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    The Bank of Utica v. Dill and Cumpston.
    May 5th.
    Where a sheriff, after collecting money on an execution, died insolvent, without paying over the same, and no person administered upon his estate, it was held that no suit could be sustained in Chancery against the sureties of the sheriff upon his bond, to enforce the payment of the amount so collected by him.
    If the judgment creditor has any remedy in such cases, the Supreme Court alone can furnish relief.
    The defendants were the bail of S. W. Hughes, late sheriff of Cayuga, who collected the amount of an execution in behalf of the complainants, and died before the money was paid over. No person administered on the estate of the sheriff, and the bill in this cause was filed to compel the bail to pay the amount collected by the sheriff. The defendants demurred to the bill for want of equity.

      J. C. Spencer, for complainants:
    The complainants have a remedy in Chancery against the defendants, upon their bond, *for. the malfeasance of their principal, the sheriff. The bond is a security for creditors, as well as for the people. (1 R. L. 419, sec. 2.) The right being clear, and there being no remedy in this case at law, Chancery has power to afford the relief intended by the statute. The 6th section of the act provides the terms upon which the Supreme Court shall direct the bond to be prosecuted at law. This is merely directory of the remedy, and is no qualification of the right. Without this provision, the only remedy would have been in Chancery. This section does not provide for all the cases of injury. Thus, by the 5th section, the defaults of the under sheriff, after the death of the sheriff, are declared breaches of the condition of the bond. But the bond cannot be prosecuted at law for the defaults of the under sheriff, because no judgment can be obtained against the deceased sheriff, which is an indispensable requisite to authorize the Supreme Court to direct the prosecution of the bond. Nor can judgment be recovered against the representatives of the deceased sheriff, for the defaults of the under sheriff. Here, then, is a case in which the Supreme Court cannot afford a remedy. So in the present case, the sheriff being dead, no judgment can be obtained against him; nor will any action lie against his personal representatives. (Martin v. Bradley and others, 1 Caines’ R. 124; Franklin v. Low & Swartwout, 1 John. R. 396.) And if such action would lie, there is no-executor or administrator against whom it can be brought. The complainants being a corporation, cannot, if they were required, take out letters of administration. There will therefore be an entire failure of justice in this case, unless the court can grant relief. The principle contended for here is laid down in Mitford’s Pl. 106, 7, that where a right is given by a statute in express terms, and the courts of common law cannot afford a remedy, Chancery will interfere. Edgell v. Haywood & Dawe, 3 Atk. 352; Jenkins v. De Groot, 1 Caines’ Cas. in Error, 122. Phillips v. Thompson, 2 John. Ch. R. 418; In the Matter of McKinley and others, 1 John. Cas. 137.) It has been frequently held, that a cestui que trust may use the name of the trustee to recover money, or to foreclose a mortgage; and also that any person beneficially interested in a contract *may sue and enforce it. (Jackson v. Delancy, 11 John. R. 365; Attorney-General v. Meyrick, 2 Ves. sen. 45; Shepard v. Shepard, 7 John. Ch. R. 63; Skinner v. Phillips and others, 4 Mass. R. 68; Corry v. Williams, 9 id. 117; People v. Dunlap, 13 John. R. 439; Archbishop of Canterbury v. House, Cowp. 140.) Courts of equity lean in favor of making a bond, or other instrument, a trust for creditors, and of enforcing such trust. (1 Eq. Cas. Ab. 93 k;
      Moses v. Murgatroyd, 1 John. Ch. R. 129; Kip v. Bank of New York, 10 John. R. 63; Parsons & Cole v. Briddock, 2 Vernon, 608.)

      A. Van Vechten, for defendants,
    contended that the defendants in this case were not liable to the complainants; that the terms of the statute had not been complied with. The amount of the plaintiffs’ demand, and the default of the sheriff, had not been ascertained by a judgment against him. Unless this is done, the Supreme Court have no power to direct a prosecution of the bond. The statute specifically provides the manner in which the bail are to be made liable. It defines the nature and scope of their obligation. Until the default of the sheriff is judicially ascertained, the bond is not forfeited; and when forfeited, it is suable only in the name of the people at law, under the direction of the Supreme Court. (People v. Spraker, 18 John. R. 390.) The statute in terms provides, that there shall be but one suit upon the bond, although there be several defaults; and the judgment, when recovered, is to stand as security in case of other defaults. The obligation of sureties cannot be varied in any respects, either as to its terms, or the manner of enforcing it when that is specifically prescribed. (Rathbone v. Warren, 10 John. R. 587.) The defendants are liable only according to the provisions of the statute.
   The Chancellor :—It is not necessary for the decision of this cause to inquire whether the bail can be liable in any case before a recovery has been had against the sheriff or his personal representative. The decison of the Supreme Court in The People v. Spraker & Yates, (18 John. *Rep. 390,) when examined carefully, does not seem to go that length. It was evident in that case that the directions of the statute might have been complied with, and the breach of the condition of the bond which was there assigned was one for which the original sureties were not liable. If a recovery against the sheriff is necessary in all cases before a suit can be sustained against his sureties, there is no remedy in this case, either at law or equity, because the statute has made no provision for a proceeding against his personal representative.

Without expressing any opinion on the question whether the Supreme Court would permit the bond to be put in suit upon a proper application, showing that the sheriff had collected the money and died insolvent, and that there was no personal representative against whom a suit could be prosecuted, 1 am satisfied if the complainants have any remedy against the bail, the Supreme Court is the proper tribunal to afford that relief. It was evidently the intention of the legislature to give to that court power to administer relief to the parties injured by the default of the sheriff, to the full extent to which the sureties are liable. The condition of the bond is broad enough to reach every possible case where the bail ought to be made liable. And if they are liable at all, it must be by a suit on the bond in the name of the people, under the equity of the fifth section of the act.

The demurrer must, therefore, be deemed to be well taken in this case.


source: Caselaw Access Project

license: Public Domain

text:
    Harwood and others v. Kirby.
    The right of an incumbrancer cannot be affected by a sale of lands in partition, neither can he be made a party to the suit.
    If the lands are divided, the lien of the incumbrance, after the division, will be confined to the share allotted to the party against whom the incumbrance is held.
    If the lands are sold, the purchaser will take the premises subject to the lien of the incumbrance upon the undivided share.
    *The Revised Statutes have altered the law on this subject, and have authorized the court to decree a sale, which will give the purchaser a per- . feet title, discharged from all liens and incumbrances.

    May 19th.
    The complainants filed a bill for partition'in this cause, setting forth, among other things, that the share of the defendant was incumbered by two legacies or annuities charged thereupon, and by a judgment and a mortgage; and that the premises were so situated that a partition thereof could not be made without a sale, and praying a sale of the premises and division of the money, deducting from the share of the defendant the amount of the incumbrances. The defendant in his answer admitted the incumbrances to have been created as stated in the bill, but insisted that he did not hold the premises subject thereto, but that the same were only contingently liable therefor. A reference was made to a master to report whether partition could be made, and to ascertain and report upon the title of the different parties in the premises; and if he should be of opinion that partition could not be made, to report the incumbrances on the respective shares, without prejudice to the rights of the parties. The cause was submitted on bill and answer, and the master’s report.

      J. King for the complainants.

      J. L. Wendell for the defendants.

       2 R. S. (4th ed.) 585, sec. 57.

   The Chancellor :—The master has obviously mistaken the object of the reference as to the title. He should have ascertained and reported what part of the premises belonged to each of the parties, and the quantity of their estate therein, whether for life or in fee, instead of reporting the chain of title which was not necessary any further than to show how the incumbrances affected the different shares. He has also made an evident mistake in relation to the amount of the incumbrances, but whether in favor of or against the infant complainants, I am unable to determine. The annuity to Mrs. Kellogg is for life, and yet the master has only reported the arrears up to the time of his report, without allowing any thing for the value of the annuity for the remainder *of her life. He has also made a mistake the other way, in estimating the legacies to the two granddaughters of the testator as legacies absolute, or annuities in fee. They are entitled to the $500, or to the interest thereon for life, at the election of the devisee. The master ought, therefore, to have ascertained the arrears now due, and computed the present value of an annuity of $35 for the remainder of the life of each. If any decree could be made in the cause, the sale could not be ordered until the extent of these incumbrances was ascertained with more certainty.

The important question in this cause is, what decree can be made consistently with the equitable rights of all the parties. It is now the settled law that an incumbrancer upon an undivided share of the estate cannot be made a party to a suit for the partition of the whole property. His right cannot be affected by a partition or sale of the estate. If it is divided, the incumbrance continues a lien on the share set off to the party whose undivided portion of the premises was before bound. In the case of a sale, the purchaser takes the premises subject to the hen upon the undivided share; and has the same equity to throw the incumbrance on to the other lands, or other persons, as the party whose share is incumbered would have had if the sale had not taken place. Such is the effect of the decision in Sebring v. Mercereau, (Hopk. Rep. 501,) and that decision was afterwards unanimously affirmed in the court of dernier resort. In cases where there are contingent incumbrances, or contests as to the amount of the liens on any particular share, it follows of course that the other parties never can be fully indemnified for the loss they will sustain by a sale of their property in common with that which is in controversy. Although the court, for the purpose of the partition, may direct an account to be taken of the probable extent of such liens, the purchaser can never rely upon that account, as tlie incumbrancers will not be bound thereby; and he must take upon himself the risk of contesting the question as to the amount afterwards. The answer in this cause shows that there is sufficient personal property in the hands of the executors of Kellogg to discharge *all the legacies, and which was to be first applied for that purpose. If this be so, the amount of those liens cannot be deducted from the defendant’s share of the purchase-money.

Ample provision is made for a case like the present in the Revised Statutes. After they go into operation, the court may decree a sale which will give to the purchaser a perfect title to the premises, discharged of all liens and incumbrances, and the half of the purchase-money belonging to the defendant, after deducting costs, will be brought into court, leaving the various incumbrancers to litigate their rights to that part of the purchase-money with him. I am therefore satisfied it is for the interest of all parties, but more particularly of these infant complainants, that no decree for sale should be made in this case previous to the first day of January next. The cause must therefore stand over until that time, when either party may apply for such decree for the sale of the premises as may be just, and as the court may then have the power to make.

       2 R. S. (4th ed.) 577, secs. 8, 10.

       2 R. S. (4th ed.) 578, sec. 9.


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    Manny, administrator, &c. v. Phillips.
    Where a debtor conceals his ownership of property to prevent its seizure from executions against him, and one of his judgment creditors aids him in this fraud, this court will not interpose in *var of the debtor against such judgment creditor, but will leave the parties to their legal rights.
    If executors or administrators commence a suit in Chancery in good faith, upon probable grounds of right, and to enforce a supposed claim of the testator or intestate, they will not be charged with costs.
    But if they bring a suit in this court merely to aid a defence at law, they cannot, in case of failure, he excused from costs here, in a case in which costs would he given against them in the suit at law.
    May 19th.
    The bill in this cause was filed to set aside a judgment entered upon a bond and warrant of attorney given by the intestate to the defendant. The whole equity of the bill was denied by the answer; but the complainant proceeded to take testimony, and the cause was heard on pleadings and proofs.

      J. S. Van Rensselaer & J. J. Danford, for complainant.

      M. T. Reynolds, for the defendant,
    cited 2 John. Ch. R. 274; 3 Brown’s Ch. R. 475.
   *The Chancellor —The answer of the defendant shows a good and valuable consideration for the bond and warrant on which the judgment was entered up, and there is nothing in the proof to discredit the answer. Probably the intestate had particular reasons for having the fact of his ownership "of the horse concealed, to keep it from the reach of executions; and if the defendant had lent himself to such a fraud, it would not be a good reason for the interposition of this court. In such cases this court leaves the parties to their legal rights.

The only possible question in this case is as to the defendant’s right to costs. In general, an executor or administrator who brings a suit in this court in good faith, on a probable ground of right, will not be charged with costs. The object of this suit was not to enforce any supposed claim of the intestate against the defendant. Its real object was a defence to the suit at law which was brought against the administrator on the judgment. If an executor or administrator sets up a defence at law which fails, he is chargeable with the costs; and I can see no reason why he should be in a better situation when he attempts to make such defence by the aid of this court. If this suit had been commenced by the intestate, there could be no possible reason for excusing him from the payment of costs; and in a case like the present, the representative character of the complainant cannot protect him.

The bill must be dismissed with costs.


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    Sweet v. Green.
    Where a grantor in a quit claim deed covenants to warrant tile premises against all persons claiming by or under himsell¡ and subsequent to such conveyance he acquires the legal title to the premises, the same will enure to the benefit of the grantee.

    And where the premises have been conveyed by the grantee to a lam fide purchaser without notice, the original granijor cannot set up against such purchaser fraud or mistake in the insertion of the covenant of warranty in the original deed of conveyance.
    The purchaser of lands under a judgment obtains all the right of the defend ant to the premises, and no equity can be set up against him on accoun of notice which did not aifect the title to the land in the hands of the judg ment debtor.
    *In October, 1795, Jonathan Green was in possession by his tenant of forty acres of land, in the manor of Rensselaerwick, which he claimed to have purchased from J. Odell; but the legal title was then supposed to be either in Odell or S. Van Rensselaer. Jonathan Green on the 31st of the same month, conveyed this land by way of mortgage to the complainant, and authorized him, in case of the nonpayment of the mortgage money, to receive the deed from Odell or Van Rensselaer in his own name. In September, 1797, the parties to the mortgage made a new arrangement, by which it was agreed that Sweet should take the 40 acre lot, except about half an acre, which is the subject of controversy in this suit, and two other pieces of land, one of which was a lease lot and the other a possession lot merely, at the appraisal of men selected by them for that purpose, and pay to Joseph, the father of Jonathan Green, the balance of the purchase-money after deducting the amount due to Sweet on his mortgage; and Sweet also agreed to convey to Joseph Green the half acre lot in controversy in this suit. It was understood at the time that the legal title was not vested in Sweet or Green, and the former therefore insisted that he would only give to Joseph Green as good a title as he received from Jonathan by the conveyance of October, 1795. A quit claim deed was thereupon given from Sweet to Joseph Green for the half acre in fee; but a covenant was inserted therein, by which the grantor covenanted to warrant the premises against all persons claiming by or under himself, and the bill in this cause was filed to get rid of that covenant upon the allegation that it was inserted by fraud or mistake. In December, 1797, Joseph Green conveyed the half acre to his son Jonathan, and in March, 1798, the latter conveyed it to Wm. Gillet. In July, 1799, Gillet conveyed it to James Green, and in May, 1813, the latter conveyed it to David Crandall and Green Crandall with warranty. In February, 1815, John Green, the defendant in this suit, recovered a judgment against the Crandalls in the Supreme Court, under which he obtained a conveyance of the half acre from the sheriff in July, 1817. The complainant had a junior judgment against Crandall, under which he obtained possession of the premises *in controversy. On the 11th of June, 1816, the complainant obtained from Stephen Van Rensselaer a conveyance of the whole lot, under which he claims the half acre in question; but in consequence of the covenant in his quit claim deed, he supposes himself estopped from setting up that claim. The cause was heard on pleadings and proofs.

      A. Van Vechten and J. P. Cushman for the complainants :
    The bill in this case was filed to strike out the covenant of warranty in the deed from the complainant to Joseph Green, upon the ground that the same was inserted either by fraud or mistake. The covenant cannot be effectual against the title recently acquired by the complainant from Stephen Van Rensselaer. The complainant was surprised by this covenant, when he made the purchase from Mr. Van Rensselaer. Lapse of time will not, unless very long, bar a claim to be relieved against fraud. (Cook v. Clayworth, 18 Ves. 16; Nichol v. Trustees of Huntington, 1 John. Ch. R. 166, 177.)

      D. Buel, jun., and D. Gardner, for the defendants,
    contended that a mistake could not be corrected, if the correction would defeat the intention of the parties; (Lyman v. United Ins. Co., 17 John. R. 377; Maine and wife v. Administrator of Dickinson, 2 Dessaus. R. 191;) that the defendant was a bona fide purchaser without notice; that the claim of the complainant was barred by lapse of time ; and that in no case where a covenant is read could ignorance of its effect be set up as an excuse. (Anderson v. Roberts, 18 John. Rep. 531; Fletcher v. Peck, 6 Cranch, 133; Sugden, 661; 1 Mad. Ch. 206); Jackson v. Henry, 10 John. R. 185; Starkie’s Ev. 4th p. 1018, 1019, 1020; Jones v. Statham, 3 Atk. R. 389; Executors of Getman v. Beardsley, 2 John. Ch. R. 274; King v. Baldwin, id. 557; Lyman v. United Ins. Co., id. 630; Irnham v. Child, 1 Brown’s Ch. Cas. 93; Shelburne v. Inchiquin, id. 341; Wendell v. Van Rensselaer, 1 John. Ch. R. 324; Storrs v. Barker, 6 John. Ch. R. 166; 1 Ambler’s Rep. 101; Gregory v. Gregory, Cooper’s Ch. R. 201; Bonny v. Ridgard, 1 Cox’s Cas. in Ch. 145; Morse v. Royall, 12 Ves. 373, 377; Davoue v. Fanning, 2 John. Ch. R. 252; Underhill v. Van Cortland, id. 362.)

        Kellogg v. Wood, 4 Paige, 578; Jackson v. Hoffman, 9 Cow. 271; Jackson v. Matsdorf, 11 John. 91; Jackson v. Wright, 14 id. 193; Jackson v. Murry, 12 id. 201; Peltereau v. Jackson, 11 Wen. 110; Jackson v. Ireland, 3 id. 99. A conveyance by a feme covert, with warranty, although acknowledged according to the statute, will not operate by way of estoppel as to pass to her grantee, her subsequently acquired interest of the property conveyed. Leal v. Woodworth, 3 Paige, 470. See also Jackson v. Winslow, 9 Cow. 31.

   *The Chancellor :—There are several substantial objections to the complainant’s claim to amend the original conveyance by striking ont the covenant. At the time he obtained his conveyance of the legal title from S. Van Rensselaer, Crandall was in possession as a Iona fide purchaser of the premises, by divers mesne conveyances from' the complainant’s grantee, and without any notice of the alleged fraud or mistake. The ¡moment, therefore, that Van Rensselaer’s deed was given, by the covenant of warranty in the conveyance of Sweet, Crandall became vested with a perfect title in the half acre, and subsequent notice to him or his assigns could not divest that title. Green, who obtained the property under the judgment against Crandall, obtained all the right which the latter had in the premises, and no equity can be set up against him on account of notice. (Jackson v. McChesney, 7 Cowen, 360.)

Independent of this legal objection, I am satisfied from the testimony that the effect of the covenant, under the circumstances, produces the exact state of things contemplated by the parties; and if it had not been inserted, the defendant would have been entitled in equity to a quit claim from the complainant of the title acquired under the conveyance from Van Rensselaer. And the weight of proof also is, that the covenant was knowingly and intentionally inserted for the purpose of vesting the title in the grantee, whenever a conveyance for the whole lot should be obtained from Van Rensselaer, the nominal owner.

The bill must be dismissed with costs.


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    *Park v. Peck and others.
    Where the purchaser of mortgaged premises had admitted the existence of the lien within twenty years, and promised to discharge the mortgage, it was held sufficient to rebut the presumption of payment arising from the lapse of time.
    Such admissions of the purchaser are also legal evidence against ah his judgjnent creditors whose judgments have been recovered subsequent to such admissions.
    May 25th.
    Where a defendant in a bill of foreclosure knowingly sets up an unjust defence, and thereby subjects the complainant to extra costs and expense, he may be charged personally with the costs.
    The bill in this case was filed to foreclose a mortgage given in 1803, which had been due more than twenty years. One of the defendants was the purchaser of the equity of redemption, and the others were the judgment creditors of such purchaser. They alleged, in their answers, that the mortgage was paid, and insisted upon the lapse of time as evidence of such payment. To rebut this presumption, the complainant gave in evidence the admissions of the administrator of the mortgagor, and also the admissions of the purchaser of the equity of redemption made by him subsequent to his purchase and prior to the judgments of the other defendants.

      W. Silliman, for the complainant,
    contended that no presumption of payment could be raised against the mortgage from the lapse of time, it being less than 25 years since it was given; that a longer time was necessary to raise the presumption in the case of a mortgage than of a bond; and that if the lapse of time was sufficient to raise the presumption of payment, such presumption was rebutted by the circumstances of the case. (Oswald v. Leigh, 1 Term R. 271; Hillary v. Waller, 12 Ves. 264; Fladong v. Winter, 19 Ves. 196; Boltz v. Bullman, 1 Yeates’ Rep. 584; Executors of Brewton v. Executors of Cannon, 1 Bay’s R. 483; Cottle v. Payne, 3 Day’s R. 289; Quince v. Ross, Taylor’s R. 155; Jackson ex dem. The People v. Pierce, 10 John. R. 414; Roseboom v. Billington, 17 John. R. 182; Jackson v. Delancey, *11 John. R. 365; Jackson v. Delancey and another, 13 John. 537; Colsell and others v. Budd and others, 1 Campb. 27; Phil. Ev. 114; Toplis v. Baker, 2 Cox’s Ch. Cas. 122.) If the complainant fails on account of the presumption of payment from the lapse of time, he will not be liable to costs. (Demarest v. Wynkoope, 3 John. Ch. 147.) But the defendants having, by an unjust defence, put the complainant to expense and trouble, ought to be decreed to pay costs. (2 Mad. 427, 423.)

      C. F. Grim, for the defendants,
    cited Oswald v. Leigh, 1 D. & E. 271; Giles v. Barremore, 5 John. Ch. 552; Hillary v. Waller, 12 Ves. 266; Trash v. White, 3 Brown’s C. C. 289; Collins v. Torry, 7 John. R. 283; Whiting v. White, 2 Cox’s Ch. Cas. 293.
   The Chancellor :—The evidence is sufficient to rebut the presumption of payment arising from the lapse of time-The mortgage was given in 1803, and payable the succeeding year. The mortgagor was a brother of the complainant, and continued poor until his death, in 1810 or 1811. In the latter year his administrator acknowledged the mortgage was unsatisfied, and sold the premises under the surrogate’s order subject to the lien thereof. The evidence is sufficient also to show that Peck, the purchaser, frequently recognized it as an existing incumbrance and promised to settle it.

These admissions and promises were made long prior to the judgment of Hart and Card against Peck, and therefore are evidence against them as well as himself. There must be the ordinary decree for a reference to ascertain what is due on the mortgage, and for a sale on the coming in of the master’s report.

The complainant asks costs against the judgment creditors who have put in their answers, and put him to the proof of the existence of the lien. If a defendant, against his better knowledge, sets up an unjust defence and puts the complainant to extra costs when the premises are insufficient to pay the whole amount, such extra costs ought to be charged on the defendant personally. But this is not a case of that description. These judgment creditors had no knowledge *that the mortgage was an existing, incumbrance; and from the complainant’s neglect to enforce it for more than twenty years after the amount was due, they had a right to presume it paid, and to put him to prove the contrary. He has no personal claim against them for the costs in such a case.


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    Stephens and others v. Van Buren and Wyckoff, Executors
    May 25th.
    Where executors or* administrators, without any sufficient excuse, refuse to pay over to the general guardian funds belonging to infants, they may be personally charged with costs.
    If executors retain money in their hands, belonging to infants for several years without any good reason for so doing, they will he charged with the interest which they might have received thereon.
    The court will protect the rights of infants where they are manifestly entitled to something, although their guardian ad litem neglects to claim it in their behalf.
    This was a suit brought in the name of infants, by their guardian, to recover the amount belonging to them in the hands of the executors of their grand-father. The facts upon which the decree was founded appear in the opinion of the court.
   The Chancellor :—This is a bill filed by infants to recover their share of the estate of their grand-father which was bequeathed to them after the death of their mother. She died about the first of December, 1825 ; at which time the share of the estate belonging to the complainants was $12,724 83. Their guardian applied for the payment of what "was due; but the defendants declined paying it over for some reason which does not appear. The defendants and the guardian have submitted the case for the consideration and decision of this court. As there appears to be nothing in dispute between them, I can see no reason for charging these infants with the expense of this suit; and as the executors refused to pay without any excuse for such refusal, I should probably have given the guardian his costs against them if he had asked it. There is one thing, however, manifestly wrong. The executors *have had the money three or four years in their hands, and l without any excuse for retaining it, and yet the guardian does not, in his draft of the decree, even ask them to pay the interest. I cannot suffer him thus to deprive the infants of what appears a fair and equitable claim against the defendants. There must be a reference to a master to ascertain what is due to each of the infants from the defendants; and the master must charge the defendants with the interest which they have received or might have received on such amount, with reasonable diligence, since the death of the mother. The master must also ascertain whether the guardian has given sufficient security to the infants for the faithful execution of his trust; and in judging of such security, he must see that there are two responsible persons, each of whom is worth over and above all debts double the amount of the personal estate of the infants, including interest thereon during their minority, and of the whole amount of the rents and profits of their real estate during that period. The penalty of the bond should be to that extent. On the coming in and confirmation of the report, if it appears the security is sufficient, the defendants must pay the amount reported due to the guardian; and if insufficient, they must pay it into court, to be invested for their benefit by the assistant register until security is given to the satisfaction of the court.


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    Floyd and Floyd v. Barker and Ferris, Executors, &c.
    May 25th.
    Where there is a general residuary clause in a will, if a specific legacy is revoked, or becomes lapsed, it falls into the residue, to be disposed of under the general clause; but if the residue is given to several persons in common, and one of them dies, or his legacy is revoked, his share will go to the next of kin, and not to the other residuary legatees.
    The complainants are legatees under the will of Gloriana Franklin, who died in 1804. By her will, among other things, she bequeathed certain articles of property and certain sums of money, to be paid out of her estate, to Sophia Dayton; and she directed her executors, if upon settling her estate they found they had money in their hands more than ^sufficient to pay off the legacies given by the will, or i^ from any unfavorable circumstances, they should not have sufficient to pay said legacies, that then they should pay to her legatees all such moneys which they should have in their hands, be the same more or less, in proportion to the sums therein given to the legatees, except the sums of money given to her slaves, which were in no case to be diminished or augmented. She afterwards made a codicil, by which she revoked all the gifts and legacies given by her will to Sophia Dayton, and bequeathed the same to certain persons therein named, among whom were the complainants. The bequest to them was as follows : “ Also of such money, I give and bequeath to Alfred Floyd, son of John Floyd, and to his heirs and assigns forever, the sum of $250 out of the said money mentioned in my will to be paid to the said Sophia. Also, I give and bequeath to Jesse Floyd, son of the said John Floyd, being in Suffolk county, the sum of $250, and his heirs and assigns.” She then continued: “ And if the money so given to my said kinswoman Sophia as aforesaid shall be more than sufficient to pay the said legacies, or shall fall short of paying, in such case I will and order that the legacies be paid accordingly.” Thomas Thomas, one of the legatees named in the will, and also in the codicil, died before the testatrix. The defendants who were named as executors in the will took upon themselves the execution of the trust. There was money in their hands more than sufficient to pay off all the pecuniary legacies and the" complainants insisted upon the right of having their legacies increased proportionably with the other legatees out of such surplus, and claimed the lapsed share of Thomas Thomas as a part of such surplus. The executors doubting their right, refused to increase the legacies of the complainants, and asked the direction of the court.

      W. Silliman, for complainants.

      R. Bogardus, for defendants.
   *The Chancellor:—The bill in this cause was filed to obtain the construction of the will of Gloriana Franklin and the codicil annexed, so far as relates to certain legacies given to the complainants in the codicil.

Under the second clause of the will Mrs. Dayton was entitled to half the proceeds of two houses and lots in the city of New York; but by the codicil the legacy to Isaac Sniffin is to be paid out of the same. This, of course, constitutes a part of the fund out of which the legacies to the complainants and others in the codicil are to be paid. It was also undoubtedly the intention of the testatrix that the goods, &c., bequeathed to Mrs. Dayton for life, and the residue to the children, should also constitute a part of that fond. Although the word money is used, yet, as she had directed those goods in the end to be turned into money, she must have intended to dispose of the proceeds thereof in the codicil. The legacy given in the fifth clause of the will of course constitutes a part of the fund, which last fund is to be increased or diminished under the eleventh clause in proportion to the pecuniary legacies therein contained, except those to the blacks. But in ascertaining the amount of that fund, the lapsed legacy to Thomas Thomas is not to be taken to increase the same. The amount which would have belonged to him if he had lived does not belong to the legatees in the will, but to the next of kin. And the same rule must be applied to the division of the share originally given to Mrs. Dayton when it comes to be divided among the legatees under the codicil: that is, the share of the complainants to be ascertained and computed in the same manner that it would have been if Thomas Thomas had survived the testatrix; and the whole that would in such case have belonged to him now belongs to the next of kin. Where there is a general residuary clause in a will, if a specific legacy is revoked or becomes lapsed, it falls into the residue to be disposed of under the general clause. But if the residue is given to several, in common, and one of them dies, or the bequest is revoked as to one, his share goes to the next of kin. (Cheslyn v. Cresswell, 6 Brown’s P. C. 1; Bagwell v. Dey, 1 Peere Wms. R. 700; Hunt v. Berkeley, Mosel. Rep. 48; Skrymsker v. *Northcote, Wils. Ch. R. 248.) The case of Ackroyd v. Smithson, (1 Brown’s Ch. Rep. 503,) is very similar to the present. In that case the executors were directed to sell the real and personal estate and out of the proceeds to pay the debts and legacies; and if there was a surplus, to pay it to his legatees in proportion to their several and respective legacies. Two of the legatees died in the lifetime of the testator ; and on a bill filed by the next of kin, Lord Thurlow decided that the shares of the two who died were lapsed and belonged to the next of kin, so far as they were constituted of personal estate; and that so far as those shares were made up of the proceeds of the real estate they belonged to the heir at law.

A decree must be entered declaring the rights of the complainants under the will and codicil as above stated, and if necessary an account must be taken to ascertain the amount due, and the costs of the executors are to be paid, out of the fund which belongs to the next of kin in consequence of the lapsed legacies. If the complainants had brought all the legatees and next of kin before the court, so that their rights could have been ascertained and settled in this suit, the whole costs would have been allowed out of the general residue; but not having done so, they must bear their own costs, as the other parties interested may be compelled to sustain a similar expense to obtain an account and satisfaction of what is due to them.


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    Sears and wife v. Hyer and others.
    An adult husband may file a bill in Chancery for the partition of his wife’s estate, although she is nn infant.
    He has a valid and subsisting interest of his own in the premises, and may therefore join with her in the suit.
    Where lands of the wife who is an infant are sold under a decree in partition, the husband is not entitled to the proceeds, but the court will secure the fund for her use until she becomes of age and consents to his receiving the same.
    An omission of the solicitor or counsel to sign an answer will not affect the validity of a decree.
    *If a mortgage is given on an undivided share of the estate pending a suit for partition, the lien of the mortgagee will be divested by a sale of the prem ises under the decree, and the purchaser will take the estate discharged from the incumbrance.
    The bill in this cause was filed to obtain partition of certain real estate in the city of New York, an undivided share of which belonged to W. S. Sears in right of his wife, who is an infant and the residue belonged to the defendants. The whole premises were subject to a mortgage executed by Gr. Hyer, from whom all the parties derived their title; and since the commencement of this suit Thomas R. Hyer, one of the defendants, mortgaged his share of the property to H. Rogers, who had notice of the pendency of the suit at the time he took such mortgage. The usual decree for the sale of the premises was made, and the master was directed out of the purchase-money to pay off the mortgage on the whole premises, and the costs of the respective parties, and to deposit with the assistant register one-third of the residue subject to the further order of the court to secure the widow’s dower. He was also directed to pay to the complainants and two of the defendants, each one-fifth of the sum remaining, and to deposit the shares of T. R. Hyer and one of the other defendants with the assistant register, subject to the further order of the court.
    George Lorrilard became a purchaser at the sale, and entertaining doubts as to the title, he obtained a reference to a master to take proof of the facts, and to ascertain and report whether a good and valid title could be made to the purchaser at such sale. The objections made by the petitioner were: 1. That the wife being an infant, the proceedings were unauthorized; 2. That the purchaser had a right to have the mortgage on the whole premises paid off before he took his title; 3. That he had a right to a release of the mortgage to H. Rogers; 4. That the answer of one of the defendants was not signed by either solicitor or counsel. The master decided in favor of the second and third objections, and against the others.

      J. R. Hedley, for the petitioner,
    contended that infants could not bring suits in partition, the power to bring such suits being confined by the statute to adults, (Jackson v. *Woolsey, 11 John. R. 455;) that the mortgage upon the whole premises ought to be paid off before the petitioner was compelled to take the title, as otherwise the premises would continue subject to the lien of the mortgage; that mortgagees and judgment creditors could not be made parties to a suit in partition, and were not bound by the judgment in such suit. (Wotton & Wife v. Copeland and others, 7 John. Ch. R. 140.)

      J L. Mason for the defendants:
    In Chancery an infant may bring a suit in partition, and will be bound by the proceedings therein. (Lord Brooke v. Lord and Lady Hertford, 2 P. Wms. 518; Gregory v. Molesworth, 3 Atk. R. 626.) Even under the statute, if one of the plaintiffs is an adult, the proceedings will be sustained, although all the rest are infants. (Jackson v. Woolsey, 11 John. R. 455.) Halsey Rogers having taken his mortgage after the commencement and with notice of the suit, his title was divested by the sale. It was not necessary to file a notice of the foreclosure in the clerk's office. This is only required in cases where the filing of the bill would be constructive notice to a purchaser of real estate; cases to which the doctrine of lis pendens applies; and where such an interest in the subject matter is acquired pending the suit, which, if it had been acquired before the commencement of the suit, would have created a new party in interest, whom it would have been necessary to have made a party to the suit. The object of the rule of lis pendens is to prevent the purchase of litigated titles, and to enable the complainant to proceed in his suit without the delay of making new parties. (Bishop of Winchester v. Paine, 11 Ves. 194, 9; Murray v. Ballou, 1 John. Ch. R. 566; Murray v. Lylburn, 2 John. Ch. R. 441; Hiern v. Mill, 13 Ves. 120.) The rule does not apply to a case where the interest is such as will not make the person acquiring it a necessary party to the suit. (Wooten and wife v. Copeland, 7 John. Ch. R. 140; Sebring v. Mercereau, 1 Hopk. R. 501.) A mortgagee of an undivided share of real estate has no greater rights than the tenant in common against whom he holds his mortgage ; and in case of a partition, his lien is *confined to the part allotted to such tenant in common. (Jackson v. Pierce, 10 John. R. 414.) If the mortgaged premises should be sold, the mortgagee will be remitted to the proceeds instead of the land.

      W. S. Sears, for the complainants.

      A. Burr, for the assignee of H. Rogers.
   The Chancellor :—There can be no doubt of the right of an adult husband to file a bill in this court for the partition of his wife’s estate, although she is an infant. He has a valid and subsisting interest of his own in the premises, and may therefore join with her in the bill. In the case of Lord Brooke v. Lord and Lady Hertford, (2 Peere Wms. 508,) the sole- complainant was an infant, and yet partition was decreed. The only error in the decree in this cause was in directing the purchase-money of the wife’s share of the property to be paid to her husband before she was of age to consent thereto. It must be corrected so far as to have that share paid into court to be invested for her use, unless the husband gives the assistant register a bond, with two sufficient sureties, in double the amount, to account to her as the court shall direct, when she becomes of age.

The neglect to have one of the answers signed by counsel, &c., was a mere error in practice which cannot affect the validity of the decree.

The decree makes provisions for the payment by the master of the mortgage on the whole premises, out of the purchase-money when received. The petitioner had no right to suppose the money would be misapplied by the master. He purchased with knowledge of this fact on the face of the decree; and if he had any doubts as to the application of the fund, he might have gone with the master to the mortgagee, and have paid the money'himself to that extent, and the master would have deducted it from the amount. This, therefore, can be no reason for his refusal to complete the purchase.

The only objection in which there is any appearance of validity is that which relates to the mortgage to H. Rogers. *By the decision of the Court of Errors in Sebering v. Mersereau, (9 Cowen, 344,) it is settled that a person holding an incumbrance on an undivided share of the premises need not be a party, and that his interest is not affected by the sale; but in that case it was also holden that the purchaser takes the property subject to the incumbrance. In partition cases the rights of the parties should be ascertained as far as practicable before the decree, and the premises should be sold at the risk of the purchaser. That probably was not the case on this sale; and if there were any doubts as to the right, I might be induced to order a new sale. But as the fact that H. Rogers held a mortgage on one of the shares appeared on the face of the decree, it is to be presumed the purchaser was aware of the fact that he had taken that mortgage pendente lite, and that his title would be divested by the sale; or that the petitioner purchased subject to that incumbrance, and paid a price accordingly.

It now distinctly appears that this mortgage was taken pendiente lite, with full knowledge that a suit for partition of the premises had been commenced, and the mortgagee has no different rights from those of the mortgagor. The title of both is completely divested by the sale, and the petitioner will have a perfect title to the whole premises. But for his further protection against useless litigation I shall direct that no part of the purchase-money belonging to the share of Thomas R. Hyer, or his mortgagee, be paid to either of them, or their assigns, until the purchasers under the master’s sale had a valid release from all claims upon the mortgaged premises by virtue of the mortgage to H. Rogers. And none of the parties are to have costs as against each other, upon the petition of Lorrilard and the subsequent proceedings thereon.


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    *Kettletas and wife v. Gardner and wife.—J. Gardner, an infant v. The Same.
    Fixed habits of intemperance constitute a sufficient reason for the removal of a guardian.

      June 1st.
    And it is improper that the wife of a husband addicted to such habits should be the guardian, she being subject to his control.
    An adult husband is entitled to the guardianship of the person of his wife during her minority.
    In January, 1818, James Gardner and Charlotte Ms wife were appointed by the surrogate of New York guardians of the persons and estates of Malvina Gardner and John Gardner, two infants. Malvina is now about Mneteen years of age and is married to Eugene Kettietas, and John is about seventeen years of age. A petition was presented m each case setting forth that James Gardner had become insane and was in the lunatic asylum, and praying that he and his wife might be removed from the guardianship. A reference was made to a master to ascertain the facts. The master reported that at the time the report was made, James Gardner was of sound mind, although Ms bodily health was much impaired. He also reported that in consequence of Gardner’s fixed habits of intemperance, which brought on frequent attacks of insanity, and of there being no satisfactory evidence of his reformation, he was of opimon that he ought not to be continued in the guardiansMp.

      R. Bogardus, for the petitioners.

      A. Burr, for the guardian.
   The Chancellor :—The opinion of the master, that the guardian who has become so intemperate as to be occasionally insane, is unfit for a guardian without evidence of a thorough reformation in Ms habits, is perfectly correct. At the time the petitions were presented, the guardian was confined as a lunatic, which derangement was produced by Ms vicious habits. He was himself a proper subject of guardianship, x'and continues so, unless he has abandoned those habits. The court has no assurance that there is in him any permanent reformation. He has therefore forfeited the guardianship, and must be removed. If it is improper for him to have the management of the estate, it is equally improper for his wife, who is subject to his control. The guardianship of the person of one of the infants belongs to the husband, and Mrs. Gardner is not a proper guardian of the person of the other. The whole guárdianship must therefore be changed. Philip D. Kettletas is to be appointed guardian of the person of John Gardner, on his giving a bond, with sufficient sureties to be approved of by Master Bolton. But he is not to pay any thing for the support or maintenance of the infant John Gardner, unless he consents to prosecute his studies, or to go into some regular business, under the direction of his guardian, and then nothing more is to be advanced for his support than is absolutely necessary. There must be a reference to a master to state the account of the former guardians; and all further directions are to be reserved until the coming in and confirmation of that report.


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      In the Matter of Van Cott, an Habitual Drunkard.
    July 4th.
    Where leave was granted to traverse an inquisition against an habitual drunkard, and the finding of the inquest was confirmed, the costs to be charged on the estate of the drunkard cannot exceed twenty-five dollars; out of which sum the expenses of the committee are first to be paid.
    If an issue is awarded for the benefit of a third person, and it is found against him, no costs will be allowed to the solicitor who prosecutes the traverse.
    A petition for leave to traverse the inquisition in this case was presented, in which J. B. Scoles appeared as solicitor. An issue was directed, and the finding by the inquest was confirmed. The solicitor applied for an order that the committee pay his costs and expenses, as between solicitor and client, out of the estate. He stated that he had only received about $20 or $25. By the affidavits on the part of the committee, it appeared that deeds from Van Cott to the solicitor *and to S. S. Johnson were overreached by the finding of the jury, and that the issue was in fact for their benefit.

      F. A. Tallmadge, for Scoles.

      S. F. Clarkson, for the committee.
   The Chancellor. :—The statute under which the pro* ceedings in this case were instituted, limits the expense to be charged on the estate at twenty-five-dollars in case of a traverse. It necessarily follows that in no case of an unsuccessful traverse can the solicitor of the traverser have any allowance out of the estate. The committee’s expenses must be first paid, and they will absorb the whole amount allowed by law. But in this case there can be no reason for paying the costs of Scoles out of the estate in the hands of the committee, even if there was no restriction in the statute. Van Cott had conveyed all his real estate to Scoles and Johnson, and this traverse was substantially for their benefit. The allowance of costs is discretionary, and depends upon the character of the application and the conduct of the party. In Folger’s case, (4 John. Ch. Rep. 169,) the grantee of a lunatic for whose benefit the issue was awarded, was directed to pay the costs to which the committee had been subjected thereby.

The application must'be refused, with costs to be paid by Scoles to the solicitor of the committee.


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    Mills and Minton v. Pittman.
    If the complainant wishes to prove any fact on the hearing not admitted by the answer, he must file a replication to the answer.

      June 4th.
    Where the fact to he proved is a matter of record, the complainant after filing his replication may give notice of his intention to produce the record or an exemplification thereof at the hearing, and then obtain his orders to produce witnesses and close the proofs in the usual' manner. ,
    Where the right to a debt due from a third person is in litigation, it cannot with safety bepaid to either party after notice; but the debtor will be per. mitted, pending the litigation, to pay it into court to the credit of the cause.
    *If it is necessary to enforce the collection of the debt, a receiver must be appointed.
    This wasu petition presented by the complainants, stating that the answer of the defendant had been put in, and that they were anxious to bring the cause to a hearing upon bill and answer, but it was necessary for them to prove the issuing and return of an execution of which the defendant in his answer denied all knowledge; and they asked leave to prove it at the hearing without filing a replication. They also asked that the defendant should be compelled to collect a debt due him from a third person, and pay the amount into court, or that they might do it in his name.

      R. Sedgwick, for the motion.

      W. S. Sears, for the defendant.
   The Chancellor :—If the complainants wish to prove any fact in the bill not admitted in the answer, they should file a replication, and give the defendant an opportunity to be heard on the question of the existence of the fact. If it is a mere exemplication of a record which proves itself, it may be sufficient to give notice to the defendant that it is to be used on the hearing, which will enable him to examine witnesses to explain or rebut the effect thereof, if it can be explained. The debtor whose debt will become due pending the litigation cannot safely pay it. to either of the parties after notice. If he is willing to pay the debt, he is at liberty to pay it into court to the credit of the cause, and in that case the court will order his note to be given up. But if it is necessary to enforce the collection before a final hearing, a receiver must be appointed.

The complainants are not entitled to the specific relief prayed for in the petition, and I have not sufficient before me to determine whether it is a proper case for a receiver. The petition must therefore be dismissed with costs.


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    *Durell and others v. Haley and Turner.
    June 15th.
    If a purchaser who is insolvent, concealing his insolvency from the vendor obtains goods from him without intending to pay for them, it is a fraud upon the vendor, and the property in the goods will not be changed.
    But if the goods have been resold by the fraudulent vendee to a Iona fide purchaser who has actually paid for the same without notice of the fraud, such purchaser will be protected.
    Where an insolvent confessed a judgment to his friend, on which an execution immediately issued, and then purchased goods for the purpose of subjecting them to the execution, it was held to be a fraud upon the vendor and the judgment creditor was not permitted to retain the goods, which had been purchased in by him upon his execution.
    The parties to this suit all reside in the city of New York. On the 7th of August, 1826, the defendant Haley finding himself insolvent, gave to Turner a judgment bond to secure a real or pretended debt of $3,000, on which a judgment was immediately entered and an execution issued to the sheriff of New York. Turner took possession of Haley’s store and the goods on hand. On the 8th and 9th of August, Haley purchased other goods of the complainants and took them to his store; upon which the sheriff then levied the execution in favor of Turner, who purchased in the goods for himself at a sale under the execu. tian. The complainants thereupon filed their bill to set aside the sale of the goods, and to have them returned, upon the ground that they had been fraudulently obtained.

      D. Selden, for the complainants:
    The purchase of the goods, in question by the defendant Haley from the complainants, without notice to them of the judgment and execution against him, was fraudulent and void, and did not vest the property in the purchaser. It has been held that where a debtor purchases goods with intent to subject them to an execution against him, the sale will be deemed fraudulent. (Van Cleef v. Fleet, 15 John. 147.) So where a person buys goods with the intention of making them the property of another, without disclosing his intention to the seller, such sale would be fraud upon the seller. There was evidently in *this case a fraudulent combination between the two defendants to cheat the complainants. It is a settled rule that a sale is void where the purchaser, is insolvent, if the fact be not at the time communicated to the seller. Cross v. Peters, 1 Greenleaf, 376; 2 Kent’s Com. 404.)

      S. B. H. Judah, for the defendants,
    contended that there was no collusion or combination shown between the two defendants; that Turner was a bona fide creditor of Haley, and hating the legal right, was entitled to a priority in payment.
   The Chancellor :—This is a clear and palpable case of fraud. It is not very material to inquire whether the judgment bond was given for a real debt or one which was entirely fictitious. If the cause turned on that question I should be inclined to believe the whole transaction was fraudulent from the beginning. But the purchase of the goods was a gross fraud, so that the title to them was not changed. Haley knew he was insolvent and unable to pay for these goods, and unquestionably purchased them with a view to subject them to the execution which had been previously issued; and to induce the complainants to sell, he paid up a small sum due upon his antecedent purchases. If a purchaser who is insolvent conceals that fact from the vendor, and thus obtains goods without intending to pay for them, it is a fraud, and the property is not changed in the hands of the vendee : but the goods would be protected in the hands of a bona fide purchaser from the fraudulent vendee, if he had purchased and paid for the same without notice of the fraud. In Sinclair v. Stevenson, (10 Moore’s R. 53,) Best, Ch. J., says if a person orders goods to be sent to him at night, and early the next morning commits an act of bankruptcy, he must be taken to have obtained possession of them by artifice or fraud. The case of Van Cleef v. Fleet, (15 John. Rep. 147,) is directly in point to show that the property was not liable to the execution of Turner. I have no doubt he was well acquainted with the fraud; but certainly he cannot be considered a dona fide purchaser, as he had enough at least to put bim on ^inquiry. There must be a decree that the goods be restored to the complainants, and that the defendants pay the costs of this suit. I shall also direct that the copies of the pleadings and proofs be delivered to the District Attorney of New York, that he may lay the case before the proper tribunal, to inquire whether the defendant Haley is not liable to be punished for obtaining these goods by false pretences.

        Cary v. Hotaling, Hill, (N Y.,) 311; Lloyd v. Brewster, 4 Paige, 537; Root v. French, 13 Wen. 570; Ash v. Putnam, 1 Hill, (N. Y.,) 302; Whitney v. Allaire, 4 Denio, 554; Olmstead v. Hotaling, 1 Hill, (N. Y.,) 317.

        Ash v. Putnam, 1 Hill, (N. Y.,) 302; Root v. French, 13 Wen. 570.


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    Squire and wife v. Harder and others.
    No resulting trust can be raised in favor of a grantor in opposition to the express terms of bis conveyance.
    Where the grantor conveys in fee with warranty, he is estopped from alleging that he had an interest in the purchase-money which created a resulting trust in his favor.

      July 8th.
    Tliis court will not decree a specific performance of an agreement made by a husband in relation to the real estate of his wife, to which she was not a party.
    He can malee no agreement which will affect her rights, without her consent.
    This was a bill for the partition of a certain mill property-in the county of Columbia, which formerly belonged to George Harder deceased. The complainant, Rebecca Squires, was one of Harder’s children; and his widow and other children were the defendants. The complainants alleged that Harder died seized of the mill property, and the undivided half of a farm; that one-half of the mill property was sold by his administratrix under an order of the surrogate, and was purchased by Oliver Squire one- of the complainants; that the undivided half of the farm was sold by the widow and the heirs; and that she received one-third of the purchase-money, and agreed to lay it out in land for her use during life, and that after her death it should go to the heirs; that she afterwards purchased from Squire his undivided half of the mill property. The heirs claim the sixth part of one half, subject to the widow’s right of dower for life, and the sixth part of the other half subject to her life estate therein. The defendants admitted the descent of the property as charged in the bill, and' the sale and resale of one-half of the mill property. They *also admitted the sale of the half of the farm, and that the widow received one-third of the purchase-money; but they denied there was any agreement that she should lay it out in lands, . for the benefit of the heirs after her death. On the contrary they alleged, that it was the understanding and agreement of the parties that she should keep that one-third for her own use; and that about $400 of the purchase-money of the mill property was raised by other means. They also alleged that Harder died seized of 1,375 acres of wild land, in which the widow was entitled to dower; and that it ivas agreed by all the parties that she should release her right of dower in those lands, and in consideration thereof that she should have the use of the whole of their half of the mill during life; that in pursuance of that agreement, they made partition of the wild land among themselves, and she took possession of the whole of the mill property; and all the defendants prayed a specific performance of that agreement. The cause was heard upon pleadings and proofs.

      A. L. Jordan for the complainants.

      C. Bushnell for the defendants.

       See Sweet v. Green, ante, 473; and authorities cited in note.

   The Chancellor:—The allegation in the bill that Mrs. Harder agreed to lay out the money received for the farm in other real estate, for the benefit of the heirs after her death, is absolutely denied in the answer, and is not supported by proof. There can, therefore, be no doubt that the widow is absolutely entitled to one-half of the mill property in fee. The other ground assumed by the complainant’s counsel, that she purchased it with the moneys received for the farm, in which she had only a life interest, and that there was a resulting trust in their favor on the purchase, is wholly untenable. Mo resulting trust can be raised in opposition to the express terms of the conveyance, and in favor of the grantor. In this case the complainants have given an absolute conveyance of the inheritance, with warranty. They are, therefore, estopped from alleging that a part of the consideration was received in their own money, and that she only took a life estate as to the one-sixth. If they did not '^voluntarily relinquish their claim on that money, their claim was personal on her; but they have no legal or equitable interest in the premises conveyed.

From the testimony taken in the cause, I am induced to believe there was a verbal understanding, that she should have the use of the other half of the mill property for life, as an equivalent for her dower in the wild lands. Whether that dower right was or was not of nearly the same value cannot be material in the view I have taken of this question. There was no valid agreement which can now be enforced against the complainants, inasmuch as they set up the statute of frauds. There has been no part performance of that agreement to take the case out of the statute. The partition of the wild land among the heirs did not affect her interest in the least. They had the right, and probably would have done the same thing, if no agreement as to the dower had been made. Neither does it appear from this testimony that she took possession or has made any permanent repairs on the mill property under that agreement. She was already in possession as the absolute owner of one-half, and as tenant in dower of one-third of the residue. I do not understand that any change took place at the time of that agreement. Besides, there is another insuperable objection to a specific performance of that agreement, even if it had been reduced to writing. The right in the mill property belonged to the wife, and the husband could not make any agreement which would destroy her right, without her consent. The other heirs having in their answer set up this paroi agreement and joined in a prayer for a specific performance thereof, it must be so decreed as against them.

There must, therefore, be a decree for a partition of the premises among the parties accordingly; but as the paroi agreement has probably prevented the widow from asserting her right to dower in the wild land which fell to the share of the complainants, the partition must be without any account against her for the rents and profits of the mill property which belonged to Squires, in the mean time; and the rights of the respective parties are declared as follows: The complainants, in right of the wife, are entitled to one-twelfth part of *the premises, subject to the life estate of the widow in one-third of that twelfth; each of the other heirs is entitled to one-twelfth, subject to the life estate of the widow in the whole of that twelfth; and the widow is entitled to six-twelfths in fee, and to a life •estate in five-twelths, and one-third of one-twelfth of the residue.

As it is very certain from the testimony that the premises cannot be divided, the decree must direct a reference to a master in the county of Columbia to ascertain and report whether the premises are so circumstanced that partition thereof as aforesaid cannot be made without great injury to the owners thereof; and that on the coming in and confirmation of that report, if it shall appear that partition cannot be made, the premises be sold by a master on the usual notice; and that he give a deed thereof to the purchaser, and pay to the solicitors of the respective parties their taxable costs; that they pay one-half of the residue of the purchase-money to the widow, and two-thirds of one-twelfth to the complainants: and if the parties cannot agree to a division of any share or shares of the residue, in which the widow is entitled to a life interest, that he bring the same into court and deposit it with the register, to be invested in such manner that the widow may receive the income thereof for life, and that after her death it be paid to the parties entitled thereto, according to their right as above declared.


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    In the Matter of Arnhout.
    July 8th.
    On the execution of a commission in the nature of a writ de lunático inguir rendo, it is improper for the sheriff who summoned the jury to be in the room, or to converse on the subject with the jury while they are deliberating on their verdict.
    When the sheriff had improperly interfered with the deliberations of the jury, their inquisition was set aside and a new commission was issued directed to the coroners.
    Duty of commissioners on executing commission of lunacy, and instructions to be given to the jury,
    *Where the relatives of a habitual drunkard prosecute a commission against him in good faith, they will not be charged with costs,' although the prosecution should be unsuccessful.
    Upon the application of some of the relatives of Jacob Arnhout, a commission in the nature of a writ de lunático

      inquirendo was issued, to inquire whether he was, by reason of habitual drunkenness, incapable of managing his own ajfgjjg. The jury summoned in the first instance could not agree in finding an inquisition in favor of such allegation, and after remaining together some time were discharged. A new commission was thereupon issued, upon which an inquisition was found against Arnhout. He now applied to set aside this inquisition for irregularity and for alleged partiality on the part of the officer who summoned the j™7-

      J. V. N. Yates for Arnhout.

      J. Lansing for the petitioner.
   The Chancellor :—Without going into a detail of the several affidavits read on both sides in this case; and without expressing any opinion on the question whether the officer summoning the jury has acted partially, or has only mistaken his duty, I am satisfied there has been such irregularities in this case that the cause of public justice and the protection of the rights of the party against whom these proceedings have been had, require that this inquisition should be set aside. It was improper for the officer to be in the room with the jury, or to converse with them at all in relation to the matter which they had under consideration. The extent of his duty was, if directed so to do by the commissioners, to guard the passage to the room where the jury were deliberating, and prevent them from being intruded upon by others. He was not the officer to take the inquisition, but was merely to obey the directions of the commissioners in summoning the jury.

It was improper after what had transpired as to the manner of proceeding on the first commission, and after the intimation given by the commissioners, for him to go into the room or listen to the deliberations of the jury. The inquisition in this *case, and the commission must be set aside, and a new commission issued. And to relieve the sheriff from all further censure, and remove all ground of complaint hereafter, it must direct that the warrant of the commissioners to summon a jury be directed to the coroners.

October 6th.

To prevent any misapprehension of the duties of any one on the execution of this commission, it is proper to state that after the testimony is closed the commissioners should submit the question to the jury in the form of a charge, stating the law applicable to the case, and recapitulating the facts if necessary, but without arguments of counsel on either side. And the jury are to be instructed if twelve or more of them find that the party is not incompetent, they are to deliver their verdict accordingly; or if the same number decide against his competency, that they then find and determine the other facts directed to be inquired of; and that if twelve of them cannot agree either way, they report the fact to the commissioners, that their return may be made accordingly. And in relation to every legal question arising in the execution of the commission, a majority of the commissioners must decide.

New commission issued.

On the new commission the jury found that Arnhout was not incapable of managing his affairs by reason of habitual drunkenness; and his counsel thereupon applied for an order that his sons in law who had prosecuted the commission pay the costs incurred by Arnhout.

J. V. N. Yales, for Arnhout, contended that according to the decisions in Chancery Arnhout was entitled to his costs. A trustee was liable to pay costs in all cases of gross negligence, or where there has been any irregularity in his proceedings. (Tireland v. Wilson, 6 John. Ch. R. 411.) Standing by and seeing a deed executed without objection, and'afterwards asserting a claim under a prior conveyance in opposition to such deed, would subject a party to costs. (Livingston v. Byrne, 11 John. 555.) Misrepresentation was also a ground for imposing costs. (1 Marshall, 192.) wherever a petition for a commission of lunacy is irregular, *it will be denied, with costs. (High Lunacy, 22, 77; In the Matter of Hogan, 3 Atk. R. 813; 2 Atk. 52; Barnadiston’s R. 356.) So where an application has proceeded from bad motives and not from a sense of duty, it will be refused with costs. (Moses and others v. Murgatroyd, 1 John. Ch. R. 473.) Pertinaciously pressing this prosecution to a third trial subjects the prosecutors to costs. Fraud and bad motives on their part may be inferred from the circumstances of the case, which always are punished with costs. (Denton v. McKenzie, 1 Dessau. R. 289, 300; 6 Har. & John. R. 435.) Arnhout’s estate cannot be charged with costs, the inquisition having been found in his favor. (Ex parte Glover, 1 Merriv. 269; Sherwood v. Sanderson, Coop. R. 108.) The jury were correct in finding that Arnhout was not incapable of managing his affairs by reason of habitual drunkenness. If the finding had been confined to habitual drunkenness, it would have been defective; because drunkenness is not per se incapacity, as is the case with lunacy. A return is strictly correct when it negatives the words of the commission. (Ex parte Cranmer, 12 Ves. 445; Ridgeway v. Darwin, 8 Ves. 65; Ex parte Barnsley, 3 Atk. 168.)

J. Lansing, contra:—The inquisition is irregular. It should have found that Arnhout was not now incapable, &c., and had not been for a certain time previous; for if incapable when the petition was presented, the prosecutors are clearly not liable to costs. The inquisition should also have found that Arnhout was not an habitual drunkard. It is void for this omission. (Ex Parte Barnsley, 3 Atk. 168; Sherwood v. Sanderson, 19 Ves. 286; Ex Parte Cranmer, 12 Ves. 445.) Where the finding is only for part of the issue, the whole is void. (Patterson v. United States, 2 Wheat. 225.) So a verdict is bad if it varies from the issue. (People v. Olcott, 2 John. Cas. 301.) Also if it be uncertain. (Co. Litt. 227 n.; King v. Dean of St. Asaph, 3 T. R. 428.) The only issue in every case under the statute is as to habitual drunkenness. Capacity forms no part of the issue. The statute is remedial and must be construed liberally. Reasonable and fair applications under the statute ought not to be discouraged. They have in view the preservation of the happiness of families, and the "^protection of property. If every unsuccessful application is mulcted with costs, persons will be deterred from presenting many cases to the Chancellor which require his interposition. The present application was made from honest motives and upon reasonable grounds. The difficulties the jury encountered in agreeing upon an inquisition, show there was probable cause for the prosecution. This alone is sufficient to protect the prosecutors from costs.

The Chancellor:—After one jury had heard the testimony in this case, and had not been able to agree, the prosecutors applied and obtained a second commission, upon which it was found that Arnhout was incapable of managing his affairs in consequence of habitual drunkenness. The inquisition in that case was not set aside because the court supposed the jury had made an erroneous decision, but because there had been improper conduct on the part of the officer who summoned and had charge of the jury. Although upon the third commission it has been found that Arnhout is not a habitual drunkard, it does not, therefore, follow that the original petitioners are to be charged with the costs of Arnhout’s defence. In applications of this kind the prosecutors are not chargeable with costs unless they have proceeded in bad faith, and without probable cause. (1 Collinson, 461.) There is nothing in this case to induce me to believe they did not think their father in law was in fact incapable of conducting his own affairs in consequence of habitual drunkenness. The verdict of the last jury is conclusive so far as it respects the appointment of a committee; but in determining the question of probable cause I must examine the evidence, and take into consideration the want of unanimity in the last jury, and the opinions of other jurors previously impanelled. For the determination of this question, it is sufficient for me to say I should not have been dissatisfied with the last verdict if it had been the other way. Malicious or improper prosecutions of this kind should never be countenanced; but it frequently is the duty of the friends of a man who gives himself up to the beastly vice of intemperance to apply and save his property. In such a case I shall never charge the prosecutors *with the costs of the defence, whatever may be the result of their application. No provision is made for the payment of their own expenses unless they succeed, however meritorious their proceedings may have been. (Ex parte Ferne, 5 Ves. 832.) But when an unsuccessful application is made, to charge them with the expenses of the party against whom those proceedings were had, they are entitled to their costs of opposing it.

The petition must be dismissed with costs.


text:
    White v. Williams and others.
    Where upon a sale of lands the negotiable note of the purchaser is given for the purchase-money, the vendor retains an equitable lien upon the land, but an indorsee is not from the mere transfer of the note entitled to the benefit of such lien where the indorser has not been made liable upon his indorsement.
    Where a judgment was entered on a bond and warrant, and a specification was filed under the act of April 21st, 1818, and it appeared no such consideration as that stated in the specification existed, the judgment was declared fraudulent and void as against other judgment creditors.
    If a judgment is void as against a subsequent judgment creditor, it is also void as against a purchaser under the subsequent judgment.

      July 8th.
    Hr July, 1815, the defendants, C. & W. W. Williams purchased of L. Kingsbury a farm in the county of Madison, and gave to him their negotiable note for a portion of the purchase-money. He sold the note to the complainant, who afterwards negotiated it to J. & W. M. Burr; and the note not being paid when it fell due, the complainant was duly charged as indorser thereof. A suit was afterwards brought and judgment obtained in the name of the holders of the note against the drawers in the Supreme Court; which judgment was docketed and an execution issued thereon upon the 9th of January, 1819. The complainant afterwards paid the amount to the holders of the note, and took an assignment of the judgment. In September, 1819, he caused the farm to be sold upon the execution, and obtained a conveyance of the same from the sheriff. In November, 1818, *diu’ing the pendency of the suit upon the note, the defendants therein gave to R. & L. Williams, their mother and brother, a judgment bond for $2,301 52; another to Parker and wife, their brother in law and sister, for $912 70, upon which judgments were entered up and executions immediately issued; under one of which judgments the whole real and personal property, and some promissory notes of C. & W. W. Williams were turned out to the sheriff and sold. The farm was purchased at the sale by the mother, and the personal property and notes by the brother and brother in law.
    The complainant filed his bill in this cause setting forth the above facts, and also alleging that the judgments thus confessed were fraudulent and given without consideration, and were intended to defeat the remedy upon the note; and also that the specifications filed at the time of entering up the judgments in conformity to the provisions of the act of 1818, were insufficient. He also insisted if the judgments were not invalid or fraudulent that he was entitled to a specific lien on the land, upon the ground that the notes were given for the unpaid purchase-money. The defendants in their answer denied all fraud in entering up the judgments ; and they set out the consideration upon which they were given. The consideration however thus set out varied materially from that stated in the specifications. The defendants also insisted that the complainant was not a bona fide judgment creditor or purchaser, and therefore that he was not entitled to set up the insufficiency of the specifications.
    The cause was heard upon the pleadings and proofs.

      C. Stebbins for the complainant:
    The judgments confessed by the defendants Cranston and William W. Williams to Rebecca and Lemuel Williams and to Barker and wife, were fraudulent as against the complainant. The consideration of these judgments, set forth in the answer of the defendants, varies from that stated in the specifications filed at the time of entering up the judgments. A part of the consideration was certain legacies given to the younger children by their father, and which were claimed by Rebecca Williams as their natural guardian. These legacies were charged *upon the real estate, and Rebecca Williams, neither as administratrix of her husband nor as natural guardian of the children had any right to them ; (Combs v. Jackson, 2 Wendell’s Rep. 153.) To render these judgments fraudulent as against the complainant for the purposes of relief, it is only necessary for him to show that they were given for more than was due the plaintiffs therein, and that the indebtedness is of such a nature as to render it inequitable for them to set it up against the complainant. The creditors here are family creditors, who have contributed to give a false credit to the debtors. The time at which these judgments were confessed shows that the object was to avoid the payment of the complainant’s debt. Circumstances like these have been held sufficient to invalidate a conveyance even to an innocent grantee. (Hildreth v. Sands, 2 John. Ch. R. 35.) A fair judgment if used by a debtor to affect a change of property for his own benefit is fraudulent as to other creditors; (Williams
      v. Brown, 4 John. Ch. R. 682.) The judgments under which the defendants claim are invalid for want of proper specifications under the act of 1818, p. 280; (Lawless v. Hackett, 16 John. R. 149; Brinckerhoof v. Marvin, 5 John. Ch. R. 325; James v. Johnson, 6 John. Ch. R. 433.) The complainant is a bona fide purchaser within the meaning of the act; (James v. Johnson, 6 John. Ch. R. 433; James v. Morey, in error, 2 Cowen, 290, 311.) The complainant also stands in the place of the vendor, and has as his indorsee an equitable lien upon the premises for the purchase-money, which will be enforced against the defendant Rebecca Williams ; (Hughes v. Kearney, 1 Sch. & Lef. 132; Mackreth v. Symmons, 15 Ves. 329.) It was not necessary to make either Kingsbury or the Burrs parties, they having no interest in the controversy ; (Whitney v. McKinney, 7 John. Ch. R. 144.) The lien for purchase-money will be decreed against a purchaser with notice; (Ex parte Loaring, 2 Rose’s Cas. in Bank. 79; Mackreth v. Symmons, 15 Ves. 329; Adair v. Shaw, 1 Sch. & Lef. 262; Champion v. Brown, 6 John. Ch. R. 403; Garson v. Green, 1 Id. 208.) Purchasers coming in by act of law as assignees of bankrupts a,re bound by the lien without notice. Sugden’s Law of *Vendors, 364.) So is a purchaser under a judgment; especially if he be the judgment creditor. The defendant Rebecca Williams purchased with notice.

      J. A. Spencer, for defendants :
    The answer of the defendants denies all fraud. It is in response to the bill and is uncontradicted. It being established that the judgments were valid, it is of no importance how the property was used after the sale. (Lenox v. Prout, 3 Wheat. 527; Hart v. Ten Eyck, 2 John. Ch. R. 92; Clason v. Morris, 10 John. R. 542; Woodcock v. Bennet, 1 Cowen’s Rep. 743.) The circumstances of the family were such that no visible change could take place in the use of the property. The defendants who are judgment creditors had no knowledge of the suit commenced upon the Kingsbury note; and it would be immaterial if they had, as their debt was a bona

      fide one and the debtors had a perfect right to give them a preference by confessing judgment in their favor or otherwise. (Wilder & Hastings v. Winne & Fonda, 6 Cowen, 284.) The complainant having failed to impeach the consideration of the judgments, his suit must fail, as fraud out of the case is no ground for the bill. (Lyon v. Richmond, 2 John. Ch. R. 58.) The defect in the specifications, if any, cannot be taken advantage of by the complainant, he not being either a judgment creditor or a purchaser within the meaning of the act. (Laws of N. Y. sess. 40, 1818, ch. 259, sec. 5.) He is only the assignee of a judgment creditor. The act ought not to be extended by construction. (Seaving v. Brinckerhoff, 5 John. Ch. R. 331.) The complainant cannot charge the land with the payment of Burr’s judgment on account of any lien for the amount of the note given to Kingsbury for the purchase-money. Such lien has never been enforced except against the vendee, his heirs, or a purchaser with notice. (Garson v. Green, 1 John. Ch. R. 308; Hughes v. Kearney, 1 Sch. & Lef. 132.) In this case notice is fully denied. But if there had been notice, no person but the original vendor could enforce the lien; or, at least, it must be done in his name. The omission to make Kingsbury, the vendor, a party, is a compíete waiver of the lien. The defendants *Rebecca and Lemuel Williams and Baker and wife have an equitable lien upon the land in question, upon the ground that the same was purchased with their money. (Foot v. Colvin, 3 John. R. 216.) Rebecca was entitled to the guardianship of her infant children, (Coke’s Litt. 88 b, n. 13; id. n. 16, 90, a 1; Byrne v. Van Hoesen, 5 John. R. 66;) and as such guardian, to the possession of their estate.
   The Chancellor :—The claim of the complainant for a specific lien on the premises upon the ground that his judgment was obtained- on a note given for a part of the purchase-money cannot be sustained. At the time he bought the note of Kingsbury the latter unquestionably had such a lien; but it is not pretended there was any agreement that such lien should be transferred to the complainant. If Kingsbury could be considered as still retaining any such claim after the transfer of the note, it must be on account of his liability as indorser thereof. But there is no evidence or even allegation that any steps were taken to charge him as indorser. In a recent case where the vendor had negotiated the note but was obliged to take it up himself when it fell due, Lord Eldon sustained the claim of the original vendor to a lien on the land. (Ex parte Loaring, 2 Rose’s Ca. 79.) But I am not aware of any case where the assignee of the note, or other security, has been permitted to sustain such a claim on an implied agreement to assign the lien. In the case of Mackreth v. Symmons, (15 Ves. 329,) cited by the complainant’s counsel, there was an express agreement at the time of the sale, that the purchase-money should be applied to the payment of the vendor’s debt to the third person. If Kingsbury holds any such lien as trustee for the holder of the note, he should have been a party to this suit. But I am satisfied that the sale and prosecution of the note to judgment in the name of the indorsee must be considered as a waiver of the original implied lien for the purchase-money on the land.

It is not necessary for me to examine the question whether the specifications filed are sufficient on their face to sustain the judgments, agreeably to the decision of the Supreme *Court in Lawless v. Hackett, (16 John. R. 169,) and of this court in Brinckerhoff v. Marvin, (5 John. Ch. R. 320.) I am inclined to think that most of the items in both specifications may be sufficient; but they can only be sustained by giving to them a construction which, as it now appears, is wholly fictitious and false. For instance, the largest item in the first specification is “ Sealed obligation, dated 2d April, 1816, for the third part of the real estate of Wareham Williams, deceased, of which Rebecca Williams was endowed, $1,145 50.” Perhaps this might be sufficient to give notice to all persons interested, that this note was given for the purchase-money on a sale of one-third. of that real estate by the plaintiffs in the judgment to the defendants. But understood in that way, it would be wholly false and fictitious. By the answer it appears that one of the plaintiffs in that judgment was devisee of one-third of such real estate, and one of the defendants was devisee of the other two-thirds; that they both joined in the sale, and each received their just proportion of the purchase-money; and that the note was given some years afterwards to the mother alone; and the alleged consideration thereof is goods sold and money lent at various times, which it is impossible for them now to recollect; which money and goods she had taken in payment on the sale. And the same difficulty exists with respect to almost every item in this specification. In the other specification the principal item is “ Two notes given for the principal and interest of lands sold by Anne Wood, now Anne Barker, and late Anne Williams, in the town and county of Madison; defendants had the money for which the land was sold, $846 30.” The allegation now set up in relation to this is that G-ranston Williams purchased of her about thirty-two acres for which he never paid the purchase-money ; that he afterwards sold it to Hazard and took his notes for the purchase-money, which are probably the same notes sold under the execution and purchased by L. Williams. The statute requiring these specifications to be filed, expressly declares that if the judgment is afterwards drawn in question, the plaintiff- shall be bound and concluded by the specification filed, and shall not thereafter be allowed to set up or insist *on any consideration for the judgment, not mentioned and contained in such statement and specification. (Laws of 1818, ch. 259, sec. 8.) Whatever my opinion might be as to the consideration of these judgments, which is now set up in the answer, I am satisfied the defendants cannot avail themselves of it under these specifications; and the judgments must, therefore, in the language of the statute, “be taken, deemed and adjudged fraudulent as respects any other bona fide judgment creditors.” There is no doubt the complainant is in a situation to take advantage of the statute remedy. He is a bona fide assignee of the judgment, and had an equitable interest in it for his own protection, as indorser of the note, even before that assignment. As a purchaser of the premises under the judgment, he is also entitled to all the rights which the judgment creditor could have. (Hildreth v. Sands, 2 John. Ch. R. 35.)

Independent of the constructive fraud arising from the provisions of the statute, there is strong reasons for believing these judgments were confessed and used for the express purpose of screening the whole of the defendant’s property from the operation of the judgment, which was about to be obtained on the note given by them. The judgments were given pending that suit; and by the stipulation in the case it is admitted that all parties had notice of the note, and of the pendency of the suit thereon. It is true a copy of what purported to be a further answer was-served, in which all the defendants say they had no knowledge that any such suit was pending at the time these judgments were given. If such an answer had actually been put in, it would not, under the circumstances of this case, be entitled to any credit. And from the certificates of the register and clerk, it appears that if any such further answer was sworn to by them they have not dared to put it on file. At the sale, the property was all bid in by the family; and even notes against a responsible person for $650 were turned out to the sheriff, and sold for the nominal sum of $35; and since the sale down to the time of taking the testimony in 1827, the property had remained in the hands of the original owners without any visible change in their manner of using and disposing of the same.

*There must be a decree declaring both judgments fraudulent and void as against the complainant; and the possession of the farm must be delivered up to Mm; and the defendant must execute to him a good and valid release for the same in fee, to be approved of by a master; and the defendants must also pay to the complainant his costs in this suit to be taxed.

      ] Brush v. Kinsley, 14 Ohio, 30; Brigg v. Hill, 6 How. Miss. R. 362; Bland’s Ch. R. 524.


text:
    Dustan v. Dustan and others, executors, &c.
    July 11th.
    Where a testator directed, his executor to pay one of his sons annually $200, and also one-fifth of his estate, in case of his reformation from vicious habits, it was held that the executors acted correctly in not paying over the one-fifth of the estate, until they were satisfied of the son’s complete reformation.
    And where the executors not being satisfied of such reformation, refused to pay over the one-fifth of the estate, they were allowed their costs of defending a suit commenced to compel such payment.
    Where the suit had been pending some time, and the executors in their answer expressed a desire and willingness to pay over the money under the direction of the court, it was referred to a master to inquire and report whether a permanent reformation bad taken place.
    The defendants being the executrix and executors of the will of the complainant’s father, were required by the will to pay to the complainant annually $200, and also one-fifth of the testator’s estate, in case the complainant should refrain from vicious habits, and conduct himself with sobriety and good morals. About two years after his father’s death the complainant filed his bill against his mother and the other personal representatives of his father, insisting that he had reformed, and claiming the payment of his share of the estate. The defendants had refused to pay over to the complainant his one-fifth of the estate, not being satisfied of Ms complete reformation. The cause was submitted on the pleadings and proofs.

      P. V. Remsen, for the complainant.

      W. P. Hawes, for the defendants.
   *The Chancellor :—It is admitted in this case that the complainant, at the death of his father, was irregular in his habits, and dissipated. It was undoubtedly the intention of the testator that he should not receive his share of the property until his mother and the other executors of the will were satisfied that he had permanently reformed. By their answer it appears they do not believe this is the case. The testimony which has been taken shows that he has conducted himself well, so far as the witnesses know, since his father’s death. But only a very few witnesses have been examined to this fact, and the intention of the testator would be defeated if the complainant should receive this bequest before he is so far reformed as to render it very certain he will not return to his former vicious courses. The time which had elapsed between the death of the testator and the filing the bill in this cause was not sufficient to enable the executors to form any correct opinion as to the permanency of his good conduct. They were therefore right in refusing to place the whole property in his hands at that time. As some time has elapsed since the commencement of this suit, and there is ground to believe that the complainant may have commenced a course of good conduct with a tona fide intent to entitle himself to the bounty of his father by a permanent reformation, I shall not dismiss the bill in this cause, but shall direct a reference to Benjamin Clark, a master of this court, to ascertain and report whether there has been such a permanent reformation in the character and habits of. the complainant as to entitle him to receive the whole amount bequeathed to him, at this time; and on the coming in and conformation of the master’s report, if it shall appear that such permanent reformation has taken place, that the executors be permitted to pay the whole sum to him, after deducting therefrom their costs of this suit to be taxed. And if the parties cannot agree upon the amount to which he is entitled, that there be a reference to a master to take an account and ascertain such amount. And if it shall appear by the report of the mas^er on the first reference hereby directed that such permanent reformation has not taken place, then the complainant’s bill is to be dismissed, with costs.