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    De Peyster, administrator, &c. vs. Clendining and others.
    Where the testator devised his real and personal estate to trustees, in trust, to suffer his widow to occupy his Sharon farm, with the stock, so long as she made it her permanent residence, and to sell and convert all the rest of his estate into money ; and also, to sell the farm and stock after the death or removal of his widow, and to invest the proceeds of the estate ; and after paying certain annuities to his widow and others during her life, to pay to his two sons and three of his daughters certain specified annuities during their respective lives, out of the income of his estate, and to divido the residue of the annual income equally between such five children; and if either died without issue, his or her annuity and share of the income to be divided among the survivors, or if leaving issue then to sucli issue during the life of such widow, and after her death the principal of the share to go to such issue, and the principal of the share of cither child who died leaving issue after the death of the widow of the testator to go immediately to such issue : Held, that the trust as to the Sharon farm was valid, as a devise of the legal estate therein to the widow, during her life or residence thereon, by the operation of the provisions of the revised statutes turning certain trusts into legal estates in the cestuis que trust; that the devise to the executors and trustees was valid as a power in trust to sell all the testator’s real estate and to convert it into personalty, for the > purposes of the will; and that the Sharon farm was to bo considered as converted into personalty at the death or removal of the widow, and the residue of the real estate from the death of the widow. Held, also, that the life estate of each child in his or her share of the estate was valid, as well in the proceeds of the Sharon farm after the death or removal of tho widow, as in tho other property from the death of tho testator. And that the limitations of the respective shares to the children of such of them as should leave issue were also valid ; as the absolute ownership of each share could not thereby be suspended beyond two lives in being at the death of the testator.
    But the testator having directed that if any of his five children should die without issue, the income of his or her share should go to the survivors for life, with remainder to their children, after the death of the widow; Held, that the limitation over to the survivors and to their children was void, as it might suspend the absolute ownership for more than two lives in being at the death of the testator.
    Where a will was made before the revised statutes went into operation, but the testator died afterwards, the validity of the trusts'and provisions of his will must be determined by the law as it existed at the time of his death.
    Where there is a specific bequest of personal property for life, or a shorter period, the legatee must give to the personal representative of the testator an inventory of the articles bequeathed, stating that they are in his possession under such bequest, and that when his interest therein has expired they are to be delivered up to such personal representative.

      The court of chancery will not permit a trust to fail for want of a trustee to execute such trust; and where all the trustees named in a will refuse to act, the trust devolves upon the court, and a new trustee will be appointed if necessary.
    Whether, where a testator gives to his trustees a distinct character as trustees, entirely independent of their character of executors, an administrator with the will annexed can execute such trust; Qucsre.

    Whore it was doubtful whether the administrator with the will annexed was authorized to execute a trust power given to a person who was also named in the will as executor, but who refused to accept the trust, the court appointed such administrator trustee, and directed him to execute the conveyance of the property, under the power in trust, both as administrator and as trustee.
    April 21.
    The bill in this cause was filed by F. De Peyster, the administrator with the will annexed of J. Clendining, deceased, to obtain a judicial construction of the will of the decedent. The testator resided in the city of New-York, and made his will in 1829, and died in January, 1836, possessed of a considerable real and personal estate. He left a widow', and two sons and four daughters, to wit: John and James, Sarah, the wife of William Hogan, Margaret, the wife of H. Bulkley, Letitia, who married Stuart J. Molían, and Jane; who were his only children and heirs at law. By his will, after bequeathing to his wife all his plate and household furniture, for her own use and benefit, and with power to make such disposition thereof as she pleased among his children • the testator disposed of the residue of his estate as follows :
    “ All the rest and residue of my estate, as well real as personal, of every kind and description whatever, I give, devise and bequeath unto Stuart Molían, John Adams, and James Magee, of the city of New-York, merchants, and to the survivors and survivor of them, and to the heirs and assigns of the survivor, upon the following trusts and conditions, and to be appropriated and disposed of as hereafter directed; that,is to say : First, I do hereby order and direct that my said trustees, the survivors and survivor of them, suffer and permit my said wife, to occupy and enjoy, and have the absolute use, profits, and proceeds of my farm called Sharon, situate in the twelfth ward of the city of New-York, together with all the stock of cattle, horses, carriages, implements of husbandry, and farming utensils used upon or belonging or appertaining thereto, so long as my said wife may choose to make the said farm her permanent residence, and without any charge against her for such use or occupancy ; and when my said wife shall choose to remove from the said farm, or at her death, whichever may first happen, I then order and direct that my said farm shall be sold and disposed of to the best advantage, and that the proceeds be securely and profitably invested and disposed of, with the residue of my estate, as hereafter mentioned-.

      a Second. I hereby order and direct that my debts and funeral expenses be first paid, and that all the rest and residue of my estate, whether real or personal, be disposed of and converted into money, as soon after my decease as may be convenient, and the proceeds securely invested in the most productive manner $ leaving it, however, to the discretion of my trustees to suffer such parts of my personal estate as are now invested in bank stock to remain in its present state so long as they may deem it most for the interest of my family.

      a Third. I do hereby order and direct that my said trustees, out of the interest and proceeds of my estate, shall pay to my beloved wife yearly, and every year, during the time she makes my said farm called Sharon, her permanent residence, and my daughters, Jane and Letitia, shall reside with her, the sum of $2500; and that from the time my said wife shall relinquish the possession of said farm, my said trustees pay her yearly, and every year, during her natural life, while my said daughters, Jane and Letitia, shall reside with her, the sum of $3000. If either my said daughters, Jane or Letitia, should marry, or decline residing with my said wife, then I order and direct my said trustees to deduct the sum of $500 yearly, from the said yearly allowance to my wife above mentioned. And if both of my said daughters should marry, or decline residing with my said wife, then I order and direct that my said trustees pay to my said wife yearly, and every year, during her natural life, the sum of $1500 only- ; and this bequest to my said wife is made with a view to her per-* manent ease and comfort, and upon the condition that in consideration thereof she relinquish to my said trustees all her right or claim to dower, or thirds, in or out of my estate. I further order and direct, that my said trustees pay to my daughter Margaret, the wife of Horace Bulkley, the sum of five dollars, as and for her full and entire portion of my estate ; I having already advanced and paid on account of her and her family a much larger sum than the portions of any of my other children will amount to,
    “I do further order and direct, that my said trustees, out of the income or proceeds of my estate, pay to my daughter Sarah, the wife of W. Hogan, yearly, and every year, during her natural life, the sum of $20,000 ; to my son John, yearly and every year, during his natural life, the sum of $20,000 ; to my son James, yearly, and every year, during his natural life, the sum of $20,000 ; and to my daughter Letitia, yearly and every year, during her natural life, the sum of $40,000; and to my daughter Jane, yearly, and every year, during her natural life, the sum of $40,000. And if the annual income or proceeds of my estate shall amount to more than sufficient to pay yearly the several sums of money so directed to be paid to my said wife and children, I then order and direct that my said trustees make an equal distribution of the overplus yearly among my said children, Sarah, John, James, Jane, and Letitia ; and if the annual income or proceeds of my estate shall not amount to sufficient to pay yearly the several sums of money so directed to be paid to my said wife and children, then I order and direct that the deficiency be rateably deducted from the several sums so directed to be paid yearly to my said children, Sarah, John, James, Jane, and Letitia. And I do further order and direct, that the yearly payments so ordered to be made to my said wife and children be paid to them personally, or in case of their absence or sickness, upon their written order, and not in any other manner or to any other person for them; and that their personal receipts be taken by my said trustees for all such payments,
    “ In case either of my said children, Sarah, John, James, Jane or Letitia, should die without lawful issue, I order and direct that the yearly sum or sums of money hereby bequeathed to the child so dying be equally divided among the survivors of them ; and if the child so dying shall have lawful issue, I then order and direct that the yearly sum or sums hereby bequeathed to the child so dying be paid to his or her child or children, during the life-time of my beloved wife; and upon the death of my beloved wife I further order and direct that the yearly sum or sums -of money hereby bequeathed to her be in like manner divided among my said children and their legal representatives. It being my will and intention hereby declared, that my said children, Sarah, John, James, Jane and Letitia should, during their lives, have and enjoy the whole income and interest of my estate, (subject to the said life annuity to my wife and the provision above mentioned) but no part of the principal thereof. And that the principal of my estate should be equally divided among their lawful issue, the children of .each taking the share or portion which their parent would have been entitled to, if the principal had been bequeathed to my said children, Sarah, John, James, Jane and Letitia.

      "I do further order and direct, that after my beloved '-wife shall have departed this life, if any of my said children, Sarah, John, James, Jane and Letitia, should then be dead leaving lawful issue, that then the share or portion of the principal of my estate which the child so dying would have been entitled to if the principal had been bequeathed to my said children, be paid to his or her child or children, And that upon the death of any of the said children of any of the said children after the death of my said wife, a like portion of the principal of my estate be paid to his or her children; and that a final settlement of my estate among my grandchildren, according to this my will and intention as herein before expressed, be made immediately after the death of the survivor of my said children.

      "And in order more effectually to carry into effect the trust and object of this my said will, I do hereby authorize and empower my said trustees, and the survivors and survivor of them, to execute all deeds, conveyances and other writings necessary for executing the trusts hereby created, and do also authorize and empower the survivor of my said trustees, by his last will and testament or otherwise, to nominate, constitute and appoint, at his discretion, some prudent and faithful person or persons in his place and stead," with like full power to execute this my will and the trusts hereby created.
    • “ Lastly,. I do hereby nominate, constitute and appoint my said trustees herein before named to be the executors of this my lagt will and testament, and the guardians of such of my children as are minors, during their minority.”
    After the death of the testator the will was duly proved before the surrogate. All the executors and trustees named therein having refused to accept the trust, and having also renounced before the surrogate, administration with the will annexed was duly granted to the complainant. At the time of the filing of the bill in this cause, all the children of the decedent, and his widow, were living, and with the husbands of the three daughters were made parties. Mrs. Hogan and James Clendining also had children, who were infants, and who appeared and answered by their guardians ad litem. Mrs. Molían then had one child who was also made a party defendant, but who died soon after, and Mrs. Molían herself died after the hearing of the cause, without any issue then living, leaving her husband surviving. The three trustees never having executed any written instrument renouncing the trust attempted to be conferred upon them by the testator, as trustees of his estate, they were also made defendants. Two of them appeared and put in their answer, declining to act as trustees and consenting to relinquish any right which they might have to act as trustees, to such person as the court might think proper to appoint. The other trustee suffered the bill to be taken as confessed against him for want of appearance. Answers were put in for all the other defendants, and most of them submitted the construction of the will, and the validity of its several provisions, to the court. But the defendants Bulldey and wife, who had previously given notice to the administrator that they intended to contest the validity of the several trusts in the will, insisted by their answer that all the provisions of the will, except the bequest of the plate and the household furniture to the widow, were inoperative and void under the provisions of the revised statutes ; and that Mrs. Bulkley was therefore entitled to a distributive share of the residue of the estate as one of the children and heirs at law of the testator.

      E. H. Owen, for the complainant.
    The points which the complainant seeks to have adjudicated and settled by this court are—1. Whether any, and if so what portions of the will are repugnant to the revised statutes, and therefore void. 2. Whether any, and if so what portions of the said will are void for ambiguity or uncertainty. If the will is held valid, then, 3. What is the true construction of the will as relates to the trusts and division of the estate among the grandchildren. 4. Whether the complainant, by virtue of his appointment of administrator with the will annexed, has or has not power, and whether it is his duty to execute and carry into effect the trusts therein contained; if not, then, 5. What are his powers and duties as such administrator, in reference to the execution of the will and the trusts therein contained. If the will shall be sustained by the court, and it shall also be determined that there is no person authorized at present to execute the trusts, then, that the complainant or some other suitable person may be appointed trustee, with power to execute and carry into effect the trusts contained in the will, according to the intentions of the testator as decreed by this court. (5 Wendell, 224. 1 Cruise, 539. 2 R. S. 72.)

      J. L. Mason, for defendant Bulkley and wife.
    The devise to the trustees is void and vests no estate in them. The objects for which the trust is created are not authorized by the revised statutes. The trust is to continue, according to the true construction of the will, until the termination of six lives, during all which time the power of alienation is suspended. Upon any construction, the trust may continue, and the power of alienation be suspended, for”a longer period than during the continuance of two lives. The remainders to the grandchildren are also void, being contingent both as to the persons who are to take, and the share or portion of the estate to be enjoyed by each ; and the power of alienation is therefore suspended until the termination of the trust. The trust being void, and the remainders void, the estate descended to and vested in the heirs at law, subject to be divested by the execution of the power in trust, if the doctrine of powers can b.e applied to the case. But the devise to the trustees cannot be supported as a power in trust : 1. The trust was not created for one of the purposes enumerated in the 55th section, and is void. 2. The exercise of the power would effectually prevent the alienation of the estate until the period fixed by the testator for the termination of the trust. (1 R. S. 727, §47.)
    J. Wallace, for defendants Stuart J. Molían and Adams & Mollan.
    The will being made prior to the revised statutes, its construction is not to be affected by those statutes. (2 R. S. p. 68, § 70.) But if the will is subject to be construed by the revised statutes it is not repugnant to the provisions of those statutes. The will is not void for ambiguity. (2 R. S. 68, § 70.)

      J. Anthon, for John and James Clendining.

      B. F. Butler, for Mrs. Clendining and Mrs. Mollan.
    J. W. Gerard, for Hogan and wife, and James Clendining, and their respective children.
    The will is valid under the revised statutes. If the will is maintained the income of the widow is to be reduced five hundred dollars a year on account of the marriage of Letitia, after the death of the testator, to Stuart J. Mollan. That deduction is expressly declared to take place in case of either one of two contingencies, viz. either on the marriage of her daughter, or her declining to live with her. The daughter has married and the first contingency on which the income was to be reduced has taken place. There is no qualification on the happening of either of these two contingencies. In case the will is declared invalid, and that. Mr. Clendining died intestate, the children of the intestate, especially John Clendining and Mrs. Bulkley, are to be charged against their share of the real and personal estate with the advances made by him in his lifetime, to them respectively, within the provisions of the revised statutes. (1 R. S.754.)
   The Chancellor.

There can be no possible doubt as to the validity of the devise of the Sharon farm to the widow for life, provided she elects to reside there so long. If the law had continued as it was when the will was made, in 1829, the legal estate would have vested in the trustees; but they would have held that legal estate, during the time Mrs. Clendining continued to reside upon the farm, as a mere naked trust, for her use. Such a trust is now, by virtue of the 47th section of the article of the revised statutes relative to uses and trusts, (1 R. S. 727,) turned into a legal estate in her, of the same quality and duration and subject to the same condition as the beneficial interest which the testator intended to give her therein. And the trustees, by the subsequent provisions of the will, have only a power in trust, to sell the farm and convert it into money, after she shall cease to occupy it as her residence. (1 R. S. 729, § 56.) She is also entitled to the use of the stock of cattle, horses, carriages, implements of husbandry and farming utensils, which belonged to the farm at the death of her husband, as a specific bequest to her for life, or so long as she continues to reside there. But she must, in conformity to the practice on that subject, give to the administrator an inventory of the articles, specifying that they are in her custody as given to her while she resides on the farm only ; and that when she dies or ceases to reside there these articles, or those which may be substituted in the place of them in the ordinary use of the farm, are to be delivered to the administrator, or to the trustees who may be appointed to carry into effect the provisions of the will. (Slamiing v. Style, 3 Peer Wms. 336. Covenhoven v. Shuler, 2 Paige’s Rep. 132.)

Although this will was made before the revised statutes went into effect, yet as the testator died long afterwards, the validity of the trusts and provisions of the will must depend upon the law as it was when the will took effect by his death. The 70th section of the article of the revised statutes relative to wills of real and personal estate, (2 R. S. 68,) which declares that none of the provisions of that title shall affect the construction of any will previously made, is not broad enough to reach this case. And the other provision of the revised statutes referred to by the counsel for Stuart J. Mollan, on the argument, (1 R. S. 750, § 11,) only applies to wills which had taken effect before that chapter was in force as a law. A will does not take effect from its date but only from the death of the testator. The provisions of the first chapter of the second part of the revised statutes, and of the title of the fourth chapter relative to accumulations of personal property and of expectant estates in such property, may therefore impair the validity of the provisions of a will made previous to the first of January, 1830; provided such will did not take effect by the death of the testator until after that period. If there are any provisions of this will therefore which suspend the power of alienation of real estate for more than two lives in being at the death of the testator, or which suspend the absolute ownership of any part of the personal estate for any longer period, those provisions cannot be sustained.

As the trustees are not authorized by the will to receive the rents and profits of the real estate, but merely to sell the property andconvert it into personalty for the purposes of the will, no estate is vested in the trustees ; but the devise to them is a mere power in trust, under the provisions of the 56th section of the article of the statute relative to uses and trusts. (1 R. S. 729.) And as this power in trust to convert the testator’s real estate into personalty is imperative, under the provisions of the 96th section of the article relative to powers, the real estate, except the Sharon farm, is considered in equity as converted into personalty from the death of the testator ; and that farm will be considered as converted at farthest from the death of the widow, or the termination of one life in being at the testator’s death. No estate whatever being vested in the trustees, as real property, no question arises as to the validity of the trust under the 55th section of the article relative to uses and trusts j as that section is confined to express trusts of real property where the legal title to the estate is vested in the trustees. The question for consideration, therefore, is whether the objects for which the conversion of the real estate into personalty is directed by the testator, are valid. In other words, whether all or any of the trusts upon which the trustees are directed to hold the converted fund are valid as trusts of personal estate.

In the recent case of Gott v. Cook, (7 Paige’s Rep. 521,) this court held that a trust of personal estate might be created for any purpose which was not illegal, so far as related to the mere vesting of the legal title to the property in the trustees. But that all limitations of future or contingent interests in such property, or interests in the future income thereof, were subject to the same rules and restrictions which were prescribed as to similar future or contingent interests in real estate. And in the more recent case of the will of the late Abraham Van Vechten it was decided that in a trust of personal property, or money, a suspension of the absolute ownership as to one part of the fund for a longer period than was allowed by law, did not make void the disposition which had been made of another part of the trust fund. And that where personal estate was vested in trustees upon various trusts, some of which were valid and others void, the courts must sustain those dispositions of the property which were legal if they could be separated from those which were illegal and void. (See Van Vechten v. Van Veghten, ante, p. 104.) Testing the case under consideration by these principles, nearly every provision of this will must be sustained.

Taking one part of the will by itself, it certainly looks as though the testator intended to keep all the property in the hands of the trustees so long as any of his children survived; and to divide the income thereof among the surviving children and the descendants of those who had died leaving issue, even after the death of his widow. But by referring to a subsequent clause of the will it is evident he only intended to suspend the absolute ownership, and the right to the immediate enjoyment by his grandchildren, of the principal of the share of each child in the fund, during the life of the widow and of the child who had a life estate in that share. This last clause provides for the payment of the principal of the share of any child, who has died during the life of the widow, leaving issue, to the issue of such child immediately upon the death of the widow; and that as the children severally die, afterwards, their respective shares shall go immediately to their children, without waiting for the death of the survivors. The absolute ownership of each class of grandchildren, in their respective shares of the principal of the fund, and the right to the immediate possession and enjoyment thereof, is then only suspended during the lives of the parent and of the grandmother. The limitation of the life estate of each child, in his or her original share, is therefore valid, both as to the proceeds of the Sharon farm, and also as to all the other estate of the testator; and the limitations over of such original shares to the children of such first taker upon the death of the parent and of the widow, are also valid s

The testator probably intended to give to Mrs. Hogan and his two sons the income of twenty thousand dollars each, and to Jane and Letitia each the income of forty thousand dollars, for life, and the principal of those sums to their children respectively after their deaths; and to divide the income of the residue of his property, including the amount of the annuity to the widow, after her death, equally among the five children during their several lives, and to give the capital of each share to their children respectively after their deaths. But by mistake he has inserted the capital of the original or primary legacy to each, as an annual payment, As there is nothing, however, upon the face of the will to show that he intended any thing different from what he has expressed, the court must construe it according to the language he has used ; as if he actually supposed his estate might be large enough to produce an annual income of $140,000, besides the provision made for his wife. The effect of such a construction, which is the only legal one which can be put upon this will, is to divide the whole proceeds of the real and personal estate into seven equal shares, after carving out of the same the provision for the widow, and to give to Mrs. Hogan and the two sons the income of three shares, and to Jane and Letitia of four shares, for life; that is, to each of the three first named children the income of one share, and the income of two shares to each of the two last mentioned children. And the capital of the share or shares of each child is what the testator has limited over to their children respectively in case they die leaving issue. The provisions of the will therefore must be carried into effect, according to this construction, as to each of the five children of the testator, interested in these shares, who shall die leaving lawful issue.

The children of Mrs. Hogan and of James Clendining who are now in existence have vested remainders in the capital of the shares of their parents, subject to open and let in after-born children; and subject also to be wholly divested by an entire failure of issue at the death of their parents respectively. But as the children who may be living at the death of the parent, and the personal representatives of such as have previously died, can, upon the death of the widow and the parent, convey the whole interest in that share of the estate, the absolute ownership in that share cannot be suspended beyond the period of two lives in being a.t the death of the testator; to wit, the life of the Widow and the life of the parent who has a life estate in the income of the share. The result will be the same as to the shares of John and Jane, if they should have issue who should survive them. But if any of the four who are now living, should die without leaving issue at the time of their deaths, as was the case with Mrs. Mollan, who survived her only child and died without issue, the capital of their respective shares will be in the same situation in which her two-sevenths of the estate now are j which I will next proceed to consider.

The testator appears to have contemplated and provided for the case of the death of one or more of the five children without issue, during the lifetime of the others ; and has directed in that case that the income of that share shall be divided among the survivors for life, and the capital to go to the children of such survivors at their deaths, if they should leave issue. But as these bequests over to the survivors and their children are not so limited that they must necessarily vest in possession as well as in interest, so as to be alienable during the continuance of any two lives in being at the death of the testator, they are void, according to the decision of the court for the correction of errors in the case of James’s will. And the decision of the same court in the case of Lorillard’s will, shows that they cannot be supported as cross-remainders to any extent, where such cross-remainders are limited among more than two persons. It is true, in the event that has occurred as to Mrs. Mollan’s share, the limitation over of the income thereof to her surviving brothers and sisters has not in fact been suspended longer than her life. But the absolute ownership of that share, if they are to take the income thereof for life from the trustees, will be still further suspended, during their respective lives and the life of the widow, before it can vest absolutely in the grandchildren under the provisions of the will. And in the meantime that share of the converted fund is inalienable, by the operation of the 63d section of the statute relative to uses and trusts, in connection with the second section of the title relative to expectant estates in personal property. (1 R. S. 730, § 63. Idem, 773, § 2. Gott v. Cook, 1 Paige’s Rep. 523.) I must therefore declare these contingent limitations over of the shares of such of the children of the testator as should die without leaving issue, to be inoperative and void. The result is that the income of Mrs. Mollan’s two-sevenths of the estate which accrued previous to her death, subject to the provision for the widow, belongs to her surviving husband as her personal representative. But so much of the capital of that seventh of the testator’s estate as consisted of personal property at the time of his death, belongs to the widow and next of kin, as an interest in personal property not legally and effectually disposed of by his will; subject to the provision for the widow contained in the will. And so much thereof as consisted of real estate belongs to the mother and to the surviving brothers and sisters, as an interest in real estate not legally disposed of by the will; and which therefore belonged to the heirs at law of the testator, notwithstanding the conversion thereof into personalty. (See Leigh & Dalz. Eq. Conv. 99.) Mrs. Bulkley is therefore entitled to an equal share with the other children in this two-sevenths of the estate, and in the income thereof which has accrued since the death of her sister. And if any of the other four children should hereafter die without leaving issue, their shares of the estate, from the time of their deaths, must be disposed of in the same manner. The interests of the testator in his personal estate which were not effectually disposed of by his will, in consequence of the contingency which has happened, or of those which may hereafter happen, belong to the widow and to those who were the next of kin of the testator at the time of his death. Stuart J. Molían, as the personal representative of his deceased wife, will be entitled to her share thereof, which is one-sixth of two-thirds, subject to the provision for the widow. But as Mrs. Molían was not seized in her lifetime of any present interest in possession in the real estate, as such, her husband is not entitled, as tenant by the curtesy, to any interest in her share of the real estate not effectually disposed of by the testator. Under the provisions of the revised statutes, as amended in 1830, (1 R. S. 752, § 6,) the mother, as heir of the daughter, takes an estate for life in one-sixth of that share, and after her death it goes to the five brothers and sisters, or their heirs; as they are now entitled to the other five-sixths thereof, as the heirs at law of the testator.

Although all the trustees named in the will have declined the trust, this court will not permit a devise in trust, which is valid in other respects, to fail for want of a trustee. And if the administrator with the will annexed is not substituted in the place of the trustees who have declined, the trust devolves upon the court; and the decree must direct the appointment of a new trustee in the place of those who have declined to execute the power in trust, to convert the real estate into personalty for the purposes of the will, and to invest the proceeds of the real and personal estate, and distribute the income thereof from time to time according to the rights of the parties. (1 R. S. 730, § 70, 71. King v. Donnelly and others, 5 Paige’s R. 46.)

The revised statutes provide that in all cases where letters of administration with the will annexed shall be granted, the will of the deceased shall be observed and performed ; and that the administrators with such will shall have the rights and powers, and be subject to the same duties as if they had been named as executors in such will. (2 R. S. 72, § 22.) There can be no doubt, therefore, that in cases where the execution of a trust, or of a power in trust, is confided by the testator to his executors, as such, they cannot execute the trust without also taking out letters testamentary, and assuming the office of executors. In such cases the administrator with the will annexed is probably entitled to execute all the trusts of the will, in the same manner as if hejhad been named therein, by the testator, as the executor and trustee. The difficulty in the present case, on that subject is, that the testator appears to have intended to give to the three individuals named in his will a distinct character as trustees, entirely independent of their character of executors ; although he has in the concluding paragraph of his will appointed the same trustees to be the executors of his will and the guardians of his minor children. At least there is sufficient doubt on this subject to make it the duty of the court to put the matter beyond all question, by directing a provision to be inserted in the decree substituting the administrator with the will annexed, as the trustee, in the place of the three persons named in the will, who have refused to accept the trust. And any conveyances which he may make, in pursuance of the power in trust to convert the real estate into personalty, should be executed by him both in the character of administrator with the will annexed, and as such substituted trustee; so that upon any construction of the will, and of the provisions of the statute on this subject, the purchaser will obtain a perfect legal title to the lands thus conveyed.

The annuity to the widow must be reduced $500, from the time of the marriage of Mrs. Mollan; whether she continued to live with her mother after the marriage or otherwise. The language of the will on that subject is too plain to admit of any doubt. And if Jane marries, or declines a residence with her mother as her general place of abode, the annuity to the mother is to be reduced the further sum of $500, from the time of such marriage or declension.

As the litigation in this case has been produced by the inartificial manner in which some of the provisions of this will were drawn, it appears to be a proper case to direct that the costs of all parties shall be paid out of the testator’s personal estate. A decree must be entered declaring the construction of the will, and directing the distribution of the estate and the income thereof, by the administrator and substituted trustee, accordingly. The decree must also contain a provision to protect the equity of Mrs. Bulkley, in whatever may belong to her, against her husband and his creditors, in the usual form. The accounts of the complainant, up to the present time, with the several parties interested, must be stated and passed before the taxing master or one of the exception masters of the first circuit, upon due notice to all persons interested in the estate, or their solicitors or guardians. And a provision may also be inserted in the decree, as in the cases of Hawley v. James, (5 Paige’s Rep. 488,) and Gott v. Cook, (7 Idem, 544,) for a periodical or annual passing of the accounts of the complainant; and giving liberty to any of the parties to apply to the court for further directions, from time to time, as may be proper.


source: Caselaw Access Project

author: Gardner, V. C.

license: Public Domain

text:
    Marvin vs. Bennett and others. Bennett & Williams vs. Marvin.
    Where a lot or farm is- sold in gross, or by its boundaries, and is conveyed by a deed containing the words more or less, such words being inserted upon deliberation, because neither party professes to know the precise quantity of land conveyed, and it is afterwards found that the quantity of land is less than the parties supposed, the court of chancery will not interfere for the relief of the purchaser; in the absence of any fraud, or intentional misrepresentation, as to the quantity of land contained within the boundaries of the deed.
    Courts of equity sometimes give relief in cases of mutual mistakes unaccompanied by fraud, when the property which one party intended to sell and the other intended to buy did not in fact exist; or where the subject matter of the sale and purchase is so materially variant from what the parties supposed it to be, that the substantial object of the sale and purchase entirely fails.
    Where a sale of land is consummated by the giving of a deed and the payment of a part of the purchase money, it will not be rescinded on account of a deficiency in the quantity of the land conveyed; especially where the deficiency is very small.
    In cases where land is sold at a certain price by the acre, or foot, and it turns out that by the mutual mistake of the parties there is a considerable deficiency in the quantity, equity sometimes interferes and relieves the purchaser from the payment for the deficiency. But in such cases a slight variation in quantity will not afford a ground for the interference of the court to correct the mistake.
    April 21.
    These cases came before the chancellor upon appeals by Asa Marvin, the complainant in the first cause and the defendant in the last, from the decrees of the vice chancellor of the eighth circuit in the said causes respectively. In February, 1832, Bennett & Williams, the complainants in the last cause and two of the defendants in the first, sold to Marvin block No. 98 in Buffalo, being a part of outer lot No. one; and which in their conveyance thereof to Marvin was described as follows: "Beginning on the northerly line of Water-street, at its intersection with the northerly line of Couteulx-street, as laid down on the said Bennett & Williams’ map, thence running northwesterly on the same line of Water-street, to the southeasterly corner of outer lot No. 2 in the said village of Buffalo, thence northeasterly along the southeasterly line of the said outer lot No. 2 to the southwesterly line of Fly-street as laid down on said map, thence southeasterly on the same line of Fly-street to its intersection with the northwesterly line of the said Le Couteulx-street, thence southwesterly on the same line of Le Couteulx-street to Water-street, the place of beginning, be the same more or less.” At the time of the purchase of this block, Marvin gave to Bennett & Williams a bond and mortgage upon the premises for $6000, one half of the purchase money, with interest.; the interest payable semi-annually, and the principal in six annual payments, commencing on the first of November, 1833. He also gave to them two promissory notes of $3000 each, one of which notes was subsequently paid by him. When the other note became due, or a short time previous thereto, he paid $1000 and the interest on the note and gave a new note to Williams for the remaining $2000; which last mentioned note was afterwards discounted by the Bank of Buffalo for the benefit of Williams, and when it became due it was protested for non-payment»

      The object of the complainant’s bill in the first of the above causes was to rescind the sale, on account of an alleged fraud and deception as to the quantity of land contained in the block conveyed to him, and to restrain the collection of the bond and mortgage and the $2000 note ; the complainant charging in his bill that at the time of the sale and conveyance, the defendant Bennett falsely alleged that the block was 136 feet in width on Water-street and 128J feet on Fly-^street, when it was in fact only 119 feet on the first mentioned street and 97 on Fly-street. The bill in the last suit was filed for the foreclosure of the mortgage given for the half of the purchase money. Both causes were heard upon pleadings and proofs; and the testimony in both suits was substantially the same; the testimony taken in the first suit being used in the last, under a stipulation to that effect.
    The cause was heard upon pleadings and proofs. And the vice chancellor directed the bill in the first cause to he dismissed with costs, and made the usual decree for a foreclosure and sale in the last cause.
   The following opinion was delivered by the vice chancellor in the first cause :

Gardner, V. C.

The claim to relief in this case is founded exclusively upon the alleged misrepresentation of the defendant Bennett, prior to the sale, as to the quantity of land embraced in the lot in controversy. Fraud is not imputed to the defendants. It was not contended that the misrepresentation was intentional. But it was insisted that proof of the misrepresentation alone would entitle the complainant to a decree for damages, or to rescind the contract in the discretion of the court. There are undoubtedly cases of misrepresentation, honestly made, in which the court could and ought to afford relief. But it is as I apprehend, in those cases only where the false representation lays the foundation for mistake, either in the agreement itself, or the contract which is the evidence of the agreement.

Where this occurs, the misrepresentation, or rather the mistake which is the consequence of the misrepresentation, may be rectified, either by rescinding the agreement itself, or by conforming the written contract to the agreement, according to the circumstances. The case of Bingham v. Bingham, (1 Vesey, sen. 126,) falls within the first class of cases to which I have alluded. A. purchased an estate of B., which was in fact the estate of A. The sale was rescinded and B. was decreed to refund the purchase money. In the case cited, A. certainly did not intend to buy, nor did B. intend to sell the land of A. Strictly speaking there was no agreement, whatever the form of the contract was ; and this was very properly rescinded. On the other hand, the books are full of cases where the court has granted relief, by amending or giving effect to a defective conveyance or contract, where the agreement upon which it was founded is admitted, or is established by satisfactory proof.

The question then will be, whether the proofs in this cause bring this within the principles settled in either class of the adjudged cases. In the first place, what was the true agreement between these parties ? The negotiation was for the sale and purchase of a block of land fronting on Water-street in the city of Buffalo. Before the conveyance was drawn, it was suggested to the defendant Bennett that the deed should specify that the lot extended 140 feet upon Water-street. This was declined. It was then proposed that 136 feet should be inserted in the deed. This also was refused ; the defendant insisting that by inserting the metes and bounds, the entire lot would be conveyed. It will make no difference, was the expression of the defendant, provided you fix the two points, if there be more or less; but it will convey the whole. And he then proceeded to assign as a reason why the lot would hold out, that the land conveyed by the Holland Company universally overruns. The complainant persisted in his objections, and the negotiation was suspended. An interview in private took place between him and his son, the witness; after which the proposition of the defendant was accepted and the deed executed.

Le Grand Marvin & M. T. Reynolds, for the appellant.

The proofs show that Bennett & Williams represented that the block of lots described in the pleadings was not less than 136 feet on Water-street and 128½ on Fly-street, and that the defendant purchased solely on that representation. The proofs show a deficiency in the number of feet on Water-street and on Fly-street. The facts being ascertained, fraud is a question of law, and Bennett & Williams were guilty of a legal if not an actual fraud in misrepresenting the size of the block. (Pearson v. Morgan, 2 Bro. C. C. 388, 9. 1 Id. 543. Hobbs v. Norton, 1 Vernon, 136. S. C., 2 Cas. in Ch. 128. Dyre v. Dyre, Id. 108. Seymour v. Delancy, 3 Cowen, 445, 518. Jeremy’s Eq. Jur. 386. Jackson, ex dem. Cadwell, v. King, 4 Cowen, 207, 220, 221. Rosevelt v. Fulton, 2 Cowen, 129. Gillespie v. Moon, 2 John. Ch. Rep. 585. Machir v. McDowal, 4 Bibb, 473. Butler v. Haskell, 4 Dessaus. 651, 684, 685, 687. 1 Id. 433, 4.) Whether Bennett & Williams were guilty of a fraud or not, having made a representation upon which Asa Marvin had a right to rely, and did rely, and which has proved to be false, they are bound to make good their representations. (White v. Champion, 5 Cowen, 509, 510, 512.) As Bennett & Williams come into court to enforce the payment of their mortgage, Asa Marvin may set up any matter which shows either that the mortgage is wholly or partially paid, or that nothing or less than the face of it is due to Bennett & Williams. There should be a reference to a master to ascertain how much less the block in question was actually worth, at the time of the sale, than it would have been had it held out according to the representations.

It is impossible to review this testimony without coming to the conclusion, that the risk as to the quantity of the land constituted one of the elements of the agreement between the parties ; and this fact will be found to constitute the essential difference between this case and those which have been cited by the complainant. The attention of the complainant was distinctly called to this point, and by his agreement he deliberately assumed the hazard of the loss in quantity ; as he would have been entitled to all the advantage in case the land had exceeded the quantity supposed. And the deed states this agreement truly according to the intention of the parties.

There has been, therefore, no mistake of which this court can take cognizance. (3 Paige’s Rep. 99.) The most that can be said is, that the complainant has been disappointed. He had the data before him; he knew the opinion and belief of the defendants founded thereon and honestly expressed; and from these, he could and did make his own calculations. And as there has been no fraud or concealment, he must abide the consequences.

The whole bill is framed with a view to relief against a fraud practiced by the defendants—not upon the ground of mistake, nor upon that anomalous ground of misrepresentation without fraud, or mistake in the true sense of that term as recognized in equity. But even if the bill were properly framed, the merits of the case, upon the proofs, are decidedly with the defendants; even if the deficiency in the quantity of the land were fully established. The evidence upon that point, however, is altogether too doubtful to authorize the rescinding of this contract, even if the complainant was right in the position assumed by his counsel upon the argument.

The bill must be dismissed with costs.

T. T. Sherwood & S. Stevens, for the respondents.

There is not evidence sufficient in the cause to show that Bennett & Williams, or either of them, knew or represented to the complainant that the block of land mentioned in the complainant’s bill was 136 feet in front on Water-street, or what the particular extent of it was on any street. The deed in express terms conveys a block of land by certain metes and bounds, more or less. Parol proof cannot be admitted to contradict or substantially vary it. (1 John. Ch. Rep. 425, 429. Id. 339, 423. 2 Id. 557. Hopkins’ Rep. 124 to 135.) If statements in regard to the extent of the lot were made, they were the mere expression of an opinion, and the grounds of which were at the time honestly given and understood by the complainant. They were not fraudulent representations, nor are the defendants liable in any manner to account for those statements. Representations made in good faith could not affect the validity of a deed. (Governeur v. Elmendorf, 5 John. Ch. Rep. 179. 2 Kent’s Com. 482, 484 to 489. Abbott v. Allen, 2 John. Ch. Rep. 519 to 525. Cooper, 308, 313.) If the defendants made representations honestly in relation to the extent of the lot, and it should turn out that they were mistaken, the complainant would not have any remedy in this court, but must wait an eviction and resort to a suit at law on the covenant in his deed. (5 John. Ch. Rep. 79.) The premises were conveyed by Bennett & Williams to the complainant by a deed describing them expressly by metes and bounds, and containing the words more or less. Parol evidence cannot therefore be received to show that the quantity of land intended to be conveyed was greater, or different from what would pass by the terms of the deed. (1 John. Ch. Rep. 425 to 429. Id. 231. Id. 339, 423. Hopk. 124 to 135.) All the facts in relation to the title were either matters of record in the county of Erie, or of general and public notoriety, and the complainant was bound to take notice of them. (Abbot v. Allan, 2 John. Ch. Rep. 523. 2 Kent’s Com. 484, 5.) Chancery makes a distinction where complainants come into court to enforce a specific performance, and where it is sought to set aside or annul a contract. (2 Kent’s Com. 487, and note B. 6 John. Ch. Rep. 222.) The block of land conveyed contains all the land which the complainant contends it ought to contain.

The Chancellor. The whole difficulty in this case, relative to the quantity of land in block No. 98, unquestionably arises from the change in the width of Cazenovia terrace from sixteen to twelve rods. But if that change took place subsequent to the conveyance of outer lot No. 2, to Benjamin Elliott, in April, 1810, it is evident from the testimony of Baldwin that Marvin will have his full width of 136 feet on Water street before he reaches the southeasterly corner of outer lot No. 2, as the same was described and conveyed in the deed of April, 1810. That lot begins, according to the original field notes, at Vollenhoven’s avenue, now Erie street, in the western bounds of Cazenovia Terrace, and runs south eight degrees west, seven chains and fifty-one links to outer lot No. 1; thence hounding on outer lot No. 1, south fifty-two degrees fifty-five minutes west, twelve chains thirty links. As this last line is not parallel to Vollenhoven’s avenue, hut diverges from it as you proceed towards Water street, it is evident if you start one chain south of the original west bounds of Cazenovia Terrace, (as Baldwin did,) at what is now the intersection of Erie street and the Terrace, and run the courses and distances indicated in the deed of 1810, you will throw the line between outer lots No. 1 and 2 further south than the true line between those lots ; as it is described in the deeds to Benjamin Elliott and Louis Le Couteulx, and in the diagrams annexed to those deeds.

The testimony of Peacock is that the Terrace, as originally surveyed on the ground, was four chains wide and that when it was contracted to three chains the other one chain was considered a part of the outer lots. Then, if I understand his testimony, this was intended to be a mere enlargement of the outer lots bounding on the Terrace ; and was not intended to alter any of the other lines of those lots as they were originally run out and marked upon the land. Landon’s and Lay’s depositions likewise show that the Terrace was originally laid out four chains in width. And they are corroborated by Baldwin’s survey, when examined in connection with the diagrams annexed to the deed of 1821, as well as to the original contract of 1806 from the Holland Company to Le Couteulx. By those diagrams it will be seen that the distance from the Terrace, on the short line of lot No. 1, on Cayuga street, now Pearl street, is laid down as but two chains; while Baldwin’s survey makes the distance from the angle at Pearl and Commercial streets to the present west line of the Terrace 188 feet; or nearly three chains. I think there can be very little doubt, therefore, that the true line between outer lots No. 1 and 2, and to which B. Elliott and Louis Le Couteulx were entitled to hold according to their respective deeds, will give to Marvin his full complement of land between that line and Le Couteulx street.

In this view of the case it can hardly be necessary to examine the question whether Marvin was entitled to any relief upon the supposition that his surveyor was right in the location of that line, by taking the present corner of Erie street and the Terrace as a starting point; instead of the original intersection of the western line of the sixteen rod Terrace with the southerly line of Vollenhoven’s avenue. Upon that subject, however, it may be proper to say that there is nothing in the case from which any intentional fraud or deception could be imputed to Bennett and Williams, or either of them ; even if it had turned out that the width of the lot was not so great as Bennett stated the same to be, with reference to the map.

From the testimony of Le Grand Marvin it is evident that his father, as well as himself, was aware of the fact that Bennett did not profess to state the distance upon Water street, between Le Couteulx street and the line of outer lot No. 2, as a matter within his own knowledge, or which had been ascertained by him by an actual admeasurement. And as he absolutely refused to have any distance inserted in the deed, but merely to bound the block upon the line of that lot, with the addition of the expression be the same more or less,” Marvin should have refused to complete the bargain until the line had been actually run out and ascertained, if he did not intend to consent to take the lot by the description contained in the deed itself.

Neither is this a case in which the court will give Tenet to the party upon the ground of a mutual mistake. Courts of equity sometimes give relief in cases of mutual mistakes, unaccompanied by fraud, when the property which one party intended to sell and the other intended to buy did not in fact exist; or where the subject matter of the sale and purchase is so materially variant from what the parties supposed it to be that the substantial object of the sale and purchase entirely fails. The decision of this court and of the court for the correction of errors in the case of Rosevelt & Fulton’s executors, (5 John. Ch. Rep. 274, 2 Cowen, 129,) must have proceeded upon that ground; as there was no evidence to sustain an allegation of intentional fraud, or misrepresentation in that case. But I am not aware of any case in which a sale of land, actually consummated by the giving of a deed and the payment of a part of the purchase money, has been rescinded for a mere deficiency in the quantity of the land conveyed ; amounting, as in this case, to less than one eighth of the quantity of land the purchaser supposed he was buying j admitting the complainant Marvin is right in the location of the line of outer lot No, 2. Where land is sold at a certain price by the acre, or foot, and it turns out that by the mutual mistake of the parties there is a considerable deficiency in the quantity, courts of equity have so far interfered in some cases as to relieve the purchaser from the payment for the deficiency. But even in such cases a slight variation in quantity will not afford a ground for the interference of this court to correct the mistake. And where a Ipt pr farm is sold in gross, or by its boundaries, and is conveyed by a deed containing the words "more or less,” such words being inserted upon deliberation, as in this case? because neither party professed to know the precise quantity contained within the boundaries of the deed, certainly np court ought to interfere to make a new contract for the parties which they did not think proper to make for themselves ; unless upon clear evidence of fraud or intentional misrepresentation. Here was certainly no mistake in the deed, itself; as Bennett distinctly refused to have any distance inserted in the deed, as the length of the line upon Water street. Marvin, therefore, who was informed of this fact, if he wished to reserve the right to have the mistake corrected in case the distance did not hold out to be as much as Bennett supposed it to be, instead of adopting a secret resolution to take the deed as it was drawn and to hold Bennett to his statement as to the quantity, should have communicated that resolution to Bennett, and have required of him a written stipulation to that effect.

Upon the whole case, therefore, I think the decision of the vice chancellor was clearly right. His decree in each of these causes must therefore be affirmed with costs. And the decree in the foreclosure cause must he remitted to the vice chancellor of the eighth circuit with directions to order a reference to ascertain the whole amount which has now become due upon the bond and mortgage, and to direct a sale for the whole sum due; with a decree over against the mortgagor for the deficiency, if any there should be.


author: The Chancellor.

text:
    Phelps and others vs. Garrow.
    Where the complainants sold to S. a bill of goods at a credit of four months, - upon his promise that if they- would draw- upon him for the amount, payable at the Bank of Auburn at four months, be would get G. to endorse the draft as his surety and* return it to them, and* the complainants drew a draft accordingly payable to the order of G., who endorsed the same, supposing that by so doing he became security to them for S., which draft was sent by the complainants to the bank for collection, but the acceptor having failed, it was protested, and afterwards was taken up by G , the endorser, who brought a suit at law thereon against the complainants as the drawers; Held that the court of chancery could not relieve the complainants, if G. was not liable at law to pay the draft as surety for S., although he expected and intended-to become such surety by endorsing the draft.
    An intention of a third person, to become the surety of a debtor by endorsng a draft drawn in his favor, upon the debtor by the creditor, the endorsement being without consideration, cannot render the endorser either legally or equitably liable to the drawer for the payment of the draft; as nothing short of a written agreement can render him liable as a surety under the provisions of the statute of frauds.
    April 7.
    . . . This was an application to dissolve an injunction upon bill and answer. The facts upon which the question arose were briefly these : The complainants sold to J. M. Smith, of Auburn, a bill of goods, upon his application to them by letter, stating to them that if they would send the goods and draw on him for the amount at four months, payable at the Bank of Auburn, he would get the defendant to endorse the draft and send it back to them. They sent the goods, and drew upon Smith accordingly for $401,02, in favor of the defendant N. Garrow ; who upon being applied to by Smith, endorsed his name upon the draft and gave it back to him, and Smith sent it to the complainants. The draft was afterwards sent to the Bank of Auburn for collection, and Smith having failed, it was protested for non-payment. Garrow, the defendant, afterwards took up the draft at the bank and brought his action thereon against the complainants, as drawers of the same. Whereupon they filed their bill in this cause, praying a perpetual injunction against his proceedings at law.

      A. Taber, for the complainants.
    O. Allen, for the defendant.
   The Chancellor.

The complainants drew the draft in this case, payable to the order of the defendant, supposing, as they allege, that his endorsing it would make him liable to them as a surety for Smith the drawer. And the defendant admits that he endorsed his name upon the draft, at the request of Smith, supposing that by so doing he had thereby become liable to pay the amount of the draft to the complainants, as surety for Smith, in case the same was not paid by the drawee. The question therefore arises whether this court can relieve the complainants against this mistake in law, so as to charge the defendant as a surety for a debt for which he intended or expected to become liable, but for which he did not in fact contract any legal liability to them. Upon a full consideration of the case I have not been able to discover any equitable principle which can authorize this court to interfere, if the complainants have no legal defence to the suit which the defendant has brought against them to recover back the money which he paid to the bank as the endorser of this bill. It is perfectly clear that tSfe payee of a draft who endorses the same does not contract any legal liability to the drawers, in case of the failure of the acceptor to pay the draft at maturity. But on the contrary, if such endorser is obliged to pay the draft to a subsequent holder thereof, as Garrow was compelled to do in this case, he may sue the drawers upon the bill to recover the amount from them. The intention of the defendant to become security for Smith, or rather his supposition that by endorsing the draft he had become such security, could not make him either legally or equitably liable to the complainants as such security, without consideration. And nothing short of a written agreement could render him liable as a surety for Smith, under the provisions of the statute of frauds. Even if the complainants had sold their goods upon the faith of a previous promise by the defendant, that he would become legally bound as surety for the payment of the debt, there might be still a difficulty in rendering him liable consistently with the provisions of the statute of frauds ; unless he had been guilty of some fraudulent device which would authorize a court of equity to interfere. Here, however, the defendant did not even authorize his name to be used until after the goods had been sent to Smith. His mistake, therefore, in supposing he had become a surety for Smith, by endorsing the draft, when he had not become so either in fact or in law, raises no equity in favor of the complainants against him.

The injunction must therefore be dissolved; leaving the complainants to their defence at law, if they have any such defence to the suit against them on the draft.


text:
    Fuller and others, executors, vs. Yates.
    Where the testator devised all his real and personal estate to his executors and trustees, with directions to them to lay out certain portions of his lands into village lots, and to sell them from time to time as they might be wanted for building lots, and with power to sell any other parts of the estate , they might deem necessary to fulfil the objects of his will, and gave to his widow the possession and direction of his dwelling house and Walnut Grove farm, and an annnity of $2000, and a further annuity of $500, to keep up the garden and improve the property, and also the use of his library and certain pleasure carriages, horses, &c.; Heldt that the widow was entitled to dower in the testator’s real estate, in addition to the devises and bequests in her favor in the will. Held further, that the widow was not entitled, under the provisions of the revised statutes, to the fee of the dwelling house and Walnut Grove farm, but only to the use and enjoyment thereof during her life.
    A widow cannot be deprived of her dower by a testamentary disposition in her favor, so as to put her to an election, unless the testator has manifested his intention to deprive her of dower, either by express words or by necessary implication. And where the provision in her favor is not in terms given in lieu of dower, the intention to deprive her of dower must be clear and manifest; founded upon the fact that the claim of dower would be inconsistent with the will, or so repugnant to its provisions as to disturb and defeat them.
    To put the widow to her election between her dower and a testamentary disposition in her favor, the will itself must show that the testator probably contemplated the subject of her dower, and that he intended the testamentary provision for her should exclude her from all claim to dower, if she elected to take such provision.
    Where there is a direct devise of real estate to the devisee, although without words of perpetuity, he is entitled to a fee under the provisions of the revised statutes ¡ and in such a case a subsequent provision for an annual allowance, during the life of the devisee, to keep the property in repair, is not evidence of an intention to limit the devise to a life estate merely. But where the devise of the estate even for life is by implication merely, that implication does not necessarily give the devisee an estate in fee without words of perpetuity.
    April 21.
    The bill in this cause was filed by the acting executors and trustees of J. B. Yates, deceased, to obtain a judicial construction of his will, so far as related to the rights of the defendant, his widow. The questions presented for the consideration of the court were: 1st. Whether the widow was entitled to dower in the testator’s real estate in addition to the devises and bequests in her favor, or whether she was bound to elect between her dower and the provisions made for her by the will 1 2d. Whether she was entitled to an estate in fee in the Walnut Grove farm, or only to the use of that farm for life 1 And 3d. Whether she was entitled absolutely to the household furniture, carriages, horses, &c., specifically bequeathed to her, or only to the use thereof during her life ? The provisions of the will upon which these questions arose, were substantially these : The testator in the first place devised and bequeathed all his estate, real and personal, to the complainants, and to the defendant during her widowhood, as his executors and trustees, for the purposes of his will; with directions to lay out certain lands in Chitteningo into village lots, and to sell them as they might be required from time to time, for the building up of the village ; and with power to sell any other part of the estate which they might deem necessary to fulfil the objects of his will.
    He then directed the payment to his wife of an annuity of $2000, in quarter yearly payments, during her life 5 that she should have the possession and direction of the dwelling house and lands described in the will, and designated by him as the Walnut Grove farm ; and that in order to keep up the garden and improve said property, in addition to the income to be derived therefrom, there should be paid to her the additional sum of $500 annually, besides the annuity of $2,000. He also gave to his wife all the household furniture, all the pleasure carriages and harness, and all the waggons and sleighs, and other materials used in and about the dwelling house and farm ; also one pair of horses for the carriage, and one pair of farm horses, to be selected as she should wish, together with the old horse, Bonaparte, He also gave to her the use and direction of his library during her life, and after her death the library to be appropriated for the Polytechnic school, which in another part of his will he directed to be established by his trustees, and endowed with his residuary estate, under an act of the legislature, to be obtained by them for that purpose.

      And after bequeathing various legacies to other persons to the amount of $33,500, he directed his executors and trustees to apply the remainder of his real and personal estate to the endowment and support of the school, to be called the Polytechny, embracing literary instruction, combined with the pursuits of real life of every practical description ; upon the plan suggested by him in a memorial to the legislature, which was referred to in the will.

      S. Sherwood, for the complainants.
    The legacies bequeathed to, and the provisions in the will in favor of Mrs. Yates, the defendant, were intended by the testator to be in lieu of dower, and she must elect whether she will take under the will, or take the dower to which she is entitled by law. (7 Cranch, 370.) The testator intended to dispose of his whole estate, not to dispose of part, and to permit a part to be distributed by law. The provisions in the will, although not expressed to be in lieu of dower, are evidently so intended ; the implication is irresistible. The directions of the will would be defeated by the allotment of dower. (Herbert v. Huron et ux. 7 Cranch, 370. Adsit v. Adsit, 2 John. Ch. R. 451.) The testator has made ample provision for the support of his widow in the same style in which she had been accustomed to live. Taking the whole plan of the will together, looking at its design and object, it is manifest the testator meant to provide for his wife, and dispose of all his other property discharged of dower. If the defendant elects to take the provisions in her favor, she must release or declare her renunciation of dower. The defendant is only entitled to a life estate in the Walnut Grove farm ; and she is only entitled to the use during her life of the specific personal estate and library given to her by the will. (Gillespie v. Miller, 5 John. Ch. Rep. 21.)

      C. Stebbins, for the defendant.
    The defendant is entitled to dower in the real estate not devised to her by the will of John B. Yates, in addition to the other provisions made for her by said will. The rule is, that a widow is not to be put to her election between her dower and a provision made for her by will, unless the taking of both would be manifestly contrary to the terms of the will. (Wood v. Wood, 5 Paige, 601. Adsit v. Adsit, 2 John. Ch. Rep. 448.) There is nothing in the will of the testator inconsistent with the claim of dower, nor any provision that would be disturbed by it. It is true, he directs a sale of his whole property, but such was also the case in the cases cited; and in this respect the case of Wood v. Wood is precisely in point. The defendant is entitled under the will to an estate in fee in the Walnut Grove farm. The specific devise to her forms an exception to the general devise to the trustees contained in the preceding part of the will. (2 Burr. R. 920.) The devise to her is of the “ possession and direction” of the farm, &c., and under the revised statutes, it is a question of intention whether or not a fee passes without words of perpetuity. (2 R. S. 57, § 5.) If he had intended to limit her possession and direction of the farm to the term of her life, what reason can be given for his not saying so in express terms, as he did in the two other paragraphs immediately preceding and succeeding this 1 The bequest to the defendant of the household furniture, carriages and other personal property, conveyed to her an absolute estate in the personal property. It was manifestly the intention of the testator to convey an absolute interest. The words used would be sufficient to pass an absolute interest in real estate even. (See 1 R. S. 748, § 31, 32; 2 Idem, 57, § 5; 4 Kent’s Comm. 537, 8.) The case of Gillespie v. Miller, (5 John. Ch. R. 21,) does not conflict with this construction. That case arose before the revised statutes, and it was evidently the intention of the testator in that case to convey a life estate only. The intention to give a life estate must be made to appear by express terms or be necessarily implied.
   The Chancellor.

The right of dower being a legal right, the wife cannot be deprived of it by a testamentary disposition in her favor, so as to put her to an election, unless the testator has manifested his intention to deprive her of dower, either by express words or necessary implication. It is not pretended in this case that the language of the will in respect to the provisions for the wife are at all inconsistent with her claim to dower in the residue of the testator’s real estate. The cases on the subject of implied manifestation of intention to exclude the right of dower appear to establish this principle, that to put the wife to her election, the will must contain provisions which are wholly inconsistent with her claim of dower in the particular portion of the estate as to which the claim of dower is made. Thus, in Birmingham v. Kirwan, (2 Scho. & Lef. 440,) where the testator devised his property to trustees, with power to sell or mortgage the same, and out of the rents or of the proceeds of the sales or mortgages to pay his debts and also the sum of 4000l. for legacies, one of which legacies was to his wife ; and devised a house and farm to his wife for life, at a certain specified rent, Lord Redesdale held that the wife could not claim her dower in the house and farm, as that would be inconsistent with the will, which reserved to the trustees a rent which extended to the whole farm. But he also held that she was not barred of her dower in the residue of the estate, although it would not sell for so much as if her claim of dower therein was relinquished. That case was in some respects like the present in reference to the implied exclusion of the right of dower in the estate to be sold; inasmuch as a part of the proceeds of the sale were for the benefit of the wife herself. And in the case under consideration, some of the property in which the defendant claims dower may have to be sold for the purpose of raising the annuity to her, and paying the other legacies, if the testator’s personal estate should not be found sufficient for that purpose. Chancellor Kent says the testamentary provision in lieu of dower, in order to render it such upon the wife’s acceptance of it, must be declared in express terms to be given in lieu of dower ; or that intention must be deduced by clear and manifest implication from the will, founded upon the fact that the claim of dower would be inconsistent with the will, or so repugnant to its provisions as to disturb and defeat them. (4 Kent’s Comm. 58.) And his judicial decision in this court, in the case of Adsit v. Adsit, (2 John. Ch. R. 448,) is an authority to show that a devise to trustees to sell, and to pay a legacy to the widow out of the proceeds of such sale, is not inconsistent with her claim of dower in the estate which the trustees are authorized to sell. The cases of Foster v. Cook, (3 Bro. C. C. 347,) and French v. Davies, (2 Ves. jun. 527,) are also authorities in support of the same principle. And in the case of Wood v. Wood, (5 Paige’s Rep. 601,) where the testator directed his real estate to be sold, and a portion of the proceeds to be invested for the use of his wife during her widowhood, but without indicating any intention that her interest as tenant in dower should be sold also, this court held that the provision in the will was not inconsistent with her claim of dower j and that the widow was not bound to elect.

In the present case, although the testator has expressly directed village lots to be laid out and sold, as they may be wanted, it is not necessary that each lot should be sold subject to the widow’s right of dower. For a portion of the lots thus laid out may be assigned to her for her dower in the whole, and the rest may be sold free from any claim of dower. Or she may be endowed of other portions of the real estate, leaving all that is wanted for village lots during her life entirely free and unincumbered. I therefore conclude that upon the settled principles of law on this subject, the widow is entitled to dower in the testator’s real estate, notwithstanding the devises and bequests in her favor in the will. Taking the whole disposition which the testator has made of his property into consideration, it can hardly be said he intended to give her dower in addition to the testamentary dispositions in her favor ; and probably if the question of dower had occurred to him, he would have inserted a provision in the will declaring that the dispositions in her favor should be in lieu of dower in the residue of his estate. But it is not sufficient to bar her dower that he did not think on the subject; as that would only indicate a want of intention either one way or the other. To exclude her right to dower, which is given to her by law, the will itself must show that he probably did contemplate the subject, and intended that the testamentary provisions for the wife should exclude her from all claim to dower, if she elected to take them.

I think the language of the will clearly indicates that the defendant was only to have a life interest in the Walnut Grove farm. Under the provisions of the revised statutes, the term heirs, or other words of inheritance, are no longer necessary to pass a fee ; but every grant or devise of real estate, or any interest therein, passes all the estate or interest of the testator in such lands, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of such grant. (1 R. S. 748, § 1.) If therefore there had been a direct devise of the Walnut Grove farm to the defendant, although without words of perpetuity, the subsequent provision for an annual allowance to her to keep it in repair, would not be evidence of an intent to limit the devise to the continuance of her life merely. But the language of the will is peculiar. There is no direct devise to her of the farm ; and she takes a life estate therein by implication only. This farm, together with all the testator’s other real estate, is devised in the first place to his executors and trustees ; and her interest in the farm is carved out of that devise, by language which clearly indicates that he did not intend to give to her an estate commensurate with that which he had previously conveyed to the trustees. The language of the testator, after giving to his wife an annuity which is in terms limited to the duration of her life, is that she shall have the possession and direction of the Walnut Grove farm. And in order to keep up the. garden and improve the property, he gives her a further annuity of $500, in addition to the income of the farm.

Although the 47th section of the article of the revised statutes relative to uses and trusts turns this beneficial interest in the farm, which is thus given to her, into a legal estate, it does not enlarge that estate, or extend its duration beyond the period to which the testator’s language shows he intended to confine the beneficial interest. And the possession and direction of the farm could not extend beyond the termination of her natural life.

I think there can be no reasonable doubt that the specific bequest of the household furniture, carriages and harness, waggons, sleighs, farming implements and horses, &c., is an absolute bequest to the wife of the whole property and interest therein, and not merely a life interest in the use thereof. There is nothing in the will to indicate an intention to thus limit the bequest. And the next clause of the will, which gives her the use of the library during her natural life, shows that the testator clearly understood the distinction between an absolute bequest of personal property, and the bequest of a mere life interest in property which would not probably be consumed in the using.

A decree must therefore be entered declaring the construction of the will of the testator according to this decision and directing the complainants to assign to the defendant her dower in the real estate of which the testator died seized, and to permit her to take and enjoy the property specifically bequeathed to her accordingly, and to pay to her the annuities out of the testator’s estate according to the directions of the will. The costs of both parties to be paid out of the personal estate not specifically bequeathed.


text:
    Bayeaux vs. Bayeaux and others.
    Where a testator attempted to dispose of his property by will, but the will was so inarlificially drawn that it was impossible to arrive at any satisfactory conclusion as to what estates or interests in his property he intended to give to his wife and children respectively, or to any one of them; Held, that the will was void, except as to the appointment of the testator’s wife as executrix of the will, and as the testamentary guardian of his children ; which fiduciary characters were given to her by implication.
    April 21.
    The bill in this cause was filed by the widow, and administratrix with the will annexed, of H. F. Bayeaux, deceased, for the purpose of obtaining a construction of his will. The testator died at the city of Troy, in March, 1839, leaving a widow and three infant children, who are the parties in this cause. By his will, made a few months before his death, he disposed of his property as follows :

      “ First. All my property of whatever kind and description, whether real or personal, I give unto my wife. Martha L. Bayeaux, in trust, charging thereupon the payment of all just debts against me, and subject to her sole, entire, and absolute control, as it regards the settlement thereof and the income that may arise therefrom ; feeling the fullest assurance that she will act honestly and discreetly, and so as to advance the best interest of herself and children. And I charge solemnly upon her that should she ever be so unfortunate as to have a child that should so far forget that kind, affectionate and tender treatment that is due to a mother, as to treat her with disobedience, and possibly with contempt, then and in that case I charge upon said Martha that she withhold from said child a part, or if need be, all participation in any benefit of said property, or income arising therefrom, until said child shall return to duty.

      Second. It is not my wish or intention that any property hereby disposed of shall in any event be bestowed to advance the interest of any relations of my wife before my marriage with her, leaving her free to act in regard to her father agreeably to the dictates of her own. conscience and the obligations imposed upon her in this instrument.
    "Third. The provisions herein made and contained are intended to embrace not only the children we now have, but also all that may be alive at the time of my decease. In the event of the second marriage of my wife during the minority of our aforesaid children, I hereby constitute and appoint Jonas C. Heartt my trustee ; giving him full power to invest, according to the dictates of his own judgment, any property of whatever description that may belong to my estate for the benefit of my heirs ; the proceeds or income arising therefrom subject to the control of my aforesaid wife Martha L. Bayeaux, in the manner before mentioned in article first of this instrument.
    "Fourth. I charge upon my children in every possible case, and under all circumstances, never to make a matrimonial engagement, or bind themselves to any individuals by promise of marriage, without full parental approbation and consent, as it regards the favored individual. And while I consider it unjust as well as unwise, for any parent to coerce, or to attempt forcibly to induce a child to marry an object it cannot love, so do I also deem it without any possible excuse on the part of the child to marry without the full consent of the parents. And in the event of disobedience on the part of my child in this respect, my wish, desire, and intention is to cut that child off from any participation of the benefits arising from any property I may leave at my decease, of every kind and desc ption whatever.
    " Fifth. In the event of the death of my said wife Martha, during the minority of my children, I hereby constitute and appoint my friend Jonas C. Heartt, my sole executor ; and hereby empower him, or if in consequence of his much business he cannot himself act, require him to appoint some trusty and proper person to take charge of and manage said property under his general direction and superintendence; and dispose of, invest, or employ said property as shall, in his judgment, best advance the interests of my said heirs.”

      The doubts which arose upon this will, and in reference to which the complainant asked the construction of the court, were 1st. Whether the testator had made any, and if any, what legal or valid disposition of his real and personal estate, or of either 1 2d. 'Whether any, and if any, what legal or valid trusts were created by the will 1 3d. Whether the complainant, either as devisee or as administratrix with the will annexed, was authorized to sell and convey, or to lease the real estate of the testator 1 and 4th. What interests the complainant and the defendants respectively took in the testator’s property under the provisions of the will 1

      D. Buell, for the complainant.

      G. R. Davis, for infant defendants.
   The Chancellor.

It is very evident that this will was either drawn by the decedent himself, or by some other person equally ignorant not only of legal language but of legal principles. It is, therefore, very difficult to form any opinion from the will what disposition the testator intended to make of his property. Taking the first section of the will by itself it would appear that he must have intended to give the whole estate to his wife, at least during her life ; trusting to her to apply the income thereof for the support of her children or otherwise, as she might deem proper ; but making no disposition of the property after her death. But the third section, which provides for the appointment of a trustee to protect the property for the separate use of the wife, in case of her re-marriage during the minority of the children, and which makes no provision for the case of a re-marriage after they are of age, seems to be inconsistent with the idea that she was to enjoy the whole income of the property for life. And the fifth section clearly shows that the testator did not suppose that by any of the previous clauses of the will he had given to the wife his property absolutely in fee. Upon the whole, I think, the testator had no distinct conception of the nature or extent of the interests which he was giving to his wife and children in his property, by this anomalous will. And that the different characters of executrix, trustee, and testamentary guardian have been mingled together by him, in this attempt to put his children and their property under the absolute control of their mother during their minority. He also appears to have had some confused idea of a power in trust to take the property from the children and give it to others, in case of disobedience, or upon their marrying without the consent of their mother. But, even that power is not given in such a way that it can be effectually exercised • as the mother is not authorized to appoint the property to others in such a case. And a power to keep the property herself, by withholding her assent to the marriage of her child, would probably be invalid, and inconsistent with the principles of pub-lie policy ; as it might operate as an inducement to her to withhold her consent to a proper marriage.

I therefore conclude that the testator has, by implication at least, appointed the complainant the executrix of his will, during her widowhood and the testamentary guardian of the property of the children during their respective minorities. But that he has madeno legal orvalid disposition, by his will, of any part of his real or personal estate. The real estate, therefore, belongs to the defendants, subject to their mother’s right of dower therein ; and they are also entitled to two thirds of the personal estate after payment of debts and the expenses of the administration. The complainant must account with them accordingly as they respectively arrive of age. And, in the meantime, she is authorized to rent the real estate and invest their respective shares of the personal estate, and to receive the income thereof for their use, as testamentary guardian.

A decree must be entered, declaring the construction of the will accordingly ; and directing the costs of both parties to be paid out of the personal estate of the testator.


text:
    Post and others vs. Leet and others.
    Where by the terms of the master’s sale of mortgaged premises under a decree, the property was to be sold free of incumbrances, and all taxes and assessments were to be paid out of the purchase money, provided bills thereof were produced to the master before the completion of the sale, and it afterwards appeared that an assessment to a large amount against the property, for the opening and macadamizing the avenue through the same, had not in fact been confirmed by the corporation of the city at the time of the sale, although the work had been contracted for and completed more than three years before that time; Held, that purchasers at the sale; who had bid off the property under the belief that such assessment had been confirmed, and that they would hold their lots discharged of the expense of opening such avenue, were not bound to take the property subject to the assessment fol' that improvement.
    Where some of the purchasers at a master’s sale bid upon the supposition that a large assessment, amounting to more than one third of the value of the property, was to be paid out of the proceeds of the sale, and other persons who bid at the sale knew that the assessment was not confirmed, and bid accordingly; Held, that the purchasers were not entitled to hold their purchases, and to have the unconfirmed assessments paid out of the amount bid, unless the persons interested in the proceeds of the sale consented thereto; but, as the property had been purchased under a mistake, that there must be a resale.
    April 21.
    This was an appeal by Staples & McKeon, two of the defendants, from an order discharging Brown, Mason and Browning, who were purchasers of certain portions of the mortgaged premises, at a master’s sale, from their purchases ; unless the appellants would consent that certain assessments upon the lots purchased be paid by the master out of the purchase money. '

      A. L. Robinson & J. McKeon, for the appellants.

      L. B. Woodruff, for himself and the owners of the second mortgage.

      S. A. Porter, for the respondents, the purchasers.
   The Chancellor.

I think the vice chancellor was right, in this case, in not compelling these purchasers to take the lots at the prices bid by them, subject to the assessments for opening 10th avenue, &c. Laying, out of view the fact that two of these purchasers understood the master to say, previous to the sale, that the assessment for that improvement would be paid out of the proceeds of the sale, as to which the master has no recollection, (ancl if he did so, it was undoubtedly trader the supposition.that the assessment was confirmed,) there is no doubt that the respondents bid under a mistake as to the facts of the case, and that they were actually misled by the written terms of sale. The terms of sale were, among other things, that the property was sold free of incumbrances; and that all taxes and assessments Were to be paid out of the purchase money, provided bills thereof were furnished to the master before the completion of the sale. The fact is not disputed, that the corporation had contracted for the opening and macadamizing of 10th avenue, opposite the premises, nearly three years before the sale ; and that the improvement had been made and the avenue had been used by the public some time previous to such sale. Although, as it now appears, the assessment had not been formally confirmed, purchasers who were not aware of that fact would unquestionably be misled by these terms of sale; unless they were told that such asssessment was not yet confirmed, and that the assessment for that particular improvement would not be paid out of the purchase money. As the assessment for this improvement will amount to more than one third of the bids of Browning,and to more than half of the bids of Mason, it would be unjust and inequitable to compel them to take the property and pay the assessments under such circumstances. The amount of the charge upon Brown's lots is not stated, but I presume it was in-the same proportion. Although the appellants knew that the assessment had not been confirmed, and therefore bid upon the straposition that if they became the purchasers they would have to pay the assessments themselves, yet as they did not communicate that information to the respondents, it does not affect the equitable claim of the latter to he discharged from their respective purchases.

For these reasons, the order appealed from must he affirmed with costs. And the proceedings are to be remitted to the vice chancellor, to the end that the order for a resale may be carried into effect. As the purchasers have not appealed from the order of the vice chancellor, I cannot modify it so as to permit the assessments to be paid out of the purchase money, without the consent of the appellants. Indeed, such a modification would be improper; as the appellants bid under the supposition that the purchasers were to pay these assessments which were not confirmed ; and probably would not have let the property be sold for those prices if they had believed the purchasers were to take it free of this charge.