text:
    Meach and others vs. Chappell & Carpenter.
    Where, upon a reference to a master to settle issues to be tried by a jury and to determine in what county the trial should be had, each party swore to a great number of material witnesses residing in the counties where such parties respectively desired to have the issue tried, but they did not state in their affidavits the matters they expected to prove by sucli witnesses; Held, that the master should have rejected or disregarded these affidavits on both sides ; or should have called the parties before him and examined them on oath as to the matters they expected and belived they would be able to prove by the witnesses respectively, and as to the grounds of such belief.
    By the practice of the court of chancery a general affidavit of merits is not received. But the party must slate upon oath what such merits are, to enable the court to sec whether they arc not merely imaginary; and so that the deponent may be liable to punishment for perjury if his affidavit is false.
    So in an affidavit of the number and materiality of witnesses, in reference to the proper place for the trial of issues directed by the court, the party must state in his affidavit the substance of what he expects and believes he will be able to prove by the witnesses respectively; to enable the court, or master, to judge of their materiality.
    March 3.
    This case came before the court upon exceptions to a master’s report, settling issues to be tried by a jury, and determining the .place of trial. One of the complainants, for the purpose of inducing the master to fix the place of trial at New-York, made an affidavit in which he swore, without any qualification whatever, that fifty-two persons, whose names were given, residing in the city of New-York, were all material witnesses for the complainants on the trial of the issues ; and that they could not safely proceed to trial without the testimony of each and every of those witnesses. But it was not stated in the affidavit what they expected or believed they should be able to prove by any one of those witnesses. On the other hand, one of the defendants swore to forty-six witnesses residing in the county of Monroe, and twenty or thirty in the adjoining counties, most of whom would be material witnesses for the defendants, upon the trial, if certain questions as to a mercantile custom were to be tried; and if not, that seven of the witnesses residing in the county of Monroe, would be material upon the trial, without reference to those questions. The master came to the conclusion that those questions would not arise upon the trial of the issues which he framed. He therefore reported that the trial should be had in the superior court for the city of New-York ; without requiring the complainants to state on oath what they expected or believed they should be able to prove by either of their fifty-two witnesses in New-York. To this report the defendants excepted.

      R. W. Peckham, for the complainants.

      E. Darwin Smith, for the defendants.
   The Chancellor.

The master erred in placing any reliance whatever upon the general affidavits of either party, swearing to the number of their witnesses, without stating what they expected to prove by them. It is the settled practice of this court, in an affidavit of merits, to require the party to state what such merits are ; so that the court may see that the defence is not merely imaginary. And that the defendant may be in a situation to be prosecuted for perjury, if he swears to that which he knows to be false. The same rule should be applied to affidavits of the materiality of the witnesses in reference to a question of venue. And the party should state in his affidavit the substance of what he expects and believes he will be able to prove.by the respective witnesses named therein ; so that the court as master may judge of their materiality. From the nature of the issues which the master has framed for trial, it is wholly incredible that either can have fifty witnesses, the testimony of each and every one of whom can be material; even if the custom of merchants in the city of New-York was necessary to be proved. The master, therefore, instead of acting upon these general affidavits, should have rejected them entirely; or he should have called the deponents personally before him and examined them on oath, as to what they expected and belived they would be able to prove by each witness, and as to the grounds of such belief.

Rejecting these general affidavits, there was nothing before the master to show that any witness residing either in New-York or in the county of Monroe, was material upon the trial of the issues. And as neither the bill nor the answer was sworn to, it was impossible to say where the questions in issue arose ; so as to enable the master to fix the place of trial with reference to the probable residences of the witnesses necessary to establish the facts as to which the respective parties hold the affirmative upon the trial. The master, therefore, instead of sending the issues to be tried in the city of New-York, or in any other large county, where the press of other business would necessarily cause great delay and consequent expense to either party who was compelled to attend there with his counsel and witnesses, should have directed the issues to be tried in some of the smaller counties where the business of the circuit would probably have allowed the trial to take place within three or four days after the opening of the court.

The exception to the master’s report must be so far allowed as that the trial of the issues shall be at the circuit court in the county of Schenectady, instead of the superior court of the city of New-York.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Wood vs. Genet.
    Where real estate was conveyed to a feme covert, by her mother, previous to her marriage, and a judgment was afterwards recovered against the gran, tee and her husband as heirs at law of the mother, upon the ground that the deed was fraudulent, which judgment was subsequently reversed by the court for the correction of errors; and before such reversal the land was sold under the judgment, and the husband received a considerable sum for the surplus money on such sale; Held, that the wife who had recovered back her land from the purchaser subsequent to the death of her husband, was not liable to such purchaser for the surplus moneys received by her husband on the sale, nor for the value of the improvements made upon the premises while they were held adversely to her and her husband under the sheriff’s sale; but that the value of permanent improvements might be offset against her claim for mesne profits.
    Where the estate of a feme covert is sold on a judgment, recovered against her as an heir or devisee, her husband at law is entitled to receive from the sheriff the surplus moneys raised on the sale, beyond the amount of the debt and costs; and she cannot be made personally liable for such surplus moneys, although the sale should afterwards be found to be invalid and inoperative to convey the legal title of the land to the purchaser. Nor can her separate estate be made liable for such moneys, except so far as they have been applied for the benefit of such estate.
    Whether a court of equity can protect the surplus moneys arising on a sale of the real estate of a feme covert, upon a judgment and execution against her and her husband, so as to prevent its going into the hands of the husband for his own use without any provision for her support out of the same, Qurzre ?

    March 3.
    This case came before the court upon demurrer. The complainant alleged in his bill that the Manhattan Company, in January, 1818, recovered a judgment in the supreme court against the defendant and others, as the heirs and devisees of Maria Osgood, deceased, for $7654,62 ; to be levied of the lands and tenements whereof W. F. Osgood, Martha B., the wife of E. C. Genet, Julianna, the wife of S. Osgood, and Susan IC. Osgood, and each of them, at the time of the commencement of that suit, in October term, 1815, had as well by descent as devise from Maria Osgood ; and that by virtue of an execution on that judgment, the sheriff of New-York sold’ lot number eleven, in Cherry-street, in that city, to S. Sterling, for $7200, and lot number seventeen, in the same street, to another person, for $5550; and conveyed the lots to the respective purchasers, as lands which he supposed he was authorized to sell by virtue of that judgment and execution, as having come to the defendants in the judgment by devise or descent from Maria Osgood. The bill further charged that the two lots thus sold formerly belonged to Maria Osgood, the mother of the present defendant, who conveyed lot number eleven to the defendant, in May, 1814, and lot number seventeen to Susan K. Osgood, another of her daughters, about the same time, in consideration of natural love and affection; that shortly after these conveyanees the defendant intermarried with E. C. Genet, now deceased ; and that subsequent to the marriage, but in the same year, Maria Osgood died, and by her will devised her residuary estate, both real and personal, to her children Martha B. Genet, Julianna Osgood, W. F. Osgood and Susan K. Osgood. The complainant further charged in his bill, that at the time of making the conveyances to her daughters, the grantor was indebted to divers persons, and among others, to the Manhattan Company, for the demand upon which the judgment was subsequently recovered against her heirs and devisees ; and upon the trial of the cause in which that judgment was recovered, upon a plea that the defendants had nothing by descent or devise from Maria Osgood, the deed from her to the present defendant was given in evidence, on the part of Mrs. Genet and her husband; and that a distinct question before the jury on the trial of that issue was, whether that deed was not fraudulent or void as against the Manhattan Company and other creditors of Maria Osgood, and whether the lot number eleven was not assets by descent or devise in the hands of the defendants in that suit, or some of them ; and that the court and jury, on the trial of that issue, decided that the deed was fraudulent and void, and the jury gave a verdict for the plaintiffs, upon which the supreme court afterwards rendered the judgment upon which these lots number eleven and seventeen were afterwards sold by the sheriff. The bill further charged that E. C. Genet, the husband of the defendant, acting in behalf of his wife as well as himself, at or previous to the sheriff’s sale, entered into a written agreement with Susan K. Osgood, the grantor of lot number seventeen, by which the said E. C. Genet and S. K. Osgood agreed to divide between them, in proportion to the respective values of the two houses, any surplus which might remain in the sheriff’s hands, after satisfying the judgment and costs, and that the whole surplus should be paid into the hands of S. Cox for that purpose ; who received the same from the sheriff accordingly ; and that E. C. Genet afterwards received from Cox $3253,57 as his proportion of such surplus moneys. The bill then stated that the complainant, in February, 1822, purchased lot number eleven of the estate of Sterling, and in April thereafter obtained a conveyance therefor, from the widow and one of the adult heirs and from the guardian of two of the heirs who were infants; and that he thereupon took possession of the premises, and continued in the receipt of the rents and profits until he was turned out by virtue of a writ of possession, in January or February, 1838, issued upon the judgment thereon mentioned; that after the sale by the sheriff, the defendant in the judgment under which the sale took place, brought a writ of error upon that judgment, and the same was reversed by the court for the correction of errors, upon the ground that incompetent and improper evidence had been received upon the trial of the cause, and not on the ground that the deed to the defendant in this suit was valid; that in 1824, an action of ejectment was commenced in the supreme court against the complainant in the name of James Jackson, for the recovery of lot number eleven, upon the joint demises of E. C. Genet and his wife and upon a separate demise of the son of the said Genet, under which last demise, however, no evidence was given at the trial; that two verdicts rendered in that suit were upon subsequent proceedings there set aside ; and that finally a verdict was, in 1833, found for the plaintiffs therein, upon which the supreme court gave judgment against the present complainant; which judgment, in December, 1837, after the death of E. C. Genet, was affirmed by the court for the correction of errors. The complainant also stated in his bill that E. C. Genet, the husband of the defendant, died in July, 1834, and devised to her all his real and personal estate, and appointed her his sole executrix ; but whether he left any estate, either real or personal, at the time of his death, was not stated in the bill. The complainant further stated, that during his possession of lot number eleven, he had made permanent improvements thereon to a large amount; that the defendant had taken possession of the premises under the judgment in ejectment, and had received some part of the rents accrued thereon ; and that she was about to commence proceedings against him under the statute for mesne profits ; that the surplus moneys received upon the sale, as the complainant insisted, properly and equitably payable to Genet and his wife, under the deed to her from her mother, and were therefore received by the husband, as well for and on account of his said wife and in trust for her, as representing her interest in the premises, as on his own account; and and that the same were applied by him to the joint benefit of himself and his wife according to their respective rights therein; and that the complainant therefore was equitably entitled to receive from the surplus moneys which her husband received upon the sale, with interest thereon, upon the complainant’s accounting for the rents and profits of the premises for the period allowed by law. He therefore insisted by his bill, that he was entitled to offset his permanent improvements upon the premises against the six years’ rents and profits allowed by law j and to be paid by her the surplus moneys upon the sale, with interest thereon. And he prayed that she might be decreed to pay him such surplus moneys, with interest thereon from the time the same were received by her late husband, upon his accounting for the rents and profits of the premises for the period allowed by law, after offsetting the value of his permanent improvements against such rents and profits. He also prayed for a preliminary injunction restraining her from proceeding at law for the recovery of the mesne profits of the premises, or from selling or disposing of such premises until the final decree of the court in this suit.
    To this bill the defendant demurred, and assigned for causes of demurrer ; First, That the complainant showed no equitable title to the relief sought by his bill; Secondly , That he had a perfect and adequate remedy at law for any relief to which he was entitled upon the case made by his bill; and Thirdly, That he had not by his bill made or stated such a case as in equity entitled him to the relief prayed therein.

      B. F. Butler, for the complainant.

      S. Stevens, for the defendant.
   The Chancellor.

Upon the argument of this cause, it was understood that the decision of the court should be suspended for the purpose of enabling the complainant to propose some formal amendments to his bill, which it was supposed the other party would probably agree to, for the purpose of having the case decided upon its merits only. But as a year and a half has since elapsed, and no application has been made to amend, I must consider the complainant as having abandoned the right to apply to amend this injunction bill. I shall therefore proceed to make a final decision upon the bill in its present form.

One of the objections made upon the argument by the defendant’s counsel was, that the bill did not show that the complainant had acquired the title to lot number eleven, which the sheriff’s deed professed to convey to J. Sterling. The defect in that part of the bill is, that the complainant alleges that he bought the premises of the estate of Sterling, and took a conveyance from his widow and one of his children, and from the guardian of two other children ; without stating whether these were all the heirs at law of Sterling, or whether the title to the property came to them by devise or descent; and without showing any authority to the guardian to sell the real estate of his infant wards. The objection to the complainant’s title in this respect is certainly well taken, even if it should be conceded that the grantee of the whole of Sterling’s legal claim or interest, in the lands sold by the sheriff, would by a mere conveyance of the land itself become the assignee of any equitable claim which Sterling might have had against Genet or his wife to refund the surplus moneys received from the sheriff, on the sale of a lot to a purchaser who acquired no legal title under the judgment and execution.

The bill is not properly framed to obtain relief under the act of April, 1813, relative to judgments and executions, (1 R. L. of 1813, p. 504,) even if the last clause of the eleventh section of that act extended to such a case; as that statute contemplated a proceeding in which the plaintiffs in the judgment, as well as the persons against whom the execution was issued, should be made parties. Besides, that statute merely authorized a suit at law in the supreme court, by an original writ returnable in that court. Again : the revised statutes, which were in force at the time this eviction took place, give to the purchaser or his assigns, who have been evicted by reason of the reversal of the judgment upon which the real estate was sold, a remedy against the party for whose benefit the same was sold, in a suit at law to recover back the purchase money and interest. (2 R. S. 376, § [68,] 72.) Whether the complainant has not a perfect remedy in this case against the Manhattan Company, for whose benefit the sale was made, to recover back the whole purchase money and interest, is a question which does not arise here. But it is clear that no such remedy is given by the statute, either at law or in equity, against Mrs. Genet; for the judgment was not against her personally, neither was this lot sold for her benfit. The execution was only against such real estate as had come to her by devise or descent from her mother. She therefore had no interest in, neither was she in any way personally benefitted in having this lot, which belonged to her under the deed of May, 1814, sold for the payment of her mother’s debt. There is no allegation in the complainant’s bill that the conveyance to her was actually fraudulent, or that her mother at the time of that conveyance had not other property which was sufficient to pay all her debts. The only averment in the bill is, that upon the trial of the issue in the original suit, against the heirs and devisees of Mrs. Osgood, the court and jury, upon the legal and illegal evidence then produced, decided that this conveyance was fraudulent. But by a reference to a report of that case, it will be 'seen that a part of the illegal evidence which was received at the circuit, and for the improper admission of which the judgment was reversed by the court for the correction of errors, was evidence introduced for the purpose of shewing that Mrs. Osgood was insolvent at the time of giving these conveyances to her children, and that such conveyances were therefore fraudulent and void against her creditors. (Osgood v. The Manhattan Company, 3 Cowen’s Rep. 612.) The court of dernier resort having reversed the judgment, because illegal and improper evidence had been submitted to the jury to prove that the grantor was insolvent when the deed was given, the verdict of the jury which was produced in part at least by such illegal testimony, even if the jury had declared in terms that the deed was fraudulent, must necessarily fall with it; and would be no evidence of fraud in any future litigation. And such was the decision of the court for the correction of errors in the ejectment suit when the case was last before it in December, 1837. (Wood v. Jackson, ex dem. Genet and others, 18 Wend. Rep. 107.) The complainant therefore has no pretence of claim, either at law or in equity, against Mrs. Genet, to recover back any part of the purchase money paid by Sterling upon his purchase of lot number eleven at the sheriff’s sale i unless she is legally chargeable with the act of her husband in receiving the surplus moneys raised on that sale. That question I will now proceed to consider.

At the time of the sheriff’s sale, Genet, by virtue of his marriage, had a life estate in his wife’s real property. And if any part of her real estate was legally sold upon an execution against her, he had also by virtue of such marriage full power and authority to receive any surplus money which might be raised on such sale; and to apply it to his own use, as a part of her personal property accrued by act and operation of law. It is even doubtful whether a court of equity could have protected it for her use, as against the husband and his creditors, where it had not been previously secured to her for her separate use. It is evident, therefore, that she could not in any way have prevented her husband from receiving this surplus money, which was raised by the illegal sale of property in which he had a life interest; and I am not aware of any legal or equitable principle upon which she can be made liable to refund money thus received by her husband, and which it is not pretended by the bill has been applied for the benefit of her separate estate. As it is perfectly well settled that a feme covert cannot bind herself, personally, by any contract or agreement, although she may make an agreement which will bind her separate estate in the hands of a trustee, it is unnecessary to cite authorities to show that the husband cannot bind her personally, by any act of his. The averment in the bill “ that the money was received by the husband in trust for her, and as the representative of her interest, and that it was applied by him to the joint benefit of himself and wife, according to their respective rights and interests therein,” was not intended as an averment of a fact to be sworn to by the complainant; but it is stated by the pleader as a mere conclusion of law which he attempts to draw from the facts previously charged. Besides : the averment that the money was applied by the husband to the joint benefit of himself and his wife according to respective rights therein, amounts to nothing even as an averment of a fact; as she had no right whatever in the surplus raised on this sale. And as I have before said, the whole surplus, even upon a valid sale of the wife’s property, would belong to the husband subject at most to the wife’s equity to a support out of the same.

It is unnecessary to inquire whether any relief could be obtained against her, as executrix of her husband, as there is no prayer in the bill under which any relief can be given against her in that character ; neither is it alleged that any thing has come to her hands as the executrix or as the re-residuary devisee of her husband. The mesne profits belong to her in her own right, as the survivor of her husband, as a part of her property which he had not reduced to possession in his lifetime, and which therefore do not belong to his creditors.

It was not necessary for the complainant to come into this court to obtain an offset of the permanent improvements which he has made upon the premises, against the defendant’s claim for mesne profits ; as he has a perfect remedy in that respect in the proceedings at law. (2 R. S. 311, 49.)

As the complainant upon the case made by his bill is not entitled to any discovery or relief of which he can avail himself, either in this court or elsewhere, under the very special prayer contained in that bill, the demurrer must be allowed and the bill dismissed with costs. And the injunction issued in the cause must be dissolved; if the order to that effect has not already been entered.


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    Beach vs. Bradley and Lay.
    Where the vice chancellor before whom the proceedings were pending, upon the application of the creditor of an habitual drunkard, settled the amount due, and directed the committee to pay the same, together with the costs of the application, out of the estate of the drunkard ; and authorized the committee, if necessary, to sell the real estate for the purpose of raising funds to pay the debt; and also authorized the creditor to file a bill against the committee to recover his debt and costs, if the order Was not complied with ; Held that the part of the order authorizing the filing of a bill, after the debt had been liquidated and settled and decreed to bo paid, by the previous part of the order, was erroneous ; as subjecting the estate to the costs of a useless litigation. And that the proper course to be pursued in such a case was to compel the committee to comply with the order to pay the debt and costs out of the estate, by summary proceedings against him.
    Where it is necessary for the creditor of a lunatic or an habitual drunkard to file a bill against the committee, to establish a debt and to obtain satisfaction thereof out of the estate of the lunatic or drunkard, it seems the lunatic or drunkard may also be made a party defendant in the suit; so as to make the proceedings binding upon him in case he should be restored to the possession and control of his estate before the termination of the suit.
    March 3.
    This case came before the court upon an appeal from a decree of the vice chancellor of the seventh circuit. On the first of November, 1836, upon a settlement between the complainant and the defendant Bradley, as the committee of the person and estate of Lay, an habitual drunkard, there was found due from the estate of Lay a balance of $293,16. On the 5th of the same month, a petition was presented to the vice chancellor, by whom the committee had been appointed, to compel such committee to pay that balance to the complainant Beach, who was the petitioner. And on the 5th of December the vice chancellor made an order directing the committee to pay the $293,16, together with the interest thereon from the first of November, and also the petitioner’s costs upon the application, out of the estate of Lay, within ninety days from the date of the order. And he also authorized the committee, if necessary, to sell the real estate of Lay to raise the requisite funds for that purpose. The order of the vice chancellor also contained the following clause : “ And in case the said Samuel Bradley neglects to comply with the requirements of this order, that the said David Beach be at liberty to file his bill in this court to recover his said demand, and the said costs and charges.” In February, 1837, the committee contracted for the sale of a part of the real estate of the defendant Lay for the sum of $2600, of which' sum $140 was paid down, and the further sum of $360 was to be paid on the first of April thereafter. On the first of March the committee paid to the solicitor of the complainant the $140, and took his receipt therefor; $35,48 for the costs upon the petition, and the residue on account of the demand of" the petitioner ; that sum being all the money the committee then had in his hands belonging to the estate.
    On the 10th "of March the complainant filed his bill in this cause for the recovery of the whole sum mentioned in the order of the 5th of December, together with the taxed costs of that application; alleging therein that the committee had not paid the same or any part thereof according to the requirements of that order, and that the same still remained wholly unpaid and unsatisfied. To this bill the committee put in his answer, on oath, admitting the making of the order of December 5th and the sale of the real estate in February thereafter, but denying the allegation in the complainant’s bill that the debt and costs mentioned in that order were unpaid, with the exception of twenty-one cents of the debt. On the contrary, he alleged that after the making of the order he made a settlement "with the complainant, in relation to his demand, and also as to certain rents then due and to become due from Beach on account of some part of the estate which had been leased to him, on which settlement it was agreed that those rents should be allowed as part payment of that demand, and that the balance of the same, amounting to $104,73, and the taxable costs upon the petition, should be paid on the first of April thereafter; until which time the complainant agreed to wait for such balance. And that on the first of March he paid the whole of that balance except the twenty-one cents, and also the taxed bill of costs, out of the money received upon the sale of the real estate. The drunkard put in a general answer by his guardian, and the cause was heard on pleadings and proofs as to both. The vice chancellor decreed the payment of the whole sum mentioned in the original order, with interest, except the $140 paid to the complainant’s solicitor in March, 1837, together with his costs in this suit. From which decree the defendants appealed to the chancellor.

      J. W. McAllister, for the complainant.
    A lunatic and his committee may be joined as defendants, in a bill for the performance of contracts made before inquisition found. (2 John. Ch. R. 245. Vide 1 Hoff. Pr. 61, n. 163, n.; Edwards Par. 209, 212, 213; 1 Ch. Cas. 153. 2 Mad. Ch, Rep. 754.) The question as to parties is always more or less a matter of discretion resting with the court, and peculiarly so in cases of this kind, where there is no doubt about the plaintiff’s claim, and no dispute as to what fund it is to be paid out of } and where, too, the defendants are both under and subject to the control of the court, one as ward, the other a servant. The lunatic is a proper party, for the reason that the complainant has a right to secure his demand by a lien on his real estate. But if the lunatic is an improper party, it is no defence for Bradley. The bill might be dismissed as to the lunatic and retained as to Bradley—and dismissed too without costs. (2 Paige, 123.)

      The complainant had a. right to file a hill for relief under the order of the court granting permission so to do. And the settlement and agreement to wait, &c. alleged in the answer as made on the 7th March, 1837, was not proved, and no consideration for this agreement is alleged or pretended.

      O. H. Platt, for the defendants.
    The filing of the bill was unnecessary and is oppressive. The complainant could as well have taken a decree to sell the real estate of the lunatic under the petition as under the bill. The whole matter was before the vice chancellor under the petition, and the complainant took such order as he was advised. The permission in the decree on the petition, to file a bill, must have been intended to apply to a different state of things and to a different kind of relief from that sought in the petition. The lunatic is improperly and unnecessarily made a party. (6 John. Ch. Rep. 242. 15 Ves. jun. 164.) It is absurd to bring in a party who had no power or capacity of action, except by the very person already before the court as his trustee, and when the court is only to look at the certainty of the debt and to the state of the assets in order to provide for its payment. There has been a settlement and adjustment of the subject matter of this suit between the parties; a balance has been struck and paid : there is nothing left for the action of this court. This is alleged in the answer and proved.
   The Chancellor.

If it was proper to file a bill in this case for the recovery of the complainant’s demand, I am not prepared to say he had not a right to make the drunkard a party with his committee, so that the former would be bound by the proceedings in case he should be restored to his estate before the termination of the litigation ; although it was not necessary, probably, to make him a party for any other purpose.

I have no doubt, however, that the provision contained in the original order, upon the petition, authorizing the filing of a bill, was erroneous 5 on the ground that there was nothing to settle between the parties which rendered the filing of a bill necessary or proper, and that a proceeding by bill, instead of a summary application to compel the committee to comply with the order of the court, must necessarily subject the estate to great and useless expense. After the debt had been liquidated by the order of the court, if the committee neglected to comply with the order to sell the land and pay the amount due, the court, upon a. summary application, should have removed him and appointed another in his place who would discharge his duty. And if he had neglected to pay, after he had sold and obtained funds for that purpose, the creditor should have proceeded by attachment to compel payment by him, instead of subjecting the estate to the extra expense of a bill. If this case therefore depended upon the allegations in the complainant’s bill alone, I am not prepared to say he ought to be paid his costs of such an unnecessary proceeding, out of the estate in the hands of the committee ; though- it might not be right to charge him with the costs of the adverse party, where he has the express permission of the court to proceed by bill in the contingency contemplated. The case, however, does not depend upon questions of this kind, as I am satisfied the decree of the vice chancellor is wrong upon the merits.

The vice chancellor must have founded his decree upon the supposition that the answer, containing the statement of the settlement subsequent to the date of the order, was not responsive to the bill, and that it was not sustained by the proof. But in either view of the case, I think the decision was erroneous. There was, it is true, an evident mistake in the answer, in substituting the word March for December, as the time when the alleged settlement took place. But that it was a mere clerical mistake is evident from the answer itself; as .the written memorandum, which is stated in the answer to have been made at the same time, and which was set out in the answer in full, was dated on the 7th of December, instead of the 7th of March. And the money which was paid pursuant to such agreement is, in another part of the answer, stated to have been made previous to the 7th of March. The -mistake as to the month in which the settlement was made, therefore, could not have misled the complainant j neither did it in any manner impair the credit of the answer, so far as the same was responsive to the bill. The complainant charges in express terms that he has caused the taxed bill of costs, and the $293,16, to be demanded of the committee, but that he has wholly refused to pay the same, or any part thereof. And this statement the committee is required to answer upon oath. In his answer to this he “ denies that he has neglected or refused to apply a sufficient part of the avails of the sale to pay and discharge the complainant’s demand, with interest thereon, .and the costs.” But on the contrary he shows, by his answer, that he paid a part of the debt, in the settlement with the complainant, by the relinquishment and discharge -of the rent due and to become due from the latter to the estate ; and that the residue of the debt and costs, with the exception of twenty-one cents, was paid to the complainant’s solicitor within the ninety days prescribed in the order of the vice chancellor. In addition to this he has proved the truth of the allegation contained in this part of the answer, by the testimony of one witness whose character for truth is not impeached in any material respect. I cannot therefore, without coming to the conclusion that both the committee and the witness have been guilty of deliberate perjury, decide that the complainant had any thing due to him at the time of filing this bill, except the twenty-one cents. And it is perfectly clear, upon this answer and testimony, that if this decree in favor of the complainant is permitted to stand, the claim of the estate against him for the rent -of the farm will be forever extinguished.

But it is said that the allegation of the answer and the testimony of the witness as to the settlement and offset of the rent is wholly incredible ; as the complainant could have had no inducement for making such an arrangement. The witness, however, gives a very rational solution of that difficulty. The complainant was the tenant of the real estate which the committee was directed to sell for the purpose of paying the debt, and he was anxious to continue the tenancy for another year. He therefore had a sufficient inducement for making this arrangement, to prevent the absolute necessity of a sale. And he had the promise of a lease for another year if the farm was not sold before the first of April; in which case the balance due to him on that settlement was to he applied to the next year’s rent.

The decree appealed from was, therefore, erroneous, and must be reversed with costs. And the hill must be dismissed with costs; hut without prejudice to the right of the complainant to apply to the vice chancellor for the payment of the balance of twenty-one cents, if it is not voluntarily paid to him by the committee,


text:
    Clark, Executor, &c. vs. Clark.
    The jurisdiction conferred upon the surrogate in whose office a will is pro'ved, to call the executors to account for the proceeds of real estate, sold by them for tho payment of debts and legacies under a power contained in the will, extends to wills made previous to the passing of the statute on this subject as well as to those executed subsequent to that time.
    Where executors are obliged to foreclose a mortgage belonging to the estate of their testator, if the property will probably sell for a sum below its actual value, so as to endanger a collection of a part of the mortgage debt, it is their duty to bid in the property for tho benefit of the estate and to take the conveyance to themselves as such executors, and to hold the premises until they can be sold for a fair price. And where the property remains in their hands unsold, at the time of accounting before the surrogate, he may direct a sale thereof, and a distribution of the proceeds of such sale as a part of the estate.
    It is a violation of duty on the part of a guardian to permit his infant ward to live in idleness, and to support him out of his estate, when he is capable of supporting himself by his industry. And where the guardian permits him to be brought up in idleness, the infant will not be liable to the guardian for the support furnished him in the mean time. But the means of support furnished to an infant, by his guardian, while he is being educated and prepared for future usefulness, will be allowed to the guardian as necessaries.
    To anthorize an executor to retain for a debt due to himself from the estate of the testator, he must, in addition to the usual proof of indebtedness, swear to the existence of the debt, in the ordinary form; unless it is ad. mitted by the adverse party.
    Where an executor by his negligence suffers his co-executor to receive and waste the estate, when he has the means of preventing it by proper care, he is liable to the heirs and next of kin for the estate thus wasted.
    The bequest of the use of the residue of the testator’s personal estate, for the life of the legatee or for any shorter period, does not entitle such legatee to the possession of the fund. The executor should retain the fund in his own hands, and pay over the income thereof to the legatee during the continuance of his particular estate or interest therein. And if the executor suffers the capital to go into the hands of such legatee, to enable him to collect the income himself, ho must take sufficient security from the lega, tee to insure the return of such capital; or he will be liable for its loss.
    This was an appeal from the sentence or decree of the surrogate of the county of Orange, upon the settlement of the account of the appellant as the surviving executor of his deceased brother, James Clark, who died in 1813. The decedent by his will appointed his wife and his brother the executrix and executor thereof, and authorized them to sell his real and personal property, with the exception of some few articles specifically bequeathed to his wife. And after paying his debts, he directed that 'the residue of his property should be divided into six shares; of which he gave one share to each of his four eldest children, and two shares to the youngest. He also directed that his wife should have the care of his children entrusted to her, and should have the use of their property so long as she remained his widow ; the eldest child then being but thirteen years of age. The widow died in October, 1830, insolvent ; having on the 27th of March, 1829, received from the appellant the balance of the funds belonging to the estate in his hands, and given him a receipt in full. The stock and other personal property of the testator were sold by the executrix and executor after his death, for |425, as ascertained and settled by the surrogate; and they also received from S. W. Brown $535, for a note with the interest thereon, which was due at the time of the testator’s death. Both were present when the note was paid and taken up ; but whether the executor or the executrix actually received the money did not distinctly appear. They also sold a part of the testator’s land to F. Bell, for $600, for which they received payment. Another portion of the land was sold by them to N. Carpenter, for $2601; of w'hich $1000 was paid, and a bond and mortgage was taken for the residue of the purchase money. That mortgage was subsequently foreclosed under the statute, and the property was bid in by their attorney, for the benefit of the estate, at $1400, and was subsequently conveyed to them as such executor and executrix. The costs of that foreclosure and sale, including proceedings to prevent waste upon the premises, amounted to $87,96 ; which sum was allowed to the appellant by the surrogate. Pending the proceedings before the surrogate, the appellant tendered to the respondent a conveyance of one sixth of the land .thus bid in for the benefit of the estate, which was accepted by the latter, in full for any claim on account of the money secured by the bond and mortgage. The appellant insisted that the surrogate had no jurisdiction to call upon him to account for the proceeds of the real estate of. the testator. And he also insisted that he was not answerable for any of the property which he paid over to, or suffered to go into the hands of his co-executrix; as by the terms of the will she was to have the use of the property during her widowhood. The appellant also claimed a debt of $700 as due to himself from the testator, for monies raised for him to enable him to purchase a farm about seven years before his death, which claim was disallowed by the surrogate, as barred by the statute of limitations if not actually paid to him by the decedent. It also was proved that the respondent, who was about eight years old at the death of his father, went to reside with the appellant immediately thereafter, and continued in his family, and was sent to school by him as one of his own children six or eight years ; for which the appellant claimed compensation. But no evidence was produced as to the terms upon which he went there to reside, or whether the value of his services during the time he resided there were or were not sufficient to compensate the appellant for his support; and the surrogate allowed nothing on account of that claim. The balance which the surrogate found due tq the appellant, after charging him with the proceeds of the personal estate and the two sums actually received from the proceéds of the real estate, and deducting therefrom the several payments made either by him or by the executrix to the creditors of the decedent, and the expenses of administration, amounted to $1358,94. 'For one sixth of this sum together with the interest thereon from the death of the widow, a decree was made against the appellant, in favor of the respondent, together with the costs of the proceeding before the surrogate ; the other heirs having settled with the executor for their portions of the estate. From that decree, and every part thereof, V. Clark, the executor, appealed.

      S. Jackson & I. R. Van Duzer, for the appellant.
    The surrogate had no jurisdiction over the proceeds of the real estate, and certainly no power to decree in relation to the trusts created by the sale and purchase of property under the Carpenter mortgage. (2 R. S. 94,§ 65, 66.) Consent, even, could not confer such jurisdiction. The payment in full of the trust funds to Mary Clark, executrix, was, under the provisions of the will, an exoneration of Vinson Clark from responsibility. It was especially so, so far as it related to the personal property. The evidence of the money advanced by the defendant to the testator, was sufficient to sustain the allowance ; and the admission of Mary Clark was competent to remove the objection of the statute of limitations, even if it was applicable. The surrogate should have allowed the defendant compensation for keeping, clothing and schooling the complainant. And he erred in charging the defendant with the proceeds of the Brown obligation and of the stock on the farm. The fifty-seventh section of the statute, (2 R. S. 109,) does not apply. The provisions therein contained were first passed in 1822. The phraseology is prospective, and applied only to wills thereafter to be made. [Id. 94, § 65, 66.) The implied promise to pay, arises in law and equity from an admission of the indebtedness by the executrix. The appointment of the creditor an executor, would be sufficient to obviate the objection of the statute, where the indebtedness is satisfactorily established. Every presumption should be allowed in favor of the defendant on account of the hardness of the case. The evidence produced before the surrogate certainly entitled the defendant to an allowance for the board, education, &c, of the respondent.

      A. Dimick & S. J. Wilkin, for respondent.
    The surrogate had jurisdiction over the proceedings in relation to the real estate. The real estate was sold under the authority of the will, and the executors were bound to account under the 57th section. (2 R. S. 110. Keleet’s Ex’rs v. Rathbun, 4 Paige’s Rep. 102.) The purchase by the executors at the mortgage sale, was so far in trust for the infant legatees and heirs, that they might elect to take either the land or the consideration.
    The appellant is not discharged by his payment to his co-executor—she not being guardian of the property of the respondent. Guardian by nature is only entitled to the custody of the person. (2 Kent’s Comm. 219. 1 John. Ch. Rep. 3.) The right of a guardian in socage, extends only to the lands which the infant acquires by descent. (2 Kent’s Comm. 222.) The funds were all in the hands of the appellant, and he was not| justified in paying over the principal to his co-executor as such. Where, by any act done by one executor, any part of the estate comes to the hands of his co-executor, the former will be answerable, (Toller’s Law of Ex’rs, 375, Southerland v. Brush, 7 John. Ch. Rep. 22, 6 id. 452.) And more especially in this case, as the executrix, Mrs. Clark, was in very reduced circumstances, and died insolvent.
    There was no sufficient evidence of the indebtedness of the testator to the appellant, and if there were, it was barred by the statute of limitations. An executor cannot retain a debt barred by the statute. (Rogers v. Rogers, 3 Wendell, 503.) From the vagueness of the. testimony offered by the appellant, the surrogate was not at liberty to make him any allowance for maintaining the respondent.
   The Chancellor.

The objection that the surrogate had no jurisdiction to call the executor to account for the proceeds of the real estate, was not well taken. The act of the 17th of April, 1822, expressly authorized the surrogate in whose office the will was proved, to call the executors to account for the proceeds of the real estate which had been sold by them for the payment of debts or legacies by virtue of a power contained in such will. (Laws of 1822, p. 283.) And the same provision, in substance, was incorporated into the revised statutes. (2 R. S. 110, § 57.) The language of the legislature in both statutes is generalj and no good reason can be suggested why it should apply only to wills made after the passing of the original act, and to subsequent sales. It was perfectly competent for _ the legislature to authorize a proceeding in the surrogate’s court to compel the executor to account for the proceeds of sales theretofore made. And where there is nothing in the language of the act indicating an intention to confine the remedy to subsequent sales, it is not the duty of the court to give such a restricted interpretation to a remedial statute.

As the claim in relation to the land bid in for the executor and executrix, upon the statute foreclosure, was adjusted between the parties upon the hearing before the surrogate, it is too late to urge the objection here that the surrogate had not the power to do justice between the parties ; and that a court of equity alone could give the adequate relief. I cannot, however, see any difficulty in relation to the power of the surrogate as to that matter. This was not a case in which a trustee to sell had himself become the purchaser, through the medium of a third person, for his own benefit, in violation of his duty. On the contrary, it was the duty of the executor and executrix, as faithful trustees, if the premises mortgaged to them were likely to . sell far below their value, to the injury of the estate of the decedent, to bid the same in and take a conveyance to themselves, in their character of executor and executrix; to hold for the benefit of the estate, in the same manner as they held the original mortgage, until they could be sold for a fair price. And in accounting before the surrogate, while the property still remained in their hands unsold, he would be fully authorized to direct a sale thereof and a distribution of the proceeds as a part of the estate which had come to their hands in their fiduciary character ; if those who were interested in the estate preferred their share of the proceeds instead of their share of the land itself.

The will did not constitute the widow the testamentary guardian of the property of the children, but the guardian of their persons merely. And the use of their property, that is the income of it, was evidently intended to be given to her during her widowhood, for their as well as her support, so long as they were not in a situation to maintain themselves. If the appellant, therefore, chose to take his nephew into his own family, instead of permitting him to remain with the widow, and to receive his support out of the income of the estate in common with the other children, there is no good reason why that expense should be charged against his share of the capital of the estate to which he became entitled upon the death of his mother. And if either the mother or the uncle suffered him to remain in idleness after he was old enough to earn his own living, they have no equitable claim against him for having . furnished him with what could not, under such circumstances, be considered as necessaries ; as it would have been a palpable breach of_ duty for the guardian of the respondent to have suffered him to live in idleness, when he was able to earn his own support, unless he was preparing himself for future usefulness by obtaining an education. I cannot, in the absence of all evidence on the subject, presume he did not earn his living during the time he remained with her. The surrogate was therefore right in not making any allowance against the capital of the estate for his support, either by his uncle or his mother.

There is no foundation whatever for the claim for the $700, supposed to be due from the testator to the appellant, at the time of his death. The declarations of the widow were not evidence, even if she had admitted the existence of this pretended debt, as it was barred by the statute of limitations before the death of her husband. She said nothing, however, which, if it had been said by the testator himself, would have amounted to an acknowledgment of an existing indebtedness. She told her children, what was undoubtedly true, that several years before, when their father was poor, his brother had been very kind to him in raising money to enable him to purchase and pay for his farm. But there was not even an intimation that the debt remained unpaid at the death of her husband. What, however, is conclusive to my mind, that this claim is wholly fictitious is, that the appellant did not venture to make it in the sworn answer which he put in before the surrogate, when he was first cited to account. To authorize an executor to retain for a debt due to himself from the estate of the testator, he must, himself, in addition to the usual proof, swear to the existence of the indebtedness after allowing all payments and offsets, in the ordinary form; if the existence of the debt is not admitted by the adverse party. (See Williams v. Purdy, 6 Paige’s Rep. 166.)

The only remaining question is, whether the appellant was liable for the money which he has paid over to his co-executrix. Although it does not distinctly appear who received the money which was paid by Brown on his note, in May, 1813,1 think very little doubt can exist that nearly the whole of it was applied to pay the first instalment on the mortgage to Curtis, which was paid on the 3d of May, in the same year, and which payment is credited to the appellant in his account. It will be seen that the money was received from Brown and the payment made to Curtis, a very short time after the death of the testator, and some months before probate of his will had been granted. It is hardly probable, therefore, that either the executor or executrix had at that time obtained the means from any other source to pay so large a debt ; and it is not alleged that either advanced money from their own funds for that purpose. Again ; if the whole of the proceeds of the personal estate went into the hands of the executrix originally, he should have insisted upon her paying the debts out of those funds ; instead of suffering her to use them for her own purposes and selling the last parcel of the real estate, when the proceeds of the personal property together with the $600 raised on the first sale, were more than sufficient to pay all the testator owed. The appellant, therefore, is unquestionably chargeable with the default of his co-executrix, upon the settled principles of law, unless by the terms of the will she was entitled to the possession of the whole fund during her widowhood; as he paid over to her, in principal and interest, more than the whole balance with which he is charged by the surrogate, after the sale of the last parcel of the real estate.

I think this case comes clearly within the principle of law recognized by this court in Covenhoven v. Shuler, (2 Paige’s Rep. 122,) that the bequest of the use of a residue for life or any shorter period does not give the legatee the right to the possession of the fund in the meantime ; and that the executor should either retain the fund and pay over the income thereof to the legatee, as it accrues; or he should take ample security for the return of the principal at the termination of the particular estate therein, if he suffers it to go into the hands of the legatee to enable her to enjoy the use or income thereof. There is very little doubt in this case that the appellant paid over the whole of the fund to the widow in good faith, believing that she would so use it for the benefit of her children as to exonerate him from liability. Under those circumstances, it is to be regretted that the respondent should not have adopted the course which his brothers and sisters pursued, instead of bringing disgrace on the memory of l is mother, and attempting to render his uncle liable, by showing that she had misapplied or squandered the property which had been entrusted to her for the use of her children. I cannot say, however, that the surrogate erred in the result at which he arrived in this case ; as his decision appears to have been in accordance with the settled principles of law on this subject. His sentence or decree must, therefore, be affirmed with costs.

As it appears by an affidavit which has been sent to me, that the appellant died in June last, the decree of affirmance must be entered nunc pro tunc, as of the first of June, 1839. And the proceedings must remain in this court; with liberty to the respondent to apply to revive the same here, if the debt and costs are not paid without further litigation.


author:
McCoun, V. C.
      The Chancellor.

text:
    E. & V. W. Wickes vs. Clarke and others.
    Where both real and personal estate came to a feme covert by descent from her uncle, and her husband who was embarrassed made a settlement of the whole upon her, by a conveyance thereof to a trustee for her separate use: Held that the settlement was valid as to the personal property, it being not more than a reasonable provision for the wife and her children; but that the wife’s equity did not extend to her husband’s legal title for life in her real estate, as tenant by the curtesy initiate, and that the conveyance of his interest in the real estate to the trustee was invalid.
    Where the husband voluntarily settles upon his wife personal estate which came to her by descent from her relatives, to no greater extent than the court of chancery would have directed him to do upon a bill filed against him by the wife to protect her equitable claim to a support for herself and her children out of the same, such voluntary settlement will be sustained as against the creditors of the husband; although it is void as to other property contained in the same conveyance to the trustee.
    March 3
    This case came before the chancellor upon an appeal by the complainants from a decree of the vice chancellor of the first circuit, dismissing their bill as against the defendants Maria Clarke and Robert Bogardus her trustee. The complainants were judgment creditors of the defendant Peter Clarke, for a debt contracted by him in 1803 ; for which debt James B. Clarke, for whose benefit this suit was probably brought, became the surety and joined, with his brother Peter Clarke in the bond. The complainants among other things sought to set aside a deed of settlement of the wife’s property that came to her by descent from her uncle, and which property was conveyed, in 1829, to the defendant Bogardus, in trust for the use of Mrs. Clarke and her children.
   The following opinion was delivered by the vice chancellor on the hearing of the case before him:

McCoun, V. C.

The complainants are creditors of Peter Clarke, by judgment recovered on the 21st October, 1831, upon a joint and several bond given by him and James B.. Clarke as his surety, on the 1st May, 1803, conditioned for the payment of $4000. Two thousand dollars of'the debt remains due, and after fi. fa. issued and returned unsatisfied, the hill in this cause is filed, principally for the purpose of setting aside a postnuptial settlement made upon the wife of Peter Clarke, by deed executed by him and her to the defendant Bogardus as trustee, on the 16th December, 1829. The deed purports to convey a large real and personal property which had descended to the wife as one of the heirs at law and next of kin of her uncle John Fisher, who died in 1827. The husband’s estate and interest in the property is now sought to be reached upon the ground that the conveyance is a voluntary one, not founded upon any valuable consideration, and therefore fraudulent and void as against antecedent creditors whose debts remain unsatisfied.

It cannot be denied that a wife, by means of property which she acquires in her own right, may become a purchaser from, her husband ; and a post nuptial settlement of a husband’s property upon his wife and children, based upon an actual purchase made in good faith and for a valuable consideration, will be goo-d against prior as well as subsequent creditors. (10 Vesey, 140. Atherly, 155, 161.)

The deed in question is attempted to be supported upon, the ground of a purchase by the wife for a valuable consideration ; and for this purpose Mr. Bogardus, the trustee, has been examined as a witness for his co-defendants, subject to all legal exceptions. His competency is objected to, by reason of a supposed interest to support the trust, as it is said he will be entitled to a compensation for executing it. Be this as it may, and supposing the testimony to be admissible, it is still contended that the testimony does not prove a consideration paid or given for the conveyance. The consideration expressed in the deed is one dollar—no other is mentioned or recited in the instrument. It may be inferred, therefore, that nothing more than a mere nominal consideration entered into the minds of the parties at the time, and that the conveyance was intended to be what its silence in that respect would indicate, a mere voluntary act to secure to the wife the use of the whole property real and personal which had then lately descended to her upon the decease of her uncle, discharged of any right or interest her husband by law might have in it. The difficulty with respect to the testimony of Mr. Bogardus is, that although it proves that as far back as the year 1804 the wife applied a considerable part of her then patrimonial estate to the payment of her husband’s debts, and again in 1811 appropriated another large landed estate to the purpose of securing and paying other debts of her husband, and among them the bond debt of the complainants, and again in 1829 mortgaged a part of the property which came from her uncle, and which is included in the trust deed in question, to raise the sum of $2000 for the use of her husband, and for which the property is still liable ; yet it does not show that these previous transactions entered into the arrangement and formed the consideration or inducement for the making of the deed. In order to render these advances of the wife’s property a consideration for the subsequent settlement of the husband’s property upon the wife, it should appear that there was either an agreement between the husband and wife at the time the advances were made to secure her by settlement, and such an agreement as would be obligatory upon him to perform, or that her parting with her own property or encumbering it for the husband’s benefit, was intended to serve as a consideration for a settlement to be afterwards made by him, and that the deed of settlement, when executed, had reference thereto—in short, that there was some connection between these previous advances and the subsequent deed. This appears to be the principle laid down by Chancellor Kent, in Reade v. Livingston, (3 John. Ch. Rep. 481,) when considering the point how far a parol promise, or agreement to make a settlement, will support a subsequent deed as against prior creditors. Nor are the circumstances here of such a nature as necessarily in the absence of proof to raise the presumption that the deed was founded upon the previous devotion and relinquishment of the wife’s property to the husband’s use. Atherly observes, (p. 164,) that if the settlement on the face of it appears to be purely voluntary, no notice being taken of the wife having released her jointure, &c. yet if the fact of her having done so can be shown to have taken place about the same time that the settlement was made, in that case the court will presume the relinquishment of the jointure to have been the consideration for the settlement. This observation is founded upon the circumstances of the case of Scott v. Bell, (2 Lev. 70,) where an old settlement by way of jointure upon a wife was relinquished by her and sold, and on the same day a new settlement was made upon her, and Chief Justice Hale and the rest of the court held that they would presume the wife would not have parted with her estate by the old settlement, unless the husband would make the same provision for her by the new, and that the one was intended as a consideration for the other. (And see an anonymous case, Free, in Ch. 101.) But in Lavender v. Blackstone, (2 Lev. 146,) where the husband upon his marriage, being then under age, promised to make a settlement when he came of age, and the settlement not being made till three or four years after that event, and then not directly according to the promise, the same court held it should not be presumed to be made in performance of that, promise, an.d required direct proof to that effect in order to sustain the deed against creditors. Then considering the present as a voluntary deed, not founded on a valuable consideration, (and I am of opinion it must be so regarded,) the next question would be if there were no other circumstances to support it, whether it is void as to prior creditors ?

The doctrine that a voluntary settlement after marriage by a person indebted at the time, is in law presumed to be fraudulent and void against all such antecedent creditors, without regard to the amount of existing debts or the extent of the property settled, or the circumstances of the party, and that no circumstances will permit such debts to be affected by the settlement or repel the legal presumption of fraud, as stated by Chancellor Kent in Reade v. Livingston, as being the result of the English cases, and reiterated by him in Bayard v. Hoffman, (4 John. Ch. Rep. 450,) has undergone some modification since, by the decision of the court of errors in Seward v. Jackson, (8 Cowen, 406.)

To authorize the court to interfere with and declare a voluntary settlement void, even as to creditors whose debts existed when the deed was made, intentional fraud must appear ; and prior indebtedness is but a badge or argument of fraud which may be explained away or repelled by circumstances. A recent decision of the chancellor in Van Wyck v. Seward, which went up by appeal from a decision made, (see 1 Edw. Ch. R. 327,) proceeds upon this principle, and affirms the decree dismissing the bill filed for the purpose of setting aside a voluntary settlement made by a father upon his children, because it was apparent from the circumstances and condition of the father in other respects that he had no intention of defrauding his creditors. But the present case does not call for an inquiry into the motives of Peter Clarke in uniting with his Wife in the conveyance of the property in question to a trustee for her benefit. Although it may be deemed voluntary and debts against him remain unpaid, there are other considerations to be attended to in favor of the wife which distinguishes this from the ordinary case of a husband making a settlement of his own property, or property which he possesses in his own right upon his family under similar circumstances. In such cases there should be the most rigid scrutiny, and the fairness and honesty of the transaction must appear in the clearest light to induce the court to sustain it—but the case is very different where the wife’s property acquired during coverture as in this instance is the subject of the settlement—for with respect to both real and personal property which comes to the wife by gift or inheritance, and in which the husband gains an estate or interest in law by virtue of the marriage, the wife’s equity, as it is called, entitles her to a settlement which this court will invariably enforce in favor of the wife and even the children of the marriage against the husband and all claiming under him, such as assignees or creditors ; especially whenever they are obliged to seek the aid of the court to reach the property. (Clancy, 440.) And I think it may be assumed as a rule, that the same circumstances which would induce the court to compel a settlement by the husband or those claiming under him or in his right, will operate to uphold a deed of settlement already made to the same extent that would be required if one should be directed to be made under the view of the court. There are a few cases having a direct bearing upon this point. In Moor v. Rycautt, (Prec. in Ch. 22,) the wife, at the time of the marriage, had a considerable portion in trustee’s hands. After the marriage the friends of the wife required it should be settled for her benefit, whereupon it was agreed that the money should be laid out in land to be settled to the use of the husband and wife and the heirs of their bodies. A creditor of the husband exhibited a bill upon the ground that the settlement was after marriage and voluntary, and so ought not to deprive the creditor of his debt. But it was held, that if the husband himself had exhibited a bill against the trustee for the portion, the court would not have decreed it to him without making some such settlement—and so the creditor’s bill was dismissed. Hinton v. Scott, (Mosely’s R. 336,) is the next case. There the husband who had a considerable portion with his wife on the marriage and had never made any provision for her, afterwards upon her becoming entitled on the death of her father, a freeman of London, to an orphanage part, assigned over such orphanage part to trustees for his wife’s sole and separate use during life and then for her children. And upon the husband’s creditors filing a bill to have the money paid to them as fraudulently assigned, the M. It., Sir Joseph Jekyll, supposed the plaintiffs to be creditors prior to the assignment, though they had not clearly proved the fact to be so, and held that the husband being in poor circumstances and the wife wholly unprovided for, the creditors should not set aside the assignment or have the interest of the money during his life, for it was a reasonable settlement and such as the court would have obliged the husband to make, if he had sued for the orphanage part in that court; and accordingly dismissed the bill. The same principle is found in Middlecomb v. Marlow, (2 Atk. 519.) And in Wheeler v. Caryl, (Amb. 121;) both of which were decided by Ld. Hardwicke who holds this language ; if the husband comes for aid here, this court will decree an adequate settlement to be made on the wife, and will support it as a good settlement for valuable consideration. And if after marriage the husband does agree to do that which the court would have decreed, it shall not be deemed unreasonable, but be held a good settlement against creditors. These cases are cited by Clancy, and they appear to establish the principle which he lays down, that a settlement of the wife’s property, or property which the husband acquires in her right during coverture, made on the occasion of his insolvency or other inability to provide for her, aud where there has been no previous settlement, and especially if the husband has before received a part of his wife’s fortune, is made on so good a consideration, that it will be deemed valid against the husband’s creditors, though entered into after marriage, and though the husband was indebted at the time of such settlement. Upon this ground and under circumstances so analogous, it is the duty of the court not to interfere with the deed in question. Here is a case of an insolvent husband ; a wife and a large family of children destitute of the means of support, except from property which she has acquired by inheritance or gift during the coverture 5 the debts of the husband not contracted on the credit of his interest in the property thus acquired ; a settlement of property made for the benefit of the wife and children, and in point of amount and income not shown to be unreasonable. The bill does not undertake to impeach it on that ground, and to claim any excess beyond what may be necessary for their support; but proceeds to set aside the deed solely on the ground of its being voluntary and fraudulent as to creditors. This, it appears, is of no avail against the wife’s equity, which after all is sufficient to support the deed in the view of this court and to entitle the wife to the full benefit of the property, until it can be shown on the part of creditors, to contain an unreasonably large provision, and more than the wife’s necessities require. If there had been any allegations of this sort, a reference perhaps would be proper to ascertain how far the settlement in question is excessive and unreasonable in amount. But as the case stands before me, I think I must dismiss the bill as to the wife and her trustee; but under the circumstances, without costs.

W. Kent, for appellant.

The deposition of Robert Bogardus is inadmissible, on the ground of interest. He is the trustee of Peter and Maria Clarke, and of course his commissions will vary, and, indeed, be lost or gained by the result of this cause. The deed is void as to the real property conveyed by Peter Clarke and wife to Bogardus. The settlement by Peter Clarke of his tenancy by the curtesy on his wife, was voluntary and void by the statute of frauds ; especially as to pre-existent creditors. (Read v. Livingston, 3 John. Ch. Rep. 481. Bayard v. Hoffman, 14 id. 450. 5 Cowen’s Rep. 57. 8 id. 406. Brown v. Jones, 1 Atkins, 196. Slyter v. Ashdown, 2 Levinz, 146.) A wife’s equity is confined to her choses in action. (1 Roper on Husband and Wife, 255 to 272.) There are considerations which will support settlements after marriage. erly on Marriage Settlement, 156.) The payment of a marriage portion is a consideration which will support a marriage settlement after marriage. (Gardner v. Painter, Cas. Temp. King, 65.) So will giving up an interest in the settler’s estate. (Atherly on Marriage Settlement, 159, 162. Davis v. Coliman, 1 Vernon, 294.) But the consideration must be a present contemporaneous one. And it must be reasonably adequate. (Dewey v. Baintim, 16 East, 257. 10 Vesey, 140. Jones v. Marsh, Cas. Temp. Talbot, 64. Roe v. Miller, 2 Wils. 358. Sutt v. Bell, 1 Atk. 189. Atherly on Marriage Settlement, 173.) Not one of the requisites have been complied with in this case. If the deed is void as to the real estate, it is void as to the personal estate. The rule on this subject is laid down by Atherly, in an anonymous case in Style’s Reports. Rolle is stated to have said that a deed might be good in part, and fraudulent in part. But he very probably meant that some of the limitations of a deed might be good and others fraudulent j and not that a deed might be good throughout as to part of the estate, and bad throughout as to the remainder.

As to the defendant, Peter Clarke, the complainants have a right to retain the bill, for the purposes of a decree as to his individual property, not embraced in the settlement deed, which his answer discloses; and over which a receiver may be appointed, with authority to sell and to hold the proceeds subject to the further order of the court.

The only distinction, between the deed as a conveyance of real property, and as a conveyance of personal property, arises from the wife’s equity, i. e. her right to claim a settlement out of the personal property. In establishing the extent of the wife’s equity, the court will consider whether the wife is provided for or not. (Parker v. Dykes, 1 Eq. Cas. Abr. 54, pl. 6, cited in Kenney v. Udell, 5 John. Ch. Rep. 478. Ex parte Coysegame, 1 Atk. 190.) If the wife is a ward in chancery and has been run away with, she will be entitled to her personal properly. Abandonment and adultery on the part of the husband, will induce the court to give the whole interest to the wife. (Dumond v. Magee, 4 John. Ch. Rep. 324. Newsome v. Bager, id. 37, S. P. 6 id. 178.) The general rule is, the court has never required the husband, or those claiming under him, to settle the whole of the wife’s choses in action upon her and her children, but a reasonable proportion only. (1 Roper on Husband and Wife, 256. Per V. Chancellor in Beresford v. Hobson, 1 Mad. 363. See also as to claims of children, 1 Roper on Husband and Wife, 260; Scriver v. Tapley, Amb. 509; Murray v. Elibank, 10 Vesey, 84; 1 Mad. 363; Wright v. Morley, 11 Vesey, 12.) The wife in this case is well provided for. She is not a ward In chancery. There has been no abandonment, &c. on the part of the husband. All these considerations show that if the wife’s equity is to be allowed at all, it will not embrace the whole of the personal property.

R. Bogardus, for the respondents.

The property assigned was the equitable estate of the wife, and she in conjunction with her husband had in equity a right to put it in trust as a provision for herself and children, not having been previously reduced by him into actual possession. In addition to the wife’s right to a provision out of her equitable estate, and to protect it for herself and children, she in this case was a purchaser of her husband’s interest at law, by applying her patrimonial estate to the payment of his debts and pledging her real estate for the same purpose. The complainant in equity stands in no better situation than the husband would, if an applicant to this court to possess himself of his wife’s equitable estate. The estate in question came to the wife upwards of twenty years after the complainant’s debt was contracted. This estate could therefore have been no inducement to the credit. If the wife’s estate was any inducement to it, that had already been conveyed to the obligor, to whom in equity the complainant is bound to look, at all events previously to his claiming the wife’s newly acquired equitable estate. The assignment of this newly acquired equitable estate was made in trust as a provision for the wile and her children, after the wife had, out of her own estate, made provision for the payment of the debt in question. The complainant stands in no better situation than that of the husband; and his right being legal and not equitable, and having conveyed his legal estate without restraint, for the benefit of the person equitably entitled to it, this court would not assist him to regain his legal right against equity and good conscience, and of course will not assist another under or through him ; nor will this court, in this case, order a reference to ascertain what would be a proper provision for the wife and children. The assigned estate is not an over provision for the wife and children, nor is it so pretended by the bill. The wife in this case may in equity be considered a purchaser of the husband’s legal interest in this newly acquired equitable estate. In equity he was bound to restore to her, her previously appropriated estate to the payment of his debts, as well as the principal sum of $2000 with the interest, to raise which for her husband she had mortgaged part of her real estate. And if the estate assigned had been that of the husband in his own right, and formed a post nuptial settlement, the wife’s estate applied by the husband would form a valid consideration therefor. (3 John. Rep. 484. 10 id. 471. 16 id. 47. 9 Cowen, 67. 16 Wend. 460.) The revised statutes do not reach, nor ever contemplated the wife’s equitable interests to be taken under a creditor’s bill against the husband for his debt. A voluntary trustee is not enlit’ed to commission; (settled in the case of Mannings 1 John. Ch. Rep. 527;) and the revised statutes do not alter the law as to voluntary trustees. Most of the cases referred to by the complainants’ counsel apply to settlements of the husband’s property. There is a just marked distinction in equity between that and the settlement of the wife’s estate.

The Chancellor.

I concur in the conclusion at which the vice chancellor has arrived in relation to the personal property which came from her uncle ; which I think, as between her and the creditors of her husband, she had in equity a right to have settled to her separate use for the support of herself and her children. Independent of the fact that she had previously given up a large portion of her patrimony for the payment of her husband’s creditors, it is not alleged or proved that the personal estate included in this settlement was any thing more than a reasonable support for herself and her children. And as this court would have protected it against the husband and his creditors, if the settlement had not been made, there is no reason for setting aside the settlement which has been voluntarily made without a decree of the court.

I am, however, obliged to dissent from the opinion of the vice chancellor so far as relates to the husband’s interest as tenant by the courtesy initiate in his wife’s real estate. In the case of Van Duzer v. Van Duzer, (6 Paige’s Rep. 366,) upon a review of all the cases on the subject, I arrived at the conclusion that the legal estate of the husband in his wife’s real property as tenant by the curtesy initiate, could not be protected in equity from the claims of his creditors who had a right to sell the same upon their executions at law. And as the debt in the present case existed at the time of this settlement in 1829, and as there is nothing in the case to show that the husband retained to himself sufficient property of his own to satisfy all existing debts or claims for which he was then liable, the assignment of his life estate in his wife’s lands cannot be sustained as against these prior creditors. The decree, so far as relates to that life estate, must therefore be reversed ; and instead of dismissing the bill, the decree must declare the conveyance of the husband’s life estate in his wife’s real property to the defendant Bogardus, to be inoperative and void as against the complainant’s judgment, but that the conveyance of the personal property to the trustee is valid ; and that the conveyance of the real estate in trust is also valid, except as against the previous creditors of the husband. The decree must also direct that the husband’s life estate as tenant by the curtesy initiate in the real property conveyed to the trustee, or so much thereof as may be necessary to satisfy the complainant’s debt and costs be sold, upon the usual notice, under the direction of one of the masters of this court, and that the trustee join with the master in a conveyance of such life estate to the purchaser or purchasers upon such sale. The master is also to pay the debt and costs out of the proceeds of such sale, and bring the surplus, if any, into court to abirle its further order ; and any of the parties to this suit are authorized to become purchasers at such sale. And all other questions and directions are to be reserved until the coming in of the master’s report.


text:
    White vs. Knapp and others.
    Where a mortgagee applied to a third person for an advance of money to enable him to take up his mortgage, promising to give him the samo security for such money as the mortgagee then held, and upon receiving the money paid it to the mortgagee and took an assignment of the mortgage from him to such third person; Held, that the mortgage was not discharged, and that the assignee was entitled to hold the same as a security for the money thus advanced.
    Where upon an exchange of farms each parly gives to the other a bond to pay off and indemnify him against prior incumbrances upon the lands conveyed to him, and the lands conveyed to one of them are afterwards sold to satisfy prior incumbrances thereon, whether the grantee whose land is thus sold lias an equitable lien upon the farm given by him in exchange therefor, to the extent of such prior incumbrances; Qiusre ?

    March 3.
    The object of the complainant’s hill in this case was to foreclose a mortgage given to him by Daniel Knapp, one of the defendants ; and the only question arising upon the pleadings and proofs was, whether the defendant, W. M. Thomas, was entitled to hold a previous mortgage upon the same premises as a prior security for §380 and interest, from the 17th June, 1836. The mortgaged premises formerly belonged to the Bank of Chenango, and were sold to S. W. Hinkley,in 1834,who gave to thebankabond and mortgage on the premises, for $1400, to secure the purchase money. In March, 1836, Hinkley and the defendant Knapp exchanged farms, when Hinkley gave to Knapp a bond to indemnify him against the balance then due on the mortgage to the bank, and a certain other mortgage to the trustees of common schools in Bainhridge. Knapp also gave a bond to indemnify Hinkley against incumbrances, to the amount of seventeen or eighteen hundred dollars, upon the farm conveyed to Hinkley in exchange for his ; and Knapp neglected to pay up those incumbrances, and had become insolvent, whereby Hinkley lost the farm which he received in exchange for his own. In September, 1S36, Knapp being indebted to the complainant in the sum of $1413,27, gave to him a bond and mortgage for that amount upon the farm which had been received from Hinkley in exchange-, to secure the payment of that debt, in whiskey, at the times therein specified. In June, 1836, Hinkley being called upon by the bank to pay up the balance due upon his mortgage, and not having sufficient money for that purpose, he induced the S021 of the defendant Thomas, to let him have $380 of his father’s money to enable him to take up the bond and mortgage to the bank, promising him, that his father should have the sa2ne security for the money thus advanced that the bank then held, which arrangement of the son the father sanctioned, when informed of it. Hinkley thereupon went to the bank and paid up the bala2ice then due, with the money thus obtained, together with a further sum of his own, and took from the bank an assignment of the bond and mortgage to the defendant Thomas, and afterwards delivered such bond and mortgage to him as his security.

      James Clapp, for complainant.
    D. S. Dickinson, for defendant Thomas.

      H. R. Mygatt, for defendant Knapp.
   The Chancellor.

Upon the state of facts presented in this case, I should have no doubt that the defendant Thomas was entitled to hold the bond and mortgage as security for the money thus advanced by his son, with the interest thereon, even if the subsequent mortgage by Knapp to the complainant had been given for money advanced at the time, and not merely to secure an antecedent debt. The fact that $380, of the money of Thomas, was advanced to takeffip the mortgage upon the faith of the promise that he should have the benefit of the security then held by the bank, is proved by a credible witness, independent of the testimony of Hinkley. And there can be no doubt of the intention to preserve the existence of that security, from the fact that the mortgage was assigned to Thomas by the proper officer of the bank, at the time the money was paid. As the payment of the money and the assignment of the mortgage were all one transaction, it is wholly immaterial whether the money was paid before or after the assignment was drawn and executed. -Neither is it of any consequence whether Hinkley did or did not state to the cashier the true reason why he wished the mortgage transferred to Thomas. There is no pretence in this case that the complainant has been misled or induced to part with any thing valuable, upon the supposition that the mortgage to the bank had been discharged. If he had made any inquiry of the officers of the bank, they would of course have told him of the assignment, if they had told him the truth. I have examined the bill, and cannot even find an allegation that the complainant had been misled by any statements which Hinkley had made. On the contrary, I am inclined to think he has gotten a security upon this farm for the payment of his debt from Knapp, which ought not in equity to have a preference over Hinkley’s equitable lien upon the farm to satisfy the balance of the incumbrances still existing upon the farm which was received in exchange. Without expressing any opinion, however, on that question, which cannot arise on these pleadings, or between these parties, I am satisfied the defendant Thomas is entitled, uncler the assignment of the bank mortgage, to a preference in payment out of the proceeds of the mortgaged premises, for the $380 and interest from the 17th of June, 1836. The decree must therefore direct that amount, together with his costs, to be first paid.

As the whole amount of the complainant’s mortgage is not yet due, and he and the defendant Knapp do not agree as to the amount which has been paid thereon, the one stating it at $60 and the other at $80, no decree can 1$ made until the amount is computed by a master, and a report has been made as to whether the premises can be sold in parcels. A reference is to be directed accordingly ; with liberty to either party to proceed upon it before the master, with liberty to either to apply for a decree of sale upon the coming in of the report on any regular motion day or in term.