text:
    Jones vs. Lynds, agent of the Auburn State Prison, and others.
    Where the agent of the state prison at Auburn, in 1834, with the assent of the inspectors, let to S. the labor of 60 convicts, for the term of five years from the first of the preceding November, who were to be chair makers or capable of learning that trade, and it was stipulated in the contract that S. should have the privilege of a renewal for the further term of five years provided he offered as favorable terms as any other responsible person; which contract was afterwards assigned to J. with the assent of the agent of the prison, on condition that J. would put in proposals under the notice which was then being published under the provisions of the act of 1837, and would offer for the labor of the convicts a sum not less than the former contract prices and to pay the balance duo to the state from the previous owners of that contract; and J. in his proposals offered a sum equal to the old prices and also offered to secure the balance due from such previous owners, and added a further clause to his proposal, that he would give as much for the services of the convicts, all things considered, as should be of. fered by any other responsible person; which sum offered by J. including the balance due from the former owner was not equal to the sum offered by P. who also put in a proposal Under the notice; Held that the offer of J. did not entitle him to a renewal of the contract, as he did not offer as much as P. in addition to the payment of the balance due under the former contract; which balance he was bound to pay in order to entitle him to a renewal as the assignee of the contract.
    To entitle the assignee of a contract to a specific performance thereof, he must do every thing which his assignor would have.been bound to do if the contract had not been assigned; unless the person against whom the specific performance is claimed has relinquished his rights in favor of the assignee.
    This was an application for an injunction to restrain the agent and keepers of the state prison at Auburn from permitting any of the convicts to labor for the defendants Parsons & Hewson, or for any other person except the complainant, at the cabinet or chair making business. It appeared from the bill and affidavits in the case that in March, 1834, Dunham, the then agent of the state prison, made a contract with John Seymour to hire and let to the latter, for five years from the first of November preceding, the labor of sixty convicts, fifty of whom were to be cabinet and chair makers and turners by trade or capable of being learnt that trade, and ten to be capable of doing such light or other work as could be done by convicts of the second class for strength and capacity, at certain prices per day specified in the contract, to be paid monthly ; in which contract William A. Palmer and two other persons became sureties for the contractor for the faithful performance of the contract. It was also mutually agreed between the parties to the contract that it should not be assignable without the consent of the agent of the prison, and that the contractor should have a preference of a renewal of the contract for the further term of five years, provided he should offer as good terms for the state as should be offered by any other responsible persons, and provided the agent should make such contract with any one. This contract at the time it was made by the agent was also assented to "by the inspectors of the prison, by their written approval endorsed thereon. John Seymour the contractor continued to employ the convicts under the agreement, and performed all the covenants therein, until February, 1835. He then, with the verbal consent of the agent, assigned the contract to Jesse Seymour, and William A. Palmer one of the sureties, upon condition that they should fulfil and perform all the covenants and agreements which the assignor was therein bound to perform. These assignees continued to employ the convicts, under the agreement, until the 31st of August, 1838; but they did not fulfil the contract by paying for the labor of the -convicts according to the terms thereof. On the contrary the monthly balances against them commenced and continued to increase, from the 30th of June, 1837, until they amounted to nearly three thousand dollars. On the 31st of August, 1838, Palmer & Seymour the assignees sold and assigned to Halsey Phelps all their interest in the contract, and all their claim and right to have the same renewed ; but upon condition that the assignee should pay the agent for all future services of the convicts and should fulfil the covenants as to the time for which the contract was yet to run. And on the 4th of September thereafter Phelps made a similar assignment of all his interest in the contract to the complainant; he fulfilingthe covenants and obligations assumed by Phelps, and saving him harmless from the same. The agent of the prison assented to both of these assignments by written assents endorsed on the contract. And for the last assignment the complainant gave to Halsey his bond for $1000 in anticipation, as he alleged, of a renewal of the contract under the clause giving a preference. The agent, as a condition of giving his assent to this assignment to the complainant, required him to agree that he would make an offer for the future services of the convicts, under the proposals which were then being published agreeably to the provisions of the act of March, 1837, a sum not less than the old prices for their labor; and also an offer to pay the balance due from the original assignees of the contract, which was then supposed to be about $4000 exclusive of interest. In July, 1838, the agent, among other things, advertised for proposals, to be received until the 25th of September, for the labor of from fifty to seventy convicts from three to five years from the first of November thereafter. And on the 24th of September the agent received from the complainant an offer, for the same prices as under the old contract; that is 35 cents for 50 convicts who had learned the trade, and 25 cents for ten convicts of the inferior capacity as stated therein, and to secure the balance due from the original assignees of the old contract. The complainant also added a clause to his proposals, for the purpose of entitling him to a renewal of the old contract, that he would give for the services of the convicts as much, all things considered, as should be offered by any responsible person. On the same day the defendant Parsons, who made the offer in his own name but in fact for himself and Hewson the other defendant, put in proposals to give 45 cents per day for those who had learned the trade, and 27 cents for the second rate hands. These were all the proposals .offered for the services of convicts for the cabinet makers’ work, previous to the meeting of tho board of inspectors on the 25th of September to decide upon the proposals; at which time those proposals were opened and laid before the board of inspectors. On the next day, and before the inspectors had decided upon tho proposals received, the complainant sent a communication to the agent insisting that his proposal, including the old debt, was equal, to 45 cents per day for the first class of men and 35 for the second class; or that it was at all events an offer to give as much as any other responsible person had offered. He therefore claimed the contract according to the stipulation in the original agreement. On the next day, but after the board of inspectors had determined to give the new contract to Parsons, as the one whose proposals were the most beneficial to the state, and after an order to that effect had been made by them, the complainant delivered another written proposal to the agent; offering the same that Parsons had offered previous to the opening of the proposals. And he again claimed the right to the contract under the stipulation for a preference contained in the original agreement. But the agent, in conformity to the decision and order of the inspectors, concluded the contract with the defendants Parsons & Hewson, for the labor of fifty convicts of the first class, and ten of the second class, for the term of five years from the first of November, 1838, at the prices proposed by Parsons. The complainant, upon these facts, prayed that the contract between the agent of the prison and Parsons &• Hewson might be annulled; and for a specific performance of the covenant of renewal, and that he might have the new contract according to his proposals. He also prayed for a preliminary injunction to restrain the agent of the prison, and Parsons & Hewsoii, from letting or hiring the convicts or contracting for their employment in the cabinet or chair making business, with any person other than the complainant: and from employing them in that business, or removing or in any way interfering with his stock, tools, fixtures, or other property, in the prison.

      December 4.

      M. Hoffman, for the complainant.
    B. F. Butler, for the defendants.
   The Chancellor.

Independent of the questions arising upon the merits of this case, there are very great difficulties in the way of granting the preliminary injunction as asked for by the complainant; the immediate effect of which would be to throw these convicts out of employment, in violation of the laws of the state which require them to be kept at hard labor pursuant to their several sentences; or to compel the officers of the prison to continue them in laboring for the complainant without any contract having been made with him for their employment, and without the assent of the inspectors who alone have authority to permit a contract to be made by the agent under the existing law. It is also in effect a bill to compel a specific performance of a contract made by the state, and in its name, by the former agent of the prison. I am therefore inclined to think that the attorney general, and probably the inspectors of the prison under whose authority the new contract was made, are necessary parties to the suit, if the complainant is entitled to any relief upon the case made by the bill. At all events it was not a case in which even a temporary injunction should have been granted by an officer out of court, or by the court itself, without giving the defendants a chance to be heard. For this reason I directed the injunction allowed by the master to be immediately dissolved, so far as it prevented the agents and officers of the prison from keeping the convicts at labor according to law. And I regret to learn that, owing to some inadvertence in the form of the order, the temporary injunction was not so far dissolved as to allow the agent to continue the prisoners at labor for either party, as the inspectors should think proper to. direct, until this application for a general preliminary injunction was disposed of by the court.

The conclusion at which I have arrived upon the merits of this case, induces me to overlook all questions of mere form in the bill, and the question as to the propriety of gi anting an injunction in such a case until the court by decree has directed the contract between the defendants to be cancel-led, and a new contract to be made with the complainant under the direction of the inspectors, pursuant to the last proposal of his as stated in the bill. It may be proper, however, to observe, in answer to an objection that this court has not jurisdiction to decree a specific performance of a contract relating to labor or to personal property, that if any suit could be brought upon this contract to compel a performance of the covenant of renewal, it must be in this court. No suit at law could be brought against the present agent of the state prison upon a conti act made by his predecessor for and on the behalf of the people of the state; and the people themselves cannot be sued in any court for damages merely.

There are several objections to the complainant’s right to a decree for a specific performance in this case, independent of questions of mere form, either of which I think sufficient to deprive the complainant of the relief asked by his bill. The bill is framed upon the supposition that the assignee of the contract is entitled to a specific performance of the covenant of renewal, without a compliance with the terms of the contract as to the payment for the labor performed by the convicts under that contract previous to the assignment to Philips from whom he purchased. In this respect the complainant has been wrongly advised. This court docs not decree the performance of a contract in favor of one of the parties thereto, or of his assignee, without requiring the performance by such party, or his assignee, of the several covenants and conditions in the agreement in favor of the party against whom the specific performance is sought. And although by the terms of the assignment the assignee may not be personally liable to the adverse party for a breach of the stipulations of the assignor in favor of such adverse party, yet when he seeks to compel a specific performance of the contract he is bound to comply with all the conditions thereof in favor of the adverse party, in the same manner as the assignor would himself have been compelled to do if the contract had not been assigned. In other words, the assignee of the contract takes it subject to all equities which existed between the parties thereto arising out of such contract. And the court will require him to perform all the stipulations which the assignor was bound to perform in favor of the adverse party, to entitle him to a decree for a specific performance. (Murray v. Gourerneur, 2 John. Ca. 438.) The only exccptoin to this rule of which I am aware, is where the party against whom a specific performance is sought by an assignee of the contract, lias made some agreement with the assignee, or has done some act by which the stipulations in the original contract in favor of such party have been waived or abandoned. But in the present case the agent of the prison has done no act by which the assignee was entitled to a renewal of the contract without paying what was due thereon for the labor of the convicts previous to the assignment of the contract to Philips. On the contrary it appears from the complainant’s bill that the agent, before he would give his consent to the assignment of the contract to the complainant so as to give him the chance of obtaining a renewal upon the offer of as much as any one else under the stipulation in the contract, not only required that he should make an offer at least equal to the old contract price, but also that he should agree to pay what remained due for the labor of the convicts previous to the assignment to Philips. It is true those who assigned the contract to Philips did not require him to pay for the previous labor of the convicts ; and therefore, as between him and his assignors they were bound to pay up the arrearages then due, so as to give him the tul! benefit of the assignment upon his paying for the subsequent labor of the convicts. The complainant also took his assignment from Philips on similar terms. But the agent was not a party to those arrangements of the assignors and assignees as between themselves. Neither was his assentlothose assignments given for the purpose of sanctioning those arrangements, as appears by the terms he imposed upon the complainant as a condition of his assent to any asssignment of the contract. His formal assent to the assignments was given because by the terms of the contract it was not assignable without such consent. It would also have been a violation of the official duty of the agent to have waived performance of a by condition in the contract in favor of the state, for the purpose of giving the right of the renewal of the contract to the assignee without a performance of the conditions of the contract in full. The tenth section of the act of May, 1835, had made it the duty of the agent to avail himself of every opportunity that might occur to change the contracts, so as to make them conform to the principles of that act for the future employment of convicts. And one of those principles was that in all contracts for the future employment of the convicts there should be a chance for an equal and fair competition between persons wishing to obtain such contracts ; though it is probable this tenth section was more particularly intended to apply to the clause in this and other contracts relative to the learning of certain trades to new convicts, who had not already learned such trades, contrary to the principle of the seventh section of the act. (Laws of 1835, p. 342.)

Again ; neither the complainant nor Philips could, either legally or equitably, be considered as the assignee of the contract for the purpose of entitling him to a specific performance of it, without a compliance with the conditions thereof so far as related to the payment of the arrears due for the labor of the convicts subsequent to the assign ment to W. A. Palmer and Jesse Seymour; as that assignment was upon an express condition that they should fulfil and perform all the covenants and agreements therein which the original contractor was bound to perform. To entitle the complainant, therefore, to claim through that assignment, so as to give him the benefit of the covenant of renewal, it was necessary for him to comply with that condition; otherwise the assignment through which he claimed would be avoided for the breach of such condition, and the original contractor and his sureties, who were still liable for the labor of ths convicts upon the contract, would be entitled to the benefit of the covenant of renewal for their indemnity. For these reasons I am of the opinion that none of the offers of the complainant would have entitled him to a renewal, even if the law as to the manner of making such contracts had not been changed, as he did not offer to fulfil the terms of the original contract in addition to the offers to take the new contract upon as good terms for the state as those offered by Parsons.

Even if he was not bound to pay the arrears d uc upon the contract, I do not consider either of the complainant’s offers as entitling him to the new contract, under the agreement stated in his bill as having been made with the agent at the time he assented to the assignment. At that time the complainant knew, or at least he must legally be presumed to have known, that by the acts of May, 1835, and March, 1837, the agent could not make a contract for the employment of the convicts without the direction of the inspectors, nor without giving two months notice of the time and place of letting the contract. He must also have seen the notice stated in his bill, and which had then been running more than a month, that sealed proposals would be received by the agents until the 25th of September for contracts for the employment of the convicts. The legal etfcct of the arrangement with the agent, therefore, must have been that he was, in order to entitle him to a preference, to put in proposals, under the notice that was then running, in such a way as to give the state the benefit of his fair competition with others who might put in proposals in pursuance of such notice ; and then if his proposals, including the offer to pay the old debt, had been as good though not better than those of any other person, the inspectors would probably have given him the preference ; especially if there was no hope of collecting that debt from those who were legally liable for the same. The first offer, specified in his proposals of the 24t.h of September, which were the only proposals from him that were received in time, within the spirit and intent of the notice, was an offer for the new contract according to the meaning and effect of the arrangement made with the agent. But unfortunately it was not as beneficial for the state, by several thousand dollars, as the offer made by Parsons, even if the balance of $4000, which was then supposed to be due from Palmer & Seymour, is added to the contract price of labor as offered. The labor of the convicts would probably be about twenty-five days per month for each man, making a reasonable allowance of one day each for sickne-i and oilier accidents. The labor of the whole sixty convicts, at the prices of thirty-five cents and twenty-five cents, as specified in the assigned contract, would be but $500 per month, or $30,000 for the five years; while at the prices of forty-five cents and twenty-seven cents, as offered in the proposals of Parsons which were accepted by the inspectors, the labor of the sixty would be $030 per month, or $37,800 for the whole term. This would make a difference in favor of the proposals of Parsons of $3800, even if the amount then supposed to be due on the old contract is added to the prices as offered by the complainant. And if only7 the actual amount due upon the old contract is added, the difference in favor of Parsons’ proposals will be about $1000 more. An offer, in sealed proposals of this kind, to give as much or moz-e than any other pei'son who shall send in proposals, is ziot the offer of any price within the meaning and intent of the notice under which such pz’oposals az-e to be made ; as the necessaz’y effect of z-eceivirzg such a pz-oposal would be to pz-event fair competition for the contract. The inspectoz-s were therefore right in z'ejectizzg the last bz-anch of the complainant’s offer under this notice. Neither wez’c the inspectoi's bound to take into considez’ation either of the complainant’s offez’s which were made subsequently to the tizno when the sealeVl proposals were opened so that their contents could be known.

Again; the coznplainant, in any event, was only entitled to a renewal of the old cozilract, for the further term of five years, upon his offering as good terms as any other responsible person, provided the agent should malte such a contract with any one. But no such contract as that of which a renewal is sought has been or could have been znatle by the agent subsequent to the act of May, 1835. Azzd no z’casonable doubt can be entertained ■ as to the constitutional power of the legislature to prevent the renewal of this cozztract, by depriving the agent of the power of making such a contract either with the assignee of the original contractor or any one else ; as such a contizigency is provided for by this proviso in the renewal clause. In the first piace, the agent is now prohibited by law from making any contract for the labor of the cozzvicts, for more than six znonths, without the consent and direction of the inspectors, under an order or resolution of the board to be entered in their minutes. If this contract with Parsons & Ilewson was z-escinded, therefore, the agent could not be decreed to make, a similar contract with the complainant, in direct violation of the statute on the subject, without first making the inspectors parties to the suit and compelling them to enter a resolution authorizing and consenting to the making of a contract by the agent. It will also be perceived that the original contract, of which the complainant now seeks a renewal, is not such a contract as the agent, even with the consent and by the order or direction of the board of inspectors, could make with the complainant or any one else under the existing laws of the slate ; and that the contract which the agent has been authorized and directed to make under Parsons’ proposals is materially different, in one respect at least. The contract with John Seymour was for fifty convicts, who were either cabinet and chair-makers by trade or who were capable of being learned that trade ; and the contract price, for the first month, for those who had not yet learned the trade, was to be but half the price of those who were already instructed therein. It was therefore a contract for the services of those convicts who were already mechanics, and also for raw hands to be instructed in the trade. But by the existing law, tnc agent and officers of the prison are prohibited from allowing convicts to be learned any mechanical trade except the making of those articles of which the chief supply for the consumption of the country is imported. It is not competent therefore, at this time, to contract for the labor of convicts who are not cabinet and chair-makers, to be employed in that business, as they were contracted for under the agreement with Seymour. The agent, therefore, had not been and could not be authorized to make such a contract as the old one was in this respect; and the complainant, by the terms of the covenant, is not entitled to have such a contract renewed. It is certainly to be regretted that the complainant has been induced to pay so large a sum for the assignment of this contract under a misapprehension of his rights under this renewal clause ; but the inspectors and agent of the prison have done no more than their duty, under the existing laws of this state, in giving the new contract to the highest bidder under their published notice for proposals.

The motion for an injunction must therefore be denied, with costs to the defendants, to be taxed ; and the temporary injunction allowed by the master, so far as it is still in force, must be dissolved.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    In the matter of Hoag.
    Where a party has been found to be incapable of managing his affairs by rea. son of habitual drunkenness, the court will not discharge his committee and restore the property to him upon mere proof of the fact that he is competent to manage his affairs, without evidence of a permanent reformation. And as a general rule the court requires, as evidence of a permanent reformation, satisfactory proof that the habitual drunkard has voluntarily refrained from the use of intoxicating liquors for at least one year immediately preceding the application for the restoration of his property.
    Where vendors of intoxicating liquors continued to furnish the same to an habitual drunkard against the wishes of his committee, the court made an order prohibiting them from doing so upon pain of being held liable for a criminal contempt; and directed the committee, in case of disobedience of the order, to apply to the court to punish the offenders, or to lay the case before the grand jury that they might be proceeded against by indictment.
    The court of chancery is not authorized to order a sale of the estate of a lunatic, or of an habitual drunkard, except where a sale is necessary for the support of himself or of his family, or for the payment of his debts. But if necessary for the reformation of an habitual drunkard, the court will direct him to he confined in a lunatic assyluin, and may order his real estate to be sold to pay the exponces of his support there.
    December 18.
    This was an application of Obadiah Hoag who was placed under the care of a committee, in 1821, as an habitual drunkard, to have his property restored to him. The application was founded upon his own petition stating generally that he had reformed; and upon the affidavits of four other persons, two of whom lived on the adjoining farm, stating their belief that his reformation had continued, for different periods from six months to two years, so as to render him capable of managing his owm affairs. The petitioner also complained of tlie mismanagement of his property by the committee, and asked for his removal. The committee expressed a willingness to relinquish his trust and to have his accounts settled; although his counsel introduced affidavits denying the allega(ions as to the mismanagement of the property. And the committee did not admit that he believed the petitioner had reformed. On the part of the family several affidavits were produced showing conclusively that up to some time in September, 1833, and within three months of the time of presenting the petition, the petitioner had been in the habit of getting intoxicated whenever he could obtain inebriating drinks; and that he had been several times intoxicated subsequent to that period, though not as frequently as before. These affidavits also showed that all the children and relatives of the petitioner who resided in the vicinity, so as to be capable of forming an opinion on the subject, were satisfied with the conduct of the committee, and were anxious that he should retain the trust.

      A. Bennet, for the petitioner.

      H. Denio, for the committee and the family.
   The Chancellor.

It has been found by experience, after ,an individual has so far given himself up to the indulgence of a depraved appetite as to become incapable of conducting his own affairs by reason of habitual drunkenness, that all indications of a permanent reformation are entirely illusory so long as he permits himself to use any intoxicating drinks whatever; and that the only chance of a permanent reformation for the unfortunate man who is once placed in that situation is to abandon the intoxicating cup entirely, and forever. The court, therefore, acting upon this well established fact in relation to the effects of any intoxicating liquor upon the appetite which has once become thus depraved, will not restore the property of the habitual drunkard to his possession, upon the mere proof of the fact that he is now capable of managing the same, so long as he continues the use of his inebriating drinks. And total abstinence from all alcoholic liquors, or from intoxication which as to him is the same thing, for at least one year is necessary to authorize the court to presume there is a permanent reformation, even under the most favorable circumstances. It must also be a voluntary abandonment of the use of intoxienting drinks, and not an abandonment which is the re-suit of constraint or of the want oi means to procure them.

Here the petitioner does not pretend that he has voluntarily relinquished the use of strong drink for a whole year, or even for a month, when he has had the means of procuring it. And no one of those who have furnished him with affidavits in support of his petition have ventured to say they believed that such was the fact. Indeed if the affidavit of the wife and daughter is true, that as late as September last the petitioner, in one of his drunken frolics, drove his family from the house and made such a noise as to alarm the neighborhood, I do not see how it was possible for two of those neighbors to swear even to their belief of h:s reformation. And the fact that the petitioner was frequently intoxicated within the last year is corroborated by the testimony of four witnesses who were not members of the family. Here then is the positive testimony of six witnesses, showing conclusively that the petitioner has not reformed, to counterbalance the mere belief of four others that he has. There is no foundation whatever, therefore, for a reference to a master to inquire whether he has so far reformed as to authorize the court to presume he will for the future refrain entirely from the use of intoxicating liquor. And until such a presumption can bo raised in tiis favor his property cannot be restored to him with safety to his family or to himself.

Neither is there any sufficient grounds for removing or changing the committee, or to justify the court in subjecting the estate to the expense of a reference to make further inquiries on that subject, or of a formal reference to take the accounts of the estate in the hands of the committee. The petition must therefore be dismissed; and the committee must pay the necessary costs and expenses of opposing the same, out of the estate in his hands. The committee must, however, make out and file with the register an account an l inventory of the estate, in the form prescribed by the 154th rule, showing the present situation and value of every part of the real and personal estate committed to his care and management; and also a statement of the accounts between him and the estate from the time he was left as the sole committee, to be examined by the injunction master in the usual way. And a similar account and inventory must thereafter be filed annually, as directed by the rule.

To save this unfortunate old gentleman, if possible, from his worst enemy, standing as he does upon the brink of ihe grave, an order must also be entered, as in Heller's case, (3 Paige's Rep. 202,) prohibiting all persons from selling to or furnishing him with any intoxicating liquor, or with the means of obtaining it, without the express sanction of his committee, upon pain of contempt. The committee must also cause copies of the order to be served upon the vendors of such liquors in the neighborhood. And if any person upon whom such order is served, or who is otherwise informed thereof, shall be guilty of a breach of the order, the committee must either bring the case before this court or lay the same before the grand jury of the county, so that the offender may be punished as for a criminal contempt. (2 R. S. 278, § 10, sub. 2. Id. 692, § 14.) And the necessary expenses of the committee upon any proceedings under the order will be allowed to him out of the estate.

This court has no power to order the petitioner’s real estate to be sold unless it is necessary to sell it for the payment of debts, or for the support of himself or of his family. And a sale is not necessary for either purpose in the present case. If it should bo found expedient hereafter to place him under the care and protection of the keepers of a lunatic asylum, and to sell the real estate for the purpose of raising funds to support him and his family, in that event the committee must apply for a sale of the real estate, in the form prescribed by the revised statutes, and fur such further directions as may be necessary for the security and comfort of the petitioner in such a retreat.


text:
    L’Amoureux vs. Vandenburgh and others.
    Where an attorney, who hold a mortgage upon certain premises, was employed by the mortgagor to draw the deed and to assist him in conveying a part of the mortgaged premises to another person who was ignorant of lire existence of the mortgage, and such attorney knowing that the purchaser was paying the vendor tho full value of the premises concealed from him tho fact of the previous incumbrance; Held, that the attorney could not in equity be permitted to enforce the lien of his mortgage against the part of the premises conveyed to such purchaser.
    The holder of a mortgage who has been guilty of a fraudulent concealment, which deprives him, in equity, of the right to enforce the lien ol his mortgage against the mortgaged premises in the hands of a purchaser from tho mortgagor, cannot by a subsequent assignment of the mortgage give to the assignee a right to enforce s ich lien.
    Where a person holding a mortgage, or having a claim to property which another, who is ignorant of sucli mortgage or claim, is about to pm chase from a third person, cither encourages or acts in tho sale of the property in any way inconsistent with his prior mortgage or claim, and conceals from the purchaser the existence of his mortgage or claim, he will not afterwards be permitted to set it up as against snch purchaser.
    Whether a mere stranger to the transaction, who neither encourages the sale nor takes any part in the execution or consummation thereof, but who knows that tho sale is about to be made to a person ignorant of the existence of such claim, is bound to give notice of his claim to the purchaser when no application is made to him on the subject; quiere ?

    December 18.
    This was an application on the part of the defendant William J. Vandenburgh, to set aside the decree, and the sale of the petitioner’s lot thereon, and all the proceedings in this cause against him, for irregularity as well as upon tho merits. Tho bill was tiled to foreclose a mortgage given by Alexander U. Spencer to L’Amoureux and Van Epps, in July, 1835, upon several lots of land in Greenbush, in tho comity of Rensselaer, including lot No. 39 now owned by the petitioner, to secure the payment of $5000 and interest. In February, 1833, Spencer, the mortgagor, sold and conveyed lot No. 39 to the petitioner, by a warrantee deed, in exchange fbr other properly in tho city oí' Albany, and without informing the petitioner oí" the previous mortgage. In making this exchange of properly, Van Epps, one of the mortgagees and the law partner of the other mortgagee, was employed as the attorney of Spencer to draw the deed to the petitioner, and to receive a proper conveyance of the Albany property from him in exchange therefor. And he did so without informing the petitioner of the previous mortgage which he and his partner then held upon the premises for which the deed was given by Spencer to the petitioner. The petitioner swore positive!}’, that both Spencer and Van Epps, at the time of the exchange, assured him that there were no liens or incumbrances on the premises so conveyed to him ; and that lie believed these assurances were made in the presence and hearing of L’Amoureux, the other mortgagee. In answer to this part of the petition, L’Amoureux stated that his partner t ok the mortgage, and that he did not know at the time what lands were included in it, and that, according to his recollection and belief, he did not know that the petitioner had purchased apart of the land which was included in the mortgage until about the time of making the search with a view to the foreclosure of the mortgage. But whether he was present at his office at the time the deeds were executed and knew that Spencer and Vaudenburgh were making an exchange of property he did not state. The affidavit of Spencer was produced in opposition to the motion, in which he stated that he did not recollect that any thing was said, at the time of the exchange, about the mortgage to L’Amoureux & Van Epps; but that if ho had been asked about it he would have told the petitioner the truth. Van Epps swore positively that he never told the petitioner that the property lie obtained from Spencer was fiee from incumbrances; and that if he had been asked he would have told him the true situation of it as far as lie knew. But that he was not employed by Vaudenburgh, who got some other person to fill up the deed which he gave to Spencer; and that employed as deponent was by Spencer, lie should have thought it wrong to have volunteered a statement which might have prejudiced his employer. About one month after this exchange of property Van Epps assigned all Ills interest in the bond and mortgage to L’Amoureux, bis copartner. And in August, 1837, lie joined with L’Amoureux in a release of another part of the premises from the mortgage, to enable Spencer to obtain a loan of $2000 from the commissioners of bans, on the pmpei» ty so released; but without informing L’Amoureux of the previous conveyance of a part of the mortgaged premises to the petitioner as a bona fide purchaser thereof. In February, 1838, the compla nant filed a biil to foreclose the mortgage, in which bill a great number of persons were made parties as defendants. And on the 9lh of May, Van Epps, as the solicitor for his copartner L’Amoureux, served on the petitioner a paper purporting to be the copy of a subpeena tested in February and returnable on the 12th of May instant, and a notice of the object of the suit. But neither in the subpeena nor in the notice was the defendant named as a party; and he swore positively that no other papers were shown to or served upon him ; and that the solicitor did not show or exhibit to him any seal of the court or any subpoena with a seal of the court attached thereto or impressed thereon. The affidavit on file, on which the default of the petitioner was subsequently entered, was not in the usual form; but merely stated that the deponent on the 9th of May served on the petitioner a copy of a subpeena and notice of the object of the suit, without stating that the petitioner was named in that copy or that any original subpoena or seal, corresponding with that copy, or otherwise, was shown to or read to him at the time of such service. Neither was there any seal upon the subpoena on file with that affidavit. But the solicitor, in answer to this application, swore that he, at the time of the service, supposed he served a copy of the subpeena which was annexed to the affidavit he was then making, and in the usual form, by showing him the annexed subpoena and seal thereon impressed ; and that he now believed and therefore charged, that the annexed subpoena and seal were shown to the petitioner. The petitioner finding his name was not in the papers served on him, as a party to the suit, and being told, as he alleged, that the service of those papers was mere form and would not affect his lot, he paid no further attention to the same; and was not aware of any decree or other proceedings against him until he found the property was advertised for sale. He then applied to Spencer, who assured him that the other property would sell for enough to pay the debt and costs, and that his house and lot would not be sold. He did not attend the sale, and the complainant bid in the whole property, for the amount due upon the mortgage and costs, including the petitioners’s lot which was bid in for $800. The other parts of the mortgaged premises were sold subject to the $2000 mortgage given to the commissioners of loans, and were worth, as the petitioner alleged, $10,000. But the complainant swore he was willing to part with the whole property for $7,500, which was only about $1000 more than was due upon the decree, including interest and costs; and he swore that he had other demands against Spencer exceeding that amount.

      J. V. N. Yates, for the petitioner.

      H. V. D. Van Epps & M. T. Reynolds, for the complainants.
   The Chancellor.

Two questions of importance arise in this case: First. Whether the petitioner had a meritorious defence which he might have availed himself of in this case if he had employed counsel and attended to it in season? Secondly. Whether the proceedings against him have been such as to entitle the complainant to hold the petitioner’s house and lot under the decree and master’s sale ?

In relation to the first question I am fully satisfied that the petitioner had a valid equitable defence to this suit; so far as it sought to subject his lot to the payment of any deficiency which might be due on this bond and mortgage, after selling the residue of the mortgaged premises subject to the hen of the commissioners of loans. The complainant and his partner Van Epps were the joint holders and owners of this mortgage when the latter was applied to as a lawyer to prepare the deed to the petitioner, and to receive a conveyance from him to Spencer for other property in exchange. And although JL’Amouieux had no personal notice of the transaction, and probably did not know what his partner was doing, even if he was present in the office at that time, yet I he business was undoubtedly of a character which entitled him to share in the profits thereof as a partner although he did not draw the deed himself. Whether this was so or not, if Van Epps has done an act which deprived him of the equitable right to enforce the collection of this bond and mortgage against the land conveyed to the petitioner through his instrumentality, he cannot by subsequently assigning his interest in the mortgage to his partner give to the latter a right, as against the lot conveyed to the petitioner, which the assignor did not himself possess. In Ollier words, the assignee of this chose in action took it subject to all the equities which existed against it in the hands of the assignor. And if by a concealment of the real facts of the case from the complainant, Van Epps has induced him to pay more for his interest in the bond and mortgage than it was really worth, or has suffered the .complainant to release other parts of the mortgaged premises from the lien of the mortgage by concealing from him the fact that a part of the premises had already been conveyed to a bona fide purchaser, as lie swears he did, the complainant must look to his co-partner and assignor for his remuneration for the injury. '

Although Van Epps denies that he told the petitioner, in express terms, that there were no liens or incumbrances on the property which Spencer was conveying to him, as sworn to by the petitioner, yet he admits in sub-lance that he concealed from Vandenburgh the fact that himself and L’Amoureux then held a mortgage, of $50U0, which covered the premises Spencer was then conveying to him with warranty ; and for which hé knew the petitioner was then paying a full price by the conveyance of other property in exchange therefor. This, except so far as the mere question of personal veracity is concerned, is the same thing as if he had told him there was no incumbrance on the property. For as he knew that Spencer was receiving the full value of the property from the petitioner, it was his duty to speak and let the vendee know that Spencer was imposing upon him by conveying to him, with warranty, properly which had been previously mortgaged to Van Epps and his partncr. And the excuse of Van Epps, that he' thought it would 1 ‘ . be wrong to volunteer a statement which might oe prejudicial to his employer, is one that cannot avail him in a court of equity. Mr. Justice Story very properly applies to the prior incumbrancer, in such cases, the maxim that it is a fraud to conceal a fraud. (1 Story’s Eq. 370, § 390.) Nor will the fact that the prior incumbrancer concealed tiie knowledge of his claim from the subsequent purchaser, or mortgagee, from prudential motives, or from a mistaken sense of duty to his employer, avail him here; where the equitable rule is that he who does not speak \\ hen conscience and a just regard to the rights and interests of others require him to speak, he shall not be permitted afterwards to assert his claim to their injury. (Pote v. Pote, 1 Vern. Rep. 239.) It is not necessary to inquire whether a mere stranger to the transaction who knows that other parties are in a treaty for the purchase of property on which ho has a lien or claim is bound to give notice of such claim. In Mocatta v. Murgatroyd, (1 P. Wms. 393) Lord Cowper held that a prior mortgagee who merely witnessed the subsequent conveyance or mortgage without disclosing his claim upon the mortgaged property, should be postponed. Ilis lordship in that case relied upon the presumption that the subscribing witness knew the contents of the instrument he witnessed. I agree, however, with the opinion afterwards expressed by Lord Thurlow, that the case of Mocatta v. Murgatroyd was wrongly decided, if there was no other evidence of the fact that the prior mortgagee knew that the parties were in a treaty for a second mortgage than the mere constructive notice arising from the circumstance that he had witnessed the deed. For, as Lord Thurlow justly remarks, it is well known that in practice witnesses are not always privy to the contents of the deed to which they subscribe their names. (1 Bro. C. C. 357.) And to deprive a third person of his right upon the ground of fraud, he must at least be conusant of the treaty in which the fraud was practised. In this case, however, Van Epps, one of the prior mortgagees, not only had notice of the treaty to exchange the property between Spencer and the petitioner, an(j t|iat ||le ]alter was t0 have a warrantee deed of the lot . , . ,, , in question, but he was actually employed as the attorney 0( gpcncer (0 assist in making that exchange of property. He also admits he drew the deed to the vendee without informing him of the existence of his prior mortgage. And I have not been able to find any case on this subject, where , the prior incumbrancer or claimant not only was cognizant of the negotiation but actually encouraged or assisted therein, in which his claim was permitted to stand against the bona fide purchaser or mortgagee from whom he had concealed the fact of the existence of such prior claim ; except where he was himself ignorant of such prior claim. In thq case of Berrysford v. Millward, (Barnard. Ch. Rep. 101,) Lord Hardwick granted a perpetual injunction against a mortgagee who was casually present at a negotiation, between the mortgagor and another, as to a marriage settlement on the marriage of their children, and concealed the fact of his mortgage from the father of the intended bride, but made a verbal promise to the mortgagor to rely upon his personal security only. And the chancellor there refers to another case, where a perpetual injunction was granted against a mortgagee who had engrossed a deed of settlement without disposing that he had a mortgage on the estate ; and that too although the mortgagee was not of age at the time he engrossed the deed. The case referred to 1 presume is that of Clere v. The Earl of Bedford, referred to by Viner, (13 Vin. Abr. 536, Fraud, 2,) and in the cases of Savage v. Foster, (9 Mod. Rep 38,) and Hunden v. Cheney, (2 Vern. 150,) where the same rule was applied to a feme covert. And' if the infant mortgagee, who as the mere clerk of the mortgagor was called upon by him to engross the deed, was considered as guilty of a fraud in concealing the fact of his incumbrance from a subsequent mortgagee, or purchaser, certainly an adult attorney who does the same thing is not entitled to a greater indulgence than has been allowed to infants and femes covert; although he thought it would be doing injustice to his employer if he volunteered the disclosure of facts which would have prevented the perpetration of a fraud. I take it therefore as settled law, that if the prior mortgagee, or claimant of property, either encourages or in any way acts in the negotiation or consummation of a subsequent transfer of that property which is inconsistent with such prior right, and at the same time conceals from the purchaser the knowledge of the existence of his claim, this court will not permit him afterwards to set up such prior right against the purchaser or grantee who would be defrauded thereby.

Van Epps and his copartner, in the present case, therefore had no right to enforce the lien of this mortgage against the land which they as attornies had assisted in selling to the petitioner with warranty, in exchange for other property to the full value. And the subsequent transfer of the interest of Van Epps to his partner could not give to the latter a right which did not exist previous to that assignment; as the assignee took it subject to all equities which previously existed against it in favor of the petitioner. It is not necessary then that I should examine the question whether the subsequent release of other portions of the property to the extent of $2000, to the commissioners of loans, did not of itself, in equity, release the lot which had been previously conveyed to Vandenburgh from the lien of this mortgage. Van Epps, who joined in the release to the commissioners of loans, certainly ought not to have concealed the fact from his own assignee that Spencer had previously sold a part of the mortgaged premises to a bona fide purchaser, and that by executing such release the assignee might endanger his security. Upon a full view of this case, therefore, I am satisfied it would be doing great injustice to the petitioner to permit this decree to stand against him. And it only remains to be seen whether the decree against him has been irregularly as well as inequitably obtained.

If the suit was properly commenced against the petitioner, by the service of a subpoena upon him in which he was named as a party, the court would not, in ordinary cases, after a decree, be very astute in inquiring into mere technical irregularities for the purpose of opening the proceedings. But from the examination of the affidavits on both sides I am satisfied that the.suit was never commenced against the petitioner by the service of any subpoena to which he was made a party. He swears positively that the only subpCBna gerved upon or shown to him was the copy annexed to his petition, in which he is not named as a party to the suit. And as his name was not in the subpoena or in the notice, there was nothing in either to apprise him that an entry of his appearance would be required, even if he was not told that the service of these papers upon him was mere form. And the solicitor who served those papers does not say that lie believes he told the petitioner that he was a party to the suit, or that it was necessary for him to enter his appearance and put in an answer or that a decree would be entered against him for the sale of his land. Neither does the solicitor swear positively to the service of any subpoena, even by showing the same to the petitioner, in which he was named as a party. And an affidavit of mere belief is not sufficient to counteract the positive oath of the petitioner; supported as that oath is by the original affidavit of service which was made and filed shortly after the copy of a subpoena was delivered. The solicitor is therefore undoubtedly mistaken in now supposing that he showed an original subpoena to the petitioner with the seal of the court attached to the same. The result is that the whole proceedings as against Vandenburgh, subsequent to the filing of the bill, have been wholly unauthorized, and must be set aside with costs to be taxed ; unless the complainant stipulates to modify or amend his decree so as to exempt the lot of the petitioner from a sale under the same and from the lien of the mortgage, and also to pay the costs of this application. If such a stipulation is given the decree must be amended accordingly, and then the sale as to the residue of the mortgaged premises is to stand and be confirmed. And the master in that case will make his report accordingly, and certify the balance due to the complainant on the decree; so that he may have an execution therefor against the property of the mortgagor; But if the decree is to be opened for the purpose of litigating the rights of the petitioner upon the service of a new subpoena upon him, then the whole decree must be set aside; as it will be necessary to go again before the master, so as to give the petitioner an opportunity of contesting the amount due to the complainant on the mortgage, should he fail in proving his defence.


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    The People ex relat. Young vs. Craft.
    Where an attachment, in a suit in chancery, issues for a contempt in not obeying the process of the court or an order or decree made in the cause, the proceedings upon the attachment may be entitled either as in the original suit, or in the name of the people on the relation of the party prosecuting the attachment.
    Where the defendant has no family, but boards or makes it his home in the family of another, the subpoena to appear and answer may, in his absence from home, be served upon either of the heads of the family at such place of his abode, although he has no wife or servant. But to make such service regular, the place of service must be his actual place of residence at tho time of service, and his absence therefrom must be merely temporary.
    This was an appeal from an order of the vice chancellor of the first circuit discharging the defendant from arrest upon an attachment, at the suit of the appellant, for an alleged contempt, in not entering his appearance upon a subpoena supposed to have been served upon the wife of the defendant at his residence in New-York.
    December 18.

      J. W. Merritt, for the relator.

      W. Silliman, for the defendant.
   The Chancellor.

The objection of the defendant’s counsel that the proceedings are not properly entitled is not well taken. In proceedings in this court, between parties to the suit, for a contempt in not obeying the process of the court or any order or decree in the cause, the proceedings on the attachment may be and they usually arc entitled as in the original suit. But it is strictly regular to entitle them, as in this case, in the name of the people on the relation of the person prosecuting the attachment, against the defendant or party proceeded against in such attachment; although the entitling of the proceedings as in the original cause is the most convenient practice. (Stafford v. Brown, 4 Paige's Rep. 360.)

Upon the merits of the case, however, the defendant is right; and I have therefore no reason to doubt the correctness of the decision of the vice chancellor in refusing to convict the defendant of the alleged contempt. So far as relates to most of the facts there is now no difference of opinion between the parties. The person who served the subpoena undoubtedly supposed he served the same upon the wife of the defendant, and at his residence in New-York. He found the name in the directory, indicating that the defendant was a grocer in Front-street and resided at No. 28 Rutgers-street. And when upon inquiry at the store in Front-street, and at the house also described in the directory, he learned that the defendant J. F. Crafts was out of town but that he would return in about ten days, it was perfectly natural for him to suppose that Mrs. Crafts, the lady of tlie house, who he then inquired for and upon whom he served the subpoena and injunction, was the wife of the defendant. It now turns out, however, that the defendant was a single man, and that it was upon the wife of his brother and partner, who occupied the house No. 28 Rutgers-street, that the subpoena was served. I do not see any thing in the case upon which to found a suspicion that Mrs. Crafts intentionally misled the person who came to serve the subpoena, or that she had any idea that he had mistaken her for the wife of the defendant. Neither was it material whether she was or was not the wife, so far as the service of the subpoena was concerned; for if the defendant resided there at the time this service on her was a good service. Where the defendant has no family, but boards or makes it his home in the family of another, the service of the subpoena upon either of the heads of that family at such place of abode, is a good service, although the defendant has neither wife or servant or any family of his own. (2 Howard's Equity Side, 737.)

To make such service regular, however, where the defendant has no family, the place of service must be his actual place of residence at the time of service, and not merely constructively so. In other words, his absence at the time of the service must be a mere temporary absence from the family with whom he then boards or resides. In this case the defendant, in answer to the interrogatories, swears that he resided in the slate of Indiana when this subpoena is said to have been served ; which answer would be clearly false if he was at that time actually living in his brother’s family in the city of New-York, and was only temporarily absent therefrom on a journey or a visit, with a fixed determination to continue his residence at No. 28 Rutgers-street, and in that family. And there is nothing in the affidavit of the person who served the subpoena, even as to belief or hearsay, whieli goes to contradict the defendant’s answer. The most that can fairly be inferred from that affidavit is that the defendant, who was concerned in business with his brother in New-York as well as at Lawrenceburgh in Indiana, was probably in the habit of staying with his brother in Rutgers-street whenever he came to New-York. But whether he was ever a legal resident of this state before he came to his brother's to reside, after relinquishing his business in Indiana, twenty days after the service of this subpoena, is left wholly to conjecture. Neither docs it appear whether Lawrenceburgh or New-York was his domicil of origin; but most probably he had once resided in New-York, as his name was found in the directory as a resident there.

The order appealed from must be affirmed with costs.


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    Mowatt vs. Carow and others.
    Where the testator died previous to the ad ption of the revised statutes, and by his will, which was made some time before his death, devised his estate to his wile for life, and directed his executors to sell the same after her death and to convert it into money for the purposes of distribution, and then gave one fourth of the proceeds to his son if then living, but in case of his death before that time, the testator directed that his share should be equally divided amongst the children of such son, the survivors or survivor of them; and the son died in the life time of the testator leaving three children, one of whom died in the lifetime of the testator leaving a child; Held, that the two surviving children of the son were entitled to the whole of that share of the estate, to the exclusion of the child of their deceased brother. And it seems the result would have been the same in this case if the testator had died after the adoption of the revised statutes.
    Where an interest in property is given to a person, with a limitation over of the same interest to his children, or others upon his death before the time appointed for such interest to vest in possession, the death of the first devisee or legatee, in the lifetime of the testator, does not produce a lapse of the limitation over to the substituted objects of the testator’s bounty.
    As a general rule in the construction of wills, the testator must be presumed to have used words in their ordinary or primary sense unless it appears from the context that he probably used them in some other sense; or unless by reference to extrinsic circumstances, the use of the words in their primary sense would render the provisions of the will insensible or inoperative.
    The word children in its ordinary sense does not include grandchildren. But it may include them where it appears there were no persons who would answer to the description of children in the primary sense of the term, or where there could not be any such at the time or in the event contemplated by the testator; or where the testator has clearly shown by the use of other words that he used the term children as synonymous with issue or descendants.
    In a limitation to the survivors of a clars of devisees or legatees, where any of the class are in esse at the death of the testator so as to be capable of taking a vested interest, the survivorship is usually construed with reference to that time ; so as to give the representatives of such of the class as die after the testator, the right to a share of the devise or bequest to the class.
    Where a devise or legacy or residuary bequest is given to two or more persons by name as tenants in common, or to be devided among them equally, and without any words indicating an intention of the testator to give the same over to the survivors, the shares of such as die in the lifetime of the testator will become lapsed ; or will go to their children or descendants under the provisions of the revised statutes.
    Where the construction of a will has been correctly settled by the decree of the court below, the appellant who fails in reversing such decree is personally chargeable with the costs of the appeal, except in very special cases.

      Tins was an appeal from a decree of the vice chancellor of the first circuit dismissing the complainant’s bill; the object of which bill was to obtain a share of the estate of John Mowatt the elder, the complainant’s great-grandfather. John Mowatt the elder made his will in August, 181G, he being then at the advanced age of seventy-six. And he continued to live till March, 1829, when he died, without having revoked or altered his will. The testator had three children, Alexander, John and Elizabeth; the first of whom was dead at the time of making the will, but had left two children, Elias and Jane, who were then living and in their infancy. John Mowatt, jun. the son of the testator was married at the date of the will, and had then three children living; John E. the father of the complainant, Charles and James. Elizabeth was also married, to the defendant I. Carow, and was then the mother of a large family of children. The testator by his will devised to his widow the income of all his estate both real and personal for life. And after her death he directed his executors to sell and convert the whole into money for the purpose of distribution according to the directions of his will. He then, after m iking provision for the widow of his deceased son in case she should survive his own widow the tenant for life, directed the remainder of his estate to be divided into four equal parts and disposed of the same as follows: “ First. I give and bequeath unto my son John Mowatt, jun. one equal fourth part thereof; but in case he dies before my wife, I then give this his said share to be divided equally amongst his children, the survivors or survivor of them, share and share alike. Secondly. 1 give and bequeath to my daughter Elizabeth Carow one equal fourth part thereof; but in case she dies before my wife I then give this her share to be equally divided amongst her children, the survivors or survivor of them, share and share alike. Thirdly. I give and bequeath to my grand-daughter Jane Mowatt one equal fourth part thereof; but in case she dies before my wife, and leaving lawful issue, then my will is that this her said share shall be given to her said issue, to be divided amongst them, the survivors or survivor of them, share and share a like. But should my said grand-daughter die before my wife, leaving no lawful issue, then my will is that her said share shall be considered as appertaining to my estate and subject to the division thereof. Fourthly. I give and bequeath to my grandson Elias Mowatt one equal fourth part thereof; but in case he dies before my wife, and leaving lawful issue, then my will is that this his share shall be given to his said issue to be equally divided amongst them, the survivors or the survivor of them, share and share alike. But should my said grandson die before my wife, leaving no lawful issue, then my will is that his said share shall be considered as appertaining to my estate, and subject to the division thereof according to this my will.” John Mowatt, jun. the son of the testator died in 1821, leaving, his three children surviving him. His son John E. Mowatt married in 1824, and died about two months before the testator, leaving the complainant and another child, since dead, 1pm surviving. Elias Mowatt the testator’s grandson, to whom or to whose issue one fourth of the properly was devised lifter the death of the widow, also died in the lifelime of the testator without issue and unmarried. And in January, 183p, the testator’s widow died ; leaving Mrs. Carow, Jane die grand daughter, Charles and James, two of the sons of John Mowatt, jun. and the complainant their nephew, her surviving. The complainant insisted that the legacy to Elias Mo-watt the grandson lapsed, by his death in the lifelime of the testator, and that he was entitled to one ninth part thereof as one of the heirs at law of his great grandfather; and that he was entitled also to share in the estate given to John Mowatt, jun. or his children, as the only son and representative of one of those children; or that the share of John Mowatt lapsed by his death in the lifetime of the testator, and that the complainant had a right to share therein as an heir of the testator entitled to a portion thereof under the statutes of descents and distributions. Mrs. Carow and her husband, and Jane the grand-daughter of the testator, admitted that they believed the legal rights of Ihe complainant were as claimed by him, and submitted the question to the decision of the court. But James Mowatt, and the assignee of Charles Mowatt, who were alone interested in opposing the complainant’s claim, insisted by their answers that the whole of the sitare of J. Mowatt, jun. belonged to his two children who survived the testator; and that the share of Elias lite grandson was not lapsed, but was by the provisions of the will given over to those who were enti led to the other three fourths of the estate, in the same proportions. The vice chancellor sustained this last construction of the will; and held that the share which was to go to John Mowatt, jun. or his children, did not lapse by his death in the lifetime of his father.

      December 18.

      The following opinion was delivered upon pronouncing the decree appealed from.
    McCoun, Y. C. In behalf of the infant complainant, the bill claims fur itim an equal third of the fourth part of the estate directed to be divided among the children of John Mowatt, jun. as representing John E. Mowatt one of such children. Tills proceeds upon the ground that the devise over has taken effect; but his counsel have nevertheless suggested, and made it a point upon the argument, that the event has not happened upon which the devise over was to take effect, that the devise has therefore lapsed, and consequently the complainant comes in as one of the lineal descendants and heirs at law of the testator for a share of this part of the estate. And so with respect to the one fourth which was intended for Elias Mowatt the grandson, it is contended and the bill claims for this infant a ninth part thereof as an heir at law and next of kin, upon the ground of a lapse and no effectual gift over of this quarter of the estate or other disposition of it by the will.
    The first question then to be considered is, whether the event has happened upon which the gift or limitation over to the children of John Mowatt, jun. was to take effect ? He died before the testator’s wife ; so far it is within the words of the will; but he likewise died before the testatorf and as to him therefore, it was clearly a lapsed devise, no ntercst ever vested in him, the devise in that respect failed. It became void by his death; and it is said that this is not the event intended to be guarded against, for the testator contemplated his son surviving him and becoming vested in interest and then dying before the property vested in possession and in that event only he intended the children to take. This may have been the event contemplated, but the same reason that would induce a further disposition of the property in that case would induce a testator to guard against, a lapse by the death of the devisee in his own lifetime ; and it is a rule of law well settled that where a devise or bequest is to one, with a limitation over to another if the first should die under twenty-one or before the happening of any other event, and he dies under the prescribed age or before such other event happen, though in the lifetime of the testator, yet the devisee or legatee over is entitled. (IP. Wms. 274. 3 Id. 113. 1 Powell on Dev. 202. Will, on Ex’rs. 704.) The case of Williams v. Jones, (1 Russ. 517,) has been cited to the contrary, but it will be found to contain nothing at variance with this rule. It merely decides that the gift over cannot take effect except upon the happening of the event on which it is limited. In the present case, the event has occurred, and the gift over to the children of John Mowatt, jun. is therefore just as effectual as if he had outlived the testator.
    The next question is, who are entitled under this form of gift ? “ Children” as here used is á word of purchase. It comprises a class of persons, and all who answer the description, either at the death of the testator when the will takes effect, or at the time appointed for the distribution, are entitled to take. Whichever period is adopted in this case would make no difference in the result; for at the death of the testator in March, 1829, and also at the death of his wife in January, 1835, there were but two children of John Mowatt, jun. living, Charles and James; and as they exactly answer the description and compose the class designated, it would seem t.o follow very conclusively that they alone aie the persons to take. (Will, on Ex’rs, 717, 720.). Sometimes, it is true, grandchildren and issue or descendants generally are permitted to take under an enlarged construetion of the term “ children.” Where for instance the will would otherwise remain inoperative and it is necessary to extend the meaning beyond the natural import of the word in order to effectuate the object and apparent intention of the testator, as in Wilde's case, ( 6 Coke's Hep. 16,) or where the testator has clearly shewn by other words, such as issue or descendants, used promiscuously with the term children, that ho did not intend the latter to be understood merely in its natural sense but in the more comprehensive sense of issue or descendants generally. Such are the cases of Wythe v. Thurlsfon, and Gale v. Bennett, (2 Blunt's Ami. 555, n. 2 ; ll. 681.) Here there is no necessity for extending the word in order to give effect to this part of the will, nor is there a promiscuous or indiscriminate use of the words children and issue. On the contrary, these words are used in separate parts of the will and with an apparent discrimination. No inference therefore can be drawn from this circumstance to bring the case within the principle of those last cited. Indeed, it would seem as if the testator ha¡l purposely limited the gift to children, and expressly excluded grandchildren from participating in the devise over of the shares intended for his son John and his daughter Mrs. Carow, by designating children, &e. “the survivors and survivor of them” as the persons to take. Even without the latter words and without something more than appears in this case, the general rule must be applied, that where there are children who properly answer the description, grandchildren cannot be permitted to share along with them. (3 Ves. Beames, 69. 1 lioper on Leg. 72, 73. Will, on Ex'rs, 723. 1 Edw. Gh. R. 186.) I am therefore against the complainant upon this part of the case.
    The next question is upon the devise to the grandson Elias Mowatt—whether it has entire ly lapsed, so as to produce an intestacy as to this one-fourth of the estate, and to let the complainant in for one-ninth of it as an heir at law ? He died before the testator, and this is sufficient to produce a lapse; but the event of his dying in the lifetime of the widow and w'ithout issue has also happened, and as before shewn, it is no objection to a gift over taking effect, if a valid one has been made, that the event upon which it was made to depend occurred in the testator’s lifetime. There is here such a gift over. The words are, “ my will is that his said share shall be considered as appertaining to my estate and subject to the division thereof according to this iny will.” “ Appertaining to my estate,” without more, would leave it undisposed of; but “ subject to the division thereof according to this my'will,” is a clear indication that the testator meant to dispose of it. The only difficulty is as to the division— the will having directed a division into four parts, which is the division here spoken of, and yet there are only three persons or the representatives of three persons to take. It was obviously, I think, the intention of the testator to make the division with so many parts only as there might be persons remaining to take, although he omitted -to express it. Being satisfied that this was his design, it is the duly of the court to carry it into effect. We may depart from the literal and technical sense of words, when they would lead to inconsistent and absurd conclusions, and adopt those which render the will lational and consistent, and comport with the ascertained intention of the testator as collected from the whole instrument, and not founded upon mere conjecture. (6 Mad. Rep. 346.) I am therefore of opinion that the will may be read as if the testator had given over this share to be divided equally between his son, his daughter and his grand-daughter, and upon tire same limitations as their original shares of the estate. Consequently, there is no intestacy as to Elias’ share; and the complainant not being provided for by the will in any event, his bill must be dismissed. He may be excused, however, from the payment of costs. His claim did not appear to be entirely groundless. Some of the defendants, particularly Mr. Ca-row, express a belief in their answers that the complainant is entitled to participate in the division of the estate. This was enough to justify the filing of the bill. The parties must therefore bear their own costs of the suit.

      J. Anthon & I. Scott, for the appellant.
    The devises to John Mowatt, jun. and to Elizabeth Car'ow and to their “ children,” and to Elias Mowatt and Jane Mowatt and their “ issue,” were intended by the testator to convey precisely' ¡he same rights, and therefore the word issue must be substituted for the word children to produce this effect. (5 Binn. 501. Roper on Eq. 61. 5 Munf. 440. 1 Dess. 324, 331, 497. 4 D.E. 707.) The term survivor has relation to the death of the ¡estator, and therefore under the devise over on the death of John Mowatt, jun. “to his children and the survivors or survivor of them,” the children of John Mowatt, jun. living at the testator’s death and the issue of deceased children will take. (Adm'rs of Taylor v. Ambler, 4 Hen. & Munf. 411.) The will thus interpreted gives to the complainant his father’s share by representation, viz. the one-third part of the one-fourth bequeathed to the grandfather, John Mowatt, jun. and to his issue in the event of his death, &c. John Mowatt, jun. having died in the lifetime of the testator, that legacy lapsed, and the complainant is entitled to a share under the statute of distributions as representing his father. (Williams v. Jones, 1 Russ. 517. 1 Roper on Eq. 408. 3 Russ. 340. 1 Chit. Eq. Dig. tit. Legacies, 632, 634. 4 Ves. 437.) Elias Mowatt having died in the lifetime of the testator, the legacy of one-fourth bequeathed to him also lapsed, and as to this share the testator also died intestate, and the complainant is entitled to his father’s share thereof. The bill prays general relief as w’cll as special, so that the complainant may have a decree according to his rights.

      D. Selden & E. Paine, for J. Mowatt and for Paine the assignee of Charles Mowatt.
    Charles Mowatt and James Mowatt, being the only children of John Mowatt, jun. who wore alive at the death of John Mowatt, the testator, and Jane Mowatt,his widow, claim the same interest in the estate of the testator that John Mowatt, jun. would have been entitled to had he survived both these parties. John Edgar Mowatt, the father of the complainant, took nothing under the testator’s will, because the testator survived him ; of course no interest ever vested in J. E. Mowatt, thj father, with reference to any event, and the complainant takes nothing as the representative of his father. (2 Vern. 107. 10 Ves. 200. 1 Roper on Eq. 323, 329. Maybank v. Brooke, 1 Bro. C. C. 372.) Fur the same reason, John Mowatt, jun. the complainant’s grandfather, took no interest under the will. The complainant being a grandchild of John Mowatt, jun. cannot take under the description of children. (2 Atk. 221. 1 Roper on Eq. 66. 1 Ves. sen. 196. 3 Ves. 258. Ambl. 806. 10 John. 12. 11 Id. 340. 9 Id. 450. 4 Id. 64.) There is no lapsing of the legacy to John E. Mowatt, and the bill proceeds on no such ground. (1 P. Wms. 96. Roper on Eq. 266. 2 Ves. jun. 265. 2 Roper on Eq. 276. 2 Ves. jun. 634. 1 Jac. & Walk. 146. 4 Madd. 11. 2 Coxe, 189.)
   The Chancellor.

There can be very little doubt in this case, what was the general intention of the testator, as apparent from the will itself. The testator drew his own will, as appears by an endorsement thereon in his hand writing ; from w hich endorsement it also appears that the will was written by him the year before its execution. And if no events had occurred but those which probably were in the contemplation of the testator at that time, I presume this controversy would never have arisen. One of his sons was already dead, having left two children then in their infancy ; and as the testator contemplated the possibility that one or both of them might die without issue, after the date of his will and before the time appointed for the division of his estate at the death of his widow, he made an appropriate provision to guard against a lapse of those shares by the death of the legatees in his lifetime; and also to secure the share to the other members of his own family, if either of the legatees should have died and should have left no issue living at the death of their grandmother. The vice chancellor, therefore, is unquestionably right in supposing that the share of Elias, the grandson, did not become lapsed, except as to his own presumptive right to the same, by his death during the life of the testator. For however much it may have been once doubted, it is now clearly settled that where an interest in property is given by will to one person, with a limitation over of the same interest either to his children or to any other persons upon the death of the first devisee or legatee before the time appointed for such interest to vest in possession, the death of the first devisee or legatee, although in the lifetime of the testator, does not produce a lapse of the limitation over of that interest to the substituted objects of the testator’s bounty.

One of the earliest cases on this subject is that of Ledsome v. Hickman, (2 Vern. 611,) where the testator devised £300 to each of his three daughters at twenty-one or marriage ; and if any of them died before that time her share to go to the survivor. One of the daughters having died in the lifetime of the testator, the question arose whether the legacy was lapsed or should go to her two surviving sisters. Lord Chancellor Cowper decided that the limitation over was good as an executory devise. Although the reporter adds a sed quaere tamen to the report of that case, it was followed by the same chancellor, eight years afterwards, in the case of Bird v. Lockey, (2 Vern. 744,) and by Lord King in the subsequent case of Willing v. Baine, (2 P. Wms. 113) It was probably urged in those cases, as in this, that there could be no legacy unless the legatee survived the testator; and that the legacy intended by the testator being lapsed, there was nothing to go over to the substituted legatees. The short answer to that, however, is that the bequest to the substituted legatees in such a case is an original legacy to them at the death of the testator; the event having then happened upon which their substitution in the place of the first named legatee depended. And this is so whether such legacy to the substituted legatee is then vested, or is contingent and depending upon some future event. The principle that the legacy to the substituted legatees does not lapse by the death in the lifetime of the testator of the legatee in whose place they are substituted by the will, is also fully recognized in several recent decisions in the court of chancery in England. (Humphreys v. Howes, 1 Russ. & Myl. 639. Gittings v. McDermott, 2 Myl. & Keen, 69. Le June v. Le June, 1 Lond. Jurist, p. 235. Archer v. Jegon, 1 C. P. Cooper's Rep. 172.)

In the case of Williams v. Jones, (1 Russ. Rep. 517,) relied on by the appellant’s counsel upon the argument, the event upon which the- substitution was to take place never happened. The legacy was given absolutely'to T. W. if he should be living at the time of the decease of the testator’s wife; and if he was not, then1 it was to go to the son of T. W. But as the legatee actually survived the wife, although he died before the testator, the substituted legatee could not take according to the provisions' of the Will. Neither could he take as the legal representative of his father, as to whorri the legacy wás lapsed by death in the lifetime of ¡he testator. The same difficulty occurred in sustaining the substituted legacy in Humberstone v. Stanton, (1 Ves. Beame, 485,) which depended on the event of the first legatee dying before he completed his apprenticeship; and he lived till after his apprenticeship was completed, but died before the testator. In the present case the event upon which the share of Elias Mo watt was to go over to the owners of the other three shares as the substituted legatees, actually happened, by his death without issue during the life of his grandmother. And if the legatees or substituted legatees of the other tlíreé-fourths of the estate are entitled to those other shares as such legatees, they are entitled to the share originally intended for Elias, in the same proportions, as the substituted legatees of that share ; although he died in the lifetime of the testator.

For the same reason there can be no’ doubt as to the right of Charles and James to take two-thirds at least of the share Which their father would have taken in the estate if he had survived both the testator and the widow. For the contingency has happened upon which the children of John Mowatt, jun. were to be substituted in his place as legatees; to wit, his death during the life of his mother. It remains therefore for me to inquire and decide whether the other third of that share is devised to the complainant, in the events which have occurred, as one’ of the substituted' legatees; or whether Charles and James are entitled to it as survivors of their brother ; or whether it lapsed by the death of John E. Mowatt, as the substituted legatee of this third of that share, after the death of his father and in the lifetime of the testator.

I can see no way in which the complainant can entitle himself to this third, as a substituted legatee ui der the will, unless he can bring himself within the description of one of the surviving children of John Mowatt, jun. in the sense in which the testator intended to use the word children in this part of his will. As a general rule the testator must be presumed to have used words in their ordinary or primary sense, unless it appears from the context of the will that he probably used them in some other sense ; or unless, by reference to extrinsic circumstances, the use of the words in their primary sense would render the provision of the will insensible or inoperative. (Wigram on Wills, 29.) The word children in common parlance does not include grandchildren, or any others than the immediate descendants in the first degree of the person named as the ancestor. But it may include them where it appears there were no persons in existence who would answer to the description of children in the primary sense of the word at the time of making the will; or where there could not be any such at the time or in the event contemplated by the testator; or where the testator has clearly shown, by the use of other words, that he used the word children as synonymous with descendants, or issue, or to designate or include illegitimate offspring, grandchildren or stepchildren. (Radcliff v. Buckley, 10 Ves. 195. Earl of Orford v. Churchill, 3 Ves. & Beame, 69.) Testing the devise or bequest in this will, to John Mowatt, jun., or to his children if he died in the lifetime of the testator’s wife, by these rules, I can see nothing to authorize me to presume that he meant to include offspring of his son John in any more remote degree, or to use the word children as synonymous with issue. The event which has occurred was probably not provided for by the testator because it was not contemplated by him as one that might happen during his life ; although it now appears the event was not impossible. The testator was then 76 years of age, and his wife was probably very far advanced in life; and the three sons of his son John were then very young and unmarried. It was therefore very improbable that his own term of life would be prolonged until his grandchildren should be married and have issue, and that both the son and grandson would also die before him. For this reason he only made provision for the substitution of the children of John, as ¿he legatees in the place of their father in the event of his dying before the time appointed for the distribution of the estate, with the right of survivorship among themselves if either of those children should die before the testator. The survivorship, where any of a class of legatees are then in esse, is construed with reference to the death of the testator, when the legacy becomes vested in interest in the children then living, but subject to open and let in after born children; so as to give the representatives of the children dying after that time the right to an undivided share of the legacy. (Drayton v. Drayton, 1 Desaus. Rep. 324. Woodstock v. Shillits, 6 Sim. Rep. 415.) But as the event which has actually happened in this case was not foreseen by the testator, and therefore was not provided for by his will, this court cannot give the appellant a share of the legacy, under the description of a child of John Mowatt, jun. without making a will for the testator which he did not make for himself. (Dod v. Brabant, 4 Dunf. & East, 709.)

Wher’e a legacy or devise or residuary bequest is given to two or more persons by name, as tenants in common, or in severalty, or to be divided among them share and share alike, and without any words indicating an intention of the testator to give the same over to the survivors, the shares of such persons respectively will become lapsed by the death of the legatee or devisee in the lifetime of the testator. (Page v. Page, 2 Stra. 820. Bagwell v. Dry, 1 P. Wms. 700. Ackroyd v. Smithson, 1 Bro. Ch. Rep. 503.) The share of John Mowatt, jun. would therefore have become lapsed if he and all his children had died in the lifetime of the testator; as there was no provision in the will which could have carried it to his more remote descendants, or to his sister Mrs. Carow, or to his brother’s children, as substituted legatees. The revised statutes now contain a provision for saving the legacy or bequest to the descendants of the legatee who dies in the lifetime of the testator, if such legatee is himself a child or descendant of such testator. (2 R. S. 66, § 52.) But even that provision, if it had been in force at the testator’s death, would not reach the present case, as he had himself substituted other persons who were to take the whole legacy by survivorship in case his son died in the lifetime of the testator’s wife.

If the three children of J. Mowatt, jun. had been substituted by name to take the share of their father in equal proportions in severalty in case of his death, and without any words of survivorship, the share of John E. as one of the substituted legatees would have become lapsed by his death during the lifetime of the testator upon the principle which I have before stated. And in a case of that kind I presume the provision of the revised statutes above referred to would give that share of the fund to the descendants of the substituted legatee who died in the lifetime of the testator, his ancestor. But previous to the revised statutes it would have gone to the heirs or next of kin of the testator himself, as a part of his estate not effectually disposed of by the will. In the case of Viner v. Francis, (2 Cox’s Ca. 190,) Lord Alvanley as master of the rolls decided that where a legacy was given to a class of persons in general terms, as in this case to the children of John Mowatt, jun., the share of one of the class who was in existence at the date of the will and who died in the lifetime of the testator did not lapse; but that the whole fund, although bequeathed in terms indicating a tenancy in common rather than a joint tenancy among the individuals of the class, went to the residue of the class who survived the testator, or who afterwards came into existence previous to the time appointed by the testator for the distribution of the fund. Such a construction of a will, where there was no clause of survivorship and no substitution of the issue of such of the class as happened to die before the testator, would defeat this beneficial provision of the revised statutes in many cases ; as such wills are very common. I am therefore happy to find that I cannot sustain the claim of the two children of John Mowatt, jun. who were living at the testator’s death, to the whole of their father’s share, upon the principle that theyus accresscendi is necessarily implied where the legacy is given to a class, although in words not importing a joint tenancy. The contrary was decided by Lord Thurlow in the case of Martin v. Wilson, (3 Bro. C. C. 324) a year or two after the case of Viner v. Francis, which of course overruled the decision of the master of the rolls; although some subsequent writers and annotators in England still think the decision of Lord Alvanley is more in accordance with the doctrine of the courts in analagous cases. (See 1 Roper on Leg. 333. 2 Bro. C. C. 404, note.) I will not say Lord Alvanley’s construction might not be proper, for the purpose of effectuating the probable intention of the testator, where one of the class dies in the testator’s lifetime without issue. That intention, however, is usually indicated by words of survivor-ship which have reference to the death of the testator, and which have the effect to prevent the lapse of the share of one of the class who dies before the testator. (Lord Bindon v. The Earl of Suffolk, 1 P. Wms. 96.) It would hardly be reasonable, therefore, to adopt it where its effect would be to give the whole fund to the survivors of the class, to the entire exclusion of the descendants of the one who died after the making of the will. That being an event evidently not contemplated by the testator in his will in such a case, unless there is. something to indicate that intent, it is better that the lapsed share should go to the heir at law or next of kin of the testator; or that it should be left to go, as it now will under the provisions of the revised statutes, to the descendants of the individual for whom it was originally intended, if he is a descendant of the testator.

In the present case, however, the testator has made use of language which, according to the settled rules of construction, was sufficient to carry the whole share of John Mowatt, jun. to such of the children or substituted legatees as survived the testator. In Smith v. Pybus, (9 Ves. 567,) the testatrix bequeathed a legacy to her mother for life, and after the termination of that life interest therein she directed it to be divided equally between three persones designates, or the survivor of them, in the order in which they were mentioned in the will. The sister who was first named in the will died in the lifetime of the testatrix, leaving the other two sisters surviving. In that case it was adjudged that the words, “ in the order they are now mentioned,” as used by the testatrix, were not susceptible of any definite meaning; and that the word survivor carried the whole legacy over to the sisters who survived the testatrix, in equal proportions, to the exclusion of the personal representative of the sister who was dead. Here it is evident the testator did not intend to die intestate as to any part of his estate ; as he directs it to be sold and converted into money for the purpose of distribution according to his will. And when he directs the share of John Mowatt, jun., in the event which has happened, to be divided equally among his children, the survivors or survivor of them, it must be presumed that he contemplated the possibility of the death of some of the children, and did not intend there should be a lapse in that event. No effect therefore can be given to these words in the will, according to the settled rules of construction, except by holding that the two children who survived the testator took the whole share originally intended for their father, including the one third of the original share of their cousin Elias.

The decree of the vice chancellor was therefore right ; and must be affirmed, with costs to be paid by the next friend of the appellant. As there was probable cause for litigating the question in the court below, it was a proper case to excuse the complainant from the payment of costs, and to charge the costs of the defence upon the fund in the hands of the executors belonging to all of the defendants. But after the several questions arising upon the construction of a will have been fairly decided against the appellant by a competent tribunal, he ought not, except under very special circumstances, to be excused from the payment of costs upon his failure in the appellate court; and to be allowed to throw the costs of the adverse parties upon a fund belonging exclusively to themselves. Such an exercise of the discretion of the appellate court, in ordinary cases, would have a tendency to promote appeals and to protract litigation unnessarily.

       See Chaffers v. Abel, 3 Lond. Jurist, 577.