text:
    Covenhoven and others vs. Shuler and others.
    Where L. S. hy his will, gave to 'his wife the one third of the residue of his personal estate, after his debts and legacies were paid, and also the use of all the residue of the personal estate and the occupation and enjoyment of the farm on which the testator lived, so long as she remained his widow; and in ease of her marriage, he gave to her during life the use and occupation of one third of his real estate ; and in that event, directed that the income of the remaining two thirds should be applied to the education and maintenance of his children; and after the youngest child became of age, "he directed his executors to divide all his real and personal estate equally among his children, to have and to' hold to them and their heirs forever, and declared that he intended the bequest and devise to his wife should be in lieu of dower; the wife elected to take under the provisions in the will; it was held that the widow was entitled to the use of the whole estate during her widowhood ; that one third of the personal estate was hers absolutely, and in case she married that she would have the use .of one third of the real estate for life in lieu of dower.
    It was also held that, the children of the testator could compel the widow to account for all the personal estate, and .that their share of the same should "be invested, and the income paid to the widow during her life or widowhood, and that the principal, after her death or marriage, should be divided among them according to the provisions in the will.
    If two parts of a will are irreconcileable with each other, the last part is generally to be taken as evidence of the latest intention of the testator. But this rule is only applied to those cases where the two provisions are total* ly inconsistent with each other, and where the real intention of the testator cannot be ascertained.
    The leading principle in the construction of wills is that the intention of the testator, if not inconsistent with the rulés of law, must govern. And this intention is to be ascertained from the whole will taken together.
    And where the intention of the testator is incorrectly expressed, the court will carry it into effect by supplying the proper words.
    The words of the will may be transposed in order to make a limitation sensible „ or to effectuate the general intent of the testator.
    Where specific chattels not necessarily consumed in the use are bequeathed for life with a limitation over, the practice is to require from the first taker an inventory of the goods, specifying that they belong to him for the particular period only, and afterwards to the person in remainder. And security is not required from the first taker unless there is danger that the articles will be wasted or otherwise lost by the remainderman.
    If there is a general bequest of a residue for life with remainder oyer, although it includes articles which are consumed in the using, the whole mnst be sold and converted into money, and the proceeds invested; and the interest only is to, be paid to the legatee for life.
    If persons are made parties defendants unnecessarily, the bill will be dismiss, ed as to them with costs.
    April 6th.
    L a whence Shuler died in 1808, possessed of a farm containing about 300 acres, in fee, together with a considerable personal estate. He left by his wife Lena Shuler eleven children him surviving, to wit: Peter Shuler, Levi Shuler, Mary the wife of Jacob Serviss, Jeremiah Shuler, William Shuler, Caty the wife of Peter Covenhoven, Betsey Shuler, Sally Shuler, Abraham Shuler, Van Vleelt Shuler, and Lawrence Shuler. The youngest was then less than one year old, and became of age in December, 1828. The will of Lawrence Shuler the elder, executed in due form of law to pass real estate, was in the following words: “I will and order that all my just debts and funeral expenses be paid out of my personal estate by my executors, as soon after my decease as they find themselves enabled conveniently. to do it. Secondly, I give and bequeath unto my daughter Ann, wife of David Cady, the sum of $250, to be paid to her or her legal representatives, within one year after my decease by my executors, out of such of my personals as they may think proper to dispose of for that purpose. Thirdly, I give, devise and bequeath unto my beloved wife Lena, the one third of the residue of my personal estate, after my debts, funerai expenses, and the above legacy to my daughter Ann shall be paid off and discharged; together with the use of all'the residue of the personal estate and the occupation and enjoyment of that part of ,my real- estate whereupon I now reside, containing 300 acres more or less, just as the same is now possessed by me, so long as she remains my widow; and after her marriage, I do give the use, occupation and enjoyment of one third of said real estate to her during her natural life; at which time the income of the remaining two thirds is to be applied for the education and maintenance of such children as she has together by me; and after the youngest of the said children shall become of age, I request and order my executors to make an equal division of all my real and personal estate to be made, equally to he divided' among said children which I had by my wife Lena, to have and to hold them, their heirs and assigns forever. And I do hereby declare that the devise or bequest above made to my said wife is by me intended to be in lieu of, and an ex-tinguishment of her right and title of dower to any part of my real estate. And lastly, I do hereby nominate and appoint my son John Shuler and my brother in law George Serviss, executors of this my last will and testament,” &c. George Serviss died before the testator, and the other execuutors duly proved the will. Jeremiah Shuler died about three years after his father, unmarried and intestate. Peter Shuler, Mary the wife of J. Serviss, and William Shuler, after the death of Jeremiah and before the commencement of this suit, sold and conveyed all their interest in the estate to their mother the widow, who still remains unmarried. She elected to take the provisions made for her by the will in lieu of her dower; and the executor, after paying the funeral expenses, &c. and the legacy to Mrs. Cady, permitted her to take possession of the real and personal estate. In April, 1822, the widow leased the farm to Benjamin and Rufus Herrick for the term of five years, at the yearly rent of $200.

      In 1824, Peter Covenhoven and wife, Van Vleek Shuler and Levi Shuler, and Lawrence Shuler than an infant of the age of sixteen years, by Covenhoven as his next friend, filed their bill in this cause against Lena Shuler the widow, and B. Herrick her tenant, and John Shuler the executor ; and also against William, Betsey, Sally and Abraham Shuler, children of the decedent, who had refused to join as complainants in the suit. The bill alleged that the executor had collected and converted to his own use, or had wilfully and negligently permitted the widow to collect and convert to her use large sums of money due to the estate, and had permitted her to lay out the same in the purchase of the shares of two of the devisees and legatees, and that she had taken a conveyance of those shares in her own name; that the executor had taken no security from the widow to account for the personal estate when the youngest child came of age; that the personal responsibility of the executor had become n slender security for his liabilities as such executor; that he had large demands against him, and had threatened to put his property out of his hands for the purpose of avoiding the claims of the complainants against him. The same allegation in substance was made as to the widow. The bill also charged that the lease to Herrick was made with intent to defraud the complainants; that the complainant Lawrence Shuler had no means of maintenance and education except those provided by the will; that a suitable allowance ought to be made to him out the estate during his minority; that the executor and the widow had been requested to account to the complainant for the personal estate, and to make a suitable allowance for the maintenance óf the infant Lawrence Shuler; that they refused to account for the personal estate, and also refused to support the infant unless he should remain in the family of his mother. The bill prayed an account of the personal estate from that executor and the widow, and that the same might be secured during the minority of the youngest child, and then distributed according to the will. The bill also prayed that a receiver of the rents and profits of the real estate might be appointed, and that an allowance might be made for the maintenance and education of Lawrence Shuler out of the estate, and for general relief.
    B. Herrick put in an answer denying all fraud in taking the lease, and all knowledge or information as to any claim against the farm by the complainants ; and he insisted that he took the lease in good faith, believing that Lena Shuler had a perfect right to lease the farm for the five years. Williarrl Shuler stated in his answer that he had sold and conveyed to the defendant Lena Shuler all his interest in the estate, long before the filing of the bill; and that he believed that fact was well known to the complainants or to some of them; that he had never since claimed any interest in the estate, and he disclaims all title and interest therein. Lena Shuler by the answer admitted the facts stated in the bill, except as to her own insolvency or any fraud on her part. And she annexed to her answer an inventory of all the personal estate and effects of which her husband died possessed, with the value thereof. She also admitted that the whole, came into her possession except the amount of the $250 legacy paid to Mrs. Cady; that she had sold many articles of the personal property, and had applied the proceeds thereof to the support of her children and in making advances to them and for her own uses ; and that she was ready and willing to account for such articles at their full value. Arid she stated that she was also ready and willing to account for all the property belonging to the estate which had been received by her, and to give such security as the court should direct for the. payment to the complainants respectively of Such sums as they will be entitled to when the same shall become payable according to the will of the testator. But she insisted upon her right, to retain the articles now on hand, and to restore them in specie when the children should be entitled thereto. She also claimed in her answer the right to retain the possession and use of all the real and personal estate of her husband during her widowhood, under the provisions of the will; and that in accounting with the com- • plainants respectively, she was entitled to charge them with all monies which she had advanced for their support, maintenance and education. She further stated that she had refused to give security to the complainants because she believed they had no right to require the same; that she had also refused to advance money to Lawrence Shuler for his maintenance and education, and she insisted that she was under no legal obligation to do so, but that she had always been willing to support and maintain him, if he would submit himself to her direction and control; and that she had always been and still was desirous of educating and supporting him in the same manner as she had done the other children of the testator. The other defendants put in answers, substantially admitting the facts as was done in the answer of their mother, but without saying any thing as to the construction of the will. They admitted that they refused to become parties complainants to the suit, and insisted that they were unnecessarily made defendants. The cause was heard upon the bill and answers as against all the defendants except the executor, who did not answer.

      D. Cady, for complainants.
    The bill was filed in this suit against John Shuler, executor of the will of Lawrence Shuler, Lena Shuler and such of the children of th'e testator as refused to be complainants. The children now disclaim all interest in the controversy, and claim to have the bill dismissed with costs. The bill cannot be dismissed for this cause, because it would have been bad upon demurrer if the children had not been made defendants. It is an established rule in equity, that the rights of all the parties in interest must be settled in one suit. (Mitf. PI. 39, 144, 220.) The widow is only entitled under the will to the use of all the real and personal estate during widowhood, or until the youngest child arrives at the age of 21. The last clause of a will revokes a former one. (Ulrich v. Litchfield, 2 Atkins, 372. Paramour v. Gardley, 2 Plowd. R. 540.) Where there are inconsistent devises of real property, a joint tenancy or tenancy in common is created; otherwise as to personal property. (Westfailing v. Westfailing, 3 Atk.R. 461. 4 Cruise’s Dig. 164, tit. Devise, ch. 9, § 22.) Herrick was made a defendant in order that he might be bound by an order for the appointment of a receiver of the rents and profits of the real estate, which will be made, if-it appears that the personal estate has been wasted by the defendants Lena Shuler and John Shuler. Lena Shuler having expended the personal in the purchase of the real estate, the complainants are entitled to a recovery against the real estate. The estate be-• mg given to the widow tis a residue, the cotnplainants are' entitled to an account of the same, and can insist upon its being sold, the proceeds invested, and only the income paid to the widow. (Preston on Legacies, 95,: 96.)

      M. T. Reynolds, for the-defendants.1
    The widow is not bound to account to the complainants. They should have' called the executor to an' account. The complainants can only require security for the payment of their share of the estate when 'the same becomes due.- The widow is entitled under the will to the use of the real and personal estate during her widowhood. This was the evident intention of the testator; and this construction will give effect to the whole will. " The rules as tó a joint tenancy can only be applied , where "there is a manifest repugnancy. A receiver will not be appointed, as the' widow is 'abundantly able to respond. The children were improperly made parties, and the bill should be dismissed as against them with costs. The only object of this suit can be to obtain security from the widow, not an account. And in such a case it was not necedsary the children should be made parties; As soon as they became of age, they declared themselves opposed to this suit, Both William Shuler and Herrick were necessary parties. They are likewise entitled to have the bill dismissed as against them with costs.
   The Chancellor.

As the complainants have not given the defendants an opportunity to substantiate their answers by proof, every matter of fact stated or insisted upon therein is to be taken as true. The defendant W. L. Shuler, disclaims'jall interest in the subject matter of this suit. He says he sold and conveyed all his interest in the estate tó his mother long before the filing of the bill; and that he believes that fact was known to the complainants. They had- therefor® tío excuse for making him a party; and the bill as against him must be dismissed with costs. Herrick was also unnecessarily and improperly made a party to the suit. He was' a bona fide lessee, for a term of years which would expire before the youngest child became of age. Even upon the complainants’ construction of the will, the widow was entitled to the rents and profits of the farm until that time. And if they were entitled to a receiver of the rents and profits, to secure and apply them in aid of any deficiency of the personal estate, the tenant of the estate need not be a party to the suit. If he refused to attorn to the receiver, the latter might be directed to proceed against him in the name of the lessor to recover the rent as it became due. But there was no pretence for appointing a receiver of the income of the farm in this case during the minority of any of the .children. The bill as against Herrick, must therefore be dismissed with costs.

The defendants Betsey, Sally and Abraham Shuler, were necessary parties, if the complainants are entitled to an account or to any other relief in this case. They had a common interest with the complainants in the estate, and in the establishment and construction of the will. If the bill can be sustained even for the purpose of obtaining security, the complainants would be permitted to retain it for the purpose of having the trusts of the will carried into effect under the direction of the court. This could not be done if all the parties interested in the estate were not before the court. Whether these defendants must bear their own costs,, or whether they must be paid by the complainants, or out of the estate of the testator, are different questions.

The next question which arises in this case is, what interest in the property did the widow of the testator take under-the will? The rule contended for by the complainants’ counsel is undoubtedly correct, as stated by the master of the rolls in Sims v. Doughty, (5 Ves. 247. ) If two parts of a will are totally irreconciliable, the subsequent part is to be taken as evidence of a subsequent "intention. But this rule is only adopted from necessity, to prevent the avoiding of both pro» visions for uncertainty-. ■ It is only applied in' those- cases where the intention of the testator cannot be discovered, and where the two provisions are so totally, inconsistent that it is. impossible for them- to coincide with each other, or with the general intention of the" testator. The great and leading, principle in the construction of wills is, that the intention - of the. testator, - if not inconsistent 'with' the-rules of, law, shall govern; and that intent must be ascertained from the whole will .taken together; and no part thereof to -which meaning and operation can be given, consistent with the general intention of the testator, shall be rejected. Where the words of one part of a will áre' capable of a two fold construction that should be adopted which is most consistent with the intention of the testator, as ascertained by other provisions in- • the will. And wheré the intention of the testator is incor-' rectly expressed, the court will effectuate it "by supplying the proper words. The strict grammatical sense is not always regarded ; but the words of the will may be transposed to make a limitation sensible, or to carry into effect thé general intent of the "testator. (11 Ves. 148, 1 Paige’s R. 343.) In Jesson v. Wright, (2 Bligh’s R. 56,) Lord Redesdále, says, “It cannot at this day be argued, that" because the testator uses in one part of his will words, having a clear meaning in law, and in another' part other words inconsistent with the ' former, that the first words are to. be cancelled or overthrown.” Testing the will in this cáse by these principles, I think" the widow of the testator is entitled to the use of the whole estate during her life or widowhood. The general intent of the testator appears to have been to give one third of ’ his personal estate to his wife absolutely, and the use of one , third of his real estate for life in lieu of dower if she married ,a second time.; and to give her the use of the whole estate . for life if she remained his widow. He undoubtedly supposed if she remained single that she would support and educate her children out of the income and profits of the estate,) until they were able to provide for "themselves. There was little probability she would .do injustice to any while there were no other claims on her bounty; and at her death, he intended they should share the property" equally. It was, however, necessary to provide for, the contingency of a second marriage, when the property ‘ would be no longer under her control, but under that of her husband. The devise-to her of the use of all the residue of the personal estate and the occupation of the farm so long as she remained his widow, is clear and explicit, and is expressed in language which can bear only one construction. The subsequent clause of the will, which was intended to provide for the contingency, of a second marriage, is not so clear. The testator does not seem to have contemplated the possibility of her surviving him, , and remaining unmarried until the youngest child, then' an infant, became of age. He therefore directs tha.t after her marriage, she shall only have the use of one third of the estate ; from which time the income of the other two thirds was to be applied to the maintenance and education of the children; and that share of the estate was also in that case to be divided among the children equally, when the youngest became of age. If the last provision in the will can be considered as evidence of the final intention of the testator, a principle which I consider more fanciful than sound, it is in favor of the widow in this case; because, the last decla- ■ ration of the testator Recognizes the devise and bequest before made to his wife, and declares that the same is intended to be in lieu of, and in extinguishment of her dower. As the contingency has not yet happened which was to deprive her of the use of any part of the estate, the complainants cannot, claim a division of the property until her death or marriage. There can be no doubt of the right of the children of the testator by his wife Lena to the whole of the property, on the death of their mother, except the one third of the personals given to her absolutely. They take it by necessary impli. cation, though not by the express words of the will. Where there is a bequest for life, or other limited period with a limitation over, of specific articles, such as books, plate, &c. which are not necessarily consumed in the using, the first taker was formerly required to give security that the articles should be forth coming on the happening of the contemplated event. And the remainderman must take them in the situation in which they will'be left by the ordinary prudent use thereof by; the first'taker. (Hale v. Burrodale. 1 Eq. Ca. Abr. 361. Bracken v. Bently, 1 Rep. in Ch. 110.) The modern prac-tice in such cases is only'to require an inventory of the artic]eg) specifying that they belong the first taker for the particular period only and afterwards, to the person in remainder and security is riot .required, unless there is danger that. the articles may be wasted or otherwise lost to the remain- ■ derman. (Foley v. Burnell, 1 Bro. Ch. Ca. 279. Slanney v. Style, 3 Peere Wms, 336.) / Whether a gift for life of specific articles, as of hay, grain, &c. which must necessarily be consumed in the using, is to be considered an absolute gift of the property, or whether they must be sold and the interest or income only of the money applied to the use of the tenant for life, appears to be a question still unsettled in England. (3 Ves. 314. 3 Mer. 194.) But none of these principles, in relation to specific bequests "of' particular articles, whether capable of a separate use- for life or otherwise, are applicable to this case. .Where -there is a general bequest. of a- residue, for life with a remainder over, although it includes articles of both descriptions as well as other property, .the whole must be sold and coverted into money by the executor, and the proceeds must be invested in permanent securities, and the interest or income only is to be paid to the legatee for life. This distinction is recognized by the master of the rolls, in Randall v. Russell, (3 Her. R. 193.) He says, if such articles are included in a residuary bequest for life, then they are to be sold and the interest enjoyed by the tenant for life. This is also recognized by Roper &t Preston as a settled principle of law in England. (Prest, on Leg. 96. Roper, on Leg. 209. See also How v. Earl of Portsmouth, 7 Ves. 137, and cases in notes-Tf The case of De Witt v. Schoonmaker, (2 John. R. 243,)7seems to be in collision with this principle. But Mr.' Justice Tompkins, who delivered the opinion of the .court there, does not appear to have noticed the - distinction between the bequest of a general residue, and the bequest of specified articles. He says, however, it -was the duty of the'executors on the death of the widow,, to have paid and delivered the personal estate to the residua- '' ry legatee. If such was their duty,, they were not bound ■ to deliver the principal of the estate into her hands without requiring security that it should be preserved and paid over to the residuary legatee after her death. That case was correctly decided; for it was manifestly the intention of the testator that the property should be delivered over to the son, after the death of the widow, and that he should pay the legacy to his sister. The court presumed he had received the property agreeably to the directions of the will, and the executor’s were held not to be liable to the legatee in a court of law.

In the case before me, the widow was not entitled to the use or possession of any specific article of the personal estate ; but only to one third of the principal, and the interest or income of two thirds of the remainder, of the general residue, after the debts of the testator and the legacy to Mrs. Cady were paid or satisfied. The complainants are therefore entitled to an account of all the personal estate of the testator, in value as it existed at the death of their father ; and after deducting the legacy to Mrs. Cady and the funeral charges and the expenses of administration, their share of the balance must be invested in permanent securities, and the income thereof paid to Lena Shuler during her life or widowhood ; and the principal, after her death or marriage, must go to the complainants.

I have stated the rights of these parties in the hope that some arrangement may be made for the settlement of these family difficulties, without the necessity of any further litigation ; and I have formed no definite opinion as to the question of costs on either side. But no decree for an account can now be made, as all the proper parties are not before the court. It appears by the pleadings that the testator left other children, besides those by Lena Shuler who were the residuary devisees and legatees in remainder. Jeremiah, one of the children of Lena Shuler, died after his father; and under the pi'ovisions of the will he took a vested interest in remainder in the personal as well as the real estate. (Sturges v. Pearson, 4 Mad. Rep. 411. Benyon v. Maddison, 2 Bro. C. C. 75. Preston on Leg. 70. 1 Roper on Leg. 376. 2 Bessaus. Rep. 295.) In that share of the estate John Shuler 9.nd Mrs. -Cady, and the other, brothers arid sisters of the half blood, if there are any, are equally entitled with those of the whole blood. The cause must therefore.stand over, with leave to the complainants, or such of them as have not released their interest to their mother, to file a supplemental bill for..the purpose of bringing the personal representative of 'Jeremiah .Shuler before the court,'or such other persons entitled to a 'distributive share of his estate as are not now •’ parties. . Those who have conveyed all their interest in the real and personal estate to their mother,, since the death of Jeremiah; have no interest in the ■ account to be taken, and need not be parties.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Burrall vs. Jewett.
    If the specification annexed to a patent is, sufficiently explicit to enable a skilful mechanist without any other aid to construct the patent inveri"tion the patent will not be void although .some of. the minor details of the machine should not be set forth at-large.
    1 But the patent is void if the machine will not answer the purpose for which it was intended without some addition, adjustment or alteration which had not been discovered or invented at the time the patent was issued.
    Where a patent is granted for an improvement in machinery, a^drawing of • the improvement as well as a specification is required.
    The drawing may be , referred to for the purpose of aiding a - specification, which otherwise-would he imperfect.
    It may also be referred to as evidence to show that' the machine claimed under the patent is not the one for which the patent issued.
    The circuit court of the United States alone has jurisdiction of suits to recover damages for the infringement of patent rights.
    The judicial power of the U. States extends to'all cases arrising under the constitution and laws'of the general government;-but the federal courts • can only exercise judicial power in cases in which it has been delegated to them by the laws of congress. . ' ■
    The act of the 15th of February, 1819, extended the jurisdiction of the cir- . cuit courts of the United States to suits both at law and in equity arising under the patent laws; but it does not render the jurisdiction of those' courts exclusive in such cases. ■
    Where an assignee of a patent right sold the same, and at the time of the sale exhibited a machine as the-one which he then supposed to have been patented, but which afterwards was discovered to be dififerent from the one actually patented, as described in the specification, the defed of assignment and a note'given for the purchase money, and an accompanying-agreement in relation to the sale of the .patent right, were ordered'to be delivered up and cancelled; the whole transaction having been founded upon a mistake as to a matter of fact. It was also held that the vendee was not entitled to the damages which ho had sustained in consequence of such purchase; but that if any part of the purchase money had been paid, he would have been entitled to have the same refunded.
    April 6th.
    The bill in this cause was filed in 1826. It stated, among other things, that in March, 1823, the defendant, for the consideration of $500, sold to the complainant the exclusive right and liberty of making, using and vending “ Ballou’s patent improved threshing and winnowing machine,” for the counties of Ontario and Yates; and that the defendant in the assignment covenanted that he had authority to convey such exclusive right; and warranted the same right to the complainant, his heirs and assigns, for the term of 14 years from the date of the patent, which was granted to Seth Ballou in December, 1821. The bill further stated that by a further agreement made at the time of the sale, the complainant was to hold one half of the right for his own use and profit, and one half for the use and profit of the defendant; for which the complainant was to account to him, reserving 25 per cent, of the profits for his services ; that at the time of the sale and agreement the defendant had in his possession and exhibited a machine, which he alleged was constructed according to the specification in Seth Ballou’s patent, and was a model by which the machine sold could - be made; that relying upon the truth of the defendant’s representation, he (the complainant) was induced to make the purchase and agreement; and he thereupon gave his note to the defendant for the consideration money, payable in five years with interest annually from the 1st of August, 1823. The bill further stated that the complainant, after such purchase, discovered that the representations made by the defendant in relation to the machine were false and- deceptive; and the complainant charged in his said bill that the same were made with the intention of deceiving and defrauding him; that he procured from the city of Washington an exemplification of the specification annexed to Seth Ballou’s patent, and ascertained that the machine exhibited and sold ’ to him by the defendant as Ballou’s patented machine, was entirely different in construction and operation from the one which was patented to Ballou, as described in the said specification ; that he .(the complainant)' purchased the right and made .the agreement under' the full belief that he was acquiring the exclusive right to make, use and vend a'valuable and patented improvement in the machine for threshing, &c. and with the expectation of" profits which would arise from the' re-sale .of the -right to make and úse the same. ' The ■ complainant also charged in ,his bill that the defendant at the time of the sale had in his possession a copy of the.specification of Ballou’s patent, and knew 'that it did .not describe "a valuable, improvement, and knew that the machine exhibited to the complainant was not constructed, according to, nor • protected by the said specification and patent; that the complainant, before he. ascertained the machine was not covered by the patent and specification,, had expended money, time and labor in preparing materials and making machines which he. was obliged afterwards to sell at cost, without 'receiving ¿ny compensation for his ^ labor and. services. The bill further stated that the' "defendant had been requested to deliver up the note .and agreement to be cancelled, and to account with the complainant for his damages; which was the particular prayer of the bill. "The bill also, contained a prayer for general relief., •. .
    -The defendant in his answer admitted the sale and agreement as mentioned in the bill. " He all' stated that in October, 1822, P. Garcelon, the assignee of Ballou’s patent, came to his residence in Saratoga county and exhibited a model of the machine, and' offered the same for sale; and that he constructed a machine after such model, which the defendant considered a valuable improvement; that he, the defendant, thereupon purchased, of Garcelon the right, for the . counties in the eastern and western senatorial 'districts, excepting- three- .or four counties in the then eastern district;that he, the defendant, after such purchase, constructed two machines similar to the one made by Garcelon, and agreeably to the directions given by him.; -one of which was the machine shown to the complainant, and which the complainant saw several times in operation, ■ But the defendant denied that he represented to the complainant that the machine was constructed according to the specification and description of Ballou’s patent improved threshing and winnowing machine; that he had with him Garcelon’s printed directions for constructing the machines, by which he told the complainant the machine there exhibited had been constructed ; which printed directions he, the defendant, left with the complainant. The defendant further stated in his answer, that he had not at that time seen the specification upon which the patent issued, nor did he then inform the complainant that he had such specification; that Garcelon did not exhibit the specification at the time the defendant purchased from him, but he promised to send to the defendant a copy of the same, which he had never done. The defendant denied that he represented to the complainant that the machine was an original invention, although he at the time thought and still believed it was so, and he also believed that the patent was good and valid. That he, the defendant, exhibited to and left with the complainant a printed copy of the patent without the specification, and gave to him all the information he possessed in relation to the machine and the right to the same ; but the defendant denied that he made any misrepresentation to the complainant, or that he intentionally concealed any thing from him in relation thereto. And the defendant in his answer insisted that the machine exhibited to the complainant was covered and protected by the patent; and that the complainant by his purchase acquired the exclusive right to make, vend and use the same for the counties of Ontario and Yates. The defendant also stated in his answer that he had understood and believed that the complainanthad, from the machine sold to him by the defendant, constructed a machine for threshing and cleaning clover seed, which was an infringement of Ballou’s patent; that the complainant had obtained a patent for such clover machine, and had made considerable profit by the sale of the right to the same ; and that the complainant was attempting to invalidate the patent for the threshing machine, to prevent its being brought in collision with his clover machine. The defendant also insisted that the matters of the complainant’s bill were not such as entitled him to any relief in this court; and he prayed for the benefit of the objection in like manner as if he had demurred to the bill or pleaded the" said matter in bar of the suit. A general replication was filed to the answer of the defendant, and several witnesses were examined on both sides. The cause was "heard upon pleadings and proofs. . ■

      B. F. Butler fy C. . Butler, for the complainant.
    The complainant w;as fraudulently drawn into the contract which he now seeks to ■ avoid. The defendant soon after the sale) if not before, knew that-the' patent and specification did not cover the" machine exhibited. If there was no intentional deception on the part of the defendant!1 yet the sale is void because the machiné' sold was not patented. Although the complainant might have sued at law for the breach of the contract, yet he is liable to a suit on the note ; and there being-either fraud or mistake in -this case, he may apply in the first instance in equity to have the contract,' note, "and agreement set aside. Notwithstanding" the validity "of -patents }s only triable in the federal courts, yet" this court- has jurisdiction in cases of fraud for" selling, for any particular district, a machine as patented which is not so. The complainant is entitled to the relief ¡specifically prayed for in his bill, and which can only be granted by a court of equity; that is, to have the whole transaction set aside, and to recover all the damages sustained by . him in consequence thereof. The counsel cited 1 Mad, Ch. Rep. 262; Rosevelt v. Fulton, (2 Cowen’s. R. 132;) Bacon v. Bronson, (7 John. Ch. R. 200;) Rathbone v. Warren, (10 John. R. 587;) King v. Baldwin, 17 id. 384 ;) Langdon v. Degroot, (1 Paine’s R. 203 ;) Lowell v. Lewis, (1 Mason’s Rep. 182;) Barrett v. Stearns, (1 id. 447;) Woodcock v. Parker, (1 Galhson’s Rep. 439;) Whittemore v. Cuttler, (1 id. 478;) Ordion v. Winkley, (2 id. 51;) Evans v. Evans, (1 Peter’s C. C. R. 323 ; 3 Wheaton’s R. 354, S. C.;) Sullivan v. Redfield, (1 Paine’s Rep. 451;) Fessenden on Patents; 130, 178; Gray v. James, 1 Peter’s C. C. Rep. 394;). Hayne v. Maltby, (3 T. R. 438 ;) Bellas v. Hays, (5 Serg. & Rawle, 427 ;) Tylers. Tuel, (6 Cranch’s Rep. 324 ;) Fessenden on Patents, 233 ; Whittemore v. Cutler, (1 Gallison’s Rep. 429;) Parsons v. Barnard, (7 John. R. 144.)

      H. Bleecker <£ J. Thompson, for the defendant.
    The specification upon which the patent was issued is sufficient. If not sufficient, it is manifest that the deficit did not proceed from any intention to deceive the public, and therefore does not avoid the patent. The defendant, is entirely innocent of the charge of fraud. He communicated to the complainant every thing he knew about the patent. The purchase of the patent right by the complainant has been or might have been valuable to him ; and his remedy, if any, is at law. This court cannot interfere. The patent has not been avoided according to the laws of the United States. Until this is done, a want of consideration cannot be shewn by the complainant. This court cannot try ,the validity of a patent. The counsel cited Fessenden’s Law of patents, 174; 306, 317, 346, 370, 386 ; 388, 2d ed. ; Sullivan v. Redfield, (I Paine’s R. 450;) Whittemore v. Cutler, (1 Gallison’s R. 429;) Lowell v. Lewis, (1 Mason’s R. 189 ;) Collection of Patent Cases, 307 ; Chesterman v. Gardner, (5 John. Ch. R. 32 ;) Kemp shall v. Stone, (5 id. 193 ;) Abbot v. Aliené 2 id. 519 i) Hatch v. Caleb, (4 id. 559;) Parsons v. Barnard, (7 John. R. 144.)
   The Chancellor.

This suit cannot be sustained on the ground assumed in the first point of the complainant. The charge of fraudulent misrepresentation and concealment is fully denied in the answer; and there is nothing in the proofs in the case to induce the court to believe the answer in this respect is not strictly true. The testimony of Jones is calculated to support this part of the answer rather than to impeach it. The rights were sold early in the spring, and some time in the summer thereafter the defendant showed the specification he had subsequently obtained from Washington to Jones, who then explained to him the defects therein. This appears to have been the first intimation or suspicion Jewett had that the machines made and exhibited by him did not agree therewith. Jones says the defendant finally assented to the correctness of his assertions, that the machine was not constructed according to that specification ; but requested him not to mention it to the complainant. This concealment óf a fact discovered long after the agreement and sale, could -not make the original transaction fraudulent. If the patent is invalid for want of a proper specification, I am satisfied the defendant did not suspect it at the time of the sale. I shall therefore proceed to examine whether the machine "which both parties supposed was patented to Ballou, was in fact covered and protected from infringement under the patent of December, 1821 ; and if it is not thus covered and protected, whether the complainant is entitled to the specific relief prayed for in his bill, or to any other relief .in this court against the defendant. ■ ■

On looking into this case, soon, after the argument, I became satisfied it was important to a correct understanding of ' the subject that the court should be furnished with copies of the patent, and of-the petition, specification and drawings upon which the same was granted. ' I therefore suspended the. decision of the cause for thirty days, to "give either party that might think proper to do so, an opportunity to procure the exemplifications from the patent office, and to file them with the register. And I-also gave-permission to either party, after those exemplifications were produced, to apply for the further examination of. witnesses, in connexion with the ex-, emplifications, -if the should think it necessary. The exemplifications were accordingly produced by the defendant, • and neither party has asked for leave to take any further testimony. And it is probable no testimony could have been produced which would have altered the result, The whole of the petition is recited' in the patent ;■ and the drawing corresponds with the specification which was exhibited to the witnesses on their examination.

The petition stated that Seth Ballou of Livermore, in the county of Oxford and state of Maine, the petitioner, had in-vented, constructed and applied to use a new and useful" improvement in threshing, sifting and winnowing wheat,.rye, . oats, and all "kinds of small grain ; also grass, flax, and all othér articles from which the seed might be obtained by threshing by machinery, at one operation; the machine being called Ballou’s threshing machine, constructed agreeably to the accompanying specification. In -the specification, that part of the machine which is the subject of controversy is thus' described: “ Upon a frame fitted for supporting the machine, there is a large wheel, of any convenient dimensions, say 4 i feet diameter, to the centre of which a crank is affixed for the purpose of turning it by hand. A band passes around this wheel, and also around a whurr or small wheel, say 8 inches in diameter, which is affixed to a large cylinder, say 2 feet in diameter and 2 feet 8 inches in length, or it may be larger or smaller according to the dimensions of the whole machine. This band is to give motion to the cylinder. In this cylinder are put four or any convenient number of rows of cogs, equally distant from each other.’ The cogs in each row occupy one half the space in the length of the cylinder ; that is, a space is left between each, equal to that occupied by a cog. These cogs are an inch and an half in diameter and two inches in length, or they may be larger or smaller with equal effect. Care however must be taken to place those of the second row so as to .follow the spaces in the first row ; and in the same manner All the other rows, be they more or less. The office of these cogs is to beat the grain from the straw.. Directly over this cylinder, dr, which-is preferred, about eight inches upon the surface from the top, down the side of the cylinder, a hopper or feeder is placed within a short distance, say half an inch, of the cogs, with a narrow opening at the bottom sufficient for the admission to the cylinder of the article to be threshed ; which opening may be gauged to any convenient space. Around the under half and fore part of the cylinder there is a casting which is called the barrel, placed within half an inch of the cogs. Immediately in rear of the cylinder are flyers, .constructed as follows,” &c. The manner in which the operation is performed is thus described in the specifiation : “ The ma- - chine being put- in motion, the grain or substance to' be threshed is .to be put into the hopper or feeder, and immediately comes in contact with the cogged cylinder, and is thus thoroughly and completely beaten from the straw. The: whole passes under the' cylinder, is. then taken by the flyers and thrown back upon the sieve, through which the grain passes,” &c." • . . .

- , At the time Of.the sale to the defendant, by Garcelon, and of the sale by the'former, to the compainant, printed copies, of the original patent, without the specification, were exhibited;' . at the bottom of which was also printed, “ For the schedule ' and improvement, see machine and directions.” The printed directions, which were also produced and shewn at the same time, .corresponded with the machines then exhibited. The cylinder and apron or barrel were-constructed thus ■: In the cylinder there were six rows of teeth projecting nearly two inches. therefrom, and, so set that ■ the teeth in every row would, irn.the revolutions of the cylinder, .follow some of those in the first row and pass between corresponding teeth placed in the apron or, barrel; so that in passing between each other, the-teeth in the revolving cylinder and.thosé in the apron - or barrel were three sixteenths of an inch ápart. On the part of the defendant, it is insisted that this is the manner in which the machine is to be, constructed by. the specification, and' that- every alternate row of cogs should be inserted in the apron or barrel; and some witnesses have been made to say this is the way a skilful machanic would make the machine from the specification. It is undoubtedly a correct rule in re-, lation to patents that if the specification is sufficiently explicit in its details to enable /a skilful mechanist to construct the patented improvement or invention, without any other aid, it i§ not to be considered void because some- of the minor details of the machine are npt set forth at large. As in the case, the revolving cylinder is to be put in motion-by means, • of a whurr on one end of the gudgeon, and by a large wheel turned with a crank. If the patentee, through inadvertence, - and without- any intention to deceive the public, had neglected. to mention that a band was to pass around the whurr and the large wheel, the specification would have been sufficient; that being the common and well known mode of performing the operation,. which ahy. person acquainted with machinery would at once supply. (Gray v. James, 1 Peters’ C. C. R. 394. Crossley v. Beverly, 3 Car. & Payne, 513.) But the patent is void if the machine-will not answer the purpose for which it was intended, without some addition, adjustment, or alteration, which the mechanic who is to construct it must introduce of his own invention; and which had not been discovered or invented by the patentee at the time his patent was issued. •

In this case, there is sufficient evidence that the placing of cogs or teeth in the apron or barrel, in addition to those in the revolving cylinder, was in use at the time the defendant purchased of Gracelqn, and previous thereto. But there is no evidence that the patentee had made that improvement, or discovery at the time his patent issued.

The patent law of the United States' requires a drawing "as well as a specification in cases of machinery; and the drawing may be referred to for the purpose of aiding a specification which would otherwise be imperfect. (Bloxam v. Elsee, 1 Car. & Payne’s Rep. 558. Earle v. Sawyer, 4 Mason’s R. 1.) As the drawings may be referred to for the purpose of aiding the written specification, to support the patent, it seems to follow that it may be resorted to by the adverse party to explain any thing which is doubtful or ambiguous in the written description; or for the purpose of shewing that the machine in question is not the same as that for which the patent was obtained. The written description says that, in the cylinder, there are to be put four or any convenient number of cogs, equally distant from each other, and in size equal to the distance between them. Nothing is said of any cogs or teeth in the barrel or apron.. But it is contended on the part of the defendant that each alternate row of cogs is to be inserted there, as the machine 'would be useless without them. On examination of the" drawing, there are two rows of cogs exhibited on the cylinder, so placed as to require two more rows thereon to -make- them equidistant, as stated in the specification; and there is nothing in the - drawing to show that any corresponding cogs or teeth are to be inserted in the barrel. Indeed, if the cogs in the cylinder are inserted as directed in the - specification it would be impossible for it to revolve on its axis if similar cogs were also inserted in the barrel. The spaces between the cogs being equal to the size, of a cog,- and those of the second row being placed so as to fill the spaces between those in the first, would occupy the whole length of the cylinder, and would necessarily strike against and be stopped by the cogs inserted in the barrel.. If the witnesses could make a valuable - threshing machine from this specification,- similar to the one actually sold, it must be by their own ingenuity and invention; and by going diredtly contrary to the directions therein" contained. . The court cannot be governed by the opinions of witnesses, however intelligent and respectible they may be, when those opinions are contradicted by the facts which are indisputable. I ani therefore compelled to decide that the machine sold by pracelon to the defendant, and by the latter to Bürrall, is not the same machine described in the petition and other papers On which the patent to Ballou was granted. It is satisfactory also for me to know that the conclusion at which I have arrived cor-r responds with the'decisión which my learned predecessor was, prepared to make, if the parties had consented to have that decision entered nunc pro tunc after he had resigned the office of chancellor. There is no evidence1 from which I have been able to form a satisfactory opinion whether the machine, in its present perfect' and useful form, was the one for which the patent was intended tobé taken out. But- as it differs so materially from the specification and drawings, which hardly could have been- the effect of accident, and from the expression at-the foot of the printed copy of the patent, “ For the schedule and improvement,, see.machine,” I am inclined to the opinion that the insertion of teeth in both' the barrel and cylinder, instead Of cogs in the'la.tter. only, was an improvement upon the original machine, made after the papers were prepared, in Séptember, 1821: If such was the Case, this important and valuable improvement of the original machine- should have ■ been secured by a new patent- for the same. In' the absence of that, there is no evidence that the patentee was the original inventor of that improvement. Hi's . oath only extends - to the ■ machine described in his specification and drawings, - '' , z

Much was said on the argument to show that Burralfs clover machine did not vary in principle from the machiné - purchased of Jewett, which was also intended to be used for the same purpose. But is not necessary for the decision of this cause to enquire as to the validity of Burrall’s patent. If his machine does not differ in principle from the other, but merely in its proportions, the patent is void. If he has made a material and useful improvement on the original machine, he is entitled to a patent for that improvement only. He has no right to use an original patented machine in connexion with such improvements, without the consent of the owner.

An objection has been made to the jurisdiction of this court on the ground that the federal courts alone have the power to pronounce upon the validity of a patent. Where a suit is brought to recover damages for the infringement of a patent right, the defendant is entitled to set up the invalidity of the patent as a defence to the action; and if he succeeds in establishing such defence, the court is to give judgment for the defendant, and to declare the patent void. An action of this description must therefore be brought in the circuit court of the United States, which alone has jurisdiction to give the proper remedy to either party. (7 John. R. 144.) The fifth section of the patent law of 1793 authorized the action for damages for the infringement of a patent to be brought in the circuit courts of the United States, or in any other court having competent jurisdiction. This, however, was found to be inconsistent with the power to declare the patent void conferred by the sixth section ; and in the act of April, 1800, the fifth section of the former law was repealed and another one substituted, giving jurisdiction in such a case to the circuit court only. (Laws of United States, vol. 5, p. 88, § 3.)

The judicial power of the United States extends to all cases arising under the constitution and laws of the union; but the federal courts cannot exercise that judicial power except in those cases where it has been delegated to them by congress. (1 Paine, 45.) The act of the 15th February, 1819, extended the jurisdiction of the circuit courts of the United States to suits both at law and in equity arising under the patent laws ; but there is nothing in that act which, either in terms or by necessary implication, renders that jurisdiction exclusive. Under the judiciary act of 1789, where it was intended to give exclusive jurisdiction to the federal courts, it is so stated in express terms. ■ - .

The remaining question is, to what relief is th e complainant entitled on the facts disclosed in the pleadings and proofs ? No recovery can be had upon the warranty contained in the deed of assignment of the 10th of March, 1823. That was an assignment of the machine patented to Seth Ballou in December, 1821. The right to that machine actually passed by the assignment, and was protected by the patent. But it was materially different from the machine exhibited, which both parties then supposed was patented, which was the real object of sale and purchase. The real subject of sale is not warranted by that deed, and no recovery can be had thereon for the defect of title to the patent right intended to be sold and conveyed thereby. In Bliss v. Negus, (8 Mass. R. 46,) a promissory note had been given upon an assignment from á prior assignee of certain rights in a patent. . Upon the trial, it appeared that the original patent was void ; but there was no evidence that the plaintiff was acqdainted with the fact at the time he sold to the defendant. As the plaintiff lost nothing and the defendant acquired nothing by the deed of assignment, thé note in that case was held to be without consideration and void.' The same principle is recognized in Hayne v. Maltby, (3 T. R. 438,) and in Ballas v. Hayes, 3 Serg. & Rawle, 427.) • In this case, the other agreement made at the timé of/the sale must be considered as part of the same contract; and the whole being founded on a mistake as to matter of fact, it would be unjust and inequitable to compel the complainant to carry the contract into effect. The note, deed of assignment, and the accompanying agreement in relation to the sale of patent rights, must be . delivered úp and cancelled. But the complainant is not entitled to recover ány damage Which he may have sustained in making mdchines. All the witnesses agree that the machine was valuable in itself. Independent of any exclusive right, with ordinary "care and diligence it would sell to farmers for " enough to pay the' expenses of constructing it; together with a reasonable profit to the mechanist. The only loss, from the mistake of the parties as to the real state of the case, therefore appears to be the increased price which might have been expected as a compensation for the supposed exclusive right. Even if actual damage has been sustained, I know of no principle of law which can authorize one party to recover damage from another, in such a case, where neither was guilty of any fraud. If Jewett had been benefitted, or had received any thing under the agreement, there might be some ground for calling upon him to refund what he had received.

If the complainant, after he had discovered the difference between the specification and the machine purchased by him, had simply asked for a return of the note and to have the agreement cancelled, and had confined himself to that in his bill, I should have been disposed to charge the defendant with costs. But he asked for more than he was entitled to ; and by his bill in this cause has endeavored to sustain the whole of that claim by charging the defendant with a fraudulent misrepresentation and concealment. In that part of the suit he has entirely failed. I therefore think it a case in which, upon the principles of equity, each party should bear his own costs.


text:
    Scribner vs. Crane and others.
    N o person should subscribe his name as a witness to a will until he is clearly satisfied that the testator is possessed of a sound and disposing mind and memory ; and that in executing his will he acts understandingly, and with a full knowledge of its contents.
    April 6th.
    This was an appeal from the sentence of the surrogate of the county of Westchester. The appellant propounded a testamentary paper as the last will and testament of Martha Williams deceased, in which he was named as executor. The whole case turned upon the question of fact whether the decedent executed the will understandingly, and at a time when she was possessed of a sound and disposing mind and memory. Many witnesses were examined, and the surrogate pronounced against the validity of the will. From that decision the executor appealed to the chancellor.
    (See 1 Paige’s Rep. 550, S. C.)

      A. Ward, for the appellant,
    cited 1 Swinburne, 127, (note: ) Clark v. Fisher, (1 Paige’s R. 171 ;) Starkie on Ev. 1707, note 1 ;) Swinburne pt. 2, sec. 5 ; Vanalst v. Hunter, ( 5 John. Ch. R. 158 ;) 5 id. 161 ; 1 Swinb. 122, 126, 127, note, 133, 187, 8 ; 5 John. Ch. R. 154; Starkie on Ev. 1705.

      J. Smith, for respondents,
    cited Vanalst v. Hunter, ( 5 John. Ch. R. 158 ;) Clark v. Fisher, (1 Paige’s R. 176 ;) Collinson on Lunacy, 58, 611, note, 616, 618 ; Swinb. 889 ; 1 id. 118, notes; Swinb. 26. note; Pothier on Obligations, 125 and 220.
   The Chancellor.

I think the weight of evidence in this case is decidedly against the capacity of the testatrix to make a will at the time her mark was made to the instrment propounded by the appellant. Independent of that testimony there is no sufficient evidence of the due execution of the instrument. The .paper propounded appears to have been drawn by the executor, who was attending physician of the decedent, and at the house of the principal legatee named in the will. The apellant is one of the subscribing witnesses, and Haff and Losee are the others. The two latter alone were examined. All 'they knew in respect it is that they were called in by the appellant, and found the old lady, then nearly 90 years of age, lying on the bed helpless. A paper was produced, said to be her will. Scribner put a peri into her hand and guided the hand to make her mark to the paper, and then subscribed his own name as a witness; after which Haff and Losee subscribed theirs. One of the witnesses says that the decedent acknowledged the will; the othnesses says that the decedent acknowledged the will; the other says she merely nodded assent as she lay in her bed. The will was not read to her in the presence of either of these witnesses, and nothing was1 said as to the contents thereof. One witness says no conversation was had with her to ascertain the state of her mind; that she was in the lowest state of life and human existence, and that she did not articulate any expression which he distinctly understood. The other witness says he has no doubt of the soundness of her mind, "because he asked her ho.w she did, and she said she was very weak and distressed.

It is pretty evident that neither of these two witnesses had sufficient evidence of the mental capacity of the decedent, or that she knew what she was doing, to justify them in putting their names to this paper as witnesses. They both swear they relied partially, if not entirely, on the declarations of Scribner as to her. capacity. They probably had no intention of doing any thing wrong, but it was in fact a fraud upon those whose rights are affected thereby to place their names to a testamentary paper under such circumstances. No person is justified in putting his name as a subscribing witness to a will unless he knows from the testator himself that he understands what he is doing. The witness should also be satisfied, from his own knowledge of the state of the testator’s mental capacity, that he is of sound and disposing mind and memory. By placing his "name to the instrument, the witness, in effect, certifies to his knowledge' of the mental capacity of the testator; and that the will was executed by him freely and understanding^, with a full knowledge of its contents. Such is the legal effect of the signature of the witness when he is dead, or is out of the jurisdiction of the court. Neither of these witnesses had sufficient knowledge on the subject to give legal evidence of the due execution of his will. The surrogate was therefore perfectly right in pronouncing for an intestacy; and his sentence and decree must be affirmed with costs.

The respondents may have execution for their costs on the appeal out of this court. But a certificate of the decree of affirmance must be sent to the surrogate, so that he can proceed and grant administration of the decedent’s property and effects to such person as may be entitled to the same.


author: The Chancellor.,

text:
    Decker and Tyson vs. Mller.
    An executor who is a debtor to the estate is chargeable with the amount of the debt due by him, as assets in his hands for the payment of the debts of the testator.
    An executor is entitled, out of the assets in his hands, to retain a debt duo him by the testator, in preference to other creditors of the same degree.
    He is also entitled to the same preference in applying the assets in the hands of his co.executor to the satisfaction of his debt.

      April 6th.
    An executor who is indebted to the estate may refuse to pay, out of such debt, a demand claimed against the estate by his co-executor,¡until he is satisfied that the other assets are insufficient to discharge such demand of his co-executor.
    Where such executor has a right to ask the aid and protéctión of, the court . in paying over the debt due by him to -the testator, he will be entitled to his ■ costs out of the fund. ' ,
    So if the executor who was the creditor of the estate had a right of preference, 'over other creditors, and was compelled to come into chancery to obtain such preference, his costs will be paid out of the fund.
    This was a bill filed by two of the executors of Abraham Egbert against their co-exedutor, to compel the payment of two bonds given by the-defendant to the" testator ; which payment the complainants alleged was necessary to satisfy the debts of the testator, and, particularly a bond given to Decker; one of the complainants, as to which Decker claimed .a priority of .payment. The cause was heard on pleadings and proofs before Chancellor Jones, who directed, an account of the debts-, credits and ■ effects of the testator to be taken; .the particulars of which' decree' are stated in the opinion of the present chancellor. The cause now came on again to be heard, on the master’s report and upon the equity . reserved.

      J. Radcliff, for the complainants.

      \

      J. Wallis, for the defendant.
   The Chancellor.,

It appears from the papers before me, and from the opinion of.the late chancellor; that much discord, and contention has existed between the'executors in reía-' tion to the settlement of this estate. It is not necessary now tó inquire which of the parties is most to blame in relation to those difficulties, as the decision of the late chancellor-makes it proper, that the costs of both parties should be paid out of the estate. The complainant Decker was a bond creditor of the estate ;• and' the testator was also indebted to other creditors by specialty. Miller, one of the co-execu-' ■ tors, was -indebted to the estate, and of course had assets in-his hands for the payment of debts. The late chancellor decided that one-of the bond'debts claimed against Miller was not due. from hirti, ánd that the other was assets in his hands for the payment' of debts; that Decker was entitled as executor to retain his debt in preference to the other specialty creditors of the testator; and that he was entitled to have the assets in the defendant’s hands applied to satisfy such retainer for his own debt. He also decided that the defendant was not bound to pay over those assets to his co-executor, unless he was satisfied the same were required to pay the debt due to him; and that the differences subsisting between these executors, and the causes which the co-executors had given for dissatisfaction, were grounds for the defendant to require the direction and protection of this court in the discharge of his duty as executor.

If the defendant had a right to have the aid and protection of this court to enable him to pay over this debt with safety it is a matter of course to allow him his costs out of the fund. As Decker had a right of preference, and was compelled to come here to obtain it, his'costs must also be paid. Tyson, was a necessary party to the suit; and the costs have been diminished rather than increased by making him a complainant instead of a defendant. In this case I think he might be brought before the court either as complainant or defendant. And the late chancellor has in effect so decided, by refusing to dismiss the bill.

I find some difficulty in ascertaining precisely what the rights of the parties are, in relation to the fund, from the incorrect manner in which the report has been made. The master was directed to take the accounts of the estate; but instead of doing that, and ascertaining what was due to and from each executor, he has simply reported a statement of facts which were not called for by the order of reference; and which are not sufficient to enable the court to see what is right between the parties without looking beyond’the report. The parties should have excepted to the report, or have applied for a special order directing the master to execute the decree of reference, and to state the accounts as directed by that decree. In the situation in which the cause comes before me, I can only settle the principles on which the account should be stated, leaving the parties to settle the several amounts and insert them in the decree, if they can ascertain them by computation from the facts stated and admitted by the pleadings and in the master’s report.

The amount of property bid off by Corson should have been applied to the satisfaction of Decker’s bond, as the legacy could not be paid till all the debts were satisfied; and the same principle applies to the property which the widow was permitted to take. All the executors appear to have been in the wrong in relation to these sums, and each must be charged with one third of the loss, and with interest from the time of the sale. They must also be charged with the sums received by them respectively from other sources, and for the property bid in by them at the sale, and with interest thereon. They must also be allowed for all sums paid out in a due course of administration, with interest and commissions. And the defendant Miller must be charged the amount of his bond, and interest thereon until the tithe when the money was paid into court; and Decker must be credited the amount of his bond and interest. When the balance due to or from each is ascertained, Miller must pay the balance of any which is due from him, after deducting his costs ; and if he has overpaid, he must be allowed the amount out of the fund in court. The balance due from Tyson must be applied in satisfaction of the complainant’s costs, and the residue of those costs, together with the balance due to Decker, must be paid out of the fund in court; and if any more of that fund remains, it must be paid to the other bond creditors rateably.

If the parties cannot ascertain these amounts, it must be referred to master B. Clark to state the accounts, upon the pleadings and proofs and -the evidence taken before the former master. ■ But in that case neither party is to be at liberty to charge the costs of this new reference against the estate, as they should have had the accounts taken correctly in the first instance.


author: The Chncellor.

text:
    Loomis and Hayden vs. Spencer and Rolph.
    Courts never enforce executory contracts against infants or lunatics, except such contracts as aro for necessaries furnished.
    But where an infant or lunatic has received the benefit of property sold to him in good faith, by a party who had no knowledge of his incapacity to contract, and where no advantage has been taken of his situation, a court of equity will not interfere to set aside the contract.
    Where the creditor of a lunatic on the sale of property to the latter in good faith has obtained a legal security, the court of chancery will not deprive him of such security without restoring to him so much as the estate of the lunatic has been actually benefitted by the sale:
    April 6th.
    The bill in this cause was filed in 1818, by Hayden, as the committee of Loomis who had been found a lunatic, to set aside a judgment in favor of Spencer against Loomis and - J. 0. Rolph, entered upon a bond a warrant of attorney alleged to have been executed while Loomis was of unsound mind. The cause was heard before Chancellor Sanford, and he awarded an issue to try the question of lunacy. The issue was tried before Judge Betts, in 1825, and the jury found that Loomis was a lunatic at the time the bond and warrant of attorney were given, and at the time the debt was contracted which formed the consideration thereof. The cause was then heard before the late Chancellor Jones, who decreed a perpetual injunction against proceeding on the judgment or upon the execution issued thereon, so far as the same related to Loomis. A rehearing having been granted, the cause was again heard before the present chancellor.

      A. Van Vechten, for complainant.
    The bill in this cause was filed for a perpetual injunction against the judgment and execution, so far as the same relates to Loomis, upon the ground that he was a lunatic at the time the goods were contracted for, and that he so continued until the giving of the bond and warrant, and the entering up of judgment thereon.
    It is a settled elementary principle both of law and equity, that a lunatic is incapable, per se, of making a valid contract, because he lacks that intelligence and discretion which are necessary to give validity to a contract. He is therefore not held legally responsible for his acts. (Addison v. Mascall, 2 Vern. 678. Robert’s case, 3 Atk. 312. 2 Mad. Ch. 593.)
    The case of Niel v. Morley, (9 Ves. jun. 478,) upon which, the defendant’s counsel relies to sustain the defence, and which seems to favor his purpose, is, I apprehend, at war with long established principles, and distinguishable from the present case. That was a bill inter alia for the repayment of money paid on account by the lunatic. The sale was at auction during several successive days. The lunatic was present the whole time, and made the purchases himself. There has been no issue between the parties to have the fact of his lunacy at the time he made the purchases ascertained by a jury. And the. master of the rolls seems" to have yielded to his apprehensions of extensive and almost inimitably mischievous consequences which might result from sustaining the complainant’s bill.
    In this case Loomis was only present at the first and smallest purchase at a private store. The purchase was made by alleged copartners, on account of an alleged or contemplated copartnership between the lunatic and others. The bond and warrant to confess judgment were executed more than a year afterwards; and the fact of lunacy has been conclusively settled by the verdict of the jury, on the feigned issue between the parties; which finds that he was a lunatic not only at the time of the several purchases, but when the bond and warrant were executed. Here there were - some persons concerned in the purchase, who participated in the benefits thereof, and who were bound by the contract. Had Spencer sued Loomis upon the original contract, lunacy would have been a good defence to the suit on his part. But by obtaining a bond and warrant of attorney froto him more than a year afterwards, and while in a state of lunacy, a judgment has been entered up against him and the same co-obligor, without an opportunity for defence. Thus circumstanced, a court of equity is called upon to afford him relief; and according to the doctrine of the master of the rolls, in Niel v. Morley, this court (whose peculiar province it is to guard the rights of lunatics) must shut the door against him and turn him b ack to a court of law. Can this be sound equity ? How will it comport with the opinion of Chancellor Sandford» when he awarded a feigned issue to ascertain by the verdiet of a jury the fact of Loomis’ lunacy ? Why was this, if t'his court cannot grant the relief prayed for ? Again, how will it comport with the opinion of Chancellor Jones, who, upon the fact of lunacy being ascertained by the verdict of the jury, decreed relief?
    Had an application been made to the supreme court in due time after the judgment, upon proper-proof of Loomis’ lunacy, that court would have assumed and exercised equitable powers by awarding a feigned issue to try the question of lunacy; and upon Loomis being found a lunatic, according to the opinion of the master of the rolls, the supreme court must have set aside the judgment and declared the bond and warrant of attorney void. Laches cannot be imputed to Loomis (he being a lunatic) for not making the application and be deemed a ground for denying him relief here.
    The doctrine is not sound that equity will not interpose to arrest the enforcement of a contract, void by reason of lunacy. And it is not equity that a lunatic should be bound by a contract, which both law and equity declare him incapable of making.
    The insolvency of Rolph can have no bearing upon the case. For a contract void as respects Loomis, by reason of his lunacy, cannot become valid in consequence of the subsequent insolvency of any of the other parties; nor can the invalidity of the original bargain be obviated by a bond and warrant of attorney of the lunatic, given more than a year afterwards (while his lunacy continued) in consideration of that bargain; because the fact of lunacy, and the legal consequences flowing from it, are equally decisive against the bond and warrant as against the original bargain.
    The invalidity of a lunatic’s contract depends upon the fact of his lunacy when it was made. This fact remains the same whether the opposite contracting party had notice of it or not. The ignorance of the latter of the lunacy will exempt him from the imputation of fraud, but does not remove the legal incapacity of the lunatic'to make, a valid contract. Hence it would seem to follow, that want of notice in such a case cannot give efficacy to'an invalid contract. '

      H. Bleecker,, for defendant.
    > It is contended on the part of the defendant that this court ought pot to interfere to relieve the property of the complainant Justin Loomis from the judgment, and execution mentioned in the pleadings in this cause., The defendant was entirely innocent and ignorant of the alleged incapacity' of Loomis, when the goods were, sold to him and when the security was taken.
    If Loomis had paid the money for the goods,- it is clear-this, court would .not have interfered. On the same principle it-ought not to interfere against the security taken for the price of the goods. For the principles which govern the court in such cases, see 2 Mad. Ch. 594, and Niel v. Marley, 9 Ves. jun. 478. The doctrine is, that a court of equity will pot interfere to set aside a contract overreached by an inquisition in lunacy, if fair and without notice,, -especially when the parties cannot be. reinstated. -
    The principles on which the court act in such cases are so fully- stated and illustrated by Sir William Grant,-as master of the rolls, in the above mentioned case,, that nothing more can, be necessary than to refer to his ‘opinion.
    , The court cannot in this case reinstate the defendant.- Its ■ interference is matter of discretion. It will not' interfere against equity and conscience, but leave the party to his remedy at law. That Loomis had. the goods in partnership, and in conjunction with others* wd suppose can make ho difference in regard to the equity of the defendant. ’ He has lost the goods. Suppose Loomis alone had paid all the money for them ; each .partner is liable for the whole partnership debt. It is no answer to say that Loomis Was not capable of entering into a partnership. The defendant had no notice of his incapacity, and may have trusted, and probably did trust to the, responsibility' of Loomis. His partners may have believed him to be of sound mind. :
    The principles on which the court refuses to interfere, are as applicable to the 'case of-a purchase in conjunction with others, as to the case of purchase by one alone. The loss to the defendant is the same in both cases.
    The answer responding to the bill alleges that the bond] and warrant of attorney were given for a debt due from Loomis and Social Rolph to the defendant and his partners. As to the evidence of partnership, see Whitney Bancroft v. Sterling, 14 John. R. 215.
    Social Rolph was a competent witness ; no objection appears to have been made,to him.
    If the whole debt should be paid out of Loomis’ estate, Social Rolph will be liable to contribution. If he is unable to pay, he has no interest. The defendant, by entering up judgment against Loomis and Jacob 0. Rolph, discharged Social from the demand.
    It seems that Social did not execute the warrant of attorney, and that he executed the bond after the judgment was entered up. But if the fact of a purchase in conjunction with others can make a difference, then at all events the estate of Loomis should be liable for so much of the goods as he actually received; and if the pleadings and proofs do not sufficiently show this, the court will direct the proper means to ascertain it. It is, however, respectfully contended that the fact of a purchase in connection with others, leaves the innocent defendant in this cause in the same situation as if the sale had been to Loomis alone.
    To shew that lunacy is not a defence even in a suit at law, for the price of goods sold, when the vender is ignorant of the lunacy, I cite Baxter and another v. The Earl of Portsmouth, (5 Barn. & Cress. 170, 11 Serg. & Low, 190;) and the same parties, (2 Car. & Paine, 178, 12 Serg. & Low. 79.)
   The Chncellor.

It is evident from the pleadings and proofs in this case, and from the finding of the jury, that at the time when the alleged partnership between Loomis and the Rolphs was formed and the goods purchased, and at the time the bond and warrant were given, Loomis was a lunatic, or person of unsound mind. It also appears equally certain that Spencer had no knowledge or suspicion of that fact. A judgment being entered on the bond and warrant, the complainants have no defence at law except by an application to the equitable powers of the court where the judgment was entered. They have elected to file their bill here, and the question is whether the defendant Spencer is entitled to retain the legal advantage he has obtained.

■ There is no doubt of the propriety of courts refusing to enforce executory contracts entered" into by a lunatic or an infant; and probably no recovery could be had in either case in a court of law. The courts proceed upon the ground that neither has legal capacity to contract. Although a contract of purchase made by either, except for necessaries, could not be enforced, yet a court of equity ought not to interfere where the infant or lunatic has actually had the benefit of the property, if the contract was made in good faith, without; knowledge of the incapacity, and where no advantage has been taken of the situation of the party. In Niel v. Morley, (9 Ves 477,) Sir William Grant; refused to interfere where the lunatic had. purchased property at auction and paid part of the purchase money and given a warrant to confess judgment for the residue; the sale having been made in good faith, without knowledge of the lunacy, and it being impossible to restore the parties to their former situation. In Baxter and another v. The Earl of Portsmouth, cited by the defendant’s counsel, (5 Barn. Cres. 170, and 2 Car. & Payn, 178,) but much more fully reported by their cotemporary reporters, (7 Dow. & Ry. 614,) the court of king’s bench permitted the plaintiffs, who were coachmakers, to recover against a lunatic for the use of a coach and a landau and harness. The carriages were made to the defendant’s order; were suitable to his rank and condition in life, and had been hired to him for several years .at a fixed sum per annum; the plaintiffs keeping them in repair for his use. In that case Bailey, J. says, “ there is here no suggestion that the plaintiffs have not bona fide given the defendant credit. Exhibiting about him no appearance of mental incapacity, he goes to .the plaintiffs’ house and orders carriages, which are afterwards used by him. They are suitable to his condition and degree in life, and .such as would have been supplied by other persons if not by the plaintiffs. Under, these circumstances I think law and justice require that the plaintiffs should be allowed to maintain an action against the lunatic.” If such are the principles of a court of law in regard to lunatics, certainly a court of equity should not deprive a creditor of a legal advantage, which he has obtained, without restoring to him whatever benefit the estate of the lunatic has received in consequence of the contract. I doubt however in this case, whether Loomis ever received any benefit from the goods sold. He being a lunatic, the alleged partnership between him and the Rolphs was absolutely void. And I think it is pretty evident the proceeds of the goods went into their hands ; though Social Rolph testifies that a part of the goods were taken to the house of Loomis and retailed out by him.

This witness was probably interested in throwing a part of the debt on to the estate of Loomis, to discharge himself from liability on the bond. If Spencer is willing to risk the expense of a reference for the purpose of ascertaining whether Loomis has been benefitted by the sale of these goods to him . and the Rolphs, the decree must be modified so far as to permit the amount of such benefit only, when ascertained by a master, to be collected out of the estate of Loomis on the execution. Otherwise the former decree must be affirmed without costs to either party.


text:
    The Bennington Iron Company and others vs. Campbell and others.
    When amendments are made to a bill, if the complainant files or serves an entire new bill, incorporating therein as well the original matter as the amendments, he must distinctly designate the amendments in the new bill.
    Where a solicitor unnecessarily makes a re-engrossment or a full copy of the original matter, he will not be entitled to an allowance for the same in the taxation of his costs.
    If the amendments are not noted upon the new bill,the defendant’s solicitor may refuse to receive the copy of the bill which includes such amendments.
    It is improper to incorporate in an answer to an amended bill the whole matter of the former answer.

      The ' defendant’s solicitor should either decline receiving the amended .bill where the amendments are not noted upon it, or he should ascertain what the-amendments are and answer the amendments only.
    But if this course is nut pursued by the defendant, the complainant can only avail himself of the objection by excepting to the answer for impertinence. The titles of further answers must correspond with the ..order under which . they are put in. ' '
    Where exceptions to a former answer and to amendments to the bill are answered together, if neither the exceptions nor the amendments are fully answered, the complainant may file new exceptions founded on the new matter introduced into the bill by way of. amendment,. . ,
    If the new exceptions are not subinitted to by the defendant within the tight days allowed for that purpose; the answers should by an order be referred upon the new exceptions, and upon such of the old exceptions as are not sufficiently answered. . .
    Where the new exceptions are submitted ■ to, the answer must.be referred up-* on the old exceptions which- are not sufficiently answered, within ,'ten days after the answer is put in. "
    New exceptions for insufficiency cannot be taken to the further answer, founded upon the matter of the original hill,only.
    Where the reference is upon the new exceptions alqne, the master cannot inquire whether the old exceptions were fully answered, or whether any . part of the original bill to which the old exceptions did not relato was answered by the first answer of the defendant.
    If the new exceptions clearly relate to the original bill and not to th'e amendments -thereto, the defendant may move to take them from the files, for. irregularity ; or if he has doubts on the subject, he may urge the objection before the master on the reference.'
    Where the reference on such exceptions has been proceeded in, if they do not relate to the amendments, the exceptions will be permitted to remain on the files; but the master’s report allowing the new exceptions will be over, ruled.
    April 6th.
    Exceptions were filed to the separate answers of the several defendants in this cause' for insufficiency ; which exceptions, on reference, were allowed by the master. The complainants then odtained an order for leave to amend their bill, and that the defendants answer the amendments and exceptions together. The amendments to the original bill on file- were made in the usual manner: by attaching, the amendments to the bill, making slight alterations therein in red ink, and by making references thereon in the same manner, shewing where the amendments attached were to come in or to be inserted. But a copy of the whole original bill,' with the amendments incorporated therein, was served upon the defendants solicitor, without designating what parts thereof were the amendments. The defendants then put in further answers, which not only answered the amendments and exceptions, but also contained a repetition of the whole matter embraced in the former answers. These new answers were entitled the separate answers of the defendants to the amended bill of complainant, and were endorsed, “Copy answer to amended bill.” The complainants filed new exceptions, entitled, “ Exceptions taken to the answers of the defendants to the amended bill,” and entered an order referring it to a master to look into the amended bill and the answers, and the exceptions to those answers, and to report whether the answers were sufficient in the points excepted to or not. These exceptions did not relate to any matter introduced into the bill by the amendments. And upon this ground the defendants gave notice of an application to set aside the order of reference and all proceedings on the exceptions, for irregularity. Before this motion was made, the parties proceeded on the reference; but without prejudice to the right of the defendants to bring on the motion. The master having reported that the answers were insufficient, the defendants excepted to his report. The original motion and the exceptions to the report of the master came on to be heard at the same time.

      B. F. Butler, for the complainants.

      F. B. Cutting, for the defendants.
   The Chancellor.

There have been some irregularities on both sides, in this case, which it may be proper to notice in order to do justice between the parties. The manner in which amendments are to be made is stated by chancellor Kent in Luce v. Graham, 4 (John. Ch. Rep. 172.) If a party thinks proper to file or serve an entire new.bill, incorporating the original matter with the amendments, he must distinctly mark and designate the amendments, so that the defendant and the court may see what they are. And where a solicitor unnecessarily makes a re-engrossment or a full copy of the original matter, he will not be allowed for the same on taxation of costs.. In this case the defendants’ solicitor might have refused to. receive the copy of .the amended bill on which the amendments Were not npted.

The last answer was both irregular and impertinent. The impertinence consisted in. a repetition of the, whole matter' of .the former answers. The defendants should have declined .receiving the amended bill in its imperfect state, or ' have ascertained what the amendments were, and. answered accordingly. But as the complainants did not except to it on that ground, they cannot now make that objection. The answers were irregular'because the entitling thereof did not correspond with .the order under, which those answers were put in,' They are entitled as answers to the amended bill onlybut they should have been entitled, as further answers to the original bill of complaint and answers to the amended bill. De Tastet v. Lopez, 1 Simon’s Rep. 11.) ;As these answers were however in fact answers to the original exceptions as well as to the amendments, the order to answer hqs-been substan- - tially complied with, and it is now too late for the complainants to make the objection. ,

Where exceptions to .a. former answer and amendments to the bill are- answered together, -if neither the amendments nor exceptions are fully answered, the complainant is only at liberty to "file new exceptions founded on the'new matters introduced into the' bill by such amendments. The answers will then be referred .on the new exceptions, and upon such of the old exceptions as are specified in the order of reference, agreeably to the '52 rule.-' ■ In such cases the eomplainant must wait until the new exceptions are filed, and then refer both together in the same order if.the new. ex- _ ceptions are not submitted to within the eight days allowed for that purpose. Where the new exceptions are submitted, to,'the answer must be referred on the old exceptions, ox-some of them, within ten days thereafter, or, it will be deemed sufficient. , - '

New' exceptions for insufficiency cannot' be taken .to the further answer, founded, upon the matter of the original bill only. And where the- reference is -on the new exceptions - alone, the master, is not- at- liberty to enquire whether the old exceptions are fully answered, or whether any part of the original bill to which the old exceptions did not relate was answered by the first answer of the defendant thereto. (Partridge v. Haycraft, 11 Ves. 570. Williams v. Davies, 1 Sim. & Stu. 426.) The new exceptions in this case were properly entitled as exceptions to the answer to the amended bill. Under the order referring them, the master had no right to look into the answer, except so far as it was an answer to the amendments; and if he found it sufficient in that respect, it was his duty to overrule the exceptions. (Irving v. Viana, 1 M’Clel. & Young, 563.) This was done in Overyv. Leighton, (2 Sim. & Stu. Rep. 234,) where the exception to the answer to an amended bill might, on the same principle, have been taken to the first answer. The exception, if taken originally, would have been sustained; but the master overruled it as an exception to the second answer. On appeal from the decision of the master, the vice chancellor sustained his report.

If the exceptions, clearly and manifestly do not relate to the amendments, but to the original bill, only I think the defendant may move to take them off the files for irregularity. And where there is any doubt on the subject he may urge that objection before the master on the reference. Here it is evident that these exceptions do not relate to the amendments, and are not covered by the old exceptions. If the reference had not been proceeded in, they should be taken off the files. As the result will be the samé, they may now remain; but the exceptions to the master’s report must be allowed.

The exceptions and amendments being fully answered, the merits of the case are with the defendants. They are therefore entitled to the costs of the reference, and of the hearing on the exceptions to the master’s report. But as there have been some irregularities on both sides in matters of form, I shall give neither party any costs on the applica* tion to vacate the order of reference.