the title to one lot was taken in the name of the complainant ; and that upon a ■partial settlement of that transaction, a considerable sum was found due to the complainant for his advances and disburse- ments ; and that the complainant was also entitled to be al- lowed for several other sums, for expenses and disbursement in relation to the Pennsylvania transactions which were not brought into that partial settlement ; a schedule of which sums was annexed to the bill of the complainant. The bill further stated that the defendant had in his possession two promissory notes of the complainant, dated in November, 1841, payable to the order of the defendant in eight and ten months, which notes were given and delivered to the defendant to be used in a timber trade for their joint benefit, if the said trade should be consummated ; but which was never done, so that such notes were wholly without consideration ; but that the defendant re- fused to give them up, and claimed to hold them as evidences of debts due from the complainant. The complainant therefore prayed that the defendant might be decreed to account and settle with him for the several mis- takes and omissions in the settlement of 1837, relative to the first mentioned lumber transactions ; and to pay him the nalt ot njs expenditures and disbursements on account of the Penn- E/lvania purchases, which had not been paid, as mentioned in (he schedule annexed to the bill, and to convey to him the one half of the Pennsylvania standing timber and timber lands which were held by the defendant in his own name ; the complainant ofTering to convey to the defendant the half of the lot standing Vol. III. 55 434 CASES IN CHANCERY. fJcsE 2.1, ]}fewl»nd .V. Rogers. in the name of the complainant ; ,and thalt the defendant might be decreed to surrender up and cancel the two notes of Novem- ber, 1841 ; or that thecomplainant might have such further or other relief as the nature.df his case might require and as was xigreeable to equity. The defendant demurred to the .whole bill, for multifarious- ness ; stating as cause:of demurrer that the bill was exhibited for several distinct causes, and matters which wereof different natures, in no way connected with each other, but whoUyidis- connected, and having no reference or relation to each other. The vice chancellor decided that the demurrer for multifarious ness was not well taken ; from which decision the defendant appealed. J3. H. Rosekrans,iox i\\Q appellant. David Buel, for the respondent. The Chancellor. There does not appear to be any ne- cessary connection between the business -of purchasing stand- ing timber, and timber lands and timber to be floated down the Susquehannah, in the state of Pennsylvania, i by the parties to this suit, which business was carried on through their agent Patchin, and the business ofbuying and selling lumber for the IN'ew-York market, which was carried on by the parties them- selves, or by the complainant for himself and Rogers, in this ■state. Nor is the giving of the two notes, as stated iaitheibill, necessarily connected with either of the mother transactions; •though the notes were given for the purpose of enabling the •defendant to consummate a lumber trade on the joint account of the parties. The appellant's counsel is vvrbng, however, in supposing that two distinct and independent matters or claims, by the same 'Complainant against the same defendant, cannot properly be united in one bill. Multifariousness, properly speaking, is where different mattere, having no connectionwitheach olhei, larejoiiQed in ai bill against several defendants, a pa i (if whora J848.1 CASES IN CHANCERY. 435 N^wland «. Rogers. have no interest in, or connection with some of the distinct matters for which the suit is brought ; so that such defendants are put, to the unnecessary trouble and expense of answering and Htigating matters stated ,in the bill, in which they are not interested, and with which they have no corinection. But a simp).e misjoinder of different causes of complaint, between the same parties, which causes cannot conveniently and properly be litigated together, is sometimes C£^lle4 rnpltifariousness ; though the ground of objection in such cases depends upon an .entirely different principle ; and is a mere question of conve- nience in the administration of justice. In cases of strict mul- tifariousness the objection to the form of the bill is based upon ; the evident impropriety of compelling a p^art of the defendants to answer and, litigate matters in which they are not interested, and which are not so connected with matters in which they are interested,. as to render it, proper, for the, convenient admin- istration of justice, to litigate and dispose of the whole in one suit. B]iit the, court of chancery abhors a useless multiplication ■of suits between the same parties, and erijjeavors to prevent it, as far. as practicable. For this reason the court ^iil not allow separate bills to be filed for different parts of the same account between the same parties ;. although the account relates to transactions which are not nepessarily connected with each other. {JPurefoy v. Purefoy, 1 Ver.n. Rep. 29.) Therefore, to sustain the objection that several distinct matters and causes of complaint between the same, parties are improperly jojped in , the same bill, such matters must be of such, d^Pferent natures, , or the forrns of proceeding in relation to such several matters must be so different, that it would ))& improper, or very incon- venient, to Ijtigate the same in one suit. For there is no such general principle in the coujt of chancery,, that distinct matters between the same parties, and who sue or are sued in the same right or capacity, cannot properly be united in the same bjll. On the contrary, there are several cases in which it has been held that matters of the saipe nature, and between the same parties, although arising out of distinct transactions, may be joined in the same suit. These cases are mostly referied to in the well 436 CASES IN CHANCERY. [Jvue 21 Newland v. Rogers. Considered opinion of Lord Cottenham, in Campbell v. MuQkay, (1 Mylne 4" Craig's Rep. 616.) And his lordship notices, par- ticularly, the decisions of the vice chancellor and of Lord Brougham, in the case of The Attorney General v. The Mer- chant Tailofs Company, (1 Myl. ^ Keeiis Rep. 189.) Ih that case an information was filed to establish eight charitable trusts created by different persons between the years 1518 and 1682. And although the objects of the several trusts were not the same, and the trust moneys in some of them were to be loaned without interest, and in others upon interest, but at dif- ferent rates, yet as the general objects of the various trusts, ex- cept one, were in favor of the members of the company or of its poor members, or the widows and orphans of deceased mem- bers, the court held that seven of the charitable trusts were properly joined in the same information. But in relation to the eighth trust, as another corporation was interested in the trust and was a necessary party to the suit to establish that trust, but had no connection whatever with the other seven trusts, the court permitted the information to be amended by striking out what related to that trust; leaving it to stand as a valid information as to the other seven. In the case under consideration there is no difficulty in join- ing all the matters of the bill in one suit, so far as the com- plainant is entitled to equitable relief in relation to them ; and it will save expense and facilitate the settlement of the several matters in controversy by the decree of the court, to have them all litigated dnd settled together. For if the allegations in the bill are true, the defendant is indebted to the complainant, as well upon the joint concern between them in relation to the purchase of lumber and standing timber and timber lands in the state of Pennsylvania, as upon the business of purchasing and selling lumber here in 1836. And an account must be taken in relation to both transactions. Nor is there any difficulty in giving to the complainant the additional relief sought; by direct- ing the conveyance to him of the one half of the standing timber and the timber lands in Pennsylvania, or so much thereof aa may remain after paying, out of the proceeds of a sale of a par< TS48.1 GASES IN CHANCERY. 437 Newland v. Rogers. thereof, the balance which maybe found due to him ^cr Ins expenses and disbursements upon the purchase thereo.f beyond his proportionate share. In relation to the two notes, I am inclined to think there is no ground for equitable relief, if they remained in the hands of the defendant at the time of the conniiencement of the suit. For as they had been long past due, they could not be transferred to a third person, so as to constitute bim a bona fide holder thereof. And upon the statement in the bill, the defendant could not have recovered thereon in his own name ; and a discovery from him is waived by the bill. That, however, was a proper ground of demurrer to that part of the bill only, for want of equity. And it cannot lay the foun- dation for an objection to the whole bill for multifariousness ; or for a misjoinder of distinct subjects-of equitable relief. On the other hand, if the defendant had sold the notes to a bona fide purchaser, then the amount of them formed a proper subject of account between the complainant and defendant, upon the ather facts stated in this bill. The case of Boyd Sf' Suydam V. Hoyt Sf Parsel, (5 Paiges Rep. 65,) as well as most of the other cases relied on by the counsel for the appellant, were cases cf multifariousness properly so called ; where some of the defendants who were interested in one of the distinct causes of complaint mentioned in the bill, had no connection with, and no interest in, the other causes of complaint as to which their co-defendants alone were proper parties. In this case there is no suflScient reason for declaring that all the matters of this bill cannot conveniently and properly be litigated in one suit, so far as they are proper subjects of equi- table cognizance. The vice chancellor was therefore right in disallowing the demurrer. And the decretal order appealed from must be aflSrmed with costs. 438 CASES IN CHANCERY. 'Jone28; Banks and otliers, executors, &c. v^. Walker aid otbei's. [Overraled, 5 N. Y. 263.] t L' a I rincipleof the common law, that an alien can neither inherit lands LimseK from a person who is not an alien, nor transmit la^nds by descent to any other person Nor, hy I he common law, cduld a nalurdi born siibject or citizen transmit lands by descent to another mediately, throfagh the blood of an alien. Thus in the case of grandfather, father and son, if the father was an alien, whether he was or was not liv- i'9g at the time ofthe descent cast, the grandfather could not transmit lands by descent to the grandson, although both of them were natural born subjects or citizeris, ol had been duly natuiralized. Biit if thfe person who died seised of real estate had inheritable blnad, such real estate would descend to his next heir who had sUcH inheritable blood, although the person who would otherwise have been the heil of the decedent was an alien. Thus if the deceased had two sbhsj and the eldest was an alieii, and tlie yoUhgest was a natural born subject or citizen, the alienage of the eldest son, who otherwise would have been the heir at law of his father, would not prevent the real estate of the father from descending to the youngest son, as heir at law. And by the common law of England, the alienage, or attainder, of the father did not prevent ohe of his sons from inheriting directly from aiiother son. The 22d section ofthe chaptfeir ofthe revised statutes, relative tn the descent of real property, which provides that no person capable of inheriting under the provisions of that chapter, shall be precluded from such inheritance by reason of the alien- ism of any ancestor of such person, is broad enough to remove a disability arising from the alienisin ofthe ftither and grandfather of the person claiming the inher'- ilance ; but it'does not I'emove the disability of a person who, in tracing his'pedigree and consanguinity as collateral heir ofthe person dying seised of the premises, mus. irace it mediately through the blood ofthe father ofthe latter, an alien; and who was not an aiwestcrr of the claimant. Where it is clearly inferable from a' record of naturalization that the alien had not, at least three years previous to the date thereof, declared on oath his intention' to become a citizen of the United States, and to renounce all allegiance lo any foreign prince or sovereignty, and particularly to the king of the country of which he was a subject, as required by the act of 1802 ; but that the court has mistaken the registry of the arrival of the alien in the United States, for such a dedaratioh Of intention, it seems the naturalisation is invalid. Bnt if such record is valid, upon its face, it is cohfelusive as to the regularity of the proceedings, and of the naturalization ofthe alien. And such record cannot be contradicted by extrinsic proof that no such declaration of intention had in fad been made. The complainant, in a foreclosure suit, cannot make a person who claims the mort- gaged premises adversely to both the mortgagor and the mortgagee a party defen- dant in such suit. And if he does so, and the fact of such adverse claim appears from the complainant's bill, the party thus made a defendant may demur to the bill for want of equity as to such defendant. Where real estate is sold at auction and without warranty as to the title, and is con- .■848.1 CASES IN CHANGER Y. 439 Banks V, Walker. veyed accoldingly, and a bond and mortgage is taken back for the puiohase rToaey, it is no defence to a suit to foreclose the mortgage thatthe title failed in part; wLera there was no fraud or misrepresentation on the part of the mortgagee, and where che property was put up and sold at the risk of the purchaser. This was aa appeal, by J. Walker, one of the defendanis, Irom a deciee of the late vice chancellor of the first circuit. The bill was filed by the executors of Eliza McCarthy deceased, who was the widow of the late Denis McCarthy of the city of New- York, to foreclose a mortgage given to he)', for a part of Vhe purchase money of a house and lot on the east side of Broad- way, upon which a part of the Cailton House is now built ; which mortgage Was given by the appellant under the following circumstances : Denis McCarthy was born in Ireland, of parents who were domiciled there, and who with their ancestors were British subjects, and continued to be so until the time of their deaths. He came to this country at an early day, and was a citizen of this state at the time of his. death in July, 1835. He died seised of the premises in question, without any issue surviving him, but leaving a widow who was entitled to dower in his real estate, and his sister Joanna Bant, an alien, who survived him. The widow supposing the real estate of her deceased husband had escheated to the state, subject to her right of dower therein, applied to the legislature for a release of the interest of the state therein. The act of May, 1836, was thereupon passed, which authorized the commissioners of the land office to release to her the interest which the state had acquired by escheat, on condition that the premises, including her dower therein, should be sold under the direction of the vice chancellor of the first circuit, and that the net proceeds of the sale, after deducting costs and charges and the commutation money which was to be paid into the state treasury, should be equally divided between her and Mrs. Bant, the sister of the decedent. And upon the payment of f 1344, by the widow, for the amount of the com- mmation money to the state, the commissioners of the land office released to her all the interest which the state had ac quired in the preiuises by the esclieat. 440 OASES IN CHANCERY; [Junc 28 Banks v. Walker. The vice chancelloi- thereupon made an order for a sale of the premises at public auction, under the direction of Master 1\ A. Emmett, upon three weeks' notice, to be published -in two daily papers, and upon such terms and conditions as the master should prescribe, and that the master and Mrs. McCarthy should execute conveyances therefor to the purchaser or purchasers, in such form as the master should prescribe ; and that the master, out of the proceeds of the sale, should pay the costs and ex- penses of the proceedings, and refund to Mrs. McCarthy the amount paid by her to the state for commutation money, and divide the residue of such proceeds equally between her and Mrs. Bant. In pursuance of that order the premises were ad- vertised and sold by the master, in November, 1836, to J. Walker, the appellant in this cause, for the sum of $38,500; which sale was confirmed by the vice chancellor, upon a report thereof made by the master. And on the 14lh of December, 1836, the master and Mrs. McCarthy conveyed the premises to the purchaser, in pursuance of such sale; by a deed containing covenants only against their own acts and incumbrances. Upon the execution of that conveyance, Walker gave to Mrs. McCarthy the bond and mortgage in this case for the one-half- of the whole purchase money, payable in two years with semi- annual interest; she having paid her half of the expenses and commutation money out of her own funds. He also secured to Mrs. Bant her proportion of the other half of the purchase money, which he subsequently paid ; and he paid the other half of the commutation money and expenses to the master. He sub- sequently paid $250 of the principal of Mrs. McCarthy's bond and mortgage, leaving $19,000 still due ; upon which he con- tinued to pay the semi-annual interest until the 14th of De- cember, 1842, inclusive. In June, 1843, Denis McCarthy, of Oneida county, who claimed to be a collateral heir of Denis McCarthy deceased, brought an ejectment suit against the tenants of Walker, ta recover possession of the mortgaged premises. And Walker hav- ing dechned paying any thing more upon his bond and mort- gage until the final result of that suit should be ascertained 1848.1 CASES IN CHANCERY. 441 Banks u. Walker, and tlie mortgagee having died, her executors, in August, 1813, filed their bill in this cause to foreclose and obtain satisfaction of the bond and mortgage. The defendant Walker, in his answer, admitted the sale to him ; and the giving of the bond and mortgage to Mrs. McCarthy to secure the payment of one half of the purchase money of the premises. But he set up, as a defence to the suit, that at the time of the sale she rep- resented to him that all the heirs at law of Denis McCarthy,, her deceased husband, at the time of his death were aliens, so that his real estate had escheated to the state, subject to her right of dower therein, and had been released to her pursuant to the directions of the act aforesaid ; but that since the sale, and the giving of the bond and mortgage, he had been inform- ed and believed that such representations were untrue ; that Denis McCarthy of Oneida county, who had been natural- ized in 1834, in the court of common pleas of Saratoga county, was an heir at law of her deceased husband and be- came entitled to his real estate, as such heir, at the time of his death in July, 1835 ; and that Mrs. McCarthy well knew the same when she made such representations to the defendant Walker, at the time of the sale, and also at the time she pre- sented her petition to the legislature. The defendant Walker further alleged, in his answer, that Denis McCarthy of Oneida county had commenced a suit, in the supreme court, against the tenants • of Walker, to recover the possession of the mortgaged premises, as the heir at law of Denis McCarthy of New- York, deceased, which suit was still pending ; that previous to the filing of the bill in this cause the "defendant Walker had notified the complainants of the ejectment suit, and of the claim made by the plaintiff therein ; and had requested that the said plaintiff might be made a party to the bill of foreclosure, so that the validity of his claim to the properly might be investigated and determined in this suit. The defendant Walker therefore insisted that he was not bound^ and ought not to be compelled to pay the amount of his bond and mortgage to Mrs. McCarthy ; and that the complainants, as her representatives, were not entitled to enforce the payment Vol. III. 56 442 CASES IN' CHAINCLRY. [June 23; Banks V. Walker. tliereof, or have a decree of foreclosure and sale of llie raort gaged premises, until a release of the claim of Denis McCarthy of Oneida county had been obtained, or until it should be deter- mined, by the trial of the ejectment suit brought by hifflj tha his claim to the premises; as an heir at law of Denis McCarthy deceased, was unfounded. The plaintiff in the ejectment suit was examined as a wit-- ness for Walker, in thia suit, and stated that he came to this country from Ireland in 1827, his father and mother then be- ing dead, and his two brothers and eight sisters then residing in Ireland ; that he was naturalized in the court of common pleas of Saratoga county in 1834 ; and that from recent infor- mation which he had' obtained from the letters of aged people in Ireland he believed his graiidfather, or father, was a cousin of the late Denis McCarthy of New- York. A copy of the rec- ord of his naturalization in Saratoga county was also read upon the hearing, and also the deed from Master Emmet and' Mrs. McCarthy to Walker ; the recitals in vvhich deed, as the coun- sel for the appellant insisted, were evidence of false representa- tions made by her that the heirs fit law of her deceased husband were all aliens. But no evidence whatever was given that she was aware, or had any reason to believe, that any relatives whatever of her deceased husband had come to this country and been naturahzed previous to his death. Nor was there any evidence that she Was "present at the master's sale, or made any representations whatever to the defendant Walker, at or previ- ous to the sale, relative to the validity of the title to the prem- fses which were about to be sold. The vice chancellor, upon the hearing of the cause, made the usual decree for the foreclosQre of the mortgage and a sale of the mortgaged premises, to satisfy the amount due and the costs of (he suit ; and the usual decree over againsit the mortgagor for the payment of the deficiency, if any, upon the coming in and confirmation of the master's report. /. R. Whitiiig 4' R- Lockwood, for the appellant. The tieed to Walker, ^nd the bond and mortfage ey5cut°.d by hire •84S.-| CASES IN CHANCERV. 443 Banks V. Walker. to Mrs. McCarthy to secure the balance of the purchase money, were all executed upon a mistake of fact — at the least as to the recital in the deed "that Denis McCarthy died leaving several persons his heirs at law liim surviving- — all of which persons were aliens, not naturalized or authorized to hold real estate within the state of New-York, &c. by means whereof the said lot, piece, «fec. escheated to the people of the state of New-York subject to the dower of the said Elizabeth." The answer and proofs now show that an heir at law, naturalized and capable of holding real estate, did esiist at the death of the testator. Mrs. McCarthy was bound by this recital. If untrue, althoug'h she did not know it to be so, she is nevertheless responsible, however iniiocent. (ChampUn v. Lat/tin, 6 Paige, 189. 18 Wend. 407, (S*. C.) The action of eject, lent, being brought to the notice of the executors, it was their dui;' to defend it, if they wished to preserve their lien on the lands. If the defendant be evicted, he will clearly be entitled to relief against the mort- gage, if it remain unpaid. The contract is still executory, and therefore if the defendant show a case in which the court would refuse a decree for specific performance, he is entitled to the same equitable protection of the court as if a bill were filed against him for a specific performance of a contract of purchase. ' On a bill for such a specific performance there cannot be a doubt that he would be relieved against his purchase. At all events, the bill would be retained until -the title of the vendor' was fully established in the suit at Ia\^^. There is no case to be found where a court of equity has compelled a purchaser to complete a purchase, where an ejectment, even upon mere col- orable grounds, was subsequently commenced to recover the land under title paramount. Here we have the expense of de- fending the suit, and the risk besides, and the case is still stronger in our favor. The case of a mortgagor' liable to be so evicted, when the recitals in the deed have misled him, and have been the foundation of his purchase, becomes the case also of the party who has received his money, and that party is equally bound in equity to await the issue of the contest as to the balance due. The court ought to interfere to protect the' 444 CASES IN CHANCERS. LJ™ii 128 Banks i). Walker. defendant here, as a mere matter of discretion'and indulgence. The court has a right to delay a decree, under circumstances like those here presented, as long as the equity of the case may lequire. The complainants can suffer no possible injury if theii title be good. i^Abbott v. Allen, 2 John. Ch. Rep. 519. 3 Pow- ell on Mort. 993, 9. Johnson v. Gere, 2 John. Ch. Rep. 546. Gillespie v. Moon, 2 Idem, 585.) The complainants are not ^^endors seeking a foreclosure against a vendee guilty of negli gence, of mistake of law, or of any other omission or act, upon which courts of equity have refused relief to mortgagors upon bills for foreclosure. W. S. Sears, for the respondents. The mortgage to Joanna Bant having been paid off ought to be decreed to be satisfied of record by the defendant Christopher Bant, the administrator of Joanna Bant. The premises should be sold free and dis- charged from the mortgage to Mrs. Joanna Bant. The defen- dant has failed to prove his defence set up in answer. The complainant's right to the money secured by the mortgage is determined b}' the decree ; and the defendant appeals only from so much of the decree as directs the mortgaged- premises to be sold. The court will not, after the rights of the parties have been determined by the decree, reverse that part of the decree by which the complainants are to have the lenefit of the judg- ment of the court. That part of the decree of the assistant vice chancellor which is appealed from should be affirmed, and the complainants permitted to proceed, under the decree and sell the mortgaged premises. The Chancellor. The first and most important question in this case, admitting that the plaintiff in the ejectment suit was duly naturalized in 1834, and that he sustained the rela- tionship wliich he supposes he did to Denis McCaithy deceased, is whether he could take real property by descent from the de- cedent, under the provisions of the revised statutes ; the parents of Denis McCarthy deceased never having been citizens of tli< United States. 1848.1 CASES IN CHAXCERV. 445 Banks v. Walker. It is a well known principle of the common law that an alieu can neither himself inherit lands from a person who is not an al- ien, nor can he transmit lands by descent to any other person. Nor by the common law could a natural born subject or citizen transmit lands by descent to another, mediatel}"^, through the blood of an alien. Thus in the case of grandfather, father and son, if the father was an alien, whether he was or was not living at the titne of the descent cast, the grandfather could not transmit lands by descent to his grandson ; although both of them were natural born subjects or citizens, or had been duly naturalized. But if the person who died seised of real estate had inheritable blood, such real estate would descend to his next heir who had such inheritable blood ; although the person who would otherwise .have been the heir of the decedent was an alien. Thus if the deceased had two sons, and the eldest was an alien and the youngest was a natural born subject or citizen, the alienage of the eldest son, who otherwise would have been the heir at law of his father, would not prevent the real estate of the father from descending to the youngest son, as heir at law. These principles of the common law are admitted by all the English judges who delivered opinions in the important case of Colling- wood V. Pace, in the exchequer chamber, in May," 1664. (1 Vent. ,i?e/>.413. O. Bridgman's Rep. iU. I Sid. Rep. WL I Keble, 579, 581,485, 588, 603, 605, 670, 671, 699, 705.) The only ques- tion upon which SirOrlando Bridgman and two other judges dif- fered with Lord Chief Baron Hale and the six other judges was, whether the descent from one brother to another was immedi- ate, or was only through their father who was an alien. The opinion of the lord chief baron prevailed in that case, and upon that question ; so that it became the settled lav.' in England that the alienage or attainder of the father did not prevent one of his sons from inheriting directly from another. Lord Hale, however, in his opinion, as reported at length by Ventris, says the descent between brothers differs from all other collateral descents whatsoever, and is immediate; and to entitle them to inherit from each other they must be of the whole blood. That the uncle is preferred in descent before the brother of the 446 CASES IN CHANCRRY [Ji,f«E ^8, Banks v. Walker. naif blood, because that is a mediate desceqt, mediant,e patre, (1 Vent. 424.) This disabihty of natural born or naturalized. subjects to in- nerit from each other, where they were obliged to trace. their pedigree or relationship through the blood of an alien, was re- moved, however, in England, by the stE^tute 11 and 12 WUiam 3, chapter 6. (1 J^vans' Stat- 228.) But that statute, as it was decided by the court for th« correction of errors in the case of Jackson V. Fitz Simmons, (10 Wend. JRep. 9^) waa never in force in this state. And the question now arises, wheth- er the twenty-second section, of the chapter of the revised stat- utes relative to the descent of real property, ;is broad enoughto cover th? case now under consideration. That section provides that no person capable of inheriting under the provisions of that chapter shall be precluded from such inheritance by reason of the alienism of any ancestor of such person. (1 M- S. 754.) This unquestionably removed the disability arising from the alienism of the father and. grandfather of Denis McCarthy of Oneida county, the plaintiff in the , ejectment suit which has been broi^ght for the recovery of the.mortgaged premises. Bui to enable him to trace his pedigree and consanguinity as col- lateral heir to Denis McCarthy, the decedent, who died seised of the mortgaged premises, he must trace it mediately through the blood of the father of the. latter, an alien ; and who was not an ancestor of the person who is now claiming to be the heir a> law of the decedent. Thus in the case of Edward Courtenay, ^leat grandson of Edward the 4th, and. whose father and grand- father had been attainted, of treason, it was held that previous to the act restoring him in blood, his second and third cousins, the descendants of his four • great aunts, who were his next of kin of the blood of his father and grandfather, could not have inhciited from him; because they would have been compelled to trace their pedigree and relationship to him through the at- tainted blood of his father and grandfather. (3 Coke's Inst. 241.) I am aware that the term collateral ancestors is sometimes used to designate uncles and aunts, and other collateral an- tecessors of the person spoken of; who are not in fact his azi 1848.1 CASES IN CHANCERY. 447 Banks v. Walker. f.estors. But the word ancestors, in its ordinary import and mpaning, only includes those from whom the person spoken of 1= lineally descended, either on the father's or the mother'sside. And whenever this word is intended to be used in a sense which is different from its ordinary import of lineal ascendants, or in such enlarged sense of antecessors, so as to embrace all the blood relatives of the person referred to who have precededhim, it is qualified, or enlarged, by some other term ; to show that it.is uQt used in its natural sense merely. Thus in the act of October, 1553, which restored in blood the son of Henry Court- enay, the attainted Marquis of Exeter, he is restored in blood as well as son and heir to his father the Marquis, as to all and every other collateral and lineal ancestor. The term ances- tor is enlarged in the same way. in the statute 11 and 12 William 3, ch. 6, before referred to. And there -are also other words used in the statute last referred to, showing clearly the intention of the lawmakers to remove the disability arising. not only from the alien blood of the ancestors of the person claim- ing to be entitled to real estate by descent, but also from the alienage of the ancestors of the. deceased person who was last seised of the estate. For that statute declares that all and ev- « ery person or persons, ibeing natural born subjects, shall and may lawfully inherit, and be inheritable, as heir or heirs, to any honors, manors, lands, tenements or hereditaments, and may make their pedigrees and titles by descent from any of their ancestors lineal or collateral ; although the father or mother,, or other ancestor, of such person or persons, by, from, through or under whom he, she or they shall make or derive their title or pedigree was, is, or shall be, an alien, (fee. (1 Evan's Stat. 229.) The disability of blood of the ancestors of the person from whom the inheritance is tb come, being removed, by that statute, in express terms, as well as the disability of the ancestors of the person claiming such inheritance as heir, the estate, in England, descends in the same manner as if all the ancestors, either of the deceased or of his heir at law, through whom it is necessary fer such heir to trace his relationship by blood to the decedent, fxad been natural born subjects. But as our statute only removes 448 CASES IN CHANCERY. [Ju^e 23 Banks v. Walker. only the disability of the alienism of ancestors of the person claim- ing the inheritance from the person last seised, it does not enaiile ihe claimant, in this case, to make his title and pedigree meai- ately through the alien blood of the father of Denis McOanlij the decedent, who was not an ancestor of such claimant. Again ; I have doubts whether the alleged naturalization of the claimant is not fatally defective, if the certificate produced on the argurnent is a correct transcript of- the record of natu- ralization. For it appears to show, upon its face, that a decla- ration of intention had not been made three years before, as required by the first clause of the first section of the act of April, 1802, to establish an uniform rule of naturalization ; but that the ahen had only reported his arrival in the United States , which he was not required to do, subsequent to the act of May, 1828. (4 Stort/'s Laws, 2145.) The last mentioned act hav- ing repealed the first section of the act of March, 1816, which required the certificate of the declaration of intention to be re cited at full length in the record of naturalization, it is only necessary to state the fact that such previous declaration had been made. And the record of naturalization will then be conclusive evidence of the regularity of the proceedings, and that all the preliminary steps had been comphed with ; provi- ded such record does not show the contrary upon its face. But in this case I am inclined to think the record, upon its face, shows that what was supposed to be a declaration of intention under oath, was nothing but the registry of the arrival of the alien within the United States ; which was formerly required to be made, under the second section of the act of 1802, before that section was repealed in May, 1828. The certificate pro- duced upon the hearing before me is in such an imperfect form, however, that it is difficult to say precisely what did form the rec- ord of naturalization. For that reason I do not intend to express any definite opinion upon the question as to the validity of the naturalization of the claimant. If, as I suppose, however, it ia clearly inferable from the record of naturalization that the alien had not, at least three years before his admission by the court of common pleas in Saratoga county, declared on oath his in- 7848.] CASES IN CHANCERY. 449 Banta ». Walker. tci:lion to become a citizen of the United States, and to re- nounce all allegiance to any foreign prince or sovereignty, and particularly to the king of Great Britain, by name, as required by the act of 1802; but that the court had mistaken the regis- try of the arrival of the alien in the United States for such dec- laration of intention, I think the naturalization is invalid. If the record upon its face is valid, however, it is conclusive as to the regularity of the proceedings, and of the naturalization of the alien; and such record cannot be contradicted by extrinsic proof that no such declaration of intention had in fact been made. But even if the plaintiff in the ejectment suit was duly nat- uralized, and could claim as heir at law of Denis McCarthy the decedent, through the alien blood of the father of the latter, it formed no valid defence to this foreclosure suit. For the de- fendant Walker wholly failed in establishing the allegation in his answer, that Mrs. McCarthy falsely and fraudulently repre- sented to him, at or before the sale, that all the heirs at law of her deceased husband were aliens at the time of his death ; so that his real estate had escheated. Even if she had made rep- resentations of that kind to him, the fact that she had made them in her petition to the legislature, affords presumptive evi- dence that she really believed such to be the case ; and there is no proof to the contraiy. Nor is there any evidence that she ever saw or spoke to the appellant, at or before the master's sale, or that she had any communication whatever, written or oral, with him. His bid upon the property at such sale could not have been affected by the formal recitals contained in a deed which was given some weeks afterwards. And as the property was sold without warranty, the purchaser took tlie same at his own risk. He cannot therefore refuse to pay int share of the purchase money which belonged to Mrs. McCar- thy merely because the interest which he supposed he was acquiring in the property failed in part ; and while he contin- ues to possess and enjoy the property under his purchase. Here the title to the property did not wholly fail, in conse- quence of a mutual mistake of all parties upon a matter of fact. For Mrs. McCarthy, in any event, was entitled to a life estate Vol. III. 57 463 CASES IN CHANCERY. I3}jiit29, Banks v. Walker. in one third of the property ; for her dower interest therein. And if the appellant was not willing to run the risk as to the residue of the title, which was supposed to have been acquired under the release from the commissioners of the land office, he should have insisted upon covenants of warranty. Or, rather, he should not have bidden thereon at the sale ; as it is fairly to Be inferred from the case that the master put up the property and sold it at the risk of the purchaser as to the title. For it is not to be supposed the master would warrant the title to prop- erty in which he had no interest ; or that Mrs. McCarthy would warrant it, for the purpose of enhancing the amount of the pur- chase money for the benefit of Mrs. Bant, who was entitled to the half thereof. Her own interest in the proceeds of the sale she could protect, without running that risk as to Mrs. Bant's share, by bidding in the property herself, if it was likely to be .sold under what she supposed its real value to a purchaser who assumed the risk of the title ; as she was authorized to do so under the order of the vice chancellor who directed the sale. The objection in the answer that the plaintiff in the eject- ment suit should have been made a party to this bill of fore- closure, so that his claim to the property might have been set- tled and determined in this suit, was wholly untenable. For as he claimed adversely to the complainants, as well as to the mortgagor, and by a title which, if valid, was paramount to both, the validity of his claim could not have been litigated in this suit. And if he had been made a party defendant he might have demurred for want of equity as to him. The defence set up in the answer, therefore, entirely failed, and the decree ap- ^pealed from must be affirmed, with costs. 648.' CASES IN CHANCERY, 45 J Peabody vs. Fenton and others. Where a person obtained the assignment of a bond and mortgage, from the ownei thereof, by false pretences, amounting not only to a gross fraud but also to a felony ; and transferred the same to a third person for less than their value, and undet circumstances calculated to put the latter upon inquiry ; Held that no title passed to the purchaser, under the assignment to him ; and that the owner of the bond and mortgage \vas entitled to a decree declaring the assignments fraudulent and void, as against him, and directing the purchaser to re-assign the bond and mort- gage ; and to refund the amount which such purchaser had collected upon the same, with interest. Where the purchaser of a bond and mortgage, obtained from the owner thereof by fraud and felony — though he has no reason to suspect any fraud in the transac- tion, so as to be put upon inquiry — pays for such securities less than the amount actually due thereon, if he is entitled to protection as a bona fide purchaser without notice, he will not, in equity, be permitted to retain the bond and mortgage for the full amount due thereon ; but only for the amount which he paid for them. Andrevis v. Dieterich, (14 Wend. Rep. 36,) doubted. Mirwnj v. Walsh, (8 Cmiien, 238,) and Parker v. Patrick, (5 Tirm Rep. 175,) commented upon. Even in the case of negotiable paper which has been lost by the owner, or which has been obtained from him by fraud, or by larceny, the holder thereof cannot retain it as against the rightful owner, where he received it under circumstances which were calculated to throw a suspicion upon the right of the person from whom he received it, to dispose of it as his own. For purchasing a security under such circumstances is gross negligence! Thus where persons purchased a bond and mortgage originally given to secure the payment of $8000, and upon which the sum of S2000 and the annual interest had been paid ; they paying therefor only three-fourths of their actual value, in unsale- able goods at forty per cent above their market price, and out of the usual course of business j Held that the fact that the pretended owner of the securities was will- ing to make such a sacrifice, and for articles which he did not intend to use him- self, but which were to be immediately sent to an auctioneer to be sold, was sufficient to put the purchaser upon inquiry as to the ownership of the bond and mortgage. A party, to be protected as a bona fide purchaser without notice, must have acquired tli3 legal title, as well as an equitable right, to the property. This case came before the chancellor upon appeal, by W. and R. Kelly and Downer and Rogers, four of the defendants, from a decree of the vice chancellor of the eighth circuit. In November, 1837, J. J. McPherson mortgaged to D. McPhersou certain lands in Genesee county, to secure the payment of $8000; f9r which he also gave his bond, payable in eight yearly 452 CASES IN CHANCERY. [June S3 Peabody v. Fenton. payments, commencing on the first of April then next, with annual interest. The first payment, with interest on the whole bond and mortgage, was paid in April, 1838 ; and in May of the same year the mortgagee assigned the bond and mortgage, and the payments thereafter to become due thereon, to the com- plainant. In March, 1839, the complainant bemg desirous of laising the money upon the bond and mortgage, applied to the defendant J. J. Fenton, then a broker of Rochester, to buy the same. Fenton, for the purpose of defrauding the complainant, falsely represented to him that he was the agent of John F. WyckofT of the city of New- York, for the purpose of investing money for him on bonds and mortgages, and that if the com- plainant would make an assignment of his bond and mortgage to Wyckofl'", and leave the same to be forwarded to the lattei, the money would be paid as soon as the necessary searches could be made to ascertain the validity of the title and the suf- ficiency of the security. The complainant accordingly exe- cuted an assignment to Wyckoff, and left it with Fenton to be delivered upon the receipt of the money, after the proper searches should have been made. After waiting some time the com- plainant called upon Fenton for the money, but was put off by him, with various excuses, from time to time, and in the mean- time the complainant had received the second payment upon the bond and mortgage, leaving the amount then due, from the mortgagor, $6000, and interest from the first of April, 1839. Shortly afterwards Fenton made an agreement, in the name of J. F. Wyckoff, who was an infant and with little or no prop- erty, and who had never authorized Fenton to act as his agent m the purchase of bonds and mortgages, to sell the complain- ant's bond and mortgage to the defendants Downer &. Rogers ; one-fourth thereof to be paid in cash, and the residue in French fancy goods, at specified prices which were much beyond the real value of the good^. And Wyckoff, who was ignorant of the fraud which Fenton had practised upon the complainant, in his name, and supposing that Fenton had taken the assign- ment in his name for some honest purpose, consented to exe- cute an assignment of such bond and mortgage upon the sale 1848.J CASES IN CHANGER »'. 45^ Peabody v. Fcnton. which Fenton had made to Downer & Rogers. But as Downer &. Rogers were indebted to the defendants "W. & R. Kelly, it was arranged that the assignment should be made directly to them. Wyckoff accordingly executed an assignment of the bond and mortgage to W. &, R. Kelly, on the 7th of June, 1839 ; and Fenton received the money and goods from Downer Sc Rogers, according to the agreement. He sent the goods to an auctioneer to be sold, and received an advance thereon to their full value. The complainant being ignorant of the fraud that had been practised upon him, and of the sale of the bond and mortgage, again applied to Fenton for the money, on the 5th of July, 1839. At that time Fenton, in connection with some other persons, had organized a fraudulent association under the gen- eral banking law, called The Farmers' Bank of Seneca County. And when the complainant applied for his money, Fenton again put him off with some excuse ; but remarked that the complainant might have heard unfavorable reports of him, but that he was willing to give him security until the money could be procured from Wyckoff for the bond and mortgage. He ac- cordingly filled up and delivered to him for that purpose a cer- tificate for 600 shares of $100 each, in The Farmers' Bank of . Seneca County, which subsequently turned out to be worthless. And he shortly afterwards gave to him two or three drafts and certificates of deposit of the same banking association, which also were worthless, and were never paid. In April, 1840, the complainant heard, for the first lime, of the assignment of the bond and mortgage to W. & R. Kelly, and that their attorney had received from the mortgagor $1320 of the payment of prin- cipal and interest which became due upon the first of that month. He thereupon filed his bill in this cause, against the assignees and against Fenton and J. F. Wyckoff, and also against The Farmers' Bank of Seneca County, and John Wyckoff, who was the president thereof. He afterwards as- certained that Downe: & Rogers had procured the assignment of the bond and mortgage to the Kellys, under the purchase made by 'he former from Fenton through the medium of a 454 CASES IN CHANCEIir. [June 2S, Peabody o. Fenton, broker employed by him to negotiate the sale thereof; and he thereupon amended his bill, by stating that fact and making Downer & Rogers also defendants in the suit. The cause was heard before the vice chancellor upon pleadings and proofs as to W. & R. Kelly and Downer & Rogers, and upon the bill taken as confessed as to the other defendants. He decided and decreed that the assignment from the complainant to J. F. Wyckoff, and the assignment of the latter to the Kellys, were fraudulent and void as against the complainant. The decree also directed W. & R. Kelly to reassign the bond and mortgage to the complainant, and to refund to him the amount they had collected upon the bond and mortgage, with the interest thereon ; that the complainant should transfer to them his interest in ihi certificate of stock, and in the drafts and certificates of deposit of the Farmers' Bank of Seneca County, given to him by Fenton. G. H. Mumford, for the appellants. The defence resti substantially upon two points. 1. A question of fact, whether we have made out that the defendants are bona fide purchasers without notice ; and 2. A question of law, whether as bona fidfl purchasers the defendants' equity is superior to the complain- ant's. We suppose that the Kellys stand precisely in the situ-, ation of Downer & Rogers, and that if the latter were bona fide purchasers, the former must occupy the same position. Were I^owner & Rogers, then, bona fide purchasers? The answers of the defendants fully deny all notice or suspicion of the fraud charged in the bill ; but their answer on oath having been waived, this furnishes no testimony. It however puts the fact of their want of notice distinctly in issue, and throws the bur- den of proof upon the complainant. (2 Edw. Rep. 259. Hop. Rep. 48. 8 Cowen, 361.) The complainant has introduced no direct testimony on this subject, showing notice to the de- fendants ; but the fact of such notice is disproved, so far aa such' a fact can be disproved. John F. Wyckoff, a witness for the complainant, testifies that he does not know the Kellys, and that he had no acquaintance with Downer & Rogers previous 1848.] CASES IN CHANCER V. 455 Peaboily v, Fenton. to negotiating this bond and mortgage. He had no conversa- tion with Downer &, Rogers about this sale, previous to the as- signment, and never heard any thing from them indicating a knowledge of the purposes for which Fenton held the bond and mortgage. Nathaniel S. Jacob, a witness for the complainant, went to Downer & Rogers' store to look at the goods, for which the bond and mortgage were in part sold. Saw Downer, bu had no conversation with him,, nor did Fenton or Wyckoff ai that time. Henry P- Hoyt, a witness for the defendants, was employed by Fenton and Wyckoff to negotiate the bond and mortgage. Witness was but slightly acquainted with Downer & Rogers, having had but one previous transaction with them. He took Fenton and Wyckoff to Downer «fc Rogers and intro- duced them. They were previously strangers. There is then no direct testimony to throw a shade of suspi- cion over the denial of the defendants in their answer, of all no- tice of fraud. When there exists only a suspicion of notice, equity will not act upon it. {Eyre v. Dolphin, 2 Ball Sf Beat. 290.) The only possible ground upon which the complainant's counsel can urge a constructive notice to the defendants arises from the fact that the goods which formed part of the consid- eration for the bond and mortgage, were sold by Downer « Vol. III. 58 458 tfASES IN CHANCERY. fJuBESf^ Peabody v. Fenton. acquired through a felony. {Andrews v. Dieterich, 14 Wend, 31.) It is not pretended that the obtaining of goods or property upon false pretences is a felony at common law. {Morey v. Walsh, 8 Cowen, 238.) The statute, it is said, works the change. If it did, it could only have been by a technical and forced con- struction, that the consequences claimed would have flowed fr n it ; and the argument may be met by one equally literal aim technical. We say then that the statute does not in terms declare this a felony. The statute (2 R. iS. 677, § 53) subjects the offender to imprisonment in a state prison, but does not de- clare the offence a felony. And it (2 R. S. 702, § 30) defines the meaning of the word felony only when used in that act oi any other statute. It leaves then all offences, except such as are declared by statute to be felonies, as they were' at com- mon law, and this amongst others. But there is another rule that comes to our aid here. An offence shall never be made felony by construction of doubtful or ambiguous words of a statute. (Barb. Cr. Law, 18.) Therefore, if it be prohib- ited iinder pain of forfeiting all that a man has, (a forfeiture of lands and goods being the criterion of a felony at common law,) or of forfeiting body and goods, (fee. it shall not amount to a felony. All penal statutes must be strictly construed. Admitting, however, that the legislature by fair interpreta- tion intended to baptize this offence a felony ; there is no rea- son to believe that they contemplated, by that act, any change in the civil rights of the citizen, not cognizant of or tainted with the offence. It is obvious from the revisers' notes on the section of the revised statutes referred to, (3 R. S. 836, § 30,) that no such idea entered into their minds; but that the object was sim- ply to give a definite meaning to a word used in the statutes, and which without this section had become vague and indefi- nite. It would be highly improbable, therefore, that the legis- lature should have intended to go beyond the letter of the law, and have changed the law by imphcation and inference. And without the very respectable opinion ofC. J. Savage, in An- drews v. Dieterich, (14 Wend. 31,) would seem to require but little argument. It has been held repeatedl}' by the suprcma ;84S] CASES IN CHANCEUY. 459 Peabody v. Fenton. court, that \vhen the law is settled, a change in the phraseolog'y of the statutes shall not work a change in the law, unless the intention to work such chariige clearly appears. (2 Cain. Cas. Er. 143,151. 4 JoAw. 317, 359. 21 Prenrf.316,319. 2 Hill,Zm.) Here an entire revolution in civil rights is to be effected, by a change in the statute, which would not probably have been sug- gested to the mind of a single member of either house of the legis- lature, had the whole 160 members been lawyers. Here a penalty is sought to be imposed upon the defendants, which cannot be done by implication. {Jones v. Estis, 2 T. R. 379. Myers v. Foster, 6 Conn. Rep. 567.) Chief Justice Savage, in Andrews v. Dieterich, seems to think there is no reason for the distinction between a felony and a fraud, in tliis respect. But it seems to us that the distinction is obvious and supported by sound reasoning. A party losing his property without his con- sent, is in no way answerable for the fraud committed upon a bona fide purchaser. If he parts with his property voluntarily, although deceived, he has by his own imprudence enabled the fraudulent vendee to cheat the subsequent purchaser, and should therefore sustain the loss. (2 Paige, 169, 172.) In this case there were acts, on the part of the complainant, previous to the transfer to the defendants, calculated to give currency to the securities, and to induce purchasers to buy, which should preclude him from contesting the rights of a bona fide purchaser, and which would cut off the rights even of the original debtor. I allude now not only to his delivering posses- sion of the bond, mortgage and assignments, but also furnish' ing JPenton with searches, evidence of title, certificates of value, affidavits as to incumbrances, (fee. ; in short, arming him with all the implements to show a perfect title in himself, and to de- ceive and defraud others. In the case of K.e?np^s Ex'rs v. Mc- Pherson, (7 Har. ^ John. 320,) a purchaser of land subject to legacies, who gave his bonds for the purchase money, which were assigned and judgments recovered thereon, was denied rehef; on the ground that he knew of the charge when he gave the bonds, and ushered them into the world without any inti- mation on their face that they were subject to charge. So also 460 CASES LN CHANCERY. [June 1^8 Peabody ». Fenton. at law, a party shall be concluded by admissions, or conduct, upon which others have been induced to act, where, if he were permitted to prove such admissions or conduct false, it would operate as an injury to the persons misled by them. (I Cowen Sf Hill's Notes to Phil. Ev. 199.) Again'; the complainant, by his own acts, after the transfer of the bond and mortgage to the defendants, relinquished any claim he might have otherwise had thereto, and ratified the sale to them. In order to charge the complainant with having ratified the sale to the defendants, it must appear that he had actual or constructive notice of it. We suppose this appears with sufficient certainty. The assignment of the bond and mortgage from Wyckoff' to the Kellys was dated June 7, 1839, and was recorded in Genesee county July 29, 1839, and in Monroe county October 7, 1839. We claim that the record i^ notice to Peabody, the statute only excepting the case of the mortgagor making payment to the mortgagee without notice. (1 R. S. 756.) The facts disclosed in the bill and proofs are abundantly sufficient to put the complainant on inquiry ; and this, in equity, is equivalent to actual notice. 1 Paige, 461. 4 Cowen, 717. 7 Conn. Rep. 324.) The following were acts of ratification : On the 5th of July, 1839, the complainant ac- cepted and received from Fenton a certificate of sixty shares of stock in the Farmers' Bank, as security for his money. On the 28th of August he went to Romulus. to obtain money ; saw Fen- ton and demanded, not his bond and mortgage, but his money. On that occasion Fenton proposed to give him a draft for $1500; he took the draft, which was at sixty days and with- out previous acceptance. On the 23d of October the complain- ant again applied to Fenton for his money. Fenton made various excuses, and offered him a draft and certificate of deposit for $440, payable in four months, and a draft on New-York for $1169,20 at sixty days. On the 30th of December, in the same year, he again went to see Fenton at Romulus, and informed him that the drafts had been protested. He makes no demand of his bond and mortgage, but is attempting to secure some- thing on account of it. Fenton promises him the m>ney in »&«.j' CASES IN CHANCERY 46. Peabedy ■!?. Fenton. twenty days. The complainant subsequently made several journeys to Romulus to obtain his money, but was delayed under various pretences until April, 1840. The complainant prepented his drafts and certificate of deposit, which became due from October to February, and took all legal measures to charge the parties. If the complainant is chargeable with notice, then slight proof of acquiescence on his part will be sufficient to con- clude him. {Story on Agency, 247, et seq. 2 Salk. 442. Smith V. Calsgan, 2 T. R. 188, note. Cornwall v. Wilson, 1 Ves. 509. Codwise v. Hacker, 1 Caines, 526. Towle v. Stevenson, 1 John. Cas. 110. Armstrong v. Gilchrist, 2 Id. 424. 12 John. Rep. 300. 2 Mass. Rep. 106. 13 Id. 361.) In Trowbridge v. Beach, in the supreme court (not reported) the defendant's acceptance had been fraudulently put in circulation by Hudson. The defendants learning the fact, applied to Hud- son for security and obtained partial security. They were held to be concluded, in the action upon the bill, brought by the plaintiff, who had received it from Hudson and without paying value at the time. ^ M. F. Delano, for the respondents. The assignment of the bond and mortgage executed by the complainant to John F. Wyckoff, was procured by the false pretences of Fenton. And the title of Downer &, Rogers to the Kellys, being acquired by the commission of a felony, was null and void, even if the persona last named had acquired the securities in good faith and for a full consideration. The delivery of the assignment of the bond and mortgage by the complainant was not absolute, but for a special purpose ; jnd that delivery being procured by re- presentations, which if not felonious were grossly fraudulent, the holders of such securities are not entitled to retain them aa against the complainant, although they may be bona fide pur chasers, without notice. But neither the Keliys nor Downer &, Rogers are bona fide purchasers for a full consideration, and without notice, express or implied, of the rights of the complain- ants. 1st. Because they derive their title, upon the face of the assignment, from the complainant, through Wyckoff, and are 462 CASES IN CHANCERY. \3vTiz 28 Peabody u.^Fenton. to be charged wilh all the defects of that title ; 2d. Because they did not purchase in the usual course of trade and for a full consideration ; and 3d. Because the circumstances under which the securities were obtained were such as to induce a prudent man to suspect an adverse claim. The decree of the vice chan- cellor should therefore be affirmed with costs. The Chancellor. There can be no doubt, from the evi dence in this case, that Fenton obtained the assignment of the bond and mortgage, from the complainant, by false pretences ; amounting not only to a gross fraud but also to a felony, under the provisions of the revised statutes. And the complainant did no act to ratify that transaction after he was aware of the fraud. It also appears from the testimony that Downer &, Rogers, even if they had no reason to suspect some unfairness in the transaction, so as to make it their duty to inquire of the assignor whether Wyckoff was the real owner of the bond and mortgage, paid in money and property, at the extent, thirty per cent less than the amount actually due upon the bond and mortgage. If' they were entitled to protection, therefore, aa bona fide holders and purchasers without notice, they, or those to whom they procured the transfer to be made in payment or security for an antecedent debt, could not in equity be permit- ted to retain the bond and mortgage for the full amount due thereon ; but only to the extent of the value of the property, dec. which was paid for the same. The vice chancellor has placed his decision solely upon the ground that the obtaining of the assignment from the com- plainant, with intent to defraud him, is a felony by the revised statutes.' In the case of Mowry v. Walsh, (» Coweti's Rep. 238,) whicli was decided before the adoption of the revised stat- utes, the supreme court held, in conformity with my decision at the circuit, that where the purchase of goods was obtained by false pretences, and by means of a fprged recommendation of ttie character and responsibility of the purchaser, but not feloni- ously, a subsequent bona fide purchaser of the goods, from tha fraudulent vendee, for a full coisideration. and without notice 18i8.1 CASES IN CHANCERY. 403 Feabody v. Fenton. of the fraud, was entitled to hold such goods as against ihc nrjgioal owner. That decision was based upon the principle thav where one of two innocent persons must necessarily suffer by the Wi'ipgful act of a third person, the loss should fall upon the one of t; "n who by his own voluntary act or negligence has enabled the wrongdoer to produce the injury. At the time that decision was made, the obtaining of money or goods by false pretences, with intention to defraud the owner, was a crimi- nal offence punishable with imprisonment in the state prison, ot iu the county gaol, in the discretion of the court. But it was not a felony at the common law ; nor had it then been made a fel- ony by statute. A similar decision was made by the court of king's bench in England, in the case of Parker v. Patrick, (5 Term Rep. 175;) where the obtaining of money or goods by false pretences was punishable by transportation, or by tine or imprisonment, in the discretion of the court. But the revised statutes having declared all offences which render the offenders kable to imprisonment in the state prison to be felonies, the su- preme court subsequently held that the power of the fraudulent • jendee to transfer a valid title to the property, to a bona fide pur- thaser without notice of the fraud, no longer existed. [Andrews V. Dieterich, 14 Wend. Rep. 36.) I am inchned to doubt wheth- er this is a correct view of the operation of this provision of the revised statutes. For I apprehend that the principle upon which the decisions in Mowry v. Walsh and Parker v. Patrick were sustainable, was not the mere fact that the offence which the first vendee of the property had perpetrated, in obtaining it, was not technically a felony ; but that the possession of the property and the apparent ownership thereof, by such vendee, was the voluntary act of the original vendor, and that the latter had not lost the possession by theft or robbery. Without expressing nny definite opinion upon this question, however, I think the decree appealed from is sustainable upon other grounds. Even in the case of negotiable paper which has been lost by the owner, or which has been obtained from him by fraud or by larceny, the holder thereof cannot retain it, as against the right- ful owner, where he received it under circumstances which were 464 CASES IN CHANCEIIY, \_hiSB »i Peabody v. Fenton. calculated to throw a suspicion upon the right of the person from whom he received it to dispose of it as his own. Pureiias- ing a security under such circumstances is gross negligence. Here Downer &, Rogers purchased a bond and mortgage which from the inquiries made by them, they must have known to be perfectly well secured ; and upon which it appeared by the en- dorsements that $2000, and the annual interest, had been paid as the payments became due ; they paying three-fourths of the actual value of these securities in unsaleable goods, at forty per cent above their market value, aud out of the usual course of business. The fact that the pretended owner of these securities was willing to make such a sacrifice, and for articles which hn did not intend or wish to use himself, but which were immedi ately to be sent to an auctioneer to be sold, was sufficient to sat • isfy any reasonable man that the vendor was probably sellinij what was not his own. Downer & Rogers ought not, therefore, to have made the purchase without inquiring from the original assignor whether Wyckoff was in fact the real and bona fide cwner of these securities. Their negligence in not making some inquiry on that subject was at least equal to, if not greater than, the neghgence of the complainant in intrusting an assignment of the bond and mortgage to Fenton, as an escrow, to be de- livered to Wyckoff the supposed purchaser, when the money should be paid by him. The principle upon which the decis- ion in the case of Mowry v. Walsh was based, therefore, was in- applicable to the circumstances of this case. Again ; to protect a party as a bona fide purchaser without notice, he must liave acquired the legal title as well as an equi- table right to the property. That was the case in Mowry v. Walsh and in Parker v. Patrick. For in each of those cases the original owner of the property had made an absolute sale thereof, which sale had been consummated by an absolute de- livery to the purchaser. And the sale, although voidable by the vendor, at his election, on account of the fraud, was still valid vmtil rescinded by him. It was therefore like the case of a con- veyance of land obtained by fraud, which is also voidable at the election of the grantor ; and where (he fraudulent grantee has the 184S.] CASES IN CHANCERY. 4(35 Peabody v. Fenton. power to transfer a valid title to a bona fide purchaser without notice of the fraud. But if such bona fide purchaser has not ob- tained the legal title, by an actual and vahd conveyance, he cannot protect himself against the prior equity of the original owner to rescind the conveyance to the fraudulent grantee; although such bona fide purchaser has a contract for a convey- ance, and has actually paid for the land. ( Wigge v. Wigge, 1 Atk. Rep. 384 ; 1 West's Rep. 680, ^S". C. More v. May- hew, Freem. Ch. Rep. 175. Tourville v. Nash, 3 Peer Wms. 307.) , In the case under consideration there never was an absolute and unconditional delivery of the assignment to Fenton, as the professed agent of Wyckoff. But it was put into his hands to be delivered upon the actual payment of the purchase money. WyckofT, therefore, never was the legal assignee of the bond and mortgage, so as to have a valid title at the election of tha complainant. And as Wyckoff was an infant, and never au- thorized Fenton to act as his agent, there was no agreement on his part to become the purchaser of the bond and mortgage. As an infant, he was also incapable of transferring a valid title to the bond and mortgage to his assignees ; especially as he never in fact obtained any part of the consideration which Fen- ton received upon ihe sale to Downer &, Rogers. Even if the legal title to a mere chose in action was capable of being trans- ferred by assignment, therefore, these supposed transfers were insufiicient for that purpose. I The legal title as well as the prior equitable right to this bond and mortgage being in the complainant, he was entitled to the relief granted by the vice chancellor. The decree ap pealed from must therefore be affirmed, with costs. Vol. III. 59 466 CASES IN CHANCERy. ' hns M Cromer vs. Pinckney and others, executors, (fcc. As a general rule, a legatee may sue the executor, for his own particular legacyj without making the residuary legatees, or anjr other legatees, parties to the suit. AlUcr where one of the residuary legatees sues for his share of the residue; an itccount of the estate being neces3ary,~in that case. Where a suit is brought for the recovery of a particular legacy, which suit, if suc- cessful, will reduce the fund bequeathed to the residuary legatee, the interest of the latter will be protected by representation ; the executors representing the re- siduary estate and those interested therein, for the purpose of protecting it against all prior claims upon it which might diminish its amount. The declarations of a testator, made after the execution of his will, cannot be received as evidence of what he intended by the terms nephews and nieces. How far the situation of the testator's family relatives may be taken into considera- tion for the purpose of giving a construction to the doubtful clauses in his will. As a general rule in the construction of Wills, the testator must be presumed to have used words in their ordinary or primary sense and meaning ; unless from the con- text of the will it appears that he intended to use them in some other or secondary meaning ; or where, by reference to extrinsic circumstances, which existed at the time of making the will, or which must necessarily exist in the event or at the time contemplated by him, the use of such words in their ordinary or primary sense would render the provision of the will in reference to which such words were used insensible, absurd, or inoperative. Thus the word children, in its primary and ordinary sense, means the immediate le- gitimate descendants of the person named. And where there Is nothing to show that the testator intended to use it in a different sense, it will not be held to include illegitimate offspring, step-children, children by marriage only, grand-children, or more remote descendants. The words nephews and nieces, likewise, in their primary and ordinary sense, mean the immediate descendants of the brothers and sisters of the person named, and dc not include grand-nephews and grand-nieces, or more remote descendants. Eut where the testator by one clause of his will gave a legacy unto each of his nephews and nieces except J. C who was not a nephew but one of the children cf a deceased nephew; and by another clause he gave to the children of hit nephew J. C. S500; Held that the brothers and sisters of J. C. and other grand- nephews and nieces whose ancestors were dead at the time of making the will, were entitled to legacies ; the will showing that the testator used the words nephews and nieces in an enlarged sense, so as to include all the grand-nephews and nieces whose parents were dead. HsW also, that upon the ordinary rules of construction, parents and children could not both take, under the description of the testator's nephews and nieces, but only the parents who VI ere living, and those grand-nefheWs and nieces whose parent «ras dead. 1648.. CASES IN CHANCERY, 457 Cromer v. Finckaey. This was aa appeal from a decree of the vice chancellor of the first ckcuit, settling the construction of the fourth clause of the will of Peter Marks deceased, and authorizing the defen- dants, as executors of the decedent, to pay to the complainant and others their several legacies of $500 each, in conformity to that construction. Peter Marks, the testator, died in March, 1845, leaving real estate, and personal property of the value of about $23,000 over and above his debts. He died without issue ; and his collateral relatives at the time of his death were as follows : John Marks his brother, Catharine Emerson a niece who had three children at that time, G. W. Marks a nephew ; Nicholas Cromer, John Cromer, Anthony Cromer, and Mary Carpenter, who were the giand-children of the testator's deceased sister Ehzabeth, by her oldest son Nicholas Cromer who was then dead; and Val- entine Killerman, John Killerman, and Mary Elizabeth Killer- man, who were also grand-children of the testator's sister Eliz- abeth, by her deceased son Valentine Killerman. The testator also left a great grand-niece, Mary Elizabeth Ferris, who was the only child of a deceased daughter of his deceased nephew Nicholas Cromer, the father of the complainant. The testator also had a sister Catharine, who, many years previous to his death, moved to the west ; and who when last heard from was in Canada. But whether she was living at the time of the death of the testator, or how many children she then had, the parties to this suit had not ascertained. By the will of the testator, which he executed but a few days before his death, he gave certain pecuniary legacies to persons who were not his relatives, and made some dispositions of parts of his property which it is not necessary here to men- tion. And he gave the use or income of his real estate, for life, to his brother John, who was then under the caie of a commit- tee ; and directed that the same should be sold, after his broth- ei-'s death, and that the proceeds thereof should be divided among all the heirs and next of kin of the testator. He also made a similar disposition of his residuary personal estate, The third, fourth, and tenth clauses of his will were as follows : 468 CASES IN CHANCERY. [June 2« Cromer v. Pinckncy. ^ Item third. I will and bequeath unto the children of my sister Catherine each five hundred dollars. Item fourth. 1 will and bequeath unto each of my nephews and nieces, five hundred dollars ; excepting John Cromer. Item tenth. I wilJ and bequeath unto the children of my nephew John Cromer, five hundred dollars.'' The complainant claimed that under the fourth clause of the will he, as a grand-nephew of the testator, was entitled to a legacy of $500 ; and that the testator intended to include him and his brother and sister, under the terms nephews and nieces. The bill stated that the testator, after the making of his will, in speaking of its provisions to the wife of one of his executors, said that he had left the Cromers $500 each. This fact was admitted by the answer of the defendants ; but they insisted it was not admissible as evidence to change the legal construction of the will. It was also charged in the bill, and admitted in the answer, that the complainant and his brother Nicholas had at different times resided with the testator, and had always been treated by him as near relatives. The cause was heard before the vice chancellor upon bill and answer. He decided and declared, by his decree, that G. W. Marks and Catharine Emerson, the nephew and niece of the testator, who were living at the time of the death of the testator, and all the grand-nephews and nieces of the testator the descendants of the testator's sister Elizabeth, and also his great grand-niece, all of whose ancestors, of the testator's blood, were dead at the time of making the will and at his death, were entitled to legacies of $500, according to the true mean- ing and construction of the fourth clause of the will ; except John Cromer one of those grand-nephews, who was in t^rms excluded. And he decided and declared that the grand-nephewa and nieces, who were the children of his niece Catharme Emerson, who was herself alive and entitled to a legacy under • hat clause of the will,, were not entitled to legacies. The de- cree therefore authorized the defendants to pay those lega- cies, according to that construction of the will ; and directed the costs of both parties in the suit to be paid out of the -esidu- ■848.| CASES IN CHANCERY. 4Q(j Cromer v. Pinckney ary personal estate in the hands of the executors. Frore. thia decree the defendants appealed to the chancellor. Geo. Wood, for the appellants. The vice chancellor erred in making any decree in the cause ; the proper parties not be- ing before the court. [Russell v. Clark's Ex'rs, 7 Cranch, 72. Colt V. Lasnier, 9 Cowen, 320.) John Marks, and in fact all persons who were legatees, or might be so considered under tiie will, ought to have been made parties. The respondent is not entitled to the legacy of $500, claimed under the fourth clause of the will of the testator Peter Marks. Because (1.) He is not a nephew of the testator. (2.) Because there are persons in esse answering the description in the will; and the court cannot construe the same so as to let in any persons not within the terms. (Fowler v. Kemp, 5 Har. ^* Johti. 135. Gardner v. Hyer, 2 Paige, 11. Reeves v. Brymer, 4 Ves. 698 ; 1 Ves. sen. 196. Shelly v. Bryer, 1 Jac. 207. Doughty v. Cutter, 23 Wend. 513. Cutter v. Doughty, 7 Hill, 305.) (3.) Because such a construction would let in great nephews and nieces to take equally with their parents, viz. Mrs. Emerson and her children, &c. {Radcliff v. Buckly, 10 Ves. 195. Cutter v. Doughty, 7 Hill, 305.) The parol declaration of the testator to Mrs. Bowers is not admissible as evidence in the cause. Be- cause (1.) It goes to contradict the will, and cannot be received for that purpose. {Mann v. Mannas Ex'rs, 1 John. Ch. Rep. 231 and cases cited.) (2.) Because it is not shown to have been made contemporaneously with the d rawing of the will. [Nourse V. Finch, 1 Ves. jun. 359. Duke of Rutland v. Duchess of Rutland, 2 Peer Wms. 158.) (3.) Because it is alleged to have been made after the will was, executed. (1 Mad. Rep. 438.) (4.) But if admitted as evidence in the cause it does not help the respondent's case. Because a part of such declaration is shown to be uitrue by the will itself, viz. in regard to the testator not having given any thing to his niece Mrs. Emerson. {Strode v. Rus.fdl, 2 Vera. 625. Trimmer v. Byrne, 7 Ves, 519. Roberts on Wills, Land. ed. of 1809, pp. 454, 455 ; ed. of 1S15, vol. 2, p. 46 ; ed. of 1826, pp. 586 to 588.) The decree 470 CASES IN CHANCERY. [June 29 Cromer v. Pinckney. of the vice chancellor ought to be reversed, and the bill dis- missed with costs ; or at all events the decree should be so n:!odified as not to let in any of the great nephews or nie'^es, but the Cromers by name. A. Thompson, for the respondent. The decree from which the appeal is taken gives the true construction to the fourth clause of the will. The construction is according to the intent of the testator. (10 Fes. 195. 3 Ves. 6/- Beames, 69.) The third clause of the will provides for the children of the testator's sister Catharine ; and it is repugnant to law, that they should also take under the fourth clause by the name of nephews and nieces, and thereby take double legacies. The fourth clause provides for nephews and nieces, (of which he had only a nephew and niece, Catharine's children, if any, being provided for,) unless grand nephews and nieces came in, of whom John Cromer was one. The tenth clause again names John Cromer as a nephew, and gives the legacy taken from him in the fourth clause, to his children. The testator, on the face of the wih declared that John Cromer was a nephew; and his children take under that clause, as children of a nephew. The com- plainant and his brothers and sisters lived in the testator's family, and he always treated them as near relatives. (3 Cowen cj- HilVs Notes, 1374. 1 Edw, Ch. Rep. 189.) The fourth and tenth clauses show that the testator, by excluding John Cromer, and giving his cliildren $500, a nephew's portion, did not intend that parents and children should both take under the designation of nephews and nieces* and therefore the de^ cree properly excludes the children of Catharine Emerson, the testator's niece, from a legacy under the fourth clause. The fourth and tenth clauses also show that the testator intended that Elizabeth Ferris, the infant daughter of Catharine Ferri^ deceased, who was the sister of John Cromer and the ccm- plainant, should receive a legacy of $500, under the designation of niece ; it appearing to be the intention of the testator to give Bomething to all his relatives. (23 Werid. 522. Ambler, 555.) The decree is also well supported by decisions. The word '"48.1 CASES IN CHANCERY. 47] Cromer v. Finckney. childrwi does not include grandchildren, unless the word is used as synonymous with issue or descendants, or unless the word must of necessity be extended to prevent the will's failing of effect. (1 Edw. Ch. Rep. 354. 7 Paige, 328. 1 JEdiv. 41. 8 Paige, 375. 23 We7id. 513. 10 Ves. 195. 3 Ves. 6r Beames, 69.) But we find another class of cases where on the face of tne will the words child, grandchild, nephew or niece, show a clear intention of including persons more remote ; and then the words take an artificial meaning. (23 Wend. 522.) Such cases generally begin and end with the particular clause, where the word is used. Such is this case. The words nephews and nieces are used" only in the fourth clause of the will, and the word nephew only in the tenth clause of the will, and in both of which John Cromer, the brother of the petitioner, is clearly named a nephew. The children of Catharine, the testator's sister, having been provided for in the third clause of the will, nephews and nieces could not be found, unless grand nephews and nieces should be included. (23 Wend. 522.) Again ; the testator cannot be considered ignorant of the class from which he excluded John Cromer in the fourth clause; nor can it be inferred that he intended, by the tenth clause, to provide for John Cromer's children only ; and cut off his grand- nephews and nieces, and the infant, Elizabeth Ferris. There is another class of cases, similar to the present, in accordance with which the decree appealed from was made, and which are decisive of this appeal. In Hussey v. Dillon, {Amb. 603,) various bequests were made to grandchildren and great-grand- children ; the residue was bequeathed to grandchildren. There the calling a great-grandchild a grandchild, was deemed con- clusive, and let in the whole class of great-grandchildren. In Shelly V. Bryer, (1 Jacob, 207,) the testator gave the residue of his estate, after the death of his sister, &c. to his nephews and nieces then living. Subsequently, by a codicil, he gave t« his infant niece, (who in reality was a grand-niece,) Harriet fcshelly, £500, at one year after his decease, over and above her share after the deceac'.e of his sister, in the body of his will treated of more at large. Harriet Shelly commenced her sail 472 CASES IN CHANCERY. [June 29 Cromer v. Pinckney. for the £500. Under the decree in the cause, the master had taken the accounts of the testator's estate, and had made the necessary inquiries as to the state of his family ; and the cause came on for further directions. The counsel for Harriet Shelly contended that the fund was divisible between the testator's nephews and* Harriet Shelly, she being specifically named in the codicil as one of the persons to take. The counsel for the great-nephews and nieces contended that they were entitled to share equally with the nephews, on the authority of Hussey v. Dillon. The master of the rolls observed that it was a diffi- cult case ; that though the codicil must be taken with the will, yet it was not actually the same as if it formed part of it ; and fhat he considered that the testator was writing from recollec- tion of his will, and had mis-recollected it; but that the diffi- culty was that if the words were to be extended to Harriet Shelly, the same must be done as to the other great nephews and nieces, and both classes, including parents and children, must take together under the same denomination ; and there- fore he excluded her and the grand-nephews and nieces from sharing the residue equally with the nephews and nieces. The principle of this case is the same as held in 1 Edwards, 41 ; 8 Paige, 375, and 2^ Wend. 522, that though persons may take under an artificial description under some clauses of a will, yet such fact will not necessarily enlarge the signification of-other parts of the will. All these cases sanction the authority of Hussey v. Dillon, and show that the term nephew and niece being used with the intention of including persons more remote, take an artificial meaning : and are held to mean — when a construction of the particular clause where the word is used is sought, (as in this case) — to include such more remote persons. Thus " children" have been held to include grandchildren ; and even great-grandchildren ; and have even been extended to the remotest of the livirig descendants. (4 Vesey, 437. Ambler, 555, 681. 23 Wend. 522.) Shelly v. Bryer did not follow Hussey v. Dillon, though it sanctioned it, because the word upon which the construction of the will was sought to be extended was in the codicil only ; conceding that if the expression had been in 1848.] CASES IN I HANCEUY. 473 Cromer v. Pinckney. tlie body of the will; all the great nephews and nieces would have come in. But in our case the words nephews and nieces except John Cromer, are in the very section to be passed upon. Upon authority there cannot be a doubt that the decree is right as to all therein stated to be entitled to a legacy. The decree in favor of Elizabeth Ferris, the infant daughter of Catharine Ferris, late wife of Jacob Ferris, is also well sup- ported by authority. Elizabeth's mother was the sister of John Cromer and Anthony Cromer the complainant. The testator evidently intended, under the fourth clause of his will, to pro- vide for all his collateral relatives, except John Marks and the descendauis of his sister Catharine. The disposition of the residuum of the real estate, by the second clause of the will, and of the residuum of the personalty, by the eleventh clause of the will, show that he intended all his relatives should be provided for, and therefore the infant Ehzabeth should be in- cluded by force of 1 Ves. sen. 196; Ambler, 555, and 2 Bro. C. C. 125. Surely this court, which should protect this infant and half orphan, "and whose father is too poor to pay for looking after her interest, will not be astute to leave her the only rela- tive who receives nothing under the testator's will. The com- plainant did not, by his bill, claim this legacy for said Elizabeth Ferris. The vice chancellor has named her as entitled to a legacy of $500. The appeal is from the whole decree, and Elizabeth Ferris' legacy is not the subject of a specific appeal. The com- plainant's counsel has felt himself bound to attempt to preserve ' it to her ; and there appears to be no good reason to reverse the decree on her account. The executors were the only ne- cessary defendants, the fund being ample ; and John Marks being a lunatic and then without a committee, need not to have been a party in any case. The defendants also demurred to this bill for want of parties, which was overruled October 16, 1845, and no appeal has been taken from that order. (3 John. Ch. 553. 4 Id. 199. 1 Id. 438. 1 Paige, 270. 2 John. Ch. 245.) Vox,. III. 60 474 CASES IN CHANCERY. IJi-ttn Z9 Oromer v. Pinckncy. The Chancellor. The objection that the residuary lega tees and all other persons who wei'e er^titled to legacies unde^ the will should have been made parties to the suit, was not made in the answer of the defendants. It was too late, there- fore, to make it at the hearing ; even if the objection would have been valid if made in the answer, or by a demurrer to the complainant's bill. I think, howeverj all the necessary parties were before the court to enable the complainant to claim hia general legacy under the fourth clause of the will. The bill showed that no account was necessary ; and as a general rule a legatee may sue the executor for his own particular legacy without making the residuary legatees, or any other legatees, parties to the suit. The case is otherwise where one of the residuary legatees sues for his share of the residue. For as an account of the estate must be taken in that case, the executor may insist that the other residuary legatees shall be brought before (he court ; to save him the trouble of accounting, a second time, at their suit. [Pritchardv. Hicks, 1 Paige's Rep. 270.) It is true the particular legacy claimed, if Allowed, will reduce the fuhd bequeathed to the residuary legatee, who is therefore interested in the question. But this is one of those cases in which the interest of the residuary legatee is protected by rep- resentation ; the executors representing the residuary estate and those interested therein, for the purpose of protecting it against all prior claims upon it, which might diminish its amount. [Calvert on Part. 20. Wainwright v. Waterman, 1 Yes. jun. 313. Anon, 1 Vern. 261. Lawson v. Baker, 1 Bro. C. C. 303.) I Th^ declarations of the testator could not be received, as evi- dence of what he intended by the terms nephews and nieces. But the situation of the testator's family relatives, and the fact that these grand-nephews and nieces, together with the child of the complainant's deceased sister, were at the time of the making the will the only representatives of the testator's d e- ceased sister Elizabeth, are proper to be taken into considera- tion, in connection with what appears upon the face of the willj ISf4S.1 CASES IN CHANCERY. 475 Cromer v. Pinckney. for the purpose of giving a constructioa to the fourth clause, and to ascertain what the testator meant. As a general rule, in the construction of wills, the testator must be presumed to have used words in their ordinary or pri- mary sense and meaning ; unless from the context of the will it appears that he must have intended to use them in some other, or secondary sense ; or where by reference to extrin- sic circumstances which existed at the time of making of the will, or which must necessarily exist in the event or at the time contemplated by him, the use of such words in their ordinary, or primary sense, would render the provision of the will in ref- erence to which such words were used insensible, absurd, or inoperative. Thus the word children, in its primary and ordi- nary sense, means the immediate legitimate descendants of the person named. And where there is nothing to show that the testator intended to use it in a different sense, it will not be held to include illegitimate offspring, step-children, children by marriage only, grandchildren, or more remote descendants. {Radcliffe v. Buckley, 10 Ves. 195. Earl of Orford v. Church- ill, 3 Yes. ^' Bea. 69. Izard v. Izard's Ex'rs, 2 Desaus. Rep. 309. Gardner v. Heyer, 2 Paige's Rep. 1 1 Hussey v. Berke- ley, 2 Eden's Rep. 194.) The words nephews and nieces, lijjewise, in their primary and ordinary sense, mean the im- mediate descendants of the brothers and sisters of the person named ; and do not include grand-nephews and grand-nieces, or more remote descendants. {Falkner v. Butler, Amb. Rep. 514. Shelly v. Bryer, Jacob's Rep. 207.) But there are sev- eral circumstances, in the case now under consideration, from which it may fairly be inferred that the testator, in the fourth clause of his will, used the words nephews and nieces in a sec- ondary sense; so as to include the more remote descendants of his sister Elizabeth, except her grandson John Cromer. The fact that the testator excepts John Cromer by name, be being a grand-nephew only, from the class of nephews and nieces to whom he gave legacies of $500 each, and that he also gave a pimilar legacy to his children collectively, by the description of Ihe children of his nephew John Cromer, very clearly shows he 476 CASES IN CHANC-SRY [Jume 29' Cromer v. Pinckney. did not intend to confine his bounty to the immediate descend- ants of his brother and sisters only, in cases where immediate descendants had died leaving issue. Again ; I infer from the bill and answer, though that fact is not stated in terms, that the testator's brother was a lunatic, and had been under the charge of the testator as his commit- tee. The principal part of the estate is given to that brother for life, and after his death it is devised and bequeathed to all the testator's collateral heirs. And the third and fourth clauses of the will appear to have proceeded upon the principle of giving to each of those who were to share in the' ultimate remainder, in the residuary estate, a legacy of $500 in the meantime. The testator therefore, by the third clause of the will, gives to each of the children of his sister Catharine a legacy of $500; aad then, by the fourth clause, he gives to each of his other ne- phews and nieces, except John Cromer, whose children are pro- vided for in the 10th clause, a similar legacy of $500. And as the testator himself showed that the words nephews and nieces were not used in their primary sense, of immediate descendants of brothers and sisters, they were broad enough to reach more remote descendants of his sister Catharine, if any of her children had died, leaving issue. But it would be out of the usual course of construction to give to the children of his sister Catharine double portions, or distinct legacies, under the third and also under the fourth clauses of the will; or to permit both parents and children to take under the description of nephews and nieces of the testator. The vice chancellor was therefore right in holding that the three children of Catharine Emerson were not entitled to legacies, and that she took a legacy, as a niece of the testator, under the fourth clause of his will. I am also inclined to think the vice chancellor was right in deciding that the great-grand-niece of the testator, Mary Eliz- abeth Ferris, whose ancestors of his blood were all dead at tl\e time of making the will, was also entitled to a legacy und( t the fourth clause of the will. But even if the declaration in th<3 decree is wrong in that respect, it cannot be reversed or altered Jipon this appeal; to which that legatee is not a party. The T848.J CASES IN CHANCERY. 477 M lir 1). The Trustees of the Leake and Watts Orphan House. decree, therefore, clearly is not ei-roneous so fai' as the rights of the parties to this appeal are concerned. It must therefore ho aflB -med. with costs. MuiR and others vs. The Trustees op the Leake anu Watts Orphan House and others. A bill, by persons claiming to be next of kin of a testator, against the executors, for en account, making persons claiming an interest in the personal estate, as next of kin, parlies defendants, but alleging that the latter have no right, title, or inter- est in the estate, either as next of kiri or otherwise, is demurrable, as to them. Under the provisions of the revised statutes no one can be liable to account to the next of kin, as an executor of his own wrong. Where persons have received and disposed of the property of a testator, without having been duly appointed his ex- ecutors, or duly authorized to act as such, they are liable to his personal represen- tatives, whenever such representatives shall have been appointed ; but not to persons claiming to be next of kin of the decedent merely. The proper course for the next of kin, in such a case, is to procure the appointment of an administrator, and have a suit instituted in his name, to recover the property trom any person into whose hands it may have come, and who has converted i» to his own use. VPhere it appears that the will of a testator has been duly admitted to probate, so ks io render the appointment of the executors valid, and to give the next of kin a c'aim upon them for the property of the testator not validly and effectually disposed of oy will, such next of kin, in a bill by them against the executors, claiming thiithe decedent died intestate, and asking for an account of the personal estate, are uound to state what the testamentary paper was upon which the surrogate granied letters testamentary to the executors ; so that the court may see whether the testator in fact died intestate as to any part of his personal property. The nrobate of a will of personal property, whether such probate was obtained by a summary or a plenary proceeding, if granted by the proper testamentary court, is conclusive evidence of the due execution of such will ; until such probate has beep called in, or annulled, by such court ; or has been reversed on appeal to the propoi tribunal. fo enable a defendant to take advantage of the statute of limitations, upon demurrer, it must distinctly appear, by the bill itself, that the complainant's remedy is barred by lapse of time. This case came before the chancellor upon demurrers to tha complainants' bi.'l. The complainants claimed to be the onlj' 478 CASES IN CHANCER f. [June 29. Muir V. The Trustees of the Leake and Watts Orphan House. next of kin of the late John G. Leake of New-York, who Aied unmarried and without issue in June, 1827 ; and whose will was established by the court for the correction of errors, upon appeal, in December, 1829. (-Siee 1 Paige's Rep. 348; 4 Wend. Rep. 168, S. C.) The bill in this caCise was filed in August, 1844, by Jennet Muir and twelve other persons, who alleged that they were the grandchildren of Helen Martin, a sister of J. G. Leake's father. And The Trustees of the Leake and Watts Orphan House, the personal representatives of the executors of Leake, who were dead, and Herman Le Roy and William Bayard, together with Alexander Leek and eighteen other persons, who claimed to be interested in the personal estate of J. G. Leake, as his next of kin, were made defendants in the suit. The complainants, in their bill, after stating that they were the only next of kin of Leake, and tracing their pedigree from his deceased aunt, alleged that he died intestate, unmarried and without issue, in 1827, leaving personal estate of the value of more than $250,- 000. They also stated that in 1830 J. Watts and H. Le Roy, both of whom were now dead, under the pretence that Leake, by some testamentary paper, had appointed them his executors, obtained letters testamentary from the surrogate, and possessea themselves of all of his personal estate; that they transferred and delivered a large portion thereof to The Trustees of the Leake and Watts Orphan House, without consideration, an- other large portion to the defendant Herman Le Roy, and an- other to the defendant W. Bayard, also without consideration ; and that such executors appropriated the residue of such per- sonal estate, amounting to more than $50,000, to their own use. The complainants further stated that Alexander Leek and the other eighteen defendants, particularly named, who claimed or pretended to claim an interest in the personal estate of J. G. Leake as his next of kin, had not, nor had either of them, any right to, or any interest in, such estate, either as next of kin or otherwise. The complainants therefore asked for an account of the personal estate of Leake which had come to (he hands and possession of The Trustees of the Leake and Watts 18*8.] CASES IN CHANCERY. 479 Muir V. The Trustees of the Leake aud Watts Orphan House. Orphan House, the executors of Leake, and H. Le Roy and W, Bayard, respectively, with interest thereon, and that the pay- ment thereof might be compelled, by the order or decree of this court, with the costs of the suit; or that the complainants might have such further or other relief as should be just upon the case made by their bill. Nelson Chase, for A. Leek and the eighteen other personi named in the bill as claiming to be interested in the estate of J. G. Leake, as his next of kin, insisted that the complainants, by their own showing, had no right to make his clients parties to the suit ; inasmuch as the bill charged that they had no right, title or interest whatever in the estate, either as next of kin or otherwise. And the chancellor, considering this objec- ' lion as well taken, allowed the deraurrei-, and dismissed the bill as to those defendants ; without hearing their counsel upon the other questions raised upon their demurrer. D. Lord (^ G. Wood, for the Trastees of the Leake and Watts Orphan House, and for the personal representatives of the deceased executors of J. G. Leake. S. Stevens, for the complainants. The Chancellor. The complainants are not in a situa- tion to contest the validity of the will of John G. Leake, which was admitted to probate, so far as respects the due execution of such will. For under the provisions of the revised statutes no one can be hable to account to the next of kin, as an exec- utor of his own wrong. And if J. Watts and H. Le Roy re- ceived and disposed of the property of Leake, without having been duly appointed his executors, or duly authorized to act as such, they are liable to his personal representatives, whenever such shall have been appointed ; but not to the complainants. '2 R. iS. 449, § 17.) The proper course for the complainants, •n that case, would be to procure the appointment of Jin admin- istrator, and have a suit institiHed in his name, to recover tht 180 CASES IN CHANCERY. fJcuE 29, Muir V. The Trustees of the Leake and Watts Orohan House. property from any person into whose hands it may have come ; and who had converted it to his own use. [Babcock v. Booik, 2 HilVs Rep. 181.) On the other hand, if the will of Leake has been duly ad mitted to probate, so as to render the'appointment of the exec- utors valid, and to give the next of kin a claim upon them for the property of the testator which was not validly and effectu- ally disposed of by his will, the complainants were bound to state what the testamentary instrument was upon which tho surrogate granted lettei« testamentary to the executors ; so that the court might see whether Leake had in fact died intestate as to any part of his personal property. The present bill, therefore, is fatally defective, in these particulars. It would be useless also for the complainants to amend their bill in this respect. For, out of the bill, it is well known to the court that the testator's will, which was admitted to probate under the decree of a court whose decision must be considered as binding upon all other tribunals in this state, actually dis- posed of all his personal estate. And as the only question as to the vahdity of the execution of that will depended upon a question of law, there is no probabihty that a different result would be arrived at, even if there was any way in which these complainants could bring the question of the due execution of that will again before the probate court for decision. Although the will in this case had been proved in a plenary proceeding, as between the parties who appeared and contested it in the higher courts, the next of kin, who had no notice of that pro- ceeding, and which occurred before the adoption of the revised statutes, might perhaps have cited the executors to bring in the probate, and to prove the will in a plenary form as to them, in the same manner as they could have done if it had been proved in the common form by a summary proceeding only, had they applied to the surrogate wifhin a reasonable time. That appears to have been almost a matter of course, in the practice of the probate courts in England. And was very proper in our probate courts, until the revised statutes made all proceed- ings to prove wills plenary, in substance, by requiring all parties 1848.] CASES IN CHANCERY. 48] Muir v.. The Trustees of the Leake and Watts Orphan House. interested in opposing the will, to be cited to attend the probate, either by a personal service of the citation, or by a publication ia the public papers. Even in that case, however, if the next of kin have not appeared and contested the will upon the probate thereof, they are permitted to come in within one year and file allega- tions and contest the probate or the validity of the will. (2 R. S. 61, § 30.) But the probate of a will of personal property, whether such probate was obtained by a summary or a plenary proceeding, if granted by the proper testamentary court, is conclusive evidence of the due execution of such will, until such probate has been called in or annulled by such court, or has been reversed on appeal to the proper tribunal. The validity of the will of John G. Leake cannot b% inquired into by this court collaterally, therefore, in any fjym in which the question may be brought before this court b'y an original suit. For this reason it is not necessary to inquire whether the remedy of the complainants, if they ever had any, in this court, would not have been barred by lapse of time. It may be proper to say, however, that although it is alleged in the bill that the executors of Leake obtained possession of his prop- erty, (fee. in or about the year 1830, it does not distinctly ap- pear that it was more than ten years before the filing of the complainants' bill. And to enable a defendant to take advan- tage of the statute of limitations, upon demurrer, it must dis- tinctly appear, by the bill itself, that the complainants' remedy is barred by lapse of time. The demurrers of the Trustees of the Leake and Watts Orphan House, and of the other defendants who have demurred, and whose demurrers were not allowed at the hearing, must be allowed ; and the bill as to those defendants respectively must be dismissed, with costs. Vol. III. 61 . 482 CASES IN CHANCER r. FIdme 2% B. & S. Wakeman vs. Bailey and Davies. h s oseleu and improper to make the counsel of a person a party to a mere 'till of iliscovery aa to papers alleged to fae in his possessitm ; even if the matters inquired of by the bill could be properly disclosed by the counsel, if called as a witness against his client. In ordinary cases, it is only necessary to call upon the client to answer as to the contents of the deeds or papers of which a discovery is sought ; alleging that they are in his hands or in the hands of his attorney or counsel, and thus within his power. And the court, in the absence of any allegation to the contrary, will pre- sume the client can obtain the actual possession, himself, by a proper application to his attorney or counsel. Should that not be the case, however, the proper course is to make the bill of dis- covery against the client a bill for relief against him and his attorney or counsel, by charging that the latter will not deliver the deed or paper to his client, or permit him to ezauiine'it/or the purpose of setting out its contents in an answer ; or thai the client alle{|<^ such to be the fact ; and therefore praying that the defendants may not only J^iover whether the deed or paper is in the hands of the attorney or counsel, but that if it is in the hands of the latter he and his client may be or- dered to produce it, or that the attorney or counsel may be ordered to produce it to his client, so that the latter may set it forth in his answer. A party being bound, in the court of chancery, upon a bill of discovery, or for dis- covery and relief, to produce or discover the contents of deeds and other papers material to the prosecution or defence of the rights of the adverse party, that court, upon a bill properly framed, will give similar relief where the deeds or other papers are alleged to be in the possession of the party's attorney or counsel. This was an appeal from a decretal order of the vice chan- cellor of the first circuit, allowing the demurrer of H. E. Davies, one of the defendants, to the bill of discovery filed in this cause. 'The complainants and B. Vail, who subsequently died, were ■copartners in trade in 1834, and as such copartners had a debt against the defendant Bailey for goods sold to him. After the death of Vail, the complainants brought a suit in the supreme cjurt to recover that debt ; in which suit Bailey gave notice that he would set off a certain draft or treasury warrant upon the Manhatian Company, received of him by Vail, and as the defendant alleged, for himself and the complainants as copart- ners. That suit was referred. And upon the hearing, before the referees, H. E. Davies was the counsel for the defendant Bailey ; and the principal question then in controversy between the paities to that suit was whether the draft or treasury war- 848. J CASES IN CHANCERY 433 Wakeman v, Bailey, rant was passed to Vail upon his own account or as one of the copartners, for the use of the firm ; it having been credited to Bailey upon the copartnership books. The referees reported in favor of the complainants j which report was afterwards set aside and a new trial granted. Upon the hearing before the referees it appeared that when Vail received the draft, or treasury warrant, he gave to the defendant Bailey therefor a note, or due bill, or a certificate, or some other voucher, signed with the in- dividual name of Vail ; which written instrument Bailey or his counsel was requested by the complainants to produce before the referees, but he declined doing so. After the granting of the new trial, the complainants applied to a judge and ob- tained an order, requiring Bailey to make a discovery of the paper, signed by Vail, by producing and depositing the same with one of the clerks of the supreme court. But that order was subsequently revoked, upon the affidavit of Bailey that such paper was not in his possession or under his control. The complainants thereupon filed their bill of discovery, lu this* cause, stating these facts, and alleging further that the firoduction of the paper signed by Vail, or a discovery of the f.xact terms and contents of the same, was material and neces sary to enable thejn to prepare for the trial of their suit in the supreme court ; and that without the aid of this court they would not: bo able, on the trial of that cause, to estabUsh the precise form, nature and import of such paper. They also stated, upon their belief, that the paper in question, if it was not in the actual possession of Bailey, was in the possession or under the control of the defendant Davies ; or that it was so, or within his knowledge and reach, at the time when *he com- plainants applied to the judge for an order to compel a discovery and production thereof by Bailey ; and that if it was not in the possession of Davies at the time of filing the bill in this cause, he knew where the same then was, and how or where or from whom it could be obtained. The complainants therefore prayed (01 an answer to their bill from both of the defendants, except that the defendant Davies was not required to discover or set forth the contents of the paper, any farther than might be ne^ 484 CASES IN CHANCKRY. [June a9 Wakeman o. Bailey. cessary to describe and identify it. They further praj-ed that Bailey might produce or discover the contents of the paper ; and that if either of the defendants should deny that he had the possession of the same, or the control thereof, he might discover and set forth when, where,' or in whose hands he last saw the same, whether it was or had been in his possession, and how long, and when he parted with or last heard of the same ; and that Davies might discover whether he had made any search, inquiry or examination for the said paper, &c. But the bill contained no prayer for relief, being a bill of discovery merely. The defendant Davies demurred to so much of the bill as required him to discover whether the paper in question was ii his possession or under his control at the time of filing the bill, or at the time of the institution of the proceedings against Bai- ley for a discovery before the judge, or whether he knew where it was at the time of filing the bill, (fcc. or whether it was in the possession of Bailey, and whether Davies had not had the same in his possession, &c. And he stated as special grounds of demurrer, that the discovery sought would be a breach of professional confidence ; that he was a mere witness, and could not be called upon to answer a bill of discovery ; and that the joining him in the bill of discovery against Bailey was unneces- sary and improper. A. P- Man, for the appellants. It is the practice of th:£ court to iiake an attorney or counsel party to a bill of discov flry where le has withheld from his client and co-defendant' papers required to be produced or discovered. (^Uare on Discov. 171. Fenwick v. Reed, 1 Mer. 123. Wright v. Mayer, 6 Ves. 280.) It is also the practice of this court to compel an at- torney or counsel to answer as to the existence of a paper of which discovery is sought, and as to its custody and where he last saw it. We do not require him to produce it, or to dis- close its contents. [Hare on Discov. 171, 172. Kingston v. Gale, Rep. Temp. Finch, 259, 260. Rothwell v. King, and Stanhope v. Nott, 2 Swans. 221, note a.) The ends of justice ipquire that this discovery should be made ; and if made it will 1848.] CASES IN CHANCERY". 435 Wakeman i. Bailey. te effectual to the complainants, for upon a motion that tha defendant Bailey produce the paper, the admission of his coun- sel as to the possession of it will be treated as the admission of the client. (Hare on Discov. 173. Wright v. Mayer, 6 Yes. 281. Fenwick v. Reed, 1 Mer. 126,) The discovery now Bought cannot be obtained at law, for a court of law will not compel counsel to produce the paper or disclose its contents ; and testimony of its existense and custody will then be too late to be of any use. (6 Vesey, Boston ed. p. 280 a, note a, and authorities there cited.) H. E. Davies, for the respondent. The discovery sought of the defendant Davies involves a breach of professional confi- ilence, and which he cannot make without a disclosure of the communications made to him as counsel by the defendant Bailey. {Story's Eq. Plead. § 599 to 602. Greenough v. Gas- kell, 1 Myl. 4* Keene, 98. Braid v. Ackerman, 5 Esp. Rep. 119. Wright V. Mayer, 6 Ves. 280.) ' If it was competent for the defendant Davies to make such discovery, he could be ex- amined as a witness in said suit at law, and the aid of this court is not necessary. {Story's Eq. PI. §§ 323, 519. Howe v. Best, 5 Mad. 19. Many v. Beekman Iron Co. 9 Paige, 188, 193.) The discovery could be had at law, and after trial there and decision thereon, that decision cannot be reviewed in this court. It is nowhere averred in the bill that the facts of which dis- covery is sought could not be proved by witnesses. The Chancellor. It was useless and improper to make the counsel of Bailey a party to a mere bill of discovery, even if the matters inquired of by the bill could be properly disclosed, by the respondent, if called as a witness against his client. It is true the case of Kingston v. Gale, {Rep. Temp. Finch, 259,) and several othei' early cases before Lord Nottingham, referred to in the note to Par khurst v. Lawton, (1 Sicanst. Rep. 221,J appear to have been bills of discovery merely, if they are cor rectly reported. But I can see no possible benefit the com- plainant could derive from a mere discovery from an attornej 486 CASKS IN CHANi^jlKY. Jl-nb 29 Wakeman v. Bailej. ill .such a case ; inasmuch as his answer could not he reau in any suit or proceeding' between the complainant and his client ; tile attorney being a mere witness. In ordinary cases it is only necessary to call upon the client to answer as to the contents of the deeds or papers of which a discovery is sought, alleging that they are in his hands or in the bands of his attorney or counsel and thus within his power. And the court, in the al> sence of any allegation to the contrary, will presume the client can obtain the actual possession himself by a proper application to his attorney or counsel. But should that not be the case, the proper course is to make the bill of discovery, against the client, a bill for relief against him and his attorney or counsel: by charging that the latter will not deliver the deed or paper to his client, or permit him to examine it for the purpose of setting out its contents in an answer, or that the client alleges such to be the fact. And therefore praying that the defendants may not only discover whether the deed or paper is in the hands of the attorney or counsel, but that if it is in the hands of the latter he and his cHent may be ordered to produce it; or that the attorney or counsel may be ordered to produce it to his client, so that the latter may set it forth in his answer Such appears to have been the opinion of Lord Eldon in the case of Penwick v. Reed, (1 Meriv. Rep., 123.) In the analo- gous case of a feme covert who was in possession of vouchers, belonging to her husband, of which a discovery was sought, Lord Eldon allowed the demurrer of the wife as to the dis- covery sought from her ; no relief being prayed against her. {Le Texier v. The Margravine of Anspack, 15 Ves. 164.) The lord chancellor in that case said he expressed no opinion as to what would have been the effect of a prayer in the bill that the wife produce the vouchers. But I have no doubt that upon a bill properly framed, alleging that she had the vouchers and Would not deliver them to her husband, and that he could not obtain them to produce them in the cause, and praying that she might disicover and produce them, the court would have com- pelled an answer from her, to prevent a failure of justice; and if she adniilted the vouchers to be in her possession, or undei 1848.] CASES IN CHANCERY. 487 Wakeman i. Bailey. her control, would have compelled her and her husband topro< ducc the en. It is true an attorney, upon the trial of a cause to which he is not a party, cannot be called upon to produce a deed which was intrusted to him by his client ; or to give evidence of the contents thereof as against his client. But he may be exam- ined, as a witness, to prove the fact that it is in his possession ; so as to enable the adverse party to give evidence of its contents, by others. [Brandt v. Klein. 17 John. Rep. 335.) The reason why he cannot be compelled to produce the deed on the trial, under a subpcena duces tecum, is because the privilege is the priv- ilege of his client. But if the client himself were bound to produce the deed, on the trial, then it would no longer be his privilege to have his attorney withhold it for him ; and the attorney would be bound to produce it, on the subpcena, and under the order of the court, made upon his client, at the trial. And as the client is bound, in this court, upon a bill of discovery or of discovery and relief, to produce or discover the contents of deeds and other papers, material to the prosecution or defence of the rights of the adverse party, the court, upon a bill properly framed, will give similar relief; so that no perverseness on the part of the attorney, in refusing to deliver the papers to his client, or any collusion between ihem, shall prevent the adverse party from "obtaining the benefit of a discovery. But as this bill was not only defective in not containing proper avjerments as to the withholding of the paper in question from the client, or that the client alleged that it was so withheld, but was also defective in not stating that the paper, if produced, would show that the treasury draft or warrant was received on the individual account of Vail, and not as one of the members of the iarm, so as to show that it was material in resisting the set-off claimed, and as no relief, by the production of the paper, was prayed against the respondent, the demurrer was properly allowed by the vice chancellor. The order appealed from must therefore be affirmed with costs. 488 <:!Afc5KS IN CHANCERY [Ji'me 3C Hone and other?, ex'is, &c. vs. Van Schauk aad others. [Reversed, 3 N. Y. 533.] A testator who lied leaving seven children, together Vfith J C the daughter of i deceased son, and three children of another deceatcd son, his only heirs at law, surviving him, by his will directed that all his estate, real tiid personal, should be divided among his heirs, or their legal representatives, and pi escribed certain rules to be observed by the executors in making such division. iBy one of those rules it was provided that in case both parents should be dead, and if thei/ children, or any of hem, had attained the age of twenty-one years, or wfere aarried, then that the executors should make an equal partition of the share whicii would have fallen to such parents, among their children. By another of tho3« rules the testator's granddaughter J, K. was to be considered as standing in the same situation, with regard to her own rights, and the rights of her issue, as the teistator's daughters ; and all the rules applying to them, their husbands and issue, were to be appli»d to her and her husband and issue. By a codicil to his. will the testator gave unto each of Ms grandchildren living at the time of his decease, the sum of $6000, to be paid to them and each of them, upon their attaining, respectively, th^; age of twen- ty-one years, or marrying. At the time of the making of the will and codicil, J. K. was of the age of 21, and was married, and both her parents were dead. All the other grandchildren of the testator were under age and unmarried. At the date of the codicil J. K. had one child, and was enciente, at the death of the testa- tor, of a child born after his decease. She subsequently died, leaving four chil- dren surviving her. On a petition by C. K. the surviving husband, chiiming that each of her two eldest chil.'rcn were to be considered as grandchildren of the testator, under the provisions of his will and co' the trust fund attempted to be created by the will, lucludtng /84S.1 CASES IN CHANCERY. 495 Hon« V. Van Scbaick. the annuity to the widow of the testator, were void. But he decided and decreed that the devise of the testator's dwelling house to the widow, and the bequest to her of certain specific articles of personal property, in addition to the annuity, in lieu f dower were valid, provided she elected to receive the same in lieu of her dower. He likewise declared and decreed that the bequest of $30,000 to his widow and one of the soas of the testator in trust for the purposes referred to in the last codicil, and the bequest of $6000, in the codicil of 1831, to each of the grandchildren of the testator living at the time of his decease, and payable out of his personal estate, were valid. And the decree directed the executors to pay the same according to the directions of the codicils. Liberty was also reserved to the parties to apply to the court, from time to time, forfmther direc- tions, upon the foot of the decree. This decree of the vice chan- cellor was aflBrmed, by the chancellor, upon appeal ; and that decision was subsequently affirmed upon an appeal to the court of dernier resort. (7 Paiges Rep. 222. 20 Wend. Rep. 564.) At the time of the making of the will and codicils, Mrs.Knee- l .nd, the only child of the testator's deceased son Philip S. Hone, was of the age of twenty-one and was married, and her mother as well as her father was dead ; the mother of the three children of the testator's deceased son John Hone, jun. was then living ; and all the other grandchildren of the testator were under age and unmarried. At the time of the date of the first codicil Mrs. Kneeland had one child, and she was enciente at the death of the testator, and had another child born within four months after that time ; both of which children are still living, and the appellant C. Kneeland is their general guar- dian. She subsequently had two other children, and died in February,' 1837, leaving her husband and her four children, surviving her; one of which children afterwards died. The appellant C Kneeland presented his petition to the vice chancellor, puisuant to the reservation in the decree, stiting these facts, substantially, and claiming that liii two oldest children were to be considered as grandchildren of iha testator under the provisions of his will and ccdicil, so as to ba 4jJ6 cases in chancery. [June 3f Hone v. Van Schaick. •iniitled to legacies of $6000 each, under the first codicil and under the decree in this cause; and praying a-direction to the executors to pay over the legacies to him, as the general guar- dian of his children, for their use and benefit; or if the court should decide- that his two oldest children were not entitled to such legacies, as grandchildren of the testator, then the peti- tioner insisted that his deceased wife was entitled to a legacy of $6000, as one of the grandchildren of the testator living at the time of his death, and that the executors should be directed to pay the same to him as her representative. The vice chancellor decided that neither Mrs. Kneeland nor her children were en- titled to any legacy under the codicil of 1831. He therefon denied the prayer of the petition. G. Clark, for the appellant. The two infant children of Joanna Kneeland, in esse at the time of the death of the testator, are to be considered as grandchildren, and each enti- tled to the legacy of $6000. In the fifth clause of the will the testator enumerates and describes his heirs ; and among them he describes the wife of the petitioner as follows : " Joanna Kneeland, wife of Charles Kneeland, and daughter of, and representing, my son Phihp I. Hone deceased." And in -the ninth clause of the will he prescribes certain rules for the government of his executors, in the execution of his will; the sixth of which rules is as follows : " My granddaughter Joanna Kneeland to be considered as standing in the same situation, with regard to her own rights, and those of her issue, as mj daughters ; and all the rules applying to them, their husbands and issue to be applied to her, her husband and issue." It is very evident that the testator, by his will, intended to dispose of his whole estate, real and personal; and for all the purposes of that distribution and partition he expressly declared and directed that his granddaughter Mr-s. Kneeland (being the only representative of her father, a son of the testator,) should ba regarded as a daughter ; that she should represent one division of his estate, and that her issue should have the same rights, in all respects, as the issue of his daughters. In other words, 1848.] CASES IN CHANCERY. 497 Hone II, Van Schaick. sne was to be considered a child of the testator, and Ler chil- dren to be considered as grandchildren. The will was inada in 1830 ; and at that time it is manifest that the intentions of the testator in regard to Mrs. Kneeland, were as above stated. In the following year he made the codicil, Containing the clauso in question ; and there is no reason whatever for supposing that he had, in any respect, changed his views concerning her and her issue, or as to the hght in which they were re-spectively to be considered, in the distribution of his property. 1^ IS a well established^rule that in construing wills the will and codicils are to be taken together as forming one will, one instrument ; and that instrumentas made at the date of the last codicil. (5 John. Ch. Rep. 343.) The codicil draws down the will to that date ; being a republication thereof. [Powell on Ditvises, 683.) The whole will is to be considered, to ascertain th<; intention of the testator in any particular part. (11 John. Rep.20l. Baldwin's a C.Mep. io9. 1 GaZZ.454.) If thenth* will is viewed as having been made at the same time with the Codicil, and all the provisions of both will and codicil are con- sidered as embodied in one instrument, can there be a doubt as to the fact whether, in giving tiiis legacy of $6000 to each of his grandchildren, the testator meant to include the children of Mrs. Kneeland under that denomination? By the sixth rule for the government of his executors, the testator expressly declared that those children were so to be regarded. And there is no evidence whatever that he intended to exclude them from this legacy of $6000. The reasoning of the vice chancellor, showing why he thought that Mrs. Kneeland, herself, was not intended as one of the recipients of the $6000 legacy, clearly demonstrates that her children weie intended as such recipients. His honor says, " another reason for the conclusion (that Mrs. K. was not in- tended) is, that in previous parts of the will, the testator gives to Mrs. K. an equal share of his est.ate with his own children, both as regards the immediate income and the capital upon a partition which he directs to be made, putting her in the place of his deceased son, her father, and declaring that she was to \0L. 111. 63 498 CASES IN CHANCERY. fJuME 3^ Hone V. Van Schaick. be considered as standing in the same situation, with regard tc her own rights and those of her issue, as his daughters, and all the rules applying to them, their husbands and issue to be ap- plied to her, her husband and issue ; thus-putting her upon the footing of a daughter, with respect to a full share of his estate." This is very fair reasoning to show that Mrs. Kneeland waa not intended ; but it is still stronger to show that her children were intended to be included among the partakers of this leg- acy. The vice chancellor, however, after giving his reasons for excluding Mrs. Kneeland, proceeds to show why he thinks her children are also to be excluded. And here, we submit, his argument fails. He says, " The rules of law are against great-grandchildren taking, along with grand-children, under the general description of grand-children, unless from the context of the will it clearly appears the testator meant to include them." All this is undoubtedly true : and we say that from the t jn- text of the will in this case it does clearly appear that the tes- tator intended to include Mrs. Kneeland's children undei the denomination of grandchildren. Had he merely said that for all the purposes of his will Mrs. Kneeland was to be regarded as a daughter, that alone would have been sufficient to show he intended that her issue should be regarded as grandchildren. (2 Eden, 296.) But he has gone further, and expressly de- clared that her issue were to be regarded in the same light as the issue of his daughters. And it is difficult to perc.ive how he could have made known his intention in more explicit lan- guae"i. This intention, therefore, must govern ; and the fact alltiiled to by the vice chancellor — that the bequest is t>» grand- children, that there are persons standing in that relation to the testator and fully answering that description — is inconclusive, so long as the testator has declared that he intended to include others also, under that denomination. When in the course of a will the testator has explained hi« own meaning in the use of certain words, the court should takd that as their guide, without regard to etymological or abstract meaning of terms, or to different meanings put upon them in Adjudged rases. (2 Munf. 234. Hussey v. Berkley, 2 Eden .848.] CASES IN CHANCERY. 499 Hone V. Van Schaick. 196.) The case last cited was similar to this, in all respects There the testatrix gave a legacy to a person, calling her a granddaughter, when she was in fact a great-granddaughter. The court decided she was the person meant, because in anothei part of the will the mother of such person was called a child, although she was in fact a grandchild. The cases are numer- ous where grandchildren are included under the name of chil- dren, and great-grandchildren under the term grandchildren. (Gale v.Ben7iet, Ambler, 681. 4 Fes. 437, Ambler, 603. 2 Vern. 107, 108. 4 Ves. 692.) The vice chancellor admits that the intention of the testator must govern, and that this is a case of construction as to what was the testator's meaning. And althougli he concedes that in one part of the will the testator has conceived a design to place Mrs. Kneeland on the footing of a daughter, and her issue on the footing of grandchildren, yet he seems to think that this design was limited to what the testator had then in view. What had he in view? Clearly the disposition of his whole estate. And the rules he established were to govern in respect fj the distribution of his whole estate. If then he had a dif- lerent design in the codicil, in respect to the persons who were to take, would he not have said so, in explicit terras? Would he have left it in doubt and uncertainty? The object of the codicil was to exempt a certain amount of his personal estate from the particular trusts and limitations contained in the v/ill, and to distribute it in ^ different manner, but to the same fam- ilies, and in the same capacities, and under the same denomi- nations which he had already declared and prescribed respecting them. If, however, it shall be adjudged that the clause in the will declaring in what character Mrs. Kneeland and her children are to be considered, is not to be extended to this provision of the codicil, then we say that Mrs. Kneeland must take the legacy in her own right, as a grandchild. Were it not for the clause in the will declaring in what character Mrs. Kneeland and lier issue were to be regarded, she must of course have preferred the claim in her own right ; and if that clause is to be entireh 500 CASES IN CHANCERY. [Ji'ke 3« Hone '". Van Schaick. disregarded in respect to ihe provisions of the codicil, then wliat is to prevent her taking in her own right? It will be said that she cannot have been intended to be included because the two events on the happening of which the legacy of $6000 was tj be paid, had already passed, as to her ; that is, she had attained the age of twenty-one, and she had married. It cannot be de- nied that this fact, if it can be supposed to have been known to the testator, strengthens the other position, that is, that he meant to include her children in this bequest, rather than her- self. Yet if that position can by possibility be rejected, then the court will infer that the testator either did not know the fact of those events having passed, as to her, or that they ha.'i escaped his recollection ; such an inference being far less vi(»- lent and improbable than the supposition that he meant to ex- clude her altogether from this provision. And rather than come to the conclusion that she was to be excluded, the court will reject, as to her, the conditions as to the time of payment, as being inconsistent with the general intent of the testator. In some cases equity will reject express words, to make the will take effect according to the testator's meaning ; and will reject inconsistent or contradictory words. (2 Dessau. 32. Cmn,. Dig. Devise N. 24.) The court is bound to carry the intention into effect ; and if it can see a general intention consistent with the rules of law, but the particular mode is not, though that shall fail, the general intention shall take effect. (4 Yes. 329.) What was the general intent of the testator in this clause of the will 1 Clearly, to give each of his grandchildren, (or those he designed to include under that denomination,) living at the time of his decease, the sum of $6000. The time of payment is a distinct matter, and although post- poned to a future period, the legacy was a vested legacy in each of the persons intended ; and if the clause fixing the time of payment was inapplicable to some of them, that clause will be rejected, as to those persons. The particular intent must give way to the general intent. (2 Bligh's Rep. 49, 51. 4 Dei,. Rep. 381. 1 Yeates, 342.) The amount of properly, or the vnidence of the disposition, dfford no fair grounds for c.->ntrolliag 1848.J CASES IN CHANCERS. 59 1 Hone V. Van Schaick. a will. (4 Vcs. 340. 1 Mer. 194.) The intent is to be col- lected from the will itself, and not from extrinsic circumstances. {Cas. Temp. Talb. 208. Com. Dig. Daise N. 24.) There is one other circumstance deserving of notice. The testator left nine children, or representatives of children, and there were thirty grandchildren who would be recipients of thia legacy of $6000; thus taking from the general distribution of the estate near $200,000, (a very considerable portion of the whole estate.) Some of the heirs had eight 01 nine children • thus by this codicil carrying into such family forty-eight 01 fifty thousand dollars beyond the general distributive share, while to the family of his deceased son, the father of Mrs. Kneeland, it would carry six or twelve thousand dollars, if our first position is maintained ; and yet it is contended that even this is to be withheld, and that such was the testator's inten- tion. The effect of the construction contended for by the respondents would be this : that although Mrs. Kneeland de- claredly represents her father, and is to take one equal ninth part of the estate, in the general distribution, yet that by the operation of the codicil about $200,000 is to be taken out of the estate for the benefit of the other heirs, before such general dis- tribution is made, and that she is to fake a share only in the residue, but that neither she nor her children are to have any share of the $200,000 thus taken out. Such a construction is as inconsistent with every notion of equity as it is with the manifest intention of the testator. John Anthon, for the respondents. There are two clauses, the one in the will of the testator, and the other in the first codicil annexed to it, which relate to the subject matter in con- troversy. The clause in the codicil has been substituted for that in the will, and annuls it. The examination of these clauses, therefore, must necessarily lead to a discovery of the testator's meaning ; which is the object sought in the present case. The clause in the will is the tenth item. The testator had, in previous clauses, disposed of all his property, real and personal, in such way that hi.s children were to have the income 502 CASES IN CHANCERY. ^Jcse 3f^ Hone V. Van Schaick. during their lives, and his grandchildren the principal of the personal, and the fee of the real, estate, after the decease of their parents. The terms children and grandchildren ara throughout both the will and the codicil, used according to their proper acceptation, with the greatest care and strictness. And it appears that Mrs. Kneeland, the sole representative of a son, had been fully provided for, and that, from her situation,' more advantageously than any other grandchild of the testator. In fixing the meaning of these clauses, the first thing which de- mands attention is the situation of the testator's family, at the time of making the will. Now when these dispositions were made the testator's family consisted of seven children, (all 0/ whom were over the age of twenty-one, were married, and had issue,) and thirty-one grandchildren, thirty of whom were in fants under the age of twenty-one years, and unmarried, and had one or both of their parents living. The remaining grand- child, Mrs. Kneeland, had lost both her parents, whose estate she had inherited as sole heir, was over the age of twenty-one years, was married, and every way well provided for, both in the will and otherwise. The executors insist that Mrs. Kneeland was not content- plated by the testator, in these provisions of the will and codir cil, neither of them being applicable to her case. The objec? the testator had in view, in making this provision in his will and codicil, and the inapplicability of each provision to Mrs. Kneeland, seems to the executors quite apparent from the whole instrument ; and the more particularly so when the two sections are considered in detail. (1.) The will contemplates thfc case of a grandchild attaining the age of twenty-one in the lifetime of one or both parents. Such grandchild, from the terms of the will, would have an estate depending on the ter- mination of the parent's life estate, but would have no power of immediate enjoyment. (2.) The will also contemplates the case of grandchildren marrying before the age of twenty-one, in the lifetime of one or both parents ; who would be of course in the same situation. The first might require the advance of a capital for business, and the second for their establishment 1848.] CASES IN CHANCERY'. gQS Hone V. Van Schaick. in married life. At the same time, however, many considera- tions might exist, making it necessary or discreet, on the part of the parents, to withhold any advance. The parents are the first objects of the testator's bounty, and may receive the income of the whole for their own necessities ; or if such state of need does not exist, the unconfirmed character of the child, or other cogent reasons, may make the creation of such partial indepen- dence of the parents indiscreet. Hence the testator places in the hands of his sons and dayghters, expressly, the full control over the whole matter — to grant or to withhold, in whole or in part. No grandchild, therefore, can claim any thing under this clause of the will, without the previous assent of the parent whose prudential control is very expli'essly invoked by the testator. Now when the peculiar, phraseology of the clause is consid- ered, its restricted action in every way on sons and daughters, and their direct issue, and the special call for parental prudence, before it is allowed to take effect, it seems very clear that Mrs. Kneeland is excluded from its operation. All the contingencies had already occurred with regard to her. She had attained the age of twenty-one years, was married, had survived both parents, and the precision of the language used, as well as the absence of all necessity for any additional provision for her, shuts out the idea of Mrs. Kneeland, or great grandchildren being within the testator's contemplation. One year after this, the condition of the testator's family remaining the same, he revokes this clause of his will, and substitutes another in its stead, varying from it in no respect except in fixing the precise amount to be advanced, (.$6000.) All the prudential checks are retained, and even strengthened, by requiring that the parents' approbation, (which the testator, for most obvious rea- sons, constantly introduces as a prerequisite) should be in wri- ting It will be observed, upon perusing the codicil, that the same precise use of terms occurs throughout. Words are used in their primary and proper sense; opening no door whatever to the extension of the term grandchildreti. If the conclusion of the executors is correct, that the clause m the will already considered gave no rights to Mrs. Kneeland 504 CASES IN CHANCERY. [June 3C Hone V. Van Schaick. or her children, it seems very clear that none are created bj this substituted clause in the codicil. The counsel for the appellant insists that a certain other clause contained in, the will must lead to a different conclusion^ That clause is in these words: "My granddaughter, Mr^ Kneeland, to be considered as standing in the same situation, with regard to her own rights and those of her issue, as my daughters, and all the rules applying to them, their husbands and issue, to be applied to her husband and issue." The whole force of this section will manifestly depend upon the connection in which it stands, and the series of rules expressed therein, to which it refers, and of which it forms a part. The testator, in his will, contemplated a partition of his estate at a certain period, among his children and their representatives, and gave to his executors express and particular rules and regulations to guide them in making such partition. The clause rehed upon, and above stated, comes in that connection; and stands as the sixth rule, under the ninth item of the testator's will; which item is entirely devoted to the mode and manner of making such partition. We insist that the peculiar structure of the will requires that this sixth rule should be confined expressly to its subject matter; and that it would be doing injustice to the testator's intentions to extend it beyond the manifest and particular purposes to which it was to be applied. I do not think it necessary to discuss the otiier questions contained in the argument of the appellant's counsel; as they are abundantly and satisfactorily disposed of in the opinion of the vice chancellor, and in the cases referred to by him. The Chancellor. It is stated in the affidavit in opposi' tion to the appellants' petition in this case, that the deponent believes Mrs. Kneeland inherited a large estate from her father, and that she had expectations from her grandfather, who was a wealthy maq. But these circumstances cannot affect the construction of the will or codicil in this case, as it is not shown that the other grandchildren of the testator were destitute of property, or that they had not sirrilar expectations frotn tha 184S.J CASES IN. CHANCERY. 506 Hone V. Van Schaick. property of their parents, and from their grand-parents other than the testator. No reason therefore appears for making any discrimination between Mrs. Kneeland, or her children who might be in esse at the death of the testator, and his other grandchildren who might be then in existence. And it ap- pears to be impossible to resist the conclusion that by the tliird article of the first codicil the testator either intended to give a legacy of $6000 to Mrs. Kneeland, if she should be living at the time of his death, or that he intended to give a similar leg- acy to each of her children, who should be in esse at that time, by the description of grandchildren. The vice chancellor, therefore, appears to have erred in supposing that the testator intended to exclude the issue of his deceased son Philip S. Hone from the class of persons who were to have legacies of $6000 each. The question then arises as to which of the descendants of Phihp S. Hone are entitled. Mrs.. Kneeland was a grandchild of the testator and was living at the time of his death She ■wa.8 therefore entitled to the legacy, unless there is something ia the will, or in the codicil, to show that in relation to her or her children the testator did not use the word grandchildren in its primary sense. The word children in its natural sense only embraces the immediate descendants of the person named or described, and does not include descendants of a more re- mote degree. Nor does the term grandchildren, without some- thing further to extend its natural signification, include great- grandchildren. It is true Lord Chancellor Henly, in the case of Hussey v. Berkeley, (2 Eden^s Rep. 194,) expressed the opinion that the word grandchildren, without further explana* tion, would include great-grandchildren, unless there wa? SQmething to indicate a contrary intention. But such is not the natu,r?il sense of the term grandchildren. And the testa- tor is to be presumed to have used words in their natural or primary sense, unless there is something in the situation of hia family, or in his will, to lead to a contrary conclusibn. It is a cardinal rule, however, in the construction of wills, that Can in- tention of the testator is to govern, if consistent with - sequent to the issuing of an execution thereon, are bound to 3rield up the possession to the purchaser under such execution, unless they can show a bet- ter right in themselves, or establish the fact that the judgment was invalid, as against them. Where the breach of the covenant of seisin in a deed affects the whole title, so that nothing passes to the grantees, a recovery by such grantees for the damage sustained by the breach of that covenant, may have the effect to prevent the operation of the estoppel created by such covenant, or even by a covenant of warranty ; by creating a counter estoppel, which would prevent the grantees, or those claiming under them, from alleging that they acquired the title to the land by the original conveyance to them. Although the grantee in a deed which contains a covenant of seisin, in connection with general covenants of warranty, and the heirs and assigns of such grantee, are not estopped by such deed from showing that the grantor had no title to the land attempted to be conveyed, the warrantor, and those claiming under him, m t!ie post, are estopped, by his covenants, from alleging that he had nol a perfect title to the land when he conveyed the same with warranty. Elence a reconveyance of the land, by the grantee thereof, without covenants of warranty in such reconveyance, will not prevent such original grantee tram recovering for a breach of the covenant of seisin contained in the conveyance 01 the premises to him. Vol. III. 67 530 CASES IN CHANCERY. 'Ji,ne 30: The Bank of Utica v. Merserean. Where the parties have suhmitted themselves to the jniisdiction of the cocrt of chancery, vrithout objection, the chancellor vrill not refiise to take jursdiction of the case, and to make a proper decree therein, merely upon the ground that the complainant had a perfect remedy by an action at law. But vrhere the complainant improperly and unnecessarily comes into the court of chancery for relief, and the defendant neglects to make the objection that the remedy of the complainant, if any, vf as at law, whereby the chancellor is com- pelled to take jurisdiction of the case and to decide it upon the merits, he may, in the exercise of a sound discretion, refuse to give to either party the general costs of the litigation. The maxim that custom is the best interpreter of the law, applied to the form of a comptroller's deed ^ven on a sale of land for taxes ; where it appeared that it had been the custom to execute deeds in the same form, for more than a quarter of a century. The expression of Lord Coke, that common opinion is good authority in law, does not apply to a mere speculative opinion in the community as to what the law upon a particular subject is. But when such opinion has been frequently acted upon, and for a great length of time, by those whose duty it is to admin- ister the law, and important individual rights have been acquired or are depen- dant upon such practical construction of the law, it is entitled to great weight. It IS not necessary that a deed given by the comptroller to the purchaser of lands sold for taxes, should be technically executed in the name of the people. It is sufficient if it recites the substance of the statutes under which the sale was made, the non-payment of the taxes charged upon the land, the advertisement and sale of the premises, the payment of the purchase money by the grantee, and that the premises have not been redeemed ; and purports to convey the land to the original purchaser, or his assigns, bij virtue of the authority vested in the comp- troller by law ; and is executed under the comptroller's official seal, and wit- nessed by one of the officers mentioned in the statute. The statute does not require a comptroller's deed to state in what year the tax was assessed, for the non-payment of which the land was sold. Hence if the deed states that the taxes have been assessed and returned to the comptroller, and have remained unpaid for two years, this is all that is necessary to show upon the face of the deed that the comptroller was authorized to make the sale. The prima facie evidence of ownership in the grantee afforded by a comptroller's deed, is liable to be rebutted by proof that the tax, returned to the comptroller as unpaid, had actually been paid to the collector. Such prima facie evidence may also be rebutted by showing that the land thus sold and conveyed by the comptroller, or some part of it, was actually occupied by some person at the expiration of two years from the time of the sale, or that it was so occupied at the time of the giving of the comptroller's deed ; so as to throw upon the party claipjing under such deed the necessity of giving to the occupant the notice to redeem which is required by the statutes on this subject. Tire effect of the several statutory provis[.,ns relative to the sale of lands fol taxes, is that if the land sold by the comptroller, or any part thereoij is actually 1848. [ CASES IN CHANCERY. 53 1 The Bank of Utica v. Mersereau. occupied at the end of the two years from the close of the sales, the p irchaser or his assignee, must serve the notice required by the act of April, 1830, upon the occupant, and file the evidence of such service with the comptroller, within the times prescribed by that act, or by the act of 1844 amending she same ; 01 he will lose the benefit of his purchase. Where the purchaser serves such notice and files the evidence o. such service within the time prescribed, and the lands are not redeemed within the six months allowed by the act of 1830 for that purpose, his title will become perfect as soon thereafter as he shall have obtained the comptroller's deed ; whether such deed shall have been given before, or after, the service of such notice. In cases, however, where the lands sold are not occupied at the expiration of the two years, but there is an actual occupant of the land, or of any part of it, at the time of the giving of the comptroller's deed, the title of the purchaser will not become absolute, under such deed, until six months after he sha)l have served the occupant with the notice to redeem ; and shall have, obtained the comptroller's certificate that evidence of the fact of such service has been filed, and that the land was not redeemed by the payment of the redemption money into the treasury within six months after th£ service of such notice. But in cases not coming within the scope of the act of April, 1830, there is no time limited by law for giving notice to the occupant of the land who was in the occupancy thereof at the time of giving the comptroller's deed. And the only effect of a neglect to give such notice is to extend the time for redemption of the land, and the perfecting of the title of the purchaser. The fact that the occupant of the land sold is the tenant of the grantee in the comptroller's deed, vrill not authorize the latter to perfect his title, as against the paramount cleums of others upon the land, without giving the notice to the occupant required by the statute. [f any part of the premises sold for taxes is actually occupied at the times specified in the statutes relative to the giving of notices to the occupant, the purchaser must give the prescribed notice to the occupant of such part of the premises, and obtain the comptroile»'s certificate that such notice was given and that the premises were not redeemed within the time prescribed ; before he can com- plete his title to any part of the premises included in the purchase. If the lands described in the comptroller's deed cannot be located, for want of a proper description of the tract out of which the lands sold were to be taken, the sale is invalid. ^ release of the personal liability of one of several deiendants, on a judgment in favor of the releasor, executed in pursuance of the provisions of the act of April, 1838, for the relief of partners and joint debtors, but which release leaves the judgment, and the debt for which it was recovered, in full force against the other defendants, will not render the defendant thus released a competent wit- ness for the plaintiff in such judgment. To restore the competency of such witness, if he is incompetent in consequence of any < ontingent liability, for the judgment debt, depending upon the event of the suit in which he is called as a witness, the plainti.T should not only releasf him but also the other judgment debtors from such contingent liabiUty. 532 CASES IN CHANCERY. [JnisB 3: The Bank of Utica v. Mersereao. Where it only appears from the examination of the witness himself that he is iii< terested in favor of the party calling him, or that he is otherwise incompetent, the objection to his competency may be removed in the same manner that it was created. And the witness may be examined by the party calling him, to show that his interest has been removed by a release, or to prove any other fact to establish his competency at the time of his examination. But where the witness' interest, or other incompetency, appcrs aliv/nde, the v»it- ness cannot be examined for the purpose of showing hus rcmpetency ; by tes- tifying to the execution of a release, or to any other fact. After the proofs in a cause have been closed, ex parte affidavits cannot be re- ceived for the purpose of proving that a release of a witness' interest was exof cuted and delivered to the witness previous to his being examined. Where a release of the interest of a vritness, produced at the healing, is neither dated nor witnessed, the acknowledgment by the party executing it is only evi- dence that he had executed it at or before such acknowledgment ; not that it was executed previous to the examination of the vritness, where such examina- tion was before the date of such acknowledgment. I'he lands of a judgment debtor were not liable to be sold on execution, by the English common law ; but by the statutes of extents and elegits they were set off to the judgment creditor until his debt should be paid. The statute of 32 Hen. 8, chap. 5, giving a remedy to the creditor to whom the debtor's land had been delivered in extent, upon elegit, where the tenant by elegit was afterwards evicted out of or from the possession of, such land, being a part of the general law of England at the time of the first settlement of New- York under the charter to the Duke of York, it became a part of the common law of the colonists; in connection with the principlesof the statutes of extents and executions then existing in England. But when the statute of 5 Geo. 2, chap. 5, subjected real estate in the colonies to sale upon execution, in the same manner as personal property, the virrit of elegit was virtusJly abolished here. The equitable principle of the statute of 33 Hen. 8, chap. 5, however, still applied to the case of a creditor who had purchased the real estate of his debtor, upon execution. And it continued to be a part of the law of the colony ; though the particular form in which the relief had been given was no longer strictly appli- cable to the sale under an execution. The court of chancery, therefore, has j arisdiction to act upon the equitable principle of the English statute, by giv- ing relief to the purchaser at a sale of lands upon execution, for an eviction, or failure of title ; upon an appUcation to the equitable powers of that court. Where the plaintiff in a judgment is himself the purchaser, and has been evicted for want of title in the judgment debtor, his remedy still depends upon the eq'ii- table principle of the colonial law, derived originally from the statute of Hen. 8, as applied to sales of land upon execution ; which equitable principle has been applied, by analogy, to sales of personal property, &c. where the plaintiff liecame the purchaser and was subsequently deprived of the benefit of his pur- chase for want of title in the judgment debtor. Where the common law does not provide lor sucn pases, they are jroper sib^ecti «48.J OASES IN CHANCERY. 53c The Bank of Utica «. Mcrsereaa. for the interference of the court of chancery ; or for relief upon a summary application to the equitable power of the court out of which the fciocution issued. This equitable principle applies to a case where a judgment creditor purchased premises at a sale thereof by the sheriff, under the judgment, in the belief that the title was in the judgment debtors, or one of them, at the time of the dreket- ing of the judgment; and where the judgment debtors, in a statement of their property, furnished to the judgment creditor, and others, previous to such sale, had represented that they were the owners of the lands subsequciitly sold and bid off by the judgment creditor. In the court of chancery, where many issues frequently are combined in one suit, a witness is not to be rejected altogether because he is interested as to one part of the case, when as to another part of the case he has no interest whatever. He may be examined as a witness to that part of the case in which he has no interest ; or in which his interest is adverse to the party calling him. The true principle, in reference to privileged cocomunications between attorney and client, is that where the attorney is professionally employed, any commu- nication made to him, by his client, with reference to the object or the subject of such employment, is under the seal of professional confidence, and is entitled to protection as a privileged communication. This seal of professional confidence is not the seal of the attorney, but of his cli- ent, which the attorney is by law as well as by professional honor bound to keep intact ; and it cannot be removed except by the consent of the client. The seal which the law once fixes upon such communications remains forever, unless removed by the party himself in whose favor it was there placed. And where the privilege belongs to several clients, it seems that neither one of ■fliem, nor even a majority, contrary to the expressed will of the others, can waive the privilege, so as legally to justify the attorney in giving testimony in relation to such privileged communications ; especially in a case where the tes- timony of the attorney equally affects the moral characters of all his clients, by showing that they employed him professionally to assist them in giving a ficti- tious judgment for the purpose of defrauding their creditors. Nor will the fact that the client, whose assent to the removal of the seal of pro- fessional confidence from privileged communications has not been obtained, is not a party to the suit in which his attorney is called upon to testify, alter the case. Neither will the fact that an attorney was a subscribing witness, to a warrant of attorney prepared by him for his clients to execute, alter the question as to the admissibiUty of his evidence tending to the conclusion that the object of giving the warrant of attorney, and having judgment entered thereon, was to hinder and delay their creditors in the collection of their debts ; and that the judg- ment was given for a much larger sum than was justly due to the judgment creditor. iJut an attorney who is professionally employed to prepare a deed for his client, and who afterwards witnesses its execution, may be compelled not only to prov« the execution of such deed, but also to testify whether it was ante-dated j 534 CASES IN CHANCERY. [June 3t The Bank of Utica v. Mersereau. whether it was in the same form in which it now appears, at tht time of its er- ecution, or has been altered ; and whether it was actually delive "ed at the timn he subscribed his name thereto as a witness. Ai. 1 if the deed has been lost, or is in the hands of the adverse party, who refuses tc produce it upon the trial, or for the purposes of the suit, the aittorney who witnessed the deed may be. compelled to testify as to the contents thereof; al- though in the preparation of such deed he was professionally employed. It seems the seal of professional confidence has never been held to cover a com- munication made to an attorney to obtain professional advice or assistance as to the commission of a felony, or other crime which is malwrn in sc. But the fact that an attorney was employed by his clients to assist them in a transaction which, from what was said in his presence, he must have known to be a fraud upon their creditors, will not deprive their communications of the seal of professional confidence. The privileged relation of attorney and client, however, ought only to be pennit- ted to exist for honest purposes, and not to enable the client to perpetrate a fraud, or to violate the laws under the advice of counsel, or through any other professional aid. But the law appears to be settled otherwise. This case came before the chancellor upon appeal from a decree of the vice chancellor of the eighth circuit. At the time of the death of Harmanus Garretson, in 1813, he and Gosen Ryers were the owners, as tenants in common in equal shares, of the north half of township No. 1, in the second range of townships in the county of Steuben, containing about 11,500 acres of land ; excepting out of the same 600 acres which they had previously conveyed. H. Garretson by his will authorized and directed his executors, J. Garretson, J. Guyon and P. I. Van Pelt, to sell liis interest in this tract of land, and to pay one half of the proceeds of the sale to his son John, and the other half to his two daughters, Dinah Mersereau and Margaret Guyon. In 1814, the executors sold and conveyed t!ie undivided half of the premises of which their testator died seised, to Joshua Mersereau, jun. ; and took back a bond and a mortgage upon the premises to secure the payment of $4777,50, of the purchase money. The purchaser went into possession of the premises, with his, family, the succeeding winter, and contracted to sell some parts thereof. In October, 1817, W. Smith recovered a judgment agains* Joshua Mersereau, jun. which became a lien upon the interest of the latter in the premises. And in January thereaftei G, R. 1848 ] CASES IN CHANCERY. 535 The Bank of Utica v. Mcrsereau. De Hart who had become entitled to an undivided interest, aa tenant in common, in the other half of the premises, com- menced a suit for the partition of the whole premises ; proceed- ing against the owners of the half of which H. Garretson died seised, as owners whose names were unknown to him. J. Mer- sereau, jun. not being able to pay the amount due upon his bond and mortgage, entered into an agreement with them for a reconveyance of the premises and a canceJment of his mortgage. And on the 9th of February, 1818, he conveyed his undivided half of the premises to J. Garretson, J. Guyon, and Peter I. Van Pelt, describing them, as executors of the last will and testament of H. Garretson deceased ; with covenants of warranty and seisin and for further assurance. The mort- gage which had been given to the executors for the purchase money upon the original sale was thereupon given up and cancelled. On the 28th of February, in the same year, the sheriff of Steuben county sold the undivided half of the premises, by vir- tue of an execution issued upon Smith's judgment against J. Mersereau, jun. to E. Lindsley ; and in March, 1818, he con- veyed the same to the purchaser at such sale. The commis- sioners, appointed in the partition suit, assigned as the share of the unknown owners in the premises 5450 acres on the west side of the Tioga river, being the whole of the premises on that side of the river, except a lot of 292 acres set off in the partition to Joseph W. Ryers, and a small lot containing one acre and a half assigned to G. R. De Hart. And judgment thereon was given in September, 1818, and the land set off as the share of the unknown owners was charged with one half of the costs of the partition. The sheriff, by virtue of an execution issued upon the last mentioned judgment, sold and conveyed to E. Lindsley 1000 acres of the land assigned to the unknown own- ers, adjoining the south bounds of the said lands. In Septem- ber, 1819, Lindsley and wife Conveyed to Dinah Mersereau 546 acres of the premises set off to the unknown owners in the partition, south and adjoining the 292 acre lot assigned to J. W. Rjers, as one of the heirs of John P. Ryers, in the partition 536 CASES IN CHANCERY. fJu»B 30 The Bank of Utica v. Mersereau. suit ; and extending west from the Tioga river to the westerly bounds of the tract assigned in the partition suit to the unknowa owners. At the same time they conveyed to her 35 acres in the southeast corner of the 1000 acres sold by the sheriff for the costs of the partition suit, bounded north by B. Harrowei^'a land, which had been previously sold to him by Lindsley, and west by J. Hemstead's land, and east by the Tioga river. The Harrower lot was 211 acres lying some where between the two pieces conveyed to Dinah Mersereau, bounded on the Tioga river'and extending west a little farther than the west line of the 292 acres set off to Ryers in the partition. The convey- ance by Lindsley to Dinah Mersereau, was made under an ar- rangement with her son, Joshua Mersereau, jun., by which she was to receive this portion of the premises in satisfaction of her one-fourth of the proceeds of the sale of the land, under the will of her father; and the same was allowed to Joshua Mer- sereau, jun. by the executoTs, in the subsequent settlement with him. In December, 1819, an arrangement was made between Lindsley, and Joshua Mersereau, jun. and John Garretson, who professed to act in behalf of himself and his co-executors, by which Mersereau was to pay Lindsley for his interest in the lands, under the sheriff's deed, and to receive a conveyance of such parts of the land as had not been previously conveyed by Lindsley. And he was to pay to the executors the amount due upon his original purchase, after deducting therefrom the one- fourth, that by the will of his grandfather belonged to Dinah Mersereau, his mother ; to satisfy which one-fourth he had pro- cured a conveyance to be made, to her, of the 581 acres em- braced in the deed of Lindsley and wife to her in September, 1819. A pait of this balance the executors were to receive in the bonds and mortgages of the purchasers of different portions of the premises, thai were to be conveyed to Mersereau by Lindsley and wife ; and the residue was to be secured by Mer- sereau's bond and mortgage upon about 3000 acres of the same premises. In pursuance of this arrangement, Lindsley and wife, on the 1.5th of December, 1819, conveyed to Merser-^au the whole of 1848.1 CASES IN CHANCERY 537 The Bank of Utica ». Meisereau. the premises set off to the unknown owners in the partition suit, except the 581 acres embraced in the deed to his mother, and the 211 acres which Lindsley and wife had previously con- veyed to B. narrower. On the 16th of the same month, Mer- sereau and wife gave a bond and mortgage to J. Garretson and, his co-executors, upon about 3000 acres of the same premises ; conditioned for the payment of $1700, in five yearly payments, commencing on the first of July, 1822, with annual interest from the date of such bond and mortgage. Mersereau also conveyed several parcels of the premises, not embraced in this mortgage to the executors, and took back from the purchasers bonds and mortgages upon the lands thus conveyed to them ; which J. Garretson received, for the executors, in payment of the balance of their claim against Mersereau that was not covered by the $1700 bond and mortgage. And Mersereau having requested that the executors would give him some evi- dence that he was entitled to the lands which were not covered by their $1700 mortgage, J. Garretson gave to him a certificate that he and his co-executors held no other lien upon the prem- ises except the mortgage of Mersereau, to them, of the 16th of December, 1819. Mersereau continued to reside on and to ex- ercise acts of ownership over the lands conveyed to him by Lindsley and wife, until the spring of 1821 ; when he went to Pennsylvania to reside, and left the cultivated parts of the prem- ises, not previously sold by him, in the possession of his tenants. He died in the autumn of 1821, very much embarrassed and leaving some judgments against him, which were liens upon his interest in the premises. His only child and heir Jane Ma- ria, who afterwards married T. R. Budd before the termination of her minority, was then an infant between seven and eight years of age ; and upon the death of her father, some of her relatives assumed to rent the cultivated portions of the prem- ises in question. In the fall of 1822, the first instalment of principal upon the $1700 mortgage having become due, J. Gar- retson requested B. Harrower to take charge of the premises, and rent the cultivated parts thereof to keep down the taxes on the whole premises, and he rented the same accordingly. Vol. hi. 68 638 CASES IN CHANCERT. ^JtsEaO. The Baiik of Utica. v. Mersereau. The executors also bought up a judgment of $433, whioh C. Strong had recovered against Mersereau in his lifetime, and which was a lien upon his interest in the premises. On the 20th of January, 1831, John G. Mersereau who was the assignee and owner of a judgment of about $300 against Joshua Mersereau, jun. and the assignee and owner of the half of two other judgments against him, for upwards of $1200, made an agreement with the executors of H. Garretson, to pur- chase of them the Strong judgment, and the $1700 mortgage, and the several mortgages which remained unpaid, given by the purchasers of different portions of the premises included in the sheriff's deed to Lindsley, which had been taken by the exec- utors in. their compromise with Joshua Mersereau, jun. in De- cember, 1819. The mortgages and judgments were assigned to him accordingly. On the same 20th of January, 1831, J. Garret- son and P. I. Van Pelt, the two surviving executors of H. Garret- son and H. Guyonj who is described in the deed as the executor of J. Guyon the deceased executor, released and quit-claimed to John G. Mersereau, all the lands set off to the unknown owners in the partition suit, except the two Pier lots of 100 acres each in the northwest corner of the tract, which were not included in the $1700 mortgage; and also excepting from the lands embraced in the boundaries of the deed the land conveyed by Fohn Garretson to Cyrus Strong, the lands of B. Harrower and of Dinah Mersereau ; and also the lands of W. French, W. Cliilson, A. Butler, D. Butler and J. Upham, as the same were described in their several mortgages. Soon after the execution of this deed, the agent of John G. Mersereau contracted to sell 1000 acres off of the north end of the premises described therein, to M. Lewis, and two other per- sons of the same name ; and they moved on to the premises, and improved parts thereof and exercised acts of ownership over the rest of it for three or four years; when they abandon- ed their contract and left the premises. In September, 1831, John G. Mersereau took possession of other parts of the premises described in the quit-claim deed to him ; and exer- cised acts of ownership over the same beyond the boundaries of 1848 1 CASES IN CHANCERY. 539 The Bank of Udca «. Mersercau. the 3000 acres included in the $1700 luoitgage to the execu tors. He built a dwelling house, barn and saw-mill thereon, and moved into the house with his family ; contracted for the sale of several parcels of the premises in fee, and executed conveyances to the purchasers of some of those parcels ; and claimed to be the owner of the premises so far as the same remained unspld. In the spring of 1832 he entered into an agreement with Chan- cey Hoffman and James G. Mersereau to go into copartnership in the lumbering business, (fee ; and he was to convey to each of them an undivided one-third of the unsold portion of the premi- ses embraced in the quit-claim deed of the executors to him, north of the Helmer or Dinah Mersereau lot, and south of the 1000 acres contracted to be sold to the Lewises ; and they were to pay equal proportions with him of the $3200 which he had agreed to pay to the executors of H. Garretson. And the sum- mer following their partnership business commenced in lumber- ing and farming and merchandising; which partnership was to be continued for three years. They also purchased the two Pier lots of 100 acres each, lying north of the 1000 acres con- tracted to the Lewises ; which Pier lots were not embraced in the quit-claim deed given to John G. Mersereau in January, 1831. Hoffman moved on to the Pier lots, and James G. Mer- sereau on to the premises which were to be held by the three partners in common. They built a store and a saw-mill and made other valuable improvements upon the premises, and carried on an extensive business in lumbering, farming and merchandise during the three years which the partnership was to be continued by their agreement. In the prosecution of this business, the copartners became indebted to the complainants, and to the Steuben County Bank, and to the Chemung Canal Bank, in large sums of money, and ultimately became insolvent. In the spring of 1833, the copartners, who transacted the busi- ness of the firm under the name of Hoffman 848.j r.ASES IN CHANCERY ggj The Bank of Utrca ei Mersereau. But in cases not coming within the scope of tl e act of April, 1830, there is no time limited by law for giving notice to the occupant of the land who was in such occupancy thereof at the time of giving the comptroller's deed. And the only effect of a neglect to give such notice is to extend the time for redemption of the land, and the perfecting of the title of the purchaser. In the case under consideration, therefore, if the lands as- sessed and sold had been properly desciibed, and no part of the 800 acres was occupied at the expiration of the two years from the time of sale, the vice chancellor should not have deprived the Steuben County Bank of the benefit of what the owner of the land would have been required to pay to redeem the same ; but the decree should have directed that amount to be paid by the complainant, or that the Steuben County Bank should be permitted to complete its purchase of the 800 acres by giving the notice required by the provisions of the revised statutes in such cases. The fact tiiat tlie 800 acres were actually occu- pied at the date of the comptroller's deed, in December, 1837, is fully established. For the case shows that T. L. Mersereau leased the whole of the premises in controversy from the two defendant banks, on the 4th of November preceding the giving of that deed, for the term of one year ; and he Went immediately into possession under that lease. It is true, as to one half of the premises, he was the tenant of the grantee in the comp troller's deed. But that did hot authorize the grantee in such deed to perfect bis title as against the complainants' paramount claim upon the land, or as against the Chemung Canal Bank, without giving the notice required by the statute- This ques- tion was fully considered by the late Chief Justice Savage, in the case of Jojcksmi v. Esty, (7 Wend. Rep. 148.) And the supreme court there decided that it was not necessary that the occupant of the land sold for taxes should be the owner thereof j and that an occupant who was not the owner could not waiv^ the service of a notice on him, so as to perfect the title of the pur' chaser without an actual service of notice upon such occupant, andwithoutfurnishingevidence of such service to the comptroller* That decision I think was in accordance with the true construction 582 CASES IN CHANCKRY. [June ?0 The Bank of Utica v. Mersereau. of the statute ; which requires service of the notice to be made upon every person who is an actual occupant of the premises in eluded in the comptroller's deed, whoever he may be, and the obtaining the comptroller's certificate, as conditions precedent to the vestirig of the title of the owner of the land in the gran- tee in such deed, or in those claiming under him. In this case, however, I have arrived at the conclusion that the sale by the comptroller is one which came within the pro- visions of the act of April, 1830 ; because a part of the premises at least were occupied by the Messrs. Lewis at the expiration of the two years allowed by law for the redemption of the 801) acres from the sale. And the original purchaser at the comp troller's sale, whoeVer he was, lost his right to perfect his title ; by his neglect to serve the notice upon them within the time prescribed in that act. The pleadings and proofs show that as early as 1831, John G. Mersereau, claiming to be the owner of the premises conveyed to him by the deed of Garret- son and others, contracted to sell 1000 acres off of the north end thereof to the Messrs. Lewis ; that they moved on to the land, and exercised acts of ownership over the same by improv- ing parts thereof and getting lumber from the residue of the 1000 acres, until some time in 1834. And the maps produced in evidence show that the land so occupied by the Messrs, Lewis, included nearly two-thirds of the 800 acres sold by the comptroller for taxes ; even if the same should be laid out in such a form as to exclude the whole of the two Pier lots, which had been actually occupied from a much earlier period. It has been very correctly decided, by the late supreme court, that if any part of the premises sold for taxes is actually occupied at the times specified in the statutes relative to the giving of notices to the occupant, the purchaser must give the prescribed notice to the occupani of such part of the premises, and obtain the comptroller's certificate, that such notice was given and tliat the premises were not redeemed w.'thin the time prescribed; before he can complete his title to any part of the premises included in the sale. {Comstock and wife v. Beardslcj/, 13 Wend. Rep. 348. Bush v. Davison, 16 Idem, 550.) (84S.1 CASES IN CHANCER F. gj^g TLe Bank of Utica v. Mersercau. Again ; I am inclined to tiiink the premises assessed were 80 described that it is impossible to locate the 800 acres, in- tended to be sold out of the northwest corner thereof, to be laid out in a square form as nearly as may be. The lands were assess- ed to John Garretson ; but the quantity of land does not corres- pond with that embraced in the mortgage to the executors, of December, 1819 ; nor with that which was vested in the execu- tors by estoppel, north of the Dinah Mersereau lot, which in the assessment is described as the land of her husband Joshua Mersereau the elder. Two of the boundaries, the south and the west, can be ascertained without any difficulty; and perhaps the east might have been ascertained by showing what lands were occupied and claimed by other persons, to the north of the Ryers lot and adjoining the river, at the time the assessment was made. But the tract assessed is bounded on the north partly by the town line and partly by Rathbone's lands. And none of the witnesses can recollect that any person by thenameof Rathbone ever owned or occupied any lands in that township west of the Tioga river. The boundary intended was probably the land of some occupant who was in possession of land south and adjoining the Pier lots. But even if that fact was ascertained it would be necessary to ascertain the width, north and south, of the land as- sessed, as well as its extent on the east, for the purpose of locating the 800 acres. For that quantity of land laid out in a square form in the northwest corner of the, township would run so far east as to inc'ude a part of the Pier lots ; which were undoubtedly as- sessed to actual occupants, from the time of the conveyance thereof in 1819. As the lands described in the comptroller's deed could not be located, for want of a proper description of the 2401 acres, in the northwest corner of which the lands sold were to be laid out in a square form as nearly as might be, the sale was invalid. And the Steuben County Bank would not have acquired any title to any part of the premises in contro- versy, by virtue of the comptroller's deed, even if no part ot the premises which that deed was supposed to cover had been actually occupied at the expiration of the two years from tha 584 CASES IN CHANCERY. [Jcufi 30 The Bank of Utica v. Mcrsereau. time of the sale, or at the time of the giving of the deed by tha comptroller in December, 1837. The most important question in this case is, whether the judgment, under which the complainant claims title to the premises in question, was fraudulent and void as against the defendant banks, as creditors of the firm of Hoffman ld on execution became a part of the law of the colonies. 181S.J CASES IN CHANCERY. 587 The Bank of Utica v. Merscreau. In the fifst revision of our laws tlie legislature attempted to give a remedy at law, in the supreme court, to the purchasof of lands upon execution, or to his heirs or assigns, where he or they had been evicted on account of any irregularity in the proceedings, or want of title in the judgment debtor, or by rea- son of any prior incumbrance thereon. {Law of I9th March, 1787, § 7. 1 Greenl. Laws, 407.) And the same provision, in substance, was contained in the revisions of 1801 and of 1813. (I R. L. of 1801, p. 391, § 10. Id. of 1813, p. 504, § 11.) It is doubtful, however, whether this provision applied to a case where the plaintiff in the execution was himself the purchaser. If not, it left the law as to him precisely as it stood before; and only gave a statutory remedy to a stranger to the execution, who had become the purchaser and had been evicted, against the plaintiff, or the defendant, in the judgment and ex- ecution who ought injustice and equity to refund the purchase money to him. Although that statutory provision was in force for more than forty years, I am not aware that it ever came before any of our courts so as to obtain a judicial construction, except incidentally in the case of Woodcock v. Bennet, (1 CoW' en, 711.) Nor have I been able to learn that any proceedings were ever commenced under it. But while it was in force the case of Lansing and others v. Quackenbush, (5 Cowen's Rep. 38,) came before the supreme court, upon a summary applica- tion to the equitable power of that court for relief There oi;e of the plaintiffs in the execution had become the purchaser, at the sheriff's sale, of lands which were represented to be the property of the defendant, but which afterwards were ascer- tained to belong to another person. The court said there was clearly a remedy in the case ; but refused to give relief, upon a summary application, upon the ground that the more appropri- ate remedy was in a court of equity. In a subsequent case, how- ever, whore the sheriff had sold personal property which wag supposed to belong to the defendants in the execution, and had applied the proceeds of the sale upon the execution, but the real owner of the property had sued him and the judgment creditor, and had recovered of them (he value of the property, the su 588 CASES IN CHANCERY. 'Jui« 30 The Bank of Utica v. Mersereau. preme court, upon motion, in behalf of the original judgment creditor, directed the endorsement of the proceeds of the sale upon the execution to be stricken out ; and allowed him to take out a new execution for the amount of his judgment. [Adams V. Smith and Parmeter, (5 Cowen, 280.) The same equita- ble principle was acted on by that court in the subsequent case of Richardson v. McDoughall, (19 Wend. Rep. 80.) The statutory provision contained in the revision of 1830, (1 R. 'S'. 375, § 68,) clearly does not apply to the case under considera- tion. For that only gives an action, to. the purchaser, against the plaintifT in the execution, for whose benefit the property was sold. And merely in those cases where such purchaser has been evicted in consequence of an irregularity in the pro- ceedings concerning the sale, or in consequence 'of the judg- ment being vacated or reversed. There is indeed a remedy over against the defendant in the execution, in favor of the plaintiff therein ; but it is only given to him after he has been compelled to refund the purchase money, upon the sheriff's sale, to the purchaser' who has been thus evicted. Where the plain- tiff in the judgment is himself the purchaser, and has been evicted for want of title in the judgment debtor, his remedy depends still upon the equitable principle of our colonial com- mon law, derived originally from the statute of Henry the 8th as applied to sales of land upon execution ; which became the substitute for an extent by elegit. This equitable principle has been applied, by analogy, to sales of personal property an3 chattel interests in lands, where the plaintiff became the pur- chaser and was subsequently deprived of the benefit of his pur- chase, for want of title in the judgment debtor. And where the common law did not provide for such cases they were prop- er subjects for the interference of the court of chancery; or for relief upon a summary application to the equitable power of the court out of which the execution issued. In the territory comprising the present states of Massachusetts, New Hampshire and Maine, where no court of equity existed, the case was pro- vided for by the colonial law of 1671, which provided that A'here a party had obtained an execut on and levied the sanw 1848.] CASES IN CHANCERY. 589 The Bank of Utica ». Merscreau. upon lands, houses or goods, if it afterwards appeared that such landsj houses or goods did not belong to the party against whom the judgment was rendered, the party who had thus ' levied his execution thereon, by mistake, upon making it appear to the court which rendered the judgment, such court should order a new execution for satisfying the judgment ; notwith- standing the former execution returned. {See opinion of Mr. Justice Woodbury, in Whiting v. Bradley, 2 New Hamp. Hep. 85.) In the case of Jones y. Henry, (3 Litt. Rep. 435,) the court of appeals in Kentucky decided that the plaintiff in the execu- tion, who had indemnified the sheriff for selling property which it was afterwards ascertained did not belong to the judgment debtor but to another person who had recovered the value thereof in an action against the sheriff, was entitled to relief against the judgment debtor to the extent of the sum endorsed upon the execution. This decision was afterwards followed by the same court, in the case of Price v. Boyd, (1 Dana's Rep. 436.) A similar decision was made by the supreme court of Illinois, in the case of Warner v. Helm, (1 Gilm. Rep. 220.) The equitable principle before referred to and which is recog- nized in these decisions is applicable to the case now under consideration. For it is alleged in the bill, and admitted in the answer, that the complainant purchased the premises at the sheriff's sale, under a belief that the title was in the judgment debtors or one of them at the time of the docketing of the judg- ment. And this is admitted by the answer of the defendants. Indeed, in the statement of their property, furnished to the com- plainant and to the defendant banks in the ' spring of 1834. Hoffman & Mersereau represented to the complainant that they were the owners of the John Garretson lands of 4100 acres. The case therefore is like that of Muir v. Craig, (3 Blackf. Rep. 293;) where the supreme court of Indiana granted relief to the 'purchaser, against the judgment debtor who had repre- sented the lands sold by the sheriff as belonging to him, but It was subsequently ascertained that such was not the fact. I am aware that the supreme court of Pennsylvania, in the casn 590 CASES IN CHANCERY. fJoNB iffi The Bank of Utica v. Mereereau. of IVeenianv. Caldwell, (10 Watts' Rep. 1,) lias decided that a sale of real or personal estate to the amount of the judgment IS an absolute satisfaction of the debt. And also that the plain- tiff is without remedy, although it is afterwards established that the property bid off by him did not belong to the judgment debtor, and the same has been recovered of the purchaser by the real owner. But without deciding what the form of the relief should be in the present case, I have no doubt that the Bank of Utica would be entitled to relief in some form, against the judgment debtors, if a decree should be made against that bank upon the ground that none of the judgment debtors had any title to the land sold by the sheriff, either at the time of docketing the judgment or afterwards. And if so, Hoffman was an incompetent witness to prove that the defendants in the judgment, or any of them, were the owners of the real estate in controversy at the time the lien of the complainant's judgment attached, or at any time subsequent thereto and previous to the sale upon the execution. For if the complainant should fail in this suit upon the ground of a want of title in all or any of the judgment debtors, Hoffman & Mersereau would not only be lia- ble for the payment of the amount of their bonds and mortga- ges to the two defendant banks, but also for the whole amount of the judgment of the complainant. But, on the other hand, if the complainant succeeded in establishing the fact that, the title to the property sold under the execution was in the judg- ment debtors, the liability of Hoffman and his copartners to the Bank of Utica would be discharged, at least to the amount of the bid at the sheriff's sale. The whole of Hoffman's testimo- ny in relation to the title of the judgment debtors, or any c/ them, to the lands in controversy, or which has any bearing upon that questipn, was, therefore, properly suppressed, by thn vice chancellor. I think, however, this witness was not disqualified, by inter- est, to give testimony in favor of the complainant to rebut the charge that the judgment was fraudulent and void as against the two defendant banks. Nor was he incompetent as a wit- ness for the complainant upon the question as to the acceptance 1848.; CASES IN CHANCERY. 59 The Bank of Utica v. Merscreau. ■of the chattel mortgage by the latter, or as to the amount ol lumber embraced therein, and of the proceeds thereof, and what was done with such proceeds, and the fact of his agency. And in this court, where many issues are frequently combined in one suit, a witness is not to be rejected altogether because he may be interested as to one part of the case, when as to another part of the case he has no interest whatever. But he may be examined as a witness to that part of the case in which he hag no interest, or in which his interest is adverse to the party calling him. {Gresley on Eq. Ev. 2iS. 2 Wend. Rep. 201. Howe V. Cockrell, 1 Bail. Eq. Rep. 127.) Hoffman, so far from being interested in favor of the com- plainant in relation to the question of fraud in the judgment, appears to have been interested in favor of the parties against whom he was called and examined, on this point in the case. For if the title to the land was in the judgment debtors at the time of the giving of the bonds and mortgages to the two de- fendant banks, a decree against the claim of the complainant upon the ground that the judgment was fraudulent and void is against those mortgagees, would enable the mortgagees to ubtain satisfaction of their debts by a foreclosure and sale of the mortgaged premises. But such a decree would not, as between the complainant and Hoffman the papers; and being told that the witness and his part- ner were in the habit of entering their judgments at the clerk's office at Geneva, mqulred if it could not as well be entered at 1848.J CASES IN CHANCERY, 595 The Biink of TJtica v. Mersereau. Utica ; thtit being answered in the affirmative, Hoffman said he was going to Utica in a few days and would take the papeis lo the agent cf the witness at that place ; and that he at the same time stated to the witness that he wished to leave the papers at Utica himself, so that it might not be known for some days that the judgment was entered, because the Steuben Clounty Bank and the Chemung Canal Bank were about mak- ing some searches. From this statement of the testimony of Cotton, it appears that the whole circumstances which he was called upon to dis- close, except the mere fact of the execution of the bond and war- rant, which was a matter of no consequence in the cause, were conversations of his clients in reference to the subject of his pro- fessional employment; which convfersations it is wholly improb- able they would have held with him if they had not been under the supposed seal of professional confidence. And I think the true principle in reference to privileged communications between attorney and client to be, that where the attorney is profession- ally employed, any communication made to him, by his cUent, with reference to the object or the subject of such employment, is under the seal of professional confidence, and is entitled to protiection as a privileged communication. Such appears to be now the settled rule of the courts of England ; although it was at one time attempted to confine the privileges to communica- tions made in the prosecution or defence of a suit which had been, or was about to be commenced. The leading cases on the subject there are Cromack v. Heathcote, (2 Brod. Sf Bing. Rep. 4,) in the court of common pleas, and Greenough v. Gaskell, (1 Myln 6f Keen's Rep. 98,) and Herring v. Clobery, (1 Phillip^ Rep. 91,) in the court of chancery. The last of these cases was preceded, in this state, by the veiy well consid- ered opinion of Mr. Justice Bronson in the case of Coveney v Tannehill, (1 HilVs Rep. 33,) in the supreme court. The same correct principles had long previously been recognized iu this country, in the opinion of the late Judge Roane of the court of appeals of Virginia, in the important case of Barker v. Ccf '9 The Bank of Utica u. Merscreau. p.d to the case. {Skin. 404. Holt, 76.) By lefening tc ar.othei report of the same case, from the collections of Lord Chief Jus- tice Raymond, it will be seen that the agreement, which the attorney was called to prove the illegality of, was an agreement made in violation of the statute against buying and selling offices. (1 Ld. Raym. Rep. 733.) Justice BuUer has also a note of the same case, by the title of Holt v. Tyrrel. {Bull. N. P. 284.) But he is evidently wrong in supposing it was de- cided in the 13th year of the reign of George the First. For Lord Chief Justice Holt died in 1709 ; five years before the commencement of that reign. In the case of Cromack v. Heatkcote, (4 J. B. Moore's Rep. 387,) an attovney had been applied to for the purpose of drawing a fraudulent assignment which he declined doing; and the assignment was subsequently drawn by some other person. The attorney first applied to was offered as a witness to prove the fraud. But the court re- jected the evidence; upon the ground that the communica- tions made to the attorney were privileged. So in the case of Hyde v. M , (1 Moll. Rep. 450, n.) the client consulted an attorney as to the best manner of evading the demands of his creditors, and the attorney recommended a fraudulent mort- gage, which he prepared accordingly. The attorney being examined as a witness to prove those facts, the master of the rolls suppressed the deposition ; as being a breach of professional confidence. And in Doe v. Harris, (5 Car. S^ Pay. Rep. 592,) where the question was whether the deed given by an insolvent was not fraudulent ; the attorney was asked whether the insol- vent had not called upon him to draw the deed for the purpose of defrauding his creditori Mr. Justice Park rejected the evi- dence, as a violation of the professional privilege. A similar decision was made by the supreme court of Massachusetts, in the case of Foster v. Hall, (12 Pick. Rep. 89;) where the client was not a party to the suit, and the attorney was called upon to show that he was consulted by the grantor, in relation to the making of a deed to the complainant. The object of calling the attorney being to establish the fact that such deed Was fraudulent. In the case of Clay v. Williams, (2 Munf 000 CASES IN CHANCERY. Junb St The Bank of Utica v. Mereereau. Jtep. 105,) where an attorney had been examined as a witnesn in the court of chancery, and testified that he was employed to draw the band in controversy, and that it was given for the purpose of defrauding creditors, two of the judges of the court of appeals in Virginia appear to have considered the deposition as legal evidence. But Judge Roane held the mattei-s confided to the attorney, by the parties who employed him to draw the fraudulent deed, to be privileged communications ; and that the testimony of the witness, as to the disclosure of the fraudu- lent object of giving the deed, should be disregarded. The question however was not decided ; the other member of the court who heard the ajgument of the case expressing no opin ion upon that point, which did not affect the decree to be made by the court. With the exception of what was said by Mi". Justice Bronson in Coveney v. Tatmehill, (1 HilVs Rep. 36,) my researches have not enabled me to find any thing in con- flict with the decisions to which I have referred. I therefore do not feel authorized to say that the fact that Cotton was em- ployed by Hoffman & Mersereau to assist them in a transaction which, from what was said in his presence, he must have known to be a fraud upon their creditors, deprived their commu- nications of the seal of professional confidence. I admit, how- ever, that I should have been much better satisfied if I had found this question an open one ; or rather if I had found the decisions of the courts the other way. For I think with the late chief justice of our supreme court, that the privileged rela- tion of attorney and client ought to be permitted to exist only for honest purposes ; but not to enable the client to peipetrate a fraud, or to violate the laws, under the advice of counsel, or .through any other professional aid. For the reasons before stated, however, the application of the complainant to suppress the testimony of Cotton ought to have been granted by the vice chancellor. And so much ol the decree appealed from as denies that application with costs, must be reversed. Upon the question of fraud, if the testimony trfCctton could have been received, and the explanations of Hoflina i rejected. 1848] CASES IN CHANCERY. gQj The Bank of Utica i. Mersereau. it would have been very difficult to bring the mind to a concln- sion that the judgment was not in feet given for much inora than was jusOy due from Hoffman & Mersereau at the date of the bond and warrant. Even with the testimony of Hoffmai, I am not perfectly satisfied that the Mersereaua were interested in the firm of Love, PioIjjerJug &, Co. And if they were not, the Bank of Utica probably had no legal claim upon the firm of Hoffman & Mersereau for payment of any of the notes of Love, Pickering & Co. which were endorsed by C. Hoffman only. But I think the counsel for the defendants was wrong in supposing that only about $17,500 could properly have been included in the judgment. It is true, the statement which Hoffman furnished to the banks about the first of June, 1834, only showed an indebtedness of about $17,000 from Hoffman &, Mersereau to the Bank of Utica. And this was probably for the amount due upon! the eight notes and drafts, copies of which were sent to Groom, at Port Deposit, in Hunt's letter of the 13th of August, 1834 ; and as constituting the debts which were secured by the mortgage upon the lumber. It ap- pears in that statement which was furnished to the banks, however, that Hoffman & Mersereau owed to Joel Hoffman about $3300. And probably that indebtedness was for the two notes of $1200 each, and the one note of $800, drawn by some of the members of the firm and endorsed by other members thereof; and upon which Joel Hoffman's name also appeared as an endorser. He may therefore have gotten those notes dis- counted at the bank on his own account. And as the firm of Hoffman & Mersereau were not the makers of those notes, they would not upon the books of the bank be charged to the ac- count of that firm ; although they were in fact given to Joel Hoffman for debts of Hoffman , I. Collier, foi the appellant. D. &. Dickinson, fw steT was appointed secretary. On motion of Mr.~ Taber of Albany, it was Resolved, That a committee of five be appointed to prepare resolu- tions expressive of the views of the meeting. The Chair appointed Messrs. Taber of Albany, Kirkland of Utica, Reynolds of Albany, and Silliman and ]>Joyes of New-York. The committee withdrew, and after a jh' rt absence reported the *ollowing resolutions, which were unanimously adopted. Resolved, That in taking our final leave of the original supreme court of this state, a tribunal which has existed without any essential change for more than a century and a half, and during this large tjoi • tion of our whole colonial and national existence, has, by its wise an > upright decisions, commanded the unwavering confidence of the com- munity, and moulded the common law into a happy conformity to our free institutions — a tribunal never tarnished by the breath of suspicion, which has embodied some of the most illustrious names afforded by judicial history, and whose published decisions for the last half century have exhibited a body of municipal law honored at home and respected every where — we are impressed with a feeling of regret, mitigated only by the hope that the tribunal which succeeds it will pursue a course equally honorable and useful. Resolved, That the present and recent justices of this court, who.se last term for hearing arguments has now closed, have merited and secured the undiminished confidence of the public ; and that by their diligent research, the soundness and accuracy of their opinions, and their uniform kindness and courtesy to the profession, they are entitled to our highest respect and regard, and are followed by our cordial wishes for their individual prosperity and happiness. Resolved, That we deem the close of our former judiciary system a fitting occasion for the expression of our respect and regard for the eminent jurist who for so many years past has discharged the laborious and responsible duties of Chancellor of this state, and whose last term for hearing arguments has also recently ended. That the published volumes of his reports evince a degree of acuteness and discrimination, love of truth, sound morality, and thorough legal research, unsurpassed by any others, and honorable alike to himself and to the jurisprudence 01 our state. , APPENDIX. g>j7 Resolved, That the chairman and secretary cause the proceedinn-s of thisi meeting to be published, and that they also furnish to each of the judges of the supreme court, and to the chancellor, a copy of its proceedings. A. L. JORDAN, Chairman. H. R. Selden, Secretary. New-Ym-k, May 19. 1848. Hon. R. Hyde Walworth, Dear Sir : It affords us pleasure to be the medium of communicatinsr to you the foregoing resolutions ; and at the same time to Dee: tnat you will accept the assurance of our individual regard. A. L. JORDAN. H. R. SELDEN, Saratoga Springs, June 19, 1848. Gentlejien, Permit me through you to tender to the gentlemen of the bar my most grateful acknowledgments for their kind and complimentary resolution, which you were instructed to communicate to me, and which I received a few days since. The intimate and very pleasant relations which have existed between the "jembers of the bar of this state and myself, since I took a seat upon ne bench, and the uniform support and kindness I have received fr^m them during the judicial labors of more than a quarter of a century, will ever be remembered with feelings of the deepest gratitude. If in the discharge of iny official duties as chancellor any judicial reputation has been acquired, I am mainly indebted for it to the great aid I have constantly received from the profound researches and the able discussions of a most enlightened and intelligent bar ; a bar composed of gentlemen whose legal learning is at least equal to that of the bar of any other state or country, and who for love of truth and justice are not surpassed by the members of any other profession, or of any class of society. The very flattering commendation of my judicial services, by this resolution of my professional brethren who have witnessed the manner in which those services have been performed, and who can best appre- ciate their value, is most gratifying to my feelings ; as it is the strongest assurance I can receive that my honest endeavors to discharge the high trust, committed to me by my fellow citizens, in such a manner as tc benefit those from whom I received it, have not wholly failed Vol. III. 83 658 APPENDIX. Have the goodness to communicate to the legal gentleraf n whom you represent, my best wishes for their prosperity and happiness, indi- vidually as well as collectively. May they continue to maintain that love of truth and justice which is so essential to their usefulness in the profession ; and may they all possess that high Christian morality and faith which is necessary to solace them in a dying hour. And accept for yourselves, gentlemen, the assurance cf my sincere respect ana esteem. R. HYDE WALWORllL i/lesm. A. L. Jordan and H. R. Selden, Chairman and aecibMiy of meeting of the members of the bar. INDEX ACKNOWLEDGMENT, See Witness, 5. ACCORD AND SATISFACTION. An agreement, by a creditor, to accept a part of an admitted debt in satisfac- tion of the whole, without any other consideration, is not snSicient to dis- charge the debtor fioBi the payment of the residue. But if the debtor, in addition to the agreement to pay part of the debt, gives to the creditor any thing which in judgment of law can be considered a benefit to him, and, the creditor accepts it as a satisfac- tion of the whole liability of the debt- or, it is a good accord and satisfaction to release the debtor from further lia- bility. Douglass V. White, G21 ACCOUNT. 1 A bill, by persons claiming to be next t,f kin of a testator, against the exec- utors, for an account, making persons claiming an im-trest in the personal estate, as next af k'n. parties defen- dants, but allegts.j that the latter have no right, title, or interest in the estate, either as next of kin or oth- erwise, is demurrable, as to them. Mivir V. Trustees of the Leake and Watts •Orptum Hmise, ill t, TTnder the provisions of the revised statutes no one can be liable to ac- count to the next, of kin, as an eiee- utor of his own wrong. Where per- sons have received an rC591 660 INDEX. AGREEMENT. 1. The piinciple upon which courts of equity hola that a part performance of a parol agreement respecting land is sufficient to take a case out of the statute of frauds, is that a party who has permitted another to perform acts on the faith of such an agreement, shall not bj allowed to insist that the agreement was invalid because it was not in writing, and that he is entitled lo treat those acts as if the agreement in compliance with which they were performed had not been made. Lmo- ry V. Tew, 407 2. Taking possession of land under a parol agreement, and in compliance with the provisions of such agree- ment, accompanied by other acts which cannot be recalled so as to place the party taking possession in the same situationUhat he was in be- fore, has always been held to take such agreement out of the operation of the statute of frauds. ib 3. Although a party who has gone into possession of premises under an agree- ment to purchase the same is, at law, a tenant at will to the holder of the legal title, yet if he is in under a writ- ten agreement, made by the owner, to sell and convey the premises to him, or under a parol agreement which has been so far consummated as to enti- tle him to a specific performance, he is in equity considered the owner of that title for which he contracted, and which the vendor is able to give him. And if that title is an equity of redemption, he has the same claim to redeem, except as against bona fide purchasers without notice of his equitalile rights, as if the equity of redemption had been conveyed to him a. the time when his equitable rights accrued under the contract. ib i. In May, 1835, L. and wife leased to ■ H. a piece of land, in the city of New- York, for the term of 21 years. The lease contained a cove aant that at the end of the term the premises, p.nd the improvements the son, should be separately valued and appraised, by sworn, appraisers ; and that in case the lessors^ shoulU not, within ten days after 'the appraisement, elect to take the improvements at their ap- ■ praised value, then the lessors would sell and convey the premises to the lessee, or his assigns, at the price the same should be appraised or valued at. H. assigned this lease tc H. and M. ; who afterwards assigned tha same to The Steriing Co. In Janu ary, 1837, an agreement was made between the lessors and The Sterling Co., by which the former covenanted with the latter that in case The Ster- ling Co. should underlet or assign any lot or lots upon which no build- ing had already been erected, such lots respectively to be 25 feet in front and 100 feet in depth, and if the un- der lessee or assignee of such lots re- spectively should actually build, or cause to be built, on each of the lots so assigned, a two story dwelling house or tenement, with a brick front, then and in such case each and every lot so underlet or assigned, and which should have such dwelling house or tenement erected thereon, should be chargeable with the annual -rent of $G0 only, as its proportion of the rent reserved in the original lease; and that such under lessee or assignee, at the termination of the original lease, should, in respect to the improve- ments on such lot, be entitled to the like appraisement and provisions as were in that behalf specified in the original lease. The Sterling Co. sub- sequently divided the land into lots of 25 feet in front and rear, and 100 feet in depth, and leased two of those lots to B. for the residue of the term, by separate leases; B. covenanting with The Sterling Co. to pay the rent, and the taxes and assessments, and to build upon each of the lots a house of at least two stories in height, with a brick front. AndThe Sterling Co. covenanted with B. that, at the end of the term, he should, in respect to the improvements on those lots, be entitled to the like privileges, &c. as were specified in the original lease. The Sterling Co. subsequently re-as- signed the original lease to H. & M. ; and by divers mesne assignments the same came to, and was vested in, V. at the expiration of the term. B., the lessee of the two lots, instead of build- ing a two story house with a brick front on each lot divided the two lots into five ; each lot or subdivision be- ing 20 feet in front by 50 feet deep, and fronting on another street. Upon the corner lot there was erected by B. or his assigns, a two story house with a brick front. Frame buildings were erected upon three of the other lots, and a feed-store of brick upon the fourth lot. These leases to B. after- wards came by assignment to O. tht complainant. Shortly before the ter- mination of the original lease, L aui! INDEX. wife a^ree.l with 'S , the then owner thereof, to pay him for the buildings upon the demised premises, and pro- cured from him an assignpient of all his interest in the lease and leasehold premises to their son M. L. Upon the expiration of the lease L. and wife claimed that the complainant was not entitled to pay for the build- ings so erected on the five subdivis- ions ef the two lots leased by The SterliniT Co. to B., because they were not made in pursuance of the agree- ment with The Sterling Co. ; and re- fused to join in the appointment of appraisers of those two lots and the buildings thereon. On a bill filed by the assignee of B. against L. and wife, to restrain the prosecution of suits at law brought against him and his ten- ants, to recover the possession of the two lots leased to B., and for a spe- cific performance ; Held that the buildings erected upon the lots leased to B. were not such as were contem- plated in the agreement between L. and wife and The Sterling Co., or as B. covenanted to build. That although it was not required that the building should cover the whole front of the lot, 25 feet in width, yet that the erec- tion of "such a house as was described in the agreement, if built partly on one lot and partly on another, was not a compliance with the terms of that agreement, or with the covenant in the leases to B., as to either lot. And that the complainant, eis the assignee of B., was not entitled to any benefit under the agreement of January, ] 827 ; the covenant in that agreement, giv- ing f o the sub-lessees, or assignees of particular lots the right to an inde- pendent appraisal of their improve- ments, being limited to such lots as should have been improved in the manner therein contemplated. Os- trander v. lAvingston, 416 i Held oho, that the rights of the com- plainant, in reference to improve- ments, were no greater than they would have been had the agreement of January, 1827, not been made. And that under the covenant in the original lease, the value of the whole leasehold premises, and the value of the whole improvements, were to be separately estimated ; that the cove- nant giving the lessors the privilege of taking all the buildings or improve- ments at such valuation, or of con- veying the whole of the premises de- mised, upon being paid the price at which the while premises, exclusive of the improvements, were valued, at 601 their election, was in its nature indi- visible. And that if the entire interest of the lessee in distinct parcels of the demised premises had been assigned to different individuals, all who were interested in the performance of the covenants, or in the different parcels of the demised premises, must unite in the appraisal ; and in the purchase of the whole premises, if the lessors elected to convey the same at the ap praisal. ib G. Held further, that the effect of the agreement of January, 1827, was the same as if the particular lots which were leased or assigned, and built upon in conformity to the terms of that agreement, had formed no part of the premises originally demised to H. ill 7. And the bill showing that several other lots of 25 feet by 100 feet, into which the demised premises were sub- divided, were sublet to different per- sons, but not stating who such per- sons were, or whether any buildings were erected on their respective lots, and if so, whether they were erected in conformity to the provisions of the agreement of 1827, also Held that no relief could be granted upon the bill of the complainant, as framed,, even if he had made out a case entitling him to equitable reKef in other re- spects. And that M. L., the assignen of the lease and of a part of the prem- ises originally demised, so far as re- lated to that covenant, was a necessary party to any bill for a specific perform- ance thereof by the lessors ; even though the consideration of the as- signment of the lease to him was in fact paid by L. and wife, the original lessors. ib ALIENS, 1. It is a principle of the commjn law, that an alien can neither inherit lands himself, from a person who is not an alien, nor transmit lands by descent to any other person. Banks v. Walk' er, 438 2. Nor, by the common law, could a natural born subject or citizen trans- mit lands b^ descent to another medi- ately, through the blood of an alien. Thus in the case of grandfather, father and son, if the father was an ' alien, whether he was or was not liv- ing ' at the time of the descent cast, the grandfather could not tranemit 662 JNDEX. lands by descent to the grandson, al- tiiough both of them were natural born subjects or citizens, or had been duly naturalized.- But if the person who died seised of real estate had in- heritable blood, such real estate would descend to his next heir who had such inheritable blood, although the person who would otherwise have been the heir of the decedent was an alien, ib 3. Thus if the deceased had two sons, and the eldest was an alien, and the youngest was a natural born subject or citizen, the alienage of the eldest son, who otherwise would have been the hdr at law of his father, would not prevent the real estate of the father from descending to the young- est son, as heir at law. ib 4. And by the common law of England, the alienage, or attainder, of tne fa- ther did not prevent one of his sons from inheriting directly from another son. ib 6. The 22d section of the chapter of the revised statutes, relative to the descent of real property, which provides that no person capable of inheriting under the provisions of that chapter, shall be precluded from such inheritance by reason of the alienism of any ances- tor of such person, is broad enough to remove a disability arising from the alienism of the father and grand- father of the person claiming the in- heritance ; but it does not remove the disability of a person who, in tracing his pedigree and consanguinity as collateral heir of the person dying seised of the premises, must trace it mediately through the blood of the father of the latter, an alien f and who was not an ancestor of the claim- ant, ib 6. Where it is clearly inferable from a record of naturalization that the alien had not, at least three years previous to the date thereof, declared on oath his intention to become a citizen of the United States, and to renounce all allegiance to any foreign prince or sovereignty, and particularly to the king of the country of which he was a subject, as required by the act of 1802 ; but that the court has mis- taken the registry ot Uic arrival of the alien in the United States, for such a declaration of intention, it seems the naturalization is invalid. ib *. But if such record is valid, upon its . face, it is conclusive as to the regular- ity of the proceedings, and of the nat uralization of the alien. And sucL record cannot be contradicted by ex- trinsic proof that no such declaration of intention had in fact been made, ii ALIMONY. Where the wife, who is the defendant in a suit for a divorce, applies for an allowance for ad interim alimony, and for the expenses of her defence, upon a positive affidavit that she is innocent of the adultery charged, proof that the husband has recovered a verdict in an action of crim. con. against the alleged paramour of the wife, is no defence to the applica- tion ; such proof not being even pre- sumptive evidence of the fact of adul- tery, as against her. WllUavis v. Williams, 628 AMENDMENT. See Practice, 7. ANNUITY. 1. Where an annuity is given by a will, and there is no direction as to the time when it shall commence, it com- mences at the testator's death. Craig i. Craig, 7(j 2. What lands are primarily chargeable with the payment of an annuity to a widow in lieu of her dower, directed by a decree in partition to be paid by the owners of tMe several parcels of the land partitioned; which decree does not specify the order in which the several parcels are to be charged ; and where s^me of the parcels have been alienated to different puixsha- sers, and are subject to incumbrances. Livingston v. Freelaui, 510 3. Where an annuity, in favor of the widow of the testator, in lieu of her dower in all the real estate devised to his children, was charge5 upon the real estate of such devisee s generally, and one of such devisees subsequent- ly conveyed a part of the lands devised to him, and the grantees executed the conveyance and covenanted there- in to indemnify the grantor againsi the debts of the testator and to jwr' form all of the obligations imposed upon him as such devisee ; Held, that the grantor's proportionate share of the annuity to the widow was pri- marily chargeable upon the lands thus conveyed to such grantees. ib 4. And where the grantees subsequently reconveyed to the grantor a part of the same premises, with covenants of warranty and seisin ; Held that the residue of the premises, which re- mained in their hands after such reconveyance, was primarily charge- able with his share of the annuity ; as between their subsequent grantees of such residue and the owner of the lands reconveyed by thein to their ori- ginal grantor. ib ANSWER. See EvtDENCE, 1, 2, 3. Practice, 3, 4, 5. APPEAL. ' .Serving notice of an appeal from a final decree — which decree sets aside proceedings for the transfer of the real estate of a feme covert from the trus- tee of the estate, to her husband, as being fraudulent and void as against the children of the wife, and which provides for the reimbursement of the trust estate, and for the appointment of a new trustee, &c. with costs ; and which gives all the necessary conse- quential directions — and giving the ordinary appeal bond, in the penalty of $250] for the costs and damages of the respondent upon the appeal, will operate as a stay of all the proceed- ings upon the decree appealed from, except the proceedings for the costs, directed to be paid by the appellant. WrigM V. Mater, 382 S. Except as to the costs, such a decree is not a decree for tbe payment of money, within the intent and mean- ing of the S2d section of the article of the revised statutes relative to ap- peals ; so as to make it necessary for the appellant to give security to pay the amount decreed, before the com- ing in and confirmation of the mas- ter s report showing that money is to be paid. i* 3 The case is different where the decree ilin>et8 the payment of costs, but which INDEX, g63 have not been taxed, or directs the payment of the amount due upon a bond and mortgage, which is a mat- ter of mere computation, upon the coming in and confirmation of tiie report as to such amount. it . Where a final decree directs the ap pointment of a new trustee, and a conveyance to such new trustee when appointed, if the decree is not appeal- ed from until after such trustee has been actually appointed, the appellant must comply with the provisions ol the 83d and 84th sections of the article of the revised statutes relative to ap- peals, if he wishes to make his appeal a stay of proceedings. ib ASSIGNMENT. Where the consideration of an i ment is paid by one person and the assignment is made to another, the whole legal and equitable title to the assigned premises is vested in the lat- ter, except as to creditors of the form- er. Ostrander v. lAvingsUm, 418 Sei Bankrupt and Bankrupt Law, % Corporation, 3, 3, 5, 6, 7, 8, 9, 10. Debtor and Creditor, 7, 8, 9, 10, •Lease, 1. Mortgage, 4, 5, 6, 7, 8. Partnership, 4, 5, 6, 7, 8. ASSIGNOR AND ASSIGNEE. See Lease, 2, 3, 4, 5, 7, 8. ATTORNEY. It seems there is nothing in the statute, to prohibit an attorney from buying a j udgment for the purpose of issuing an execution theieon, and collecting the debt. The policy of the statute does not appear to embrace such a case. Warner v. Paine, 630 See Bill op Discotert. Parties, 3. Pbivileged Communications. AUCTION. Where real estate is sold at auction ana without warranty as to the title, and 664 INDEX. is conveyed accordingly, and a bond and mortgage is taken back for the purchase money, it is no defence to a suit to foreclose the mortgage, that the title failed in part ; where there was no fraud or misrepresentation on the part of the mortgagee, and where the property was put up and sold at the risk of the purchaser. Ba/nks v. Walker, 438 B BANKRUPT AND BANKRUPT LAW. 1. Where money and property are re- ceived by A. for the use of 15., under and by virtue of a judgment given, and an assignment of property madCj to him by C.,'in trust to pay a debt due from C. to B., such money and proper- ty constitute, in equity, a trust fund, in the hands of A., for the payment of the debt provided for. And a judg- ment recovered against him, by B., for the amount thus received by A., for his use, is a fiduciary debt ; which will not be discharged by A.'s bank- rupt certificate. iSngsla/nd v. Spal- ding, 341 S. An assignment made by a debtor, of his • property, in contemplation of bankruptcy, and for the purpose of giving preferences, is not absolutely void, for all purposes ; so as to leave the title to tne assigned property in the assignor, as if no assignment had been made. But it is only void as against an assignee properly appoint- ed under the bankrupt act. Seaman V. StougUon, 344 3. Where a decree is actually made by the court of chancery, before the dis- charge of a defendant under the bank- rupt act, for the payment of a debt which was contracted before the pro- ceedings in bankruptcy were insti- tuted, such debt may be proved under the decree in bankruptcy. And the discharge of the defendant is a bar to any suit, or other proceeding upon the decree, to charge the defendant person- ally with the debt ; unless such dis- charge can be successfully impeached for some|Of the causes specified in the bankrupt act. Johnson v. Fitzhugk, 360 I. Where a bill is filed against husband and wife, to foreclose a mortgage ex- ecuted by them, but before a decree is obtained in that suit^ the liusband ii declared a bankrupt, by the decree of the district court, the effect of thai decree is to vest in the assignee ii» bankruptcy, the whole interest of both defendants in the mortgaged premises except the inchoate right of dower of the wife in the equity of redemption. And unless the assignee in bankruptcy is made a party to the suit, after the decree in bankruptcy, a decree of fore- closure, subsequently obtained, will be a nullity, as to him ; and will not foreclose his equity of redemption in the mortgaged premises. ib 5. The proper course for the complain- ant, in such a case, after the decree in bankruptcy has been obtained, is to file a supplemental bill, in the nature of a bill of revivor ; to revive and con- tinue the proceedings against the assignee in bankruptcy, as the party upon whom the equity of redemption has been cast by operation of law. ib 6. Where a decree in chancery is entered against a defendant, subsequent to the institution of proceedings in bank- ruptcy by him, and he afterwards ob- tains his discharge, and is then sued in an action at law, upon the decree in chancery, his proper course is to plead his discharge, in bar of the suit at law ; , inserting in his plea the prop- er averments to show that the debt for the payment of which the decree was made, was contracted prior to the pre- senting of his petition in bankruptcy ; so as to be provable under the proceed- ings in bankruptcy, and to have been affected by the discharge. ii See Default. Husband and Wipe, 1. Pleading, 6, 7. BILL OF DISCOVERY. 1. It is useless and improper to make the counsel of a person a party to a mere bill of discovery as to papers alleged to be in his possession ; even if the matters inquired of by the bill could be properly disclosed by the counsel, if called as a witness against his client. Wakeman v. Bailey, 482 2. In ordinary cases, it is only necessa- ry to call upon the client to answer as to the contents of the deeds or pa- pers of which a discovery is sought ; alleging that they are in his hands o| in the h nds of his attorney or coun^ INDEX. ■el, and thus withm his power. And the court, in the absence of any alle- gation to the contrary, will presume the client can obtain the actual pos- session, himself, by a proper applica- tion to his attorney or counsel. ij> B Should that not be the case, however, the proper course is to make the bill of discovery against the client a bill for relief against him and his attorney or counsel, by charging that tlie latter will not deliver the deed or paper to his client, or permit him to examine it for the purpose of setting out its contents in an answer; or that the client alleges such to be the fact ; and therefore prayinw that the defendnnts may not only mscover whether the deed or paper is in the hands of the attorney or counsel, but that if it is in the hands of the latter he and his client may be ordered to produce it, or that the attorney or counsel may be ordered to produce it to his client, so that the latter may set it forth in his answer. ib 4. A party being bound, in the court of chancery, upon a bill of discovery, or for discovery and relief, to produce or discover the contents of deeds and other papers material to the prosecu- tion or defence of the rights of the adverse party, that court, upon a bill properly framed, will give similar re- lief where the deeds or other papers ai"e alleged to be in the possession of the party's attorney or counsel. ib BILL OF INTERPLEADER. 1'.. A bill of interpleader may be filed whenever it is a matter of doubt to which of the defendants the fund in the complainant's hands actually be- longs, so that he cannot safely pay it to either. Bell v. HvMt, 391 f Who are proper parties to a bill of interpleader. ii 3. Where the holder and owner of a bill of exchange is declared a bankrupt, and it is a matter of doubt whether such bill was not within the jurisdic- tion so as to pass to the assignee in bankruptcy, except as to bona fide holders thereof without notice, the drawer of the bill, who is liable tc pay the same to the rightful holder and owner, may file a bill of interpleader against the different claimants of such Vol. III. 84 66.5 bill to compel them to settle the right to the same between themse ^ea. ■Ui BILLS OF EXCHANGE AND PROMISSORY NOTES, 1. The purchaser of a negotiable not', or bill of exchange,' not payable on demand but at a specified time, is not a bona fide holder thereof without no- tice, if he became such purchaser after the bill or note had become due and was dishonored. In other words, the purchaser of a bill or note which has become due and payable, according to the terms thereof, takes it subject to all equities, or legal or equitable defences which existed against it in the hands of the person from whom he received it. De MM v. Starkey, 403 2. After a judgment creditor ha«' volun- tarily discharged the acceptors of a draft upon which a judgment had pre- viously been recovered against the en- dorser, by taking other security from such acceptors for a part of the debt, he cannot, in equity, enforce the judg- ment against the endorser of such draft ; and fhe endorser will be enti- tled to a perpetual injunction restrain- ing the assignee of the judgment from collecting the same of him. Douglass v. WAite, 621 See Gift. BONA FIDE PURCHASER. 1. It is a general rule of equity pleading that a defendant who claims protec- tion as a bona fide purchaser without notice, must deny such notice although it is not distinctly charged in the bill. Lowry v. Tew, 4U7 2. Where the purchaser of a bond and mortgage, obtained from the owner thereof by fraud and felony — though he has no reason to suspect any fraud in the transaction, so as to be put upon inquiry — pays for such securi- ties less than the amount actually due thereon, if he is entitled to protection as a bona fide purchaser without no- tice, he will not, in equity, be permit- ted to retain the bond and mortgage for the full amount due thereon; but only for the amount which he paid for them, Peabody v. Fenton, 451 3. Even in the case of negotiable paper which has been lost bj the owner, or 666 INDEX. which has been obtained from him by fraud, or hy larceny, the holderthereof cannot retain it as against the right- ful owner, where he received it under circumstances which were calculated to throw a suspicion upon the right of the person from whom he received it, to dispose of it as his own. For purchasing a security undfer such cir-, cumstances is gross negligejice. ib i. Thus where persons purchased a bond and mortgage originally given to se- cure the payment of S8000, and upon which the sum of S2000 and the annu- al interest had been paid ; they paying therefor only three- fourths of their ac- tual value, ■ in unsaleable goods at forty per cent above their market price, and out of the usual course of business ; Held that the fact that the pretended owner of the securities was willing to make such a sacrifice, and for articles which he did not intend to use himself, but which were to be im- mediately sent to an auctioneer to be sold, was sufficient to put the pur- chaser upon inquiry as to the owner- ship of the bond and mortgage. ib 5. A party, to be protected as a bona fide purchaser without notice, must have acquired the legal title, as well as an equitable right, to the property. ib fi. To entitle a party to the character of a bona fide purchaser without no- tice of a prior nght or equity; he must not only have obtained the legal title to the property, or the negotiable se- curity, but he must have paid the pur- chase money, or some part thereof at least, or have parted with something of value upon the faith of such pur- chase, before he had notice of such prior right or equity. De Mott v. Slarkey, 403 See Bills of Exchange, &c. 1. Husband and Wife, 17. Mortgage, 7. BOND. Wtere the condition of a lond, dated December 14, 1833, was that the obli- gor should pay to the obligee the sum of S3300, to be paid in manner fol- lowing, viz. $1000 on the first of April •text, the remainder in four annual payments thereafter, of $550 each, in- terest annually ; Held that the obligee was not entitled to any interest during the interval between the date of VM bond and the first of April, 1834, when the first payment was to be mad''. Fellffws \ . Harrington, 6« » See Appeal. BORROWER. See Ubqrt, c CASES OVERRULED, DOUBTED, COMMENTED ON, AND EX- PLAINED. 1. Andrews v. Dkterich, ( 14 Wend. Rep. 36,) doubted. Mmory v. WaUh, (8 Cmoen, 238,) and Parker v. Patridc, (5 Tferm Rep. 175,) commented upon. Peabody v. Fenton, 451 2. The Executors of Brasher v. Van Cortland, {2 John. Ch. R'.p. ^2, 400J and Beach v. Bradley, (8 Paiges Rep: 146,) commented on and ex- plained. Gorham v. Gorham, 24 3. Flanagan v. Flanagan, (1 Bro. C. C. 500,) commented upon, and over- ruled. Graham, v. Dickinson, 169 4. Wright V. Wright, (1 Covien, 598,) commented upon, and overmlea. Craig V. Craig, ' 70 5. The case oi James v. James, (4 Paige, 117,) commented on, and explained. a 6. Welmore v. Scovel, (3 Edw. Ch. Rep. 515,) approved of. Hoyt v. Macken- zie, 320 7. The dictum of Bronson, 3. in TlMmp son y. HewiU, (6 Hill, 254,) that the original debt was merged and extin- guished by the judgment, limited tu the case which he then had undei consideration Johnson v. Ftlg\ush, :3ERTIFICATE. See EvipENci, 4. ;ndex. CHARGE. Whtre tie owner of u charge upon tbs lands of several persons, which charge is primarily chargeable upon the lands of one of them, with full knowledge of the equitable rights of the parties, releases the lands prijna- rily chargeable, he will not be per- mitted to enforce his charge against the lands which are only seconaarily liable. Livingston v. Freeland, 510 Set Annuity, 2, 3, 4. COMMITTEE. See Lunatics. COMMON OPINION. See Maxims. COMPTROLLER'S DEED. 1. It is not necessary that a deed giv- en by the comptroller to the pur- chaser of lands sold for taxes, should be technically executed in the name of the people. It is sufBcientif it re- cites the substance of the statutes un- der which the sale was made, the non- payment of the taxes charged upon the land, the advertisement and sale of the premises, the payment of the purchase money by the grantee, and that the premises have not been redeemed ; and purports to convey the land to the original purchaser, or his assigns, hj virtme of the authority vested in the compl/roller by law; and is executed under the comptroller's official seal, apd witnessed by one of the officers mentioned in the statute. Tlue Bank of Utica V. Mersereau, 528 B. The statute does not require a comp- troller's deed to state in what year the tax was assessed, for the non- payment of which the land was sold. Hence if the deed states that the tax- es have been assessed and returned to the comptroller, and have remained unpaid for two years, this is all that is necessary to show upon the face of the deed that the comptroller was authorized to make the sale. ib 3. rhe prima facie evidence of owner- (Up in the grantee afforded by a 6G7 comptroller's deed, is liable to be re- butted by proof that the tax, returned to the comptroller as unpaid, had ac- tually been paid to tht! collector, id 4. Such prima facie evidence may also be rebutted by showing that the land thu& sold and conveyed by the comp- troller, or some part of it, was actu- ally occupied by some person at the expiration of two years from the time of the sale, or that it was so oc- cupied at the time of the giving of the comptroller's deed ; so as to throw upon the party claiming under such deed the necessity of giving to the oc- cupant the notice to redeem which is required by the statutes on this sub- ject, a See Tax Sales. CONSIDERATION. See Assignment. CONTINGENT REMAINDER. A contingent remainder may be limited on a term of years ; provided the na- ture of the contingency upon which it is limited is such that the remain- der must vest in interest, if ever, du- ring the continuance of not more than two lives in being at the time of the creation of such remainder, or upon the termination of not more than two lives then in being. Sailer v. BiU- ler, 304 CORPORATION. 1. By the English common law, corpo- rations aggregate, including religious corporations, and some corporations sole, had the same right as natural persons to aUen real estate, which they had the capacity to take and hold ; and for the same purposes and objects. De Riivter v. Trustees of St. Peter's Chwrch, 119 2. A corporation has the right to maka an assignment in trust for its credit- ors ; and may exercise it to the same extent, and in the same manner, as a natural person ; unless restrained by its charter, or by some statutof pro- vision, a 668 INDEX. 3. The trasteee of a religious corpora- tion have the power, with the consent of the court of chancery, and under the sanction of its order, to make an assignment of the real estate of the corporation, to trustees, in trust for the payment of all the creditors of the corporation ratably. And their deed of such real estate, under the corporate seal, will vest in the gran- tees the legal title of the corporation in such real estate, a,nd in the equity , of redemption in mortgaged premises. ib 4. The date of the incorporation of a company, under the provision of the revised statutes declaring that if any corporation created by the legislature shall not organize and commence the transaction of its bu'siness within one year from'the date of its incorporation Its corporate powers shall cease, is the time when the act creating the corpo- ration takes effect as a law. Johnson V. Bush, 207 5. An assignment, by the officers of a corporation, of a bond and mortgage exceeding one thousand dollars and constituting a part of its capital stock, is void; unless made in, pursuance of a previous resolution of the board of directors authorizing such assign- ment, ib 6. But it seems that the proof by the subscribing witness to such an assign- ment, before the commissioner of deeds, that the corporate seal was affixed to the same by the authority of the cor- poration, \s prima facie evidence that the assignment was authorized by the board of directors. ib 7. If an assignment of that nature is duly authenticated for the purpose of authorizing it to be recorded, it may be received in evidence, without fur- ther proof; subject, however, to the right of the adverse party to show that it was not duly executed by the cor- poration, because no resolution of the directors had authorized the person entrusted with the corporate seal to affix the same to such an assign- ment, ib B. Where, by statute, a resolution of the board of directors of a corporation is necessary to authorize an assignment of corporate property by the officers of sucli corporation, a certificate of proof before the acknowledging officer that the corporate seal was affixed by liie officer entrusted with such seal by the corporation, is no alone safl& cient to authorize such alignment t« be recorded, or to be read in evidenca without further proof. ib 9. A corporation has no legal power to take a surrender of a part of its capi- tal stock, not for the purpose of issu- ing new scrip therefor to other persons, upon being paid or secured the amount of the same from them, but as an ex- tinguishment of a part of the capital of the company, and to give up the property or effects of the company in exchange for the same. And the as- signment of the bond and mortgage, held by a corporation, in pursuance of such an arrangement, being in di- rect violation of the provisions of the statute, the assignee will acquire no legal or equitable right to such bond and mortgage by such an assign- ment, ib 10. Where a corporation took from one ' of its stockholders a surrender of twenty shares of its capital stock, held by him, and endorsed the amount of the par value thereof upon a bond and mortgage which it held against him, and then assigned the residue of the debt secured by that bond and mortgage, to certain other stockhold- ers, upon the surrender of the stock held by them ; Held that both trans- actions were in direct violation of the provisions of the statute prohibitin'j the directors of any moneyed corpo ration from dividing, withdrawing, ol in any manner paying to the stock- holders any part of the capital stock of the corporation, without the con- sent of the legislature. ii See Insolvent CoRPORATioNa. Insurance. Statute. COSTS. 1. Notice to the clerk to enter the ap pearance of the defendant is a propel charge, on the taxation of costs, where the defendant's solicitor did n it attend tlie office in person, to hav! the ap- pearance entered. But the solicitor is not entitled to an allowance for at- tendance upon entering such appear- ance. Mann v. Bice. 4-3 2. An engrossment of an affidavit which is not to be filed, is not taxable. ii 3 The costs of an unsuccessful motioiv INDEX. lo6\i or of an unsuccessful resist .inee to a motion, are not taxable against the adverse party as costs in the cause, unless a direction to that effect is con- tained in the order of the court. But the costs of a successful resistance to a motion are properly allowable, if the order denying the motion contains nothing to the contrary. ib i. A defendant ia not entitled to charge for a copy of his answer, to be used in opposing a motion, unless for some special reason, other than the negli- gence of his solicitor, it becomes ne- cessary to make a new copy for that purpose. ib 5. Where the costs of a motion to dis- solve an injunction are reserved until the hearing, they will abide the event of the suit, in case no special direc- tions are given at the hearinf . And if the event of the suit shows that in justice and equity the injunction never should have been granted, the defendant is entitled to the costs of the motion to dissolve it, as costs in the cause. a 6. A charge for a hrief, upon the settle- ment of interrogatories, is not taxable. ib 7. But a party is entitled to charge for solicitor and counsel attending upon the settlement of interrogatories, and arguing the same ; that being, in sub- stance, a reference, according to the practice of the court, to a master to settle the interrogatories. ib S. But the settlement of the interroga- tories and cross-interrogatories should take place at the same time, and form but one proceeding. And after the interrogatories have been settled, the party is not entitled to charge for fees to solicitor and counsel upon the set- tlement of cross-interrogatories, at a subsequent time. ib 9. Copies of cross-interrogatories, as settled, for the party proposing them, and for the adverse party, are charge- able. But a notice that the copy served is a copy is not allowable, to 10. A solicitor who serves a paper on the adverse party cannot be allowed an extra charge for giving him notice that the paper served is what it pur- ports to be. ib II A notice, to the opposite solicitor, of the order to close the proofs, is not taxable. But a notice to the exami- ner, oft le entering of such order, ia proper. U 12. After a bill has been dismissed, with costs, a copy of the opinion of the vice chancellor is not wanted by the de- fendant's solicitor for any of the pur- poses of the suit, and ought not to be charged to the adverse party, upon taxation. ib 13. Where the complainant improperly and unnecessarily comes into the court of chancery for relief, and the defen- dant, neglects to make the objection that the remedy of the complainant, if any, was at law, whereby the chan- cellor is compelled to take jurisdiction of the case and to decide it upon the merits, he may, in the exercise of a sound discretion, refuse to give to eithei party the general costs of the litiga- tion. The Bank of Utica v. Merse- reau, 53S See Husband and Wife, 15. COUNSEL. See Hill of Disccyeht. COVENANT. See Agreement. Estoppel, 3, 4, 6, 9, 10, II. CREDITOR'S BILL. 1. Where a judgment debtor dies before the judgment creditor has obtained an equitable lien upon his personal property by the filing of a creditor's bill, it cannot be reached by filing a bill of that nature against the widow and heirs of the deceased debtor. Wilber v. Collier, 427 2. An ordinary judgment creditor's bill is not the proper remedy to re..'ch real estate of a deceased judgment debtor, or an equitable interest in real estate, which has descended to his heirs at law. a 3. If the decedent hek the egal title, so that the Judgment was a lien upon the land, the judgment creditor's prop- er course is to revive the judgment against (he heirs or devisees of tha INDEX. 670 decedenl, and then to have the prop- erty sold upon execution. Butnftne decedent's interest in the real estate was a mere equitable interest, under a contract to purchase, or otherwise, which cannot be sold on execution, the judgment creditor, after exhaust- ing his remedy against the personal representatives of the decedent, or as- certaining that they have no assets to pay his debt, should apply to the surrogate, to compel them to sell the equitable interest of the testator, or intestate, for the payment of his debts; as authorized by the revised statutes. a I. It is not necessary for the assignee of a judgment to issue a new exe- cution thereon before he can file a creditor's bill against the defendant. Strange v. Longlmj, 650 6. It is a good objection to an applica- tion for the appointment of a receiver in a creditor's suit, that no execution has been issued to the county in which the judgment debtor resided. ii 6. Where the complainant in a creditor's suit has sworn positively, in his bill, that an execution has been issued to the county in which the judgment debtor resided, an injunction granted; in such suit will not be dissolved, upon a simple affidavit contradicting that fact. The defendant must put in his answer, denying the allegation, and then move to dissolve the injunction on bill and answer. ib 7 In the case of an execution issued before the statute was passed, requir- ing executions to be made returnable sixty days after the delivery thereof to the sheriff, a creditor's bill, founded on such execution, should state at what time the execution was made returnable. ii 8. Where the complainant in a creditor's suit claims the whole of the debt and costs included in a judgment, as the assignee of such judgment, he must show a valid assignment entitling him to the costs as well as to the debt, or the original judgment creditor, to whom the costs belong, must be joined with him in the suit, or must be made a party to the same as one of the de- fendants therein. ib 9. Where it does not appear from such bill that the whole judgment has been aoaigned U the complainant, but i^ is merely stated that the obligations up- on which the judgment was recotered, have been assigned to him, the bill i« defective. J* 10. A general averment, in such a bill, that the defendant is primarily liable for the pajrment of the obligationi upon which the judgment was recov- ered, is too indefinite to excuse the complainant from issuing an execu- tion to the county where the other judgment debtors reside; or making them parties to the suit. u CUSTOM. See Maxims. D DAMAGES. See Jurisdiction, 2. Literary Property, 1. DEBTOR AND CREDITOR, 1. The personal property left by a de. cedent belongs to the personal repre- sentatives, and can only be reached by a proceeding against them. And' if no other person will administer upon the estate, the judgment creditor should himself apply to the surrogate, and obtain letters of administration, and then apply the personal property of the decedent to the payment of debts in a due course of administra- tion. Wilier V. Collier, 427 2. If his is the oldest judgment, &jch creditor will be entitled to priority over other creditors. But if there are older judgments, the fact that his ex- ecution had been returned unsatisfied before the death of his creditor will not entitle him to any preference, ii 3. Aliter if he has acquired a specific lien upon the property, by the levy of fais execution thereon in the lifetime of the judgment debtor. ii i. The fact that tiie widow and cnildrcn of a deceased judgment debtor have taken possession of, and used, his per- sonal property, after his death, will not authorize the juilgmeut cj;eJit3i INDEX. to proceed against them by bill, to obtain Batisfaction of the judgment ; they not being liable to be sued as executors of their own wrong. ib i. Creditors by judgment, or otherwise, may reach an equitable interest in real estate, which their deceased debt- or held under a contract to purchase, by a suit against his heirs to whom it has descended. But before they can do this, in addition to exhausting their remedy against the personal rep- resentatives of the decedent, or show- ing by their bill that th re was no personal estate to pay the debts, they must "Wait until the expiration of three years from the time of granting letters testamentary or of administration, ib h. As between heirs and devisees, by the common law, lands undisposed of by the will are first to be applied to the payment of the debts of the testator ; where the personal estate is ncit sufficient fi>r that purpose, (rra- Aiim V. Dickinson, 169 7. An assignment by a debtor which at- tempts to appropriate a part of his proj)erty for the use of his wife, to satisfy an alleged claim in her favor which she could not have recovered from the assignor by any suit or pro- ceeding, either at law or in equity, is fraudulent and void as against the creditors of the assignor ; it the prop- erty of such assignor, at the time of the assignment, was not sufficient to pay all Ms other debts, and the alleged claim of his wife also, or so much of it as was attempted to be secured by the assignicent. Planck v. Schermer- hom, 644 B. If a debtor has ample property to pay all his debts, it is a fraud upon his creditors for him to assign all his property to an assignee, and to au- thorize such assignee to employ the proceeds thereof m defending suits which may be brought against the assignor by his creditors, to recover their several debts ; the effect of such assignment being to delay his cred- itors in the collection of their debts. ib i. It is equally fraudulent, uiider the statute, for a debtor to mal^e an assign- ment of his property for the purpose of dfelaying creditors in the collection of their debts, as it is 1 1 assign it in order to defeat the final collection of «uch debts. ib 671 10. A clause in an i ssignment, empow- ering the assignee to mortgage, oi lease, the assigned estate, is void as against creditors. So also, is a reser- vation of the right of the assignor to name the successor of the assignee, in case such assignee should wish to resign the trust. ib See Creditor's Bill. Heir. DECLARATIONS. 1. A declaration by a testator, made five years after the execution of a will by him, and when he was about to exe- cute another will, ihat he had been influenced to make a former will in which he had not done justice to his grandchildren, is not sufficient to au- thorize the court to reject tiie probate ff the fortner will, which was duly rxecuted, when the testator was in the possession of his mental faculties, and entirely free from restraint. Nal- son V. Mc-Giffert, 158 2. The declarations of a testator, made after the execution of his will, cannot be received as evidence of what lie intended by the terms nephews and nieces. Cromer '. Pinckney, 466 DECREE. 1. A decree setting aside proceedings, by which the real estate of a feme covert had been transferred from the trustee of the estate and vested in her hus- band, as bein^ fraudulent and void aa against the children of the feme co- vert ; directing a reference to a mas- ter to ascertain the value of those por- tions of the trust estate which have been sold by the husband to bona fide purchasers, and what sum, if any, should be paid by him to reimburse the trust estate, and to report a prop- er person and appoint him as trustee ; and giving all the consequential di- rections, so as finally to dispose of the whole case upon the coming in am* confirmation of the master's report, by a common order in the clerk's of- fice, without the necessity of bringing the cause again before the court for any other decree, or further directions, and which also dispces of tlie ques- tion of costs, is a final decree. H ri^ht V. Miller, 383 g72 INDEX. 2. No decree can be founded upon evi- tlence in relation to matters not put in issue, between the parties, by. the pleadings. Tripp v. Vincent, 613 3. F.orm and requisites of a decree for the redemption of mortgaged prem- ises, where the mortgage has been as- signed by ^'p mortgagee to a third person as security for a debt, Siceel V. Van Wijck, G47 See FoEECLosuRE Suit, Judgment, 2, 3. DEED. 1. A deed excciited by an attorney may be recorded, upon his acknowledg- ment before the proper officer, or up- on due proof that such deed was exe- cuted by him ; without proving the power under which the attorney acted in executing such deed. Johnson v. Bush, 207 2. A deed may be delivered to a stran- ger, for the grantee named therein, without any special authority from the grantee to receive it for him. And if the grantee assents to it, afterwards, the deed is vahd from the time of the original delivery. Tlie Lady Superi- or, (^c. V. McNamara, 373 3. Such assent vrill be presumed, from the beneficial interest of the grantee in the deed, unless a dissen^t is proved. ib 4. Where a deed is delivered to a third person, without any authority from the grantee, who refuses to accept or ratify the deed, such delivery is invalid. ib See Comptroller's Deed. Lease. Uses. DEFAULT. 1. Wlictlier a regular default will be\set aside to let in the defendant to set up his discharge under the bankrupt act 1 Qitcere. Kingsland v. Spalding, 341 2. Where a defendant has had an op- portunity < -et up his discharge under the bankrupt act, as a technical de- fence, aid has neglected to do so, the rourt vdll not open a regular default for the purpose of enabling him ta set up such discharge. Jr'ixenvin v. Warren, 'ISS See Foreclosure Suit, 8. DEVISEES. 1. Where a testator charged his person- al estate with the payment of his debts, but it being insufficient for that purpose, his executors applied to the surrogate for, and obtained, an order for the sale of his real estate in the possession of his devisees, which was sold accordingly, and the proceeds applied to the payment of the debts ofthe testator ; and subsequently thu commissioners under the treaty with France awarded to the executors a sum of money, upon \ claim which their testator had against the French government at the time of his death . which fund they received for the ben- efit ofthe estate ; Held that the sum of money thus received upon the French claim was in equity to be con- sidered a substitute for the real estate sold for the payment of debts prima- rily chargeable upon the testator's personal property, and that it belong- ed to those who were the devisees, or the owners, of the land thus sold, a* the time of the sale. Graham v. Dickinson, 169 2. Held also, that such devisees, or own- ers, were exclusively entitled to the spes recuperandi, or the hope of ob- taining satisfaction from the French government, for the claim against it, the moment their property was sold under the order ofthe surrogate. That they were entitled to the proceeds of that claim, not as real estate, but as a fund to which they had an equita- ble right to resort, to remunerate them for the loss of their lands. i} DISCOVERY. 1. It is well settled, independent of any statutory provision on the subject, that a defendant, in a bill in chance- ry, is not bound to make a discovery as to any ch\rgeoffelony against him, or as to any criminal offence involv- ing moral turpitude. The Union Bank v. Barker, 358 2. The language of the act of January 30, 1833, providing that a defendant INDEX. 673 E ■ha]] be compelled to answer any bill in chanceify chaining liim with bein»T a party to any conveyance, or assign- ment, made or cieatej with intent to delraud prior or subsequent parcha- sers. or to hinder or definaud creditors or other persons, or where the defen- dant shall be charged with any fraud whatever, affecting the rights or prop- erty of others, but that no such an- i sntr shall be received as evidence I against any party thereto, on any | complaint or on the trial of any in- I dictment for the fraud charged in the bill, is broad enough to embrace a \ ftaud coomiiUed bv the defendant by -i r>„, „ ,.„»„ „»,„ v __ means of his owi fo,gcr^-. But it '\^"!:* ^^ "^ ''^ ^"^ into pos- s ^ •.^•. I I session ot land as the tenant of aii- ESTOPPEL. Where a party enters into the posses- sion of land, claiming under a partic- ular title, he cannot set up an out- standing title in a stranger, as a defence to a suit, brought by the own- er of the title under wBch he entered, to recover the possession of the prem- ises. Tie Bant of Utica v. -V.v.«.- rcan, 503 foTgcrj-. But It j was not the intention of the legisla- j ture, by that act, to compel a defen- I dant, in a bill in chancery, to answer such a charge upon his oath. ib ). The act of 1633 was intended to em- brace a class of iirauds, aflecting the rights of property, which were not punishable by the connnon law. but j .which, by the statutes of this state, are now made criminal; so that the ; effect of the several statutory pro\-i- ) sions, subjecting persons guilty of 3 such frauds to criminal prosecutions therefor, should not deprive the par- 1 ties injured, of the discovery and re- i lief to which they were formerly en- titled in the court of chancery. ib \. Bdd, accordingly, that defendants were not bound to answer a charge of having entered into a conspiracy to de&aud the complainants and others by means of forgeries ; and of having actually obtained sevend sums of money by means of forged drafts and checlis. ii See Bill of Discotert. other, and acknowledging his title, is only estopped ftom denying the valid- ity of that title, and setting up a better right in himself, so long as he retains the possession ; or during the contin- uance of the tenancy. For upon the termination of the lease and the res- toration of the possession, he may sue and recover back the possession of the premises, upon showing a. better title in himself. a By the common law, if a grantor who has no interest, or only a defeasible interest, in the premises granted, con- veys the same with warranty, and afterwards obtains an absolute title to the property, such title inmiediately becomes vested in the grantee, or h^ heirs or assigns, by estoppel. JVndit' the grantor, or any one claiming title from him subsequent to such grant, seeks to recover the preaiises by \irtue of such after acquired title, the origi- nal grantee, or his heirs or assigns, by virtae of the warranty, which runs with the title to the land, may plead such warranty, by way of rebutter, or estoppel, as ein absolute bar to the claim. a DONATIO MORTIS CAUSi I. An absolute delivery, and a continued change of possession, arc essential requisites- of a good donatio mortis ! causa. Craig v. Craig, ~6 1 The pramissoTy note of the donor is not a valid gift mortis causa. ib DOWER. fW EXSCIlTCiiS 4N-D AOJIINISTBAT0R3, 4. This principle has been applied to all suits brought by persons bound by the warranty, or estoppel, against the grantee or his heirs or assigns ; so as to give the grantee, and mose claiming under huu, the same right to the premises as if the subsequently acquired title, or interest therein, had been actually vested in the grantor at the time of the original conveyance fipom him with warranty ; where the covenant of warranty was in full force at the time when such subsequent utie was acquired by the grantor. ii o. And where an estoppel runs witli the I land it operates 'ipon the UtJt w n* Vol. UL So 674 iNDEX. &etUAlIy to alter the interest^^in it, in the hands of the heirs or assigns of the person bound by the estoppel, as well as in the hands of such person himself. ib 6. As a covenant of warranty runs with the land, so as to give the heirs and assigns of the grantee the benefit of the estoppel as against the warrantor, it runs with the subsequently acquired interest of tlie warrantor, in the hands of the heirs and assigns of the latter ; so as to bind that interest, by the es- toppel, as against any person claiming the same under him, in the post. w 7. Where parties go into possession of premises claiming title thereto under a conveyance to a particular gran- tee, they cannot set up an outstand- ing title in a stranger, to defeat a person who claims the premises under the' same title as themselves, but by a prior right which overreaches their claim. ib 8. Persons entering into possession of land under the defendant in a judg- ment, subsequent to the issuing of an execution thereon, are bound to yield up the possession to the pur- cTiaser under such execution, unless they can show a better right in them- selves, or establish the fact that the judgment was invahd, as against them. a 9. Where the breach of the covenant of seisin in a deed affects the whole title, so that nothing passes to the grantees, a recovery by such grantees ifor the damage sustained by the breach of that covenant, may have the effect to prevent the operation of the estoppel created by such covenant, or even by a covenant --f warranty ; by creating a counter estoppel, which would prevent the grantees, or those claiming under them, from alleging that they acquired the title to the land by the original conveyance to them, ib 10. Although the grantee in a deed which contains a covenant of seisin, in connection with general covenants of warranty, and the heirs and assigns of such grantee, are not estopped by such deed ftom showing that the gran- tor had no title to the land attempted to be conveyed, the warrantor, and those claiming Under him, in the post, are estopped, by his covenants, from alleging that he had not a perfect title to the land when he conveyed the «amc with warranty, ib 11. Hence a reconveyance of the laniS, by the grantee thereof, without cove- nants of warranty in such reconvey- ance, will not prevent such origini.1 grantee from recovering for a breach of the covenant of seisin tontaineJ 'n the conveyance of the premises to him. "* See Judgment, &, 3. EVIDENCE. 1. Upon a bill to Set aside a bond and mortgage alleged to have been given by an insolvent debtor, to the mort- gagee, to defraud the creditors of the mortgagor, -if the assignees of .the mortgage deny any knowledge of the alleged fraud, by a separate answer, the answer of the assignor cannot be used as evidence against them to es- tablish such fraud. Du/iiham v. Gates, 19li 2. But if they join with him in an an- swer and admit their belief that what he states in the answer is true, if his admissions in such answer establish the fraud, it is sufficient to entitle the complfdnant to a decree against the assignees of the mortgage. ib 3. And where the assignees of the mort- gage put in a joint answer with the assignor, what is stated by him in such answer, responsive to the char- ges or interrogatories in the bill, will be evidence in favor of the assignees, to the same extent that it is evidence in favor of the assignor. ib 4. The certificate of the clerk of a court is not evidence of the existence of a judgment, except in those cases where it is made evidence by statute. Lan- sing V. RusseU, 325 5. Independent of any statutory provis- ion, the proper way to prove the ex- istence of a judgment is by the pro- duction of the record itself, or of an exemplification thereof, or of a xworn copy of such record. ii 6. In what cases the' testimony of ex perts is proper, npcn the trial of an issue as to the genuineness of the grantor's signature to a deed ; and what credit such testimony is < ntitlcu to. ii 7. The testimony of experts, who hava INDEX. been in the habit of exumining the marks and signatures of aged, as well as of middle aged and of young per- sons, for the purpose of determining the genuineness of such marks ECnd signatures, is proper; to show that the mark to an instrument alleged to be a forgery, could not have been the genuine mark of a very aged man, hut was a simulated mark. ib See Alimony. Will, 4,5, C, 7. EXECUTION. 1. A person has no right to apply to the court to set aside an execution for irregularity, so far as it affects his rights, in a suit to which he is not a party. Pierce v. Alsop, 184 2. The issuing of an execution, after the lapse of two years, without reviving the judgment by scire facias, where all the parties to the judgment are alive, is an irregularity merely ; and does not render a sale under it- void. ib 3. The lands of a judgment debtor were not liable to be sold on execution, by the English common law ; but by the statutes of extents and elegits they were set off to the judgment creditor until his debt should be paid. T/ie Bank of Ulica v. Mersereau, 528 t. The statute of 32 Hen. 8, chap. 5, giving a remedy to the creditor to whom the debtor's land had been de- livered in extent, upon elegit, where the tenant by elegit was afterwards evicted out of or from the possession of, such land, being a part of the gen- eral law of England at the time of the first settlement of New- York under the charter to the Duke of York, it became a part of the common law of the colonists ; in connection with the principles of the statutes of extents and execctions then existing in Eng- land. But when the statute of 5 Geo. 2, chap. 5, subjected real estate in the colonies to sale upon execu- tion, in the same manner as personal property, the writ of elegit was vir- tually abolished here. ib 5. The equitable principle of the statute of 32 Hen. 8, chap. 5, however, still applied to the case of a creditor who had purcboeed the real estate of his 675 debtor, upon execution. And it con- tinued to be a part of the law of the colony; though the particular form in which the relief had been given was no longer strictly applicable to the sale undpr an exedution. The co\irt of chancery, therefore, has jurisdic- tion to act upon the equitable princi- ple of the EngUsh statute, by giving rehef to the purchaser at a sale of lands upon execution, for an eviction , or failure of title ; upon an applica- ition to the equitable powers of that court. it G. Where the plaintiff in a judgment is himself the purchaser, and has been e^cted for want of title ih the judg- ment debtor, his remedy still depends upon the equitable principle of the colonial law, derived originally from the statute of Hen. 8, as applied to sales of land upon execution ; which equitable principle has been applied, by analogy, to sales of personal prop- erty, &c. where the plaintiff became the purchaser and was subsequently deprived of the benefit of his purchase for want of title in the judgment debt- . Where the common law does not pro vide for such cases, they are propei subjects for the interferenqe of the court of chancery ; or for relief upon a summary application to the equi table power of the court out of which the execution issued. H 8. This equitable principle applies to a case where a judgment creditor pur- chased premises at a sale thereof by the sheriff, under the judgment, in the belief that the title was in the judg- ment debtors, or one of them, at the time of the docketing of the judg- ment ; and where the judgment debt- ors, in a statement of their property, furnished to the judgment creditoi, and others, previous to such sale, had represented that they were the owners of the lands subsequently sold and bid off by the judgment creditor, ii 9. A mortgage, or assignment, of ptr- eonal property, to secure the payment of antecedent debts, is not entitled to a preference over an execution previ- ously placed in the hands of the sher- iff to be executed ; although no levy had been actually made at the time of executing the mortgage, c assign- ment. Warner v. Paine, G3fl g76 INDKX. EXECUTORS AND ADMINISTRA- TORS. 1. As a general rule, a foreign executor is not entitled to sue in our courts, without having proved the will, and taken out letters testamentary thereon, in the proper probate court of this slate. Lavrrence v. Lq,virenc€, 71 2. And where two executors are named in a will, and one of them has taken out letters testamentary in this state and the other has not, the one wh:> has obtained letters here may sue in his own name alone, without naming the other as a party. w 3. These rules, however, are only appli- cable to suits brought by executors for debts due to the testator, or where the foundation of the suit is based upon some transaction with the tes- tator in his lifetime. They do not prevent a foreign executor from suing in our courts upon a contract made with himself, as such executor. ib 4. In such a case the executor with whom the contract is made may sue upon it, in his own name, vrithout proving that letters testamentary were granted to him any where. z'S 5. Where an executor takes a security in his own name, from his co-execu- tor, for moneys received by the latter as executor, he takes such security merely as a trustee for the persons in- terested in the estate of the testator. ib 0. Where a testator, by his will, gives no authority to his executors to sell his real estate, the executors cannot sell any portion thereof, either for the purposes of division or otherwise. Craig V. Craig, 7G 7. But where an express power in trust is given to executors to divide a spe- cified part of the real and personal estate of the testator into four equal parts, and to invest two of the shares for the benefit of two of his children, this is a valid and imperative power in trust, under the provisions of the revised statutes, to divide such real estate into four equal parts, by a val- id and legal instrument setting off the share of each devisee in severalty, under the will. ii> 8. Where the widow's dower in the real estate of her deceased husband has been assigned to her previous to t'jf application to the surrogate for a sal« of the estate of the decedent, for tho payment of his debts, the pait as- signed to the widow for dower should be sold subject to her life estate there- in as tenant in dower. Maples v, Howe, 611 9. And where the estate of the decedent consists of an entire farm which tho surrogate's order directs to be sold together as one farm, the administra- tor should sell the whole farm, inclu- ding the part assigned to the widow for dower ; subject to her life estate in that part as tenant in dower. ib 10. Where the surrogate's order docs not direct a sale upon credit, the ad- ministrator should sell for cash ; un- less all the creditors consent to a sale upon credit. ib 11. Where executors employ a person not authorized to practice, to foreclose a mortgage due to the estate of their testator, and he forecloses the same in the name of another person, as so- licitor, but from the ignorance of the person so employed by the exe. utors, the mortgage is irregularly fore( wsed, so that a part of the debt is lust such executors are answerable to thi lega- tees for the amount of sucb 'oss. Wakemany.Hazleton, '48 See AcconNT. Set-Ofp. EXPERTS. See Evidence, G, 7. FALSE PRETENCES. See Bona Fide Purchaser. MoaTGAGE, 7. FERRY. Notice of an application to the court foi a license to establish a ferry, need not be given to all who claim a right to the ferry ; nor even to all those who have obtained a license from anothei court for a ferry at the same placu AH tfiat is required, where the appli- cant is not the owner of the land through which the highway adjoin- ing to the ferry runs, is that the per- son applying for a license shall give notice of the aiiplicatiou, to the own- ers of such land. Wiswall v. Wmv- deU, 312 See Pleading, 1. FORECLOSURE SUITS. '. . Where a mortgage is given by hus- band and wife, as executor and exec- utrix, to their co-executrix, to secure the payment of moneys of the estate received by the husband as executor, the wife, after her husband's death, cannot file a bill, in her character of executrix, against his personal rep- resentatives and heirs at law, to fore- close such mortgage ; where it does not appear from such bill that she is entitled to a portion of the fund se- cured by the mortgage, as a legatee, for her sole and separate use. Lmo- rence v. LMWrence, 71 2. If, in such a case, the wife had an interest in the fund, and the co-exec- utrix to whom the mortgage was given, upon a proper application to Eer for that purpose, refuses to pro- ceed to foreclose the mortgage, the widow of the mortgagee, and the other legatees for whose benefit the mort- gage was given, may file a bill show- ing their respective rights in the fund ; and claiming to have the benefit of such mortgage, eind of a foreclosure thereoC J* "i. But in that case the mortgagee, and all the legatees who are interested in the fiind, must be made parties to the suit ; or the bill must be filed by some of the legatees in behalf of themselves and of all others having an interest in the fund. ii . Whfre a bill was filed to foreclose a mortgage, which was a valid lien up- on premises worth the whole amount due on such mortgage, including costs of foreclosure, but owing to the igno- rance or- carelessness of the person employed to foreclose the mortgage, a subsequent purchaser of the mort- gaged premises, from the mortgagor, was not made a party, and the'biil ha-^rig been taken as confesse 1 against the mortgagor, a decree of INDEX. 577 foreclosure and sale was entered, and the premises were sold, for less than one third of the amount due upon the mortgage, to a person who transferred his bid to the owner of the equity of redomption ; Held that the decree for a foreclosure and sale was a mere nul- hty, so far as the rights of the owner of the equity of redemption were con- cerned ; and that it was a proper case for setting aside such decree, and the sale under it, and for granting leave to amend the bill, upon the applica- tion of the complainants, on terms. Wakeman v. Hazlelon, 14H 5. Where an appeal, by the defendants in a foreclosure suit, has prevented the complainants from obtaining the master's report, and a final decree, fnr a long time, during which time the respondents have been kept out of thr possession of the mortgaged premises, and of the rents and profits thereof, the appellants may be directed to pay to the respondents the rents and pro- fits of the mortgaged premises during the time for which the proceedings have been stayed, by the appeal, or so much of them as may be necessary to pay the deficiency ; as the damages of the respondents for the delay and vexatioh which (hey have sustained by the appeal, if upon the foreclosure and sale of the premises, under the decree which is finally entered in the suit, it shall turn out that the proceeds of the mortgaged premises are not suf- ficient to pay the amount due to the complainants, with interest and costs. And if necessary, a reference may ba directed, to ascertain the amount of such rents and profits. The Bank of mica V. Finch, 293 6. The complainant, in a foreclosure suit, cannot make a person whc claims the mortgaged premises ad- versely to both the mortgagor and the mortgagee a party defendant in such suit. And if he does so, and the fact of such adverse claim appears from the complainant's bill, the party thus made a defendant may demur to the bill for want of equity as to such de- fendant. Banks v. Walker, 438 7. Form and requisites of a decree for ths foreclosure of a mortgage, and the sale of the mortgaged premises, where the mortgage is conditioned for thfl support of the widow of the mortgagee, and where the several owners of dif- ferent parcels of the mortgaged prem- ises are bound to contribute to hsi Index. 6:8 fiupport ratably. Ferguson v. Kinv- bdll, 616 8. After a default has been regularly entered, in a foreclosure suit, it will not be opened for the purpose of en- abling the defendant to set up, as a defence, that the mortgage was given in violation of the restraining law ; except apon the terms of paying the mone n or property actually received from ihe mortgagee. Bard v. Fort, 633 9. Whei A a part of the mortgaged prem- ises are claimed by a feme covert as her separate estate, the court will not set aside a regular default, in a fore- closure suit, to enable her husband to set up an unconscientious defence to the whole suit ; but will make such an order as will protect the wife's claim to her separate estate in that portion of the premises. ib See Pleading, 2. FRAUD. Bona Fide Purchaser. Discovery. Hdsband and Wife, 10 to 14. Mortgage, 7. ■ FRAUDS, STATUTE OF. See Agreement, 1, 2, 3. G GIFT. 1. The promissory note of the donor is not a good gift inter vivos ; and the donor, or his representatives, may im- peach such a note for want of consid- eration. Craig V. Craig, 76 S. But it seems that the draft of the do- nor, in favor of another, may operate as an appointment, or appropriation, of the fund upon which it is drawn, to the use of the donee. ib See DoNAfia Mortis Causa. GUARDIAN AD LITEM. &« Husband and Wife, 10, 11. H HABITUAL DRUNKARDS. See Lunatics. HEIR. IVhere, subsequent to the death of 9 f)erson who died intestate, without easing sufficient personal . estate to pay his debts, his heir at law con- veyed to a creditor of the decedent a portion of the real estate which des- cended to him as heir at law, in part payment of the debt owing to the grantee by the decedent ; Held that such conveyance was not entitled, even in equity, to a preference over the legal lien Gf a judgment previous- ly obtained by another person, against the heir at law ; it not appearing that there was no other real estate to pay the debts of the testator, after apply- ing the personal property for that pur- pose. Pierce v. Alsop, 148 !. To entitle a creditor of a deceased debtor to a legal preference over a judgment creditor of the heir at law of the debtor, he must himself proceed to a judgment, or decree, against the heir at law, for the debt due from the latter, in respect to the lands descend- ed from the deceased debtor. Or he must apply to the surrogate, for a sale of the land, to satisfy the debts of the decedent which the personal estate is insufficient to pay. ii See Debtor and Creditor, 5, 6. HUSBAND AND WIFE. 1. LiaMlUy, of husband, 1. The liability of a husband, for the debt of his wife, and to b6 sued jointly with her in an action at law for the recovery of the same, terminates upon his being discharged under the bank- rupt act. And no suit at law can be maintained against the wife during the life of the husband without join- ing her husband with her in the same Suit. The remedy at law is therefore suspended as to the wife, or her es- tate, during the coverture. MidU'rv V, Vanderhsyden, 9 INDEX. 679 2. LiabUdy jfmife,far deb's amlracted by &er befon muiriage. 3. But thei e is nothing in the English Dankrubt act, or in our act of 1841, by which the discharge of the hus- hand is made a discharge of his wife, or a discharge of her separate estate, or of her reversionary interest in her real estate after the death of her hus- band, from liability for debts con- tracted by the wife before her mar- riage, ib 3. Where the wife survives her husband, who has been discharged under the bankrupt act, actions at law may be maintained against her for her debts, contracted before her marriage ; in the same manner as if her husband had not been discharged from his lia- bihty. lb 4. Upon the death of the husband, debts contracted by the wife before the mar- riage, and which have not been re- covered of her and her husbeind dur- ing her coverture, survive against her ; and the estate of her husband is not liable therefor. ib 3. Wife's separate estate. 5. Where the husband survives the wife, although he is no longer liable for debts contracted by her while sole, however much he may have received hy the marriage, her separate estate, in the hands of her personal repre- sentatives, is liable for those debts, ib C. A creditor whose remedy at law, for the collection of a debt contracted by a married woman previous to her mar- riage, is suspended during the life- time of the husband, by his discharge under the bankrupt act, may file a bill in chancery, against the husband and wife, to reach stocks standing in her name, for her sole and separate use, and other property held in the same iianner, and which belonged to her be lore her coverture ; and may have such separate property applied to the payment of his debt. ib 7. Where the real estate of a married woman has been converted into per- sonalty by operation of law, during her lifetime, it will be disposed of by the court, after her death, in the same jianner as if she had herself convert- ed it into personal property, previous to her death. Graiiam v. Dickinson, 169 8. Wheie the interest of a nustand in his wile's real estate is sold undei a -judgment recovered against him, hii right to redeem the premises from the SEile is at an end at the expiration of twelve months. And if the original purchaser, or a redemption creditor, obtains the legal title at the end of three months thereafter, the wife has no right to redeem, upon j)aying the amount of the original bid and inter- est ; although she is then entitled to a decree of separation. Sackett v. Giles, 204 4. Su,rvivorsAip of iB'fe. 9. Where stocks are conveyed to the husband and his wife jointly, and she outlives her husband, who dies with- out having disposed of the stocks, the wife takes the whole by survivorship. Craig V. Craig, 76 5. Suits between. 10. To annul marriage on the ground of fraud.] Ifthe defendant, in a suit by the husband, to annul a marriage on the ground of fraud, is an idiot, the complainant must procure the ap- pointment of a guardiain ad litem to appear and defend the suit for the vfife. Montgomery v. Montgomery. 132 11. Where no guardian ad litem is ap- pointed for the defendant, in such a case, the complainant will derive no benefit from the tacit admission of the fraud charged in the hill, arising from the wife's suffering such bill to be taken as confessed against her. ib 12. A court of equity will not annul a marriage contract as hav'ng been fraudulent, upon the mere admission, by the defendant, of the facts chargfd in the bill. i^ 13. A suit to annul a marriage, on the ground that the consent of one of the parties thereto was obtained by fraud, must be brought vrithin six years after the discovery, by the ag- grieved party, of the facts constituting Sie fraud. m 14. The meaning of the provision of the statute relative to suits of that nature, which declares that a marnage may be annulled on account of tbrce cr fraud, during the lifetime of the parties, or one of them, is not that the suit can be brought at any distance at time 680 ™DEX. after the right to institute it occurred, provided either of the parties is still living, but that the suit can only be brought during the lifetime of the parlies, or during the life of one of them, and not afterwards. ib 15. For a separation.] Where a bill was filed by the wife, against her hus- band, for a separation from bed and board, on account of alleged cruel' treatment, and the assignees of the husband's interest in the complain- ant's real estate were made defend- ants, and the husband died before a decree, but the wife had failed to make out a case which would have entitled her to a decree of separation if the husband had lived until the hearing ; Held, that the other defendants were entitled to have the bill dismissed, as to them, with costs. Sackett v. Giles, 204 16. The general liens of judgment cred- itors of the husband, upon the inter- est of the latter in the real estate of his wife, and which Uens have not been converted into an interest in the land itself at the time of the fiUns of a bill by the wife, against her hus- band, for a separation, are subservi- ent to the paramount right of the wife to the immediate use of the land ; upon her substantiating her right to a decree of separation, for the miscon- duct of the husband. ' ib 17. But where the interest of the hus- band in his wife's real estate is sold, by virtue of an execution issued upon a judgment recovered against him, before a separation has taken place between him and his wife, and before the filing of a bill for a separation, by the wife, and when the parties were living together as husband and wife, the purcnaser of such interest at the sherifTs sale is entitled to protection as a bona fide purchaser, where he had no notice of her right to a separa- tion, ib 6. Salts respecting wife's properly. 18. A. bill to set aside a will, which se- cures to a married woman and her issue, a share of the property of the testator, for her separate use during coverture, is improperly filed by the husband in the names of himself and his wife; the interests of the com- plainants being in conflict. Alston v. Jiwie/. 397 19. In such a case, the Tife, instead of being joined with her husband a» a complainant, should be made a defen J_ ant. See FoKECLOsHHE Suits, 1, 3. Presumptions, 3. IDIOT. See Husband and Wife, 10. INJUNCTION. An injunction will not be granted, to restrain the defendant from selling personal property, mortgaged to the complainant, under an execution a- gainst the mortgagor, which execu- tion was issued prior to the execution of the mortgage. Warner v. Paine, 630 See Literary Property. INSOLVENT CORPORATIONS. 1. The oflicers of an insolvent corpora- tion are not entitled to have their sala- ries paid in full, in preference to the debts of other creditors. They are only entitled to be paid their ratable proportion of the assets of the com- pany as between them and other cred- itors. Matter of the Croton Inswran:e Company, 643 2. The receiver of an insolvent corpora- tion may, upon application to the court, be authorized to compromise disputed and doubtful claims against the company, by the allowance of so much of such claims as he may deem just and equitable. ib 3. He may also be authorized, in any case where he may deem it expedient, and for the interest of the creditors and stockholders of the company to do so, to compromise with debtors of the corporation who are unable to pay in full ; upon the receipt of such part of the debts due from them as he shall deem reasonable and for the best intux- ests of such creditorJ and stockhold' ers of the company. it INDEX. 681 1. Such receiver will not be authorized to re-insure for risks already assumed by the company, and to pay the new premium out of the assets of the com- pany. But his proper course is to re- fund the unearned portion of the premiums received, where the "issured are wilUng to do so, and Itl ,aem re- insure for themselves. ib INSURANCK. 1. Where a corporation has underwrit- ten a policy, and afterwards causes itself to be reinsured, and after the loss of the property insured such cor- poration becomes insolvent, the per- son originally insured has no equita- ble lien, or preferable claim, upon the sum of money due on the contract of reinsurance. But that fund belongs to all the creditors of the insolvent corporation ratably ; under the pro- visions of the revised statutes relative to proceedings against corporations in equity. Herckenrath v. Tlie Amer. MiiiucU Ins. Co. G3 2. The risk which the first insurer had assumed, forms, as between him and the reinsurer, the subject matter of the reinsurance. And such reinsurance is a new contract, entirely distinct from the first, which still subsists in eill its force. ii 3. From the nature of the contract of reinsurance, and the want of privity between the reinsurer and the person first insured, it does not come within the rule that the principal creditor, in equity, is entitled to the benefit of all counter bonds and collateral securi- ties given by the principal debtor to his surety. ib i, it sefms that upon a contract of rein- surance the reinsurer is bound to pay the amount which the original in- surer becomes legally liable to pay to the assured in consequence of the risk assumed, and not merely the amount which the original insurer actually pays in consequence of the risk Eissumed by him. ii INTEREST. See BoN'O. ISSUES AT LAW. 1. Where the verdict of the jiry, upon the trial of issues sent to a court o.f law to be tried, is against the weight of evidence, a new trial will be grant- ed by the court directing the trial. Lansine v. Russell, 32j 2. Issues were awarded, to try the ques- tion as to the genuineness of a gran- tor's signature to two deeds, one to liia daughter and another to his son-in- law, and as to the competency of tlie grantor to execute such deeds ; and the jury having found in favor of the "alidity of both deeds, a motion was made for a new trial; upon which motion it appeared that it was tlie grantor's intention to make the shares of all his children in his estate equal. And the deed to his daughter profess- ing to have been given with the view of putting her upon an equality with his other children, and the court be- ing satisfied, from the evidence, that the grkntor could not have understood the efl'ect of that deed upon tlie divis- ion of his property, and the grantees having failed to prove that equality among the grantor's children would . be produced by allowing both deeds to stand, a new trial of the issues was ordered, so far as they related to the deed to the grantor's daughter. ib JUDGMENT. 1. Where a judgment has been recovered against a person on the ground that he has received moneys to the use of the plaintiff, under an assignment made and a judgment given, in truit for the benefit of the latter, the defen- dant is estopped from litigating the question again — in a creditor's suit founded upon such judgment — either as to the fact of its bein^ a fiduciary debt, or as to the amount received in his fiduciary character. Kingsland V. Spalding, 341 3. A decree, sentence, or judgment, of a court of competent jurisdiction, is con- clusive upon the parties, in a future litigation of the same question be- tween those parties, or those claiming under them ; whether such question arises directly or collateraliy' in tho subsequent litigation ; provided the question of estoppel is brought befors uie court in the proper form. it Vol. III. 86 6^2 INDKX. 3. VVherc the former decision of the siiiac matter cun be set up in plead- itW, as an estoppel, the party who wishes to avail himself of it must plead it in bar of the further litigation of the same matter. But in those ca- ses where the form of proceeding does hot allow of special pleading, it may be given in evidence ; and is conclu- sive upon the parties, the court, and the jury. ii t. Where a judgment has been recover- ed eigainst the principal debtor and his sureties, and a third person after- wards agrees with the creditor to be- come security for the payment of fhe_ debt, upon an agreement with such creditor that the new surety shall have the benefit of the judgment, for his protection and indemnity, he has a prior equity over the first sureties, and is entitled to enforce the collec- tion of the judgment for his own ben- efit and protection. La Grange v. MarnU, G25 >. In ordinary cases, although a judg- ment technically changes the nature of the debt, it is still in fact the same debt whirh was due at the commence- ment of the suit ; and if contracted previous to the institution of proceed- ings in bankruptcy against the debtor it will be barred by his discharge, where such discharge is obtained sub- sequently to the entry of the judg- ment. Johnson v. Fitzkiigh, 360 6. Since the act of May, 1840, concern jng costs and fees in courts of law, &c. it is not necessary ibr the regis- ters or clerks of the court of chance- ry, or the clerks of the supreme court, to docket decrees or judgments in the books of their own offices ; and if done, it will not affect the rights of either of the parties to the decree or judgment, or cast a cloud Upon the title of the defendant in such suit to his real estate. ib See Decree. Estoppel, 8. EV1DEN'CE,4, 5. Mortgage. JURISDICTION. I. Where rights exist, and the remedy at law is inadequate to meet the jus- tice and equity of the case, it is a part of the iirdinary jurisdiction of the court of chancery t ) provide fiir suet a case. MaUory v. Vanderheyden, 9 2. A court of equity will not entertain jurisdiction of a case for the mer« purpose of giving a compensation in damages, for an injury sustained by a false representation ; where the remedy at law, by an action on the case, is clear and perfect, and where no discovery is^asked for, from the de- fendant. Shepard, v. Sanford, ISI 3. A court of equity has no jurisdiction to restrain or punish crime, or to en- force the performance of a moral du- ty, except so far as the same is con- nected with the rights of property. Hoyt V. Mackenzie, 320 4. The court of chancery, upon a mere petition in the original suit, cannot make a personal decree or order a- gainst a purchaser pendente lite, who IS not a party to the suit, whereby properly not in litigation in such suit can be affected. But to reach and affect such lands, a new or supple- mental bill, against such purchaser, is necessary. lAvingston v. Preetand, 5U 5. Where the parties have submitted ' themselves to the jurisdiction of the court of chancery, without objection, the chancellor will not refuse to take jurisdiction of the case, and to make a proper decree therein, merely upon the ground that the complainant had a perfect remedy by an action at law. 7%e Bank of Ulica v. Merse- reau, 5/J8 See Costs, 13. Execution, 5, G, 7, 8. Literary Property, pleading. LANDI )RD AND TENANT. See EsTOPPEi,. Lease. LAPSE OF TIME. Where the, husband had a contract fol the purchase of land upon which ha made a mere nominal payment, and he afterwards died without leavinj (Jiy meiins of paying 'or such lands, leaving a wife and several infant childi'en surviving him, and the wife subsequently paid for the land and took a deed thereof in her own name, and afterwards conveyed the same with warranty ; and her children af- ter they became of age waited trom nine to fifteen years, and until their mother had become insolvent, before they attempted to assert their claim, in equity, to the land ; Held, that their bill was properly dismissed by the vice chancellor on account of their delay in instituting the suit. Spoor V. WcUs, 199 LEGACY AND LEGATEE. 1 As a general rule, a legatee may sue ihe executor, for his own particular egacy, without making the residuary 'egatees, or any other legatees, parties to the suit. Aliter where one of the residuary legatees sues for his share of the residue; an account of the es- tate being necessary, in that case. Cromer v. Pinclcney, 466 % Where a suit is brought for the recov- liry of & particular legacy, which suit, if successful, will reduce the fund be- queathed to the residuary legatee, the interest of the latter will be protected by representation ; the executors rep- resenting the residuary estate and those interested therein, for the pur- pose of protecting it against all prior claims upon it which might diminish its aniuunt. ib LEASE. I. An asrignment by the lessor, of the rent ut leasehold premises, creates such H privity of estate between the assignee and the lessee, that the former may maintain a suit in his own name for the rent which accrues and be- comes payable, while such privity of jstate exists. CMlds v. Clark, •■ 53 2 Where a deed of premises is given, aabject to a lease thereof for a term of years, previously given by the grs^ntor, and subject to the ric-hts of a person to whom the lessor has as- tisned his interest in the rents reserv- eu in and by such lease, for a portion of th.! term — the rights of such as- signee appearing upon the face of the deed — luch deed is constructive no- INDEX. (jgg tice to th purchaser of the premises, and also to his assigns, of the rights of the assignee of the rent for such portion of the term; although the as- signment of the rent has not been re corded. iJ 3. And the gi'antees of such purchaser will take their several interests in the premises as assignees, in law, of the lessee, during that portion of the term ; and subject to the rights of the as- signee of that portion of the rent ; and siibject to the payment of the rent, or of their respective portions thereof, which accrues or becomes payable during the times they hold and enjoy the premises as such assignees. ih i- If the conveyance to each purchaser of a portion of the premises, was for the whole term, the right of action against them, for rent, exists, as to a portion of the rent at least, although some of them are only assignees of undivided interests in the premises, ib 5. The privity of estate exists between the landlord and the assignee of the lessee, pro tanto, where the lessee only assigns a part of the premises, if such assignment is of his whole interest and estate in that part of the prem- ises. . ib 6. The distinction between an assign- ment and an under tenancy depends solely upon the quantity of interest which passes by the assignment, and not upon the extent of the premises transferred thereby. ib 7. The assignee of a lease is only liable, as such assignee, for the rent ^hich accrued or became payable, or for other covenants broken, while he was such assignee. And he may discharge himself from all further liability, ly assigning his interest in the premises to a stranger, even if the assignee is a beggar ; provided he actually relin- quishes the possession of the premises, and all interest therein, so that the assignment is not merely colorable, or fraudulent. . ii 8. There being no privity of contract be- tween the lessor and the assignee of the lease, the latter is personally liable on- ly in respect to his privity ol estate in the land, or in respect to covenants run- ning with the land, for the rent which accrued and became payable aftel such privity of estate commenced, and before it terminated ; or while he en^ I I I I n g54 '-s^fx joyed, 01 hail the right to enjoy, the premises or some part thereof, as an assignee of the lease. ib 9. A mere mortgagee of the term, who has not entered under his mortgage, is not personally liable, tis an assignee of the interest of the lessee in the premises. ib 1 0. Whether the assignees of the lessee's interest in undivided portions of the leasehold premises should be sued jointly for the whole rent, or sepa- rately for their respective portions thereof! QiLmre. ib 11. Whether the assignee of a part only of the leasehold premises, but of the whole of the lessee's interest in that part, is liable in law for the whole rent, or for the whole damage for the breach of any of the covenants in the lease which extend to the whole prem- ises ? Quare. ib See Agreement, 4, 5, 6, 7, 3. LETTERS. ifeC LlTERAET PbOPERTT. LITERARY PROPERTY. 1. At common law, the author of a book, or other literary production, whether in the shape of letters or otherwise, has a right of property therein, until it has been published with his assent ; and he may maintain an action for his damages arising from a surrepti- tious publication thereof. Hoyt v. Mackenzie, 320 2. And a court of ec[uity will, by injunc- tion, restrain the publication of letters written by the complainant, if they are of any value to him as literary productions ; or if his right to multi- ply copies thereof is of any value to him. ib 3. Aliler, however, in relation to letters written to the complainant by other persons, without any authority, ex- press or imjJied, being given to him to publish them. ib i. A letter cannot be considered of value to the author, for the purpose of ]mb- lication which he would not willingly coDseot to have published. ib 5. A coTiri *^ pyntiy t*si^^ tT'tvj'r ♦r- ercisd u-e /•! NT-4 ^ .weiiAiu »*••« |a!i- , lication of pn^aie letters, ou tha ground of protecting literary property, where they possess no attribute of literary composition. ii 6. Although it may be evident that the publication of private letters is with the view of wounding the feehngs of individuals, or of gratifying a pervert- ed public taste, a court of equity has no jurisdiction to restrain their publi- cation, when they are of no value as literary property. ii LIMITATION OF ESTATES. See Contingent Remainder. LIMITATIONS, STATUTE OF. 1. An equitable claim, upon which a bill in chancery could have been filed previous to the first of January, 1830, and where the complainant was under no legal disability, is barred, by the provisions of the revised statutes, at the expiration of ten years after the revised statutes went into operation, Spoor V. Welis, 199 2. The old statute of limitations is only applicable to suits in equity for claims as to which the right to sue existed previous to January, 1830, where there is a concurrent jurisdiction, at law and in equity, in reference to the.sub- ject of the suit ; but it does not apply to cases which are exclusively of equi- table cognizance. iS 3. To enable a defendant to take ad- vantage of the statute of limitations, upon demurrer, it must distinctly aj> pear, by the bill itself, that the com- plainant's remedy is barred by lapse of time. Mwir v. Trustees of the Leake and Watts Orphan House, 477 LUNATICS. 1. Where a bill is filed by the commit' ja of a lunatic, to set aside an act dona by such lunatic, upon the ground of his incompetency, it is not necessary that the lunatic himself should be made a party ; but he may be joined. as a party, with his comnuttee. Go»- ham V. Uurham,. 31 \ i In all other cases, the settled prac- tice in Engl!.ud has always been, either to join the committee vrith tlie lunatic, in bringing suits in chancery for his benefit, or to file the bill in the name of the lunatic, by his com- mittee. And where the lunatic is not made a party to tjhe bill, or informa- tion, in his behalf, it is a good cause of demurrer. The same rules are ap- plicable to suits brought in the courts of equity in this country, for the ben- efit of lunatics. ib 3. When it is said, by English writers, that idiots and lunatics must sue by their committees, it is not meant that the suit is to be brought by the com- mittee in their own names, merely describing themselves as the commit- tee of the lunatic; but that the suit is to be brought in the name of the lunatic, stating that he sues by the committee of his estate, naming them, as in the case of an infant suing by his next friend ; or that the suit should be prosecuted in the names of the lunatic, and of his committee, ib 4. A bill filed by the committee of a lu- natic, in their own names, in which they only describe themselves as his committee, is a bill by the committee alone ; and is not the bill of the luna- tic, by his committee. And a decree in favor of the complainants would not be a decree in favor of the luna- tic. ^ ii 5. A bill filed by « committee, in that manner, praying for a partition of lands and for an account and pay- ment of rents and profits of the share of the land belonging to the lunatic, is defective in form. And ' if the ob- jection that the lunatic is not made a party to the suit, with his commit- tee, is set up by the defendant, as a special cause of demurrer, no part of the bill can be sustained. ib 6. The objection that the lunatic himself is not made a party complainant, in a suit brought by his committee in re- lation to personal estate, may be waived by the defendant's neglecting to set it up by demurrer or answer ; and it cannot be raised merely by a general demurrer for want of equity. ib 7. The court of chancery, during the continuance of the lunacy, by stat- ute, has the whole control of the per- sonal estate and choses in action of the lunatic And it can transfer the INDEX 685 title to tl.e same, by directing n sale by the committee; and it nriy direct t&e committee to release any rigln of action in relation thereto, as miiy be equitable and just. So that when a matter relating to the personal estata of the lunatic has been fairly litiga- ted by the committee, in that court, and decided against them, the court may protect the defendant against a new suit, by the lunatic or his repre- sentatives, although the lunatic was not a formal party to the suit brought by his committee ; by directing the committee to transfer the property which was in litigation, to the defen- dant, or to release him from any fur- ther claim on account thereof. ib 8. The question whether a suit can be commenced in the n.^'me of a commit- tee of a lunatic, for the recovery of real estate, or to establish the title to the same, or whether a suit in parti- tion can be instituted in the name of such committee without joining the lunatic as a party, is wholly unaffect- ed by the act of 1S45, authorizing committees to site in their own names. ib 9. A lunatic is a necessary party to a bill, filed by his committee, for the partition of his real estate. For a decree in partition, upon a bill filed by the committee alone, and to which the lunatic is not a party, will not transfer the legal title to his undivided share of that portion of the premises which is set off to the defendant in severalty. ib 10. There is no statute, in this state, au- thorizing the committee of a lunatic, or of an habitual drunkard, to prose- cute a suit for partition in their own names alone ; or authorizing another person to prosecute a partition suit against them without making the lu- natic, or the habitual drunkard, who is an actual owner of an undivided part of the premises, a party to thfl suit. And the only way in which a legal partition can be made of the real estate of a lunatic, or an habitual drunkard, except by an agreement between the committee and tlie other tenants in common, with the concur- rence of the court, is to make him an actual party to the suit for partition. 11. By making a lunatic, or an habitual drunkard, a party to a suit for par- tition, his legal title to that portion INDEX. 686 of the premises which may be set off to the adverse party, in severalty, will pass, mthout any conveyance, either from the lunatic, or the habitual drunkard, or from his committee ; under the provisions of the revised statutes relative to the partition of lands. ib See Trusts and Trustees, 1, 2. M MARRIAGE. See Husband and Wife. MAXIMS. 1 . The maxim that custom is the best interpreter of the law, applied to the form of a comptroller's deed given on a sale of land for taxes ; where it appeared that it had been the custom to execute deeds in the same form, for more than a quarter of a century. Vile Bank of Utica v. Mersereaa, 528 S. The exprefsion of Lord Coke, that common opinion is good authority in law, does not apply to a mere specu- lative opinion in the community as to what the law upon a particular subject is. But when such opinion ha . been frequently acted upon, and for a great length of time, by those whose duty it is to administer the law, and important individual rights have been acquired or are dependant upon such practical construction of the law, it is> entitled to great weight. lb MORTGAGE. 1. Rights of vwrtgagor and mortgagee. I. M. being the owner of a farm, in Jan- uary, 1838, mortgaged the same to R. to secure the payment of S6000 and interest. In June thereafter he again mortgaged it to P. the complainant, to secure the payment of $7000 and interest. In March, 1842, he gave to P. an absolute deed of the prem- ises, and at the same time assigned to him his interest in two previous mort- gages thereon ; and took back from P. an instrument, not un^dcrseal, cer- tifying that he had received such con- veyance and assignment, and was t« sell and dispose of the farm in such lots, tracts, or parcels, and for such price, and upon such terms, as ha might deem expedient ; and was to apply the proceeds of such sales, &c. to the payment of M.'s bond and mort- gage to himself and to the payment of the prior bond and mortgage to R. ; and pay the surplus, if any, to M. And if it should be neces.saTy or ex- f)edient to foreclose either of the two ast mentioned mortgages, to perfect the title to the premises, the costs of the foreclosure were to be paid, as part of the necessary expenses of the execution of the trust. Subsequent- ly P. filed a bill to foreclose the mort- gage given to him by M. and obtain- ed the usual decree for foreclosure and sale, with a decree over against M. for the deficiency, if any. At the master's sale, the premises were bid in by P. for the sum of $200, subject to the prior mortgage to R. ; leaving a deficiency, due upon the decree, of $8355,59 ; for which amount the de- cree was docketed against M. the mortgagor. P. went into possession of the premises and received the in- come thereof kept down the interest upon the prior mortgage, and paid the taxes ; but the income was insuf- ficient for that purpose. On a bill filed by P., praying that the balance due to him upon his own bond and mortgage, and the interest which he had paid upon the prior bond and mortgage beyond the income of the premises might be ascertained ; that the premises might be sold ; that he might be permitted to bid at the sale, for the protection of his rights, &c. ; and might be permitted to enforce bis former decree for the deficiency ; HtTJ that this was a case in which the complainant was entitled to relief; and a demurrer to the bill was over- luled. Parsons v. Mumford, 153 2. Held also, that taking the whole transaction together — the conveyance from M. to P., emd the written defeas- ance, and the subsequent purchasing in of the premises by P., at the mas- ter's sale — it must be considered mere- ly as a further security of the debt due to P., and that the interest v f P., in the premises was in the nature of a mort- gage merely. ii 3. Held fwrther, that P.'s interest in th« premises was subject to an equity of redemption in M., and was not stnctii a trust which could enable JP to r;oi> Tey a go «1 title lo a purchaser who Waa acqt.unted with tiie facts of the case. ib 2. Delivery and assignment. i. Where the payee of a bond and mort- gage, given for the benefit of a third person, has consented, beforehand, to talce such bond and mortgage for the purpose of assigning them to the per- son whose debt is intended to be se- cured thereby, it is not necessary that any particular formality should be observed in delivering the instruments and obtaining his assignment thereof Placing them before hmi, for his sig- nature to the assignment, is a good delivery ; and his executing such assignment is an absolute acceptance by. him of the bond and mortgage. 7Se Lady Superior, (f-c. v. McNit- mara, 375 b. The delivery of the assignment to the mortgagor, for the benefit of the assignee, is also a good delivery of the assignment, to the latter, by the mort- gagee. And the bringing of a suit by the assignee to foreclose the mortgage, as such assignee thereof, is an assent to the assignment ; and relates back to the time when such assignment was delivered to the mortgagor for the benefit of the real party for whose se- curity the mortgage was given. ib f. It is not walid objection to an assign- ment of a bond and mortgage, espe- cially in a court of equity, that the assignee is not described therein by name. It is sufficient if the assign- ment is made to a person in a partic- ular character sustaini^l by him ; pro- vided the description identifies the assignee vrith as much certainty as if he had been described ly name, ib "!, Where a person obtained the assign- ment of a bond and mortgage, from the owner thereof, by false pretences, amounting not only to a gross fraud but also to a felony ; and transferred the same to a third person for less than their value, and under circum- stances calculated to put the latter upon inquiry ; Held that no title pass- ed to the purchaser, under the assign- ment to him ; and that the owner of the bond and mortgage was entitled to a decree declaring the assignments fraudulent and void, as against him, »nd directing the purchaser to re-as- Wffn the bond and mortgage ; and to teiund the amount which such pur- INDEX. gg7 chaser I. id collected upon th; same, with interest. Peabody v. tenting 451 8. Where a bond and mortgage are as- signed as security for a debt, a subse- quent assignee takes the same subject to the right of the onginal assignor, to redeem the securities, upon paying the amount of the loan for which such bond and mortgage were pledged, with interest. Sweet v. Van Wiick, 647 3.' Priority and lien, 9. Where a bond and mortgage are ac- tually given to secure a particular debt mentioned therein the mortgagee can- not, as against subsequent purchasers or incumbrancers, hold the mortgage as a lien for an entirely distinct and separate debt, upon parol proof that it was intended to cover that debt al- so, jf/te Bank of Utica v. Finck, 293 10. But where the mortgage is given to secure a particular debt, with a con- dition to be void upon the payment of that debt, the mortgagee does not lose his security by the mere exten- sion of the time of payment ; although that extension is in the form of a re- newal of the note which was given as a collateral security for the pay- ment of the same debt ; where it was not the intention of either party to discharge the mortgage security by such renewal of the note. ib 11. The proper way of bringing forward a defence which arises alter the put- ting in of the defendant's answer is by obtaining leave to file a supple- mental answer, or leave, to file a cros.i- bill. Tripp V. Vincent, G13 12. The release of a debt which is se- cured by a mortgage may discharge the lien of the mortgage upon the land. But where the debt is secured by the personal obligation of the mortgagor, as well as by a mortgage upon land, the debt will still exist, as a vahd claim against the land, al- though the creditor consents to dis- charge the personal liability of his debtor, and to look to tl e land alone, upon which the debt is e. lien, for lh« payment thereof. ii 13. Whether the debt itself was intend- ed to be discharged, or only the per- sonal liability of the debtor, is jn such cases a quest-on of fact; a.* 688 , INDEX sing either fvo.n extrinsic circumstan- ces, 'or upon the construction of the instruujnl which is claimed to be a discharge of the debt. ib {4. By the mortgagor's conveyance of mortgaged premises, to a purchaser, svbject to the payment of the mortgage by the latter, the land becomes the primary fund for the payment of the aebt due to the mortgagee. And re- leasing the personal liability of the mortgagor, who in equity is then only secondarily liable, leavqs the mort- gage in full force against the land ; in the same manner as if the mort- gagor had been discharged from his personal liability under the bankrupt act. a 4. To secure future advances. 15. A mortgage, or a judgment, may he . given to secure future advances ; or as a general security for balances which shall be due, from time to time, from the mortgagor, or judgment debtor. Tm Bank of Utica v. Pinck, 293 IG. And this security for future advan- ces may be taken in the form of a mortgage, or judgment, for a specific sum of money, sufficiently large to cover the amount of the floating debt intended to be secured thereby. ib See Bona fide Purchaser, 2, 4. MULTIFARIOUSNES S . 1. Multifariousness, properly spealung, is where different matters, having no connection with each other, are joined in a bill against several defendants, a part of whom have no interest in, or connection with, some of the dis- tinct matters for which the suit is brought; so that such defendants are put to the unnecessary trouble and expense of answering and litigating matters stated in the bill, in which they are not interested, and with which they have no connection. Newland v. Rogers, 432 2. A simple misjoinder of differentcauses of complaint, between the same par- ties, and which causes cannot conven- iently and properly be litigated to- gether, is sometimes called multifari- ousness ; but the ground of objection, in such cases, depends upon an en- tirely different principle from mii'lifa' riousness, properly so called, and is a mere question of convenience. U 3. The court of chancery abhors e use- less multiplication of 3-.;uts between the same parties, and endeavors to prevent it, as far as practicable. Hence it will not allow separate hilU to be filed for different ptrts of the same account, between the same pai- ties ; although the account relates to transactions which are not necessa- rily connected with each other, il 4. Accordingly, to sustain the objection that several distihct matters and causes of complaint between the same parties, are improperly joined in the same bill, such matters must be of such ditfer^nt natures, or the forms of proceeding in relation to such sev- eral matters must be so different, that it would be improper, or very incon- venient, to litigate the same in one suit. id 5. There is no general principle, of the court of chancery, that distinct mat- ters, between the same parties, who sue or are sued in the same right or capacity, cannot be united in the same bill. On the contrary, it is set- tled that matters of the same nature, between the same parties, although arising out of distihct transactions, may properly be joined in the same suit. it NEXT OP KIN. 1. Under the provisions of the reviscc statutes no one can be liable to ac- count to the next of kin, as an exec- utor of his own wrong. Where per- sons have received and disposed of the property of a testator, withou having been duly appointed his ex- ecutors, or duly authorized to act as such, they are Uable to his personal representatives, whenever such repre- sentatives shall have been appointed ; but not to persons claiming to bo next of kin of the decedent, merely. Mwir V. Trustees of the Leake and Watts Orp/uin House, iTi 2. The proper course for the next ot kin, in such a case, is to procure the appointment of an administrator, and have a suit instituted in ius naaae ta ."ecover tlie property from any person into whose liands it may have come, and wlio has converted it to his own use. ib Where it appears that the will of a testator has been duly admitted to probate, so as to render the appoint- ment of the executors valid, and to give the next of kin a claim upon them for the property of the testator not validly and effectually disposed of by will, such next of kin, in a bill by them against the executors, claim- ing that the decedent died intestate, and asking for an account of the per- sonal estate, are bound to state what the testamentary paper was upon which the surrogate granted letters testamentary to the executors ; so that the court may see whether the testa- tor in fact died intestate as to any part of his personal property. ib NEW TRIAL. See Issues at Law. NOTICE. See Bona fide Pukchaser. Ferry. Lease, 2. Pleadino, 1. Possession. PARTIES. I. Persons having adverse or conflicting interests in the subject of the litiga- tion should not be joined as complain- ants in the suit. Alston v. Jmies, 397 9 To enable the court of chancery to settle the question, in a suit between a mortgagee and a judgment creditor, whether an execution has been issued for more than was actually due upon the judgment, the judgment debtor is a necessary party. Warmr v. Paine, I The judgment debtor is also a neces- sary party to a bill to set aside an assignment of the judgment, upon the ground of its having been made in Vol. III. 87 INDEX.- (J89 violiition of the statute restraining at" .ornuys, solicitors, and counsellom from purchasing notes and choses i/i action for the purposes of prosecu- tion, i* See Agreement, 8. Bill of Discovery. Bill op Interpleader, 2. Husband and Wife, 18, 19 Lunatics. PARTITION. S>ie Annuity. Lunatics, 8, 9, 10, II. PARTNERSHIP. 1 . Where a partnership is dissolved by the death of one of the copartners, or where one or both of the copartners become bankrupt, or they are dis- charged under the insolvent acts, so that their property is placed in the hands of the assignees appointed by law to make distnbution thereof it is administered, in courts of equity, by applying the copartnership liinds, in the first place, to the payment of the debts of the firm ; and the individual funds of the several copartners to pay their individual debts respectively, be- fore paying joint debts out of the same. Kirmj v. Schoonmaker, ' 4G 2. But where the copartners are admin- istering their own funds, the copart- nershio creditors have no specific or preferable hen upon the joint funds ; nor have the individual crecjitors any lien or priority of claim upon the sep- arate property of their debtors. ib 3. It is only where neither the joint nor the separate creditors of the persons composing the firm can reach the property of their debtors, so as to ob- tain satisfaction by execution at law, that the equitable principle is applied of paying joint creditors out of the partnership property, and individual creditors out of the separate property of their debtors ; where tliere is not enough to pay both. ii 4. Copartners may assign their indivi- difal property, as well as their part- nership property, to pay the joint debts of the firm ; thereby giving the ciedi- tors of the firm a preference, in pay^ 690 ment out of the separate estate of the asaignois, over the separate creditors. ib 5. And each copartner, with the assent of the others, has the corresponding right to give his individual creditors a preference in payment out of the share of tiie effects of the firm which, as be- tween him and his copartners and without reference to the debts for which they are all jointly liable, is legally his own property. ib 6. Copartners may make an assignment of their respective interests in the part- nership property to trustees, giving a preference in payment to the individ- ual creditors of each copartner, out of his share of the partnership funds. But a partner who is insolvent and unable to pay the debts of the firm, has no right to assign his share of the partnership effects to pay the individ- ual debts of his copartner, for which neither he nor his property is legally or equitably liable. ib 1 There is an equity existing between the members of an insolvent copart- nership, by virtue of which any of (d\em may insist that the copartnership effects shall be applied to the payment of the debts of the firm in preference to the payment of the private debts of the individual partners ; and this gives to the creditors of the firm a quasi equitable lien upon the copart- nership effects, if the members of the firm, or any of them, choose to give effect to such lien, by working it out for the benefit of the joint creditors, ii 6. But this equity of the members of the firm as between themselves, does not deprive them of the right to apply the partnership effects to the payment of their joint and separate debts as they please, provided no injustice is done to any of their creditors. ib PLEADING. 1. BiM. 1, Where a bill was filed, by persons claiming the exclusive right to a ferry, to obl.ain a decree restraining the de- fendant from keeping a ferry .at the same place, and such bill alleged that the defendant had established a ferry there, iti violation of the rights of the oomplainants j and that he was using INDEX. the same in pursuance of a pretended license from some court or person, but that if any hcense had been granted to the defendant, the same was grant- ed in fraud of the complainants' rights. and viiilumt any legal Tiotice hi vkmn , but such bill contained no allegation that the complainants were the own ■ ers of the land through which the road adjoining the ferry ran ; Held that the averment, as to the want of notice to the complainants, was not material for any of the purposes of the suit ; and that the defendant was not bound to answer it. WlswaU v. Wandell, 312 2. Where a person executes a mortgage upon premises which he has previous- ly contracted to sell to another, and the mortgagees file a bill to foreclose such mortgage, making the purchaser a party thereto, if they mean to insist that they are entitled to a preference over such purchaser, as bona fide mortgagees vrithout notice, the bill should state that suoh purchaser claims an interest under a contract, or a pretended contract, to purchase, prior to the mortgage ; and it should also allege that if ne had any such interest tne complainants had no no- tice thereof at the time they took their mortgage. And the bill should show the other facts which are necessary to entitle the complainants to protec- tion as bona fide purchasers. The Bank of Orleans v. Flag/>, 316 3. Where a particular allegation is in- serted in a bill, for the purpose of transferring the jurisdiction from a court of law to a court of equity, the bill, or rather that particular allega- tion in the bill, must be verified by the oath of the complainant, or by the oath of some other person, on his be- half, who knows the fact. Alston v. Jones, 31)7 4. And where such allegation coven the whole equity of the bill, the de- fendant need not demur specially te that allegation, on the ground that it is not verified, but may demur gen- erally ; stating for cause of demunvl that the bill is not verified by oath, it 2. Answer, 5. After a defendant has answered tht original bill, and the proofs havebe>Nt taken in the cause, it is irregular auu unauthorized for him, either to nnsw ;| the matter of the original bill aneir INDEX. or to nut in an answer to a supple- mental bill, filed for the purpose of bringing additional parties belbre the court; and to which supplemental bill he is not a party. T"Ae American Jji/e Ins. and Trust Co. v. Bayard, GIO See Discovery. Evidence, 3, 3. Practice, 3, 4, 5. 3. Plea, 6. Where to a bill, by a creditor, against his debtor and the assignee of the latter, under an assignment for the benefit of creditors, praying for an account of the assigned property, and for the payment of tne com- plainant's debt, and other debts pro- vided ibr in the assignment, the as- signee pleaded that the assignor, after making the assignment, present- ed his petition to the district court, praying that he might be declared a bankrupt pursuant to the act of con- gress on the subject; and that such court made a decree appointing an assignee of his estate and effects ; whereby all the property assigned by the debtor to the defendant became • vested in the assignee in bankruptcy ; Held that the plea did not contain the necessary averments to show that the debtor was legally declared a bank- rupt, so as to vest his property in the nssignee in bankruptcy. Seaman v. iStoughUm, 344 7. To show that the court had jurisdic- tion to proceed, upon the petition of a debtor, under the voluntary provis- ions of the bankrupt act, the plea setting up a discharge in bankruptcy, or a right acquired under the decree therein, should state that the petition set forth a list of the petitioner's cred- itors and an inventory of his property, and that such petition was duly veri- fied. It should also distinctly appear that the bankrupt owed debts which had not been created in consequence of a defalcation as a public officer, or as an executor, administrator, guar- dian, or trustee, or while acting in any other fiduciary capacity. ii POSSESSION. (Vhere a purchaser of premises is in the actual ppssession thereof, by his ten- ant, atthetime ofthe giving a iportgage thereon to others, by the vendor, such possession is constructive notice to the 09 1 mortgagees, of tlie equitable rights of such purchaser ; and they are not en« titled to protection as bona fide mort- gagees without notice of his rights. T/ie Bank of Orleans v. Flagg, 316 See Agreement, 2, 3. Estoppel, 1, 3. POWERS. See Executors and Administrators 6,7. PKACTICE. 1. Where it appears that the complain-' ant is entitled to relief, but his bill is not properly framed to obtain such relief, the bill should not be dismissed absolutely ; but it should be dismissed without prejudice to his rights in any future litigation. Wilier v. Collier, 427 2 After the proofs in a cause have been closed, ex parte affidavits can- pot be received for the purpose of proving that a release of a witness' interest was executed and delivered to the vritness previous to his being ex- amined. vTVie Bank of Uiica v. Mer- sereait, 528 3. After a defenduut has answered the original bill, and the proofs have been taken in the cause, it is irregular and uuat'thorized for liim, either to answer the matter of the original bill anew, or to put in an answer to .\ supple- mental bill, filed for the purpose of bringing additional parties before the court ; and to which supplemental bill he is not a party. The American Life Ins. amd Trust Co. v. Bavard, 61U 4. And if the complainant, by mistake, files a replication to an answer thus put in, he will be permitted to vrith- draw the same, and to move to take the answer from the files of the court. ii 5. And if permitting the answer put in by the defendant to remain upon the files of the court will embarrass the proceedings and raise questions which will be productive of delay, it will bo ordered to be taken off the files. ii 6. Upon a rehearing, the case is apeir 692 INDEX. as to the party upon whose applica- tion the order lor a rehearing was granted, only as to those parts of the aecree which were complained of in the petition upon which that order was 'founded. Pergibson v. Kimball, G16 7. In what cases sworn bills may be amended, although the amendments contradict material allegations in the original bill. Hall v. Pisher, 637 See Appeal. PRESUMPTIONS. I. It is a natural presumption, and therefore adopted as a rule of law, that on the settlement of a new terri- tory by a colony from another coun- try, and where the colonists continue subject to the government of the mother country, they carry with them the general laws of that country, so far as those laws are applicable to the colonists in their new situation ; which thus become the unwritten law of the colony until altered by com- mon consent, or legislative enactment. De Rwyter v. Trustees of Si. Peter's Church, 119 S. The legal presumption is that a child born subsequent to the marriage of its mother, although begotten before that time, is the child of the husband. And the admission by a third person that the child was begotten by him, and not by the subsequent husband of the mother, is not evidence to re- but such legal presumption ; in a suit to annul the marriage upon the ground that the consent of the hus- band to the marriage contract was obtained by fraud. Montgomery v. Montgomery. 132 PRIVILEGED COMMUNICA- TIONS. I. The true principle, in reference to privileged communications between attorney and client, is that where the attorney is professionally employed, any communication made to him, by his client, with reference to the object or the subject of such employment, is under the seal of professional confi- dence, and is entitled to protection as a privileged communii. atinn. tVu Bank of Uiica v. Mersereaii, 53a 3. This seal of professional confidence is not the seal of the attorney, but oi his client, which the attorney is by law as well as by professional honot bound to keep intact ; and it cannot be removed except by the consent of the client. ii 3. The seal which the law once fixes upon such communications remains forever, unless removed by the party himself in whose favor it was thera placed. ii i. And where the privilege belongs to several clients, ic seems that neither , one of them, nor even a majority, contrary to the expressed will of the others, can waive the privilege, so as legally to justify the attorney in giv- ing testimony in relation to such priv- ileged communications ; especi.illy in a case where the testimony of the at- torney equally affects the moral char- acters of all his clients, by showing that they employed him profession- ally to assist them in giving a ficti- tious judgment for the purpose of de- frauding their creditors. ib 5. Nor will the fact that the client, whose assent to the removal of the seal of professional confidence from privi- leged communications has not been obtained, is not a party to the suit in which his attorney is called upon to testify, alter the case. ib 6. Neither wilLthe fact that an attorney was a subscribing witness, to a war- rant of attorney prepared by him for his clients to execute, alter the ques- tion as to the admissibility of his evi- dence tending to the conclusion that the object of giving the warrant of attorney, ajid having judgment en- tered thereon, was to hinder and de- lay their ci:editors in the collection of their debts ; and that the judgment was given for a much larger sum than was justly due to the judgment creditor. ii 7. But an attorney who is profession- ally employed to prepare a deed fol his client, and who afterwards vrit- nesses its execution, may be compelled not only to prove the execution ot such deed, but also to testify whether it was ante-dated ; whether it was in the same form in which it now ap INDEX. G93 pnajTB, at he tiine of its execution, or has been iltered ; and whether it was actually delivered at the time he sub- scribed his name thereto as a witness. ib B. And if the deed has been lost, or is in the hands oi the adverse party, who refuses to produce it upon the trial, or for the purposes of the suit, the attorney who witnessed the deed may be compelled to testify as to the con- tents thereof; although in the prepa- ration of such deed he was profession- all/ employed. ib 9. It seems the seal of professional con- fidence has never been held to cover a communication made to' an attor- ney to obtain professional advice or assistance as to the commission of a felony, or other crime which is malum in, sc, ib 10. But the fact that an attorney was employed by his clients to assist them in a transaction which, from what was sEiid in his presence, he must have known to be a fraud upon their creditors, will not deprive their com- munications of the seal of professional confidence. ii U. The privileged relation of attorney and client, however, ought only to be permitted to exist for honest purpo- ses, and not to enable the client to Eerpetrate a fraud, or to violate the iws under the advice of ccfunsel, or through any other professional aid. But the law appears to be settled oth- erwise, if R RECEIVER. See Insolvent Corporations. REHEARING. See Practice, 6. REINSURANCE. Ste Insolvent Corporations. Inscrance. RELEASE, See Mortgage, 12, 13. Witness. RELIGIOUS SOCIETIES. See CoKPOEATiow. RENT. See Lease. s SEPARATION. See Husband and Wipe, 15, 16, 17. SET-OFF. 1. B. bought four lots of land, and gava back mortgages thereon, to the ven- dor, for the purchase money. B. af- terwards sold and conveyed two of the lots to C, subject to the payment of one half of the mortgages, which C. agreed to pay, as part of the purchasa money. The latter then conveyed the same lots to R., subject to the pay- ment of the same amount ; which R . in the same manner agreed to pay, as a part of the consideration of his pur- chase. After R.'s death the mortga- ges were foreclosed, the lots were sold, and the proceeds of the sale being insufficient to pay the demands, there were decrees over against B., the mortgagor, for the deficiency ; which he was compelled to pay to the mort- gagee. He then called on C. for the payment of his share of such deficien- cy, and received from him his bond and mortgage as security therefor. On a bill, by the administratrix of R., to foreclose a mortgage given by C. to R. ; Held, that the amount of the deficiency, was a demand existing against R. in his lifetime, which C. might set off against the amount se- cured by the mortgage to R. which the executors sought to foreclose. Rawsony. Copland, IfiS 3. To entitle a defendant to an offset, against an executor or admi*istr itor. INDEX 694 it is not neftessary that the defen- dant's debt should have been actually due, or really liquidated, at the death of the testator or intestate. But it is sufficient if it has become due acl payable at the time the suit is brought against him by the executor or ad- ministrator ; so that if the decedent had lived, and had brought a suit against the defendant, at that time, the demand of the latter would have been a proper subject of offset. ib SOLICITOR. j! seems that if a person not legally au- thorized to practice law is employed to conduct judicial proceedings, he is not legally responsible to his employ- er for any loss the latter may sustain in consequence of the ignorance of the person so employed, in respect to legal proceedings. Wakeman v. flis- zlelon, 148 SPES RECUPERANDI. See Devisees. STATUTE. The fair construction of the act of April 14, 1838, amending the act to incor- porate the . Globe Fire Insurance Company, by which the directors named in the original act. were con- tinued in office until the 2d Tuesday of May, 1839, and were authorized to open the books of subscription again, and to receive subscriptions for the purpose of filling up the capital stock of the company, is that it extended the time for the organization of the company, and for the commencement of iis business, one year ; although that act does not in terms extend the time for the commencement of the business of the company. Johnson V Busk, 20" See HusBAwn and Wife, 14. STOCK. Ste Corporation, 5 6, 7, 8, 9, 10. Husband and Wipe, 6. SUPPLEMENTAL BILL. See Bankrupt and Bankrupt Lam, & SURROGATE. See Will, 4, 6. SURVIVORSHIP. See Husband and Wife, 9. TAX SALES. 1. The effect of the several statuton provisions relative to the sale of landii lor taxes, is that if the land sold l.y the comptroller, or any part thereofj is actually occupied at the end of the , two years from the close of the sales, ♦he purchaser, or his assignee, must serve the notice required by the act of April, 1830, upon the occupant, and file the evidence of such service vrith the comptroller, within the times pre- scribed by that act, or by the act o.*^ 1844 amending the same ; or he vrill lose the benefit of his purchase. TAe Bank of Utica v. Mersereau, SiJS 2. Where the purchaser serves such notice and files the evidence of such service within the time prescribed, and the lands are not redeemed within the six months allowed by the act of 1839 for that purpose, his title will become perfect as soon thereafter as he shall have obtained the comp- troller's deed ; whether such deed shall have been given before, or after, the service of such notice. ib 3. In cases, however, where the lands sold are not occupied at the expira- tion of-the two years, but there is an actual occupant of the land, or of any part of it, at the time of the giving of the comptroller's deed, the title of the purchaser will not become absolute, under such deed, until six months after he shall have served the occu- pant with the notice to redeem ; and shall have obtained the comptroller's certificate that evidence of the fact of such service has been filed, and that the land was not redeemeil by the J ayment of the redemDtlon monej INDEX. intc the treasury within six months afte the service of such notice. ib t. But in cases not coming within the scope of the act of April, 1830, there is no time limited by law for giving notice to the occupant of the land who was in the occupancy thereof at the time of giving the comptroller's deed. And the only effect of a neg- lect to give such notice is to extend the time for redemption of the land, and the perfecting of the title of the purchaser. ib 5. The fact that the occupant of the land sold is the tenant of the gran- tee in the comptroller's deed, will not authorize the latter to perfect his title, as against the paramount claims of others upon the land, without givin" the notice to the occupant required by the statute. ib G. If any part of the premises sold for taxes is actually occupied at the times specified in the statutes relative to the giving of notices to the occupant, the purchaser must give the prescrib- ed notice to the occupant of such part of the premises, and obtain the comp- troller's certificate that such notice was given and that the premises were not redeemed within the time prescribed ; before he can complete his title to any part of the premises in- cluded in the purchase. ih 7. If the lands described in the comp- troller's deed cannot be located, for want of a proper description of the tract out of which the lands sold were to be taken, the sale is invalid.- ib js'ce Comptrollee's Deed. TRUSTS AND TRUSTEES. 1. Trusts for accumulation, being pro- hibited by statute, except for the ben- efit of minors, a trust to accumulate the rents and profits of real estate, or the interest or income of personal estate, cannot be created for the ben- efit of a lunatic who is not a minor. But where an annuity is given abso- lutely to a lunatic, a court of equity may direct the surplus, beyond what is necessary for hit. support, to be paid over to his o immittee, and in- Tested for his use. Craig v. Crai?, 16 695 2. Where the income of a lunatic ii more than can be properly expended for his use, it must, as a matter of ne- cessity, be accumulated for him, il for those who may eventually be en- titled to his property, as his next of kin. But that is not a trust for accu- mulation which is prohibited by the statute. u) 3. Where there is a limitation over, not only of the capital of a fund directed to be invested for the purpose of pay- ing an annuity for Ufe, but of so much of the proceeds thereof as shall remain at the decease of the annuitant, there is an implied direction to accumulate the surplus income of the capital by the executors, in trust for adults, or for persons not in esse at the time the accumulation is directed to commence; which direction to accumulate is void by the provisions of the revised stat- utes, a i. Where trustees under a will have ac- cepted the trust aud have received a legacy given upon the condition that they should execute such trust, the court will not discharge them from the trust without good and sufficient cause be shown. ib 5. Where a portion of the trusts of a will can be so far severed from the general trust committed to the execu- tors, as to be capable of being vested in different persons, the court, upon sufiicient cause shown, and on the giving of proper security to protect flie rights of tne cestuis qite trust, may accept the resignation of the trustees appointed by the will, as to those par- ticular trusts, and appoint others in their places. ib G. A residuary devise of r^al or person- al estate, carries with it not only the property of the testator in which no interest is devised or bfequeathed by other parts of the will, but also all re- versionary and contingent interests in the property which, in events con- templated by the testator, are not otherwise disposed of. ib 7. To a bill filed by a cestui que trust against the trustees and the other cestuis que trust, for the purpose cT obtaining a conveyance of the com- plainant's share of the legal title to real estate, alleged to be in the trus- tees, and for a partition of the prem- ises, two of the defendants pleaded that neither the complainant nor th« INDEX. 69(5 trustees m whom the legal title was vested, were, nor was either of them, in possession of the premises at the time of the commencement of the suit ; without denying the allegation in the bill that the trustees held the legal title as trustees for the complainant and the other cestuis que trust in dif- .ferent undivided proportions; Held that the complainant was entitled to a decree establishing the alleged trust, and directing the conveyance of the complainant^ share of the legal es- tate to him whenever the trustees could legally make such conveyance ; notwithstanding the whole premises were, at the time, held adversely to both parties. Bradslarfet v. Schuy- ler, 608 Sec Uses. u USES. 1, The owner of a lot of land, in April, 1790, in consideration of ^6100, grant- ed, bargained, and sold the same unto Y., v., and six other persons named therein, and to their heirs and assigns forever ; to have and to hold the same to the grantees and their heirs and assigns forever, upon tmst, for the benefit of D., V., and eleven other persons named in the indenture, mem- bers of St. George's Lodge of Free- masons, and all others who then were or thereafter might become, members of such lodge, their survivors and suc- cessors forever, and for no other use, intent, or purpose whatsoever. All the parties of the second part named in this deed, except Y., and the whole of the thirteen persons specifically named therein as a part of the then members of the lodge, having died, and the lot having been taken by a rail-road company, for the use of their road, the damages were assessed, and the amount paid over to Y. as the sur- viving grantee in the deed. Upon a bill filed by the heirs of the grantor in the deed, against Y., to recover from him the moneys thus received, fjr the lot, from the rail-road compa- ny ; Held that it was not the inten- tion of the ^parties to the deed to vest either the whole legal title, or the whole beneficial interest in the prem- ises, in the thirteen persons therein ■pecifically named, as members of the lodg:, during the terms of their respec- tive lives, for their benefit and tha benefit of the survivor of them exclu- sively. But that it was the intention of the parties that it should operate as a conveyance of the legal title of the whole fee of the lot, not for the benefit of the thirteen individual* named, for life, with a resulting use to the grantor, but for the aggregata V body of the members who then consti- tuted, or who shopld thereafter con- stitute, the St. George's Lodge. Van- dervolgen v. Yates, 243 2. Held also that the members of the lodge could not, as a lodge or society of freemasons, take the legal estate in the premises, as an executed use, under the statute of Udes ; but that they could take a beneficial interest in the property, as a charitable use. ib 3. Held further, that the statute of uses, instead of vesting the legal estate in the thirteen persons named in the deed, for life, with remainder to the grantor as a resulting use, vested tbo whole legal estate in Y., V. and tlm six other grantees, and in the survivor of them, as trustees ; in trust for the use and benefit of those who were, ot who might thereafter become, mem- bers of tlie lodge, as a charitable use ; that the legal title 'was in Y., the sur- viving trustee, at the time the dam- ages were paid over to him ; and that the complainants were not entitled to such damages. ib 4. It was not the intention of the fra- mers of the statute of uses to defeat and destroy the beneficial interest of the cestui que use ; but only to change his mere equitable interest in the use of the property into a legal estate, in the property itself, of the same quality and duration. {b 5. Accordingly, where the beneficial use cannot take effect as a legal estate, in the cestui que use, it will take effect as a trust, in the same manner as if the statute had not been passed ; where it can take effect as a trust, consist- ently vrith the rules of law. ii USURY. A subsequent mortgagep is not a bor- rower within the meaning of the usu- ry laws, so as to authorize him to file a bill to set aside a previous security, given by the mortgagor, on the ground INDEX. that i". is usurious, without jiaying or offering to pay the amount actually due oi-advaneed, for which such pre- vious security was given. Rexfo-rd v, HUger, C-10 VENDOR AND PURCHASER. See Auction. Execution, 4, 5, 6, 7, 8 juhisdiction, 4. VERDICT. ■See Alimony. w WARRANTY. See Auction. Estoppel. WILL. I. Execution of. 1. Where one of the subscribing wit- nesses to a will swears that all the formalities required by the statute were complied vrith, on the execution thereof, the will may be admitted to probate; notwithstanding the other subscribing witnesses may not be able to recollect the fact. Nelson v. Mc- Giffert, 158 2. Where the attestation clause of a will states that the will was signed, sealed, and published by the testator, as his last will and testament, in the pre- sence of the attesting witnesses ; who, at Ms request, and in his presence, subscribed their names as witnesses thereto, this, after a considerable lapse of time, and when it may reasonably be supposed that the particular cir- cumstances attending the execution of the will have escaped the recollec- ton of the attesting vritnesses, is a circumstance from which the court, or a jury, may infer that these requi- sites of the statute were complied vrith. ib 697 Vol. tit. 8S 3. In the execution of wills, the statute does not require any particular form of words to Ife used by the testator, either in the admission of his signa- ture, in the publication of the instru- ment as his will, or in the communi- cation to the witnesses of his request or desire that they should subscribe their names to the vrill as attesting witnesses to the fact of its due execu- tion by him. It is sufficient if the formalities required by the statute are compUed with in substance. ii 2. Proving; and effect of probate. 4. Upon the proving of a will, before the surrogate, he has jurisdiction and power to receive proof that such will was revoked by a subsequent will of the testator; and that such subse- quent will has been fraudulently de- stroyed, or that it was destroyed by the testator when his mind had be- come so far impaired that he was in- competent to perform a testamentary act. id 5. But the chancellor alone has the power to take proof of the vrill which ' was thus destroyed, for the purpose of esti^blishing it as a testamentary . disposition of the property of the de- cedent, ii 6. In resisting the probate of an instru- ment propounded as the last will and testament of a decedent, his heirs and next of kin have the right to introduce any testimony which will be sufficient to satisfy the surrogate that the in^ strument propounded was not in force, as a vahd will, at the death of the testator named therein. tb 7. The probate of a will of personal property, whether such probate was obtained by a summary or a plenary proceeding, if granted by the proper testamentary court, is conclusive evi- dence of the due execution of such will ; until such probate has been called in, or annulled, by such court ; or has been reversed on appeal to the proper tribunal. Muir v. "Trustees of the Licake and Walts Orphan House, 477 3. Revocation of. 8. A subsequent will does not revoke a former one, unless it contains a clauss of revocation, or is inconsistent with it. And where it is inconsistent w'th 658 INDEX. the former will, in some of its provis- ions merely, it is only a revocation pro ianio. Kelson v. McGiJ'erl, 158 9. Where a subsequent will has been made, and there is no evidence that it contained any clause revoking a former will, as in cases where the con- tents of the last will cannot be ascer- tained, it is not tt revocation of the former will. ib 4, ConstriuMon of. 10. Where a testator, desiring to make a certain provision 'ur his son, which would give him a sure and ample sup- port during his life, by his will direct- ed his executors to invest in bonds and mortgages, and in New- York state stocks, a sum of money sufficient to produce, in legal interest, at least ■©500 per annum, to be held by such executors in trust for the legatee, and such income to be' used by them, in his support and maintenance; such investment to be made, as near as conveniently might be, in equal sums, in bonds and mortgages, and in New- York state stocks ; Held that the in- vestment should be so made, by the executors, as to raise the full sum of $500 annually ; that the testator did not intend that his executors should invest a capital which, at seven per cent interest, would produce $.500 an- nually, but an amount sufficient to produce at least $500, in legal inter- est or income, at the rates at which such capital could be kept invested during trie probable continuance of the life of his son ; and that in mak- ing the investments upon bonds and mortgages the executors were author- ized to invest such a sum as would, at six per cent, produce $250 annu- ally. Craig v. Craig, 75 ', 1. Held also, tljat as to the other half of the investment, directed to be made in public stocks of the state, the ex- ecutors had no discretion, so long as there were any such stocks to be pur- chased at par, whatever might be the annual income therefrom ; and that in making the first investment, the ex- ecutors were authorized to purchase, . above par, five per cent stock enough to produce an income of $250, annu- ally, if they could not get it at par. , But that after having once made such investment in stocks, the executors iroalJ not be authorized to diminish the capital of the fund invested, by purchasing other stock a a rate be- yond its pur value, in case the first stock should be paid off. iA 12. Where there is a devise of the in- come and avails of property to a per- son, for life, vrithout any devise or bequest to the executors as trustees of such property, the legatee will take a legal estate in such property, if there is nothing else in the will to show that the testator intended to create a vaUd trust of the estate for his benefit. For a devise of the rents and profits of land for life, without any thing more, is but another mode of making a devise of the land itself, du- ring the same period. ib 13. But where the will clearly shows that the testator intended a legatee should receive the rents and profits of the real estate embraced in one share of his property, as well as the income of the personal estate included there- in, through the medium of his execu- tors, the executors take the legal title to that share of the real estate during the continuance of the beneficial in- terest of the legatee therein, as trus- tees, by implication ; to enable them to rent the premises, and to receive the rents and profits thereof, and pay them over to the legatee, or apply them to his use. ib 14. Where a testator, by the residuary clause of his will, gave, devised, and bequeathed to his wife, and to his child or children, all the ri st and resi- due of his estate, share and share alike, and to the heirs of such child or children who might die leaving law- ful issue ; and in case either his wife or children should di*e without leaving lawful issue, then the share of such one dying to go and be divided amongst the survivor or survivors of them ; Held that the limitation over to the survivors of the class was suf- ficient to show that an indefinite fail- ure of issue was not intended by the testator, but a failure of issue at the death of the first taker ; and that thu limitation over to the surviving lega- tees was therefore valid. Lovett v. Bwloid, 137 15. Held also, that the bequest to the widow, as well as to the children, was absolute in its terms, subject only to the contingency of the death of the legatee without leaving issue surviv- INDEX. 699 'S And two of the testator's dm gliteis • having died lea\ing issue, and leav- ing their husbands surviving them. Held furl/be r, that they were entitled to an absolute estate and interest in their respective parts of the testator's residuary property ; and that after their deaths, respectively, the same belonged to their husbands ; under the provisions of the revised statutes relative to the distribution of intes- tates' estates. ii 17. Where a remainder, after the termi- nation of a particular estate, is limited to certain specified individuals, or to the survivors of them, the court vvrill refer the survivorship to the death of the testator, and not to the termina- tion of the particular estate, where it is necessary to give effect to the prob- able intention of the testator in pro- viding for the surviving issue of such of the objects of his bounty as may happen to die during the continuance of the particular estate. ib 1 8. But it seems this rule of construc- tion will not be applied to a case where the particular estate is given to a class, with remainder to the sur- vivors upon the death of some of the class without leaving issue. ib 19. Where the residuary estate of the testator is given to a class of persons, with remainder in the shares of such of them as die without issue, to the survivors, there is no benefit of survivorship, among the surviving members of the class, as to the share of the one of the class who has died without issue ; but the surviving mem- bers of the class take their respective portions of that share absolutely, ib 20. A testator, by the fourth codicil to his will, revoked a certain part of the third codicil, and instead thereof he directed his executors to pay S500 out of one share, or the fourth part of his estate, to the widow of his deceased son, and to pay over the remainder of that share to H., it trust, to invest the same and to pay over to his grand- uuugliler s. lliB income thereof semi- annually until her eldest child should arrive at the age of twenty-one years ; and at that period to divide the fund, as it might then exist, into as many shares as there might then be chil- dren of S,, and to pay over to each child his or her share, upon their ar- riving at the age of twenty-one years, respectively. The testator's property consistefl of personal estate en irely. On a bill by S. against her husband, and her children who were then liv- ing, and against the substituted trus- tee, claiming that the fourth codicil vfas void, so far as it Umited the.re- mainder in one of the shares to hei children ; Held that the fair construc- tion of the fourth codicil was that the testator referred to the eldest child of S. at the time of making such codicil, as the child upon whose arrival at the age of twenty-one, S.'s estate in the income of that fourth of the tes- tator's property should terminate ; and not to the eldest of her children who should attain the age of twenty- one. Butler V. Butler, 304 21. Held also, that the fourth codicil should be construed as if the testator had directed the trustee to pay the income of the ftind to S. until her oldest child, then in existence, or who might be in existence at the testator's death, should arrive at th^ age of twenty-one years ; or until the time when such child would have arrived at the age of twenty-one jrears if it had lived to attain its majority. And in case such eldest child should live to attain its majority, then that such one-fourth of the estate should be di- vided into as many shares as there were children of S. then living, and ■ that one share should belong to each child, and should be payable when they respectively arrived at the age of twenty-one ; the income in the meantime to be accumulated- for the benefit of such of them as were mi- nors, ib 22. Heldfti/rlher that this contingent re- mainder to the children of S. was so limited that it must vest in interest, if ever, during the continuance of one life in being at the time of the death of the testator ; which time, in a will, is to be deemed the time of the crea- tion of the estate. _ ib 23. And the eldest child of S. who was in esse at the death of the testator, having lived to attain the age of twenty-one years, Held that the con- tingency contemplated by the testator then occurred; and that the children of S. who wore then living thereupon became the absolute owners of the whole t." the fund in controversy, ii SJ4. A testator, by his will, devised and bequeathcu to his wife all the incoius of his real and personal estate fol INDEX. roo life. And after her death he gave certain portions of his estate to the children of her brother. He then .gave the residue of his estate, after the death of his wife, to A. E. T. du- ring her life, subject to certain char- fes. By the fourth clause of his will e gave to the children or issue of A. E. T. SIO.OOO, after her death, and to the children of W. P. T. and A. J. S. $30,000 ; one half to the children of each. By the fifth clause he gave to W. P. T., A. J. S., and E. S., as the same was possessed by his wife and A. E. T., if they outlived the latter, for life. By the sixth clause the tes- tator gave the residue of his estate, real and personal, to E. S., to her and her childrtn forever, to them and their heirs. And he left her, when she ar- rived at age, $50,000, amj thing in his will contained to the, contrary nol/uiilli^ standing. By the ninth clause the testator provided that in case E. S. should die without leaving issue, in that case, and no other, the whole of his estate that might then remain should go to his paternal and mater- nal cousins, &o. On a bill by a part of the paternal heirs and next of kin of the testator, for the purpose of ob- taining their shares of his estate, upon the ground that the several disposi- tions of the property made by his will, except the life estate therein to his wife, were invalid; and to have the $50,000 legacy to E. S. declared void ; Held that the absolute ownership of the $50,000 of the testator's personal estate was not suspended for more than two lives in being at the, death of the testator, by the contingent leg- acy to E. S. and her issue; and that her right must vest in interest and in possession, if ever, during the contin- uance of one life in being at the death of the testator. That although the first and third clauses of the will gave ' successive life estates in the income of the real and personal property, gen- erally, to the widow and to A. E. T., yet that those general devises and be- quests must be taken in connection with other provisions of the will ; and must be construed, if possible, so as to be consistent therewith. Jaiisen V. Cairnes, 350 S5. Held also, that the legal effect of the will, so far as related to the interests of the widow and A. E. T. and E. S., in the amount of the $50,000 legacy, was the same as if the testator had ordered $50,000 of his personal estate t be set apart and invested, so as to | findtjce an income, and that the cap- i ital of tie fund slrould be paid to S, S. when she arrived at twenty-one, if she lived to attain that age ; and had Umited successive estates in the income of the $50,000 for the lives of the widow and A. E. T. respectively, unless the contingency sooner hap- pened by which the capital became payable to E. S. lA 23. Held fu/rtlier, that upon the arrival of E. S. at the age of twenty-one, she would be entitled to the payment of the capital of the $50,000, as her ab- solute property. ib 27. Whether the life estate of A. E. T. in the income of the amount of the $50,000 legacy, was not invalid ; on the grounuthat it might suspend the absolute ownership of that part of the fund for a longer period than two lives in being at the death of the tes- tator'! Quare. it 28. A testator who died leaving seven children, together with J. K. the daughter of a deceased soft, and three children, of another decea>»ed son, his only heirs at law, surviving him, by his will directed that all his estate, real and personal, should be divided among his heirs, or their 'egal repre- ssntatives, and prescrib"a certain rules to be observed by th« executors' in making such division. By one of those rules it was provi(?»d that in case both parents should bf dead, and if their children, or any of *hem, had attained the age of twenty-one years, or were married, then that t^e execu- tors should make an equal partition of the share which would hn'-e fallen to such parents, among their children. By another of those rules tho testa- tor's granddaughter J. K. wa» to be considered as standing in the sa-ne sit- uation, with regard to her own rights, and the rights of her issue, as tJ>e tes- tator's daughters ; and all the rules applying to them, their husbanda and issue, were to be applied to he- and her husband and issue. By a codicil ho his will the testator gave unti* each of his grandchildren living at thi time ofhvi decease, the sum of $6000, »o be paid to them and each o." them, upon their attaining, respectively, the age of twenty-one years, o' marrying. At the time of the making of the will -inii codicil, J. K. was of the age o' 21, and was married, and both her pa- rents were dead. All the other grand- children of the testator were unilei age and unmarried. At the dule nt INDEX. ihe codicil J. K Iiad one cliilil, and was encienU, at the death of the tes- tator, of a child born after his de- cease. She subsequently died, leav- ing fdur children surviving her. On a petition by C. K. the surviving husband, claiming that each of her »wo eldest children were to be con- sidered as grandchildren of the testa- tor, under the provisions of his will and codicil, so as to be entitled to legacies of f 6000 each, under the cod- cu : Held that the testator did not in- jend to give a legacy of $6000 to J. K. i but that he meant to give a legacy of that amount to each of her ckil- dren who should be in esse at the time of his death, by the designation of grandchildren. And that each of her children who were in esse at the testator's death, was therefore enti- tled to a legacy of S6000, to be paid to them upon their marriage, or on attaining the age of twenty-one ; in the same manner as the other grand- children. HoTie V. Van ScAaick, 488 29. Held also that the child of which J. K. was enciente, at the death of the testa- tor, must be considered as in esse, at that time, for the purpose of entitling such child to the legacy of S6000, as one of the grandchildren of the testa- tor who were then living. ib 5. General rules of construction. 30. In the construction of wills, if the language of the testator is such that it may be construed in two differ- ent senses, one of which would ren- der the disposition made of his prop- erty illegal and void, and the other would render it valid, the court should give that consti-uction to his language which vrill make the disposition ofhis property effectual. BvMer v. Butler, 304 31. How far the situation ef the testa- tor's family relatives may be taken into consideration for the purpose of giving a construction to the doubtful clauses in his vrill. Cromer v. Pinck- ney, 466 Si. As a general rule in the construction of wills, the testator must be presumed to have used words in their ordinary or primary sense and meaning ; unless from the context of the will it appears that he intended to aae mem in some other or secondary meaning ; or where, by reference to extrinsic circumstan- ces, which existed at the time of mak- ing the will, or which must necessarily 701 exist in the event or at the timu omi- templated by him. the use of sucb words in their ordinary or jirimaiy sense would render the provision of the will in reference to which such words were used insensible, absurd, or inoperative. ii 33. Thus the word children, in its pri- mary and ordinary sense, means the immediate legitimate descendants of the person named. And where there is nothing to show that the testator intended to use it in a different sense, it will not be held to include illegiti- mate offspring, step-children, children by marriage only, grand-children, or more remote descendants. ii 34. The words nephews and nieces, likewise, in their primary and ordina- ry sense, mean the immediate descend- ants of the brothers and sisters of the person named, and do not include grand-nephews and grand-nieces, or more remote descendants. ii 35. But where the testator by one clause of his vrill gave a legacy unto each of his nephews and nieces except J. C. who was not a nephew but one of the children of a deceased nephew ; and by another clause he gave to the chil- dren ofhis nephew J. C. $500; Held that the brothers and sisters of J. C. and oth^r grand-nephews and niecet' whose ancestors were dead at the time of making the will, were entitled to , legacies; the will showing that the testator used the words nephews and nieces in an enlarged sense, so as to include all the grand-nephews and nieces whose parents were dead. ib 36. Held also, that upon the ordinary rules of construction, parents and children could not both take, under the description of the testator's neph- ews and nieces, but only the parents who were living, and those grand- nephews and nieces whose parent was dead. ii 37. The word children, in its natura. sense, only embraces the immediate descendants of the person named or described ; and does not include des- cendants of a more remote degree. Hone V. Van Schaick, 488 38. Nor does the term grandchildren, without something further to extend its natural signification, inciqde^reo*- grandchildren. it INDEX. 702 39. A testator it to be prssumeJ to have : nsed words in their natural or prima- ry sense ; unless there is something in the situation of his family, or in his will, to lead to a contrary conclu- sion, ib 40. But it is a cardinal rule, in the con- struction of wills, that the intention of the testator is to govern, if consis- tent with the rules of law. And he is not bound to use any particular form of words to devise or bequeath a legal interest in property, or to de- signate the objects of his bounty; provided he uses language which is sufficient to show his intention. ib 41. The testator's intention is to be as- certained from the whole will taken together, and not from the language of any particular provision or clause thereof when taken by itself. ib 42. For the purpose of construction, a will and a codicil may be considered together, and construed as different parts of the same instrument. ib 43. An unborn child, after conception, if it is subsequently bom alive, and so far advanced towards maturity as to be capable of living, is considered as in esse from the time of its concep- tion ; where it is for the benefit of the . child that it should be so considered. ib See Annhitt. Declarations. fxecutor.s and ahministrators, 1, 2, G, 7. WITNESS. 1 A release of the personal liability of jne of several defendants, on a judg- ment in favor of the releasor, executed in pursuance of the provisions of the act of April, 1838, for the relief of partners and joint debtors, but which release leaves the judgment, and the debt for which it was recovered, in full force against the other defendants, will not render the defendant thus re- . eased a competent witness for the plaiiilifl in such judgment, TVieBanl of Utica V. Mersereau, l&H 2. To restore the competency of such witness, if he is incompetent in con- sequence of any contingent liability, for the judgment debt, depending up- on the event of the suit in which he is called as a witness, the plaintiff should not only release him but also the other judgment debtors from such contingent liability. ic 3. Where it only appears from the ex amination of the witness himself the he is interested in favor of the party caUing him, or that he is otherwise incompetent, the objection to his com- petency may be removed in the same manner that it was created. And the witness may be examined by the party calling him, to show that his interest has been removed by a re- lease, or to prove any other fact to es- tablish his competency at the time of his examination. t'A 4. But where the witness' interest, aj other incompetency, appears aliimde. the witness cannot be examined for the purpose of showing his compe- tency ; by testifying to the execution of a release, or to any other fact, ii 5. Where a release of the interest of a witness, produced at the hearing, is neither dated nor vritnessed, the ac- knowledgment by the party execut- ing it is only evidence that he had executed it at or before si^ch ac- knowledgment ; not that it was exe- cuted previous to the examination of the vfitness, where such examination was befoic the date of such acknow- ledgment, ii 6. In the court of chancery, where many issues frequently are combined in one suit, a witness is not to be rejected al- together because he is interested as to one part of the case, when as to an- other part of the case he has no in- terest whatever. He may be examined as a witness to that part of the case in which he has no interest ; or in which his interest is adverse to th« party calling him. li END OF VOLUME THREE. / 4